“A Federal Reserve tracker of economic growth is pointing to an increased chance that the U.S. economy has entered a recession,” CNBC reports.

“The Atlanta Fed’s GDPNow measure, which tracks economic data in real time and adjusts continuously, sees second-quarter output contracting by 2.1%. Coupled with the first-quarter’s decline of 1.6%, that would fit the technical definition of recession.”

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Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court’s swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 crafted some sort of distinction between “religious identity” and “religious uses.” That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.

Justice Kennedy, as well as Justice Kagan joined Roberts’s opinion, including Footnote 3. But Justices Gorsuch and Thomas refused to join Footnote 3, thus depriving the Court of a majority opinion on that point. Gorsuch wrote a concurrence that cast doubt on the dichotomy in Footnote 3:

Second and for similar reasons, I am unable to join the footnoted observation, n. 3, that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.” Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion.

Justice Sotomayor dissented in Trinity Lutheran, joined by Justice Ginsburg. She observed that the status/use line will not hold up:

In the end, the soundness of today’s decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see also ante, at 1–2 (THOMAS, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief).

Five years later, with Carson v. Makin, Footnote 3 is gone. Since it was never actually the opinion of the Court, technically, there was no need to overrule any precedent. But Chief Justice Roberts’s majority opinion stealthily eliminates the status/use distinction:

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” . . . Maine’s argument, however—along with the decision below and Justice Breyer’s dissent—is premised on precisely such a distinction.

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Farewell to Footnote 3. Roberts does it so effortlessly. Blink and you’ll miss it.

In the very next paragraph, Roberts endorses the reasoning from Gorsuch’s concurrence–that the distinction between status and use was always illusory:

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Justice Sotomayor dissented in Carson. And she has a see-I-told-you-so moment:

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As Justice Breyer explains, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of religious use.” That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice.” It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

And I have to think that Justice Kagan had some buyer’s remorse. She joined the Trinity Lutheran majority, including Footnote 3, perhaps in the hopes of forestalling a bigger defeat. Five years later, we get Carson v. Makin.

So many precedents have been overruled this term that the demise of Footnote 3 has flown under the radar. Red Flag June was one for the ages.

This seems to be a good time to remind ourselves that MAGA has always been a Russian-backed operation to weaken every facet of classic Western liberalism in the United States, especially our adherence to democracy. Putin and his allies found a Republican party that doesn’t want to face the changing demographics and values in the modern United States. Trump can cite “No collusion” all he wants but it is a fact that the Russians dumped money straight into the NRA, fully backed Trump in 2016, surely did it again in 2020, still uses Tucker Carlson as propaganda on Russian television, and – as Marjorie Taylor-Greene becomes more influential than even John McCain might have been at his peak, Russia uses MTG to make Putin’s case here in the United States that it is Joe Biden who is responsible for all those Ukrainian deaths.

Had we just left Ukraine to its own defense, we could have had Russia as an ally, according to Marjorie but we blew it. We helped Ukraine and now Ukrainians are dying. It is Joe Biden’s fault.

Before you guffaw and say “No one will believe her,” just this morning there is a new YouGov poll out showing that 68% of Fox viewers believe that January 6th was primarily instigated by the Left to make Trump look bad.

So, despite the fact that Marjorie’s minute-long diatribe is self-contradicting and unprincipled, it represents the thinking of many MAGA voters. Putin has no agency in this at all. The United States is responsible for the horrors in Ukraine, according to Marjorie:

Marge Greene tonight says that Putin just wanted to be our friend and ally, but we blew the opportunity by supporting Ukraine. pic.twitter.com/ZU9sKBRu48

— Ron Filipkowski 🇺🇦 (@RonFilipkowski) July 2, 2022

MAGA was born as an updated version of long-held KGB doctrine that America could be destroyed from within if the Russians could just obtain control of one American political party. From the 1950s to the 1970s, Russians focused on the American left. By the early 21st Century, Russia was dumping money into the NRA, and the control was near-cemented in the 2016 Republican party convention when the Trump team demanded only one change to the Republican platform, that portion that opposed the 2014 Russian invasion of a portion of Ukraine. MAGA was Russian-produced then, MAGA is Russian-produced now.

In 2020 the GOP didn’t have a platform. Autocrats don’t have “policy beliefs,” they believe in power.

We would all do well to accept the fact that the leaders of the Republican party look to the Russian government and see what they want. A one-party state, run by the right people, without time for your niceties, and classic liberalism. Fascism is a much better system when the primary goal is keeping wealthy conservative white men at the top. Despite yeoman’s work by the Select Committee, things continue to fall into place to ensure that we get there, even if Trump goes to prison, see our newly freed SCOTUS. Getting rid of stare decisis will be essential to instilling a new type of American government, one that is constitutional in name only.

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Marjorie Taylor-Greene doesn’t have the intellectual ability to set out her argument in any sort of believable way, but she’s giving us the main gist here. We should never have stood up for democracy. We could have been allies with Russia (wouldn’t that have been great) but now she worries we won’t be allies for a long time. We blew it. The United States could have been lucky and been Putin’s friend, instead we chose to destroy Ukraine.

Putin couldn’t tell the story better.