Author Ben Shapiro expresses doubts whether Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett will live up to the expectations of the Conservatives – echoing concerns that have arisen since recent rulings.
“So far, we have seen little of Barrett or Kavanaugh justify the Conservatives’ high hopes for them,” Shapiro told Fox News.
“Of course, they did not engage in liberal David Souter-type decisions, or Anthony Kennedy-style hesitations. But they were clearly unambitious in their judicial approaches, most evident in Fulton, which should have presented a clear opportunity to override Employment Division v. Smith, and in their refusal to accept the Barronelle Stutzman case. “
His comments referred to two high profile cases – Ingersoll & Freed v. Arlene’s Flowers Inc. and Fulton v. City of Philadelphia – which have been closely watched by the Conservatives. Each addressed the conflict between religious freedom and the interests of same-sex couples while also providing the court with an opportunity to deliver decisive victories to the Conservatives.
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Like Shapiro, others in the media have indicated that Kavanaugh and Barrett – both contentious candidates for former President Donald Trump – are avoiding controversy in their court opinions. But some of the bolder criticisms seemed to come from other conservative judges – especially Clarence Thomas, Samuel Alito and his Trump-appointed colleague Neil Gorsuch.
In a recent editorial for Newsweek, law professor Josh Blackman pointed to various opinions in which these three seemed to suggest that Kavanaugh and Barrett formed majorities that lacked the proper “courage” to deal with big business. This is the wording used by Gorsuch to argue that the court should have gone further in Fulton.
While the deal was a partial victory for the Conservatives, it was not the victory they hoped for. For years, the Conservatives have argued for the removal of the precedent set by Justice Antonin Scalia in Employment Division v. Smith. Scalia, Barrett’s mentor, ruled in this case that neutral laws of general application do not violate the Free Exercise Clause of the First Amendment.
Rather than topple Smith, Chief Justice John Roberts and Kavanaugh, who served as clerks for longtime Oscillating Judge Anthony Kennedy, joined Barrett and others in a narrower decision. In a separate and concurring opinion joined by Kavanaugh and Judge Stephen Breyer, Barrett criticized Smith but expressed concerns about his being replaced by another standard. “We don’t need to wrestle with these issues in this case, however, because the same standard applies whether Smith stays or leaves,” she said.
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Gorsuch’s opinion, joined by Thomas and Alito, suggested that the majority were “dodging the question” of Smith. He added: “These cases will continue until the court has the courage to provide a response. Respectfully, it should have done so today.”
Alito, in an opinion joined by Gorsuch and Thomas, similarly argued that the court took an “easy way out” by refusing to hear a case of excessive use of force (Lombardo v. City of St. Louis ). It’s unclear how Barrett and Kavanaugh voted in this case, but cases typically only need four court votes to grant certiorari. Therefore, the three dissenters would likely only need one of the other judges to vote in favor of hearing the case. The same was true of the Stutzman (Arlene Flowers) case, for which Gorsuch, Alito and Thomas were in favor of the hearing.
Compared to their conservative colleagues, Barrett and Kavanaugh have also offered more limited support for a church seeking to block California’s coronavirus restrictions. While Gorsuch and Thomas have reportedly granted the full injunction requested, Barrett and Kavanaugh said the church had not shown why the court should block the ban on singing or singing. Many have noted that in doing so, Barrett used his first written opinion to effectively oppose people of faith.
Implications for Roe and Mississippi’s abortion law
Divisions like these have led some to speculate that the court actually has an ideological makeup of 3-3-3 rather than the conservative 6-3 majority that others have suggested. This could prove detrimental to a centerpiece of the conservative legal movement: to overthrow Roe v. Wade.
“The cases mentioned in the Newsweek article provide early evidence that at best Barrett and Kavanaugh are incrementalists rather than agents of change,” Shapiro told Fox News. “The Conservatives can only hope this assessment turns out to be incorrect.”
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For years, the Conservatives have fought to appoint judges who could finally undo what they see as an unconstitutional, decades-old precedent for allowing abortion. Hopes remained high when news surfaced last month that the court had decided to ban abortion for 15 weeks in Mississippi.
“This is it,” said Abby Johnson, a former director of Planned Parenthood who spoke at the Republican National Convention last year. She added that “this is what we have been waiting for for decades.”
Lila Rose of Live Action also tweeted, “Goodbye and good riddance, Roe v Wade,” adding, “It’s a matter of time. Roe v Wade is an absurd decision with a murky legal precedent that is constantly changing as it doesn’t. has no constitutional basis. “
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Kavanaugh, and in particular Barrett, have long been viewed by both parties as essential in weakening Roe. Barrett, in particular, has been seen this way after various statements and positions she has taken on abortion.
For example, she wrote in a 2013 article that “the public response to controversial cases like Roe reflects public rejection of the proposition that [precedent] can declare a permanent winner in a constitutional struggle that divides rather than wanting the precedent to stand forever. “
“Court observers accept the option of rescinding, even if they want it to be the exception rather than the rule,” she wrote.
As a judge, she also voted in favor of a parental notification law and indicated her support for further restrictions on abortion. However, she also said that she did not think that “the right to abortion would change”, only the flexibility of the state to regulate it.
And more recent decisions, like Fulton, have indicated that she and Kavanaugh could go the incremental path often blazed by Roberts. In doing so, they could avoid the complete Roe repeal that many conservatives are seeking.
Before Barrett joined the court, Thomas, Alito, and Gorsuch appeared to charge Kavanaugh and the others for refusing to take over a case involving the Planned Parenthood provider agreement with Medicaid. As in Lombardo, it’s unclear how the judges voted, but the general four-vote requirement suggests Kavanaugh joined others in refusing to take up the case.
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Writing in opposition, Thomas alleged that the court refused to do its job because the case involved Planned Parenthood. He then quoted Federalist No. 78, urging that “popularity” be taken into account in court decisions.
Kavanaugh, however, partially joined the dissent opposing Roberts and Liberal judges’ decision to overturn Louisiana abortion clinic regulations.
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