by Bob Barr
As the Supreme Court nears the end of its 2019-2020 term, it is becoming increasingly questionable whether the “conservative majority” that Trump appointees Gorsuch and Kavanaugh were supposed to have ushered in actually exists.
Ever since his legally convoluted majority opinion upholding Obamacare against serious constitutional challenge eight years ago, Chief Justice John Roberts has provided conservatives plenty of reason to suspect he is not the “conservative” jurist in whom many had pinned hopes. However, a handful of decisions by the Court in the past two months have raised new red flags that the problems with the “conservative” majority run deeper than a single jurist.
An additional concern is that recent public threats by leading Democrat senators directed against the Court’s Republican-appointed justices might well have intimidated some of them into tempering their views.
The refusal in late April by a majority of the nine justices to decide a Second Amendment case out of New York City that was ripe for such action was the first of these red flags. It came as no surprise that Roberts joined the majority in refusing to decide the case. What was surprising, however, is that Brett Kavanaugh, the most recent Associate Justice, joined Roberts and the four “liberal” justices in punting the New York gun case. It was Kavanaugh who was the victim of an especially vicious confirmation battle in 2018, and who was specifically and publicly threatened by Senate Minority Leader Chuck Schumer (D-NY) in March.
Just weeks later, the Court declined to accept another case that was ripe for decision. On June15, the Court refused to hear a challenge by the Trump administration to a California “sanctuary” law that prohibited state law enforcement officials from notifying federal immigration agents when immigrants convicted of crimes are to be released.
June 15 was the same day the Court issued what could best be described as a classic, activist liberal decision, reflecting the notion that the Constitution is a “living document,” to be interpreted by judges according to their contemporary views rather than what they might consider the “outdated” views of its original drafters. Leading the charge for this liberal decision, and actually writing for the majority (which, predictably, included Roberts), was none other than Trump’s first pick for the Court – Neil Gorsuch.
The decision, which could as easily have been written by former ultra-liberal Chief Justice Earl Warren as by Gorsuch, held that the 1964 Civil Rights Act protected both “sexual orientation” and “transgender status” against workplace discrimination, even though neither term appears anywhere in the law.
Three days later came the final gauntlet thrown at the feet of the Republican president by the “conservative” Chief Justice. Roberts, in a hyper-technical majority opinion joined by the four liberal associate justices, ruled that the Trump administration could not shut down the Deferred Action for Childhood Arrivals (DACA) program implemented by the Obama administration without statutory authority, even though the current administration had the lawful power to do so.
In another of his signature convoluted opinions, Roberts held that the reason DACA could not be closed down was because the Department of Homeland Security did not fully “appreciate the scope of its decision” to terminate the program. The gobbledygook in the opinion cannot disguise the fact that Roberts was desperate to find some reason not to terminate a politically popular program.
Still to be decided before the current term of court ends later this month is the Louisiana abortion case that precipitated Schumer’s public threats against Gorsuch and Kavanaugh three months ago. The law at issue poses no burden whatsoever on women seeking abortions in Louisiana. It merely requires that doctors performing such procedures have admitting privileges at a nearby hospital, which is the very same requirement applicable to physicians providing other medical services.
If one or more of the Republican-appointed justices side with the four certain liberal justices in finding Louisiana’s law unconstitutional, it will signal clearly that the threats by Democrat senators, buttressed perhaps by recent polls indicating likely Democrat gains in November, have in fact intimidated at least some conservative justices into moderating their constitutional principles.
This happened once before when President Franklin D. Roosevelt openly threatened action against the High Court for hesitating to uphold his New Deal programs. The Court succumbed then, with disastrous constitutional consequences. Let us pray it does not happen again.