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Monday, February 11, 2019

TRUMP and the SUPREME COURT: Have Christians Won their Bet?

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roberts and kennedyChief Justice John Roberts with Associate Justice Anthony Kennedy in 2017, listening to President Trump's maiden speech to Congress.(Photo: Jack Gruber)

A History of Disappointments

In 1987 Ronald Reagan nominated Anthony Kennedy to the Supreme Court of the United States (SCOTUS) to replace retiring Justice Lewis Powell, a member of the infamous Roe v. Wade majority (7-2). Kennedy, President Ford’s appointee to the Ninth Circuit, was Reagan’s third choice. A firestorm of Democrat opposition had defeated his prior nomination of Robert Bork. Reagan’s second choice, the “moderate conservative” Douglas Ginsburg, was sunk by allegations of marijuana use during college and while a professor at Harvard Law School.

What we got with Kennedy was a justice whose judicial tenor became generally indistinguishable from Powell’s. Indeed, even Powell might cringe at Kennedy’s infamous dictum on the imaginary right to abortion in Casey v. Planned Parenthood, where he joined a bare 5-to-4 majority in refusing to overrule Roe: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”


Kennedy evidently failed to notice that it was precisely the “compulsion of the State” which, by means of Roe, had imposed on the entire nation the belief that a child in the womb is not a human being worthy of protection from a murderous abortionist’s scalpel and suction machine. Nor did he seem to notice that anyone who interferes in the exercise of that state-imposed belief is subjected to an injunction under pain of contempt or outright imprisonment in a federal jail under the “Freedom of Access to Clinic Entrances Act”—state compulsion at its worst.

"Whatever one thinks of Trump, the fury of his deranged opponents demonstrates that, unlike all the establishment Republicans he trounced in order to win the Presidency, he has succeeded in stomping on the Devil’s tail. And that is the only reason all hell has broken loose in Washington and throughout a global ruling class that lusts after the destruction of this most inconvenient man." - Chris Ferrara

In 2005 George W. Bush nominated John Roberts to replace deceased Chief Justice Rehnquist. Conservatives were sanguine, but this time with solid grounds, for in several key cases Roberts has voted with the conservative bloc of four justices (currently comprised of Alito, appointed by George W. Bush, Thomas, appointed by George H. W. Bush, and Gorsuch and Kavanaugh, appointed by Donald Trump). Chief among these decisions are District of Columbia v. Heller (striking down the handgun ban in Washington, D.C.) and Burwell v. Hobby Lobby (exempting closely held corporations from Obamacare’s “contraceptive mandate”).

But then there was the 2012 decision in National Federation of Independent Businesses v. Sebelius, in which Roberts, reportedly flip-flopping after the judicial conference with his fellow justices, apparently revised his opinion striking down Obamacare into one upholding it. He thus allowed Obama’s dysfunctional and blatantly unconstitutional contraption to survive by a vote of 5-to-4 in an unexpected coalition of varying opinions among himself and the liberal justices Breyer, Kagan, Ginsburg and Sotomayor. Roberts’ opinion cobbled together the flimsy argument that a federal penalty for not buying health insurance—the “individual mandate”—is a valid “tax” under the Congressional taxing power and not an actual “command” to buy health insurance, although he (along with Scalia, Thomas, Alito and Kennedy) also held that the individual mandate did exceed Congressional power under the Commerce Clause and the Necessary and Proper Clause.

Here Roberts outdid even Kennedy in reaching the desired liberal outcome! For Kennedy joined Justices Scalia, Thomas and Alito in dissent, arguing that the entire Obamacare scheme was unconstitutional because the individual mandate could not be severed from the rest of the Affordable Care Act, and that to call the individual mandate a tax was to rewrite the Act in order to save it.  

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Three years later, Roberts again saved Obamacare in King v. Burwell.  The issue presented was that in those states (such as Virginia) which had not established health insurance exchanges no federal tax credits to subsidize premiums were available under the Affordable Care Act, meaning that Obamacare would collapse because low-income individuals without subsidies were not required to purchase insurance. Roberts’ opinion held that the IRS had the authority to issue a regulation providing that the tax credits would be available for plans purchased through the federal exchanges as well, even though the Act contained no such escape hatch. In reading his blistering dissent from the bench Scalia quipped, to laughter from the gallery: “We really should start calling this law SCOTUS-care.”

And just days ago, in June Medical Services v. Gee (2019),  Roberts, in what the New York Times called “a surprise move,” joined the liberal justices in  “a 5-to-4 decision blocking a Louisiana law that could have severely restricted abortion in the state.” The Court’s decision, issued without a written opinion, was limited to granting a temporary stay against enforcement of the law, with the Court expected to consider its merits in the next term.

