The Supreme Court rules for a designer who doesn’t want to make wedding websites for gay couples
In a defeat for gay rights, the Supreme Court’s conservative majority ruled Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples. The court ruled 6-3 for designer Lorie Smith despite a Colorado law that bars discrimination based on sexual orientation, race, gender, and other characteristics. Smith had argued that the law violates her free speech rights. Smith’s opponents warned that a win for her would allow a range of businesses to discriminate, refusing to serve Black, Jewish, or Muslim customers, interracial or interfaith couples, or immigrants. But Smith and her supporters had said that a ruling against her would force artists — from painters and photographers to writers and musicians — to do work that is against their beliefs. “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote for the court’s six conservative justices. Justice Sonia Sotomayor wrote a dissent that was joined by the court’s other liberals. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote. The decision is a win for religious rights and one in a series of cases in recent years in which the justices have sided with religious plaintiffs. Last year, for example, the court ruled along ideological lines for a football coach who prayed on the field at his public high school after games. The decision is also a retreat on gay rights for the court. For two decades, the court has expanded the rights of LGBTQ people, most notably giving same-sex couples the right to marry in 2015 and announcing five years later that a landmark civil rights law also protects gay, lesbian, and transgender people from employment discrimination. That civil rights law decision was also written by Gorsuch. Even as it has expanded gay rights, however, the court has been careful to say those with differing religious views needed to be respected. The belief that marriage can only be between one man and one woman is an idea that “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world,” Justice Anthony Kennedy wrote in the court’s gay marriage decision. The court returned to that idea five years ago when it was confronted with the case of a Christian baker who objected to designing a cake for a same-sex wedding. The court issued a limited ruling in favor of the baker, Jack Phillips, saying there had been impermissible hostility toward his religious views in the consideration of his case. Phillips’ lawyer, Kristen Waggoner, of the Alliance Defending Freedom, also brought the most recent case to the court. Smith, who owns a Colorado design business called 303 Creative, does not currently create wedding websites. She has said that she wants to but that her Christian faith would prevent her from creating websites celebrating same-sex marriages. And that’s where she runs into conflict with state law. Colorado, like most other states, has a law forbidding businesses open to the public from discriminating against customers. Colorado said that under its so-called public accommodations law, if Smith offers wedding websites to the public, she must provide them to all customers, regardless of sexual orientation. Businesses that violate the law can be fined, among other things. Smith argued that applying the law to her violates her First Amendment rights. The state disagreed. The case is 303 Creative LLC v. Elenis, 21-476. Republished with the permission of The Associated Press.
Supreme Court overturns Roe v. Wade; states can ban abortion
The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years in a decision by its conservative majority to overturn Roe v. Wade. Friday’s outcome is expected to lead to abortion bans in roughly half the states. The decision, unthinkable just a few years ago, was the culmination of decades of efforts by abortion opponents, made possible by an emboldened right side of the court that has been fortified by three appointees of former President Donald Trump. The ruling came more than a month after the stunning leak of a draft opinion by Justice Samuel Alito, indicating the court was prepared to take this momentous step. It puts the court at odds with a majority of Americans who favored preserving Roe, according to opinion polls. Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion, were wrong the day they were decided and must be overturned. “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote. Authority to regulate abortion rests with the political branches, not the courts, Alito wrote. Joining Alito were Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The latter three justices are Donald Trump appointees. Thomas first voted to overrule Roe 30 years ago. Chief Justice John Roberts would have stopped short of ending the abortion right, noting that he would have upheld the Mississippi law at the heart of the case, a ban on abortion after 15 weeks, and said no more. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — the diminished liberal wing of the court — were in dissent. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote. The ruling is expected to disproportionately affect minority women who already face limited access to health care, according to statistics analyzed by The Associated Press. Thirteen states, mainly in the South and Midwest, already have laws on the books that ban abortion in the event Roe is overturned. Another half-dozen states have near-total bans or prohibitions after 6 weeks of pregnancy, before many women know they are pregnant. In roughly a half-dozen other states, the fight will be over dormant abortion bans that were enacted before Roe was decided in 1973 or new proposals to sharply limit when abortions can be performed, according to the Guttmacher Institute, a research group that supports abortion rights. More than 90% of abortions take place in the first 13 weeks of pregnancy, and more than half are now done with pills, not surgery, according to data compiled by Guttmacher. The decision came against a backdrop of public opinion surveys that find a majority of Americans oppose overturning Roe and handing the question of whether to permit abortion entirely to the states. Polls conducted