June 18, 2021

The Trouble With Narrow SCOTUS Rulings

From ObamaCare to religious liberty, some justices can’t discern what constitutes judicial activism.

The Supreme Court has sometimes issued rulings so sweeping and wrong that the nine (or often only five) robed despots have done nigh irreparable damage to our Constitution and Republic. Roe v. Wade comes to mind for its invention of make-believe “rights” and its federalism-crushing precedent. Yet in other cases, the Court’s mistake has been in not going far enough to defend basic rights guaranteed in the Constitution.

Let’s start with ObamaCare, which, in a 7-2 ruling issued Thursday, SCOTUS failed for a third time to strike down. To be clear right up front, the Court’s real failure came in 2012, when Chief Justice John Roberts switched sides and inexplicably rewrote the law so as to uphold it. In that egregious ruling, he unilaterally declared the individual mandate penalty a tax so that he could say Congress had the authority to create the law under its power to tax. This was despite the fact that Democrats had gone out of their way in crafting the law and then defending it before the Court to say that the penalty was not a tax. Neither were the leftist justices making the tax argument.

Roberts sacrificed Rule of Law on the altar of politics in order to not be seen as discrediting his own institution. Ironically, the result of his effort was a precedent that did damage to the Court.

Not only that, but he ensured future litigation would continue because he left standing a law that Congress clearly did not have the constitutional authority to enact. That next litigation came when Republicans used their 2017 tax reform to zero out the penalty tax for anyone who hadn’t purchased health insurance.

Texas and 17 other states then sued to challenge the law on the grounds Roberts had created. If there’s no tax, they said, the mandate cannot stand. And without the mandate, the law itself must fall. Despite their victories in lower courts, it was a long shot, and sure enough, it failed — though not on the merits, which the majority didn’t even really address. Instead, the seven justices ruled that the plaintiffs lacked standing under Article III.

After joining the majority, Justice Amy Coney Barrett’s picture is plastered across the Internet today primarily because of the Democrats’ hysterical warnings last fall. “The American people should make no mistake,” cried then-Senate Minority Leader Chuck Schumer, “a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.” So much for that. Moreover, Justices Brett Kavanaugh and Clarence Thomas joined the majority.

The bottom line is what we said from the beginning: ObamaCare, as with every other massive and unconstitutional entitlement created by Congress, is here to stay, unless Congress says otherwise.

The second ruling to consider is the Court’s 9-0 ruling in favor of Catholic Social Services, a Philadelphia foster agency that had sued to stop from being forced by the city to place adoptive children with same-sex couples, contrary to biblical and church teaching.

First, note that the unanimous ruling is one of several this term, and that’s significant given the Democrats’ push to pack the Court. The justices seem to be sending a message: Don’t do it.

Second, the ruling is a clear win for religious liberty. “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Chief Justice Roberts wrote in his majority opinion. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

Third, however, the ruling does not provide protection for religious liberty beyond the narrow instance at hand. In fact, the ACLU celebrated the ruling for not “establish[ing] a constitutional right to opt out of [non-discrimination] laws when discrimination is motivated by religious beliefs.” That’s a tendentious framing, of course, given that Rainbow Mafia thugs are the aggressors in these cases.

Yes, the ruling heeds the limits of judicial authority, but it fails to provide true and needed protections for the religious liberty of all Americans. Yes, it’s the latest in a series of rulings favorable to religious liberty, but it also highlights the shortcomings of these narrow rulings. It’s what the Wall Street Journal editors call Roberts’s “mode of seeking consensus by watering down principle.”

The primary problem is that the Court again shied away from overturning the Court’s 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith, which applies a standard to claims of religious liberty that has turned out to be too stringent. That’s especially true when leftists are demanding total fealty to their intolerant dogma in every facet of life.

“Dodging the question,” said Justice Neil Gorsuch, “guarantees it will recur tomorrow.”

Tomorrow actually came this past Tuesday in the case of Colorado baker Jack Phillips. In 2018, the Supreme Court ruled in his favor, saying that he did not have to bake a cake for a same-sex wedding. Yet because the Smith precedent still stood, the Court tailored its ruling narrowly, and the result has been continued harassment of Phillips by the Rainbow Mafia.

On Tuesday, Phillips lost a similar case in Colorado, when a Denver district judge ruled that he violated the rights of Autumn Scardina, an activist attorney who demanded a cake for “her” gender “transition.” Phillips will of course appeal, but all of this could have been avoided if the Supreme Court had only taken one of the many opportunities it’s had to definitively protect religious liberty. Instead, as Justice Samuel Alito put it, “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

The overarching theme here is that some of the justices can’t seem to tell the difference between judicial activism — legislating from the bench — and defending core constitutional rights. Unless and until the justices develop the backbone necessary to stop doing the former while upholding the latter, American Patriots and particularly Christians will be forced to continue fighting what should be unnecessary legal battles to defend the Constitution from encroaching government programs and diktats, as well as basic Liberty and individual rights against the tyrannical persecution of the “tolerant” Left.

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