Colorado offers state-funded tuition assistance for preschool, a program common to many Blue states. The state imposes a number of conditions on receipt of those funds, particularly, requiring that providers cannot participate unless they admit students regardless of “sexual orientation” or “gender identity.” Catholic schools cannot treat same-sex unions or gender ideology as morally neutral and are therefore excluded from the program. The state defends this rule as neutral, since it does not name the religions it harms. Under the Supreme Court’s ruling in Employment Division v. Smith (1990) that a neutral law of general applicability does not violate the Free Exercise Clause, Colorado has a leg to stand on. If the Roberts Court faithfully applies the Constitution, that leg will fail to support the weight of Colorado’s law.

The problems with Smith are well-established, and overturning it is a consensus position among supporters of a robust Free Exercise Clause. The Roberts Court has dug Smith’s grave, and has all but buried the case. In a string of cases decided over the past decade, the Roberts Court held that states may not exclude religious schools from generally available public benefits solely because of their religious character. A state need not fund private education, but once it chooses to do so, it cannot condition participation in the program on the surrender of the participant’s faith. Colorado’s scheme fails that rule.

In St. Mary’s, the lower court’s reliance on the facial neutrality of Colorado’s nondiscrimination requirement collapses under the Supreme Court’s holding in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). In that case, the Court clarified that the Free Exercise Clause forbids not only overt discrimination against religion but also laws that, while clothed in neutral language, effectively single out religious practice for disfavor. Colorado’s “equal opportunity” mandate operates to exclude Catholic preschools because of their religious identity. The state has simultaneously permitted secular preferences and categorical exemptions allowing schools to prioritize children with disabilities, low-income families, “children of color,” or “gender-nonconforming children.” Colorado’s neutrality argument, even if relevant, fails on its own terms.

In case there was any doubt over Colorado’s animus against Catholics, the state’s hostility is proven by its own history. Colorado’s own constitutional tradition includes the Blaine Amendments, provisions adopted in the late nineteenth century amid widespread anti-Catholic nativism that sought to deny public funds to “sectarian” (code for Catholic) schools while leaving Protestant public education untouched. That same spirit of anti-Catholic attitudes has now evolved to progressive attacks on schools that have done nothing wrong. The state has never received a complaint of discrimination based on sexual orientation or gender identity against the Catholic preschools at issue, which have operated for years under state licensing and other public programs without incident. Families who reject Catholic teaching on these matters remain entirely free to enroll their children in any of the many other public or private providers that participate in the program and to direct their tuition dollars accordingly. The only “harm” the state can identify is the existence of Catholic schools.

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Colorado, unfortunately, is no outlier. Several states are taking the same approach. Maine rewrote its tuition program after the Supreme Court decision against it in Carson v. Makin (2022) to continue excluding traditional religious schools while claiming facial neutrality. New York and Washington have also copied this playbook, and new state efforts are emerging to condition federal scholarship tax credits on the abandonment of Catholic teaching. Legislatures and bureaucrats have learned that while they cannot ban religious schools outright, they can redefine religious beliefs as bigotry and exclude Catholics from access to public programs. The Free Exercise Clause risks becoming a “simple semantic exercise,” as the Court warned in Carson.

Until the Roberts Court introduced its jurisprudence on religious inclusion in public funding, the Free Exercise was only slightly less of an inkblot than the Ninth Amendment. Restoring full effect to the clause requires an even stronger defense of religious liberty. Overturning Smith is a precondition to this though, and the Court refused to grant that question in this case. A full realization of religious rights waits another day.

The First Amendment does not require the state to endorse Catholic teaching, but it does require the state to stop punishing Catholics for living it. The Supreme Court should reverse the Tenth Circuit and hand Colorado its seventh loss in ten years. Maybe one day it will learn its lesson. In the meantime, Colorado Catholics deserve the protection of their constitutional rights.

Ethan Savka is a pre-law student at Hillsdale College and the founder of Emergency Docket. His work has appeared in The College Fix, New Guard Press, Crisis Magazine, and elsewhere. He has previously spent time at Convention of States Action and the Heritage Foundation.

Dissenting from the denial to hear the case was Justice Elizabeth M. Welch, who argued that the case was worthy of being heard by the court. Justice Welch advances several arguments that contend chimpanzees should be treated as legal persons entitled to habeas corpus rights. Ultimately, though, her invitation to possibly expand legal personhood to chimpanzees via the judicial branch system proves unconvincing.

To many readers, the question of whether an animal can have habeas corpus rights may seem intuitively ridiculous. The doctrine of non-human personhood is not, though. Citizens United is the prime example of this, holding that a corporation has free speech rights. Reliance on text is insufficient to settle a question of this nature. Rather, animal personhood fails the test, not of the text, but of American common law, history, and tradition.

A thorough evaluation of the common law tradition in the United States reveals that no animals have ever been afforded legal personhood. At the Founding, no one understood the Suspension Clause in Article I, Section 9 of the Constitution to extend to non-human animals. Instead, animals were treated, much as they are today, as property. While our attitudes toward animals have softened since, the only prominent view of them at the Founding was transactional. Horses pulled carriages, mules worked fields, and bovines were a common feature in meals.

