Without a doubt, this past term of the Supreme Court will be forever known as the “Hobby Lobby Term.” The reaction against this decision has been vehement, vitriolic and most of all, false. The apoplectic reaction on the Left is nothing short of amusing. From Harry Reid’s declaration that “five white men” are deciding contraceptive choices (Clarence Thomas is black) to Nancy Pelosi’s scare-mongering, one would think that the police are on the way to confiscate every last contraceptive pill and diaphragm. Of course, as Megyn Kelly of Fox News pointedly stated, it was five white men who decided Roe vs. Wade many years ago, but we hear nary a peep from the Left regarding the gender of Supreme Court Justices.
Equally offensive are the assertions in some Leftist corners that the religion of the Justices played a role in this decision. Namely, the fact that there are six Catholics on the bench seems to grate some Leftists. They are under the apparent assumption that had there been some Protestants, or more Jews, the case would have been decided differently.
These reactions by the Left are to be expected since decisions like Hobby Lobby, Town of Greece, and McCutcheon do not comport to their view of a “living Constitution” that must change with the times. Of course, they obviously have not read the document since our Founders created a mechanism to do just that- the amendment process.
Regardless, there were other decisions of importance this past term and not all of them were 5-4 decisions. In fact, this past term should be noted for the number of unanimous decisions- 47 of 72 cases decided, or 65% of all cases. Very few modern courts since World War II have such a high number of unanimously decided cases. Taken as a whole since becoming Chief Justice, John Roberts has the highest percentage of cases decided unanimously. Perhaps the one thing that separates the Roberts Court from previous post-WWII Courts is the lack of “lone dissenter” decisions. But even that should be testimony to their ability to forge consensus.
Like past terms, it was the Ninth Circuit which had the most cases before the Supreme Court and the highest rate of their decisions being overturned. But lookout, Ninth Circuit: there may be a new whipping boy on the block- the Cincinnati-based Sixth Circuit. And the Federal Circuit, which hears a lot of patent cases, also did not have a great record again before the Court.
Looked at objectively, despite the moans and groans of those on the Left with every decision they found not to their liking, the Supreme Court could have gone so much further in many areas. In the McCutcheon campaign finance case, they simply struck down aggregate limits on donations. Left intact were individual limits. The law remains that a donor may contribute only so much to any one campaign in a two year cycle, but the number of campaigns they can contribute to is now open. The arguments for aggregate limits were absurd to begin with. Essentially as the law worked, a person- assuming they gave the maximum allowed- could contribute to nine candidates. The aggregate limit effectively blocked giving to a tenth candidate. Does giving to a tenth, or eleventh, or six-hundredth candidate really create corruption? Considering the fact the Court could have over-ruled Buckley vs. Valeo or struck down limits altogether, the Left clearly over-reacted.
In Town of Greece vs. Galloway, the Court ruled that a municipal meeting can open their session with a prayer. Oh, the horrors! I am sure the Obama administration had some hand-wringing on this one since they thought that this was some backdoor establishment of religion by a suburb of Rochester. They were placed in the position of defending the Town of Greece since Congress opens with a prayer as do many legislative sessions. Because this was a municipal meeting does the Left honestly believe there is a qualitative difference? Regardless, Kennedy’s decision placed some rather specific ground rules going forward with the proviso that violating them would likely result in an opposite Court ruling in the future.
In the Noel Canning decision, again the Court could have gone much further in their ruling. Again, they established some guidelines for the future putting both the Executive and the Legislative branches on notice. Admittedly, this was a slap-down of the Obama administration’s broad interpretation of the Recess Appointments Clause, but since the rules have since been changed in the Senate, the ruling is simply that: a warning with ground rules, not a practical matter.
Also, in Harris vs. Quinn, the Court could have over-ruled a previous decision (Abood) but instead created a special class of “state employees” to deal with the specifics of the case. This leaves intact the vast majority of instances where state employees can have their wages debited for union activity and was not the serious blow to public worker employee unions organized labor is ranting about today.
The Left was suspiciously silent in their criticisms of the Court this past term when, although there were again warnings for the future, they essentially allowed the EPA to expand their regulatory powers regarding greenhouse gases. And the unanimous decisions which now require the police to obtain a warrant to search a person’s cell phone records and contents- clearly a victory for criminal rights- there was nothing but the chirping of crickets on the Left. They were silent in a case involving the straw purchasing of firearms- the Abramski case- that let stand the federal prosecution of a person. This was a victory for the advocates of gun control laws at the federal level. A case out of Florida involving capital punishment decided in favor of the accused went largely unnoticed by the Left (it involved their definition of mental retardation) thus making it harder to execute someone.
Instead, one needs to look where the Left took exception to cases most vehemently and vociferously. Three of those five cases (Town of Greece, Hobby Lobby, McCullen, Schuette, and McCutcheon) involved religion or some tangential relation to religion (Town of Greece, Hobby Lobby, McCullen). Two involved free speech (McCutcheon and McCullen). The other stand alone involved affirmative action…but not really.
I already discussed Hobby Lobby, McCutcheon and Town of Greece. The McCullen case struck down Massachusetts’ 35-foot buffer zone around abortion clinics. This was a unanimous decision. To hear the Left speak, pro-life protesters will now be blocking doors and harassing patients and doctors when the facts of the case- even acknowledged by the state- indicated that McCullen’s group did none of the sort! This law was not passed because there were roaming clans of pro-life protesters blocking entrances throughout Massachusetts. It was simply a state effort to suppress speech with which they disagreed.
The Schuette decision let stand a Michigan state constitutional amendment which had the audacity to state that race, creed, color, gender and national origin not be considered in state contracting, employment, or college admissions. For this, the Left’s reaction was expected. The decision was 6-2. The Left exposed themselves in their reaction to the fact that they really do not aspire to a color-blind society but instead would like to leave American society a collection of initials (as in, LGBT) and hyphenated demographic groups since it plays into their hands of dividing the country.
And thus the dividing line between the Left and the Right was vividly on display this term- religion and free speech. It is the Left that has a restrictive view of both, in fact an animosity towards religion. The free speech cases indicate that they will stop at nothing and stoop to new depths in order to suppress speech with which they disagree. They would be equally gratified if religion was obliterated from society since they view America as a “secular” society. While Nancy Pelosi and Harry Reid obfuscate the facts and propose legislation to overturn Supreme Court decisions, it should be remembered that while the Supreme Court used commonsense, judgment, and restraint this term, it is the Left fanning the flames of national discord in an effort to create their politically correct view of America not mention, ironically, raise campaign funds.