E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics

Below is my column in USA Today on the remarkably united and non-ideological line of cases handed down by the Supreme Court.  As Democratic leaders demand to pack the Court to create a liberal majority, the Court itself appears to be speaking through these cases.

Here is the column:

The Supreme Court has finally handed down two of the five “blockbuster” opinions of this term with rulings on the Affordable Care Act and religious rights. The most striking aspect of the decisions was the absence of ideological divisions. Indeed, the case on religious rights is yet another unanimous decision from a Court that President Joe Biden has declared “out of whack” and Democratic leaders have declared hopelessly divided along ideological lines.

This week represented the final collapse of the false narrative that has been endlessly repeated like a mantra in Congress and the media.

When it comes to health care, the ACA has long been in the position of Mark Twain who insisted that his death has been “greatly exaggerated.” During the circus-like confirmation hearing of Amy Coney Barrett, Democratic senators surrounded the room with giant pictures of people who would lose their health care due to her nomination. Various senators and legal analysts insisted that Barrett was obviously selected to kill the ACA.Democratic senators pummeled Barrett with stories of people who may die as a result of her nomination and portrayed her as a craven, heartless ideologue selected to take away health care for millions.

It was not a matter of whether but when according to members like Sen. Mazie K. Hirono (D., HI) who declared she would vote against Barrett because “she will vote to strike down the Affordable Care Act.”

False narrative smears Barrett

At the time, I objected that the narrative was wildly off-base and that there was little chance that the majority of the justices would use the case to strike down the act. To the contrary, the act was overwhelmingly likely to be decided on technical grounds on either standing or severability. I also noted that, if anything, I would expect Barrett to rule against striking down the act in this case.She did so and joined in the 7-2 decision.

This was never a plausible narrative but it did not matter to the Democratic members. They demanded that Barrett assure them that she would vote for the ACA in the case – a dangerous and raw demand for a guarantee on a pending case as a condition for confirmation. Despite treating her as a virtual judicial serial killer, none will likely apologize or even recognize the unfair treatment at the confirmation hearing. It was after all just politics in an age of rage.

Arguably, the most important of the “big ticket” cases was Fulton v. Philadelphia on whether a Catholic adoption agency could be forced to assist LGBT couples when such adoptions countermand religious beliefs. The Court delivered a 9-0 decision in favor of the Catholic charity and held that Philadelphia was violating the free exercise clause of the Constitution in requiring adherence to the city’s non-discrimination policy.

Religious freedom upheld in court

Writing for the Court, Chief Justice John Roberts held “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents…violates the First Amendment.”

It is a major win for religious rights and the Court spoke as one in reversing the lower courts with a strong majority opinion and concurring opinions. It also adds strength to other pending cases, including yet another case involving the Masterpiece Cakeshop in Colorado to make cakes celebrating LGBT events.

After winning a narrow decision before the Supreme Court in 2018, Jack Phillips was pursued by critics to make additional cakes and create the basis for another challenge. They may now regret that decision if Phillips builds on the earlier narrow ruling to secure another major ruling not just on religious freedom but free speech grounds.

The Court continues to frustrate critics who insist that it is dysfunctional, divided and needs to be radically changed from packing the Court with a liberal majority to actually creating a new court for constitutional rulings like the Fulton case. 

For example, Professor Kent Greenfield argued that “the Supreme Court has become too partisan and unbalanced to trust it with deciding the most important issues of our day.”

The Court itself however is not cooperating with this inconvenient line of unanimous decisions.The fact is that most of the opinions of the Court are not ideologically divided. Indeed, Justice Stephen Breyer recently objected to those calling the Court “conservative” and opposed those demanding that Congress pack the Court to achieve an immediate liberal majority.

Liberal groups and media figures are aggressively pushing Breyer to retire, including an insulting billboard campaign by a group called “Demand Justice.”

The Court itself does not engage in such public campaigns. It speaks through its opinions and the message could not clearer. For a hopelessly divided ideological Court, it seems to be saying a lot in one voice not just about the law but about its own institution. In the end, it is unlikely to matter. The utter collapse of the narrative means nothing if it is not recognized in the media. The justices do not run billboards in the streets of Washington like Demand Justice. They will continue to be denounced as utterly “out of whack” because  politics demands it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

40 thoughts on “E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics”

  1. It does not matter what any Supreme Court Justice does. If it is a ruling someone does not like, that is the ruling they will use to excoriate that Justice. The truly sad part is a Justice may or may not rule on the law as they interpret that law. It is not about personal preferences, as more than one Justice has noted over the years.