by The Associated Press-NORC Center for Public Affairs Research and others also have consistently shown about 1 in 10 Americans want abortion to be illegal in all cases. A majority are in favor of abortion being legal in all or most circumstances, but polls indicate many also support restrictions, especially later in pregnancy. The Biden administration and other defenders of abortion rights have warned that a decision overturning Roe also would threaten other high court decisions in favor of gay rights and, even potentially, contraception. But Alito wrote in his draft opinion that his analysis addresses abortion only, not other rights that also stem from a right to privacy that the high court has found implicit, though not directly stated, in the Constitution. Abortion is different, Alito wrote, because of the unique moral question it poses. Whatever the intentions of the person who leaked Alito’s draft opinion, the conservatives held firm in overturning Roe and Casey. In his draft, Alito dismissed the arguments in favor of retaining the two decisions, including that multiple generations of American women have partly relied on the right to abortion to gain economic and political power. Changing the composition of the court has been central to the anti-abortion side’s strategy. Mississippi and its allies made increasingly aggressive arguments as the case developed, and two high-court defenders of abortion rights retired or died. The state initially argued that its law could be upheld without overruling the court’s abortion precedents. Then-Gov. Phil Bryant signed the 15-week measure into law in March 2018, when Justices Anthony Kennedy and Ruth Bader Ginsburg were still members of a five-justice majority that was mainly protective of abortion rights. By early summer, Kennedy had retired and was replaced by Justice Brett Kavanaugh a few months later. The Mississippi law was blocked in lower federal courts. But the state always was headed to the nation’s highest court. It did not even ask for a hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals, which ultimately held the law invalid in December 2019. By early September 2020, the Supreme Court was ready to consider the state’s appeal. The court scheduled the case for consideration at the justices’ private conference on Sept. 29. But in the intervening weeks, Ginsburg died, and Barrett was quickly nominated and confirmed without a single Democratic vote. The stage now was set, although it took the court another half year to agree to hear the case. By the time Mississippi filed its main written argument with the court in the summer, the thrust of its argument had changed, and it was now calling for the wholesale overruling of Roe and Casey. The first sign that the court might be receptive to wiping away the constitutional right to abortion came in late summer when the justices divided 5-4 in allowing Texas to enforce a ban on the procedure at roughly six weeks, before some women even know they are pregnant. That dispute turned on the unique structure of the
Providers urge Supreme Court to reject 15-week abortion ban
Abortion providers urged the Supreme Court Monday to reject Mississippi’s 15-week prohibition on most abortions, saying a decision to uphold it would “invite states to ban abortion entirely.” The filing with the high court comes at a time of significant peril for abortion rights in the U.S., with a Supreme Court reshaped by three conservative justices appointed by former President Donald Trump. Mississippi already has told the court it should overrule its 1973 decision in Roe v. Wade that established a nationwide right to abortion. Less than two weeks ago, the justices by a 5-4 vote allowed a Texas law to take effect that prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks. The court did not rule on the merits of the law, which the Biden administration and Texas clinics have challenged in federal court. If the court upholds the Mississippi law, it would lead quickly to the elimination of abortion services in large sections of the Midwest and South, where states have aggressively pursued abortion restrictions, the providers told the court. Mississippi’s legal stance is “a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely,” the providers wrote. The change in the composition of the court appears to be driving the case to overturn Roe. The court had rejected state appeals of similar laws in the past. Of the Trump appointees, Justices Brett Kavanaugh and Amy Coney Barrett took seats previously held by Anthony Kennedy and Ruth Bader Ginsburg, justices who voted to uphold abortion rights. Kavanaugh once served as a law clerk to Kennedy. But the makeup of the court is not sufficient to justify a dramatic change in the law, the providers wrote. “Unless the Court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” the providers wrote. A day earlier, Barrett and Justice Stephen Breyer, the leader of the court’s diminished liberal wing, argued in separate appearances that it’s wrong to view the court in partisan terms. Barrett was among the conservative justices who allowed the Texas law to take effect. The Mississippi 15-week law was enacted in 2018 but was blocked after a federal court challenge. The state’s only abortion clinic, Jackson Women’s Health Organization, remains open and offers abortions up to 16 weeks of pregnancy. About 100 abortions a year are done after the 15th week, the providers said. More than 90% of abortions in the U.S. take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention. The state has said its law would not affect many women, but the providers countered by saying that argument “is at odds with the recognition of constitutional rights in general. The very essence of a constitutional right is that the government cannot outright prohibit a certain subset of people, no matter how small, from exercising that right.” The case hasn’t yet been scheduled for arguments, which could take place in the late fall or early winter. A decision is not expected until June, and the outcome could be an issue in next year’s state and congressional campaigns. Republished with the permission of the Associated Press.
