"Politicians in robes."

Today’s Edition (Vol. 2, No. 60) “Politicians in robes.”

          The U.S. Supreme Court rose to the top of the news over the weekend with three developments—each of which raises concerns about how much damage the current conservative majority on the Court will inflict in the name of its religious agenda. In the first, the Court granted an emergency application to enjoin a California public-health regulation designed to slow the spread of the coronavirus. The regulation limited “gatherings in private homes to no more than three households (whether indoor or outdoor) and attendees are required to wear masks and physically distance from one another.” See California’s “Opposition to Emergency Application, at p. 6. The regulation did not distinguish between secular or religious gatherings held at a home. Instead, all in-home gatherings were treated equally. Nonetheless, the conservative majority ruled that California’s regulation impermissibly burdened the free exercise of religion because California allowed other venues—such as nail salons, retail stores, and sporting venues—to “bring together more than three households at a time.” As Justice Sotomayor wrote in her dissent, the majority was comparing “apples to watermelons.” See, generally, Washington Post, Supreme Court strikes down another pandemic restriction on religious services.

          The majority’s opinion is intellectually dishonest. It compares unregulated in-home religious services to activities in business settings without recognizing that California has imposed stringent regulations on those businesses as a condition of operation. Just ask restaurant owners in California, who are chafing under such regulations. Depending on the infection threat level, indoor dining is either prohibited entirely or limited to 25% - 50% of capacity. Restaurants must screen workers for Covid symptoms at the beginning of every shift, require workers to wear facemasks and gloves, and suspend use of shared items like utensils, condiments, linens, breadbaskets, and much more. California has implemented a comprehensive plan to safely re-open the world’s fifth largest economy—a mammoth and complicated undertaking that requires expertise and careful balancing of public health and private interests. But the conservative majority has decided that it can micromanage California’s efforts better than public health officials whose duty it is to protect all Californians, without regard to religion, race, or politics.

          It is clear that the conservative majority is on course to elevate claims of religious freedom to override all other individual rights and societal wellbeing. The conservative majority will slowly enlarge areas of permissible discrimination against disfavored groups in the name of religious freedom. Arkansas just passed a law that permits physicians to refuse to treat LGBTQ people if the physician objects on religious grounds. See PBS Newshour, “Arkansas governor signs bill allowing medical workers to refuse treatment to LGBTQ people.” (The author of the bill “vetted” it with the “Alliance Defending Freedom, an anti-LGBTQ hate group as designated by the Southern Poverty Law Center.”) The Arkansas law will undoubtedly make its way to the Supreme Court, where it is likely to receive a warm welcome from a conservative majority that has demonstrated its willingness to engage in sophistry to advance its religiously motivated agenda. On to our second story about the Court.

          If only there was a way to break the death-grip of the conservative majority on the Court! Oh, wait! Joe Biden promised to “study” the question of reforming (read: enlarging) the Court. Last week, Biden announced a commission to study Supreme Court reform. See The White House, “President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States.” The Commission is composed of legal luminaries of unimpeachable credentials (for the most part). We should hope that the members will approach their task with intellectual honesty and genuine concern for the future legitimacy of the Court. Such luminary-packed commissions tend to be institutionalist. Though I haven’t studied the background of the members, I suspect that a high percentage of them served as clerks on the Supreme Court—and therefore have feelings of loyalty and fondness for the way things were done “in their day.”

          The makeup of the commission is already drawing criticism. See Ian Millhiser in Vox, “Biden’s new Supreme Court commission is a win for the Federalist Society.” As Millhiser notes, the Federalist Society praised the makeup of the commission, which includes former Judge Thomas Griffith, who attempted to dismantle Obamacare when he was on the bench. The commission is notable for its omission of academics who have led the charge for enlarging and reforming the Court.

