Kavanaugh's certiorari statement may be a roadmap for 2d Am. activity

[zukiphile]

Since Kavanaugh was sworn in, the court has denied cert in a couple of cases involving free exercise and free speech. With those denials came statements about the reason for the denials - the cases weren't factually clear or certain in a way that would lead to clear analysis and decision. Yet, in both statements there was an expressed willingness to enforce a new precedent (here Trinity Lutheran, allowing playground funds for a religious school) once the case law had developed more.

Also encouraging, the statements noted the misapplication of Sup. Ct. cases by the court from which appeal was sought.

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.

The Ninth Circuit’s opinion applies our decision in Garcetti v. Ceballos, 547 U. S. 410 (2006), to public school teachers and coaches in a highly tendentious way. According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students. Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.

This Court certainly has never read Garcetti to go that far.

https://www.supremecourt.gov/opinions/18pdf/18-12_d18e.pdf

In his statement in the Morris County denial, Kavanaugh noted,

The petitioners here argue that the State’s exclusion of religious buildings—because they are religious—from Morris County’s historic preservation program constitutes unconstitutional discrimination against religion in violation of the First and Fourteenth Amendments to the United
States Constitution. The New Jersey Supreme Court concluded that the State’s discrimination did not violate the First and Fourteenth Amendments. In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.

https://www.supremecourt.gov/orders/courtorders/030419zor_d1pf.pdf

Just as important for a development of a line of Heller/McDonald based cases, the pertinent block didn't proceed on weak facts, but announced the sort of argument that could find an audience in a future court.

 

[sigarms228]

Thanks, I am not a lawyer and don't understand all that much about what they wrote but I will take your word for it that this is a good thing. Sounds to me like maybe Brett Kavanaugh is signaling a willingness to challenge status quo on some of these Constitutional issues?

 

[zukiphile]

Sounds to me like maybe Brett Kavanaugh is signaling a willingness to challenge status quo on some of these Constitutional issues?

On the nose. Together with Gorsuch, Alito and Thomas, on these 1st Am. issues they are signaling that they would revisit lower court misapplication of their recent cases if they get cases with clearer facts.

 

[Bartholomew Roberts]

Or using the denial of cert to lay out the circumstances where they think they have the fifth vote

 

[Ben Dover]

Kavanaugh is a brilliant legal mind, much in the same mold as Scalia.

His decisions will come on cases where he can issue a ruling that probably cannot be challenged in the future.

I believe that history will consider him one of the finest legal scholars of the century.