Steve Flowers: Donald Trump has a profound legacy in presidential history, especially if you are a conservative American
Presidential historians and most astute national political observers and chroniclers have concluded that the most profound legacy a president can achieve is the appointment of United States Supreme Court Justices. Presidents serve four-year terms. Justices serve for a lifetime. The Supreme Court of the United States is the ultimate final word on law and public policy in the United States. After they are appointed by the president and confirmed by the U.S. Senate, they are impregnable to political whims or influence. They are sovereign and omnipotent. They are treated royally and usually serve on the high tribunal for over two decades or more. Therefore, whether you like Donald J. Trump or not, he has a legacy. Most presidents are fortunate if they are able to name one justice to the court. Trump, over his four-year term, appointed and had confirmed three. If you are a conservative Republican, this feat by President Trump makes him one of the most bulwark conservative presidents in history. He has cemented his legacy forever and changed the judicial philosophy of the court for the next generation. Trump’s three appointments are not only well qualified, polished, distinguished, moderate conservatives, they are also young. Justice Neil Gorsuch is 53. He replaced Justice Anthony Kennedy who retired. Justice Brett Kavanaugh is 55. He replaced arch conservative Justice Antonin Scalia. The most consequential appointment by President Trump is the appointment and confirmation of Justice Amy Coney Barrett. She is only 48 and a solid conservative. Trump’s appointment of Judge Amy Barrett is truly historical. This appointment changed the entire ideology of the court to a solidly six-to-three conservative majority. Barrett’s appointment is the most pivotal block in Trump’s rebuilding of the Court. In the Gorsuch and Kavanaugh appointments, you replaced conservatives with conservatives. In Barrett, you are replacing a woman with a woman, but more importantly, you are replacing one of the most liberal justices in history with potentially one of the most conservative. In addition, at 48 Barrett will preside for the next three decades as will probably Gorsuch and Kavanaugh. Along with these three conservative justices to the Supreme Court, President Donald Trump has been able to appoint nearly 300 federal judges to the lower federal courts throughout America. Trump could not have accomplished this generational change of the court without the advice and consent of a Republican majority United States Senate. The Republican conservative stamp is also indelibly planted on the federal courts in Alabama. Senator Richard Shelby, in congruence with the Trump administration, has completely reshaped Alabama’s federal judiciary with very young, extremely qualified, conservative judges. Speaking of our United States Senators, our Senior Senator Richard Shelby was granted the omnipotent power to select all of our new, young, conservative judges throughout all of our districts – southern, middle and northern – not only because of his power, prestige and seniority but also because he was our only Republican senator. Our Junior U.S. Senate Seat has been held by a national liberal Democrat Doug Jones for the past three years. During his tenure, he toed the Democratic Senate line and wore that hat as the pawn and clone of the Democratic leadership in the Senate. Chuck Schumer told Jones to vote against Judges Brett Kavanaugh and Amy Barrett only because they were conservative Republican appointees. His refusal to even meet with Justice Amy Barrett showed a total lack of class and southern civility and gentlemanly manners. It was also revealed to me that he was angling to appease his liberal Democratic brethren in order to be Joe Biden’s Attorney General. Yes, folks, you heard me right. Do not be surprised if Doug Jones is not the next Attorney General of the United State in the Biden Administration. The bottom line is if you are a conservative American, Donald J. Trump has a profound legacy in presidential history with three conservative appointments to the United States Supreme Court. Steve Flowers is Alabama’s leading political columnist. His weekly column appears in over 60 Alabama newspapers. He served 16 years in the state legislature. Steve may be reached at www.steveflowers.us.
Supreme Court Justice Ruth Bader Ginsburg dies at 87
Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington. She was 87. Ginsburg died of complications from metastatic pancreatic cancer, the court said. Her death just over six weeks before Election Day is likely to set off a heated battle over whether President Donald Trump should nominate, and the Republican-led Senate should confirm, her replacement, or if the seat should remain vacant until the outcome of his race against Democrat Joe Biden is known. Chief Justice John Roberts mourned Ginsburg’s passing. “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement. Ginsburg announced in July that she was undergoing chemotherapy treatment for lesions on her liver, the latest of her several battles with cancer. Ginsburg spent her final years on the bench as the unquestioned leader of the court’s liberal wing and became something of a rock star to her admirers. Young women especially seemed to embrace the court’s Jewish grandmother, affectionately calling her the Notorious RBG, for her defense of the rights of women and minorities, and the strength and resilience she displayed in the face of personal loss and health crises. Those health issues included five bouts with cancer beginning in 1999, falls that resulted in broken ribs, insertion of a stent to clear a blocked artery, and assorted other hospitalizations after she turned 75. She resisted calls by liberals to retire during Barack Obama’s presidency at a time when Democrats held the Senate, and a replacement with similar views could have been confirmed. Instead, Trump will almost certainly try to push Ginsburg’s successor through the Republican-controlled Senate — and move the conservative court even more to the right. Ginsburg antagonized Trump during the 2016 presidential campaign in a series of media interviews, including calling him a faker. She soon apologized. Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years. She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served. Ginsburg was a mother of two, an opera lover and an intellectual who watched arguments behind oversized glasses for many years, though she ditched them for more fashionable frames in her later years. At argument sessions in the ornate courtroom, she was known for digging deep into case records and for being a stickler for following the rules. She argued six key cases before the court in the 1970s when she was an architect of the women’s rights movement. She won five. “Ruth Bader Ginsburg does not need a seat on the Supreme Court to earn her place in the American history books,” Clinton said at the time of her appointment. “She has already done that.” On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts. Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use. During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers. In the most divisive of cases, including the Bush v. Gore decision in 2000, she was often at odds with the court’s more conservative members — initially Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. The division remained the same after John Roberts replaced Rehnquist as chief justice, Samuel Alito took O’Connor’s seat, and, under Trump, Neil Gorsuch and Brett Kavanaugh joined the court, in seats that had been held by Scalia and Kennedy, respectively. Ginsburg would say later that the 5-4 decision that settled the 2000 presidential election for Republican George W. Bush was a “breathtaking episode” at the court. She was perhaps personally closest on the court to Scalia, her ideological opposite. Ginsburg once explained that she took Scalia’s sometimes biting dissents as a challenge to be met. “How am I going to answer this in a way that’s a real putdown?” she said. When Scalia died in 2016, also an election year, Senate Majority Leader Mitch McConnell refused to act on Obama’s nomination of Judge Merrick Garland to fill the opening. The seat remained vacant until after Trump’s surprising presidential victory. McConnell has said he would move to confirm a Trump nominee if there were a vacancy this year. Reached by phone late Friday, Sen. Lindsey Graham, R-S.C., the chairman of the Judiciary Committee, declined to disclose any plans. He said a statement would be forthcoming. Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights, and pay discrimination against women. She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts. “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.” She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics, and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.” Change on the court hit Ginsburg especially hard. She dissented forcefully from the court’s decision in 2007 to
Supreme Court Justices return for season of big decisions, amid campaign
There is a bumper crop of hot issues on the court’s agenda.