    I do not ever expect any politician to say they were wrong about any Justice, that is not their game. You may not like any ruling, but one must concede these Justices are excellent jurists trying to work through the hardest cases the country for all judges, not just the highest courts.

    1. Hysteria did not win this time. Thank goodness for the judges quietly going along and disregarding all of the histrionics that precede their decisions.

  2. We need a congressional “Frank Church Committee” on unconstitutional abuses of power (Cointelpro style abuses).

  3. “You can’t handle the truth!”

    – Colonel Jessup
    _____________

    The Supreme Court can’t handle the scope and breadth of American freedom.

    Congress is denied any power to tax for anything other than “…general Welfare.” Congress is denied any power to regulate anything other than money, commerce and land and naval Forces. Individuals enjoy the absolute right to private property.

    Words mean things. But not to the Supreme Court. Congress cannot tax for individual welfare, specific welfare, redistribution of wealth, charity or favor. Congress cannot “claim or exercise dominion” over any aspect of private property. The entire American welfare state is illicit, illegal, illegitimate and unconstitutional.

    Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.

    Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

    The Supreme Court and Congress must be disabused of their adherence to and subsumption by the principles of communism. The Supreme Court and Congress must be brought under control of the Constitution and Bill of Rights through an exponential increase in efficiency and acceleration of the impeachment and conviction process. The maximal freedom of individuals must be restored in America.

  4. Turley, what is becoming increasingly clear is that your marching orders from the Hate Network require you to attack Democrats every chance you can get. Today’s post is another example. You know good and well that the merits of the ACA were NOT addressed, and that the case was dismissed due to lack of standing. That is not vindication for the Barrett being chosen by The Heritage Foundation and Federalist Society for her anti-abortion and anti-ACA bias. It is NOT proof that, given the right case, she wouldn’t find a way to strike down this law. In fact, these non-on-the-merits rulings were probably chosen to be released as a prelude to rulings to come on abortion, etc.. It does not prove that the political bent of the current SCOTUS is out of synch with the values and beliefs of most Americans. The ruling against same-sex foster parents is just plain wrong. Insisting on discriminating against same-sex couples and whining to the SCOTUS that the law requiring agencies receiving taxpayer money not to discriminate violates religious freedom celebrates discrimination.

    And, again, you exaggerate what those advocating for adding justices are suggesting: they aren’t seeking a “liberal majority”–just an adjustment to level the playing field that Republicans have unfairly tilted before they lose power altogether. Merrick Garland should be on the Court, not Gorsuch, and would be except for Mitch McConnell denying Obama his choice of justice due to the alleged proximity of the election. Obama was legally elected by the majority of thee American people, and they were denied their say in choice of a justice. If the McConnell rule had been applied, Barrett wouldn’t be on the Court, either, but you don’t seem to be bothered by Republican hypocrisy, Turley. And. those additional 25 witnesses who wanted their say on Kavanaugh should have been allowed to speak, but Republicans refused them.

  5. brainhumped leftists and democrats in general have never yet bothered with facts when they’ve got a deathgrip on a pet narrative

    1. Every single social and environmental “cause” over the past several decades are 100% manufactured by the left. It’s now easier than ever with the internet. Just a strategic tweet or two and a new “cause” is born and wholly accepted by their minions and propagated by their media.

      1. I can’t stand the hypocrisy any longer, Eb. I’m taking it.

        Hey, Anonymous, you say: “Just a strategic tweet or two and a new “cause” is born and wholly accepted by their minions and propagated by their media.”

        You mean like Birtherism?

          1. Um no, only fringe outlier nut jobs have latched on to conspiracy theories like Massive Voter Fraud and the Birther thing. These are not accepted mainstream causes.

