In the aftermath of Judge Ketanji Brown Jackson’s confirmation to a seat on the United States Supreme Court, there’s a lot still to be said about the way federal judicial nominations are handled. Most of it bad. Like Humpty Dumpty, the process is so badly broken that “all the king’s horses and all the king’s men” may never get it back together again.
Each party blames the other for the breakdown. Republicans, heels dug in, say, “What about Bork?” Equally immovable Democrats respond, “What about Merrick Garland?” Rare these days is the senator who can vote to confirm a high court appointment made by a president of the other party without incurring substantial political problems with the folks back home.
The reasons for this are not just partisan. As the parties have polarized, so too has their view of the proper role of the federal judiciary. Progressives prefer nominees who are “activists” and who consider the public policy implications of what they hand down in addition to or over and above issues of constitutionality. They, like the late Justice William O. Douglas, believe they should be guided by the penumbras currently emanating from the Constitution rather than its text alone, allowing, even requiring them to “make law from the bench” without regard for textual limitations.
Conservatives seek out nominees who feel bound by limitations beyond precedent, including the belief that the words used in the Constitution had a clear, specific, common meaning understood by reasonable people at the time it was written and which are still determinate today. That philosophy of “originalism,” held among others by legendary Justice Antonin Scalia, is best expressed axiomatically as “The Constitution says what it means and means what it says.”
Over time, these diametrically opposite views regarding the role of a Supreme Court justice have turned the confirmation process into something resembling a partisan political campaign. President Joe Biden acknowledged as much Friday at the White House at an event with Judge Jackson following the Senate vote.
“I knew the person I nominated,” he said, “would be put through a painful and difficult confirmation process. But I have to tell you: What Judge Jackson was put through was well beyond that. There was verbal abuse, the anger, the constant interruptions, the most vile, baseless, vile [sic] assertions and accusations.”
Biden must have missed the Kavanaugh hearings. He didn’t miss the Bork or Thomas hearings, though. He was not only present as they were publicly flayed regarding their opinions and had their character assassinated, he presided over them. And each one of them contained more “baseless, vile assertions and accusations” than anything Judge Jackson experienced.
It’s no coincidence the coarseness now infecting the judicial confirmation process started when Biden was chair of the Senate Judiciary Committee. He knows the role politics plays in the process of getting someone on the federal bench, embracing it when running for president in 1988 and 2020 when he refused to commit for or against a proposal to “pack” the Supreme Court should he win.
This leaves Judge Jackson in an unfortunate position. For the rest of her life, or at least for as long as she is on the Court, there will be just as many people wondering if she was the best choice for the job or if her appointment was simply the most politically expedient for a president who needed to keep a campaign promise.
As far as the Senate vote goes, congratulations are due to the future justice now that she has been confirmed. It is a high honor of which she will hopefully prove herself worthy. There’s reason for concern she won’t, but not the ones you might expect.
Biden won the election. He had every right to pick a liberal, activist judge. If qualified, she should be confirmed despite that. By deciding to focus on what frankly were ancillary matters during her confirmation hearings, the senators on the Judiciary Committee rejected the opportunity to explore just how far outside the mainstream of American legal thought she might be and if any of her views were extreme enough to disqualify her.
Such a reason might exist but was left largely unexplored. In a set of written questions submitted to her by members of the committee, Judge Jackson was asked to explain, in her own words, “the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.”
She answered well at first, explaining this as the being reflected in the Declaration of Independence – some might call it the cornerstone of the entire document – that certain rights come from “our Creator,” as Jefferson put it, and are, therefore, “inalienable.” These include, she wrote the right to “life, liberty, and the pursuit of happiness” and are often referred to as “natural rights.”
This is more than just the mainstream view of the common law, embraced by liberals and conservatives alike for centuries. It is foundational to the American democratic system. When asked if she herself held that view, she replied, “I do not hold a position on whether individuals possess natural rights.”
This is a jarring admission. At least it should be. If our most basic rights like the right to life and liberty do not come from “our Creator,” if they are not inherent, then they can only be made by man. If they are made by man or granted by man, they can be taken away.
Admittedly, there is a difference between having a right and being able to exercise it, which is something Supreme Court justices often must consider in the cases before them: Has an action by the government interfered with an individual’s ability to exercise an inherent right? Judge Jackson’s position was not made clear in a follow-up question seeking to clarify her views.
Instead, she responded evasively, directing those reading her response to her answer to a previous question: “As a sitting federal judge, all of the Supreme Court’s pronouncements are binding on me, and under the Code of Conduct for United States Judges, I have a duty to refrain from critiquing the law that governs my decisions, because doing so creates the impression that the judge would have difficulty applying binding law to their own rulings. Consistent with the positions taken by other pending judicial nominees, it is my testimony that, as a general matter, it would be inappropriate for me to comment on the merits or demerits of the Supreme Court’s binding precedents.”
That tells us nothing. It is a subject that those who sought to keep Judge Jackson off the high court should have pursued with greater force. Does she believe we have an inherent right to life and to liberty, or doesn’t she? This is one of the most basic of the many complex issues the justices on the high court are called upon to consider every term. The American constitutional republic is predicated on the notion that the government’s respect for all opinions and people, even those in the minority in any group or on any issue, is a requirement. It can be inferred from her answer that she does not agree and may fall back on that position but only when it is useful to do so in furtherance of her arguments in her writings.
Hopefully, this will not prove to be a real concern. Either she affirms through her writings from the bench that her views are, in fact, in line with the thinking of the Founders or because she will be forever in the minority on the Court on any decision handed down by the Court where belief in inherent rights matters. Elections, as they say, have consequences. Her elevation to the Court is one of them. Something to remember for next time.
Case could heighten pressure on President Biden to deliver on racial-equity agenda
The Supreme Court announced on Monday that it will reconsider whether colleges and universities can use race as a factor in admissions.
The justices took up a pair of challenges to affirmative action policies at Harvard and the University of North Carolina. Both broadly allege that the schools discriminate against Asian and white applicants to admit a preferred number of black and Hispanic students. The plaintiffs’ group behind both cases, Students for Fair Admissions, is urging the High Court to scuttle its affirmative action precedents and ban race-conscious admissions.
“Both the Pew Research Center and Gallup have released surveys which indicate that nearly 75 percent of Americans of all races do not believe race or ethnicity should be a factor in college admissions,” said Students for Fair Admissions president Ed Blum. “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others.”
A victory for the plaintiffs would heighten pressure on President Joe Biden to deliver on his racial-equity agenda. As a candidate, he promised sweeping reforms on voting rights and policing, but a year of legislation on both topics is languishing in Congress with little prospect of success. And as Biden has struggled to convince lawmakers to support him, he faces an uphill battle in Monday’s cases before the right-leaning Court.
The plaintiffs have compiled evidence suggesting bias against Asians in admissions. At Harvard, admissions personnel rank students on a numerical scale of four different criteria: academics, athletics, extracurriculars, and a personal rating. Though Asian applicants exceed or are competitive with all racial groups in the first three domains, their personal scores are inexplicably lower than all other racial groups.
Students for Fair Admissions says those low scores reflect “model minority” bias. Asian applicants, they say, are victims of stereotypes that pigeonhole them as highly intelligent but boring and shy. In the evidence-gathering phase of the case, the plaintiffs obtained internal memos from Harvard’s Office of Institutional Research that flagged the disparate scoring outcomes, but the reports did not lead to any policy changes. The plaintiffs also note admissions rates by racial group hold steady over time.