John Roberts’ Supreme Court defies easy political labels
Just hours after Chief Justice John Roberts handed Republicans a huge victory that protects even the most extreme partisan electoral districts from federal court challenge, critics blasted him as worthy of being impeached, a politician who should run for office and a traitor. But the attacks came from President Donald Trump’s allies and their anger was directed not at the Supreme Court’s partisan gerrymandering ruling, but at the day’s other big decision to keep a citizenship question off the 2020 census, at least for now. Trump tweeted from Japan that the census citizenship decision was “ridiculous.” What good is a high court conservative majority fortified by two Trump appointees, the critics seemed to be saying, if Roberts is not prepared to use it? That’s not how Roberts would characterize the court he now leads in name and as the justice closest to the center of a group otherwise divided between conservatives and liberals. He has talked repeatedly about the need to counter perceptions that the justices are just politicians in black robes, beholden to the president who appointed them. The flurry of action came at the end of a Supreme Court term in which the court welcomed a new justice, Brett Kavanaugh, who narrowly survived the most tumultuous confirmation hearings in nearly 30 years. The justices now begin a three-month summer recess. The court seem determined to maintain as low a profile as possible once Kavanaugh joined the bench in early October, finding a variety of ways to keep hot-button topics like abortion, guns, immigration and gay rights, that might divide conservatives from liberals, off the term’s calendar. “This tactic may have been an effort to keep things relatively quiet” following the Kavanaugh nomination, said Josh Blackman, a law professor at the South Texas College of Law in Houston. But one result of putting off some major decisions in Kavanaugh’s first term is a docket crammed with guns, immigration, gay rights and probably abortion in a session that begins in the fall and will come to a head in June 2020, amid the presidential election campaign. So far there is only a partial answer to the big question of how far and fast the court will move to the right now that the more conservative Roberts had taken the place of Justice Anthony Kennedy, who retired last year, as the swing justice. In the case of partisan gerrymandering, Roberts closed the federal courthouse door to lawsuits, a decision that mainly benefits Republicans whose districting plans had been challenged in several states. On the death penalty, the five conservatives appear much less willing to entertain calls for last-minute reprieves from execution. And in two cases the court divided along ideological lines in overturning precedents that had been on the books for more than 30 years. But Roberts was unwilling to join the conservatives to allow the citizenship question to proceed, although it is not yet clear whether the administration will continue pressing the legal case for the question. The reaction to the census ruling was swift. Former Trump aide Sebastian Gorka called Roberts “a traitor to Constitution.” American Conservative Union president Matt Schlapp called for Roberts’ impeachment. Fox News host Laura Ingraham tweeted that “Roberts should quit and run for office.” The chief justice also declined to be the fifth conservative vote to overturn two past high court decisions about the power of federal agencies, and joined the liberals in ruling for an Alabama death row inmate who suffers from dementia. In emergency appeals, Roberts was the fifth vote to keep Trump from requiring asylum seekers to enter the country at established checkpoints and the fifth vote to prevent Louisiana abortion clinic regulations from taking effect. Twenty-one decisions, or nearly a third of all the cases the court heard since October, were by 5-4 or 5-3 votes. But of those, only seven united the conservatives against dissenting liberals. In 10 others, the cohesive bloc of liberals attracted the vote of a conservative justice. The lack of high-profile cases undoubtedly contributed to the relatively small number of ideologically divided outcomes, said David Cole, legal director for the American Civil Liberties Union, which was on the winning side of the citizenship case and the losing side of the gerrymandering one.Cole said the 5-4 decisions that cross ideological lines “send a message that this is a court that is not just determined by partisan ideology, but is applying law.” Roberts sought to reinforce that perception of the court in comments in November, speaking out after Trump called a judge who ruled against his asylum policy an “Obama judge.” Roberts responded: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Commenting on the day before Thanksgiving, he said an “independent judiciary is something we should all be thankful for.” It could be several years before the impact of a more conservative court, assuming no changes in membership, becomes clear. But one fear among the liberal justices, and liberals more generally, is a push to restrict if not overturn abortion rights the Supreme Court first declared in the Roe v. Wade decision in 1973. At least one conservative justice has the decision in his sights. Justice Clarence Thomas at one point this term labeled it as “notoriously incorrect.” The first term of any new justice often has fewer big cases than normal, but the court’s desire to stay away from controversy was heightened by Kavanaugh’s difficult confirmation following allegations he sexually assaulted a woman when they were both in high school. He denied doing anything improper. When he arrived at the court, his colleagues seemed to welcome him warmly. Justice Elena Kagan, his neighbor on the bench, joked with the new justice and made a point of shaking his hand at the end of his first day of arguments. Kavanaugh’s parents were often in the courtroom, especially when their only child announced an opinion. The new justice “stuck pretty close to the chief in a lot of cases,” said Supreme