At the same time, numerous artificial entities were recognized as persons. Corporations, such as the Massachusetts Bay Company and the East India Company, had personhood rights ranging from the ability to transfer property to entering into contracts. This contrast is illuminating. The Anglo-American tradition at the Founding did recognize that certain non-natural persons had legal personhood. Yet, animals continued to be treated as property rather than legal persons.

In her opinion, Welch challenges Blackstone’s definition of “property” and “dominion,” drawn from the Book of Genesis and relied on in part by the Court in its ruling. Welch even suggests that Blackstone should not be relied upon at all. “I question whether an eighteenth-century British jurist’s interpretation of the Book of Genesis is a sound foundation for Michigan common law in the twenty-first century,” Welch wrote. Even if one were to accept Welch’s reading, this would be irrelevant. It does not change as a matter of common law that animals have been treated as property. Setting Blackstone aside, historical practice alone is authoritative. Blackstone was merely stating the status quo.

Unsatisfied with dismissing her intellectual forebears, Welch submits that the case law relied on by the Court of Appeals - two Michigan Supreme Court decisions from the 19th-century - is not relevant because they only held that animals were property, not that animals do not have habeas corpus rights. The stretch made here requires an elasticity beyond what a fair student of the law can provide. By holding that animals have property status, those two decisions from the 1800s show that animals were not recognized as legal persons. That precludes them from claiming the Great Writ. Separating the right from personhood has no historical foundation.

Welch’s dissent correctly argues that the Court of Appeal’s “capacity to contract test” for personhood is flawed. Such a standard for establishing personhood would exclude individuals, including people with disabilities or those who are elderly. This observation does not establish the veracity of her argument, though. Under common law, natural personhood has been species-based, not competency-based. Therefore, the functional capacity argument is immaterial.

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None of the foregoing information should be perceived as a defense for DeYoung Family Zoo’s treatment of the chimpanzees. The chimps are allegedly housed in two tiny cages and forced to take pictures with visitors. One of the chimps, Louie, has been isolated from the other chimps and shows signs of deep psychological stress. Ideally, these chimpanzees would be transferred to an accredited sanctuary or an Association of Zoos and Aquarium (AZA) accredited facility.

For those concerned with the plight of the animals, fear not. There are existing paths to provide avenues for the chimps to receive relief. Humans with a cognizable connection to these animals can seek relief through aesthetic standing. This has been recognized by the US Supreme Court numerous times, including in Sierra Club v. Morton (1972) and Lujan v. Defenders of Wildlife (1992). Additionally, proponents of animal rights remain free to lobby their legislatures for greater animal welfare protections - efforts that I would support. Or they could even convince their legislatures to enact legislation expanding standing that animals may have in courts.

Justice Welch may have poked some holes in the majority’s reasoning, but the substance of her dissent is beyond her role as a judge. There is no basis for judicially expanding the classification of persons beyond its original meaning. That belongs to the political branches. Efforts to push this change through the courts rely upon judicial activism, and should be called out by legal conservatives.

is a graduate of Wesleyan University, where he served as opinions editor of The Wesleyan Argus. He is an intern for SCOTUSblog and an executive litigation assistant for FIRE. He previously taught a college course on the U.S. Supreme Court, has conducted research in animal law, and covers the Supreme Court on TikTok.

Immediately following the ruling, Governor Ron DeSantis called it “judicial overreach.” State education employees, hele said, have a duty to follow Florida’s educational mission. As a matter of both principles and consequences, serving that mission requires striking down the law.

First, the principle of free speech. Florida’s defense of the Stop WOKE Act first requires an assertion that the First Amendment allows governments to decide which viewpoints may be endorsed in a university classroom. The law prevents college professors from endorsing or promoting certain divisive viewpoints regarding race, sex, color, and national origin. The 2–1 Pernell majority, with Judge …

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“On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment to the Constitution.”

Those twenty-one words were all the former NAID Director and face of the COVID-19 public health response had to say, and he repeated them for every question he faced. When asked whether there was a carpet on the floor in front of him (or what color it was), he pleaded the Fifth. When asked what color tie he was wearing (or what day of the week it was), he pleaded the Fifth. And when asked how he could plead the Fifth despite his presidential pardon, he pleaded the Fifth.

If Fauci could have answered one question last week, it was that one. If Joe Biden’s pardon shields Fauci from criminal liability, his ability to incriminate himself disappears. Without that, the Fifth Amendment has no text to provide him with any protection.

