Here Come The Judges
Yesterday’s big news out of the Supreme Court was the lifting of two injunctions that prohibited the Trump administration from implementing its ban on transgender citizens from serving in the military. The reality is that the Trump administration is still prevented from implementing its policy as there is one more injunction still in place, but that is expected to be quickly lifted by the Circuit Court that made it after this ruling. Once that has occurred, the administration can begin to implement the ban even as the actual case against it is being considered in the federal courts. Considering the Court has lifted the injunctions, the expectation is that challenge to the ban will eventually fail when it finally gets to the Court. As expected, the decision on lifting the injunction broke down on partisan lines, with the five conservative justices carrying the day.
While the transgender ban led the news, the most disturbing development was the Court’s decision to hear the first big Second Amendment case since Kavanaugh’s installation, a challenge to New York City’s gun licensing laws. The disturbing aspect of this case is that it involves a truly trivial potential infringement on gun owner’s rights, which makes it an odd choice to be the first Second Amendment case for the Court to take on in nearly a decade.
New York City offers two kinds of gun permits. One is a “carry” permit which allows the holder to carry a gun for self-defense and other reasons. The other is a “premises” permit which allows the holder to have a gun within the individual’s dwelling but restricts taking it out of that residence except for certain, limited reasons that include taking the gun to authorized firing ranges within the city. What the plaintiffs in this case are arguing is that the premises permit does not allow them to take their guns to competitions and firing ranges outside the city, nor does it allow them to take a gun from one residence to another in the rare case they own two homes. Of course, there is nothing stopping the plaintiffs from obtaining a carry license which would eliminate these issues for them.
As Ian Millhiser points out, there is an agreed upon framework for federal courts to deal with Second Amendment cases. “Under this framework, ‘severe burdens on core Second Amendment rights’ are subject to a test known as ‘strict scrutiny,’ the most demanding test courts typically apply in constitutional cases. Meanwhile, ‘less onerous laws, or laws that govern conduct outside of the Second Amendment’s core’, are more likely to survive judicial review”.
That framework makes the Court’s decision to hear this case difficult to fathom. The fear is that the conservative judges on the Court, the Roberts five, are willing to rule that this trivial restriction on gun owners is a violation of the Constitution. If that is the case, then there is probably no gun restriction that could pass muster with this Court.
If that wasn’t bad enough, there was an even worse signal from a case that the Court actually decided not to hear. This case involved a high school football coach who would walk out to midfield right after every game and visibly pray. Eventually, the school superintendent told the coach to cease doing that for two reasons – first, he was abandoning his team when his job required him to be supervising the players and, second, his praying in front of a large audience while still clearly acting as a representative of the school implied that his religious views were endorsed by the school district. The coach refused and was then barred from participating in the football program. As a result, the coach sued, claiming religious discrimination and violation of his right to free speech, and the case finally made its way up to the Court.
As Millhiser also writes, “As a matter of law, school districts are allowed to regulate what kind of speech their own employees engage in when those employees are on the job”, a matter that the Court affirmed back in 2005 when it said “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline”.
In the opinion refusing to hear this case, four conservative justices, Alito, Thomas, Kavanaugh, and Gorsuch, all felt that the coach’s case had some merit. Alito downplayed the significance of the prayer, likening it to interrupting work to make “a reservation for dinner at a local restaurant”. Even worse, Alito suggested that existing precedents should be overturned in order to provide far more consideration to those with religious objections, similar to the protections that the Court extended in the Hobby Lobby and Masterpiece Cake Shop decisions.
As Millhiser summarizes, “One of the Christian right’s top policy priorities is to effectively create two different codes of law in the United States. The first code, which applies to people who do not hold conservative religious views, is rigid and unmoving. The second code, which would apply primarily to Christian-identified conservatives, contains broad exceptions for people who hold the right religious beliefs. The endgame is a world where Christian conservatives can treat much of the law as optional — applicable only to people who are not like them”.
In the end, the four justices decided not to hear this case, primarily because of the issue of whether the coach was disciplined for leaving his players unsupervised as opposed to his religious views and display. In essence, these conservative justices were begging for a “clean” case in which to overrule a half century of legal precedent and replace with their vision of religious freedom.
The Court has mostly passed on taking highly controversial cases this term, as its decision yesterday to not hear the DACA issue also indicates. That has led to the false impression that perhaps this Court is not as radical as many thought. What these cases show is the Court is probably more extreme than initially believed but will take a slow and steady approach in implementing its radical vision.