Brett Kavanaugh takes hard line on federal regulations
Supreme Court nominee Brett Kavanaugh worries about federal agencies running amok. He has argued that judges have given federal agencies leeway to push policies that go well beyond what Congress allowed. That view has endeared him to conservatives, who believe unelected bureaucrats are foisting radical regulations on Americans with little accountability. Liberals fear Kavanaugh would block business restrictions that are needed to tackle climate change, improve workplace safety and protect consumers. In a dissent last year as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh cited Supreme Court decisions in claiming that agencies can regulate “major social or economic activities” only if Congress clearly allows them to do so. Placing controls on cigarettes, banning physician-assisted suicide and imposing rules on greenhouse gas emitters are examples of such major action, he said. Kavanaugh’s approach to what conservatives call the “administrative state” hasn’t received the kind of attention given to marquee issues such as abortion and presidential powers since he was nominated by President Donald Trump to replace Justice Anthony Kennedy. But it’s an area where, if he’s confirmed, his presence on the court could mark a significant shift. If Kavanaugh aligns with other conservative justices in cases dealing with regulatory agencies, their opinions could ultimately affect a wide swath of American life. Under a widely followed judicial philosophy, courts generally step aside and give agencies broad leeway when a law is unclear. Kavanaugh, though, advised judges in a 2016 Harvard Law Review article to instead “seek the best reading of the statute” to see whether the regulation fits with it. He said this would “help prevent a runaway executive branch that exploits ambiguities in governing statutes to pursue its broad policy aims, even in situations where Congress has not enacted legislation embodying those policies.” Kavanaugh’s concern is that agencies are assuming powers that belong to Congress and the judiciary, said Ashley Baker, director of public policy for the Committee for Justice, a conservative legal and policy advocacy organization. She said Kavanaugh’s nomination was a “big step in the right direction” of establishing the authority of courts to interpret federal laws instead of giving agencies a blank check when laws are ambiguous. Kavanaugh — often in dissent — has rejected a wide variety of federal regulations and sought to rein in agencies, according to an Associated Press review of his 12 years on the D.C. appeals court, along with other writings and speeches. He also has displayed skepticism of independent federal agencies that are not answerable to the president. He wrote in dissent in January that he would have found that the structure of the Consumer Financial Protection Bureau — the agency charged with protecting consumers against debt collectors and banks — was unconstitutional because it was headed by one person, not a board or commission, and the president did not have the authority to fire its head. The full D.C. Circuit upheld the structure of the bureau that Congress created in the wake of the 2008 financial crisis, reasoning that a degree of independence would prevent problems that handicapped past regulators. Kavanaugh has objected to Environmental Protection Agency regulations on greenhouse gases; the Federal Communications Commission’s net neutrality rule requiring an equal playing field on the internet; and IRS requirements for paid tax preparers. All went beyond what Congress allowed by law, he said. In 2014, Kavanaugh dissented from the majority opinion upholding a safety citation by the Labor Department against SeaWorld following the drowning of a trainer by a killer whale during a 2010 show in Orlando, Florida. Kavanaugh said many sports and entertainment shows are dangerous, but the Labor Department has not “traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers at the circus, or the like.” The ruling reflects Kavanaugh’s “deep and visceral opposition to the notion that the institutions created by Congress should be able to protect workers, clean air, clean water, consumers — everyday Americans,” said Daniel Goldberg, legal director of the Alliance For Justice, a liberal judicial advocacy group that opposes Kavanaugh’s confirmation. Kavanaugh is critical of a standard known as the Chevron doctrine, established by a 1984 Supreme Court ruling. Under Chevron, courts mostly defer to experts at the federal agencies when deciding whether regulations are consistent with law. The idea is that Congress often writes ambiguous laws, so agencies have to craft regulations to fill in the details. Kavanaugh said his time working for the administration of George W. Bush showed him the perils of the doctrine. “From my more than five years of experience at the White House, I can confidently say that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints,” he wrote in the Harvard Law Review article. Bernadette Meyler, a Stanford University law professor who has studied Kavanaugh’s regulatory decisions, said his view devalues agencies’ expertise and demands a level of clarity and specificity that lawmakers can’t provide. “Trying to cut back on regulatory agencies reduces the extent to which expertise is really relevant in decision-making,” she said. To be sure, Kavanaugh has also upheld regulations and forced agencies to implement rules required by Congress. He joined the majority in a ruling that upheld a ban on e-cigarette use on planes and wrote a unanimous opinion that rejected a challenge to stricter controls on a type of pollutant produced mostly by cars and power plants. In a July 2013 ruling, Kavanaugh in a 2-1 decision sided with environmental groups who objected to the EPA’s decision to defer regulation of carbon dioxide from sources other than fossil fuels. Kavanaugh said the Clean Air Act did not allow the EPA to put off those regulations. “Judge Kavanaugh is a fair and impartial jurist whose evenhanded
