Tag Archives: Supreme Court

Liberty Or Favoritism?

As we wait for the U.S. Supreme Court to decide another religious liberty case–this time, concerning the constitutional propriety of a 40-foot cross in Maryland–it might be helpful to revisit the origins of the competing definitions of “liberty” that are at the heart of so many of these cases.

We are told that the colonists who originally settled in what is now the United States came to the new world for religious liberty. And that’s right; they did. But their view of religious liberty was that it was “freedom to do the right thing.” And that involved establishing colonies where the government would make sure that everyone did “the right thing.”

Around 150 years later, George Washington became the first President of a country founded upon a very different understanding of liberty. Liberty was conceived of as freedom to do your own thing, so long as you did not thereby harm the person or property of someone else, and so long as you were willing to accord an equal right to others.

What had changed the definition of liberty? The scientific and intellectual movement we call the Enlightenment, which had occurred in the interim between the original Puritans and the Revolutionary War.

The U.S. Constitution may have been based upon the definition that emerged from the Enlightenment, but America still is home to lots of Puritans. And their “sincere belief” is that liberty means the government should be able to impose–or at least, privilege– their religion.

An editorial in The New York Times explains the case currently pending before the Court:

This week’s hearing, in American Legion v. American Humanist Association, involved a 40-foot cross in Bladensburg, Md., that was erected 93 years ago to honor fallen World War I soldiers. The question before the court: Is Maryland in violation of the First Amendment because the memorial is on public property and maintained with public funds?

There would be no constitutional violation if the cross were on private property. The issue is government endorsement of religion, which is prohibited by the Establishment Clause of the First Amendment.

The editorial notes that there is considerable confusion about the application of the Establishment Clause to public monuments.

Lower court judges are confused about how to apply the Supreme Court’s dictates in this area of the law, so more clarity from the high court — if not a definitive, bright-line rule — is in order.

Alas, such clarity doesn’t seem to be on the horizon. After Wednesday’s hearing, the court seems poised to allow the cross — which otherwise bears no religious inscriptions — to stay. But the justices don’t appear to be any closer to consensus on this issue than they’ve ever been.

“I mean, it is the foremost symbol of Christianity, isn’t it?” Justice Elena Kagan asked at Wednesday’s session. “It invokes the central theological claim of Christianity, that Jesus Christ, the son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead.”

Justice Stephen Breyer, who in the past has wrestledwith the Constitution’s religion clauses, pondered whether “history counts” when assessing a monument’s legality. Maybe older displays, erected when the nation wasn’t nearly as religiously diverse, should be allowed, he suggested. “We’re a different country,” Justice Breyer said. “We are a different country now, and there are 50 more different religions.”

Not surprisingly, the Trump Administration–which wasn’t a party to the case and need not have offered an opinion–weighed in on the side of those who want the cross to remain.

The editorial concluded:

With its recent rulings, the Supreme Court has only muddied the separation between church and state by taking seriously religious objections to contraception, civil rights laws and the allocation of public funds. It is hard to fathom the justices being nearly as accommodating with a publicly funded monument to atheism or a Wiccan pentagram. And last month, the court couldn’t even agree that a Muslim death-row prisoner from Alabama deserved the same rights as Christians in his final moments.

However the justices resolve this the dispute, they would be wise to not sow more confusion in this area of the law and feed the perception that only certain religions and practices get a fair shake in public life.

When those “certain religions” are privileged, equality before the law takes a hit.

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How Many Justices Are On The Supreme Court? And Other Civic Literacy Questions…

One of the questions that routinely appears on surveys assessing what Americans know–or don’t–about their government is “how many justices serve on the Supreme Court?” It’s not as silly as “how many stripes are on the American flag?” but it’s close–neither question probes the respondent’s actual knowledge of the philosophy or structure of American government. They fall under the category of “government trivia.”

I’ve previously blogged about the difference between that sort of information and the nature of the non-trivial understandings that citizens ought to have, and I promise this isn’t one of those rants. (I know–you’re relieved.)

The answer to that question about the justices on the Supreme Court is nine. But there is no magic to that number.

It is not required by the Constitution. It hasn’t even always been nine. And as an article by a Rutgers law professor argues, it’s inadequate to the duties assigned to America’s top court. And his argument has nothing to do with suggestions that the Court be expanded if Kavanaugh is confirmed and Democrats subsequently take control of the Presidency.

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

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Legacies

Scott Pruitt’s resignation prompted a number of columns devoted to the “legacy” he leaves–if legacy is the right word for “stench of corruption.” Those columns did get me thinking, however. about the “legacies” of other elected officials and political operatives.

