WASHINGTON -- The 9th U.S. Circuit Court of Appeals is a stimulus package for the Supreme Court, which would rather not have one. The 9th Circuit, often in error but never in doubt, provides the Supreme Court with steady work: Over the last half-century, the 9th has been reversed almost 11 times per Supreme Court term, more than any other circuit court. This week, the Supreme Court should spank it again and ask: Is it too much to ask that you pay some attention to our precedents?
On Thursday at 9:30 a.m., the justices are expected to meet to decide whether to dignify the 9th's latest misadventure -- an impertinence, actually -- with a full hearing, including additional briefing and oral arguments, or whether to summarily reverse it. They should do the latter by 9:35 a.m.
The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools -- including religious schools. Yes, here we go again.
The question -- if a question that has been redundantly answered remains a real question -- is whether this violates the First Amendment proscription of any measure amounting to government "establishment of religion." The incorrigible 9th Circuit has declared Arizona's program unconstitutional, even though there is no government involvement in any parent's decision to use a scholarship at a religious school.
Surely this question was settled eight years ago in a decision that was the seventh consecutive defeat for the disgustingly determined people who are implacably opposed to any policies that enable parents who are not affluent to exercise the right of school choice that is routinely exercised by more fortunate Americans. It sometimes takes time for news of the outside world to penetrate San Francisco, where the 9th Circuit is headquartered, but surely by now that court has heard that in 2002, in a case coming from Cleveland, the Supreme Court upheld a program quite like Arizona's, but arguably more problematic.
It was created after Cleveland's school district flunked 27 -- out of 27 -- standards measuring student performance, and the state declared the district an "academic emergency." The program empowered parents to redeem publicly funded vouchers at religious as well as nonreligious private schools.