“This manifest steadiness in the racial composition of successive admitted classes speaks for itself,” the petition reads.
In the UNC case, Students for Fair Admissions obtained instant messages traded among admissions officers that show staff speaking crudely about race.
In one representative exchange, an admissions officer alerted a colleague to an applicant with a 2400 SAT score and top marks in Advanced Placement courses. The second officer asked whether the applicant was “brown.” “Heck no. Asian,” the first officer replied. “Of course,” said the second officer. “Still impressive.”
Monday’s news is unwelcome for progressives, who are already bracing for setbacks on abortion and gun rights this term. In their judgment, it’s another signal that the right-leaning Court will be an active force in politics, rather than a passive, reactive institution.
“The goal of these suits—to end the consideration of race in college admissions—is extreme, ignores the history of race discrimination, and threatens diversity and inclusion on campuses,” said Sarah Hinger, a staff attorney for the ACLU’s racial justice program.
The Biden administration urged the justices to steer clear of Monday’s cases. They emphasized that the government’s personnel goals are tied to race-conscious admissions at the nation’s top colleges. Biden has prioritized minority appointments across the government, even as a handful of Democrats pan the dearth of Asian appointees in the cabinet and White House senior staff.
“Among other things, the government has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service academy graduates,” the brief reads.
The administration’s top Supreme Court lawyer, solicitor general Elizabeth Prelogar, received a waiver from ethics officials to participate in the case, even though she is a former Harvard employee. A watchdog group, Protect the Public’s Trust, is pressing the administration for information related to the waiver.
The plaintiffs emphasize that race-conscious policies aren’t necessary to make sure disadvantaged students get a fair shot at admission. Eliminating legacy admissions, awarding preferences by zip code, and shoring up community college transfers will keep campuses open to all comers, the plaintiffs say.
There’s a strategic bonus to simultaneously attacking Harvard and UNC’s practices. UNC is a public school, so the plaintiffs can attack its program on statutory and constitutional grounds. Harvard is a private institution, though it is bound by federal anti-discrimination laws because it accepts tax dollars each year.
It’s most likely that the appeals will be heard during the Court’s next term, which begins in October. But it’s plausible that the cases could be scheduled for this term’s last argument session, which begins in April.
The United States Supreme Court is scheduled this week to take up two cases critical to the survival of President Joe Biden’s executive orders mandating, separately, that businesses that employ more than 100 people and healthcare workers all be vaccinated against the novel coronavirus commonly called COVID-19.
Advancing American Freedom, an organization founded by former Vice President Mike Pence, announced Monday it had filed an amicus brief opposing the vaccine mandate and in support of the petitioners’ requests for a stay.
In its amicus, AAF argues that OSHA’s vaccine mandate published as an “Emergency Temporary Standard” is a means to “shortcut normal rule-making requirements” established by Congress and should be stayed in order “to prevent the irreparable harm to Americans, to jobs, to constitutional governance, and to our cherished freedoms.”
The mandates are a thorny issue, pitting the individual’s freedom of choice against the government’s responsibility as regards the general welfare of the American people. Most observers expect the court to rule against the Biden mandates but only because that’s what the tea leaves say a conservative court should do.
“America is about freedom and the ability to make the best decision for your family or business, and Joe Biden’s vaccine mandate must be stopped in its tracks in order to preserve freedom, protect American livelihoods and businesses, and to safeguard our constitution,” Pence said. “Joe Biden’s vaccine mandate is not the American way.”
Most other conservative commentators seem to be siding with Pence. Comments published Monday by highly regarded author Andrew McCarthy – a former chief assistant U.S. attorney – on the National Review website, echoed some of the points the former vice president made.
“Very simply, Biden is in violation of the Constitution. We have a republic, not a monarchy, and there is nothing inherent in the executive power conferred by Article II that authorizes the Biden decrees. So, the president lacks even arguable authority to coerce people into being vaccinated absent statutory authorization. Indeed, I must say “arguable” because it is doubtful that even Congress itself has power to force private citizens to submit to an invasive medical procedure, much less to delegate that authority to the executive branch,” McCarthy wrote.
The Biden workplace mandate is scheduled to take effect soon, affecting as many as 84 million working Americans. Last Thursday the administration asked the Court to leave the mandates intact because they were essential to helping public health officials contend with the continued number of COVID-19 cases still spreading across the United States.
Is America—and the world—prepared for what comes next?
On December 1 the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization. At issue is the constitutionality of a Mississippi law that bans abortion after 15 weeks of pregnancy. Judging by the media reaction, things did not go well for the pro-choice side. “The Supreme Court Seems Poised to Overturn Roe v. Wade,” reads one Bloomberg headline. “‘Roe’ is dead. The Roberts Court’s ‘stench’ will live forever,” reads the title of a Washington Post column. The headline of another Washington Post article puts it this way: “The question is not whether ‘Roe v. Wade’ is overturned—but how.” Pro-lifers hope so.
I remain unconvinced. It’s never a good idea to infer a final ruling from the content of oral argument. In March 2012 everyone walked away from arguments in NFIB v. Sebelius, judging the constitutionality of Obamacare, assuming that the health care law was doomed. They underestimated Chief Justice John Roberts’s creativity. The same thing could happen in Dobbs: Roberts may use his smarts and guile to persuade other Republican appointees that the Mississippi law can stand without overturning the right to an abortion in Roe. Such a ruling would be illogical. It would be a jurisprudential mess. It would further aggrandize the Court’s power to decide when and under what circumstances abortion is legal. It would look, in other words, like plenty of other Supreme Court decisions.
Whatever happens, I find I cannot escape the sense that America has reached an impasse, that it has arrived at a moment of transition, and not just on the matter of abortion. Whether one looks at politics, economics, or the world, one sees a realignment of forces, a shuffling of players off and on the stage, to prepare for the next act in the drama. The Trump presidency seems less like the harbinger of a new beginning than a spectacular climax to a historical epoch. If so, we are living through a sort of denouement, a working through of conflicts left unresolved. “It feels like the order we have all taken for granted since the end of the Cold War is badly decaying, and has gotten so fragile that it might well shatter soon,” wrote Damir Marusic of Wisdom of Crowds last month. Question is: What replaces it?
If the Court does overrule Roe next summer, America will have entered uncharted territory. Many states will ban abortion immediately. Others will legalize it for the duration of a pregnancy. Still others will restrict and limit the practice. Abortion will be a matter for legislatures—including the U.S. Congress. Both Democrats and Republicans believe that abortion would become a major issue in next year’s midterm campaign, with unforeseeable consequences. Would a pro-choice backlash help Democrats? Perhaps. Then again, some of us thought that Texas’s fetal heartbeat law might help Democrats in Virginia and New Jersey. That didn’t happen.
Conversely, if the Court does preserve Roe, many conservatives and Republicans fear a pro-life backlash directed at the GOP infrastructure and conservative legal movement. No less an authority than former attorney general Ed Meese wrote in the Washington Post that the “success” of constitutional originalism depends on the Court’s ruling in Dobbs. Tension already is high within the conservative legal movement over former president Donald Trump, his attempt to remain in office, and the intellectual challenges from “common-good” constitutionalists and from advocates of judicial “engagement” over “restraint.” A disappointing ruling may not only deflate Republican enthusiasm, but also turn grassroots conservatives in more radical directions.
