1. Home
2. Daily News
3. Supreme Court will decide whether Oklahoma…

U.S. Supreme Court

Supreme Court will decide whether Oklahoma can fund Catholic charter school

By Debra Cassens Weiss

January 27, 2025, 10:16 am CST

The U.S. Supreme Court on Friday agreed to decide whether the First Amendment allows Oklahoma to fund a Catholic online school as part of its charter school program.

At issue is whether funding the school violates the establishment clause and whether excluding the school from the program violates the free exercise clause, according to cert petitions here and here in the two consolidated cases.

The “blockbuster” cases could “redraw the line between church and state by allowing government to establish and directly fund religious schools for the first time,” the Washington Post reports.

The cert grant follows a 2022 Supreme Court decision holding that Maine could not exclude religious schools from a publicly funded tuition assistance program.

Other publications covering the cert grant include SCOTUSblog, CNN, Law360, Reuters and the New York Times. How Appealing links to additional coverage.

The school, formed by the Oklahoma archdioceses of Oklahoma City and Tulsa, Oklahoma, would include religious teachings in its lessons. The state’s virtual charter school board approved the school in June 2023.

The Oklahoma Supreme Court ruled in June 2024 that funding the school violated the First Amendment’s establishment clause, the Oklahoma Constitution and a state law governing charter schools. The decision said government control over the school made it a state actor.

The ruling was a win for Oklahoma Attorney General Gentner Drummond, who had opposed funding the school. Other Republican office holders had supported the school, however.

Justin Driver, a professor at Yale Law School, told the New York Times that a Supreme Court decision that allows funding “would represent nothing less than a sea change in constitutional law.”

“It is difficult to overstate the significance of this opinion for our constitutional order and the larger American society,” Driver said.

The cases are Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond. The case pages are here and here.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Supreme Court will decide whether family…

U.S. Supreme Court

Supreme Court will decide whether family can sue over mistaken raid by FBI SWAT team

By Debra Cassens Weiss

January 28, 2025, 11:49 am CST

The U.S. Supreme Court on Monday agreed to decide whether the U.S. Constitution prevents a family from suing the FBI for its mistaken 2017 SWAT team raid of their Atlanta home.

At issue is whether the lawsuit is barred by the Constitution’s supremacy clause and by a liability exception to the Federal Tort Claims Act for federal employees’ discretionary acts undertaken to advance federal policy.

“If the Federal Tort Claims Act provides a cause of action for anything, it’s a wrong-house raid like the one the FBI conducted here,” the cert petition filed by the Institute for Justice, a nonprofit public interest law firm, argues.

The Institute for Justice represents the plaintiffs, Curtrina Martin; her son (represented by Martin); and Martin’s partner, Hilliard Toi Cliatt.

The family members were awakened before dawn one morning in October 2017 by a flashbang grenade exploding in their living room. Martin’s 7-year-old son was separated from his mother while officers stormed the bedroom with guns drawn, according to the institute’s Jan. 27 press release.

Cliatt pushed Curtrina Martin into the closet and was reaching for his shotgun when an FBI agent threw him to the ground. FBI agents soon realized that they had raided the wrong place.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled against the family in an unpublished decision in April 2024.

The Federal Tort Claims Act was enacted in 1946 to waive U.S. sovereign immunity and allow damages for certain torts of federal employees when there would be liability under the same circumstances in the state where the acts happened, according to SCOTUSblog and the government’s petition opposing certiorari. Most intentional torts, however, were not allowed.

The law was amended in 1974 to make clear that intentional actions of law enforcement officers could be the basis of suits, according to the Institute for Justice.

“But the FTCA includes a host of exceptions, and circuit courts can’t agree on when they apply,” the press release said.

The 11th Circuit ruled against the family on two grounds. First, the appeals court said intentional-tort claims covered by the law enforcement amendment—for false imprisonment, assault and battery—were nonetheless barred by the supremacy clause because they concern acts with some nexus to furthering federal policy.

No other circuit has taken this position, according to the Institute for Justice.

“The 11th Circuit has created a unique supremacy clause bar to the FTCA that overrides congressional intent,” the cert petition says.

Second, the appeals court barred claims for torts falling outside the law enforcement amendment—for trespass, interference with private property and infliction of emotional distress. The 11th Circuit held that the claims are barred by the discretionary function exception to the Federal Tort Claims Act, which bars claims arising from a government official’s performance of a duty or a function that involves discretion.

The appeals court reasoned that FBI agents had discretion in preparing for execution of a warrant, and their decisions are susceptible to policy analysis.

