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.

Supreme Court Allows NY Vaccine Mandate

 

Once again, at least three members of the Supreme Court have made clear that their notion of religious liberty takes precedence over every other right or constitutional protection. This time these champions of religion are in the minority, dissenting to the majority's refusal to block enforcement of New York's vaccine mandate which requires health care workers to be vaccinated or be fired, without an exemption for religious beliefs.

History teaches that the nation's founders, though not deeply religious, recognized the importance of safeguarding the right to practice a religion without government interference or undue favor. At bottom, the founders were committed to keeping church and state separate; it was not their intent to elevate religion above all else.

To suggest, as do the dissenters led by Justice Gorsuch (joined by Justice Alito with Justice Thomas dissenting separately), that the government's paramount duty, to protect the health and safety of the citizenry, can be overridden by strained religious objections turns on its head the language and intent of the First Amendment, that Congress shall make no law "respecting an establishment of religion".

The End of Bi-Partisanship in Foreign Policy

 Time was, as the old saying goes, politics ended at the shoreline, Americans closed ranks and united to oppose the threat of foreign aggressors and foreign policy was a bi-partisan exercise. No longer. Now, the right-wing, led by the likes of Sean Hannity, constantly belittles and berates an American president even as he squares off against and attempts to deter the growing aggressiveness of a belligerent Vladimir Putin.

While Fox talking heads profess to abhor Mr. Putin  they persistently praise him and his autocratic ways even as they support a man, Donald Trump, who would end democracy in the United States. Patriotism, as defined by the Right, has taken on a strange new meaning.

Supreme Court Argument of Mississippi Abortion Case

 Based upon the statements made and questions asked by Supreme Court justices, during oral argument of the Mississippi abortion case, the handwriting is on the wall; the court likely will overrule Roe v. Wade or, at a minimum, uphold the right of states to grossly narrow the period after pregnancy during which abortions will be permitted.

The position seemingly espoused by Justice Brett Kavanaugh, that because the issue is so significant and controversial, the court should be "scrupulously neutral" and leave the decision to the states, is morally outrageous and legally indefensible. That same illogical reasoning could have been advanced when Brown v. Board of Education was argued, leaving the choice of segregation to each state legislature.

The primary function of the Supreme Court is to protect individual liberty against incursions by politically motivated or narrow-minded state legislators. When an important constitutional right is endangered the justices are not expected to punt.

The silver lining of this likely outcome, horrendous as it may be, is a backlash at the polls, driven by women and those respecting the rule of law,  sweeping Republicans from office.

Appeals Court Blocks Biden's Vaccine Mandate

 In blocking President Biden's vaccine mandate a Fifth Circuit Court of Appeals panel, made up of three Republican-appointed judges, issued an opinion that is patently political and policy oriented. Thus, the court said that the "mere specter" of the mandate contributed to untold economic upheaval. The panel further opined that the mandate threatened our constitutional structure and the liberty of individuals to make "intensely personal decisions according to their own convictions". 

One can safely predict that the same panel would be far less sympathetic to and protective of the right of a woman to make the "intensely personal decision" of whether to bear a child. 

When, inevitably, this case reaches the Supreme Court the conservative bloc of justices will likely perpetuate that same hypocritical view of personal liberties and government intrusion. If the action being challenged accords with their policy preferences (e.g. banning abortions) it will be upheld. If it offends their politics (e.g. gun regulation, public health measures) it will be struck down. That is not how the rule of law should operate.