Either way, our constitutional system and its parties, ideologies, and politics will look different from before. And this change will happen concurrently with a transition in leadership. As of this writing, 19 House Democrats have announced their retirements. More will follow. It is widely expected that the 81-year-old Nancy Pelosi will retire after the midterm election, even if Democrats somehow keep the House of Representatives. Should we really expect the 82-year-old majority leader and 81-year-old majority whip to remain in their jobs? The belief that the 79-year-old President Joe Biden won’t run for reelection in 2024 is so pervasive that the White House scrambles desperately to calm Democratic nerves. For a party that maintains the allegiance of young people, the Democratic leadership class is disturbingly old. It will have to give up power. And the Democrats waiting in the wings are not what you’d call inspiring.
As these generational fights play out, both the Democratic and Republican parties face the internal challenges of their respective countercultures. The woke neo-socialist left and the national populist right disrupt and polarize, complicating the chances that the electorate will arrive at a non-crazy, common-sense politics of moderate reform and civil peace. The mindless controversies over outlandish personalities, the endless and sophomoric exchanges of social media call-out culture, distract attention from the new issues in political economy that ought to be the basis of policy discussion.
And these issues really are new. The air is so thick with neologisms that I barely can keep up: SPACs, DeFi, NFTs, BTC. It would be foolish to expect government to understand these innovations in finance any better than the rest of us. Meanwhile, millions of Americans have quit their jobs during the recovery. Inflation cuts into earnings. The political class has signed up the developed world for an “energy transition” whose costs dwarf potential benefits.
Congress is nowhere close to figuring out how to deal with Facebook, Amazon, Apple, and Google. And AI and quantum computing are coming down the pike. One doesn’t have to go the full Andrew Yang to recognize that the worlds of work, saving, investment, production, and trade look much different than they did just a few years ago. The problem isn’t identifying the change. It’s thinking about the change in constructive and original ways that promote human flourishing in the valued places of family, church, neighborhood, and vocation. There’s been work done in this space. But it hasn’t received the attention it deserves. Why? Because the loudmouths, grifters, cranks, and conspiracists drown it out.
Democracies can muddle through political and economic disruption. Foreign policy is different. The prospect of catastrophic miscalculation is real. President Biden’s foolish and botched withdrawal from Afghanistan looks more and more like a curtain-call for the post-Cold War era of American global leadership. It ought to be obvious that his retreat failed to improve American security. Russia and China have become more aggressive in recent months. Iran has accelerated its nuclear program. Belarus aimed its migration weapon at Poland. The Balkans fell back into bad and deadly habits.
China builds up its nuclear weapons cache as it sails a submarine through the Taiwan Strait. Russia shoots down a satellite as it builds up forces on the border of Ukraine. Vladimir Putin’s recent comments about Russia’s strong relationship with China are the most disturbing and underreported aspect of rising tensions in Eastern Europe. Putin and Xi Jinping seem to have assessed that America has become so decrepit, so inward-looking, so guilt-ridden and risk-averse that the moment has arrived to make the world safe for autocracy. Biden’s response is weak sauce. Holding a summit of democracies may be worthwhile. But it certainly is not a deterrent.
From the Court to Crimea, the past week offered glimpses of the different world we soon will be inhabiting. Not all the images are comforting. They remind us to temper our expectations, avoid rash judgments, and be modest in our presumptions. Above all, they remind us to think seriously about how best to preserve our traditions of freedom in these strange and darkening times.
It was July 29, and the rent was coming due for tenants all over the country. That is, until it wasn’t. Pressed by the progressive wing of the Democratic Party, the Biden White House turned to the CDC to extend the eviction moratorium to October 3 of this year.
The White House maintains that this is not an extension of existing nationwide policy but a new, “targeted” moratorium. Housing groups aren’t buying it, irate with what they see as government overreach and a rebranding of the same policies that saw many landlords go months without collecting enough rent to break even on managed properties. One of those groups, the Alabama Association of Realtors, is challenging the order in court.
The CDC’s latest program, instead of being a blanket nationwide moratorium, uses a region’s COVID-19 infection status as the deciding factor for whether it qualifies. With this adjustment, the administration is attempting to disconnect the “new” moratorium from the past one, which came under intense legal scrutiny.
The former moratorium survived until July 31 only because Justice Kavanaugh thought a premature death for the policy would not “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” He wrote that the only way a moratorium could pass muster thereafter was if there were “clear and specific congressional authorization (via new legislation).”
Pundits and activists on the right and left have predicted the Biden administration may find it exceedingly difficult to argue this moratorium’s new and unique aspects relative to the last.
According to Luke Wake of the Pacific Legal Foundation, defenders of the most recent moratorium “are relying on the very same flawed statutory authority that they have since pronouncing the eviction moratorium last September. The only difference being that instead of a blanket, nationwide moratorium, they would only cover 90 percent of the country. But because they rely on the same supposed authority, their actions are still unlawful.” All Our Opinion in Your Inbox
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Individuals familiar with the plaintiffs’ strategy agreed with Wake, telling National Review that there’s little in the new order to meaningfully differentiate it from its predecessor. The sources pointed out that the new order retains the five eligibility requirements included in the initial moratorium, adding just the one, COVID-dependent, additional requirement.
Legal reaction to the CDC’s pronouncement is moving swiftly, explained Wake:
Now that the Government has renewed the moratorium order in apparent defiance of Kavanaugh’s warning, the Alabama Realtors have sought again to lift the stay in their case so that landlords can begin evicting. The Government was ordered [by the DC Circuit] to respond by the end of [Friday] to that emergency petition. If it’s granted, then that’s a big deal for landlords. If it’s denied, then we can assume they will immediately appeal to the DC Circuit and might very well be before the Supreme Court again quickly.
Kavanaugh granted grace to the CDC, stipulating any extensions would require legislative action. By circumventing him now, the Biden White House risks the Supreme Court’s wrath. Sources were confident that the CDC would not find Kavanaugh nearly as deferential to the government attorneys should they find themselves before him in court again.
Those familiar with the suit expect that sometime early this week, perhaps even Monday, D.C. District Court judge Dabney Friedrich will make a ruling, with a high probability that it lands in favor of the Alabama Realtors. It would then be on the government to appeal the case to higher courts.
Monday, August 9, had both sides’ attorneys before Judge Friedrich answering her questions and pleading their cases. She chose not to rule immediately, instead taking the case under consideration.
Wake estimated the Fifth Circuit would get to his firm’s case (Chambless) around October. A delay, but he figures the CDC will extend the rent moratorium during the winter months, meaning Chambless may be before the Supreme Court by year’s end.
A comprehensive analysis of abortion laws in Europe released Tuesday found almost every country limits elective abortion to 15 weeks gestation, putting the policy in place on much of the continent in line with new restrictions adopted by the State of Mississippi.
“The European comparison is useful in highlighting how Roe v. Wade and the abortion industry are outdated and out of touch, but our goal isn’t achieving some international happy medium,” said Chuck Donovan, the president of the Charlotte Lozier Institute. The aim, he said, was to use science “to demonstrate the reality that human life exists in the womb and that the right to life is an inalienable human right
The Mississippi law, enacted in 2018, was immediately challenged by pro-abortion rights supporters as an unreasonable incumbrance on the reproductive rights of women as established by the United States Supreme Court. Current precedent allows for elective abortions to occur through the ninth month of pregnancy, subject to the ability of individual states to impose restrictions on abortion after the viability of the unborn child has been determined.
