If you believe that we should be living in the same world as that of 1791, then the end of this Supreme Court term surely sets your heart a flutter. But, if you believe that the Constitution and its amendments ought be interpreted with respect to today’s world – with all its advances and issues, its setbacks and its triumphs – then you’re probably pissed off. And it is of the opinion of the University of Chicago Democrats that you should be.
Over the last three weeks, four monumental decisions have come down from our nation’s highest court: Husted v. A. Philip Randolph Institute, NIFLA v. Becerra, Trump v. Hawaii, and Janus v. AFSCME. Each was decided 5-4, with Justices Roberts, Kennedy, Thomas, Alito, and Gorsuch in the majority, and Justices Kagan, Sotomayor, Breyer, and Ginsburg in the minority.
With each decision, we are reminded of the egregious, undemocratic, and purely political games of Senate Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chair Chuck Grassley (R-IA), who, upon the death of Justice Antonin Scalia in February of 2016, refused to hold hearings for President Obama’s nominee Merrick Garland, claiming they wished to give the American people a “voice” in the selection of the next justice. Despite Garland’s qualifications and nonpartisan record, and President Trump’s popular vote loss by nearly 3 million votes, McConnell’s Senate confirmed his pick: Neil Gorsuch.
Husted upheld an Ohio law that allows citizens to be more easily purged from the voter rolls after a change in residence. In his dissenting opinion, Justice Breyer cites “the importance of voting in a democracy” as he deems this practice of removing “otherwise qualified [individuals] … unreasonable”.
NIFLA struck down a California law that required all licensed clinics that offer pregnancy-related services to notify women that “California provides free or low-cost services, including abortions, and give them a phone number to call”. Two clinics with pro-life views sued the state, and despite several rulings upholding so-called “informed consent” laws that require women seeking abortions to view pro-life propaganda, Justice Thomas, speaking for the majority, deemed that the law in question was a violation of freedom of speech.
Trump v. Hawaii upheld the President’s travel ban on Muslim-majority countries. The Court ruled that the ban falls within executive power and is not in violation of the Establishment Clause of the Constitution, which prohibits discrimination based on the grounds of religion. The President has many times equated his travel ban with his campaign trail promise of a “Muslim ban” (at least 12 as of August 2017, writes the Cato Institute’s David Bier), but apparently those don’t count.
Finally, in Janus, a case that hits home to us here in Illinois, as it was pushed through court after court by our failing and flailing Governor Bruce Rauner and his Koch-funded allies, struck yet another blow to the American union. Janus overturns the age-old precedent of Abood v. Detroit Bd. of Ed. (1977), which ruled that “a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.” (emphasis added) Justice Kagan’s dissent makes several much-needed points, none less that Janus marks a stark departure from stare decisis, the respect for precedent, as “there were no special circumstances for reversing Abood“, and it had “proved workable”.
So now, here we are, with four 5-4 decisions that will shape how Americans vote, work, interact with the world, and interact with each other for years, and, now, with Justice Kennedy retiring at the end of July. This is what happens when you don’t vote, when you sit at home – not just in 2016, but also in 2014, when Republicans took control of the U.S. Senate. Every election is important. Every election. If you live in Maine or Alaska, please call your Senators. If you live in Tennessee or Arizona, call your Senator. If you live in Indiana, North Dakota, West Virginia, Ohio, Pennsylvania, call your Senator. Just call your Senator. Because if you thought these decisions were bad, you won’t want to be relying on Justice Roberts as your swing vote.
In the meantime, Senators McConnell and Grassley should honor the commitment they proclaimed to the American people’s voice in 2016. If Justice Kennedy’s vacancy is filled before the 116th Congress convenes next January, it would demonstrate once and for all what has been apparent for years: that the GOP-led Senate will fulfill its duty only to the extent that it cements their political power, and that the age of “principled conservatism” is long since past.
– the University of Chicago Democrats Executive Board