Supreme Court Will Revisit Free Speech/Gay Marriage

 Once again, the ultra-conservative members of the Supreme Court will have an opportunity to permit so-called religious liberty to override a state law prohibiting gender discrimination. A web designer in Colorado intends to announce that she will not provide her otherwise publicly available service to same sex marriages because of her religious convictions. A state law prohibits such discriminatory messaging by businesses open to the general public.  

Although the court has limited the issue to one involving free speech, it seems likely that the justices who have made clear they want to overturn existing precedent, will seize the opportunity to exalt religious beliefs over the right to be protected from discrimination.

None other than the late Justice Antonin Scalia wrote the opinion upholding a neutral state law of general applicability against a First Amendment challenge which alleged a violation of the right of free exercise of religion. Justices Alito, Thomas and Gorsuch believe that case was wrongly decided and should be reversed. What these justices seem unable to grasp is that the free exercise of religion should not be permitted to invade the statutory and constitutional rights of others. A secular society can not conform its laws to the dictates of a particular religion. That would be tantamount to living under Sharia law.

Court Ruling on Drilling

 The decision, by a Trump-appointed federal judge in Louisiana, (2/21, A11) which holds that using the “social cost of carbon “in weighing the impact of drilling for gas and oil on federal property is unconstitutional because that metric had not been authorized by Congress, is a judicial disgrace.

Agencies of the federal government are authorized to make rules. Courts have long recognized that authority and have generally deferred to the expertise of those agencies when reviewing their decisions.
The judge in this case put politics before precedent and bought into the notion that the economic benefits to states, of drilling for gas and oil on federal land, somehow outweighs the damage done by carbon use to the survivability of the planet. The court invented a nonexistent constitutional right to justify its indefensible ruling. If the Supreme Court upholds this judicial activism, it will forfeit any remaining public confidence it may still retain

The Supreme Court Is on the Wrong Path

 

Professor Adrian Vermeule, in his essay, "The Supreme Court Is on the Wrong Path" (2/2; SR2) wistfully longs for a time when the Justices of the Supreme Court interpreted the law in the service of the "common good". If ever there was such a time, which is doubtful, the Court recently, in the Professor's view, has strayed from that path.

No one should dispute Prof. Vermeule's contention, that the overarching purpose of the law is to promote the general welfare or the common good. And he is right to argue that originalist judges sacrifice that goal to a pointless obeisance to ancient views of justice in their search for contemporary meaning and often deviate from that practice when it better serves their favored result.

But Prof. Vermeule does a disservice to progressive judges when he suggests that their decision-making prompts division rather than common good. Indeed, all but one of the cases marshaled by Prof. Vermeule, as examples of bad judgment, expose the foibles of originalism, not progressivism.

While it may be possible to define common good in general terms, as does Prof. Vermeule, it is far less susceptible of a commonly accepted application. As the old saying goes, one man's meat is another man's poison. Still, it would seem the reasoning of progressive judges is far more consistent with the promotion of basic values than the stilted perspective of originalists.

The Courts and Racial Injustice

 

The latest indicator of the racially benighted status of the criminal justice system in the United States is the wildly disparate sentences handed out to persons convicted of voter fraud. Four white men who voted in the names of deceased relatives received sentences ranging from probation (three cases) to three days incarceration. These men knowingly violated the law, and one even used his crime as a pretext to further his campaign for voter suppression.

Other persons, mostly of color, were sentenced to years in jail for mistakenly believing, in good faith, that they were entitled to cast a vote. If these outrageously unwarranted prison terms are not overturned, or substantially reduced by appellate courts or the governors of the involved states, the stain of this injustice will undermine public confidence in the judiciary for years to come.

Justices Seem Skeptical of Boston's Refusal to Fly Christian Flag

 The Supreme Court seems inclined to require the City of Boston to fly a Christian flag in front of City Hall because it has allowed other groups to temporarily fly flags on the City's flagpole symbolizing their organizations. (1/19, A18) The justices appear to subscribe to the notion that this is a freedom of speech rather than an establishment of religion issue under the First Amendment.

Justice Amy Coney Barrett would allow a city to "get behind" an idea of which it approves and prohibit those it abhors; yes to the cross, no to a swastika. 

That analysis is simply wrong. Yes, a government should be required to allow equally the use of its facilities to express a variety of ideas, even those that are controversial, and be permitted to bar such use by patently undemocratic hate groups. That comes within the free speech provisions of the First Amendment.

But, when it comes to religious symbolism, the Establishment Clause of the First Amendment is implicated. A government is not permitted to take any action which smacks of endorsing, or "getting behind" a particular or, indeed, any religion. That's what separation of Church and State was intended to prevent.

Biden-Cheney in 2024?

 

Thomas Friedman is right to warn that America is facing an existential moment and that drastic measures may be required to save our democratic form of government. He suggests that drawing five to ten percent of Republican voters away from Trump would assure his defeat and keep democracy safe.

However, his suggestion, that America temporarily adopt the current Israeli model of a cross-ticket, fusion government, such as a Biden- Cheney slate in 2024, misses the mark. That tactic is neither necessary nor doable here. Israel was able to create a unity government because the leaders of the opposing factions agreed to switch roles after two years, each serving for a time as Prime Minister. That would not be constitutionally permissible in the United States.

There is already a growing minority of Republicans who put country above party and are ready to support a Democratic candidate. While these "never Trumpers" like those who formed the Lincoln Project should be courted and commended, Liz Cheney backers are not going to vote for Trump regardless of whether she is a nominee. Besides, there already exists a majority of Democratic voters. The imperative is to get them out to vote. Pairing the Democratic nominee with a conservative Republican would likely depress rather than galvanize Democratic turnout.

Do We Have the Supreme Court We Deserve

 

The column by Linda Greenhouse makes the reader focus on the changing approach of the justices to the role of the court. Ms. Greenhouse makes clear that unlike its predecessors, the current majority exhibits little regard for precedent and an increased willingness to do the political bidding of its appointor. A court of last resort and national scope, as is the Supreme Court, must achieve a delicate balance between respect for settled law and the flexibility to adapt to a changing world.

Rather than rely upon the broadening of wisdom and understanding, hoped for qualities as justices mature, a surer way would be to make appointments for a fixed term, say fifteen years, on a staggered basis, with a turnover of three justices every five years.

While such a mechanism may not insure respect for precedent ( for that we would have to rely upon a judge’s ingrained training and the presence of the longer serving justices ) but it would increase the likelihood that a fresh approach, one more in sync with the popular will, would be brought to the decision-making process.