Could hard-right Supreme Court haunt GOP? History says maybe
Be careful what you wish for. That’s the history lesson for Republicans eagerly anticipating Brett Kavanaugh’s ascension to the Supreme Court, which could cement conservative control of the court for a generation. The GOP may ultimately pay a political price. When and how steep? That depends on how momentous the issues and how jolting the decisions, according to legal scholars who’ve studied the high court’s impact on electoral politics. The past century is replete with cautionary tales for political parties that rejoice when the Supreme Court’s ideology turns their way. That track record, coupled with today’s intensifying partisanship, suggests that when it comes to high court nomination fights, both sides should be careful what they wish for. “In a democracy, what matters is winning votes,” said Michael Klarman, a Harvard Law School professor who has studied constitutional history. “And you shouldn’t trust the courts to win your battles for you, because there’s going to be a backlash if they go too far, too fast.” Such words of caution won’t have a discernible impact on senators, who have little incentive to abandon their own or their parties’ ideological preferences. “I’ll vote to confirm Kavanaugh and I’ll take my chances,” said No. 2 Senate GOP leader John Cornyn of Texas. But since Kavanaugh’s confirmation could tip the court decisively to the right for years, the past consequences of some such shifts are instructive. In the 1930s, a conservative Supreme Court knocked down many of President Franklin D. Roosevelt’s New Deal programs aimed at hoisting the country out of the Depression. Statutes letting industries and unions set wages and prices, raising farm income and regulating the coal industry were declared unconstitutional, as was a New York minimum wage law. That helped fuel a 1936 FDR landslide that also gave Democrats 76 Senate and 334 House seats, Election Day majorities neither party has ever matched. The triumph paved the way for congressional control that Democrats didn’t relinquish until after World War II. The Warren Court’s liberal decisions of the 1960s helped power Richard Nixon’s law-and-order rise to the White House in 1968. Rulings buttressing criminals’ rights, like the Miranda vs. Arizona decision requiring authorities to inform arrested people of their rights, provided potent ammunition for Nixon at a time of racial unrest and growing crime rates. “Some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country and we must act to restore that balance,” Nixon said in his acceptance speech 50 years ago this week at the Republican national convention in Miami Beach, Florida. The 1973 Roe v. Wade case legalizing abortion has been backed by strong majorities of Americans but spurred the rise of the anti-abortion movement and helped galvanize political involvement by Christian conservatives. Both remain vital factors in American politics and a driving force for the GOP. The disconnect between the court’s ideological leanings and voters’ preferences occurs because justices are appointed for life. With turnover on the bench infrequent, the court’s views often lag behind the election results of the presidents and senators who pick them. “Over the long course of time, the court follows broader political trends,” said Thomas Keck, a Syracuse University political scientist who studies the Supreme Court and political movements. “But it doesn’t tend to turn as quickly as the elected branches” of government. Kavanaugh’s nomination could be pivotal. He would replace the retiring Anthony Kennedy, who’s been the nine-member court’s swing vote on issues including same-sex marriage, corporate campaign contributions and gun rights. Yet Kavanaugh’s confirmation wouldn’t guarantee that the court would veer firmly rightward because forecasting justices’ long-term viewpoints is historically tricky. Chief Justice Earl Warren, a GOP California governor appointed by President Dwight Eisenhower, steered one of the most liberal courts in history. Anthony Kennedy was appointed by conservative icon President Ronald Reagan but protected abortion rights. Chief Justice John Roberts was selected by President George W. Bush but cast the decisive tally preserving Obama’s health care law. But there will inevitably be numerous opportunities for the court to address politically searing issues. In its coming term alone, the justices might face cases about special counsel Robert Mueller’s investigation of Russian intrusion in the 2016 presidential race, religious liberty and sexual orientation. Future cases could emerge over curtailing Obama’s health care statute, revoking protections against deporting young immigrants and curbing abortion rights — issues that galvanize conservative and liberal voters alike. Joseph Ura, a political scientist at Texas A&M University, says the impact of a sharp, rightward court shift could be felt quickly enough to affect a Trump re-election bid in 2020, if not sooner. In a 2014 study, Ura used computer modeling to compare five decades of important court decisions to the public mood. He concluded that there is a quick backlash against shifts in the court’s ideology that lasts about two years before eroding, followed by a slight, longer-term swing toward the justices’ viewpoints. Ura’s guidance to Democrats, should a Kavanaugh confirmation produce high-profile court decisions invalidating liberal programs? “My advice to them is to campaign on this,” he said. Republished with the permission of the Associated Press.
