When the Supreme Court overturned a 41-year precedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.
Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.
Now it’s the Supreme Court itself that has been weaponized.
With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong-armed through to confirmation by Senator Mitch McConnell, then the majority leader, are doing exactly what they were sent to the court to do.
The resulting path of destruction of settled precedent and long-established norms is breathtaking. Despite the increasingly plaintive reminders by Chief Justice John Roberts that, as he wrote in dissent in the Texas abortion case last week, “it is the role of the Supreme Court in our constitutional system that is at stake,” the new majority has refused to defend the supremacy of federal law in the face of open defiance by Texas. The court’s acquiescence has left that state’s abortion clinics all but shuttered for months, with pregnant women fleeing to seek care in numbers that are destabilizing the abortion infrastructure in states hundreds of miles from the Texas border.
The imminent evisceration of the constitutional right to abortion, clearly apparent from the Dec. 1 argument in the Mississippi abortion case, is only the beginning. The argument last month in a case from New York on how strictly a state can regulate the carrying of concealed weapons strongly suggested that the court will expand the boundaries of the Second Amendment well beyond the 2008 Heller decision, which found a right to keep a handgun at home for self-defense and was itself a transformation of the long- established understanding that the amendment protected a collective right rather than an individual one.
Last week’s argument in a religion case from Maine indicated that a decades-old understanding about the extent to which religious schools can lay claim to taxpayer support is similarly about to be shattered.
Further, the justices will soon decide whether to add affirmative action to the smoldering culture war that is the current Supreme Court term. The fact that the high-profile case against Harvard’s admission policies went down to defeat in two lower federal courts, and that it even lacks an actual plaintiff who can claim to have been injured by Harvard, is not likely to deter a bloc that finally — following the retirement of Justice Anthony Kennedy and the death of Justice Ruth Bader Ginsburg — has the votes to put an end to race consciousness in university admissions.
Individually, these cases have not lacked for public attention (although the religion case, Carson v. Makin, merits a good deal more than it has received, for reasons I’ll explain). But it’s putting them together, and understanding how they found their way to the court’s docket within months of Amy Coney Barrett’s confirmation, that tells the story. The New York gun case, the Mississippi abortion case and the religion case from Maine were each handpicked by the justices (an act that requires the votes of four of the nine) from among the thousands of cases the court receives each term — 5,227 in the last term, to be precise.
Each involves a touchstone issue for conservatives: easing restrictions on firearms, overturning Roe v. Wade and elevating the place of religion in a secular society, in part by granting entitlement to public benefits as a matter of equal treatment.
Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasn’t until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Women’s Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the state’s ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion supermajority was waiting for.
The decision to hear the New York gun case, New York State Rifle & Pistol Association v. Bruen, came after years during which the court sidestepped multiple opportunities to expand on the Heller decision, to the frustration of Justices Clarence Thomas and Samuel Alito, who had taken to complaining that their colleagues were turning the Second Amendment into a “second-class right.” Their protests finally bore fruit in March of this year, when the court accepted an appeal filed by a National Rifle Association affiliate.
The grant of review in the Maine religious schools case came at the very end of the last term. The grant itself was no surprise; the case is tailor-made to complete a project that Chief Justice Roberts has approached incrementally with the clear goal of enabling religious institutions to enjoy the same public benefits as secular institutions.
His mentor and predecessor, Chief Justice William H. Rehnquist, had a similar goal but lacked the votes, or perhaps the will, to see it to completion. One of his last major opinions, Locke v. Davey in 2004, held that while a state could choose to subsidize religious education, it was not required by the First Amendment’s Free Exercise Clause to do so. There needed to be “play in the joints,” Rehnquist wrote, connecting the First Amendment’s two religion clauses, one that protects the free exercise of religion and the other that prohibits religious “establishment” by the government.
The new case would transform the permissive into the mandatory, asking the court to rule that Maine cannot exclude religious schools from a program that, in school districts too small to have their own high schools, offers tuition reimbursement to parents who choose to send their children to a private school.
The line Maine drew for its tuition program was based on the state’s concern that to channel public money to the coffers of parochial schools that provide religious instruction, even though it is a program that relies on parental choice, would violate the Establishment Clause. The United States Court of Appeals for the First Circuit upheld the exclusion on the ground that the program’s purpose was to duplicate, for children lacking access to a local public high school, the religiously neutral education that a public high school offers. During the oral argument, the conservative justices seemed unable to grasp that simple proposition. They insisted to the state’s lawyer, Chief Deputy Attorney General Christopher Taub, that some kind of rank anti-religious discrimination was afoot.
Mr. Taub readily agreed with Justice Brett Kavanaugh that a state could not subsidize tuition at the schools of one faith while withholding the subsidy from schools of other religions; that would be discrimination, obviously. But Justice Kavanaugh wanted more. “Our case law suggests that discriminating against all religions, as compared to secular, is discriminatory just as it is discriminatory to say ‘exclude the Catholic and the Jewish and include the Protestant,’ ” he told Mr. Taub. While the court’s recent precedents may suggest such an equal-footing principle when it comes to public education, they aren’t quite there yet. They soon will be. The Establishment Clause, long understood as a barrier to taxpayer subsidy of religious education, was almost completely absent from the argument. Its absence will be more than rhetorical if the challenge to the Maine program succeeds.
It’s notable that before granting this case, the Supreme Court had refused to hear similar religious challenges to Maine’s tuition program, not once but twice, in 1999 and again in 2006, early in Chief Justice Roberts’s tenure. The stars were not yet aligned then. They are now.
Of course times change, and courts change with them. Presidents tend to use the fortuity of a Supreme Court appointment to project a vision of what law in America should be. Yet over history, change has tended to come to the Supreme Court incrementally. In the Trump years, it arrived in a torrent.
Justice Kagan’s dissenting opinion in the 2018 labor case reads now like a grim forecast of the deluge to come. There was no conventional reason for overturning the 41-year-old pro-labor precedent, she wrote; the simple fact was that the majority “never liked the decision” and overruled it “because it wanted to.” The court got what it wanted then, and it evidently will get what it wants now.
And the rest of us? This weaponized Supreme Court could reshape American life in profound ways. How the country responds will be the story of the coming months and years.
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