Justices Jackson, Sotomayor, and Kagan each wrote a majority decision on Thursday. The decisions provide some insights into their approach in this moment.
My reading of the decision regarding preference being given to those of a particular religion seems to indicate that to be fair, non-discriminating or not favoring one religion over another, a state law that requires that the Christian Ten Commandments be posted in every public school is unconstitutional, unless those not of that faith have an equal right to have their own formal or individual religion's "Commandments" also posted in all public spaces, as well. Enacting a state law that requires the posting of the Christian Ten Commandments in every room of a pubic school
is stomping on the freedom of religion of students, staff and families: Freedom of religion as protected by the U.S. Constitution, is the right of individuals to practice any religion, or no religion at all, without government Interference. It encompasses both the Establishment Clause, which prohibits the government from establishing a religion (where I hold posting the Ten Commandments in every room of every public school is "establishing a religion"), and the Free Exercise Clause, which protects the right to practice one's religion, which I hold that by having those Ten Commandment posted in the public school classroom, the state is not protecting the right to practice no religion at all or is giving preference to one religion over other religions. Clearly a violation of the constitution.
Fascinating, as ever. I wonder though, how majority opinions are awarded to justices? Is Roberts giving the liberals (all women, all minorities—does Roberts flinch at their presence?) opinions now as a sop to later illiberal and perhaps politically motivated opinions?
They try to be relatively even-handed, with justices writing about the same number of opinions for the term. Can't always happen, of course; but as Chris suggests, the fact that the liberals are getting the unanimous decisions suggest that divided opinions are coming out mostly on the conservative side, which means that those opinions would not be available for the liberals to author if Roberts wants to keep a relatively balanced assignment tally.
Chris, after a brief sojourn I'm returning to Law Dork and its good to be back.
I'm surprised there aren't more comments but perhaps Article III discussions are a bIt nerdy for most. All of the three cases deserve extended discussion but it's a busy day for me so bye for now.
Thanks for these analyses. My initial reaction to the headline was along the lines of “What the heck are they doing?” But the explanations of the strategy helped me see the rationale for these opinions. Thanks for making these clear.
Democratic Strategy Amid Authoritarian Drift: The Question of Party Switching and Congressional Continuity
Given the growing authoritarianism of the Trump Administration, are leading Democrats actively trying to encourage Republican Congresspersons who care about the rule of law and their constitutional role in preserving the Republic to change their party affiliation, particularly in exchange for Democratic support in future elections such as 2026? This question takes on greater urgency in light of concerns about the effective functioning of government and continued U.S. food, medical, and humanitarian assistance abroad—especially for Republicans representing districts won by Joe Biden in 2020 and Kamala Harris in 2024.
Lack of Coordinated Democratic Recruitment of Republicans
As of mid-2025, there is no publicly documented, coordinated effort by Democratic Party leadership to recruit Republican members of Congress to switch party affiliation in exchange for becoming Democratic candidates in the 2026 elections. While individual cases of party-switching have occurred, they are rare and typically driven by personal or local political calculations rather than any national strategy.
One notable exception is former Republican Congressman David Jolly, who announced his candidacy for Florida governor in 2026 as a Democrat. Jolly, an outspoken critic of Donald Trump, left the Republican Party in 2018 and later registered as a Democrat, citing deep concerns about the party's authoritarian drift.
Barriers to Party Switching Among Republicans
Several interlocking factors help explain why more Republican lawmakers have not switched parties or publicly broken with Trump, despite grave concerns about democratic erosion:
Fear of Retaliation
Senator Lisa Murkowski (R-Alaska) has stated bluntly: "We're all afraid," acknowledging the risk of political retaliation for opposing Trump.
Representative Eric Swalwell (D-California) noted that GOP colleagues are "terrified" of crossing Trump, citing fears of harassment, threats to personal safety, and attacks on family members.
Political Calculations
Trump remains dominant within the GOP base. Crossing him risks primary challenges, donor withdrawal, loss of committee assignments, and electoral defeat.
Lack of Incentives
Democrats have offered no public guarantees of institutional support, resources, or favorable committee placements to potential defectors. Without tangible benefits, the personal and professional costs of switching remain prohibitive.
