South Carolina Case Goes to SCOTUS Conference (UPDATED)

The petition for review (certiorari) filed by Bishop Mark Lawrence's Diocese of South Carolina and 28 of its parishes with the Supreme Court of the United States is now ready for decision by the justices. At least four of the nine justices on that Court must vote in favor of review for the case to be argued and submitted in the next term, which begins October 1 of this year and runs through June 2019.

The vote could (but is not likely to) come as early as tomorrow, Thursday May 17, which is the next date on which the justices will sit in conference to decide which petitions in cases that are now fully briefed should be granted review, and which denied. (Denial of review does not mean that the case lacked merit, or that the decision below was constitutionally correct. It simply means that no four justices of the Court felt that the case was important enough to be addressed by the full court.)

In an earlier post, I linked to the Petition, which is here. The brief in opposition (which the Court requested the respondents to file, after they first tried to waive their right to respond) is here.  The Diocese's reply to that opposition (filed just yesterday) is here.  The U.S. Supreme Court's docket page will also let you download the two amicus ("friend of the court") briefs in support of the Diocese's petition, one filed by a group of 18 professors who teach First Amendment law in various schools across the country, and the other filed by the American Anglican Council.

All the briefs are worth reading -- they are very well written, and concisely present the reasons why SCOTUS should grant review.

In their respondents' brief, ECSC and ECUSA took a gamble by resting their main opposition upon just a single ground: that the Court lacked jurisdiction to review the case because the five divided justices of the South Carolina Supreme Court had decided the case below on independent state-law grounds, and did not rest their decision on any interpretation of federal law. (SCOTUS reviews only issues of federal law that are decided by either the state or federal courts.)

As the Diocese's reply brief points out, this claim is far from accurate. Two of the justices below (Pleicones and Hearn) were clear that they viewed the 1979 decision of the U.S. Supreme Court in Jones v. Wolf as requiring them to give effect to the trust on church property imposed by the Dennis Canon, even if the documentation of that trust failed to pass muster under South Carolina law. In other words, Justices Pleicones and Hearn held that the First Amendment trumped state trust law -- and that was obviously a federal ground of decision.

Even Chief Justice Beatty, who declined to articulate his reasoning, held that the Dennis Canon was sufficient to create a trust under South Carolina law so long as the individual parishes "acceded" in some way to that Canon. Since, as Justice Kittredge pointed out in dissent, any argument that a trust under South Carolina law could rest upon such a dim showing of assent was "laughable", it is only fair to conclude that Chief Justice Beatty reached his result by relying upon the same (federal-law) reading of Jones v. Wolf that drove Justices Hearn and Pleicones.

In sum, the South Carolina case presents as good a reason as ever will arise for SCOTUS to grant review, in order to end the confusion over the meaning of Jones that divides some nineteen different state and federal courts below. (Those decisions are reviewed and discussed at pp. 21-29 of the Diocese's petition.)

So stay tuned -- although the Court will probably not consider the petition that soon, we could have a decision announced in the orders to be released next Monday morning. And if not then, there is Tuesday, May 29; after that, there are four more days in June (June 4, 11, 18 and 25) for orders to be issued. If the Court follows its normal practice, the petition would be considered earliest at its June 7 conference, but it could also be "carried over" to the one on June 14 or on June 21.  

[UPDATE 05/22/2018: The docket page for the South Carolina case on the SCOTUS Website is now showing the entry: "DISTRIBUTED for Conference of 6/7/2018." So now we are advised -- look out for a decision on the petition in the orders issued beginning at 10:00 am on June 11. As is all too typical of such momentous events, your Curmudgeon is scheduled to be on vacation in Ashland on that date. But I will make an exception that morning, and will put up a blog post no matter what the Court decides. It is also possible, as I mentioned above, that the Court could "relist" the petition for consideration at its conference on June 14, or June 21 -- which would be the last conference in the current term. Such a resisting, if it occurs, means that there are some justices interested in granting the petition, and some who are still undecided, or on the fence. Both groups want more time to discuss the case and see if they can reach a consensus.]