As a matter of law, viability is currently held as occurring at approximately 24 weeks gestation though many doctors and scientists say it can and does happen much earlier. That standard will be tested when the Mississippi law comes before the high court this fall in Dobbs v Jackson Women’s Health Organization, which abortion opponents hope will result in the benchmark being cut by as much as half.
The Lozier Institute report found by comparing abortion restrictions in 47 of 50 European countries that 39 placed limits of elective abortions at 15 weeks gestation or earlier. The other eight prohibit it altogether.
“Mississippi’s law brings the United States a small step closer both to European and global norms,” said Lozier Institute associate scholar Angelina B. Nguyen, J.D., the study’s author. “No European nation allows elective abortion through all nine months of pregnancy, as is effectively permitted in several U.S. states, and America is one of only a small handful of nations, along with China and North Korea, to permit any sort of late-term elective abortion.”
The latest analysis builds on a previous Lozier Institute study regarding abortion laws worldwide released in 2014. It found the United States to be among a handful of countries, including North Korea and China – notorious for its policy limiting the number of children a couple may have – that allowed elective abortions for any reason more than halfway through a complete pregnancy or after 20 weeks.
Lozier Institute President Chuck Donovan said, “American elites often hold up Europe as an example. First, we demonstrated that more than two-thirds of the planet goes further than America in protecting life. Now, we’ve demonstrated that almost every European nation goes further than America in protecting life. Mississippi’s commonsense limits on late-term abortion are well within the mainstream of American popular opinion and clearly within the mainstream of European political opinion.”
Mississippi’s Gestational Age Act, which passed overwhelmingly with bipartisan support in 2018, limits elective abortion to 15 weeks. The law was invalidated by lower courts (Dobbs v. Jackson Women’s Health Organization) and will be heard by the U.S. Supreme Court in the fall of 2021.
In a ghoulish turn of events, progressive legal activists are invoking Justice Ruth Bader Ginsburg‘s legacy in an attempt to persuade Justice Stephen Breyer to step down from the United States Supreme Court.
Speaking to CBS News about the 82-year-old Breyer, Demand Justice’s Brian Fallon said, “We want to avoid a repeat of the unfortunate situation that occurred last fall,” when Ginsburg—a liberal icon—died while a Republican was in the White House and a GOP-controlled Senate was able to confirm her replacement.
Justices are appointed to the Supreme Court for terms ending only upon their death, resignation or removal. The Founding Fathers wrote this provision into the Constitution to insulate the Court and its members from political pressure.
Ginsburg’s death after a long, valiant struggle with cancer produced a rare moment of bipartisanship in the nation’s capital. Republicans and Democrats alike praised the justice for her devotion to her work, her tremendous success as an attorney who championed equality under the law and her longtime friendship with the late Justice Antonin Scalia, which proved that people with wildly divergent views could work together and be genuine friends.
That era of good feeling shattered shortly after President Joe Biden entered the White House. Progressives immediately started whispering about Breyer, a stalwart defender of the Court’s independence, needing to step down.
“There are a lot of people that were filled with regret after [Ginsburg’s] passing because she did not take the opportunity to step down when Barack Obama was president,” Fallon said on CBS News. He faulted Ginsburg for refusing to resign after the severity of her eventually terminal illness became known, which would have allowed the then-president to replace her with someone even further to the left. “We don’t want to have that situation reprise itself this time with Justice Breyer who is—the Court’s oldest justice,” Fallon told the CBS anchor.
As the Court has moved rightward, it has come under increased scrutiny from liberals and progressives who once accepted its decisions as binding and unassailable, at least when they liked the outcome. Nowadays, those progressives are enthralled with the idea that Congress can overturn rulings they consider incorrect, such as Citizens United v. FEC.
Rhode Island Democrat Sheldon Whitehouse has been especially hard on the justices. Recently he attempted to use his Senate subcommittee to demonstrate the influence of the “dark money” Citizens United set loose. He demanded that justices share their time and travel records so their critics could uncover any unsavory relationships between them and what Teddy Roosevelt called the “malefactors of great wealth.”
There’s an argument to be made that Supreme Court justices stricken with severe illnesses should step down. The Court faced a crisis after Justice William O. Douglass suffered a debilitating stroke and refused to resign even though his colleagues said he could no longer fulfill his duties. Breyer, by contrast, seems to be in the best of health and does not show signs of impairment or loss of enthusiasm for the job. He has no apparent reason to retire unless he himself has decided it’s time.
What progressives are doing now is unseemly and ugly. Were the shoe on the other foot, they might call it ageist and discriminatory. Some will, no doubt, suggest that conservatives would do the same. But liberals tend to advance their agenda and their candidates for elected office and the federal bench by saying they are better. They themselves ask to be held to higher standards.
The jockeying over federal judges didn’t begin with Trump. It started back in the 1980s when Ted Kennedy waded into the slime and ooze on a mission to destroy Robert Bork’s reputation along with his nomination to the highest Court in the land. Judging by what progressives are now saying about Justice Breyer, they’re still stuck in the muck.
For each of the challenged provisions, DOJ's complaint alleges black voters are burdened more than white voters in Georgia's new voting law.
On Friday, the Biden administration filed suit against Georgia, challenging numerous aspects of the state’s Election Integrity Act of 2021. While many of the allegations contained in the nearly 50-page complaint struck a surreal chord, assessing the merits (or lack thereof) of the lawsuit requires an understanding of the Voting Rights Act. Here’s your lawsplainer.
Last week, the Biden administration, through the Civil Rights Division of the Department of Justice, filed a one-count complaint against the state of Georgia, the Georgia State Election Board, and Georgia’s Secretary of State Brad Raffensperger, pursuant to Sections 2 and 12(d) of the Voting Rights Act.
The latter provision, Section 12(d), authorizes the attorney general of the United States to file a civil lawsuit against states and local election officials for alleged violations of the substantive provisions of the Voting Rights Act, such as Section 2. Further, under the Voting Rights Act, the federal government may seek injunctive relief to block voting laws from taking effect.
Section 2 of the Voting Rights Act currently prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The “results in” language here proves key, because when Congress first passed the law in 1965, Section 2 prohibited only a “standard, practice, or procedure” “to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
As originally drafted, then, the Voting Rights Act only prohibited intentional discrimination. However, following the Supreme Court’s decision in City of Mobile v. Bolden, wherein the high court held that Section 2 only bars “the purposefully discriminatory denial or abridgment by the government of the freedom to vote” on account of race or color, Congress amended the language of Section 2 to prohibit practices that “result” in the “denial or abridgment” of the right to vote.
To prevail on a Section 2 claim, then, the Department of Justice need not establish a state such as Georgia intended to deny or abridge the right to vote based on race or color. Rather, Section 2(b) provides that a violation “is established if, based on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation” because members of a particular race or color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Based on this statutory language, courts have developed a two-step analysis to determine if a practice violates Section 2. First, courts ask whether the practice provides members of a particular race or color “less opportunity” than others “to participate in the political process and to elect representatives of their choice.” Second, the burden must be “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination.”
