Is there a precedent for SCOTUS making up fake facts on the scale that they did in ['Kennedy']? [View all]

[In It to Win It]

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The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling a 1971 case laying out how the government must keep its distance from religion.

But Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”

(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)

Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.

But it’s not clear how those lower court judges should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.