Supreme Court Fireworks Finale--- Justice Kavanaugh Continues to Block and Tackle for Demagogue Donald July 9, 2020
July 4, 2020 has, not surprisingly, given the nation a strong display of fireworks. However, far more important are the legal fireworks coming out of the Supreme Court of the United States (SCOTUS). Because of the COVID-19 pandemic, SCOTUS is delivering its final opinions for the 2019-2020 term in July. SCOTUS even held oral arguments over the phone in 5/2020 and broadcasted them live, while much of the U.S. was under lockdown (See cnn.com, Cole, 7/05/20). Normally, all these decisions would have been issued by the end of June. And these final opinions are not small sparklers that will quickly disappear into the legal and political ether. They are constitutional law blockbusters, artillery shells lobbed into the face of the American public. Demagogue Donald’s second SCOTUS pick, Justice Brett Kavanaugh, has continued to give both him and his rabid supporters everything and then some they could not have imagined with his reactionary opinions.
Remember Alexander Hamilton? Thanks to Lin-Manuel Miranda’s play that has now been filmed for television, Hamilton has rightfully been elevated to one of our most famous Founding Fathers. However, Hamilton’s original “intent,” as he explained in a Federalist Paper essay about how electors in the Electoral College must choose the President, has been completely gutted by a 9-0 decision in which Kavanaugh joined his brethren and sisters. In his “Federalist” essay, Hamilton stated, “Men (women now too) chosen by the people for the special purpose” of selecting the president, “will be most likely to possess the information and discernment requisite to such complicated investigations (nytimes.com, Liptak, 7/06/20).” Translation: The Electoral College was not to be a “rubber stamp” for the votes of the people. If the people make a rash decision in the electors’ view, the members of the Electoral College have the right to independently reject that decision, what many people had hoped they would do after Trump barely eked out an Electoral College win in 11/2016.
In 1892, SCOTUS Chief Justice Melville Fuller wrote in an opinion, “Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive.” Over time, Fuller added, “the original expectation may be said to have been frustrated (nytimes.com, Liptak).” Hamilton’s and Fuller’s “original expectations” sure have been “frustrated.” Under SCOTUS’ 2020 opinion in a Washington State case, states can require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support. The WA State Supreme Ct., in the Chiafalo v. Washington case, upheld fines of $1,000 on three Democratic electors who had not cast votes for Hillary Clinton. A few months later, a 10th Federal Circuit Court of Appeals, unlike WA State, said that Colorado had been wrong to discard a vote from a Democratic elector who wanted to cast a vote against Hillary (nytimes.com, Liptak). Presently, 32 states and D.C. have laws meant to discourage “faithless” electors. However, until 2016, no state had ever actually punished or removed an elector because of his/her vote (cnn.com, de Vogue, 7/06/20). From 1796-2016, Congress had accepted a total of 150 votes across 20 different elections that went contrary to the vote of whom the electors were initially pledged to vote for, according to FairVote, a non-partisan voting rights group. According to Harvard law professor Lawrence Lessig, while the state has the power to appoint a slate of presidential electors who are members of the same party as the ticket that wins the popular vote, those electors, once appointed, can cast their votes however they like (de Vogue, cnn.com). The result of this case? The outdated Electoral College, IMHO, is now outdated plus. It not only thwarts the popular vote, but is a powerless institution that defies what Hamilton and his fellow Constitutional framers wanted it to become. On Election Night in 2016, the electoral vote was expected to be 306 for Donald to 232 for Hillary. In the end, it went 304 Donald v. 227 Hillary. Independent electors should be encouraged, not discouraged. So much for SCOTUS’ yammering about “original intent” when the view of the Founding Fathers could not be clearer.
