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Summer and the Supremes

Way, way back in our wide-eyed youth we had a swell summer job as messengers for the Supreme Court of the United States, and although most of it was spent lazily in the court’s summer adjournment we got to be there for the big day when it announced its final decisions of the session at the end of June. At this point we can’t recall what any of the cases were about, and are too lazy to look it up, but we well remember how very historic it seemed to our young and hayseed sensibilities at the time.
The latest version of the Supreme Court headed off to its summer vacation by issuing three notable decisions, and we took a livelier interest in that. One had to do with President Donald Trump’s executive order that either restricts or limits or bans travel from six Muslim-majority countries, depending on what you want to call it, and two others that concerned the religious liberty of the dwindling minority of traditional Christians in America. For the most part we were pleased with the results, but noticed enough wiggle room in the majority opinions to suggest that none of these issues have been definitively settled. Most Supreme Court opinions are like that, as we’ve noticed over the past many decades of avid court-watching.
Trump probably isn’t bored with winning yet, but he can claim at least a partial victory in the case of Trump v. International Refugee Assistance Project.
As for the facts of the case, the plaintiff had challenged the defendant’s constitutional authority to impose restrictive new rules regarding travel from the aforementioned six Muslim majority countries. Each of those countries contains a troublesome number of potential radical Islamist terrorists, and the Constitution’s plain language grants the chief executive broad powers to restrict entry to the United States for almost any old reason he chooses, but the underlying statutory authority also mentions some prohibitions on religious discrimination, and the First Amendment has been broadly interpreted to back that up. The plaintiffs argued that Trump’s loudly and clearly stated campaign promises to ban all Muslims from entering the United States for any reason demonstrated the discriminatory intent of the new rules, the defendant’s counsel argued that the rules didn’t amount to a ban at all, but rather were reasonable restrictions and limitations, the defendant himself then “tweeted” that, no, it darned sure was a travel ban, and all the lower courts in all the liberal jurisdictions had found for the plaintiffs.
The highest court found by a surprising unanimous decision that pretty much any old president does indeed enjoy broad powers granted by the plain language of the constitution to restrict entry to the country for any old reason he might choose, and for the most part it lifted the stays that had been imposed by the lower courts. Even when the president is Trump this pleases our originalist Republican souls, and although we don’t doubt he he does have an Islamophobic bias the restrictions on those specific locations seemed reasonable even to the rather Islamophilic administration of President Barack Obama.
Some limits remained on the president’s broad powers to restrict entry to the country, however, and the court conspicuously decided not to weigh in on that matter of whether Trump’s campaign promises proved an intention of religious discrimination, and whether that matters or not, and it seems clear that the first executive order Trump issued would have fared far worse than what he called the “watered-down politically version” that the court eventually ruled on. The first one arbitrarily revoked already-issued green cards even to such well-vetted entry-seekers as translators for the American military who were fleeing for their lives, and was a political as well as a legal disaster, and even Trump was careful not to use the word “ban” when crowing about his victory, which resulted in a better and less controversial policy than the one he wanted.
The high court has put off until next fall any consideration of whether the crazy things Trump sometimes says about his arguably reasonable policies should have any legal bearing, and that will be a decision to watch for. An astute writer for the Venerable National Review compellingly argues that it would be unprecedented for the court to consider a president’s rhetoric in assessing his actions, but we’re sure other astute writers at that publication will admit Trump’s rhetoric is also unprecedented, and there’s no telling how even the most hidebound Republican originalist jurist might come down on the decisions that are no doubt looming during the Trump presidency. That travel ban was supposed to be for the 120 days Trump needed to impose “extreme vetting” on travelers from those countries, and he claims that they’re now in place, although no one can explain what they are, so we can well imagine the court might just leave those unresolved until something more relevant comes along.
There was the same sort of ambiguity in the case of Trinity Lutheran Church v. Comer, although it was also mostly a win for the good guys as far we’re concerned. The plaintiffs, who operated a religiously-affiliated children’s school in Missouri, alleged that the defendant, a bureaucrat in the state’s educational bureaucracy, had violated their First Amendment rights by declining to pay for some safety-enhancing improvements to its playground. By another surprising margin of seven to two the court found that religious schools providing a good education to tax-paying citizens who also paid for the public schools are entitled to the same taxpayer support as the public schools that are generally providing a lesser education. The decision included some of the same legal weasel room and also deferred broader questions to another date, but it had the effect of doing away with a long discredited but still on-the-books anti-Catholic law, and got two of the more liberal Catholics on the court on board with the Lutherans, so we count it as a win.
In the other big decision the Supreme Court merely decided that come sometime after next fall they will consider the case of Masterpiece Bakeshop v. Colorado Civil Rights Commission. The plaintiffs allege the defendants fined them in the violation of their First Amendment for declining to bake the cake for a same-sex wedding, so that should be a big story sometime next fall. We have friends who are married to people of the same sex, and we have friends who choose for reasons of conscience not to participate in that, so far as we can tell they are all peacefully coexisting, in some cases quite convivially, so we hope the Supreme Court will choose to not interfere with this mostly happy state of affairs, but these days, when even the Republican president is chiding the Republican convention for its reluctance to embrace Gay-Lesbian-Bi-Transgender-and-Questioning causes, there’s no telling.
Another big hubbub on the final day of the Supreme Court’s session was about the possible impending retirement of Justice Anthony Kennedy, who’s currently the last of the swing votes that decide those five to four decisions, and at least one of those reliably liberal justices surely can’t hold out much longer, so Trump seems likely to influence future decisions. We liked Trump’s first pick, who voted for the defendant in that Trump v. International Refugee Assistance Project case, expect he’ll be obliged to appoint similarly originalist justices in the future, and hope they’ll put the constitutional brakes on his craziest rhetoric at some point in the future.
It all starts up again on the first Monday in October, as we still remember from the tours we led as part of our Supreme Court messenger duties, and in the meantime we’ll follow baseball and wait to see how it all turns out.

