Archive for the ‘Chief Justice John Roberts’ category

Religious Freedom

April 22, 2017

In a recent issue of the New Yorker, there is an article on Leonard Leo. Mr Leo is not a household name although maybe he should be. Mr Leo’s most recent claim to fame is his successful “shepherding” of Judge Neil Gorsuch through the Senate approval process. Mr. Leo, however, is not one to thirst for the spot light, preferring instead to operate at the periphery of public discussion.

And operate Mr. Leo does.

As the Executive Director of the Federalist Society, Mr Leo has spearheaded conservative interests in most matters of government but with a clear focus upon the courts, especially the Supreme Court. As an “originalist”, Mr Leo supports Constitutional interpretations which purport to represent the “founding fathers” views. Hmmm.

The Federalists speak, not for wild and crazy people, but for reasoned, conservative, traditionalists. Within these ranks, however, hide moneyed interests who see “originalist” views as conducive to their personal business and financial well being. Nothing like the braggadocio associated with a high minded principle which conveniently puts money in your pocket too.

From the New Yorker article, Mr Leo’s hands appear clean although someone must be paying his lawyering bills. Rather Mr. Leo is presented as a congenial, non-confrontational person who seeks and befriends up and coming conservative legal minds. The article claim Mr. Leo was a close friend of the late Justice Antonin Scalia.

So where is this post going?

Mr. Leo is also a conservative Catholic who is strongly pro-life. Mr. Leo was an early supporter of Chief Justice Roberts and Justice Alito, both pro-life advocates. The prospect of over turning Roe v Wade (long established law) suddenly does not seem that impossible.

Mr. Leo says that the Constitution was silent over specific rights to abortion and therefore to his reasoning, the US Supreme Court has no rightful place making a woman’s right to an abortion the law of the land.

At this point, one could argue contrarily that in fact the freedoms expressed in the Constitution as well as the Amendments recognize the rights of a woman to make her own reproductive decisions.

Within the thought, why not point out what seems even more obvious. The first Amendment speaks to “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, and that should be enough.

Mr. Leo, Chief Justice Roberts, and Justice Alito are more than free to hold sincere “pro-life” religious beliefs. They are all free to practice such views in their own lives but the Constitution does not provide them the right to foist their personal religious views on anyone else. (Admittedly, someone who is against all forms of life ending acts, including the death penalty, wars, and suicides has a moral argument which rises above religion dogma but in the end, addresses only their own behavior.

Justice Kennedy is thought to be the deciding Justice should the current John Roberts Court consider another Roe v Wade challenge. If Justice Kennedy should decide to retire while a Republican President is in office, another Gorsuch/Alito/Roberts Justice is almost assured. In such a situation, the true color of these jurists will be seen.

Will these Jurists over turn Roe v Wade in favor of States self determination, or will they become religious zealots and side with some future Congressional law which outlaws all abortions and denies States the right to decide?

The irony of this Roe v Wade debate is that the real “federalists” were extremely concerned about the excesses of organized religion. The closest most of the founding fathers came to religion was some recognition of a higher spirit. Consequently, if the Supreme Court should overturn Roe v Wade, we should recognize the “originalist” principle is purely a crutch designed to deny some Americans individual freedom.

Supreme Decisions?

June 21, 2015

June is almost over and the Supreme Court has yet to issue opinions on two significant decisions. It is difficult to believe that the Court has waited this long to render its opinions because it needed more time to decide. The Court may have a flair for dramatics but I suspect the summer recess may have something to do with the timing too.

The two cases are about same sex marriage and the Affordable Care Act. Both should be cut and dry but a close 5-4 vote is predicted in both. The only remaining question is which way the 5-4 will fall.  Will the Court affirm the right of same sex couples to get married in all 50 States and will the Court affirm the intent gleaned from reading the entire ACA over a narrow reading of 4 words?

Same sex marriage is clearly absent from any reference in the Constitution. For that matter, marriage itself is absent. The concept of civil unions, however, can be inferred and the 14th Amendment would seem to offer the same protection to same sex couples as with heterosexual couples. Allowing States to decide which couples can marry and what benefits each can receive seems inherently un-American in addition to being un-Constitutional.

The Affordable Care Act has become a highly politically charged piece of legislation even though only the shallowest arguments can be made to overturn the law. (To be sure, a European style single payer system would be far superior.  The argument to simply repeal ACA, however, reveals an uncaring and insensitive political ideology.)

The Supreme Court was very close in its original opinion supporting ACA.  What one might think as a straight forward affirmative decision is not such a sure bet. A negative Court decision would fly in the face of Congressional intent (at the time the law was passed) and would appear to indicate the Court does not believe 6 million people will be hurt by the loss of health coverage. Hmmm.

With the symbolism surrounding these two cases, it is not hard to understand why the Chief Justice would hold back the Court’s decision until the Court’s last day in session. Justice Roberts certainly knows that either way the decision goes, there will be lots of people questioning the Court’s mind.

I guess that’s why we call it the Supreme Court.