Personal political ideology and religious bias now loom over Supreme Court decisions. When the Framers created three co-equal branches of government in the new Constitution, they presumably gave the Supreme Court the final word on its interpretation. They expected the Court’s decisions to be apolitical, and we, the citizens, have held to that ideal. We trusted decisions would be unbiased and untainted by a Justice’s personal ideology or religious beliefs. In fact, this was largely the case; and when the Court went astray on occasion, those decisions were ultimately reversed—in some instances, many years later.
This century has shattered that expectation. For those that pay attention, it has been disheartening to watch as decisions are made that clearly signal the end of an unbiased court. Justice Samuel Alito has openly expressed his personal views on issues that have and will come before the Court. Justice Amy Coney Barrett has written publicly about her religious and conservatives beliefs. Personal political ideology and religious bias now, more than ever before, loom over Supreme Court decisions.
Voting Rights Act of 1965
The first notable and highly consequential instance occurred in June 2013, when the Supreme Court invalidated the heart of the Voting Rights Act of 1965 by a 5-to-4 vote. This allowed nine, mostly Southern states, to change their election laws without advance federal approval or “preclearance.” Chief Justice John Roberts wrote the majority opinion, which essentially, and unbelievably concluded that the Act was no longer necessary since the conditions of racial discrimination that prompted the law no longer existed! He said specifically, “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Amazing—and horrifying—to learn that someone as knowledgeable, and theoretically unbiased as Chief Justice Roberts, could conclude that racial discrimination no longer existed to the extent that special rules to prevent voter suppression were no longer needed.
The many consequences of striking down the law were immediate, and every one suppressed minority access to the ballot box. They included eliminating voters from eligible voting rolls, voter identification laws, gerrymandering of voting districts and voting procedures themselves. For example, limiting the number of polling places in minority districts became acceptable and lawful. Justice Ruth Bader Ginsburg, in dissent of that decision, wrote, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
In 2002, as a response to their concern about corruption in politics, Senators John McCain (Republican, Arizona) and Russell Feingold (Democrat, Wisconsin) sponsored, and Congress enacted, the Bipartisan Campaign Reform Act of 2002. The Act amended the Federal Election Campaign Act of 1971, regulating the financing of political campaigns. In 2010, in a case brought by Citizens United, a conservative non-profit organization, the Supreme Court ruled that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations. This ruling overturned previous Court rulings on the law’s constitutionality, effectively opening the floodgates to massive spending by corporations in campaigns.
In its infinite and somewhat twisted wisdom, the Court held that the anti-corruption interest is not sufficient to displace the “speech” in question from Citizens United. In other words, they asserted this obviously fallacious claim that independent expenditures, including those made by corporations, do not and would not give rise to corruption or the appearance of corruption. If they still believe that after four years of the Trump Presidency, I have a bridge to sell them.
Are Corporations Really People?
While I’m not an attorney, and acknowledge a paucity of knowledge about the law, I find it difficult to understand how the Court applies laws relating to individuals equally to corporations, unions and other organizations. After all, we the people are individuals, created by nature’s biological laws. Governments can’t and don’t create human beings. On the other hand, the state gives life to corporations, unions and other organizations and should be able to proscribe the laws under which they must operate. Institutions include individuals, but in themselves they are not. Perhaps that novel theory will one day gain traction.
In any event, this SCOTUS decision allowed spending of huge sums to influence the course of campaigns, usually to the detriment of individual voters of lesser means.
The most recent consequential decision relating to voter suppression occurred in 2019 when the Supreme Court ruled that they would not review the legality of partisan gerrymandering. This decision effectively handed the power to draw district lines to state legislatures. Of course the result is that the party in power draws the redistricting maps and, to the extent that party has gained control by gerrymandering, it will retain control with new maps. Although it’s a foregone conclusion that this process disenfranchises a majority of voters and undermines democratic elections, SCOTUS has simply allowed the practice to continue. The result is that the party in power has been able to control the state legislature, despite losing the state’s popular vote. Sadly, there is a remedy to this problem, but the current Court will not address it.
The resulting level of voter suppression has made it that much more difficult for minorities to access the ballot box and support the candidates of their choice. Perhaps that is why soon to be ex-President Donald Trump can’t believe he lost.
Hobby Lobby Stores
Religion came to the Court in 2014 in a case involving Hobby Lobby Stores, Inc., a national arts and crafts chain with over 500 stores and over 13,000 employees. The owners operate their business adhering to their particular Christian principles, which include the belief that use of contraception is immoral. The Affordable Care Act mandates employment-based group health care plans must provide certain types of preventative reproductive care, such as FDA-approved contraceptive methods. While there are exemptions for religious employers and non-profit religious institutions, for-profit institutions are not exempt.
Hobby argued that provision of the law violated the First Amendment by prohibiting the free exercise of religion and the Religious Freedom Restoration Act of 1993 (RFRA). Previously the Court ruled the RFRA, which protects religious freedom, unconstitutional as it relates to the states but applicable to the Federal Government. Though the RFRA related specifically to individuals, the same five Justices in the majority on the Citizens United decision, utilized a somewhat similar logic in this decision. Essentially they concluded that the RFRA applies to corporations since individuals use them to achieve desired ends.