Donald Trump picks Brett Kavanaugh for court, setting up fight with Democrats
President Donald Trump chose Brett Kavanaugh, a solidly conservative, politically connected judge, for the Supreme Court Monday night, setting up a ferocious confirmation battle with Democrats as he seeks to shift the nation’s highest court ever further to the right. A favorite of the Republican legal establishment in Washington, Kavanaugh, 53, is a former law clerk for retiring Justice Anthony Kennedy. Like Trump’s first nominee last year, Justice Neil Gorsuch, Kavanaugh would be a young addition who could help remake the court for decades to come with rulings that could restrict abortion, expand gun rights and roll back key parts of Obamacare. “He is a brilliant jurist, with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time,” Trump said in his prime-time televised White House announcement. He added: “There is no one in America more qualified for this position, and no one more deserving.” With Kavanaugh, Trump is replacing a swing vote on the nine-member court with a staunch conservative. Kavanaugh, who serves on the Court of Appeals for the D.C. Circuit, is expected to be less receptive to abortion and gay rights than Kennedy was. He also has taken an expansive view of executive power and has favored limits on investigating the president. Speaking at the White House, Kavanaugh pledged to preserve the Constitution and said that “a judge must be independent and must interpret the law, not make the law. A judge must interpret the Constitution as written.” A senior White House official said Trump made his final decision on the nomination Sunday evening, then phoned Kavanaugh to inform him. The official said Trump decided on Kavanaugh because of his large body of jurisprudence cited by other courts, describing him as a judge that other judges read. On Monday, Trump phoned retiring Justice Kennedy to inform him that his former law clerk would be nominated to fill his seat. Trump signed Kavanaugh’s nomination papers Monday evening in the White House residence. Top contenders had included federal appeals judges Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman. Some conservatives have expressed concerns about Kavanaugh, questioning his commitment to social issues like abortion and noting his time serving under President George W. Bush as evidence he is a more establishment choice. But his supporters have cited his experience and wide range of legal opinions. With Democrats determined to vigorously oppose Trump’s choice, the Senate confirmation battle is expected to dominate the months leading up to November’s midterm elections. Senate Republicans hold only a 51-49 majority, leaving them hardly any margin if Democrats hold the line. Democratic senators running for re-election in states Trump carried in 2016 will face pressure to back his nominee. Senate Majority Leader Mitch McConnell called Kavanaugh “a superb choice” and said senators would start meeting with him this week. Some Republican senators had favored other options. Rand Paul of Kentucky had expressed concerns but tweeted that he looked forward to meeting with Kavanaugh “with an open mind.” Democrats and liberal advocacy groups quickly lined up in opposition. Signaling the fight ahead on abortion rights, Dawn Laguens, executive vice president of Planned Parenthood Federation of America, said in a statement: “There’s no way to sugarcoat it: With this nomination, the constitutional right to access safe, legal abortion in this country is on the line. The White House invited a number of senators to attend the Monday night announcement. Democrats who were invited but declined included Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Doug Jones of Alabama, Joe Manchin of West Virginia and Dianne Feinstein of California. Feinstein is the ranking Democrat on the Judiciary Committee. The others are Republican targets for the confirmation vote who come from Trump-won states where they face re-election this fall. Democrats have turned their attention to pressuring two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, to oppose any nominee who threatens Roe v. Wade. The two have supported access to abortion services. Kavanaugh is likely to be more conservative than Justice Kennedy on a range of social issues. At the top of that list is abortion. A more conservative majority could be more willing to uphold state restrictions on abortion, if not overturn the 45-year-old landmark Roe v. Wade decision that established a woman’s constitutional right. Kennedy’s replacement also could be more willing to allow states to carry out executions and could support undoing earlier court holdings in the areas of racial discrimination in housing and the workplace. Kennedy provided a decisive vote in 2015 on an important fair housing case. Like the other eight justices on the court, Kavanaugh has an Ivy League law degree, spending his undergraduate and law school years at Yale. Since 2006, he has been a judge on the federal appeals court in Washington. He also was a key aide to Kenneth Starr during Starr’s investigation of President Bill Clinton, worked on behalf of George W. Bush’s campaign during the election recount in 2000 and served in the Bush White House. Kavanaugh’s many written opinions provide insight into his thinking and also will be fodder for Senate Democrats who will seek to block his confirmation. He has written roughly 300 opinions as a judge, authored several law journal articles, regularly taught law school classes and spoken frequently in public. Kavanaugh’s views on presidential power and abortion are expected to draw particular attention in his confirmation hearing. Drawing on his experience working on the Clinton investigation and then in the Bush White House, he wrote in a 2009 law review article that he favored exempting presidents from facing both civil suits and criminal investigations, including indictment, while in office. That view has particular relevance as special counsel Robert Mueller is looking into Russian meddling in the 2016 election and whether the Trump campaign played any role in a foreign interference plot. On abortion, Kavanaugh voted in October to delay an abortion for a teenage immigrant who was in government
Doug Jones not opposed to confirming Donald Trump’s Supreme Court pick
President Donald Trump is expected to announce his decision on who he will nominate to replace retiring Supreme Court Justice Anthony Kennedy in the Supreme Court Monday evening, and Alabama Senator Doug Jones has stated he is open to voting in favor of the new Justice. “I’m open to voting yes. I’m open to voting no. We don’t know who the nominee is going to be yet,” Jones told CNN on the State of the Union Sunday morning. “I don’t think my role is to rubber stamp for the President, but it’s also not an automatic knee-jerk no, either.” As of Monday morning, Trump’s top contenders for the vacant Justice seat are federal appeals judges Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh and Raymond Kethledge. Trump’s choice is predicted to begin a battle in the Senate between Democrats who are warning that the development may lead to changes on issues such as abortion rights and gay rights; and Republicans who are eager to win a majority in the court. “We’re going to give them a very, very good, hard and fair look to determine what I believe to be the best interest of my constituents, but also the country,” Jones continued. “I don’t think anyone should expect me to simply vote yes for this nominee, just simply because my state may be more conservative than others.” Jones beat out former Chief Justice Roy Moore in the December 2017 special election to fill the U.S. Senate seat previously occupied by Attorney General Jeff Sessions. Since then he’s caused a few controversies within the Alabama Legislature; to the point that the Alabama State Senate passed a resolution condemning his January vote against legislation banning late term abortions, but says he believes the rhetoric on both sides of the aisle isn’t helping. “I would prefer they don’t do that. I would prefer the Republicans would not say they automatically will vote for someone. The problems we have now is a partisan divide. This has become a political issue instead of an independent judiciary. That’s not a good thing,” Jones said during the interview according to AL.com.