The courts are “badly split” over the discretionary function exception, the cert petition says.

The case is Martin v. United States. The SCOTUSblog case page is here.

Publications covering the cert grant include SCOTUSblog, Law.com and the Washington Post.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. SCOTUS will decide whether schools can require…

U.S. Supreme Court

SCOTUS will decide whether schools can require LGBTQ-themed books at story time with no opt-outs

By Debra Cassens Weiss

January 21, 2025, 10:27 am CST

The U.S. Supreme Court on Friday agreed to decide whether schools can require teachers to read storybooks to elementary-age children with LGBTQ characters and themes over parents’ objections.

At issue is whether the required instruction with no possibility of opting out violates parents’ First Amendment right to free exercise of religion.

SCOTUSblog, the Washington Post, the New York Times, Reuters and the Volokh Conspiracy are among the publications with coverage of the cert grant in Mahmoud V. Taylor.

The SCOTUSblog case page is here.

One of the books, Pride Puppy, is about a puppy that gets lost during a gay pride parade, according to SCOTUSblog. Another, My Rainbow, is about a mother who makes a colorful wig for her transgender daughter.

Both books were removed from the curriculum after the lawsuit was filed, the Washington Post reported in October.

Other books remain, including Love, Violet, which is about a young girl trying to make a valentine for a female classmate.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals had ruled 2-1 against the parents in May, holding that the parents weren’t entitled to a preliminary injunction because they had not shown that they or their children were forced to change their religious beliefs or conduct.

According to the cert petition, five circuits now hold that Supreme Court precedent “essentially provides parents no protection once they place their children in the public system.” Only one circuit has found that forced instruction burdens parents’ free exercise rights under the precedent, the 1972 Supreme Court case Wisconsin v. Yoder, the petitioners say.

The defendants in the case are the Montgomery County, Maryland, superintendent of public schools, the school board and its members. They argue that there is no circuit split on the issue.

“Every single court of appeals that has considered the question has held that mere exposure to controversial issues in a public school curriculum does not burden the free religious exercise of parents or students,” their brief says.

The parents who challenged the policy are represented by the Becket Fund for Religious Liberty, a nonprofit public interest law firm, which issued a Jan. 17 press release here.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Supreme Court will decide whether TikTok…

U.S. Supreme Court

Supreme Court will decide whether TikTok ban violates the First Amendment

By Debra Cassens Weiss

December 18, 2024, 2:17 pm CST

The U.S. Supreme Court has agreed to consider the constitutionality of a law that bans TikTok in the United States if the company isn’t sold.

Oral arguments in the First Amendment challenge are scheduled for Jan. 10 in two consolidated cases seeking emergency applications for an injunction. One was filed by TikTok and ByteDance, its owner. The other was filed by TikTok users.

The TikTok ban is “a massive and unprecedented speech restriction,” the company argued in its Supreme Court request.

SCOTUSblog, Law360, the Washington Post and the New York Times are among the publications with coverage.

TikTok must be sold or face a U.S. ban under the Foreign Adversary Controlled Applications Act. The law bans apps controlled by China and three countries identified as foreign adversaries of the United States, SCOTUSblog explains. The deadline for compliance is Jan. 19.

Lawmakers who supported the law said TikTok is a security threat because the Chinese government has oversight of private companies, the New York Times explains.

In an amicus brief, Republican Senate Minority Leader Mitch McConnell of Kentucky said TikTok is a threat because it is “under the direct control of the Chinese Communist Party.”

The goal of the law, the brief said, “is to further the highly compelling state interest of preventing Chinese Communist mining of American data and deployment of subversive enemy propaganda through algorithmic curation.”

TikTok users’ injunction application notes that Vice President Kamala Harris and President-elect Donald Trump campaigned on TikTok during the 2024 presidential election, “thereby implicitly encouraging Americans to use the app.”

Trump said at a news conference on Monday he has a “warm spot in my heart for TikTok.”

The Supreme Court granted review after treating the emergency injunction applications as cert petitions, as suggested by the briefs.

1. Home
2. Daily News
3. SCOTUS will decide whether Medicaid beneficiaries…

U.S. Supreme Court

SCOTUS will decide whether Medicaid beneficiaries can sue over state’s defunding of Planned Parenthood

By Debra Cassens Weiss

December 23, 2024, 9:23 am CST

The U.S. Supreme Court agreed Wednesday to consider whether Medicaid beneficiaries can sue over South Carolina’s decision to defund Planned Parenthood.