Under Chief Justice (CJ) John Roberts, SCOTUS continues brick by brick to dismantle Founding Father Thomas Jefferson’s wall of separation between church and state. In Campaign 2016, Trump and his social conservative followers emphasized the need for “persecuted” religious groups, evangelical Christians and conservative Catholics, to be able to oppose birth control and abortion. Trump promised these key voting blocs that they could additionally obtain every bit of financial aid their institutions wanted and have the right to fire any employees that worked for them, despite federal anti-discrimination laws. After Donald’s election, he had two appointees, Neil Gorsuch and Brett Kavanaugh, confirmed to the High Court bench. Kavanaugh and Gorsuch became top lieutenants in Trump’s “tear down the church-state separation wall” crusade. The present SCOTUS never seems to rule against anything these conservative religious groups have on their agenda. As was previously discussed, on 6/30/2020, both Donald appointees ruled in a 5-4 decision that states may not exclude religious schools from programs that provide scholarships to students attending private schools, a “y uu ge” Trump victory (nytimes.com, Liptak, 6/30/20 & cnn.com, de Vogue & Cole, 6/30/20).
And the “church-state” wall keeps “tumbling down.” On 7/08/2020, SCOTUS issued two more major pro-religious decisions. In the case, Trump v. Pennsylvania, consolidated with Little Sisters of the Poor, SCOTUS upheld by a 7-2 vote, with Sotomayor and Ginsburg dissenting, a Trump regulation that lets employers with religious objections limit women’s access to free birth control under the Affordable Care Act, aka Obmacare. As a result of this ruling, about 70,000-126,000 women could lose free contraceptive coverage. Before Obamacare, contraceptives made up about 30% of women’s total out-of-pocket health care costs, according to the Women’s Law Center. In 2011, the Obamacare mandate required most private health insurance plans to cover Food and Drug Administration (FDA) forms of birth control without a co-pay. Under Obamacare, houses of worship, including churches, temples, and mosques were exempt from this requirement. However, groups like schools and hospitals affiliated with religious organizations were not. Some of those groups objected to providing coverage for any approved forms of contraception. Others objected to contraception they said was equivalent to abortion, although there are substantial questions about whether that characterization is scientifically correct (nytimes.com, Liptak, 7/08/20, huffpost.com, Jeltsen & Golgowski, 7/08/20). The Trump administration argued that the Obamacare birth control regulation imposes a “substantial burden” on the free exercise of religion under the First Amendment. In his campaign, Donald had argued that employers should not be “bullied by the federal government because of their religious beliefs (nytimes.com, Liptak).”
Under Obamacare, groups who did not want to pay for birth control coverage could inform their insurers, plan administrators, or the government that they wanted an exemption. Insurance companies or the government would then pay for the contraception coverage. However, many religious groups complained that objecting to paying for contraception and providing the required information on that matter would make them “complicit in conduct that violated their faith (nytimes.com, Liptak, 7/08/20).” Translation: nothing short of allowing these groups to completely opt out of providing free birth control would be satisfactory. There can never be any compromise on this matter. Women’s health, mainly allowing access to birth control, which had been permitted since the 1965 Griswold v. CT decision, has now been threatened because it may lead to abortion in some people’s eyes. In this ruling weakening Obamacare, the health of the majority of women has been “balanced” and found wanting against the claims of religious liberty by a small vocal minority that delivered key votes to Trump (See de Vogue, cnn.com, 7/08/2020).