        1. No, like Global Warmin… err, I mean cooling… err I mean “Climate Change”. Snowfalls Are Now a Thing of the Past! Like the “Hole In The Ozone Layer” will burn up the planet in 20 years!,… like all the little fishes in the oceans are going to die due to pollution!… like The AIDS “Crisis”, you know AIDS will kill up to 30 million Americans by the year 2000, don’t you?,… like “systemic racism”. like pretending that a man could put on panties and become a woman,..like LGBTADCDEFG “rights” and “preferred pronouns”, like getting rid of “Net Neutrality” will not only resulting in providers taking advantage of people (especially black communities of course) and raise prices DRASTICALLY,, but will basically ruin the Internet as we know it I tell ya!!!!!!. … Like, Ice Age, Acid rain, Rain Forrest, oil depletion (the experts have been saying this since the 50’s), Peak Oil (haven’t heard that one in a while, huh?) Shall I go on?

          PS. Yes, this response is full of grammatical errors and hurried, I’m on my phone in a meeting… do deal with it.

  6. Around the nation foster care homes are in short supply. If you Google foster care shortage you will find many articles addressing the sadness of the issue. Nancy Pelosi said that we must think about the children. She pulled our heart strings about the children in cages until it was discovered that the photos of children in cages were taken during the Obama administration. Taking care of the children only applies if it fits her and Joe’s ideology. In a time of a shortage of foster care two Catholics (Joe and Nancy) stand against the providing of foster care by a The Catholic Church. The pursuit of power for these two is more important than standing for principle. They have no problem with the sacrifice of the children on their secure the vote altar. https://childwelfaremonitor.org/

  7. The Court is behaving the way Merrick Garland is behaving as AG. They’re making sure to go at their appointed mission slowly but surely. Politics 101 tells us it’s not effective to, say, take out the Clean Water Act at the top line. That’s politically suicidal. But chipping away at the minimum fines? That can be done beneath the surface and actually be more effective if your goal is to not be hindered by that regulation. Or do what instutional polluters do…, lobby to have a distant trigger to penalties. Make it so you can’t be fined until violating a standard 60 days in a row and then violate for 59 before cutting back and resetting the clock.

    Federalists gonna federalist. Full stop.

    eb

  8. I think this unity is artificial because it was facilitated by narrowing the grounds of decision even if that required playing games with the law.

    In the ACA case, the states were denied standing even though all the requirements for it were met, if you accept the standing through inseverability theory, as articulated very well by the dissent. The best arguments made against that, by Thomas in his concurrence, were not persuasive. If standing had been found, the court would likely have split more widely over the issues of the mandate’s constitutionality and its severability. I suspect in the end they would have found the mandate unconstitutional but also that most of the rest of the ACA was severable from it. But that would have been a messy, and divided, decision.

    In the CSS case, the concurrence by Gorsuch exposed very clearly the distortions to which the court resorted to find that the City was not applying a neutral principle of general applicability. Had they not done that, they would have had to decide whether to overrule Smith, and that would have split the court.

    If this is right, then the court is seeking to give the appearance of unity at the expense of integrity. The question then would be why? I think it’s because they wish to show that court packing is not necessary. If the court appears not to be deciding cases along ideological lines, there is no reason to pack it. If this is so, the court would be subtly bowing to political pressure.

    1. It’s all Roberts fault for calling the penalty a tax after ruling it first was not a tax. This is the rationalism and logic our betters on the bench bestow upon us in their decision making.

  9. Its true. And on this we agree. I said it before and I stand by it. At a time when the other two branches of govt are off placating to constituents for votes, the Court no doubt strengthened by the “appointment” rather than elected seats they hold, is the one branch of govt doing their job. They are weighing the Constitutionality of cases brought before them and not placating to any politics, public, presidents or parties. That everyone doesn’t always like their interpretations is moot. That the trolls don’t like it is moot. The fact is at a time when the Legislative and Executive branches are lost in a never ending calliope of kowtowing to the lowest common denominators in their respective constituent bases, the court is doing its job. And it looks like at the end of the day its the Court that’s going to save us from our own infantile nature.

  10. If you are an idiot and take the simple reading of SCOTUS decisions, then you could come up to something similar to the drool that makes up this post. But if you have more then a reptiles worth of brain cells then you will realize that SCOTUS is doing exactly what you would expect. First, they loudly proclaimed the religious freedom to spread a deadly virus. They did not kill the ACA because that would have been devastating to the Rs electoral chances. They did declare that the government must now be forced to fund and support hatred of LGBT, which was expected and very evil. The three liberals on the court signed on to that to prevent the court from taking an even worse position.