Ideological Gaps
Even anti-Trump Republicans may diverge sharply from the Democratic platform on issues such as taxation, environmental policy, labor rights, and regulation.
In short, the risks of defection—both political and personal—appear to outweigh the perceived rewards, even in increasingly unstable times.
Congressional Deaths and Democratic Losses Since 2024
Since the 2024 congressional elections, several sitting Democratic members of the House have passed away, creating temporary vacancies and shifting the balance of power. Below is an updated overview:
Rep. Gerry Connolly (D–VA-11)
Date of Death: May 21, 2025 (Esophageal cancer)
Background: Senior member and top Democrat on House Oversight.
Successor: Seat currently vacant; special election scheduled for Sept. 9, 2025.
Rep. Raúl Grijalva (D–AZ-7)
Date of Death: March 13, 2025 (Complications from cancer treatment)
Background: Progressive stalwart from southern Arizona.
Successor: Seat currently vacant; special election set for Sept. 23, 2025.
Rep. Sylvester Turner (D–TX-18)
Date of Death: March 5, 2025 (Natural causes)
Background: Newly elected after serving as Houston’s mayor.
Successor: Seat vacant; special election scheduled for Nov. 4, 2025.
Rep. Sheila Jackson Lee (D–TX-18)
Date of Death: July 19, 2024 (Pancreatic cancer)
Successor: Erica Lee Carter (D), elected Nov. 2024, served remainder of term.
Rep. Donald Payne Jr. (D–NJ-10)
Date of Death: April 24, 2024 (Heart attack)
Successor: LaMonica McIver (D), elected Sept. 2024, sworn in Sept. 23, 2024.
Implications
These vacancies have temporarily diminished Democratic numbers in the House, exacerbating the already narrow partisan divide and complicating the party's ability to counteract authoritarian moves by the executive branch. Timely special elections, succession planning, and strategic outreach to principled Republicans remain vital to safeguarding democratic governance.
My reading of the decision regarding preference being given to those of a particular religion seems to indicate that to be fair, non-discriminating or not favoring one religion over another, a state law that requires that the Christian Ten Commandments be posted in every public school is unconstitutional, unless those not of that faith have an equal right to have their own formal or individual religion's "Commandments" also posted in all public spaces, as well. Enacting a state law that requires the posting of the Christian Ten Commandments in every room of a pubic school
is stomping on the freedom of religion of students, staff and families: Freedom of religion as protected by the U.S. Constitution, is the right of individuals to practice any religion, or no religion at all, without government Interference. It encompasses both the Establishment Clause, which prohibits the government from establishing a religion (where I hold posting the Ten Commandments in every room of every public school is "establishing a religion"), and the Free Exercise Clause, which protects the right to practice one's religion, which I hold that by having those Ten Commandment posted in the public school classroom, the state is not protecting the right to practice no religion at all or is giving preference to one religion over other religions. Clearly a violation of the constitution.
That was my immediate thought too.
Fascinating, as ever. I wonder though, how majority opinions are awarded to justices? Is Roberts giving the liberals (all women, all minorities—does Roberts flinch at their presence?) opinions now as a sop to later illiberal and perhaps politically motivated opinions?
They try to be relatively even-handed, with justices writing about the same number of opinions for the term. Can't always happen, of course; but as Chris suggests, the fact that the liberals are getting the unanimous decisions suggest that divided opinions are coming out mostly on the conservative side, which means that those opinions would not be available for the liberals to author if Roberts wants to keep a relatively balanced assignment tally.
Again, you have it right; I blurted too soon (the very nature of a blurt).
Jackson's concurrence in the Catholic Charities case also tried to limit its reach.
Chris, after a brief sojourn I'm returning to Law Dork and its good to be back.
I'm surprised there aren't more comments but perhaps Article III discussions are a bIt nerdy for most. All of the three cases deserve extended discussion but it's a busy day for me so bye for now.
Hmm, asked and answered … I jumped the gun.
Nice to see you here David.
Thanks for these analyses. My initial reaction to the headline was along the lines of “What the heck are they doing?” But the explanations of the strategy helped me see the rationale for these opinions. Thanks for making these clear.
