Four Supreme Court decisions show why Anthony Kennedy replacement decision is critical: Ted Diadiun

July 4, 2018 GMT

Four Supreme Court decisions show why Anthony Kennedy replacement decision is critical: Ted Diadiun

CLEVELAND -- When Donald Trump shocked the country, left and right, by getting himself elected president 20 months ago, fully one-quarter of the people who voted for him said they did so because the next president would nominate at least one Supreme Court justice, and probably more.

Whether they liked him or not, and many did not, they liked the idea of Hillary Clinton determining the future of the court – and thus our constitutional government – even less.

So while Trump as president has scarcely become more likable in the months since his election, the events of the last couple of weeks have underlined the principles for which that 26 percent, noses held or not, cast their ballots in November 2016.

And now their moment is at hand.

Justice Anthony Kennedy’s announcement last week that he plans to retire at the end of July, and the prospect of Trump selecting a replacement in the mold of his first successful nominee, Neil Gorsuch, has dominated the news, perhaps rightly.

But we shouldn’t let that news deflect our attention from why the choice of Kennedy’s successor is critical: the four recent decisions that dramatically reaffirmed the court’s fealty to the Constitution – specifically to the separate roles of our three branches of government, and to the First Amendment.

All were decided by 5-4 margins, with Kennedy and Gorsuch on the prevailing side in each. And in all four, by that critically thin margin, the majority refused to violate citizens’ freedom of speech, or to usurp the authority of the other two branches. Meanwhile, the four liberal justices voted to expand their roles – substituting their own opinions and values for the authority that the Constitution assigns to the executive and legislative branches and to the people.

Seldom has the difference between the court’s opposing factions been more stark. Consider the freedoms preserved in the following:

Hawaii v. Trump: The so-called “Muslim travel ban” case, resulting from the president’s order restricting travel to the United States from eight countries, six of which are mainly Muslim. The court did not take a position on the order; it affirmed that issuing the order was within the constitutional authority of the president, duly elected and answerable to the people.

Husted v. A. Philip Randolph Institute: The attempt by advocacy groups to vacate the state of Ohio’s practice of purging the voter rolls of those who didn’t vote or confirm their residency over a six-year period. The court did not take a position on the wisdom of the practice; it ruled that Ohio was not in violation of federal voting rights law, and that the state has the authority to enforce uniform, nondiscriminatory voter registration procedures in the way it sees fit.

Janus v. AFSCME: A lawsuit by an Illinois public employee who was forced -- as are all public employees in 22 states (including Ohio) who decline to join a union -- to pay union “agency fees” that go not only toward collective bargaining but also to support candidates and policies they might oppose. The court ruled that the state law violated their right to speak or withhold speech regarding candidates and causes they support or oppose, and it freed government employees from being ordered to pay these fees.

National Institute of Family and Life Advocates v. Becerra: Another First Amendment case, in which the court vacated a California state law that forced anti-abortion organizations and support centers to post information about how to obtain a state-funded abortion. The court ruled that compelling a religious organization to express a message that violates its convictions, and advocates the very thing it was created to oppose, was an abridgment of its right to freedom of speech.

The arguments raised by the people who were unhappy with these rulings are instructive, revealing a fundamental misunderstanding of the Supreme Court’s role.

The five-justice majority has been accused of being anti-Muslim, anti-union, anti-minority and anti-abortion. All that might be true. Or, the five might be pro- all those things. Their personal biases are irrelevant. At least, they should be.

It doesn’t matter how an individual justice feels about the travel ban. What matters is that a justice of the U.S. Supreme Court recognizes that he or she is not in charge of regulating national security issues ... the elected executive branch is.

It doesn’t matter how an individual justice believes a state’s voter registration rolls should be maintained. What matters is that the justice upholds the constitutional authority of the elected state legislators to make those decisions so long as they are made in a nondiscriminatory fashion.

It doesn’t matter how an individual justice feels about unions or abortion. What matters is that the justice recognizes that the constitutional guarantee of freedom of speech prevents the government from ordering citizens to support those institutions with their words or their financial contributions.

I wish there were better terms for categorizing the opposing judicial philosophies than “liberal” and “conservative.” The impact of how they see their responsibilities lie well outside the usual political parameters.

Whatever name you assign to it, however, it will be better for our system of government if Kennedy’s replacement turns out to be someone who sees his or her role as guardian of the Constitution – not as someone whose job it is to decide how the rest of us should live.

Ted Diadiun is a member of the editorial board of cleveland.com and The Plain Dealer.


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