Although federal law generally bars Medicaid from paying for abortions, it does allow payment to abortion providers for other medical services, SCOTUSblog explains. Planned Parenthood had provided birth control, cancer screenings and physical exams to low-income South Carolina residents before the state cut off all Medicaid funds for the organization in 2018, according to the group’s brief opposing cert.

Planned Parenthood South Atlantic and one of its Medicaid patients sued.

At issue is whether beneficiaries can sue under Section 1983 of the Civil Rights Act under an “any-qualified provider” provision of the Medicaid Act.

The law provides that “any individual eligible for medical assistance” under the law can obtain care from any institution ready and qualified to perform the services, according to a brief opposing cert by Planned Parenthood.

Besides SCOTUSblog, publications with coverage include the New York Times, the Washington Post and USA Today. How Appealing links to additional coverage.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, had allowed the lawsuit, according to New York Times.

“This case is, and always has been, about whether Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their health care provider,” the 4th Circuit said. “Preserving access to Planned Parenthood and other providers means preserving an affordable choice and quality care for an untold number of mothers and infants in South Carolina.”

Federal appeals courts are split on the issue of a private right of action, according to South Carolina.

“Whether a private party can drag a state into federal court for disqualifying a provider should not turn merely on where that state is located,” says the state’s cert petition.

But the brief opposing cert argues that there is no split because the two appeals courts that found no private right of action ruled in cases in which a medical provider was terminated for cause, a factor not present in the South Carolina case.

South Carolina is represented by Alliance Defending Freedom, a conservative legal advocacy group.

“Taxpayer dollars should never be used to fund facilities that make a profit off abortion,” said Alliance Defending Freedom lawyer John Bursch in a statement cited by news coverage.

The case is Kerr v. Planned Parenthood.

1. Home
2. Daily News
3. Judge’s plan to decide traffic cases before…

Ethics

Judge’s plan to decide traffic cases before hearing date ‘was not evil in nature,’ disciplinary court says

By Debra Cassens Weiss

March 13, 2024, 9:56 am CDT

A Philadelphia municipal judge who ruled on 95 traffic citations one day before the hearing date violated just one ethics rule requiring diligent and competent performance of duties, the Pennsylvania Court of Judicial Discipline has ruled.

In its March 12 opinion, the disciplinary court said the conduct by Judge Marissa J. Brumbach of the Philadelphia Municipal Court was not as bad as alleged by the Pennsylvania Judicial Conduct Board, Law.com reports.

“The initial report of the alleged misconduct in this case sounded much worse than what the actual evidence showed,” the disciplinary court said. “Judge Brumbach’s plan was not evil in nature, nor was it an attempted abuse of power for personal gain.”

Brumbach had ruled in advance because she had plans to be in Florida on Jan. 7, 2022, the date when the cases were scheduled, according to the opinion. She had asked then-President Judge Patrick Dugan of the Philadelphia Municipal Court for the day off in November 2021 but never received a response until Jan. 6, 2022, after Brumbach notified the presiding judge of her advance-ruling plan in an email.

Brumbach’s email had asked whether Dugan had an alternate plan. He responded that “the alternative plan is for you to show up and handle your list,” and he had not authorized the day off.

Typically, witnesses did not appear in traffic court. The judge ruled based on information in the citation, the disciplinary court said.

Brumbach had informed her staff that if any defendants showed up in court, their cases were to be continued.

Before ruling in the cases, Brumbach had asked a prosecutor to review them and decide whether to withdraw any of them.

Brumbach’s advance rulings were to be implemented only if there was no coverage for Brumbach’s courtroom and if the court was not closed because of snow. As it turned out, the court was indeed closed that because of the inclement weather, and there was indeed coverage for Brumbach’s courtroom if the court had been open.

The defendants’ rights to be heard were not violated, the disciplinary board said, because the rulings were only for cases in which the defendant failed to appear.

“There is no evidence that anyone was denied their rights, that anyone failed to receive a fair trial, or that the government was denied due process under the particular facts of this case,” the opinion said.

Dugan should have told Brumbach whether her time-off request was approved before Jan. 6, 2022, the disciplinary court said. And Brumbach should not have signed off on the case dispositions in advance.

The disciplinary court said Dugan and Brumbach “have obvious problems with communication,” although the source of the friction isn’t entirely clear. The working relationship was so poor that Brumbach did not want Dugan to have any in-person communication with her, the court said.

Lawyer Matthew Haverstick represented Brumbach. He told Law.com that he viewed the decision as an overall win that refuted a “really overblown and overhyped” ethics complaint.

