Listening to the fretting on the Left about Anthony Kennedy’s retirement has largely boiled down to one significant issue (abortion) being significantly moved to the right. But there is more to the recent Supreme Court vacancy than abortion.
It’s easy to see why Democrats and progressives have focused so much on abortion. The modern Democratic Party is a collection of interest groups and perhaps the most powerful in the party is the abortion lobby. Most notably, this includes Planned Parent, EMILY’s List and NARAL. All are major donors and supporters of the modern Left.
But, on many other important issues Kennedy’s stepping down will impact the future of America. Indeed, the number of 5-4 decisions in recent years highlights just how many important issues will be on the Court’s docket. Let’s run through a number of key 5-4 decisions this term to get a sense of them shall we.
1. Janus vs. AFSCME: Perhaps the death-knell of the modern labor movement, Janus overturned prior precedent in Abood from 1977 stating unions had no right to force members to pay for political activities but they could force members to pay for the benefits via collective bargaining. This has been a contentious ruling for years because collective bargaining is and has always clearly been a political process.
In Janus, the Court, with Neil Gorusch now seated, found Abood was flawed because it did not consider collective bargaining is a political process. By mandating non-union members pay for it the union, and courts, basically were saying you had to support a political activity you oppose. Case in point being unions driving Illinois into the ground financially. Incidentally, Illinois is where Janus originated.
2. Masterpiece Cakeshop vs. Colorado: In this case we see the results of Kennedy’s decision to mandate gay marriage on the land. Religious business owners, trying to stay true to their beliefs, are punished because they are forced to support an action they abhor.
The court ruled narrowly in this case rather than making blanket precedent as they did in Obergefell. Rather, the court ruled in favor of Masterpiece’s religious objections because the Colorado Civil Rights Commission showed bias to Masterpiece owner Jack Philips over his religious objection to making a cake for a gay wedding.
The ruling, while narrow, illustrates just what has been unlocked by the legalization of gay marriage. By this I mean balancing the rights of gay couples with the fundamental and deeply held religious convictions of many, many faithful business owners. Indeed, court cases in Oregon, WA State and New Mexico all highlight the delicate balance that must continually be performed.
3. Gill vs Whitford: For the first time since 2004, a major redistricting case made its way before the court that did not include racially discriminatory acts. In Gill, a group of Democratic voters sued the state because Democrats, despite winning the state’s popular vote in 2012, barely garnered a third of all legislative seats. The plantiffs argued this violated their rights under the 1st Amendment and the Equal Protection Clause in the 14th Amendment.
The case made its way through the Circuit Courts but seemed always on shaky ground at the Supreme Court. In the end, paired with another court case in Maryland, the Supreme Court punted and returned both cases to the district courts. In Gill, the SCOTUS found the plaintiffs did not have standing because the court reasoned district lines across the state did not directly harm many of the plaintiffs. What the decisions make clear is just how uncomfortable a conservative court is with getting directly involved in a political act like redistricting. Liberals on the court are fine with it by the way.
4. Trump vs. Hawaii: In yet another 5-4 decision the Supreme Court found Trump’s travel ban Constitutional. The court found this way because the law clearly states the President has the authority to control immigration from other nations if “national security” is involved.
What is striking about this case is the dissent from the court’s four liberals. Clearly, the plain language of legislation allows the President to control immigration. But, the SCOTUS’s four progressive justices dissented and instead in their arguments made clear they would rather the law simply not be enforced due to Court prerogative. Talk about progressive activism.
Not that this is anything new. In lower court rulings, the courts found against the President, again not because of the plain text of the laws on the books, but because of what he had said about these countries. In the SCOTUS’s ruling, the President has the authority to act on laws duly passed by the legislative branch.
5. Abbott vs. Perez: Abbott vs. Perez has a history dating back to 2011. In the same year, Texas performed its decennial redistricting process which sought to maximize the GOP’s political advantages. Unsurprisingly, lawsuits followed. Additionally, due to the Voting Rights Act Section V, listed states had to get pre-clearance from the Department of Justice to have their maps move forward. Not surprisingly, the Obama controlled DOJ denied preclearance and Texas refused to comply.
In 2012, a district court in San Antonio redrew the lines. Due to the time limited nature of elections occurring the court mandated the new lines would take effect in 2013. The GOP held legislature quickly passed the new court passed lines. But, that was not the end of it.
In 2013, the SCOTUS overturned Section V of the VRA. Thus, Texas did not need to move forward with clearing its new lines through the DOJ. Another lawsuit followed over the new lines as well as older state legislative lines. The case languished in the courts for years until 2017 when the district court in San Antonio found in favor of the plaintiffs. But, on appeal, the Supreme Court took up the case.
Unlike in prior racial redistricting cases, VA and NC, the Court found in favor of Texas. The court found all congressional lines and all but one legislative district’s lines were appropriate. The reason being they were approved on the grounds of either partisanship, compactness or something else and not race.
Race and partisanship in the South has a sorted history and are closely interconnected. With so many Southern states featuring heavily white Republican populations and Democratic minority populations disentangling the two is not easy. Hence, it makes sense the SCOTUS did not want to get involved unless there is a clear smoking gun.
These are just five of the 19 decisions this term decided on 5-4 splits. In recent years, the divide has been growing clearer between the conservative and progressive wings of the court.
Virtually all major decisions on issues not just impacting fiscal issues but cultural and social America have been 5-4. Campaign United was 5-4 in 2009, Heller was another 5-4 decision. In 2012, the ACA was upheld on a 5-4 vote. The VRA was defanged on a 5-4 vote, and a string of liberal victories in 2015 on gay marriage, discriminatory housing impacts and affirmative action were 5-4. Now, conservatives scored major 5-4 wins.
Progressives and liberals concerned about the direction of the Court have a right to be. In their eyes, rich people will soon be able to buy elections (but it is okay if it’s our guys), gay marriage will be repealed and discrimination will be brought back in full.
The reality is likely far different. The Court is sure to shift rightward but it will hardly usher in an era of conservative governance from the courts. Rather, perhaps, it might form a bulwark between society’s mass movement change and the concepts of rules and laws. That certainly seems expansive than the sole issue of abortion. Maybe they should worry more about that.