Both liberal and conservative justices focused on the school's justification for its treatment of Kennedy, from its claimed concerns about appearing to endorse a religion to the coercion of students to pray.
Pointing to two letters from the Bremerton School District, Clement stressed to Justice Neil Gorsuch that both included eight references to endorsement or endorsing with zero references to coercion, suggesting that the school later shifted its argument.
“Endorsement, coercion, I mean, you're requiring a lot of a school board to try to figure out exactly which box in the Establishment Clause to put this in,” Justice Elena Kagan told Clement at one point.
One of the court’s liberal justices, Justice Stephen Breyer, expressed general skepticism, saying, “this may be a case about facts and not really much about law” because both sides appear to have different views of the facts.
Justices on both sides proposed hypotheticals, beginning with Justice Sonia Sotomayor who described several different scenarios about a teacher who prays, reads the Bible, or texts her husband in the classroom.
She asked of Clement, “If [Kennedy] had all these duties and your employer says to you, 'These are the duties that you have and that's all I want you to do,' why can't it choose to say, 'and the one duty I don't want you to do is to do this one because you are an example to your players?”
Justice Clarence Thomas asked Katskee about another scenario: “If the coach, instead of taking a knee for prayer, took a knee during the National Anthem because of moral opposition to racism, would — how would your school district respond?”
Among other issues, Justice Amy Coney Barrett touched on freedom of speech.
“Who is he communicating to? God? Like, where is the speech?” she asked about Kennedy.
“I think,” Clement responded, “he is communicating to God.”