On the same day the SCOTUS anti-birth control case came down, the High Court again gave Donald another “humungous” religious victory. In the Our Lady of Guadalupe School v. Morrissey-Beru and St. James School v. Darryl Biel, Kavanaugh, once again, joined the majority 7-2 opinion. Ginsburg and Sotomayor, once more, dissented. In this decision, SCOTUS ruled that federal employment anti-discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches (nytimes.com, Liptak, 7/08/20 & de Vogue, cnn.com, 7/08/20). One employee, Kristen Biel, sued under the Americans With Disabilities Act after she learned she had breast cancer and her contract was not renewed at Catholic St. James School. After her death last year, her husband represented her estate. When her contract was not renewed at Our Lady of Guadalupe School, Agnes Morrissey-Berru said that Catholic institution had discriminated against her based on her age (nytimes.com, Liptak, & cnn.com, de Vogue). These CA schools argued they were covered by a “ministerial exception” to employment discrimination laws that SCOTUS had established in 2012. In the 2012 case, involving a Michigan Lutheran school, SCOTUS had unanimously held that this ministerial exception allowed churches and other groups freedom to choose and dismiss employees who perform religious work without government interference. The woman fired from the Lutheran school because of narcolepsy had been called a teacher and had completed religious training. The MI Lutheran school had also considered her a minister (nytimes.com, Liptak). In the two Catholic school cases just decided by SCOTUS, the plaintiffs involved had no formal training, religious credentials, or titles. They were not considered ministers by themselves or their employers. Plaintiff Morrissey-Berru had taken only a single course on the history of the Catholic Church. Lawyers for the teachers told SCOTUS that if the schools could terminate them, more than “300,000 lay teachers in religious schools across the country could be stripped of basic employment protections (nytimes.com, Liptak, cnn.com, de Vogue).” The plaintiffs, however, did have some limited religious duties and were required to incorporate Catholic teachings into the curriculum, including in Morrissey-Beru’s case, leading daily prayer. In the 2012 MI Hosanna-Tabor Lutheran Church case, SCOTUS stated it was “reluctant to adopt a rigid formula” concerning which employees could be terminated under its new ministerial exception (See nytimes.com, Liptak, 7/08/20). On 7/08/2020, with backing from the Trump administration, SCOTUS adopted a “rigid formula,” not looking at multiple facts on a case by case basis. According to Notre Dame Law School’s Richard Garnett, who filed a brief in support of the two parochial schools, “the state lacks authority to second-guess religious decisions and doctrines (cnn.com de Vogue).”
In one of his many insane tweets, Donald claimed that the Supreme Court “didn’t much like him,” after it ruled against him in the LGBTQ and DACA cases. However, the Roberts Court has always “showered him with love and kisses” on church-state matters. SCOTUS has ruled for Trump on allowing a war memorial in the shape of a cross to remain on public property, allowing state programs to provide scholarships for religious schools as well as secular private institutions, and in the birth control and employment discrimination cases. In 2014, even before Trump took office and appointed Kavanaugh and Gorsuch, the Roberts’ High Court had clearly started its tear down of the church-state wall separation. In that year, in the Town of Greece v. Galloway opinion, SCOTUS allowed public meetings to begin with distinctly Christian prayers, and was not too concerned that very few non-Christians would be invited to give such invocations (See nytimes.com, Likptak, 7/08/20, Trachtman, M., “The Supremes’ Greatest Hits,” 2016). The Religious Right are, IMHO, ecstatic that Trump has delivered “big time” with his currently constituted SCOTUS.
Finally, on 7/09/2020, SCOTUS issued the “really big decisions” that Donald and the rest of us had long been waiting for. In two separate opinions, authored by CJ Roberts, SCOTUS ruled 7-2 that prosecutors in NY State can obtain Trump’s financial records, Trump v. Vance. In the second decision, Trump v. Mazars, SCOTUS ruled that Congress could not, for at least now, see many of the same records. Justices Thomas and Alito dissented in both of these cases. In the NY case, although Trump appointees Justices Kavanaugh and Gorsuch joined the 7-2 majority, they issued a concurring opinion that did not adopt the reasoning of CJ Roberts’ majority (nytimes.com, Liptak, 7/09/20).
Trump had asked SCOTUS to block both the congressional and NY sets of subpoenas which sought information about Donald’s accountants and bankers. The firms had indicated that they would comply with SCOTUS’ ruling. Trump’s attorneys had argued that he was immune from all criminal proceedings and investigations so long as he was in office, and that Congress (the Democratic-controlled House) was powerless to obtain his records because it had no legislative need for them. House Democrats and NY prosecutors said the records may shed light on Trump’s foreign entanglements, possible conflicts of interest, whether he had paid his taxes, and whether his hush money payments violated campaign finance laws. Yes, CJ Roberts’ majority opinion in the NY case spoke eloquently of no president in our history being “above the law,” in line with the 1974 case requiring Nixon to turn over his Watergate tapes for use in a criminal case (See Liptak, nytimes.com, 7/09/20). Yes, on paper, this decision is a stinging rebuke for Donald, who has fought relentlessly to keep these records secret. However, despite Donald’s immediate whining by tweet about SCOTUS’s actions “against him,” the bottom line is that these records will be shielded under NY grand jury secrecy rules until after the 11/03/2020 election, and, perhaps indefinitely, if no indictments are issued by the grand jury investigating these matters under Manhattan District Attorney, Cyrus Vance Jr. (nytimes.com, 7/09/20, axios.com). For all of Roberts’ and District Atty. Vance’s comments about no U.S. Chief Executive being above the law, Trump’s legal strategy in both cases was successful. Noah Shachtman, Editor-in-chief of the Daily Beast, stated that he knew a person recruited to be on Trump’s legal team for the Mazars (Trump’s accounting firm congressional) case. “This person asked Trump’s lawyers what their legal strategy was. Their response: there is no real strategy –just delay until after the election (@NoahShachtman, 7:58 AM, 7/09/20, Wempe, Wash. Post, 2017).” Exactly. Roberts’ SCOTUS punted here and gave Trump a victory for all practical purposes.
