There were only a couple of bright spots for me in the recently announced rulings from the Supreme Court; overall, the decisions were very troubling. Here are some comments on a few of the most significant cases.
- In U. S. v. Texas, the Court split 4-4 on the challenge by 26 states to President Obama’s executive order legalizing several million undocumented aliens. At least this no-decision validates the lower court’s decision and kills the order. But because of the split vote, the Court did not elaborate the underlying views on the issue, which is a disappointment. I just can’t imagine how anyone with common sense about our constitutional system could support such a flagrant abuse of power, but four justices did just that. And we wonder why the rise of Donald Trump?
- In a surprisingly unanimous 8-0 decision, the Court reversed the corruption conviction of former Virginia Governor Robert McDonnell, basically saying that however distasteful the facts, the gifts he accepted from a constituent did not rise to the level of a bribe. This is a good outcome, for it refutes the view of campaign finance reformers who want to make substantially all campaign contributions synonymous with bribery, so as to ultimately remove all private contributions and turn campaign funding over to the government.
- In Fisher v. University of Texas, the long-running affirmative action in college admissions case, the Court surprisingly ruled 4-3 in favor of the University, supporting its so-called “holistic” criteria review of applicants that might use race as a factor under strict scrutiny in the interest of diversity in the student body. Surprising because Justice Kagan, an almost certain vote for the University’s position, had recused herself from the case. This is a horrible decision, made even more so by the fact that Justice Anthony Kennedy, who wrote the opinion, in effect reversed himself on the issue from his statement in the first appearance of Fisher before the Court in 2013, in which he wrote “judicial review must begin from the position that any official action that treats a person differently on account of his race or ethnic origin is inherently suspect”. But in this case, he was almost totally deferential to the university’s judgment, with scant evidence that there were any strict scrutiny criteria in place. Kennedy is obviously struggling with his convictions, particularly now with Antonin Scalia not around to prop him up. What a tragedy.
- In Whole Woman’s Health v. Hellerstedt, Justice Scalia would not have changed the outcome except with moral suasion. In a 5-3 decision written by Justice Breyer, the Court struck down the Texas law that had added regulations to abortion practices in the state. The basis for the decision was that the law posed an “undue burden” on a woman’s right to an abortion, a legal test of state regulatory authority that was added in the 1992 abortion case, Planned Parenthood v. Casey, in a majority opinion written by Justice Kennedy. This decision had left open the authority on the part of the states to develop measures that would offer additional health and safety protections to women seeking abortions. The decision in this case seems to eliminate this authority and it drew a scathing dissent from Justice Thomas, who wrote “The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case”. Amen. If you want to find something positive here, I read this week that the number of abortions performed in Texas decreased by 14% during the time the law at issue in this case was in effect.
- Finally, in what Justice Alito calls an “ominous sign” for religious freedom, the Court decided not to hear a case challenging a Washington state law that would force a family-owned pharmacy to dispense emergency contraceptives. Chief Justice Roberts and Justice Thomas joined Alito in voting to hear the case, but four votes are required, which is why Alito issued his warning in his dissent that “if this is a sign of how religious liberty claims will be treated in the years ahead, whose who value religious freedom have cause for great concern”.
Need I remind you that elections have consequences?