          Let’s be honest and recognize the commission for what it is: An effort to temporize until a consensus develops in the Senate that reform is the only way to protect individual liberties from the religious tyranny of the right. The truth is that Democrats don’t have the votes to expand the Court, so normalizing the notion of expanding the Court by appointing a commission seems as good a strategy as any in the short term. I wish it were otherwise. Democrats have been played for fools by Republicans in appointing justices. And at least one current liberal Supreme Court Justice is falling for the false narrative that reforming the Court will undermine its legitimacy—which brings us to our third story.

          Justice Stephen Breyer gave a speech last week where he wagged his judicial finger at proponents of Court reform. See Scotus Blog, “In Harvard speech, Breyer speaks out against “court packing”.” Breyer, who was appointed by President Clinton, warned against politically motivated court reform, saying

          If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a check on other branches.

          Breyer conveniently ignored the fact that the Court currently suffers from a crisis of public confidence precisely because the public “sees judges as politicians in robes.” As Mehdi Hasan noted in an op-ed on MSNBC’s website, it is far too late for Breyer to be concerned about the politicization of the Court:

          [W]here on Earth has [Breyer] been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping? Sen. Sheldon Whitehouse, D-R.I., a member of the Judiciary Committee, has tallied 80 “5-4 partisan decisions by Republican Justices giving victories to big Republican donor interests” in the 15 years since Chief Justice John Roberts was sworn in in 2005. Does Breyer really believe these rulings — in which he dissented! — were all guided by ‘legal principle, not politics’?

See Mehdi Hasan, “Justice Stephen Breyer should retire from the Supreme Court.”

          Breyer warned against the “structural alteration” of the Court without acknowledging that the current composition of the Court is the result of Republican structural alteration from 2016 through 2020. Republicans limited the Court size to 8 justices during President Obama’s last year in office, and then increased it to 9 when Trump was elected. Moreover, Republicans applied a rule that no justice could be appointed in the one-year period before an election, but then appointed Justice Barrett ten days before Trump’s loss in the 2020 election. In addition, as noted by Hasan, the Constitution does not prescribe a size for the Court, so changing the number of justices does not qualify as a “structural alteration.”

          Pretending that the Court does not reflect the political philosophy of the president making the appointment is fantasy. Why does Justice Breyer believe that Justice Kennedy resigned during Trump’s presidency? Breyer should follow Kennedy’s lead and retire now, allowing President Biden to make at least one appointment to the Supreme Court.

          Finally, I should note that the Court rejected arguments by California that the challenge to its regulation was moot because it had been rescinded. Despite the absence of a “case or controversy,” the Court nonetheless issued an injunction against a rule that is set to expire on April 15th (six days after the Court’s ruling on April 10th). Compare the treatment that the conservative majority gave to this controversy to several lawsuits against Trump. There, the Court allowed those lawsuits to languish until Trump was no longer in office, then declared them to be “moot” and ordered dismissal. See, e.g., Yahoo News, “Supreme Court dismisses as moot case questioning Donald Trump's blocking of critics on Twitter.”

          Got that? The Court moves with lightning speed to issue an injunction that will be relevant for only six days in California but sat on a claim against Trump until he was out of office so it could dismiss the claim as moot (after the lower courts had ruled against Trump). It is difficult to see those two outcomes as anything other than a mobilized conservative majority distorting procedure to achieve political outcomes. As Justice Breyer said, “If the public sees judges as politicians in robes, its confidence in the courts . . . can only diminish.” That’s how I see the Court from where I sit. I believe we should accept that reality and move quickly to dilute the power of the conservative majority.

Concluding Thoughts.

Let’s end on a positive note. Over the weekend, more than 100 corporate leaders held a call to discuss efforts to fight voter suppression legislation. See The Washington Post, “More than 100 corporate executives hold call to discuss halting donations and investments to fight controversial voting bills.” Will this call lead to definitive action? Maybe not, but the genie is out of the bottle and the GOP has no one to blame but itself. Moving the MLB All-Star Game was a start; if there are several more concrete actions—such as a decision not to open a manufacturing facility in Georgia or Texas—politicians will face real consequences for their suppression tactics. That hasn’t happened before. It happened now because of consumer pressure. Keep up the pressure. It is working!

          Talk to you tomorrow!