The conservative majority is rewriting the Free Exercise Clause to license discrimination against state-funded preschoolers.
The term that opens Monday decides one question in a dozen postures: whether the Constitution’s enumerated rights, written to restrain power, are being converted into instruments of power. The Free Exercise Clause as a right to discriminate with public money. The Second Amendment as a right to the exact weapons a legislature has tried to remove. Federal authority over immigration as a license to make the executive the sole judge of its own limits. The cases arrive under different captions — religion, arms, climate, immigration, church and state — and they answer the same question the same way. Who gets to act, and over whom.
Start with the text the religion case turns on: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The clause restrains government. It does not command government to fund anything, and it does not exempt anyone from the rules a state imposes on everyone else. St. Mary Catholic Parish in Littleton, Colorado argues the Free Exercise Clause in its strongest form: the government is telling a church it must choose between participating in a public program and living its faith, and the First Amendment was written so Americans would never face that choice. The record answer is shorter than the argument. St. Mary wants the state’s preschool money. It does not want the children of gay and transgender parents — or those children — in the classroom the money buys. A right written to keep government out of religion is being asked to operate as a demand that government fund religion’s exceptions to state law. The Constitution does not say a church may take public money and turn away children the state bars everyone else from turning away.
In December the justices hear whether states and cities may ban the AR-15. The right-instrument is the whole Amendment, prefatory clause included: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The steel-man arrives with the Framers attached — the Amendment does not say “except for the arms we do not like”; if a weapon is in common use, and AR-15s number in the millions, it is protected; and dispossessing millions of owners would be disruptive. Gun-rights lawyers add the harder version: the right cannot exist at all if the government picks which arms it covers. Both versions run into the first half of the sentence on the page. “A well regulated Militia” is not decoration, and it is not a preface the Second half of the Amendment was written to ignore. Common use is not a constitutional test; it is a market outcome, and the market in this case belongs to the manufacturers the case is about. The weapons at issue are the weapons of the worst mass shootings of the past two decades. The lower courts have divided over whether a legislature may act against them. Either the Amendment reaches that weapon, or it does not. There is no quiet middle.
Monday’s first argument is the climate case — the state-law claims that fossil-fuel companies deceived the public for years about what their own scientists told them, and that the local cost of that deception is the injury the plaintiffs plead. The defense, at full strength: the real question is whether state judges become a national regulatory army, and if you can sue Exxon for “deception” in a city courtroom you can sue any company for any product a city government does not like. The pleaded claim is narrower than the slope. It is not about a product a city dislikes. It is about what a company’s own scientists told that company while the public was told the opposite. The question the case actually poses is local and old: who bears the cost of a knowing deception. A court that answers that question for the defendant before the plaintiff ever sees a jury is not reading the Constitution. It is choosing the defendant.
The immigration cases carry the same inversion in a different register. The administration is testing whether it may deport people to countries they have no connection to, where they may not speak the language, where they have been jailed and allegedly tortured — doing what Congress’s removal provisions have never authorized. The steel-man is structural: the Constitution gives the political branches the power over immigration, Congress and the President rather than the federal judiciary, and this is what that power looks like when exercised. The same Constitution answers on the page of the Fifth Amendment: “nor shall any person be … deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The text says “any person,” not “any citizen,” and it binds the government no matter which branch is doing the binding. The executive’s claim runs stronger still — that it may write its own limits on what deportation means. The justices have twice stopped lower courts from stopping the practice and have now agreed to hear it on the merits. The second immigration case asks whether the administration may hold undocumented immigrants indefinitely without a bond hearing, however long they have been here. A clause written to bind government is being read as government’s grant of authority.
The waiting cases prove the same charge in advance. Stone v. Graham, 449 U.S. 39 (1980), a two-page per curiam decision — one issued in the name of the Court, without a single author — struck the state law requiring the Ten Commandments posted in public school classrooms. Texas, Arkansas, Louisiana and Alabama have now passed laws defying it, the lower courts have split, and the Court will almost certainly take it. The same rule now operates in reverse: a constraint on majoritarian religion becomes a preference the majority can suspend when it is in charge. If the states may post the Commandments anyway, Stone survives on paper and dies in practice — a precedent left standing while drained.
What the merits docket shows, the emergency docket has been showing for years. The Court grants the administration’s most consequential asks there — quickly, without oral argument, with minimal explanation — while lower-court judges across the spectrum report they cannot follow the reasoning because there is almost none on the page. Docket tallies compiled by the Brennan Center put the administration’s emergency-application win rate at roughly four in five: 34 filings through the end of 2025, 80 percent granted. The leapfrogging is the tell. The administration now asks the justices directly, bypassing the appellate courts it does not trust. Behind the headline cases sit the smaller asks that reveal the method: news organizations have gone to the emergency docket over a White House press ban; the Justice Department told a federal court in Washington it was dropping the cases against the law firms the President views as hostile, then returned the next day to reverse itself; a forty-billion-dollar prediction market asks whether states may regulate it at all; and Harvard’s federal medical-research grants sit in litigation the administration has slow-walked.
The midterm elections are seven months away, and election-law disputes already queue up on the horizon. If polling places move at the last minute, if federal agents appear near the doors, those disputes arrive at the emergency docket — the way every other emergency has arrived. They always do. That is not a flaw in the system. That is the system.
An honest application of these instruments would look nothing like this term’s docket. It would read “Congress shall make no law” as a limit rather than a funding mandate; “any person” as covering people regardless of nationality; “well regulated Militia” as written rather than as decoration; and it would leave Congress and the states free to act inside those boundaries — including the boundary that says a church taking public money takes it on the state’s terms. Last term the Oklahoma charter-school question ended four to four because one justice recused herself, and the state court’s judgment stood. This term the same Free Exercise question arrives with a full bench. A tie leaves the law where the state court left it. A ruling moves it. The difference between the two is the difference between a constitutional limit and a constitutional preference — and preferences, unlike limits, follow the majority.