With the passing of Ruth Bader Ginsberg and subsequent nomination of Amy Coney Barrett, the future of the Supreme Court has become a major campaign issue. When we think about policies that the Supreme Court can greatly influence, we tend to think about marriage, sanctity of life, and other hot-topic social issues. But the court can have a major impact on educational freedom as well.

In fact, earlier this year, the court issued a decision in one of the most monumental educational freedom cases it’s ever seen: Espinoza v Montana Department of Revenue.

For over a hundred years, Montana and several other states have had what are known as “Blaine Amendments” on their books. Born out of the anti-Catholic sentiment of the late 1800s, Blaine Amendments were created in the name of nonsectarianism to prevent government funds from going to parochial schools.

Educational- and religious-freedom advocates argued against these discriminatory laws for decades without success. Until this year.

Changing the tide

The issue came to a head when Montana created its Tax Credit Scholarship Program, allowing Montanans to receive a tax credit for $150 of their contributions to a privately run scholarship program. This program was designed as a boon to low-income families who otherwise had no choice in what school they attend.

But instead of acting in the best interest of the state’s schoolchildren, Montana’s Department of Revenue refused to implement the program, citing that the archaic Blaine Amendment would not allow for tax credits to go to private religious schools.

This past June, in a 5–4 decision, the Supreme Court ruled that Montana’s scholarship program is, in fact, constitutional. Children should not be stripped of their right to participate in a scholarship program simply because they attend a religious school. This major win for school choice effectively consigned Blaine Amendments nationwide to the ash heap of history.

One vote makes all the difference

The foundation for this decision can be found in Zelman v Simmons-Harris, another educational freedom case argued back in 2002. This case upheld the constitutionality of a Cleveland voucher program that gave parents taxpayer-funded payments toward tuition at any participating private school of their choice.

Like Espinoza, the Zelman case was decided by a slim 5–4 majority. One presidential appointment can swing the Court’s opinion on school choice and educational freedom.

Whether or not voucher programs are good policy is another conversation—the point here is that nine judges in DC have the power to rule on whether or not families have the freedom to make the right educational choices for their kids.

Though we can’t elect judges, we at HSLDA Action can support Senators and candidates who would vote for solid judicial nominees. We don’t know the next time the question of educational freedom will come before the court, but when it does, we want to make sure that there are freedom-loving justices on the bench.