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Sotomayor Emerges As Ginsburg’s Heir

Sonia Sotomayor
photo by Gage Skidmore

By their nature, Supreme Court justices readily speak their minds. Each has an equal vote on a case’s outcome and, in theory, each could write an individual opinion explaining his or her rationale.

So it was noteworthy to me that Justice Sonia Sotomayor cited a previous case’s “controlling concurrence” to support her dissent in the recent case of Trinity Lutheran v. Comer. Even more noteworthy was the fact that Sotomayor’s only ally in dissent was the justice whose shoes she seems to want most to fill, Ruth Bader Ginsburg.

Trinity Lutheran centered on a state grant to resurface a playground attached to the church’s private preschool. While the school is run by the Columbia, Missouri church, most of the children who regularly attend are not from families affiliated with the church, according to The Kansas City Star, but rather from the surrounding neighborhoods. Yet state law dictated that grant applications from religious institutions be dismissed out of hand, regardless of the application’s suitability in other respects. (The church’s application ranked fifth of the 44 organizations seeking state funding.) The high court ruled 7-2 that disqualifying religious nonprofits from applying for such funds simply because of their religious nature is unconstitutional.

In the majority opinion, Chief Justice John Roberts wrote that the consequence of denying the grant was “in all likelihood, a few extra scraped knees.” “But,” he added, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” Justices Clarence Thomas, Neil Gorsuch and Stephen Breyer all wrote brief concurring opinions.

Sotomayor’s dissent was decidedly not brief; it was about twice as long as Roberts’ majority opinion. Her opening stakes the claim: “This case is about nothing less than the relationship between religious institutions and the civil government – that is, between church and state.”

While Sotomayor never says so outright, her dissent sends a clear signal that she will fight tooth and nail to prevent the issuance of any school vouchers that parents could use to send their children to parochial schools rather than public schools, regardless of restrictions that might be imposed to ensure the vouchers pay only for secular instruction. Her dissent also makes me wonder whether Sotomayor would, if given a chance, find it unconstitutional to provide government student aid or tax credits to students attending sectarian colleges like Notre Dame or to fund a researcher in, say, the physical science departments at such a school.

The so-called “controlling concurrence” Sotomayor cites is for Mitchell v. Helms, a 2000 case that lacked a majority opinion as such; the court’s opinion represented a plurality of four justices, with an additional two justices concurring only in part. The case concerned a federal program that helped state and local agencies lend materials to schools, both public and private. Sotomayor’s dissent in Trinity Lutheran relies mainly not on the court’s primary Mitchell opinion, authored by Thomas and reflecting the plurality’s views, but on then-Justice Sandra Day O’Connor’s concurrence.

In Mitchell, Thomas took the position that the “neutral, secular criteria” on which the government aid to public and private schools was determined (in this instance, enrollment) did not violate the Constitution’s establishment clause. This logic could provide a rationale on which a school voucher program would survive a court challenge; legal scholars have debated and anticipated such a test ever since Mitchell was decided.

In the Mitchell concurrence, O’Connor and Breyer said that Thomas’ decision went too far. They agreed with the result, finding that the Louisiana aid program benefitting parochial as well as secular schools was legal, but O’Connor argued that neutrality alone was not sufficient to pass constitutional muster; the aid, she said, could not be used in the promotion of religious indoctrination. O’Connor’s logic would place a major hurdle in front of school vouchers that could be used in sectarian schools.

Even O’Connor’s position in Mitchell was too much for three of the court’s most liberal members. Ginsburg and then-Justices David Souter and John Paul Stevens would have struck down the Louisiana program.

A concurring opinion provides a sometimes-useful window into the judicial logic underpinning a decision. But in reality, there is no such thing as a “controlling concurrence” in the sense Sotomayor uses it, which is to give one or two swing votes the final word as precedent.

The Supreme Court either affirms, in whole or part, the judgment of the court from which a case is appealed, or it reverses. Its opinions provide the rationale for the action it takes. When there are multiple opinions, there are multiple rationales; when no single opinion is joined by at least five justices, as in Mitchell v. Helms, there is no “controlling” rationale at all – merely a result, and often confusion about how the result was reached and what guidelines to apply in comparable future situations. With luck, subsequent jurisprudence clarifies the rationale, but that doesn’t always happen. Despite those, including Roberts, who decry the lack of consensus on the modern Supreme Court, anyone who has paid attention in recent years cannot be truly surprised to regularly encounter cases with a variety of concurring and dissenting opinions attached.

Tellingly, the only justice who joined Sotomayor in her Trinity Lutheran v. Comer dissent was Ginsburg, the only Mitchell dissenter still on the court. I don’t think this is pure chance. Sotomayor seems to be emerging as Ginsburg’s ideological heir on the court: a progressive crusader whose orthodoxy drives her decision-making. Many will applaud this development, as Ginsburg certainly has her fans. Others won’t. But for better or worse, Sotomayor is finding her voice and making it heard.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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