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.
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