Do We Have a Constitutional-Conservative Supreme Court Majority — or Pols in Robes?

I n a glum column last weekend, I related that Trump-appointed justices Amy Coney Barrett and Brett Kavanaugh had joined with the Supreme Court’s three-justice progressive bloc and its Machiavellian chief justice to deny a religious-liberty claim against an irrationally discriminatory state mandate — specifically, a plea to be exempted from Maine’s COVID-vaccine requirement, in the same way the state exempts those who claim to fear vaccination for medical reasons.

This was crushing news for constitutional conservatives who had fought so hard for the confirmations of Barrett and Kavanaugh against an unhinged progressive onslaught.

The result would have been easier to take had the justices tried, however unconvincingly, to argue that the claimants had a weak case on the merits. To the contrary, Justices Barrett and Kavanaugh did not contest the conclusion of the Court’s three originalists — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — that the religious objectors had made a persuasive case. And, indeed, it would be difficult to imagine their doing so. The dissent authored by Justice Gorsuch pointed out that Maine’s mandate stifling religious liberty permits individualized exemptions for non-religion-based objectors. Just four months ago, in the Court’s Fulton v. Philadelphia decision, Justice Barrett stressed, in a concurrence joined by Justice Kavanaugh, that if a state law permits individualized exemptions, its burdens on religion will not survive unless the law satisfies the Court’s exacting strict-scrutiny test. In the Maine case, Gorsuch compellingly demonstrated that the state mandate could not conceivably pass strict-scrutiny muster.

So, rather than grapple with the core religious-liberty issue in the Maine case, Barrett and Kavanaugh ducked it, rationalizing that the supposedly novel questions raised should not be addressed through the hurried procedures of the Court’s emergency docket. As I observed in the column, the emergency docket is the au courant fetish of progressive legal scholars, who had little complaint about it when the Court had a more robust progressive bloc during the Trump administration. It is now problematic, though, because claimants are turning to an ostensibly conservative Court to protest the diktats of Democratic federal and state administrations. By what passes for Washington logic, Barrett and Kavanaugh are expected to prove to Democrats that the Court is nonpartisan by turning a blind eye to the constitutional anomalies of Democratic governance.

It is dismaying, to put it mildly, to find the two newest justices swayed by such bombast — and to watch as Kavanaugh is pressured into doing the politically expedient rather than the obviously correct thing in the eviction-moratorium case, while Barrett feels the need to give public assurances that “this Court is not comprised of a bunch of partisan hacks.” Of course, to speak in such terms is already to have lost. Conservatives do not see constitutionalist rulings as partisan hackery just because “living Constitution” progressives portray them as such. With due respect to Justice Barrett (for whom I have great respect), it is not worth worrying about partisan hacks demagoguing conservative-constitutionalists as partisan hacks. To respect the Constitution’s limits on government and on the Court is not partisan. In fact, it could very well result in the adoption of policies we intensely dislike as long as that is done democratically.

Unless a conservative jurist has the inner confidence of a Thomas or an Alito, the fortitude to tune out the rebukes and seductions of progressive pols, profs, and pundits invariably withers over time. The question is whether we’re seeing it happen already.

As our Ed Whelan notes, the signals the justices seemed to be sending during this week’s oral argument of two cases arising out of the Texas fetal-heartbeat law (misleadingly labeled the “Texas abortion ban” in much of the coverage) are disconcerting.

Like Ed, I listened to the three-hour session. Granted, the way the wind seems to be blowing during oral argument is often not reflected in the Court’s ultimate ruling. I agree nonetheless with Ed’s dour assessment that it’s foreseeable, perhaps even likely, that a Court majority — perhaps the same six-justice majority that turned aside the religious-liberty claim in the Maine vaccine-mandate case — could invent a reason to issue an injunction against Texas’s law.

Notably, Justices Barrett and Kavanaugh asked a number of penetrating questions about the merits of competing claims. In this case, involving progressive objections to a red state’s democratically enacted abortion restrictions, neither of them seemed put out that the novel questions had been thrust upon the Court via the dread emergency docket.

We’ll have to wait to see what happens with that one.

Meanwhile, the estimable Wesley J. Smith catches another mind-bending development. The Court, by the same 6-3 majority (i.e., Roberts, Kavanaugh, and Barrett joining the progressive bloc of Breyer, Sotomayor, and Kagan) refused to hear a religious-liberty claim by a Catholic hospital that declined, based on its faith tenets, to perform an elective hysterectomy for a biological woman who identifies as a man.

Naturally (or, I should say, unnaturally), the patient claims the surgery is necessary, not to remedy any physical malady, but to address gender dysphoria, a psychological condition that is said to afflict biological females who are transitioning to male “gender” (gender being the woke simulacrum of sex). Yet, Catholic doctrine denies that sex is a mental persuasion rather than a biological fact and further rejects sterilization procedures unless they are necessary to address a serious illness.

While the hospital declined to perform the surgery, it compassionately assisted the patient to find a hospital that was willing to do it. Needless to say, Christians are not on a crusade against trans people. It is one thing, though, to live and let live, to honor the human dignity of those with whom we disagree on first things, making space for them to pursue happiness. It is quite another thing to have not only our own religious beliefs but our own exercise of logic effectively outlawed, when they are not merely protected by the First Amendment but endorsed by reason, history, tradition, and popular opinion. Despite having plenty of options to fulfill its desires without coercing a Catholic hospital into violating its creed, the Bolshevik Left is not content to live and let live; it is determined to vanquish dissent.

So, of course, despite the Catholic hospital’s assistance in finding a willing facility, the trans patient sued it for discrimination anyway. After a trial court sensibly rejected the claim, a state appeals court reversed, rationalizing that declining to perform a procedure for a trans patient that it would have performed for a woman amounted to discrimination under California law. (It should be beside the point, but the hospital would not have given a healthy woman an elective hysterectomy, either, if the objective was sterilization.)

On Monday, the Supreme Court refused to hear the case, with Justices Barrett and Kavanaugh siding with the progressives and the chief justice in refusing to take up the religious-liberty claim. (See Dignity Health v. Minton, Supreme Court orders list, Nov. 1, 2021, p.7.) Once again, Justices Thomas, Alito, and Gorsuch dissented.

The first of the three Trump appointees, Justice Gorsuch, has been eloquent in defense of religious liberty. Still, we cannot forget that he not only joined the Court’s progressives and the chief justice but actually wrote the majority opinion in Bostock v. Clayton County (2020). With linguistic legerdemain that could make Bill Clinton jealous, Gorsuch claimed that, by invoking the word sex, Title VII of the 1964 Civil Rights Act was understood to be reaching discrimination based on sexual orientation and gender identity — notwithstanding that sex is a biological fact that is (and has always been) patently different from sexual orientation and that “gender identity” was virtually unknown, as a concept or a term, when Title VII was enacted.

Commenting on the Texas cases, one of Ed Whelan’s well-informed correspondents ruefully observes that conservatives may be left wondering what was the point in fighting all these years for originalist judges if all we end up with is politicians in robes — putative constitutional-conservatives too brittle to withstand progressive mau-mauing. It’s too early and the data set is too sparse to throw in the towel quite yet. But we should be worried.