Mark Joseph Stern has a great follow-up to the story of the “coach” who never actually wanted his job back in the first place and won his case by making up an alternate set of facts and having the Court’s neoconfederate supermajority wink at it. The culmination of this knowing, lawless circle jerk is nearly $2 million in taxpayer money being transferred to Paul Clement and his cronies:
Last year, the Supreme Court ruled in favor of a high school football coach’s right to engage in “brief, quiet, personal” prayer—despite photographic evidence that his prayers were drawn-out, loud, and extremely public. At the time, the decision was embarrassing enough, as it rested on the fiction that the coach, Joe Kennedy, was reprimanded for “private religious expression” when he was actually establishing huge prayer circles in the middle of the field. Since then, the situation has only further exposed the shameful artifice of the ruling. At first, Kennedy appeared to have little interest in taking back his old job, which was supposedly what he was fighting for. Then he acknowledged that he had sold his house and moved across the country, with no plans to move back. Finally, on Friday, Kennedy returned to coach one football game. Then he quit, as the Seattle Times reported on Wednesday. He has no evident desire to exercise the rights that his lawyers fought for over years of litigation. Those lawyers, however, will walk away with $1.775 million in attorneys’ fees, paid out by the school district.
Ca-ching! Bremetronians are out a huge wad of cash although Kennedy did not have any actual rights violated (as the felt need of Kennedy and Gorsuch to just flagrantly lie about the facts of the case makes clear.) And if course one reason Kennedy did not want to leave Pensacola is that he’s making a killing on the wingnut welfare circuit.
The Court can’t say they didn’t know that Kennedy had moved across the country and had no intention returning to coach the team:
There was, all this time, another huge red flag in Kennedy v. Bremerton: Coach Kennedy said he wanted an injunction forcing the school district to rehire him—but he lived thousands of miles away. Bremerton School District is in Washington State, where Kennedy lived when the case commenced. As it dragged on, though, he sold his home in Washington and relocated to Florida with his wife. When the school district’s lawyers discovered this move, they advised the Supreme Court that the case had become moot, arguing that Kennedy clearly did not want his job back.
Kennedy’s lawyers filed an incensed response avowing that their client craved a return to Washington. “He remains ready, willing, and able to return to his job just as soon as his constitutional rights are vindicated. It is really that simple,” they wrote. “The relocation to Florida is not permanent, and Kennedy stands ready, willing, and able to move back to Bremerton as soon as humanly possible should he prevail in this litigation and be permitted to resume his coaching duties.” Indeed, they continued, he is “champing at the bit” to “resume the job he loves.” Attached was a declaration from Kennedy stating that, if he prevailed, he “would return home to Bremerton immediately.” He attested: “I am ready and willing to resume my coaching duties in Bremerton, WA. I can do so within 24 hours of reinstatement, if I am still temporarily residing in Florida.”
Shackleford and Clement’s response is must-reading for connoisseurs of dark comedy and utterly shameless dishonesty. They assert that of course Kennedy wants his job back and that the state’s motion is “frivolous,” all written in the imperious smarm that Sam Alito has perfected. To read that knowing that Kennedy flew into town, “coached” one game, crashed with a friend, and then headed right back to his permanent home in Florida is to know exactly what the conservative legal movement is.
And ADF has an extensive history of making up facts and have them be accepted by willfully credulous judges anyway:
ADF has a history of relying on shady or fictional clients as an excuse to get into court, as Supreme Court litigator Adam Unikowsky has documented. In 2019, ADF claimed to represent a calligraphy company that refused to make wedding invitations for same-sex couples (though it was never asked). The company emerged shortly before ADF filed a lawsuit on its behalf, and disappeared shortly after the Arizona Supreme Court ruled in its favor. Its website was then taken over by an Indonesian casino. ADF also represented a supposed videography company in Minnesota, Telescope Media Group, that did not want to film weddings for same-sex couples. (You guess it: None ever asked.) In 2019, an appeals court issued a preliminary injunction granting it the right to discriminate.
Rather than throw in the towel, Minnesota decided to pursue its hunch that Telescope Media Group was, essentially, not real. It sought discovery that would, among other things, reveal the company’s origins and ongoing business practices, if they existed. ADF abruptly moved to dismiss the case, stating (for the first time) that Telescope Media had pivoted away from wedding videos (it’s unclear if they ever even filmed one). Minnesota resisted, declaring its intent to test ADF’s “highly fanciful allegations” and prove that the group had taken “advantage of the judicial system” and now wished to “avoid the merits of this case.” ADF was so desperate to dodge discovery that it then moved to dismiss the case with prejudice, formally killing it—despite the fact that ADF had won once and was almost guaranteed to win again. Due to this desperate maneuver, the ADF lost out on hundreds of thousands of dollars in attorneys’ fees. This was done, seemingly, to avoid any more facts coming out about the true nature of its client’s business.
The lawyers and the judges involved share the blame for this looting of taxpayer money. And it shows that there is so little actual discrimination against America’s Christian majority that winning lawsuits requires it to be invented.