Mitch McConnell’s legacy, for example, will include the badly tarnished and diminished legitimacy of Congress and the Court. McConnell’s willingness to ignore the Constitution’s mandate that the Senate “advise and consent” to a Presidential judicial nominee not only besmirched the reputation of the Senate, but added another blow to a series of events–beginning with Bush v. Gore— that have compromised the Court’s reputation for integrity and evenhandedness.

For his part, Trump is likely to leave several legacies–all profoundly negative–if, as we hope and pray, he does at least leave us with a recognizable country. But it is worth noting one of those legacies–the responsibility that he and McConnell share for the Supreme Court’s politicization and corresponding loss of legitimacy.

In a recent New York Times op-ed, law professors Lee Epstein and Eric Posner considered the way in which the growth of partisanship has affected the Court’s reputation, and wondered “whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.”

It hasn’t always been this way.

In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways. In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist. This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.

Today’s Justices are far more predictable, which is to say, far more ideological. And as Epstein and Posner note, it is much easier to assault judicial independence when the public sees the judiciary as just another political body.

The Court loses legitimacy when its reputation as an objective, nonpartisan arbiter of Constitutional fidelity is replaced by a belief that it is a political tool reflecting the priorities of the partisans who selected the Justices.  It’s worse when a majority of those Justices represent world-views held by only a minority of Americans.

In a recent article, Kevin McMahon considered the effect on the Court’s legitimacy.

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference.

There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.

Now, there is a possibility of a fourth “minority justice” – the second appointed by a “minority president.”

That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?

These are the questions that ought to keep our elected Senators and Representatives up at night–but very few of the people we have elevated to the federal legislature seem to know or care about anything other than winning and losing elections.

Their “legacies” will be the abandonment of America’s constitutional framework–and any concept of statesmanship.

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What Now?

The last week or so has been an absolute tsunami of disappointments, bad news and terrifying omens.

The Supreme Court punted on gerrymandering, and issued several horrifying decisions: it upheld Trump’s travel ban, required public sector labor unions to represent non-member workers  who don’t pay for that representation, and upheld Ohio’s draconian voter purge program, among others.

Every one of those decisions will benefit the GOP in the midterms, and every one of them was 5/4.

Mitch McConnell undoubtedly feels very proud of himself, but the price of those legal victories–won with a “stolen” seat– was the legitimacy of the United States Supreme Court. Americans simply don’t know what a dispassionate Court composed of properly appointed, nonpolitical jurists would have decided, and they are convinced that the Court is now ideological rather than judicial.

Then, of course, we got the news of Justice Kennedy’s (long-rumored) retirement, and McConnell’s gleeful promise to seat a replacement (who will have passed the litmus test) before the midterms.

All this is on the heels of the humanitarian crisis at the border–an entirely unnecessary blot on our national honor (assuming we have any left) brought on by our racist President.

So what now? What should we expect?

Perhaps I’m wrong–I so frequently am–but I think we are heading for a period of civic disturbance that will make the 60s pale in comparison.

I just don’t think good Americans–and I remain convinced that good Americans are the majority–are going to passively watch their country taken down the road to fascism (as Madelyn Albright recently warned). We aren’t going to watch children being separated from desperate parents, Social Security and Medicare being raided in order to fund tax breaks for the already obscenely rich, or an economy that had finally recovered being trashed by tariffs imposed by a petulant and ignorant blowhard.

Americans aren’t going to sit still while that blowhard continues to embarrass the country, insult our allies, cozy up to (and probably collude with) our enemies, and divide Americans from each other with an unremitting barrage of racist, misogynistic rhetoric.

Trump’s constant (and ungrammatical) self-glorifying tweets may play well with his base, but they nauseate the rest of us.

The midterm elections will be critically important, but even if a “blue wave” materializes, we will in all likelihood no longer have a court system that defends stare decisis and the rule of law. We will still have the pent-up anger of hardworking Americans who have watched an already inadequate social safety net eviscerated in order to bestow extra dollars on people who don’t need those dollars. We will still experience the fury of women who are being told that they are less than equal, and that the government controls their bodies. And we will still have to deal with the frustration of citizens whose votes are suppressed, aren’t being counted, or are being discounted.

Those and multiple other civic frustrations are already beginning to erupt.

I don’t pretend to know how this will all play out, but I’m pretty sure it is going to get ugly before it gets better. America is in one of those periodic struggles for its soul–a struggle between the “good guys” who care about the common good and their fellow Americans, on the one hand, and the Trumpers who care only about themselves on the other. My bet is on the eventual victory of the good guys–but I know that a hell of a lot of people are going to get hurt in the meantime.

We need to just hang on. The next few years are going to be rough. And dispositive.

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Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

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