Roberts’ willingness to stay enforcement of the Louisiana law in the interim does not bode well for his ultimate decision on the merits, although it is uncertain how he will rule. The Louisiana law would merely require that butchers who perform abortions have admitting privileges in local hospitals, which tend to shun affiliation with abortionists, who are often incompetents  feeding off the bottom of their profession.  Roberts, the Times surmises, “wanted to avoid sending the message that the court was ready to discard a 2016 decision, a precedent, in which it struck down a similar Texas law.”

In that 2016 decision, Whole Woman’s Health v. Hellerstedt, Roberts did ally with Justices Thomas and Alito in dissenting, but only on the procedural grounds that Petitioners had lost a prior federal challenge to the Texas law based on essentially the same facts, had never sought Supreme Court review, and thus were barred from relitigating the issue under the foundational legal principle of res judicata (that one cannot litigate the same case again once it is finally decided). Roberts’ dissent, therefore, tells us nothing definitive about his judicial view of the underlying issue of permissible limits on the “right” to abortion.  

That said, however, the Louisiana law differs substantially from the Texas law, which supposedly placed an “undue burden” on the “right” to abortion by requiring not only that abortionists have hospital admitting privileges but also that the abortion mill meet the requisites of an outpatient surgical center. Absent the latter requirement in Louisiana, Roberts may well see a distinction that permits him to uphold the law when SCOTUS takes up the case on the merits next term.

Has Roberts Gone ‘Round the Bend?

Nevertheless, it seems that over the thirteen years Roberts has been Chief Justice, he has “evolved” or is in the process of “evolving” into yet another “moderate” swing vote on the Court, putting us right back where we started when Kavanaugh replaced Kennedy. As the Quartz webzine observes, Roberts “won’t be the first justice to shift his ideological position vis-a-vis the bench—Sandra Day O’Connor was a conservative justice who became more liberal on the bench, as did Kennedy.” 

Robert’s shift toward “moderate” swing vote status—or perhaps worse—should have been obvious after he publicly rebuked President Trump for expressing frustration over how “Obama judges” were thwarting his agenda at every turn with baseless fake law decisions disguising their leftist policy preferences and animus toward Trump. Those decisions include ludicrous nationwide injunctions issued by lone district judges against various versions of Trump’s presidential Proclamation halting visa issuance temporarily on account of terrorism risk factors in countries that happen to be majority-Muslim—the so-called “travel ban.” The district judges relied on statements by Trump during his Presidential campaign to arrive at the laughable conclusion that a facially rational Proclamation, fully within the Chief Executive’s broad power to restrict or even halt immigration, concealed a sinister intent to engage in unconstitutional religious discrimination against Muslims in other countries who have no First Amendment rights in the first place.

Even though these silly injunctions were finally overturned by SCOTUS last June in a 5-to-4 decision upholding the third version of the “travel ban,” with Roberts himself in the majority (along with Alito, Thomas, Gorsuch and Kavanaugh), Roberts still saw fit to declare last November: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right [sic] to those appearing before them. That independent judiciary is something we should all be thankful for.” 

Only someone who inhabits the Beltway bubble could be oblivious to the reality of unprincipled, result-oriented decisions emanating from Obama- and Clinton-appointed judges in the loony Ninth Circuit and elsewhere.  The lawyers who actually practice before these judges know better. In fact, in one Ninth Circuit appeal I argued, I was able to predict that even after a three-judge panel had unanimously reversed a verdict against pro-life activists as violative of the First Amendment, a larger en banc panel would vote 6-to-5 to overrule the three-judge panel and reinstate the verdict. My prediction was based solely on which President had appointed each of the eleven judges. The merits of the appeal didn’t matter in the least, but only enforcement of an unspoken rule of the judicial Left: “Let no pro-life victory stand.”  Or, in the case of Trump, “Let no Trump executive order stand.”

Moreover, it is nothing short of stupefying that Roberts fails to see that there are shamelessly unprincipled, result-oriented Clinton judges (Breyer and Ginsburg) and Obama judges (Kagan and Sotomayor) sitting on the very Court over which he presides, as the late Justice Scalia lamented in dissent after dissent from the liberal wing’s rampant social engineering, tortured reasoning and shifting standards of review designed to get the result they desired.