While the courts seem to agree on this two-prong approach to Section 2, in practice the lower courts have reached conflicting assessments of the validity of various laws. For instance, the Seventh Circuit upheld Wisconsin’s voter ID law against a Section 2 challenge, while the Fifth Circuit rejected Texas’s Voter ID law.
Most extreme, however, was the Ninth Circuit’s application of the two-prong test in Brnovich v. Democratic National Committee. In Brnovich, the en banc court held that Arizona’s “out-of-precinct” provision, which required voters to cast their ballots in the correct precinct, violated Section 2 of the Voting Rights Act.
The appellate court also struck Arizona’s ballot-harvesting ban that made it illegal for individuals to possess another person’s ballot, other than election officials, mail carriers, caregivers, family, or household members. In striking Arizona’s voting law, the Ninth Circuit focused heavily on the disparate impact of the challenged provision, as opposed to whether minority voters have an “equal opportunity” to vote.
Brnovich is currently on appeal to the U.S. Supreme Court, and experienced court watchers expect the justices to reverse the Ninth Circuit and uphold Arizona’s voting laws. Beyond the bottom line in Brnovich, the Supreme Court will likely also define the appropriate standard for lower federal courts to apply in analyzing Section 2 claims.
While it is unclear what guidance the Supreme Court will provide or what standard the justices will adopt in Brnovich, it is likely the majority will stress that a mere disparate impact on voters is insufficient. Yet the gist of the DOJ’s entire lawsuit against Georgia is that select provisions of the Election Integrity Act impact black voters at a higher rate than white voters.
Specifically, the DOJ complains that black voters are “disproportionately burdened” by the challenged provisions of Georgia’s Election Integrity Act of 2021. And what exactly are those challenged provisions?
First, the DOJ complains that Georgia prohibits the distribution of unsolicited absentee ballot applications then also bars private organizations from distributing duplicate absent ballot applications. Next, the DOJ challenges Georgia’s requirement that in requesting an absentee ballot that voters either provide their driver’s license number or present a photocopy of another form of identification — but even a utility bill would suffice.
Also challenged are limits on the time period for requesting absentee ballots and limits on the number and location of absentee ballot drop boxes. Finally, the DOJ challenges Georgia’s ban on out-of-precinct voting and the distribution of food or drinks by private organizations to persons waiting in line.
For each of these challenged provisions, the complaint alleges black voters are burdened more than white voters. But even under current precedent — outside the liberal Ninth Circuit — that is not enough. Rather, the question is whether under the totality of the circumstances the challenged provisions deny black voters an equal opportunity to participate in the electoral process and that that burden is caused by historical or current race discrimination.
Given that Georgia’s law provides more generous early voting and absentee voting opportunities than many other states, it is difficult to see how a court would find these provisions violate Section 2 of the Voting Rights Act. Further, if, as expected, the Supreme Court in Brnovich, upholds Arizona’s challenged provisions, the precedent will be even stronger in Georgia’s favor.
For now, though, Georgia must answer the DOJ’s complaint. At that point it is likely the DOJ will seek a preliminary injunction barring enforcement of the law. However, to obtain a preliminary injunction, the DOJ must establish a likelihood of success on the merits. We will then get a first sense of how presiding Judge J.P. Boulee, a Trump appointee, views the DOJ’s case.
Before then, though, we will know how the Supreme Court views Section 2 challenges to state voting integrity laws, with a decision in Brnovich due in the next month or so.
The Susan B. Anthony List (SBA List) released a national poll Monday of likely voters that found a strong majority of voters support limits on abortion after 15 weeks of pregnancy and the rejection of abortion on demand.
The poll, which was conducted on the heels of the U.S. Supreme Court’s announcement it would review Mississippi’s 15-week abortion limit and consider the question of whether all “pre-viability” bans on abortion are unconstitutional also found likely voters much more likely to support Republican candidates who back a 15-week limit on abortion versus Democratic candidates who back unlimited abortion.
“Among other findings, this survey of 1,200 likely voters showed that there is a strong center-right coalition that supports the Supreme Court allowing significant limits on abortion. In short, a strong majority of voters oppose unrestricted, abortion on demand, throughout pregnancy. Additionally, this study strongly indicates that the pro-life side of the issue enjoys significantly more intensity than the pro-choice side. Politically, the pendulum has swung decisively in our direction,” said the polling firm OnMessage Inc., in its analysis of the data.
Among the key poll findings:
-53 percent of likely voters said they were more likely to vote for a Republican candidate who supports a 15-week limit on abortion versus just 28 percent of voters who prefer a Democratic candidate who supports unlimited abortion up until the moment of birth. Independent voters break strongly to the GOP side by a 54 percent to 18 percent margin.
-55 percent of likely voters say they are more likely to support a 15-week limit on abortion when they learn that an unborn child has the capacity to feel pain.
-43 percent of likely pro-life voters identified abortion as being “very important” (10 on a 1-10 importance scale) in deciding their vote for an elected official, while only 29 percent of pro-choice voters said the same.
“The majority of voters reject late-term abortion and the Democratic candidates who shamefully advocate for it. At 15 weeks, unborn children can feel pain, and most European countries limit abortions at this point. There is strong support among the American people for our nation’s laws to finally catch up with science and international norms,” SBA List President Marjorie Dannenfelser said in a statement announcing the results.
SBA List recently launched a $2 million video ad campaign asserting the humanity of unborn children. The 30 spot is airing on national cable, including on Lifetime and Bravo networks, as well as select streaming services, and in the Washington, D.C. media market on top news stations.
The case before the U.S. Supreme Court is Dobbs v. Jackson Women’s Health Organization.
The Democrats are returning to their roots during Joe Biden‘s presidency. The Clintonian concession that the “era of big government” was over has been nullified. The bigger-is-better approach to public policy fueled by “tax and spend” is back.
Biden was portrayed as the moderate candidate in the last election, so this switch may seem odd. Those who follow politics closely know, however, that was spin. He’s only “middle of the road” because the party has moved so far left since he first achieved national prominence.
Over his first hundred days, Biden has embarked on an ambitious program that will lead to a radical change in the role, scope and size of government.
In recent weeks, the president has announced the creation of a commission to study the makeup of the federal judiciary, as he promised he would during the campaign. Former president Donald Trump‘s achievements in remaking the third branch of government—ably supported by Senate Republican Leader Mitch McConnell—might be Trump’s most significant achievement, making it the thing that irks progressives the most. Rather than waiting on Father Time and the Grim Reaper to do their work so they may make major changes to the Supreme Court‘s makeup, congressional Democrats have introduced legislation increasing the number of justices from nine to 13.
The last time Biden took a position on the idea, he denounced it as “boneheaded.” That was back during the Reagan-Bush years. Challenged on the issue by Trump in 2020, he punted to the idea of a commission rather than answer “yes” or “no” to the question.
The dodge worked, and reminded us all what a skilled politician Biden is.
Since changing the direction of the Court can only be accomplished by changing the justices—right now there’s a soft six-to-three center-right majority—the only quick way to bring about change is to change the justices. Packing the Court may be fashionable among progressives not content to wait for Justices Clarence Thomas and Samuel Alito to depart, but it isn’t popular with the American people.