The Fifth Amendment provides that no person “shall be …

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Such is the promise of today’s leftists. Earlier this month, the Democratic Socialists of America released an updated platform calling for the abolition of the United States Senate. To replace it, they propose a single federal legislative chamber elected through proportional representation. Ashik Siddique, the DSA’s national chair, has argued that the Senate’s equal representation rule is “very undemocratic at a basic level,” and informed the voting public that DSA members “just don’t see the point of the Senate.” Ironically, protecting America from radical ideologues like Siddique is the entire point of the Senate, and the reason that Article V currently has only one exception to the amendment process: “that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

If abolishing the Senate were a fringe view held by few voters, it would hold no relevance in today’s national discussion. Alas, many Demo…

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At the close of its term, the Supreme Court issued two major decisions on executive power. In Trump v. Slaughter, the Court held that the Constitution vests executive power in the President alone and overruled the 1935 precedent Humphrey’s Executor, restoring the President’s ability to remove the heads of administrative agencies. Immediately qualifying its ruling with its decision in Trump v. Cook, the Court left in place a preliminary injunction blocking President Trump’s attempt to remove Federal Reserve Governor Lisa Cook. The President, the Court appeared to say, is in charge of all executive agencies, save one. Tampering with the Fed is beyo…

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Damon Landor was convicted of possessing meth in 2018. When he was transferred to a state correctional center, he planned ahead and brought a printed copy of a Fifth Circuit’s decision ruling that state policy of cutting prisoners’ hair violated the Religious Land Use and Institutionalized Persons…

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Spanning Trump’s second term, the article tallied how often each Supreme Court justice sided with President Trump’s positions. It found that Alito led the Court with an 89% agreement rate. The piece then asked why Justice Alito agreed with the President so often, even though Justices Thomas and Gorsuch had similar rates of 88% and 84%, respectively. By contrast, Justice Jackson’s intense opposition to Trump, ruling against him 98% of the time, was not mentioned once. The fixation on Alito as an outlier does not make sense based on the data, but also on the deeper discus…

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Barbara crystallizes America’s identity crisis. Vice President JD Vance summarized this crisis well in his speech last year before the Claremont Institute: “If you ask yourself in 2025 what an American is, I hate to say it, very few of our leaders actually have a good answer.” Everyone can agree, however, that the definition of American is closely tied to citizenship. As I…

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This past term, the Supreme Court rightly affirmed presidential authority over immigration policy in two major cases. This marks a vital step toward restoring constitutional order. The next phase, already underway in lower courts, is to recognize the president’s inherent powers in this field.

In Mullin v. Al Otro Lado, the Court sustained the government’s authority to control asylum access at the border. The case challenged policies that allowed officers to prevent asylum seekers from physically crossing into the United States at ports of entry, holding that an alien standing in Mexico does not “arrive in the United States” for purposes of the Immigration and Nationality Act’s asylum and inspection provisions until the alien actually crosses the border. In Mullin v. Doe, the Court upheld the executive branch’s discretion to terminate Temporary Protected Status (TPS) designations for Haiti and Syria. Lower courts had blocked those terminations and ordered them postponed during litigation. The Supreme Court reversed, holding that the TPS statute expressly bars judicial review of DHS’s determinations “with respect to” the designation, extension, or termination of TPS for any foreign country. This broad bar covers both the final decision and the underlying assessments of country conditions and consultation processes.

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It’s a Looney Tunes world of pronoun trouble at the Court, with an easy fix.

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Historically, the Second Amendment has been legally dormant at the Supreme Court. Only in 2008 did the Court finally decide D.C. v. Heller and hold that the Second Amendment protects an individual’s right to keep and bear arms. In the nearly two decades since, the Court has taken its time defining the scope of that right. It created a more originalist test for the right in New York State Rifle and Pistol Assn v. Bruen (2022), reigned in that test in United States v. Rahimi (2024), and ruled for the ATF in the 2024-2025 term’s Bondi v. Vanderstock.

If the past few terms were a dark tunnel, this one was a light. In United States v. Hemani, the Court unanimously held that a marijuana user cannot have their Second Amendment rights stripped away under the federal gun control law. Justice Gorsuch’s opinion limited the federal ban on firearm possession by “unlawful users” of controlled substances as applied to non-violent marijuana users.

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Fresh off the last week of Supreme Court opinions, most courtwatchers are discussing birthright citizenship, the Federal Reserve, or transgender athletes. During the rest of its term, the Court also decided dozens of cases with just as much, if not more, importance. Those “overlooked” decisions were controversial enough to reach the Court and featured in many previews of the Court’s term, yet have been largely forgotten in just the few months following their decision.

Here are three cases that flew under the radar but will shape the law for years to come.

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1. Bost v. Illinois State Board of Elections (Jan. 14)
After the Court’s decision in Watson v. RNC, this case has become “the other election law case.” Unlike Watson, this Bost was not closely decided (7-2) and involved a more commonplace issue than the meaning of “Election Day”: Article III standing. However commonplace, this issue is far from unimportant. Readers…

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What is Emergency Docket?

Emergency Docket is a new platform dedicated to originalist analysis of current constitutional cases and controversies. As a pre-law student at Hillsdale College, I started this publication because I believe we need more young originalists engaging seriously with the constant stream of constitutional questions our nation is facing.

What you’ll find here:

• Breakdowns of the Supreme Court’s cases

• Summaries of lower court opinions

• Analysis of legislation before litigation

• Examinations of individual areas of constitutional law

• And so much more to come

Who is Running This?

Formerly, this was my personal Substack, and I ran it as a one-person newsletter. Emergency Docket, however, will be a forum for thoughtful constitutional conversation. If you’re an undergrad, law student, clerk, or new lawyer who shares an appreciation for the Constitution’s original meaning, you’re invi…

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