— Bud Norman

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The Big News of the Day, Here and There

The big news on Friday, at least here in the United States of America, was the Supreme Court’s discovery that same-sex marriage is a previously undiscovered right guaranteed by the 18th Century framers and ratifiers of the Constitution. Meanwhile, in France and Tunisia and Kuwait, the big news of the day was a trio of simultaneous terror attacks that left at least 54 people dead and one victim’s disembodied head impaled on the gates of an American-owned factory.
America’s State Department won’t yet concede that the simultaneous terror attacks were coordinated, but with uncharacteristic frankness it does at least acknowledge that they were more or less simultaneous, and were undeniably acts of terrorism, and at the risk of political incorrectness one might infer from this reluctant admission that it was all inspired by the same Islamic ideology that has also lately inspired the very Sunni Islamic State to toss homosexuals from tall buildings in its recently-conquered portions of Iraq and Syria and Libya to the delight of the assembled throngs and the very Shiite Ayatollahs of Iran to subject homosexual males to brutally forced sex-change operations. Still, we are told that any Catholics or Protestants or any other varieties or Christians or Orthodox Jews or Hindus or Buddhists or any other religions that hew to their millennial-old notions regarding sexual morality must reconcile their beliefs with the latest Supreme Court ruling and social fads, while the Sunni Islamic state is merely a “jayvee team” of terrorism and the Shiite Iranian ayatollahs are rational people who can be entrusted with nuclear weaponry no matter what declarations they have made about Jewish genocide or death to the Great Satan of America or the arrival of the 12th Imam and the end days, and that any old Baptist congregation or obscure Indiana pizzeria that is perfectly willing to tolerate but unwilling to celebrate a same-sex marriage must get its mind right about the latest judicially-mandated fads.
Although we are clearly damned to political incorrectness and whatever social stigma it might entail by saying so, this strikes us as absurd. By happenstance we ran into a dear old homosexual friend of ours on Sunday, not long after our attendance at a fundamental Christian worship, whose seemingly happy relationship with a homosexual lover has long outlasted our heterosexual but devastatingly failed marriage to a woman, and we shared a much-need laugh with a favorite old dirty joke of ours about parachute training and sodomy. We aren’t all assured that our friend shares our concerns about originalism versus that crazy “living constitution” interpretation of the legalistic stuff, or the ramifications for those of us those who still worry how that the latest Supreme Court ruling will affect the religious liberties of those of us who still harbor doubts about the future of a civilization based on old-fashioned notions notions about married men and women raising the next generation, but we are hopeful our friendship will remain intact. We assume he has the usual fashionable notions about same-sex marriage and tolerance of an Islamic ideology that quite clearly thinks otherwise, but we can’t help wondering how it might look from a French or Tunisian or Kuwaiti perspctive,