Brava to the liberal
ladies of SCOTUS and
thank you Chris for
highlighting each decision and points of
law, especially on the
Skermetti - not sure of
the spelling and my AI
widget is asleep 🙄 -
implications coming up
in MS.
A Vital Topic for D+1 Day (i.e. June 7)
Democratic Strategy Amid Authoritarian Drift: The Question of Party Switching and Congressional Continuity
Given the growing authoritarianism of the Trump Administration, are leading Democrats actively trying to encourage Republican Congresspersons who care about the rule of law and their constitutional role in preserving the Republic to change their party affiliation, particularly in exchange for Democratic support in future elections such as 2026? This question takes on greater urgency in light of concerns about the effective functioning of government and continued U.S. food, medical, and humanitarian assistance abroad—especially for Republicans representing districts won by Joe Biden in 2020 and Kamala Harris in 2024.
Lack of Coordinated Democratic Recruitment of Republicans
As of mid-2025, there is no publicly documented, coordinated effort by Democratic Party leadership to recruit Republican members of Congress to switch party affiliation in exchange for becoming Democratic candidates in the 2026 elections. While individual cases of party-switching have occurred, they are rare and typically driven by personal or local political calculations rather than any national strategy.
One notable exception is former Republican Congressman David Jolly, who announced his candidacy for Florida governor in 2026 as a Democrat. Jolly, an outspoken critic of Donald Trump, left the Republican Party in 2018 and later registered as a Democrat, citing deep concerns about the party's authoritarian drift.
Barriers to Party Switching Among Republicans
Several interlocking factors help explain why more Republican lawmakers have not switched parties or publicly broken with Trump, despite grave concerns about democratic erosion:
Fear of Retaliation
Senator Lisa Murkowski (R-Alaska) has stated bluntly: "We're all afraid," acknowledging the risk of political retaliation for opposing Trump.
Representative Eric Swalwell (D-California) noted that GOP colleagues are "terrified" of crossing Trump, citing fears of harassment, threats to personal safety, and attacks on family members.
Political Calculations
Trump remains dominant within the GOP base. Crossing him risks primary challenges, donor withdrawal, loss of committee assignments, and electoral defeat.
Lack of Incentives
Democrats have offered no public guarantees of institutional support, resources, or favorable committee placements to potential defectors. Without tangible benefits, the personal and professional costs of switching remain prohibitive.
Ideological Gaps
Even anti-Trump Republicans may diverge sharply from the Democratic platform on issues such as taxation, environmental policy, labor rights, and regulation.
In short, the risks of defection—both political and personal—appear to outweigh the perceived rewards, even in increasingly unstable times.
Congressional Deaths and Democratic Losses Since 2024
Since the 2024 congressional elections, several sitting Democratic members of the House have passed away, creating temporary vacancies and shifting the balance of power. Below is an updated overview:
Rep. Gerry Connolly (D–VA-11)
Date of Death: May 21, 2025 (Esophageal cancer)
Background: Senior member and top Democrat on House Oversight.
Successor: Seat currently vacant; special election scheduled for Sept. 9, 2025.
Rep. Raúl Grijalva (D–AZ-7)
Date of Death: March 13, 2025 (Complications from cancer treatment)
Background: Progressive stalwart from southern Arizona.
Successor: Seat currently vacant; special election set for Sept. 23, 2025.
Rep. Sylvester Turner (D–TX-18)
Date of Death: March 5, 2025 (Natural causes)
Background: Newly elected after serving as Houston’s mayor.
Successor: Seat vacant; special election scheduled for Nov. 4, 2025.
Rep. Sheila Jackson Lee (D–TX-18)
Date of Death: July 19, 2024 (Pancreatic cancer)
Successor: Erica Lee Carter (D), elected Nov. 2024, served remainder of term.
Rep. Donald Payne Jr. (D–NJ-10)
Date of Death: April 24, 2024 (Heart attack)
Successor: LaMonica McIver (D), elected Sept. 2024, sworn in Sept. 23, 2024.
Implications
These vacancies have temporarily diminished Democratic numbers in the House, exacerbating the already narrow partisan divide and complicating the party's ability to counteract authoritarian moves by the executive branch. Timely special elections, succession planning, and strategic outreach to principled Republicans remain vital to safeguarding democratic governance.