As far as the Mazars case involving the House subpoenas, Democrats in that body won’t get their hands on any of Trump’s financial records ahead of the 11/2020 election, if at all (axios.com, 7/09/20). SCOTUS was more receptive to Manhattan Dist. Atty. Vance’s subpoena power, as prosecutors are clearly allowed to conduct law enforcement. The House’s lawyer failed to define some limits on Congress’ subpoena power (axios.com, 7/09/20). Yes, in the Mazars USA case, CJ Roberts stated that Congress has the power to subpoena the president’s financial records. However, SCOTUS sent that case back to lower courts to reassess the matter with a new and narrower interpretation of Congress’ power to subpoena the Chief Executive’s records (Blumenthal, huffpost.com, 7/09/20). Again, another “ y uu ge” practical win for Donald, while SCOTUS properly talked in Government 101 terms about Congress’ ability to subpoena a president’s financial records.
And yes, many people are saying that Trump appointees Kavanaugh and Gorsuch stuck a proverbial finger in Trump’s eye by joining the majority in both these cases. Don’t you believe that. In the NY Trump v. Vance case, as previously mentioned, Kavanaugh wrote a concurring opinion that Gorsuch joined. In that concurrence, Kavanaugh noted that when the Vance case is first remanded to the District Court, as SCOTUS unanimously agreed it should be, “the President may raise constitutional and legal objections to the subpoena as appropriate (businessinsider.com, Lahut, 7/09/20).” Get it? Kavanaugh and Gorsuch are boldly telling their patron Trump and his legal team to keep delaying the NY Vance grand jury case by raising all the objections they can conjure up. “Delay, delay, delay,” the friendly Kavanaugh and Gorsuch advice to keep Trump’s financial returns from ever seeing the light of day.
The SCOTUS 2019-2020 term is history. CJ Roberts and his High Court are not leaning in any liberal direction. Sometimes, as in the LGBTQ and DACA cases, they will pleasantly surprise progressives. However, most of the time, they are pushing a conservative agenda, one that aims to dismantle the wall between church and state. This Court is hostile to women’s reproductive health, and just waiting for the right case to gut Roe v. Wade. The Roberts’ Court remains pro-business and does not protect voting rights. The Roberts’ SCOTUS is still shielding Trump in his role as Chief Executive from proper congressional and state oversight. Gorsuch, with a few exceptions, and even more so Kavanaugh, Trump’s nominees, continue to block and tackle for Demagogue Donald. With the advanced ages of Justices Breyer and Ginsburg, we must not allow Trump to get a second term and turn the High Court reactionary plus. Again, progressives must understand that social conservatives, despite a few losses, are clearly thrilled by the whole set of church-state rulings. They will heavily turn out to support a Trump second term to get similar rubber stamp Justices to truly “pack the Court.” It is time for “Team Blue,” from Joe Biden on down and all our voters, to understand that Election 2020 puts SCOTUS high on the ballot along with jobs and health care. We must come out in droves plus to recapture the White House, keep the House, and take back the Senate. The Senate, remember, votes on Supreme Ct., Circuit Court, and District Judges the president nominates. We must “ditch” GOP Senate Majority Leader Mitch McConnell and his “Red pack the courts” gang. To paraphrase Bill Clinton, “It’s SCOTUS and the federal judiciary, stupid!”
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