The Supreme Court of the United States, sometimes referred to as SCOTUS, is one of the three branches of the federal government and is intended to be the most independent. The legislative branch, Congress, makes the laws. The executive branch, the president, enforces the laws. The judicial branch, the Courts, determine the constitutionality of the laws. The judicial branch was always intended to be almost completely independent of the politics that so heavily influence the other two branches. Thus, judges “… shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” They cannot be fired, except for bad “behaviour” and their pay cannot be reduced by either Congress or the president. They are not elected; thus they owe no allegiance to any political party nor any individual. In theory, anyway, they vote according to their conscience and their independent interpretation of the Constitution.
Today, I must question the independence of the Supreme Court. As the current term winds down, a number of key decisions have been handed down in recent days, and the important ones, the ones we needed to be watching, have given at least the appearance that the Court has lost its independence and is falling into line with Donald Trump’s ‘policies’, such as they are. Congress was in Trump’s and his donor’s pockets since the day the session of the 115th Congress began, and we can only hope to change those dynamics in the November mid-terms, but if the Court has fallen prey to him also, there can be no hope for a ‘fix’ in the foreseeable future, since the Justices are lifetime appointments.
Very briefly, here are some of the rulings I find very troublesome:
Trump v Hawaii
The U.S. Supreme Court on Tuesday upheld President Trump’s travel ban by a 5-4 vote.
In the majority opinion, Chief Justice John Roberts wrote that the ban was “squarely within the scope of Presidential authority under the INA,” referring to the Immigration and Nationality Act.
The court said that Donald Trump’s obvious hostility toward Muslims, as expressed in numerous tweets and speeches, could not be considered. In a nutshell, Roberts said in his 92-page opinion, that Trump has the broad authority to do what he deems necessary in the interests of “national security”. My response is the obvious: 99.9% of people coming here from those nations are immigrants seeking the safe haven that is promised on the Statue of Liberty and pose no threat to national security. This ruling simply gave the nod to Trump’s ethnic and religious biases. If you’re interested, you can read the full opinion here.
Masterpiece Cakeshop v Colorado Civil Rights Commission
In the case of the baker, Jack Phillips, who refused to bake a wedding cake for the wedding of a same sex couple, the court ruled in favour of Mr. Phillips, but not necessarily because the court felt he had the right to withhold his services in a discriminatory manner. The ruling came because the court believed the Civil Rights Commission had failed to treat Mr. Phillips with ‘fairness and impartiality’. The court did agree that the baker’s refusal to serve his customers was an act of discrimination that violated Colorado state law. In a nutshell, the decision was a cop-out, leaving the door open for more cases of this nature.
Janus v AFSCME
The Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining.
This ruling, while on the surface may seem to be sensible, greatly reduces the strength of public employee unions in collective bargaining. Since a 1977 ruling, even non-union employees have been required to pay partial union dues because, any gains as a result of collective bargaining benefit all, even those who chose not to join the union. Now, where is the incentive to join the union, when non-union employees will share the benefits without having to pay the cost? The full opinion, all 83 pages, can be found here.
The Equal Protection Clause of the Fourteenth Amendment forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. There were four gerrymandering cases before the court this month:
Abbott v Perez
The court ruled that the state of Texas does not have to redraw their district maps.
Gill v Whitford
The court ruled that the state of Wisconsin does not have to redraw their district maps, though they remanded the case back to the lower courts for further review.
Benisek v. Lamone
The court ruled that the state of Maryland does not have to redraw their district maps.
North Carolina v Rucho
The court declined to rule on the gerrymandering case and remanded the case back to the lower courts.
Make no mistake … the failure of the court to defy the gerrymandered district maps and order redrawn maps is a nod to racism and a deterrent to a fair election in November and beyond. Racism is alive and well in this nation, folks.
These are the major cases that the Supreme Court ruled on this month, most in just the last few days. Every single one was ruled in favour of conservative ideology, and most were a 5-4 ruling along partisan lines. And now this …
Justice Anthony Kennedy to retire from Supreme Court
Although Kennedy is known as a conservative thinker, he is the most moderate on the bench. His vote has been a tie-breaker in many high-profile cases, including Obergefell v Hodges, making same-sex marriage legal throughout the land. His has been the swing vote in cases involving civil rights, human rights and social issues. Kennedy voted to reaffirm the core holding of Roe v. Wade in 1992. I wrote a post about Kennedy and his potential retirement in July 2017, where I expressed grave concerns about his rumoured retirement, as well as the fact that Ruth Bader Ginsberg and Steven Breyer, both liberal-leaning justices, were both well past the normal age of retirement. This news stuns me, though I should not be surprised … am not surprised. But the bottom line here is that now Trump has another Supreme Court vacancy that he will fill with … another who will vote as Trump wishes. We have now, it would seem, lost the independence of the judicial branch in my opinion. What more can Mr. Trump find to destroy, I wonder?