Unveiling the Supreme Court

 

For most of us, the Supreme Court is a holy mystery, issuing decisions from a mist of law and precedent. Yet, in recent years, the Supreme Court has become a political prize, bestowing benefits on one side much more than on the other. So I decided to take a closer look at a few of their recent decisions, to try to lift the mist a bit. Here goes...

 

A. The Wedding Cake vs the Gay Couple ( MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL., decided 4 June 18)

 

Why this case? Because the Court’s decision favored religious rights over civil rights.

 

In 2012, Jack Phillips, the owner of Masterpiece Cakeshop, refused to create a wedding cake for the couple because of his religious objection to same-sex marriage. Emphasis on create: he offered to sell them a prepared wedding cake, rather than design a unique cake for them. Phillips claimed that creating a cake would violate his right to free speech and his right to free exercise of religion.

 

The Colorado Anti-Discrimination Act prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” The Colorado Civil Rights Division found probable cause for a violation. The Civil Rights Commission referred the case to an Administrative Law Judge, who ruled for the couple. The Commission and the Colorado Court of Appeals upheld this ruling. So, three levels of review agreed.

 

The Supreme Court in upholding Phillips’ First Amendment claim, stated that he was entitled to a neutral and respectful consideration of his position. The Court noted that some of the commissioners expressed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of

his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.

 

The first view seems to reflect Colorado law, rather than hostility. The second view is accusatory and hostile. The fact that no Commissioners objected to the comment, however, does not mean that they agreed with it. Silence does not mean assent. Indeed, the Court stated that the Colorado laws and regulations could not be hostile to a religious viewpoint. But, the state’s laws and regulations were not at issue in the case, only the statements of some commissioners in a public hearing. By declaring that the Commission as a whole was hostile to religion, the Supreme Court stretched the facts.

The Court’s decision was 7-2. Justice Kennedy wrote the majority opinion.

 

Justice Ginsburg’s dissent observed that the comments of one or two commissioners alone of the four levels of decision-making entities did not justify reversing the state’s decisions. She also noted that the couple had not requested any message on the cake, making the First Amendment argument moot. The Court seized upon one or two statements to invalidate the entire process. The Court was wrong. I am with Ginsburg.

 

B. Is a cross a religious symbol? (American Legion, et al., v. American Humanist Association, et. al., decided 20 June 2019)

 

Why this case? Because the Court decided that a giant cross on public lands, maintained with public funds, was not a religious symbol.

 

After World War I, residents of Prince George’s County, Maryland, decided that a memorial for the fallen soldiers should be in the form of a giant cross, 32 feet tall. The local American Legion took over construction, completing the cross in 1925. It now is known as the Bladensburg cross. The Maryland National Park and Memorial Commission took over the cross and the land in 1961, and has maintained the site with public funds. The American Humanist Association filed suit in 2014, alleging that the use of public land and public funds violated the First Amendment’s Establishment clause.

 

The Court held (7-2) that there was no violation of the Establishment clause, Justice Alito delivering the opinion. The Court stated that maintaining established monuments was quite different from building new ones. Four considerations applied. First, identifying their original meanings and purposes may be difficult. Second, the monument’s original purpose may change over time, in favor of historical significance or its place in a common cultural heritage. Third, the message of a monument may evolve. Fourth, the passage of time may create historical significance.

 

Justice Ginsburg, in her dissent, presented extensive evidence demonstrating that at the time, it was clear to all involved that the cross was a specifically Christian symbol. She easily identified the original meanings and purpose of the cross, in contradiction to the majority. She also determined that only about 1% of World War I memorials incorporated free-standing crosses, characterizing these as “outliers.” She determined that there is no evidence that the cross was a secular object. In other words, she did her homework. As for possible remedies, Justice Ginsburg noted that the Bladensburg cross might be relocated, or ownership transferred to private hands and private land, instead of being torn down.

 

The Justice found that the Establishment Clause had been violated. My guess is that the majority struggled to avoid offending the public. Nevertheless, I agree with Ginsburg’s analysis.

 

C. The Supreme Court and racially discriminatory congressional districts in Texas (ABBOTT, GOVERNOR OF TEXAS, ET AL. v. PEREZ, ET AL., decided 25 June 2018)

 

Why this case? Because the Court went to great lengths to support racially discriminatory congressional redistricting.

 

The Fourteenth Amendment to the Constitution forbids racial gerrymandering. The Voting Rights Act of 1965 requires the use of race in determining whether minorities have the opportunity to choose a representative they favor. The state enacted redistricting maps in 2011, challenged, but never used, and enacted new maps in 2013, challenged again. The Texas court found that a number of districts failed to cure the taint of racial discrimination found in the 2011 map, and that three districts were discriminatory under the Voting Rights Act.