According to one recent survey, a majority of likely voters said they opposed enlarging the Court, especially if the purpose of adding justices was to change the direction of its rulings. Just 33 percent of those surveyed by Rasmussen Reports said they were in favor of adopting a proposal like the one put forward by congressional Democrats to add four justices as quickly as it can be done. A solid majority—55 percent—said they were opposed.
“On the specific question of increasing the number of Supreme Court justices to 13,” the polling firm said, “voters divide along party lines much as they do on the more general question. Fifty-six percent of Democratic voters approve increasing the number of justices to 13.” That includes the 29 percent who “strongly approve” of the proposal that congressional Democrats have already put forth as legislation even before Biden’s commission on the judiciary can make its report. Meanwhile, the pollster continued, “Seventy-four percent of GOP voters disapprove of the plan, including 70 percent who strongly disapprove. Among unaffiliated voters, 59 percent disapprove of increasing the number of Supreme Court justices to 13, including 49 percent who strongly disapprove.”
According to the pollster, those numbers are “little changed since October,” when 53 percent of those asked said they opposed packing the Court. Rasmussen found a slim majority in both surveys supporting term limits for appointments to the federal bench—though making that change would require a constitutional amendment, while the number of justices on the Supreme Court can be changed through legislation.
The idea of packing the High Court to change the direction of its rulings has been tried before. Franklin Delano Roosevelt tried to do it in the late 1930s but was rebuffed by a Congress controlled by Democrats—who were nonetheless punished for FDR’s overreach at the next election. There’s something about changing the rules to change an outcome that disturbs most voters. The Democrats had better figure that out fast, or they’ll suffer at the ballot box for their mistake.
President Biden and the Democratic Party still cannot answer a simple question: “Will you, or will you not, blow up the judicial branch of the United States government?”
This should not be a tough one — especially for Joe Biden. Last time a Democratic president considered destroying the Supreme Court, his party described the proposal as “the most terrible threat to constitutional government that has arisen in the entire history of the country” and recommended that it “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” As a senator, Biden concurred with this assessment. “Roosevelt,” Biden said, “I remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view, unveiled his Court-packing plan.”
Evidently, the presidency does that to some men.
Perhaps aware of the gravity of what they are attempting, the Democrats are running a two-track play. President Biden, through whom many of the party’s most radical ideas are laundered, is simply refusing to answer whether he supports the idea, and, in an attempt to extend the uncertainty, has unveiled a bipartisan commission to “study” the issue. Equally wishy-washy is Nancy Pelosi, who generated headlines yesterday by saying that the current proposal would not get a vote in the House, but did not rule out the idea so much as hide behind Biden’s commission and insist that it needed to be “considered” and is “not out of the question.” In the meantime, less protean Democrats are making the affirmative case. A bill introduced by no less than the chairman of the House Judiciary Committee and the chairman of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet would add four new justices to the Court — exactly the number needed to hand Democrat-approved judges a majority.
Subtle, this is not.
The justifications that the Democrats have proffered are ridiculous on their face. They claim that the Republicans “packed” the Court themselves when, as the party in the majority in the Senate, they merely used their constitutional powers to approve or reject the candidates they were sent. They claim that the Court must be expanded to keep up with population growth and the workload that results — a contention that miscasts what the judicial branch does, and that does not make sense on its own terms (because all justices participate in every case, a court of 13 will not be able to take more cases than a court of nine, and in any event, the Court’s docket is smaller than it was a half century ago). And, finally, they claim that the Court is suffering through a crisis of legitimacy — which, given that it is more popular and more trusted than it was prior to the additions of Justices Gorsuch, Kavanaugh, and Barrett, represents the very opposite of the truth.
What is the truth? That, as it grows more progressive, the Democratic Party senses that it will more frequently hit up against the Constitution itself, and that, when it does so, it is going to need judges who are not interested in what that Constitution actually says. To comprehend this is to comprehend the whole grubby initiative, which will confer benefits upon the Democrats irrespective of its success. If Biden and Co. succeed in their undertaking, the Court will become merely another legislature, there to rubber-stamp the Democratic Party’s transgressions. If the endeavor fails, the Court may nevertheless be so intimidated by the attempt that they begin to bend at the knees. And, either way, the public is taught to mistrust Article III.
There is only one way out of this treacherous scheme, and that is the emphatic rejection that the congressional Democrats of 1937 envisioned. It must be rejected by the Republicans. It must be rejected by the Democrats. And, ultimately, it must be rejected by the people — who did not vote for a regime consumed with freeing itself from any meaningful constitutional restraint, and do not deserve to live under one.
It's clear the City of Philadelphia is far more anxious to punish the free exercise of religion than to serve its most vulnerable children.
Not just foster care providers, but religious groups of all kinds are closely following the case of Fulton v. the City of Philadelphia. Indeed, all those who care about our nation’s children should be.
While this case before the U.S. Supreme Court to be decided in 2021 directly concerns the provision of foster care, by placing hypothetical arguments about non-discrimination ahead of the religious freedoms ensconced in the First Amendment — and ahead of children’s actual needs — the broader ramifications of the case threaten to force religion further from the public sphere.
In his dissent in Obergefell v. Hodges in 2012, Chief Justice John Roberts wrote:
The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demean or stigmatize’ same-sex couples.
Fulton v. Philadelphia demonstrates how right Roberts was to be concerned. The attorney for the city, Neal Katyal, claimed during oral arguments that a religious foster care agency, by following the prescriptions of the religion which it represents, would “stigmatize” LGBTQ individuals, especially children. Having asserted that traditional religious beliefs are bigoted and damaging, he thus argues that they must be prohibited in practice.
In particular, the city’s claim that the stigma is associated with Catholic Social Services’s provision of foster care cannot withstand even a cursory examination. Whatever feeling of harm or stigma might be involved, it would emerge from the biblical belief — which is supposed to be protected by the First Amendment — that same-sex relationships are forbidden; whether or not this teaching was applied to foster care would be essentially irrelevant. Yet the city, knowing that it can’t directly attack religion, claims that the damage occurs when a religious foster care agency conforms to those beliefs.
Taking the attack on religion a step further, Philadelphia equated religious diversity with mutual hostility: its lawyer claimed that foster care would be “balkanized” if various religious groups were each allowed to serve children in need consistent with their religious beliefs, working with supportive families seeking to partner with those agencies. Frankly, it’s quite scary to see such open hostility to free, diverse religious practice from a city government — and one could hardly seek more decisive proof that freedom of religion is, in fact, on trial in this case.
The threat here is clear, and not limited to Catholics. In Judaism, we believe it essential to raise a Jewish child to learn both our books and our observances. If applied consistently, the city’s argument would prohibit a Jewish agency from insisting upon placing a Jewish child in a Jewish home. Rather than demonstrating the First Amendment’s respect for different traditions and beliefs, Philadelphia is demanding universal conformity to state doctrine.
What is most troubling in all of this is that the city has lost sight of the ultimate goal: to serve children in need of foster care. There is a grave shortage of families willing to open their homes to foster children, and religious agencies, by working specifically within their faith communities, can expand that pool.
Plaintiff Sharonell Fulton is but one of many who are certified by Catholic Social Services and have room in their homes to care for children. The city is keeping these foster care providers on the sidelines because of CSS’s religious beliefs, offering only theoretical arguments about hypothetical harms to justify callous denial of homes to children in need.