Though there were other issues, I doubt they could have come to this decision without the underlying conclusion that corporations are equivalent to individuals.
On the Road to Ideological and Religious Bias
As we look to the Supreme Court of the near future, I expect there will be more instances of ideological and religious bias. There is much to support this conclusion based upon the actions of the Senate Majority Leader, Mitch McConnell, validated by President Trump. After the death of Justice Antonin Scalia in February 2016, McConnell prevented President Barack Obama from appointing a replacement. He cited the non-existent election year policy of allowing the incoming president to fill the vacant seat. Of course that specious policy disappeared after the death of Ruth Bader Ginsburg, allowing Trump to appoint her replacement, Amy Coney Barrett. She joins two other Trump appointees, Neil Gorsuch and Brett Kavanaugh, all of whom have voting records of strong conservative political views.
However, even before Trump’s appointments, the Court had already rendered decisions such as those cited above that liberals consider activist. Indeed, it wasn’t too long ago that conservatives complained about the activism of liberal jurists. In truth, that philosophy is an expression of an old saying of unknown origin: “it depends upon whose ox is being gored.” Metaphor aside, it’s a descriptive way of pointing out an individual’s point of view depends on the degree to which the viewer’s self-interest is involved. If your ox was doing the goring—your interests served—it was a proper judicial decision. But if your ox was being gored—your interests rejected—it was judicial activism. In other words, it was a decision based upon the personal beliefs or political interests of the individual judge.
Roe v. Wade, providing a pregnant woman the right to choose to have an abortion without excessive government restriction, is what conservatives deem liberal judicial activism. Conversely, as indicated above, liberals consider invalidating the heart of the Voting Rights Act as conservative judicial activism
Chief Justice Roberts has generally—but not always— attempted to keep politics out of the Court and played the swing vote on many decisions. With its current composition, that is no longer possible. I expect to see the Court take a sharp right turn in the areas of abortion, gun rights, marriage, religious liberty and Presidential Executive Orders.
Justice Samuel Alito and Covid Restrictions
Perhaps even more disturbing is the tendency of some Justices to speak out publicly, leaving no doubt as to their political or religious bias. Justice Samuel Alito did just that in a keynote speech before the Federalist Society last month. His covered a broad range of issues, and made clear that he believes free speech, and both individual and religious liberty are under attack. He cited Covid 19 restrictions as an example.
He said, “The pandemic has resulted in previously unimaginable restrictions on individual liberty. . . . I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker. All that I’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.”
With all due respect to Justice Alito, his indisputable statement of fact is quite disputable. Surely he is aware of the harsh restrictions and demands placed on citizenry during the four years of World War II. They included strict rationing of household staples such as meat, butter, sugar, gas and manufactured goods. The FBI censored all the news and controlled all communications in and out of the country. Millions of men were drafted into the Armed Services, causing an obvious and profound loss of liberty. Expecting people to adhere to CDC guidelines for the benefit of their fellow Americans, and not gathering in bars, restaurants and places of worship is a small a price to pay to protect each other and our overwhelmed medical institutions.
Supreme Court and Wartime Restrictions
To be clear, it is important that the Supreme Court continue to review complaints of government excess in restrictions of individual and religious liberty during this dangerous Covid-19 pandemic. But in doing so, it must not invalidate restrictions based on the recommendations of scientific or technical experts.
The Court has previously responded to restrictions on constitutional freedoms during wartime. It addressed the issue of restrictions on speech in Schenck v. United States, a case relating to the Espionage Act of 1917 enacted when the United States entered World War I. In 1919 Justice Oliver Wendell Holmes wrote the unanimous decision, concluding that “when a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” He added, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” creating the popular metaphor: you can’t shout fire in a crowded theater.
Now, we are at war against Covid 19 and regrettably, the Federal Government has not imposed the necessary restrictions that could have saved thousands, if not hundreds of thousands of lives. It is grossly inaccurate to characterize the Covid 19 restrictions imposed as never before seen restrictions as severe, extensive and prolonged. Justice Alito should know better. But even lacking a historical precedent, the personal freedom to potentially expose others to a deadly virus is not a liberty guaranteed by the First Amendment.
Justice Scalia’s Judicial Philosophy
Clearly the Supreme Court has concluded that during wartime, justifiable restrictions on constitutional freedoms can be enacted. But are there other times when the Constitution can be bypassed? To this question let me first turn back to Justice Alito’s speech before the Federalist Society.
The Justice spoke about the philosophy of his former deceased colleague, Antonin Scalia, commenting, “He is renowned for his advocacy of two theories of interpretation. Originalism, the idea that the constitution should be interpreted in accordance with its public meaning at the time of adoption, and textualism, which is essentially originalism applied to statutes.” Of course it is difficult to know exactly what the public meaning of the words of the Constitution were when it was adopted. But there are clues to what they meant to the founders, and specifically to the question posed above.
Bypassing the Constitution
It was Thomas Jefferson who first addressed that question after he signed a treaty with France to acquire the Louisiana Territory. Though he believed the Constitution did not permit the government to acquire foreign territory, he felt it necessary for the security of the United states, explaining his decision thusly: “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
This sentiment, so beautifully expressed by a Founder and third President of the United States, should serve as guidance when Justices confront the issues before the Court in the months and years ahead.