 

The Court decided, 5-4, that Texas’ redistricting maps were not racially discriminatory. Justice Alito wrote the majority opinion.

 

The first issue in this case was the Court’s jurisdiction. First, the Court has jurisdiction if the district court issued an injunction. While the district court did not call its order an injunction, the Court found that the order had the practical effect of one. In addition, the Court found that the short timetable called for essentially made the order an injunction.

 

Second, the Court found that it was improper to require the State to prove it had removed the taint on its redistricting; the burden of proof was on the plaintiffs. It also found that it was not clear that the State had acted in bad faith.

 

Justice Sotomayor filed the dissent. She charged that the majority had ignored both precedent and the facts. The precedents showed that the Court could take an appeal of an injunction, but only on narrow grounds. The district court had not issued an injunction, and had asked either the legislature (first) or the district court (second) to consider remedial plans. The use of the existing maps was not enjoined. For Justice Sotomayor, this ended the question of Supreme Court jurisdiction: it had none. The dissent also criticized the Court’s abandoning of precedent on the strict construction of the jurisdictional scope. She noted that the State had not made a case of “serious, perhaps irreparable consequence” for Court intervention.

 

Beyond the arguments over jurisdiction, however, the dissent pointed out that the majority ignored substantial evidence of the State’s discriminatory intent. The district court had conducted a painstaking analysis of the history of the State’s actions, before coming to its conclusions. The majority had not reviewed the district court’s findings for clear factual error, which was its duty.

 

Justice Sotomayor concludes: ”The Court today does great damage to that right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters to exercise that most precious right that is ‘preservative of all rights.’ “

 

To summarize, the dissent accuses the Court of inventing a reason to intervene in this case, and of ignoring the facts in the case, in order to reach its conclusion. Judicial activism by the conservative majority, allowing racial gerrymandering to continue in Texas.

 

D. Can a public employee refuse to pay union dues? (JANUS v AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL., decided 27 June 2018)

 

Why this case? Because the Court abandoned over 40 years of precedent to weaken public employee unions.

 

Under Illinois law, non-union members are required to pay an agency fee (a percentage of full union dues) to support the union’s collective bargaining activities, but not its political or ideological activities. Mark Janus, a state employee, filed suit challenging the constitutionality of its agency fees. The Court in a 5-4 decision agreed with Janus.

 

The controlling precedent was Abood, but the Court ruled not only that it was in error, but also that respect for precedent was not good enough to support it. The interest in preserving labor peace through exclusive representation by one union was dismissed, in favor of alternative means to preserve the peace. The Court also rejected the argument in Abood that eliminating the forced agency fees would lead to “free riders” weakening the union’s ability to conduct its business. It labeled Abood an outlier in First Amendment law. Justice Alito delivered the Court’s opinion.

 

Justice Kagan filed the dissenting opinion. She asserted that the majority decision was the culmination of a six year campaign to reverse Abood. She predicted that public employee unions would lose a stable financial base, and that state and local governments would have to devise alternative means to manage their work forces. She argued that there were no special justifications for the reversal, saying that it had been proved workable. The majority had simply dismissed the “free rider” argument for agency fees. Most importantly, the majority had abandoned the long-standing respect for precedent, without substantial justification. It merely asserted its position.

 

What Justice Kagan’s dissent exposes is an activist conservative court more interested in reaching its preferred decision, than in preserving the traditions of the law. There could be more examples (See below). We can expect this Court to continue dismantling many precedents and principles as it pursues the conservative agenda. The Supreme Court now is more political than neutral, more partisan than fair, more activist than centrist.

 

We must fear for our future. The Supreme Court should be a major issue in the next election.

 

****************************************************************************************************

 

Further examples:

 

E. States may remove ineligible voters from registration lists for failure to vote, despite this being an apparent violation of the Voting Rights Act of 1993.

 

(HUSTED, OHIO SECRETARY OF STATE v. A PHILLIP RANDOLPH INSTITUTE, ET AL., decided 11 June 2018) The decision was 5-4, Justice Alito delivering the majority decision. Justice Breyer wrote the dissenting opinion, with concurrence of the other three dissenters, and Justice Sotomayor writing an individual dissenting opinion.

 

F. The states may not require licensed anti-abortion clinics to give their clients information about available state services, including abortion services. The states also may not require unlicensed clinics to inform their clients that they are unlicensed.

 

(NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL., decided 26 June 2018) The decision was 5-4, Justice Thomas delivering the majority decision. Justice Breyer wrote the dissenting opinion, concurred in by the other three dissenters.

 

G. Partisan gerrymandering by the states is not reviewable by the federal courts.

 

(RUCHO, ET AL., v. COMMON CAUSE, ET AL., decided 27 June 2019. The decision was 5-4, Justice Roberts delivering the majority opinion. Justice Kagan wrote the dissenting opinion, concurred in by the other three dissenters.