Partisan narrative persists and threatens future of Supreme Court
For a hopelessly divided ideological court, the Supreme Court seems to say a lot with one voice about the law and its own institution
The Supreme Court ultimately issued two of the five “blockbuster” opinions of that term with rulings on the Affordable Care and Religious Rights Act. The most striking aspect of the decisions was the absence of ideological divisions. Indeed, the matter of religious rights is another unanimous decision from a tribunal that President Joe Biden said “out of whackAnd the Democratic leaders declared themselves hopelessly divided along ideological lines.
This week represented the final collapse of the false narrative that has been repeated over and over again as a mantra in Congress and in the media.
When it comes to health care, the ACA has long been in the position of Mark Twain who insisted that his death had been “greatly exaggerated”. During Amy Coney Barrett’s circus-like confirmation hearing, Democratic senators surrounded the room with giant photos of people who would lose health care due to her appointment. Various senators and legal analysts have insisted that Barrett was clearly chosen to kill the ACA. Democratic senators pummeled Barrett with stories of people who could die as a result of her appointment and described her as a cowardly, heartless ideologue chosen to take healthcare away from millions of people.
It was not a question of whether but when, according to members like Senator Mazie K. Hirono (D., HI) who stated that she would vote against Barrett because “she will vote to repeal the Affordable Care Act”.
False narratives defame Barrett
At the time, I objected that the account was very out of place and that the majority of judges were unlikely to use the case to invalidate the act. On the contrary, it was very likely that the act was decided for technical reasons, either for standing or for severability. I also noted that, if applicable, I would expect Barrett speaks out against annul the act in this case. She did and joined the 7-2 decision.
It was never a plausible narrative, but it didn’t matter to Democratic members either. They demanded that Barrett assure them that she would vote for the ACA in the case – a dangerous and crude request for a guarantee on a pending case as a condition of confirmation. Although she treats her like a virtual forensic serial killer, no one will apologize or even acknowledge the unfair treatment during the confirmation hearing. It was after all politics in a time of rage.
Arguably the most important of the ‘big money’ cases was Fulton v. Philadelphia on whether a Catholic adoption agency could be forced to help LGBT couples when such adoptions contradict religious beliefs. The Court issued a Decision 9-0 in favor of Catholic charity and held that Philadelphia violated the Constitution’s free exercise clause by requiring adherence to the city’s non-discrimination policy.
Religious freedom confirmed by justice
Writing for the court, Chief Justice John Roberts said that “Philadelphia’s refusal to contract with CSS for the provision of foster care services unless it agrees to certify couples from same sex as foster parents… violates the First Amendment ”.
This is a major victory for religious rights and the court spoke with one voice in overturning lower courts with a strong majority opinion and concurring opinions. It also strengthens other pending cases, including another case involving the Pastry masterpiece in Colorado to bake cakes celebrating LGBT events.
After winning a close decision in front of the Supreme Court in 2018, Jack Phillips was pursued by critics to bake additional cakes and create the basis for another challenge. They may now regret that move if Phillips builds on the previous narrow ruling to get another major ruling not just on religious freedom but free speech.
Military project reserved for men: A vestige of anti-woman bias. The Supreme Court should overturn it
The Court continues to frustrate critics who insist it is dysfunctional, divided and must be radically changed to wrap the court with a liberal majority to in fact creation of a new tribunal for constitutional decisions like the Fulton case.
For example,Professor Kent Greenfieldargued that “the Supreme Court has become too partisan and unbalanced to entrust it with the task of deciding the most important issues of our time.”
However, the Court itself does not cooperate with this inconvenient line of unanimous decisions . The point is that most of the opinions of the Court are not ideologically divided. Indeed, Judge Stephen Breyer recently opposedto those who characterize the Court as “conservative” and oppose those who call for Congress to wrap the Court up for an immediate Liberal majority.
Sonia Suter: Supreme Court Should Respect Roe’s Viability Line For Abortion
The Court itself does not engage in such public campaigns. He speaks through his opinions and the message could not be clearer. To a hopelessly divided ideological court, it seems to say a lot with one voice not just about the law but about its own institution. In the end, it is unlikely to matter. The total collapse of the narrative means nothing if it goes unrecognized in the media. Judges do not run billboards on the streets of Washington like Demand Justice. They will continue to be denounced as totally “out of whack” because politics demand it.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and a member of the USA TODAY Contributors Council. Follow him on Twitter: @JonathanTurley