As was clear at oral argument, no same-sex couple has been prevented from fostering or adopting by Catholic Social Services, or ever would be. Were such a couple to ever present itself to CSS, attorney Lori Windham told the court, CSS would help the couple to find one of the many other agencies that can assist them and better attend to their needs.
Based solely upon a far-fetched, theoretical claim of “stigma” that reflects hostility towards biblical beliefs, the city’s actions are therefore forcing dozens if not hundreds of actual (very non-theoretical) children to languish in group homes and institutional settings rather than being placed with loving foster parents.
The city has made its disregard for children’s actual needs quite obvious. Responding to the fact that Catholic Social Services has provided foster care to needy Philadelphia children for more than two centuries, long before the government was involved, Katyal argued that “whatever these [private] entities did before, like CSS, they never selected who cares for kids in city custody, applying state criteria.” In other words, the city claimed that whether these children are wards of the state is a more central consideration than whether they need foster care.
This is heartless, and even more fundamentally flawed. To be sure, the city has notargued that CSS provides an inferior service. It even acknowledged that CSS has been a “point of light” in the child welfare system. Yet the city also claims that closing down such an agency and preventing it from helping the more than 250 children in need of a foster home today would somehow be a net benefit for society.
So it is not merely true that Philadelphia wishes to squelch free religious practice — it is also clear that the city is far more anxious to punish the free exercise of religion than it is to serve the city’s most vulnerable children. The shocking part is that it was necessary to go all the way to the Supreme Court to ask for the obvious: that the city of Philadelphia should both respect different religious beliefs, and put the needs of children first.
By Red State•
While the rest of the country enjoyed their Thanksgiving dinners and began their Christmas shopping, the big brass at Google had a lot to think and worry about over the long weekend.
You may recall that earlier this year, Google was the recipient of a bipartisan grilling in Congress over its predatory business practices. The big tech goliath was unable to offer up even a semblance of a convincing defense, leading some to speculate that an antitrust bust-up was awaiting on the horizon.
Over the past few months, those rumblings have turned into reality.
First, in October, the Department of Justice announced a formal antitrust lawsuit, putting the full weight of the federal government on Google’s neck. Then, last week — just two days before Thanksgiving — a bipartisan coalition of state attorneys general announced plans for a second lawsuit, which may come this month (a third antitrust suit spearheaded by Texas is also in the works). It is very likely that by next summer, every state and federal division of the judicial branch will be pursuing the breakup of the search engine giant.
But it may be the Supreme Court, traditionally the final stop on legal journeys, that strikes the first blow.
Observers may recall that back in October, the Supreme Court heard oral arguments in a copyright infringement case regarding the shady origins of Google’s Android software. The lawsuit’s gist is that Oracle claims Google sticky-fingered Java source code developed by its subsidiary, Sun Microsystems, to build up Android OS — a multi-billion-dollar revenue generator that runs on millions of smartphones.
Consider some of the most damning details.
According to the lawsuit, Google stole what it refused to buy after Sun offered Google a three-year license to use its code. The deal would have cost Google $100 million. Google decided that, as Woody Woodpecker used to say, free was a much better price.
This is an interesting argument. If Google initially sought permission to use Sun’s code, it implies that Google knew perfectly well the code wasn’t just theirs to take. One doesn’t ask permission to use the public sidewalk. One does ask permission to borrow the neighbor’s car — and if the borrower takes it for a drive without permission, everyone understands what that is.
The Supreme Court appears to understand this point very well, which doesn’t look good for Google.
As Justice Brett Kavanaugh put it: “You’re not allowed to copy a song just because it’s the only way to express that (particular) song.” In other words, the fact that Stairway to Heaven by Led Zeppelin is the only song that sounds like Stairway to Heaven doesn’t mean that people who didn’t write it have a right to record it and sell it just because they like the way it sounds.
If they did so, everyone would understand a theft had occurred, and the thief would be held accountable.
Justice Neil Gorsuch made the point that the existence of one avenue, however popular it may be, doesn’t prevent creators from finding new ones. The fact the Led Zeppelin wrote Stairway to Heaven and made a lot of money selling albums in no way prevented Stone Temple Pilots from writing Plush and selling lots of albums of their own.
Gorsuch’s reasoning explains why other mobile operators managed to create their products without using Java at all. Java wasn’t the only way into town, so to speak, as Google claims; the tech giant just refused to find a new path.
While we likely won’t know the official decision until the summer, Google is likely sweating bullets.
It’s one of the wealthiest companies in history, but it’s facing an unprecedented level of legal pressure due to two decades of bad behavior. From the outside looking in, it appears the courts are circling the wagons.
Consumers need not worry. None of the services Google provides are irreplaceable innovations or at threat of disappearing in the case of a breakup. It’s even possible that, with the market’s largest digital predator subdued, a breakup would lead to a flurry of new digital services.
The only people who have to worry are Google shareholders and employees. They’re looking at legal cases and potentially billions in losses. Those prospects would dampen anyone’s holiday season.
The Supreme Court may strike down the Affordable Care Act’s individual mandate but appears poised to uphold most of the law against a constitutional challenge from a coalition of red states backed by the Trump administration.
A majority of justices were skeptical that a 2017 Republican tax bill endangered the entire statute. While that law created doubts about the continued legality of the controversial mandate to buy health insurance, other popular provisions, such as coverage for preexisting conditions, do not appear to be in danger.
The High Court’s new composition seemed to have little effect on the fate of Tuesday’s challenge. Justice Brett Kavanaugh telegraphed that he thinks the bulk of the health care law should stand even if the individual mandate is struck down. Justice Amy Coney Barrett raised doubts that one set of plaintiffs even had a right to be in court. Those developments follow dire warnings from Senate Democrats that Barrett’s confirmation would endanger health care coverage for millions of Americans.
The Court’s apparent direction greatly simplifies the health care agenda for President-elect Joe Biden. A decision striking down the ACA would send the new administration back to the drawing board on health care, while it faces the likely prospect of a GOP-controlled Senate. Biden favors a plan that would make government-funded health care available alongside private plans.
The case arose in December 2017 when congressional Republicans passed the Tax Cuts and Jobs Act. The law effectively zeroed out the individual mandate, setting the financial penalty for failing to purchase health insurance at zero dollars. The Supreme Court said in 2012 that the ACA’s requirement to buy health insurance could be upheld as a tax. In turn, a group of red states and a few individuals brought a fresh legal challenge. They reasoned that because the mandate is no longer generating revenue, it cannot be legitimated on tax grounds.
In a highly unusual move, the Trump Justice Department declined to defend Obamacare in court, so a group of blue states led by California intervened to do so.
The biggest issue in Tuesday’s case is the question of what happens if the mandate is unconstitutional. The answer turns on a legal doctrine called “severability,” or a general preference for preserving as much of Congress’s work as possible when courts find particular parts of a statute unlawful. Two conservative members of the Court, Justice Brett Kavanaugh and Chief Justice John Roberts, plainly indicated that they think the mandate can be severed from the ACA if it has been rendered unconstitutional by the tax law.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said in a key exchange.ADVERTISING
Roberts had even more pointed words for Texas solicitor general Kyle Hawkins, who argued for the red states. The chief justice said the Court shouldn’t step in to scuttle Obamacare when the Republican Congress itself did not repeal the law, even as it zeroed out the mandate.
“I think, frankly, that they wanted the Court to do that,” Roberts said. “But that’s not our job.”
“Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question,” he added.
