Not to get to all “back in my day,” but when I went to law school, the law itself was fairly predictable. These days, under this Supreme Court, the “law” is no longer predictable, but the politics of it certainly are. Donald Trump not only managed to delegitimize the Presidency but now he’s done so with the Supreme Court, which has now become a political institution. That might be acceptable if the Justices were elected instead of serving lifetime appointments, but that is not the case.
Any law student with a Constitutional Law course under them will tell you that the Dobbs decision was a bad one that completely ignored 50 years of precedent. The precedent had been set in 1973’s Roe vs. Wade, and while the Court has spent the last five decades chipping away at it, the Justices were careful never to overturn it because when the Supreme Court rules on something, lawyers are supposed to be able to rely on those rulings. This Court basically said, “We’re better than the last 50 years of Justices. We are right, and they are wrong,” which is not only messed-up but arrogant. The real absurdity of the decision is that it was based, in part, on the fact that there was no longstanding tradition of legalized abortion in this country, which itself ignores the last 50 years of legalized abortion. That was a purely political play by a bunch of justices who had very clearly stated in their confirmation hearings that Roe was settled law. Because it was!
The good news is: There’s a solution. Congress can codify Roe. The bad news is: The Democrats need to hang on to the House and add two more Senators in the fall for that to happen. The only way that happens is if we vote, and asking Democrats to vote for the same people who stood by and allowed this to happen is a tough ask. We’ve lost faith in our elected leaders, and yet the only way around this is to vote more of them into office so that they can correct the wrong of another branch of the government in which we’ve lost faith. Short of overthrowing the government and rewriting the Constitution, that’s the only option we have.
Let’s turn, however, to two other cases that have made waves this term: Carson vs. Makin and Kennedy vs. Bremerton Schools. In the first, the Supreme Court ruled that, if the state of Maine was going to provide public funds to students to attend private schools, it could not exclude religious schools. Given the conservative supermajority on the Court, this was a fairly predictable decision. The bad news is, states that decide to offer money to students to attend private schools must allow them to use that money to attend any school they want.
The good news, at least in Maine, is that even before the decision was handed down, we’d enacted a workaround: We won’t provide public funds to any private school — religious or otherwise — that discriminates based on gender identity and sexual orientation, so now we’re not excluding “religious” schools; we’re excluding schools that discriminate. Any blue state can do this, too, while in red states, if they decide to provide public funds to private religious schools, you best believe they’re going to have to give money to Jewish, Muslim, or even Scientology schools, as well. Unfortunately, I suspect that in places like the Deep South, this will open the door to more religious-based schools, and given the numbers, most of them will be Christian in nature.
Kennedy vs. Bremerton, meanwhile, is a classic First Amendment school prayer case pitting the establishment clause against the free exercise clause. Nowhere in the Constitution does it actually say “separation of church and state.” It’s all built into one phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In the 1962 case of Engel v. Vitale, the Supreme Court ruled that school-sponsored prayer in public schools violated the establishment clause of the First Amendment. There’s a very simple reason for that: If there is Christian prayer at a public school that you have no choice but to go to, and if you are not Christian, then the school is basically forcing religion upon you, which violates the First Amendment. You can be religious, but you cannot force your religion upon someone else.
The Court has chipped away at that for the last 60 years, and it basically turns on whether the activity a student is involved in is “voluntary.” Going to school is not “voluntary,” so prayer is not allowed in school. However, attending an after-school class with teachers to discuss one’s faith is voluntary, so that is allowed.
To get to their decision in Kennedy, the Court willfully misconstrued the facts. They said that the coach basically decided after games to walk out to the 50-yard line and quietly pray to himself as a private citizen. If those were the actual facts, sure: The Constitution does not prohibit a private individual from praying after a game.
Those weren’t the facts in this case. Kennedy did not go to the 50-yard line after the game to quietly pray by himself. Not only did the majority of his players regularly join him but Kennedy also regularly asked the other team if they wanted to join him, too, and he gave post-game speeches of a deeply religious nature. Does this look like a private citizen quietly going out to the 50-yard line to pray by himself?
This is exactly why the Supreme Court has lost all legitimacy. In one case, Dobbs, they completely ignored 50 years of precedent to rule the way they wanted politically. In another case, Bremerton, they completely ignored the actual facts of the case to rule the way they wanted politically. Anyone with eyes can look at the above photo and see that this coach is leading school prayer. The Supreme Court knows that school-sponsored prayer is not allowed, and so they ignored all the evidence in front of them to determine that this was merely a private individual exercising his freedom of religion. It’s bullshit.
Is it realistic to change the composition of the Court? To add Justices? To set term limits? I don’t know, but there is clearly a basis for it. The Court is obviously engaged in political activism, and one needs look no further than Dobbs and Bremerton to determine that. This is not a case of sour grapes. The Supreme Court is no longer doing its job, which is to apply the existing law fairly and predictably. It’s lost all legitimacy, and the only way to restore faith in it would be to completely remake it.
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