Has Trump Kept His Promise?

trump pro life address

All in all, the Supreme Court appointments of Republican Presidents before Trump (Reagan and the two Bushes) have resulted in a spoilage rate of 50%: O’Connor, Souter and Kennedy turned out to be largely rotten, while Scalia, Thomas and Alito have remained wholly sound—at least by the standard of what passes for judicial conservatism in America.

With Trump, however, thus far the spoilage rate is zero:  Gorsuch and Kavanaugh have voted with Thomas and Alito several key cases. And in the case involving the Louisiana law noted above,  Kavanaugh voted with Gorsuch, Thomas and Alito in opposing a stay of the law’s enforcement.   Nor should we infer too much from Kavanaugh’s decision, along with Roberts, to vote with the four liberal justices to deny review of a pair of cases in which the question presented was whether an individual Medicaid recipient has standing to sue a State when it defunds Planned Parenthood, as to which there is a division among the circuit courts.  The standing question is quite technical, and the two cases were not vehicles to address the underlying matter of abortion and limitations upon it, which was not involved in either case.

Yet there are troubling indications of Kavanaugh’s possible tendency toward political “prudence” or rather timidity. In the Medicaid defunding cases Justice Thomas (joined by Gorsuch and Alito) wrote a dissent from the refusal of the majority—including Kavanaugh—to grant review, wherein he issues a complaint clearly directed in part at Kavanaugh: “So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion.”

We can only wait and see if Trump’s SCOTUS picks go bad.  We have already seen enough, however, to know that thanks to Bush appointee Roberts, SCOTUS appears to have returned to a 5-4 configuration in hot-button cases with the fifth vote now being unpredictable.  But with Trump, at least, we have the first President who has explicitly promised: “I will appoint judges that will be pro-life, yes” and who further declared: “I will protect [life] and the biggest way you can protect it is through the Supreme Court and putting people in the court. And actually, the biggest way you can protect it, I guess, is by electing me president.”

And what President has ever said what Trump has said about the unborn? Quoth Trump at the National Prayer Breakfast: “All children, born and unborn, are made in the holy image of God. Every life is sacred and every soul is a precious gift from heaven.”  And who but Trump would have said the following during a State of the Union address delivered days after New York’s legalization of infanticide: “Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth. These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world.” 

I am convinced Trump sincerely he believes he has kept his pro-life promise with Gorsuch and Kavanaugh. And I remain convinced (or at least hopeful) that neither man will render that promise vain. Also convinced of this are Trump’s demonically enraged opponents, who in recent days have opened up innumerable new avenues for harassing him and his family with endless partisan investigations in a desperate bid to remove him from office before he can appoint a replacement for the little tyrant Ruth Bader Ginsburg, who at this point appears to be pretending to be capable of serving on the Court.

In short, I agree with George Neumayr’s conclusion that “Christians bet on Trump and won.” As he observes:

Obama imposed a contraceptive mandate on Christians; Trump has lifted it. One of his finer moments was inviting the Little Sisters of the Poor to the Rose Garden to assure them that their ‘long ordeal was over.’ Under Obama, the Justice Department and Health and Human Services routinely harassed the religious. Now those agencies have adopted specific policies to protect them. “The sun is shining right now in America when it comes to our First Amendment freedoms,” Tony Perkins of the Family Research Council has said.

His most enduring contribution to the defense of religious freedom is likely to come in the form of an improved judiciary, upon which he has placed a significant number of originalists. This last week on the Supreme Court we saw a Bush appointee, John Roberts, vote to block a pro-life Louisiana law while Trump’s appointees, Gorsuch and Kavanaugh, voted to let it go forward — a reminder of why the religious right lost any confidence in the establishment GOP and was willing to give Trump a chance.

But whatever one thinks of Trump, the fury of his deranged opponents demonstrates that, unlike all the establishment Republicans he trounced in order to win the Presidency, he has succeeded in stomping on the Devil’s tail. And that is the only reason all hell has broken loose in Washington and throughout a global ruling class that lusts after the destruction of this most inconvenient man.

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Last modified on Tuesday, February 12, 2019
Christopher A. Ferrara

Christopher A. Ferrara: President and lead counsel for the American Catholic Lawyers Inc., Mr. Ferrara has been at the forefront of the legal defense of pro-lifers for the better part of a quarter century. Having served with the legal team for high profile victims of the culture of death such as Terri Schiavo, he has long since distinguished him a premier civil rights Catholic lawyer.  Mr. Ferrara has been a lead columnist for The Remnant since 2000 and has authored several books published by The Remnant Press, including the bestseller The Great Façade. Together with his children and wife, Wendy, he lives in Richmond, Virginia.