Donald Trump weighs 2 or 3 candidates for court, to meet with Mike Pence
President Donald Trump is closing in on his choice to fill a Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, telling reporters that he’s focused on two or three people ahead of his Monday announcement. “I think I have it down to four people. And I think of the four people I have it down to three or two,” Trump told reporters aboard Air Force One Thursday, as he traveled to a campaign rally in Montana. Trump was at his private golf club in New Jersey Friday and planned to spend the weekend there, consulting with advisers as he picks his court nominee amid intense jockeying from various factions seeking to influence the choice. The president planned to have dinner Friday night with Vice President Mike Pence, who has also been meeting with candidates as part of the vetting process. The president’s top contenders include federal appeals court judges Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge, with federal appeals court judge Thomas Hardiman still considered in the mix. As part of the roll-out process, the White House has been preparing information packages on all four, said two people familiar with the process who were not authorized to speak publicly. Starting from a list of 25 names vetted by conservative groups, Trump has also given serious consideration to federal appeals court judges Amul Thapar and Joan Larsen, and it’s possible the White House will prepare materials for more people. The president enjoyed the suspenseful process leading up to his announcement last year that he would nominate Justice Neil Gorsuch and is hoping to keep the guessing game going until he announces his pick Monday night. Trump’s social media director Dan Scavino tweeted Friday that the announcement would be at 9 p.m. from the East Room in the White House. Pence met in person with Kethledge and Barrett while he was vacationing in Indiana earlier this week and met with Kavanaugh at the Naval Observatory on July 4, said a person familiar with the process who was not authorized to speak publicly. Pence has also spoken to Republican senators, including Senate Majority Leader Mitch McConnell, Sen. Ted Cruz and Sen. Rand Paul about the process. As the president builds suspense for his second court pick in two years — a nominee who could tip the balance toward conservatives and revisit landmark rulings on abortion access, gay marriage and other issues — momentum is also growing among GOP supporters and detractors of the top contenders. Conservatives and some libertarian-leaning Republicans, including Paul of Kentucky, have raised concerns about Kavanaugh, warning he could disappoint Republicans if his past decisions are a guide. Paul and another Republican, Cruz of Texas, are supporting fellow Sen. Mike Lee, R-Utah, who is not said to be under serious consideration by the White House but is the only lawmaker Trump has considered for the position. To counter that, Kavanaugh’s allies have begun pushing back, reaching out to influential Republicans to ward off potential criticisms, according to one conservative who was the recipient of such outreach and spoke on condition of anonymity Thursday to discuss the situation. The senior administration official, though, said the administration is feeling less heat than earlier in this week over the choices, particularly Kavanaugh, and believes the jockeying in general has calmed somewhat. With the Senate narrowly divided, 51-49, in favor of Republicans, Trump’s announcement will launch a contentious confirmation process as Republicans seek to shift the court to the right and Democrats strive to block the effort. Any GOP defections could begin to doom a nominee. Senate Minority Leader Chuck Schumer, D-N.Y., told the president this week that nominating someone hostile to abortion access, or the 2010 health care law, would tarnish his legacy. Schumer told Trump that such a choice would be “cataclysmic” and create more division than the country has seen in years, according to a person familiar with the conversation who said Trump called Schumer on Tuesday. McConnell said Thursday at an event in Louisville he believes “the president will make a very high-quality appointment.” He acknowledged that his fellow Kentuckian, Judge Amul Thapar, is a finalist, but noted, “The competition at this level is pretty intense.” Trump conducted interviews Monday and Tuesday. Lee, R-Utah, is not viewed as a top prospect, but has consistent support among conservative and libertarian activists, including some Republicans who worry about a nominee not upholding their principles and who say the Utah senator could bring more certainty. Paul has told colleagues he may not vote for Kavanaugh if the judge is nominated, citing Kavanaugh’s role during President George W. Bush’s administration on cases involving executive privilege and the disclosure of documents to Congress, said a person familiar with Paul’s conversations who spoke on condition of anonymity. Some conservatives have pointed to Kethledge as a potential justice in the mold of Gorsuch. Both Kethledge and Gorsuch once served Kennedy as law clerks, as did Kavanaugh. Kethledge, a Michigan Law graduate, would add academic diversity to a court steeped in the Ivy League. Since Trump said his short list includes at least two women, speculation has focused on Barrett, a former law clerk to Justice Antonin Scalia and a longtime Notre Dame Law School professor who serves on the 7th U.S. Circuit Court of Appeals. Conservative groups rallied around Barrett after her confirmation hearing last year featured questioning from Democrats over how her Roman Catholic faith would affect her decisions. Trump’s choice to replace Kennedy — a swing vote on the nine-member court — has the potential to remake the court for a generation as part of precedent-shattering decisions. Recognizing the stakes, many Democrats have lined up in opposition to any Trump pick. Republished with the permission of the Associated Press.
