“In just a few years,” Sotomayor noted Tuesday as liberals found themselves losing in a case that could bolster public funding for religious schools, the court “has overturned constitutional doctrine.”
She also hinted that more changes are coming. “With growing concern about where this Court will take us next, I respectfully disagree,” Sotomayor wrote.
Since taking office, Sotomayor — more than any other liberal justice — has foreshadowed the trajectory of conservatives, underscoring at every step his belief that his right-wing colleagues are abandoning institutional legitimacy and relying on precedent.
During oral arguments in December in the case that could result in Roe v. Wade being overturned, she was blunt in suggesting that the only reason the court was seriously considering overturning a decades-old abortion precedent was the recent change in the composition of the tribunal. .
“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are just political acts,” she asked.
On Tuesday, she continued on the same theme, underlining the will of the majority to act quickly to change legal doctrine. “The consequences of the Court’s rapid transformation of the religion clauses should not be underestimated,” she said.
His comments came after a 6-3 court ruled Maine could not exclude religious schools from a tuition assistance program that allows parents to use vouchers to send their children to colleges. public or private schools.
Chief Justice John Roberts, writing for the right side of the bench, said the state’s action violated the Constitution’s free exercise clause.
“The state,” Roberts said, “pays tuition for some private school students — as long as they’re not religious.”
“It’s discrimination against religion,” the leader concluded for his fellow Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh.
The opinion infuriated Sotomayor who accused his fellow conservatives of dismantling “the wall of separation between church and state that the framers have fought to build”. She accused the court of starting such a course five years into another case when the court ruled that a Missouri policy that excluded a church-run preschool from a grounds improvement grant program games was unconstitutional.
“After ruling out a violation of the Establishment Clause, the Court revolutionized the doctrine of free exercise by equating a state’s decision not to fund a religious organization with allegedly unconstitutional discrimination on the basis of religious status,” she said of this opinion.
In Tuesday’s new notice, she pointed to the court’s history balancing the establishment clause (prohibiting the government from establishing a religion) with the free exercise clause (protecting the free exercise of religion).
She said the court had long recognized “a play in the joints” between religious clauses and that such “flexibility” was in keeping with a “rich historical tradition” allowing states and the federal government to refuse to fund religious institutions.
“The court’s increasingly expansive view of the free exercise clause risks swallowing up the gap between religious clauses that once allowed religious exercise to exist without sponsorship and without interference,” he said. she writes on Tuesday.
She said Majority has created a roadmap that will extend to other church and state disputes down the road.
“If a state cannot provide grants to its citizens without being required to fund religious exercise, any state that values its anti-establishment historical interest more than this Court does will have to reduce the support it offers to its citizens”, she concluded.
But Sotomayor also made it clear that while she doesn’t share the conservatives’ judicial philosophy and case outcomes, she still considers some of them friends.
And last January, amid a report that Sotomayor – who is at high risk from Covid because she has diabetes – had asked her colleague, Judge Neil Gorsuch, to wear a mask during oral arguments, the two released a rare joint statement calling the report “false”.
“Although we sometimes disagree on the law, we are warm colleagues and friends,” the statement said.
Still, Sotomayor last week hinted in general terms that she hadn’t given up hope.
“There are days when I get discouraged,” Sotomayor said, adding that she is sometimes brought to tears. “So I say, ‘OK, let’s fight. “”