Critically, however, the chief justice did not give away his thinking on the continued legality of the mandate. He asked only about severability and whether the plaintiffs had a basis for being in court.
Donald Verrilli, the former solicitor general who defended the ACA in court for the Obama administration, appeared before the justices again Tuesday, this time on behalf of congressional Democrats. He noted that millions of people are covered under the ACA and that the entire health insurance sector has operated for years in compliance with its requirements.
“To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate,” Verrilli said.
As to the legality of the mandate itself, the red states say it cannot be sustained as a tax if it doesn’t raise money for the government.
“The mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and, as such, it falls outside Congress’s enumerated powers,” said Hawkins.
The liberal justices sparred with Republican lawyers on this point. Justice Elena Kagan questioned how a toothless mandate could amount to unlawful strong-arming.
“How does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” Kagan asked.
Justice Samuel Alito later countered that there aren’t other examples of a zero-dollar tax penalty in federal law, making the mandate suspect in its current form.
“Are you aware of any provisions in the [U.S. Code] in which Congress has purported to use its taxing power to say you must do this, and we’re going to tax it and we’re going to set the tax at zero?” he asked acting solicitor general Jeff Wall, who argued for the Trump administration.
Another issue is whether the plaintiffs even had a legal basis, called standing, for getting to court. In court papers, the blue states said that harm is a necessary prerequisite for a lawsuit, but a mandate penalty of zero dollars isn’t harming anybody.
“It is legally clear that absolutely nothing will happen to them if they choose to go without coverage,” the blue states wrote of the individual plaintiffs in court papers. Even if the individual plaintiffs don’t have standing, the red states say they do because the mandate effectively requires them to spend more on health care.
A decision in the case, No. 19-840 California v. Texas, is expected in the spring or early summer.
This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.
Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.
Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.
The point is contentious. During oral argument, Justice Elena Kagan insisted that Philadelphia has a compelling state interest to eliminate all forms of discrimination against same-sex couples. Stanford professor Jeffrey Fisher, who represented two-nonprofit organizations that sided with the city, made a similar point by insisting that if Philadelphia lost this case, city police officers would be able to refuse to enforce certain laws to protect those same-sex couples just by citing their religious convictions.
Both of these claims miss the central point. The real risk of government abuse arises when the state exercises its exclusive power to enforce the criminal laws. Given that state monopoly power, state actors have a correlative duty to treat all persons equally and therefore are disallowed from bringing personal religious convictions to bear on criminal law enforcement.
The situation, however, is quite different whenever the government grants public funds to organizations to discharge some public purpose. This contest raises tension between a state’s independent regulatory authority and its ability to impose conditions on such grants. It is often incorrectly asserted that the government has extensive freedom of choice when it puts “its” money behind a particular program, such that it can act in an “entrepreneurial” fashion even if it cannot regulate private church conduct. As one observer suggested, “[r]eligious groups typically have little leeway to shape government programs that they object to.”
These oversized claims for state control should be roundly rejected. The government does not have some private stash of cash to dole out on whatever terms and conditions it sees fit. Virtually all of its money comes from taxation, fines, and fees. Those monies are paid into the city by both supporters and opponents of the city’s ban on CSS. Just as it would be wholly inappropriate to exclude non-religious programs from participating in the city’s foster programs, so too is it wholly inappropriate to exclude the religious organizations solely because of their religious beliefs. Excluding either group from the class of recipients while forcing them to make contributions into the common fund creates an illegitimate cross-subsidy from groups without political power to groups with it.
That fundamental fiscal imbalance implicates the doctrine of unconstitutional conditions, which supplies the much-needed counterweight to inappropriate exercises of state monopoly power. The parallel common law rule holds that any public utility or common carrier has, by virtue of its monopoly power, the duty to offer services to all customers on fair, reasonable, and nondiscriminatory terms. The public law doctrine of unconstitutional conditions applies that principle to the strongly entrenched and indisputable state monopoly powers of regulation and taxation. But the state should have no power to regulate parties in competitive industries, where there are many alternative sources of supply. Accordingly, the state cannot license private Catholic hospitals only if they are willing to perform abortions at will, which can be done at many other facilities.
Similarly, whether the issue regards dispensing cash or using public facilities, the state cannot use its monopoly power to impose viewpoint conditions on public grants. Thus, no one thinks (I hope) that the city of Philadelphia can use its power to prevent CSS or its foster parents from using city streets to render their services unless they accept same-sex couples for foster care. The basic test is whether the condition that the city government wants to impose is designed to improve the overall efficiency of public services, or if the condition is instead intended to serve as a form of viewpoint discrimination. Thus, the city can require all vehicles that CSS uses on public roads to meet the uniform standards of vehicular inspection, but it cannot condition CSS’s use of vehicles on the alteration of its religious beliefs and practices.
It is painfully clear that the state cannot identify any efficiency justification for excluding CSS from its foster care program. The city operates a useful platform that brings together parents and other guardians with children in need of foster care through a wide array of organizations. The more choices on both sides of the platform, the better the system. We know that CSS increases the supply of foster care, which reduces the risk of shortages of foster placements. It also allows many parents or guardians seeking a Catholic family to obtain their first choice of foster parents. In oral argument, Justice Samuel Alito noted that CSS has never had to turn down an applicant for foster care who desired to place a child with a same-sex couple. Instead, CSS acted a liaison with other groups to secure those children with a satisfactory placement. Why should anyone oppose a system that leaves everyone better off, simply because one provider among many insists on adhering to its deeply held religious beliefs? There is no interest, let alone a compelling state interest, to undermine a matching program that has worked well for decades.
Fulton follows on the heels of the 2018 Supreme Court decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which threw out a set of penalties that the Colorado Commission imposed on Jack Phillips, a devout Christian who refused to bake a wedding cake for a same-sex couple on religious grounds. In a most unsatisfactory opinion, Justice Anthony Kennedy chastised the commission only for its boorish behavior, not its substantive actions. Thus in the present case, the Court of Appeals for the Third Circuit had an easy hook on which to uphold the city, which acted with proper professional candor in dealing with CSS, unlike its Coloradan counterpart. But the ultimate issue in both cases is not about manners. It is about the abuse of monopoly power (exercised with civility or otherwise).
Masterpiece offers the converse situation to Fulton. In Masterpiece, a competitive market eliminated the need for Colorado to force any merchant to take on any customer, given that a host of merchants were eager for the same-sex couple’s business. But in Fulton, the state’s monopoly position requires it to apply the nondiscrimination rule for the benefit of CSS. In their effort to counter this contention, both Justices Stephen Breyer and Elena Kagan argued that allowing for discrimination against same-sex couples might open the way to allowing discrimination on the grounds of race. In my 1992 book Forbidden Grounds,I argued that private parties have the right to engage in any form of discrimination in private competitive markets, including discrimination by race—in part because that principle provides a clean justification for private affirmative action programs. But even if that argument is rejected emphatically for public institutions, recall Justice William Brennan’s 1984 opinion in Roberts v. United States Jaycees, which upheld Minnesota’s antidiscrimination law as applied to a large public club, only to insist “that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state.”
The foster care arrangements fall into just this category. This implies that CSS, like all other qualified agencies, may choose foster parents on whatever grounds it wants, race and religion included. The expectation is that the Supreme Court will reverse the Third Circuit. Hopefully, it will also overrule Smith.