Wednesday Writs: Espinoza v. Montana Department of Revenue

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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20 Responses

  1. Jaybird says:

    I have not yet read this post. But whenever I see “X vs. Y Department of Revenue”, I assume that the Department of Revenue will win.

    And now… to the post.Report

    • Jaybird in reply to Jaybird says:

      Okay. I think I like the way the case turned out. Way back, a million years ago, when I first got into the vouchers argument, my take was that vouchers could be used at religious schools.

      The counter-argument was that this was the state subsidizing religion. My counter-counter-argument was that the state wasn’t, they were allowing the parents to choose the school. Denying use of the voucher to schools based on religion was “prohibiting the free exercise thereof”.


      I like Sotomayor’s saying “but there isn’t anything for us to do! Therefore we should do nothing!”. That said, if the state was doing something unconstitutional, then stopped, there *IS* use in saying “For The Record: That Thing That The State Was Doing Was Unconstitutional. We’re Not Saying ‘Do Something’. We’re Saying That Thing Was Unconstitutional.”Report

      • DensityDuck in reply to Jaybird says:

        If it’s established that the Stillwater scholarships were unconstitutional, then it’s conceivable that the state could file suits against the families who took advantage of them to get the money back (or, possibly, that a private citizen could file suit claiming that their tax money was used to pay for those scholarships, etcetera.)Report

    • Em Carpenter in reply to Jaybird says:

      I should have mentioned…. the attorney general of Montana refused to handle the case because he or she had warned the legislature, in writing, that Rule 1 was likely unconstitutional.Report

      • Jaybird in reply to Em Carpenter says:

        (They can do that? We should call for more AGs to do that.)Report

        • Michael Cain in reply to Jaybird says:

          Independently elected AGs, at least. When Colorado had a Republican AG we were part of the group of states suing to find the ACA null and void because the AG wanted to, and could. When a Democratic AG was elected 18 months ago, we withdrew from the suit.

          From when I worked on the Colorado legislature’s budget staff… The AG has their own budget. The Governor’s Office has a separate legal budget. There was at least one session when the governor came in with a supplemental request for funding outside counsel because the AG refused to defend the state on something.Report

  2. DensityDuck says:

    “Because the Montana Supreme Court struck down the scholarship program as violative of the state constitution, leaving both religious and non-religious schools equally bereft of the funding it would have provided, Ginsburg finds no constitutional issue. ”

    yo hold up

    didn’t we just have a court case where it was agreed that “this isn’t targeting any particular protected class, it applies generally to everybody” is bunk?Report

  3. 1. Thomas really does think it’s OK for a state to have an official religion. He is a dangerous lunatic.

    2.With all the cases the Court doesn’t take, why are they ruling on the legality of a program that no longer exists? (We all know why. It’s called legislating from the bench.)

    3. If we’re going to take history into account, Justice Alito, let’s recall that the whites-only schools that sprung up in the wake of Brown vs. Board of Education were largely “Christian Schools”, and this decision would have allowed them to be tax-supported.Report

  4. Kazzy says:

    “The Supreme Court’s anxiously awaited abortion rights decision in June Medical Services v. Russo was released this week. It’s here if you want to read it. Or, you could read this case from 2015 in which the Court ruled the very same way on the very same issue. In any event, I’m not going to get into the details because I don’t hate myself quite that much.”

    Not asking you to get into the details of the actual cases, but why would they take up a case on the exact same issue? Why wouldn’t the prior decision just hold and apply to that case?Report

    • Mike Schilling in reply to Kazzy says:

      They were striking down abortion restrictions recent passed by the state of Louisiana. States keep passing clearly illegal restrictions, hoping that this time they’ll be allowed, and this time they were close; the 5th Circuit Court, which by law should have applied the existing precedent, chose not to, which is why this case went all the way to the Supremes.Report

    • Em Carpenter in reply to Kazzy says:

      Because the Fifth Circuit, which was also the lower court in the first case, disregarded the ruling the first time around and did the very same thing again.
      This case was pending appeal at the time that the previous case, Whole Women’s Health from Texas, was decided. In that case, Court said “‘[u]nnecessary health regulations that have the
      purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid”.
      In light of the decision, this case was remanded for further fact finding in accordance with the ruling. The Fifth Circuit thought well this time it’s different, found that the Louisiana law was significantly less burdensome than Texas’s (despite being nearly verbatim identical) and ruled the same way.
      So I guess the Court had to take it up because the 5th misapplied the Whole Women’s Health standard.Report

      • Kazzy in reply to Em Carpenter says:

        What happens if a lower court just doesn’t agree with a higher court/SCOTUS ruling and keeps deciding against precedent? Does the higher court have to keep taking it, hearing it out, and overruling the lower court?Report

        • Em Carpenter in reply to Kazzy says:

          I am not 100% sure, but I think the Court could issue a writ of mandamus or prohibition to compel compliance, but generally they rely on respect and cooperation. I’ll look into that a bit, or maybe one of the other OT lawyers will chime in.
          Most of the time, the lower courts purport to be following precedent in their opinions but find loopholes or ways in which they believe the case before them is differentReport

  5. Oscar Gordon says:

    WW3: Get those people some gun safety classes, Sheesh!

    WW6: AFAICT, they have both run afoul of the NFA, which takes a dim view of destructive devices, like molotov cocktails.Report