    Yes, we have a SCOTUS that is just as bad as the Ds feared and the Rs hoped it would be.

    1. MollyG

      You are correct on all counts. The public supports progressive ideas, laws, and government. The Supreme Court’s function is to maintain the status quo. Progress cannot be stopped, but it can be slowed down.

      1. Whose ass did you pull that out of? SCOTUS is supposed to interpret federal law and the constitution in the context of cases that are presented to it. It is in reality also a political institution with political actors who have policy they want to make reality. But to say that their job is to maintain the status quo is bull shit.

  11. Politics is a blood sport. The ACA and many to all of the cases ruled on by the court could and Should have been handled through legislation. The Gop under Trump, like Obama and the Dem before him, held the Senate, the House and the Presidency. The GOP CHOSE not to use the power we gave them. Thy could have (via legislation) repealed Obama care, established state control of abortions, put marriage back in the hands of the states to decide, made English the official language of the country, made being in the country illegally a felony with deportation and a permanent bar to citizenship as part of the penalty.
    They chose not to act as the DEMs now have done. There is no place in Congress or the Whitehouse for cowards.

    1. Welcome to politics 101, Waldo. You mean politicians preach to the choir and go back on their word? “Why I never!…”

  12. Turley says:

    “This week represented the final collapse of the false narrative that has been endlessly repeated like a mantra in Congress and the media.”

    Another false narrative is the Big Lie that the election was stolen. A narrative endlessly repeated like a mantra for months by his network Fox News and the Trumpists and for which Fox is being sued for billions. And yet Turley has never mentioned this lie much less debunked it. His refusal to even mouth the words “Big Lie” reminds me of Putin’s refusal to utter the word “Navalny” when asked about this imprisoned anti-corruption fighter.

    It is too late, of course, for Turley now to denounce this lie because it would be an implicit admission that he should have done so long ago. He will have to continue to pretend it does not exist and hope that few people will notice his rank hypocrisy.

    But some of us notice, will remember it, and never let him forget it.

    1. As a Trump supporter I have only one problem with the stolen election issue. It could have been put to rest had the court ruled on the merits of the Texas law suit. Unlike the buffoons that that pushed that issue for Trump,
      Texas had a very sound position. The supreme Court decided to not rule on the merit of Texas challenge,. Instead it said Texas had no standing.

    2. Very few people at FOX ever went with this narrative and Professor Turley has time and time again called out those of have.

      1. Anonymous says:

        “Very few people at FOX ever went with this narrative and Professor Turley has time and time again called out those of have.”

        To which narrative are you referring? Please don’t say that “the election was stolen” because that would be a lie.

  13. the three SCOTUS appointed by Donald J. Trump all betrayed us. I read about their shortcomings when he nominated them. If I knew. He knew. Then they betrayed us.
    Now you wite about them like they are good. They went communist 7 to 2.

  14. The problem that I have with the Supreme Court is their refusal to hear cases because of the claim the plaintiffs, whenever they are states, “lack standing.” If states lack standing, who does have standing? They did this when Texas sued over the election and they did it again with the ACA. They’re not doing it because of legal precedent, they’re doing it purely for political purposes because they fear fallout if they should decide such cases along Constitutional lines. The court was established as a legal body to decide Constitutional issues, but they’ve become a legislative body, thanks to Earl Warren and leftist Democrats.

      1. A group of voters would, but not the state. The Texas lawsuit was about other states not following their own rules. Texas has no business telling another state how it should conduct its own elections. If another state sued Texas for the same reason Texas would lose its mind.

  15. Turley should discover Trout Lake, Washington…..if he likes rainy day hiking in wild places.

    Go in September/October….just before the Snow season arrives.

    Mt. Adams Wilderness area there and is bordered by the Yakima Indian Reservation….and lots of private and State owned forest land as well.

    Lots of Deer, Elk, and Black Bear….with lots of Cougars.

    1. Your comment is on the wrong post. However, I believe Mr. Turley writes about a trail in Washington, DC, where he lives. Most trails have some beauty associated with them.

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