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Viewpoint 1: Court earns a 'B' for sticking to the Constitution

By GianCarlo Canaparo

The Supreme Court has wrapped up its 2020 term — and what a term it was. The court handed down major cases involving religious liberty, the freedom of association, property rights, election law and the Affordable Care Act ("Obamacare"), among others.

Most of the cases didn't make headlines. My comments here focus on the high-profile cases because they are the ones most people are familiar with. In my judgment, this was a good, but not great, Supreme Court term. If I gave the court a letter grade, I'd give it a B.

On the First Amendment (religious liberty, speech, freedom of association), the court gets decent marks. Although it initially permitted state and local governments to restrict religious liberty because of the COVID-19 pandemic, it quickly corrected course after Justice Amy Coney Barrett joined the court and stood up for the proposition that our fundamental rights do not disappear during an emergency. This is cause for celebration because, in the past, the court has often failed to do so.

In another religious liberty case, Fulton v. City of Philadelphia, the court unanimously held that the city violated a Catholic charity's right to freely exercise its religion by excluding it from participating in the city's foster care system unless it agreed to place children with same-sex couples. The case dodged the broader legal issue of whether facially neutral laws that discriminate against religion are permissible. They are not, in my opinion, and the court ought to have said so because that question will come before it again. In fact, we will likely see this very same case return to the court in the next year or two.

In another First Amendment case, the court struck down a California policy that forced nonprofits to disclose the names and addresses of their major donors. The case attracted one of the broadest left-right coalitions in recent memory with groups as diverse as conservative think tanks, the ACLU, the NAACP, PETA and pro-life organizations all arguing against the California policy. This case was an important victory for the right of association.

On property rights, the court gets a solid A. One important decision reaffirmed the Constitution's protections for property rights against government takings. The court struck down a California law that allowed union organizers to enter private farmland without permission for up to three hours a day, 120 days a year, to try to organize workers. In striking down the law, the court rightly reminded us that protecting property rights "empowers persons to shape and plan their own destiny in the world, where governments are always eager to do so for them."

In election law, the court gets an A. In Brnovich v. Democratic National Committee, it upheld two of Arizona's election integrity laws. The first prevents counting provisional ballots cast in the wrong precinct, and the second prevents ballot harvesting by allowing only certain people, like family and caregivers, from sending in someone else's mail-in ballot. The opinion will likely prevent Democrats from using the courts to block every election integrity law they don't like. To prevail in such suits, they will now have to present evidence that an election law has a real discriminatory effect on minority voters. Alarmist language simply won't be enough. That's a victory for the integrity of our elections.

The Obamacare case, however, was a disappointment. On that score, the court gets a D. The court held that state challengers to the law lacked standing to sue. In other words, regardless of the merits of their claim, the courthouse doors are closed to them. It was a disappointing opinion because it looked like an unprincipled way to dodge the politically fraught merits. The court ought to apply its rules consistently and confront politically fraught issues if that is where its rules lead.

The upside of this case, however, was that it exposed the lie that Democrats leveled against Justice Barrett's confirmation that she was a "judicial torpedo" designed to kill Obamacare. No serious legal thinker ever thought so, but Democrats hooted and hollered about it, nonetheless. Now, the next time they say a Republican judicial nominee will spell doom for the country, we can all take them less seriously.

On the whole, this term was characterized by few big moves, but a reasonably consistent adherence to the Constitution and to the text of written laws. Notably, we saw a little less of the politicking that we have come to expect from Chief Justice John Roberts, but at the same time, we have seen Justices Brett Kavanaugh and Barrett reliably join him in some of his familiar dodges.

On the whole, the court has earned a B.

GianCarlo Canaparo is a legal fellow in The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. He wrote this for InsideSources.com.

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Viewpoint 2: This isn't the court conservatives had in mind

By Devin Watkins

Justice Amy Barrett's confirmation to the Supreme Court would spell doom for the Affordable Care Act, Roe v. Wade, and the 2015 Obergefell ruling on same-sex marriage — or so Sen. Sheldon Whitehouse, D-R.I., and others insisted last October at the start of the Supreme Court's new term. Reality turned out very differently than Whitehouse predicted.

This court is neither a liberal court nor the court that the liberals feared, but it also is not one that today's conservatives had in mind, either. Ironically, this court is one that conservatives said they wanted as recently as decade or two ago. That is, a court aligned with the vision of 17th century philosopher Edmund Burke that believes stability in law and society is the highest virtue.

Chief Justice John Roberts described himself at his confirmation hearing as a "modest judge" who doesn't "think the courts should have a dominant role in society and stressing society's problems." In response to the mid-century Warren-era Court, which conservatives saw as interfering too much in the political process, conservatives are the ones who once developed the ideals of "judicial minimalism" now embraced by Roberts. Once upon a time, it was conservatives who objected to judges "legislating from the bench," the opposite of which was seen as letting the political process work. Anything judges did to interfere with congressional or state legislation was viewed with suspicion.

But as both parties have skewed more ideological, stability and deference to Congress is no longer what motivates conservatives. Twenty Republican attorneys general and a Republican president asked the court to entirely invalidate the Affordable Care Act, and many of the Republican-appointed justices refused to answer the galvanizing question of whether all of the Affordable Care Act was unconstitutional.

The religious right asked the court to give a broad ruling in favor of Catholic charities being shut down by Philadelphia because the charities refused to endorse same-sex couples. The court refused, instead issuing a narrow opinion on a provision of their contract with Philadelphia and refused to answer the core questions of religious views versus anti-discrimination laws.

With Barrett, the court moved in the modest direction of allowing churches to operate during the pandemic when states like California and New York wanted effectively to end all church services. Roberts would have deferred to California and New York to make those calls.

But, while many of the high-profile or social questions before the court were simply not answered, the court did take steps to reform the administrative state — the fourth branch of government spawned during the New Deal that has unelected administrative agencies deciding the rules the people have to live under.

In that regard, the most exciting result of a case this term, United States v. Arthrex Inc., concerned the authority of administrative patent judges to issue final decisions that could not be reviewed. In a 5-4 decision, the court found that such unreviewable authority could only be wielded by principal officers of the United States, who must be confirmed by the Senate.

Arthrex is important for two reasons: scope and principle. The potential scope of this decision is vast. For instance, as agency rulemakings cannot be changed after they are finalized without restarting the process from scratch, do rulemakings need to be done by principal officers for that reason? The principle at issue is also fundamental, as it ensures at least careful review by the Senate of those with such substantial authority.

Another good decision this term was in Collins v. Yellen where the court declared the structure of the Federal Housing Finance Agency to be unconstitutional due to lack of presidential control. The director of the FHFA had complete control of the mortgage industry and yet was unjustifiably shielded from removal by the president. The president lacks real control over the FHFA — an executive branch agency — if he cannot remove the person who runs it.

These are significant structural reforms that start to return the administrative state to a more proper separation of powers. But the real question after this term is: How are Republicans going to respond to their own nominees not doing what they envisioned? Republicans appointed six of the justices now on the court, yet they don't seem to like the Burkean court that they appointed.

Given the right's dissatisfaction with their own appointees, will Republicans change their future judicial selection process? In the past, Republicans have seen their job as asking softball questions to their nominees to help them get confirmed. Will they do more to press potential nominees for answers to questions on jurisprudence?

Republican voters could bring an end to the era of softball questions, selecting elected officials who promise to do better in vetting and getting "the right" nominees on the bench.

Devin Watkins is an attorney at the Competitive Enterprise Institute, a free market public policy organization in Washington. He wrote this for InsideSources.com.

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