The disciplinary court opinion becomes final after a 10-day period to lodge objections, Law.com explains. After that, a hearing on sanctions will happen.

How the U.S. Supreme Court writes its opinion in Trump v. Anderson could have enormous long-term implications. The oral arguments on Feb. 8 left no doubt that the Supreme Court will reverse the Colorado Supreme Court and hold that Donald Trump is not disqualified from being on the ballot for the Republican primary in that state.

Although the result was obvious from the two and a half hours of questions by the justices, it was unclear what rationale the court will adopt. Many of the possibilities would do serious damage to future elections and to constitutional law.

States can’t enforce the 14th Amendment

Chief Justice John Roberts suggested during oral arguments that the 14th Amendment was meant as a limit on state power, not authority for states to enforce the 14th Amendment. Commentators, such as New York Times columnist David Brooks, have praised this argument.

But it is just wrong. States enforce the 14th Amendment all the time. The Bill of Rights is applied to the states through the due process clause of the 14th Amendment. Literally every day, state courts hearing criminal cases enforce provisions such as the Fourth Amendment’s limits on police search and seizures and the Sixth Amendment’s requirements during a criminal trial. If a state adopted an unconstitutional law restricting voting, surely state courts could enjoin it.

There is no reason why state courts cannot also enforce Section 3 of the 14th Amendment. That provision, like all, is meant to limit what the government can do. And a state court keeping Donald Trump off the ballot is enforcing the limits imposed by the Constitution. If the court writes its opinion that states are limited in their ability to enforce the 14th Amendment, the implications would be huge.

The voters should not be disenfranchised

Many justices seemed to endorse this view at oral argument. There is a surface appeal to the idea that the voters should be able to have on the ballot and then elect whomever they want.

The problem with this argument, though, is that courts never could enforce any limits on who can be a candidate. Many states have restrictions on who can run for office. California, for example, requires that the attorney general and district attorneys be lawyers. Cities have requirements that officeholders live in their jurisdictions. Laws across the country require that a person live in the district from which he or she is elected. The Constitution imposes other limits on who can be president such as requiring that the person be at least 35 years old, a natural-born citizen, a resident for 14 years and not have served two terms as president already.

All of these restrictions disenfranchise voters in that they limit who they can vote for. If the court embraces the view that the voters get to choose notwithstanding Section 3 of the 14th Amendment, not only would it nullify that provision, but it would seem to put all limits on who can hold office in jeopardy.

One state should not decide for the country

At the oral argument, several of the justices, including liberal ones, raised this concern. Again, there is appeal to this concern and a fear that it will open the door to states in the future exercising this power in nefarious ways.

But this argument is flawed in that it would not be one state deeming that Donald Trump violated Section 3, but rather the United States Supreme Court. Every case must begin in one state, whether in federal court or state court there. The trial court will hold a hearing, as was done in Colorado with a five-day hearing over whether Trump was disqualified.

But then there are appeals, ultimately to the U.S. Supreme Court. And it is the Supreme Court which will resolve whether Section 3 applies, including whether the individual participated in an insurrection or rebellion. Some have expressed concern that the fact finding of a state court could bind the Supreme Court. The high court, though, can review the adequacy of the fact finding, as it constantly does in other cases. Besides, in this instance, the facts are not in doubt; there is no doubt as to what occurred on Jan. 6 or what Donald Trump did.

Every time a federal district court declares a law unconstitutional and issues a nationwide injunction, a court in one state is making a decision for the country. If enforcement of Section 3 cannot begin in one state, that provision is effectively nullified. And if this rationale is followed, it would call into question the ability of state and federal trial courts ever to engage in fact finding and make rulings that affect the entire country.

Section 3 only means that a person cannot serve as president; it does not keep a person from running

Justice Neil Gorsuch suggested this in his question. But this would mean that no restrictions on who can serve in an office ever could be enforced to keep the person off the ballot. This would be highly undesirable because it would mean that people would be wasting their votes by selecting individuals ineligible to serve.

This argument would mean that the people could vote for someone ineligible to serve, only for the court to act after the election. This would be far worse, as it would mean that the court could decide if Trump was eligible for president only after he was elected. If there is concern for disenfranchising the voters and causing political chaos, this would surely do it.

My point is that if the Supreme Court is going to reverse the Colorado Supreme Court and allow Trump to run for president, it should be very careful how it does so. Many of the rationales suggested at oral argument would have devasting implications for other elections in the future.

---

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

---

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.