Conservatives still seem never to get big court wins
Whether for good or for ill, three court decisions in the past two days make clear that Chief Justice John Roberts’ “Let’s Make a Deal” regime continues to predominate in American jurisprudence.
Don’t be fooled by the headlined “results” in a challenge to Obamacare or in religious liberty cases about a cake-maker and a foster-care service. Concentrate on this: The parts of the legal community left in the cold here are the conservatives wishing, with Justice Samuel Alito, for more definitive constitutional decisions rather than narrow procedural or technical rulings. From a legal standpoint, very little in the Roberts regime ever seems final; instead, the courts invite seemingly endless rounds of judicial hair-splitting.
Rather than wholeheartedly affirm the Catholic organization’s religious-exercise claims, the court ruled in Fulton v. Philadelphia that the city’s system failed because it allows individual exceptions to its “non-discrimination” policy, and that if exemptions are discretionary, it means the policy itself is not “generally applicable” in a way that lets it disfavor religion. Notably, Justices Amy Coney Barrett and Brett Kavanaugh not only agreed to this narrower ruling but also filed a concurrence expressing at least some skepticism about the extent and force of the broader religious-liberty claims sought by conservatives.
It was left to Alito, joined by Justices Clarence Thomas and Neil Gorsuch, to write separately that the religious-liberty claim should be seen as a “bedrock constitutional right.” Because only those three, rather than a majority, agreed to that interpretation, the city of Philadelphia might be able to revise its policy at the edges, removing its one “discretionary” aspect, and again make the Catholic organization ineligible to partner with the city on behalf of foster children.
In sum, Catholic Social Services, just like Jack Phillips, may be forced into another lengthy, expensive round of litigation – litigation that Alito and his court allies would spare the group and the young people the group so kindly serves.
What is interesting is that, so far in her short tenure on the court, Justice Barrett has seemed wont to join Roberts's camp rather than Alito’s. This week’s decisions show that despite liberal fears and conservative hopes, American courts still aren’t primed for anything approaching a sweepingly conservative, constitutionalist revival.
Yea, verily, the Trump Trio is more Swamp Creature RINO than TEA Party activist.