— Bud Norman

Reassembling the Three-Legged Stool

Kentucky’s Sen. Rand Paul is expected to announce his candidacy for the Republican presidential nomination today, and although this is far too early to be talking about the ’16 election it’s as good a time as any to ponder the state of the conservative coalition.
Anyone old enough to have lived through the glory days of President Ronald Reagan will recall how he somehow managed to construct a winning “three-legged stool” from the oft-warring factions of economic libertarians, social traditionalists, and national security hawks. With Paul currently being the most prominent standard-bearer of economic libertarianism, much of the national press coverage of his candidacy has gleefully concerned itself with how he might fare with the Republican primary voters from the other two legs of the stool, and whether anyone might be able to bring that coalition together again. So far the press seems doubtful about Paul’s chances, and we generally agree with that assessment, but we remain hopeful that someone can pull off the trick.
Social conservatives such as possible presidential contender Mike Huckabee, the Baptist preacher and former governor of Arkansas, tend to regard libertarians as libertines. Already the press is anticipating Paul having trouble in South Carolina and other early southern primary states, despite Paul’s recent carefully calculated courtship of the crucial religious voters in those states, but the press isn’t much aware of how social conservatives are thinking these days. The religious right is now on the defensive, less concerned with banning abortion or preventing same-sex marriages than the increasingly real possibility of being forced to pay for abortifacients or bake cakes or pizza pies for homosexual wedding ceremonies, and they will find the libertarians invaluable allies in those fights. Besides, most of the religious right is quite comfortable with free market capitalism, unless they’re working in industries that require protectionism or some other government protection, and Paul, like his father, the obstetrician and libertarian hero and former Texas Rep. Ron Paul, is anti-abortion, staking out a not uncommon libertarian position that the unborn are also due liberty.
Those rooting against the conservative coalition seem more hopeful that foreign policy will prove the dividing issue, but this seems doubtful. Only the most doctrinaire sorts of libertarians are strict isolationists such as Paul’s father, with most understanding that the national defense is crucial to the preservation to liberty, and even the younger Paul has lately been espousing a more robust foreign policy by advocating for increased military spending and signing on to that controversial letter opposing the proposed deal with Iran regarding its nuclear weapons program. It remains to be seen if Paul can persuade the defense hawks that his recent conversion is sincere, the past six years have so thoroughly discredited isolationism that the Republican party will almost certainly be united behind a more pragmatic philosophy.
Paul doesn’t strike us as the one who will ultimately reunite that conservative coalition, but not for the reasons that press cites. We expect the Republicans will not only be looking for Reagan’s three-legged conservatism but also experience and results, which a one-term Senator cannot claim, and even Paul’s impeccable anti-establishment credentials won’t help with the party’s anti-Washington mood. Wisconsin’s Gov. Scott Walker has a record of withstanding the most brutal left-wing attacks in taking on the public and private sector unions to enact capitalist reforms, he’s managed to avoid giving offense to either the religious or secular populations of his state, his utter lack of foreign policy experience allows him to articulate whatever defense policies he chooses, and anyone with a similar resume should be able to re-build that three-legged stool. Whatever qualms any of the three parts of the stool might have about the others, they’ll likely find the Democratic alternative far worse.

— Bud Norman

Hooray for Hobby Lobby

None of our hobbies require the kinds of materials that are sold by the Hobby Lobby chain, and thus we have never so much as entered one of its stores, but it has nonetheless joined Koch Industries and the Wham-O Corporation as one of our favorite companies.
Hobby Lobby enjoys a stellar reputation for the quality and value of its goods, and by all accounts treats is customers and workers according to the highest standards of business ethics, but the reason for our newfound enthusiasm is the company’s legal challenge to one of the more appalling provisions of Obamacare. The widely hated health care reform law dictates that all companies provide insurance covering abortifacients to their employees, and the same Christian convictions that cause Hobby Lobby’s ownership to treat its customers and employees by the highest standards of business ethics also oppose any form of abortion, so the company has boldly vowed to take its conscientious objections all the way to the Supreme Court.
Even the most administration-friendly media are expecting Hobby Lobby to prevail, and we hope they are right. Compelling people with a moral revulsion to abortion is tyranny, as well as an absurd contradiction of the left’s self-righteous claim of being “pro-choice,” and if it is allowable within the constitution it is impossible to conceive what is not. The Supreme Court has already decreed that a constitution clearly intended to impose restraints on government power does not restrain the government from forcing individuals to purchase insurance they do not want or need, and if anyone engaged in commerce can be compelled to act against his conscience there are no limits.
An administration bent on enforcing the most disastrous provisions of its signature legislative accomplishment, except the ones that are most likely to hamper its party’s chances in the next election cycle, will expect to reap political advantage from its totalitarian power-grab. They’ll cite the case as an example of the opposition’s “war on women” to strengthen a grip on the young and unmarried women’s vote, portraying Hobby Lobby as a corporate villain working in cahoots with blue-nosed and moustache-twirling Republicans intent on inhibiting the consequence-free sex lives of the more hip-and-up-to-date segments of modern society, and they’ll no doubt find a susceptible audience among the younger female cohort. So far as we can tell Hobby Lobby has no rules regarding its employee’s sexual dabblings, save for a refusal to pay for its outcomes, but this will be of little matter to women who regard federal subsidies for their already affordable contraception expenses a natural right. We constantly assure our distaff Democrat friends how ardently we desire to live in a society where their sexual practices and contraception needs are none of our damn business, but they continue to insist that it be a matter of public policy.
Hobby Lobby’s admirably pro-choice position deserves support, and we’re almost tempted to take up scrapbooking as a pastime so we’ll have reason to patronize their business.

— Bud Norman