By Larry Schweiger
Pittsburgh Current Columnist
Associate Justice Neil Gorsuch wrote a book entitled: “A Republic, If You Can Keep It.” In it, he wrote, “The separation of powers and its role in protecting individual liberty and the rule of law can sound pretty abstract. I confess it seemed that way to me in my high-school civics class. I came to appreciate the genius of the Founders’ design more fully only years later, when as a judge I saw what happens to real people in real cases when the separation of powers goes unattended.”
The trend is increasingly troublesome. The Supreme Court was exercising far-reaching legislative powers when they gutted key provisions of the Voter Rights Act essentially claiming that racism in elections no longer exists. The majority opinion asserted that “based on 40-year-old facts having no logical relationship to the present day” they stripped key provisions protecting voters. In 1965 after years of civil rights protests, Congress enacted, and President Johnson signed the Voting Rights Act. Congress examined the evidence and reconfirmed the need for continued Federal intervention as vital for fair and open election in 1970, 1975, 1982, 1992, and 2006. Turning the clock backward and ignoring the long deliberative Congressional work on voter rights, the Supreme Court severely damaged minority voting rights in the case of Shelby County v. Holder. It is now painfully clear that voter suppression targeted at minority communities is again fully operational in several states held by conservatives.
When the High Court concluded that free speech equals money and corporations are people, they dismantled the Bipartisan Campaign Reform Act that passed Congress, and the President signed. We now deal with a flood of dark money and the influence it buys.
As Gorsuch stated in his book “separation of powers,” the principle needs reexamination especially in light of the Thanksgiving decision. Far from having separated powers, the executive, legislative, and judicial branches are entangling in ways that are troubling. Especially in recent years, the High Court has made profound decisions impacting our lives that are entirely out of reach of the voters. Gorsuch forgot what he once wrote about the importance of the separation of powers.
On the eve of Thanksgiving during an exploding pandemic, the SCOTUS issued an unsigned opinion endorsed by Gorsuch, supplanting their flawed judgment for health scientists. They blocked well-intended, medically sound executive efforts by Governors and Mayors who addressed a severe challenge amid the COVID-19 pandemic to slow the spread of a deadly virus. In an unsigned majority opinion, the SCOTUS reversed an earlier decision that included Ruth Bader Ginsberg during this public health crisis by limiting crowd sizes. In this specific case, Governor Cuomo established health-based restrictions to large gatherings that would only be applied in red zones where the COVID spread is dangerously high. The High Court, in this recent ruling, now claims that Cuomo infringed on the right to free exercise of religion. Ignoring the public health risks of their decision, they framed their decision around violations of religious freedom, falsely claiming that the actions are not neutral because they “single out houses of worship for especially harsh treatment.” The majority also falsely indicated that there is no evidence that the religious organizations that brought the lawsuit had contributed to the spread of Covid-19 when church after church across America has witnessed the consequences of super spreader events. In a post-science, post-commonsense move, the Court eliminated a critical public safety measure and stripped executives of an important pandemic option to protect the general public.
Ginsberg’s last request was her hope that Trump and the Senate would wait till after the election as they did with Garland. That was ignored, so now we have Amy Coney Barrett, who, after having had COVID herself, participated in a super-spreader event at the White House and ignored health scientists’ warnings. Jeffrey D. Sachs, director of the Center for Sustainable Development at Columbia University, recently wrote, “Last month, I wrote that Amy Coney Barrett would help to usher in a new post-truth jurisprudence on the Supreme Court. While I had cited her anti-science statements on climate change, her arrival on the Court has created a new 5-4 majority against public-health science at the height of the Covid-19 pandemic.”
Mass indoor gatherings of any kind are a threat to public health and safety during a raging pandemic. Scientifically illiterate judges overturned sensible executive decisions when the High Court ruled against New York state’s medical science-based decision to limit religious congregations in high-incidence communities. The extreme right-wing of the SCOTUS are not public health experts, but they act like they are. They do not respect the judgment of those with particular expertise and responsibility in health science and even accused the Governor of targeting religious institutions.
Justices Sotomayor and Kagan wrote that granting the injunction “will only exacerbate the Nation’s suffering.” One person’s right to freedom of religion in a raging pandemic in a red zone is a threat to certain unalienable rights of others in that zone, including life itself. Suppose a churchgoer attends a crowded church and brings COVID-19 to their community, and the virus kills others. In that case, it is common sense that their religious rights collide with others’ rights to live.
The already conservative high Court took a hard right-hand turn with Mitch McConnell. As Obama was taking the oath of office, Mitch McConnell vowed to make him a one-term President. Failing at that, he and Republican senators hemmed Obama in every way possible, including blocking scores of well-qualified judicial appointments. In response to the continuing blockage of Obama’s nominees, Senator Harry Reid, on November 21, 2013, invoked the so-called “nuclear option,” changing Senate rules to allow a simple majority vote for all nominees except for the Supreme Court.
The Constitution provides the President “shall nominate, and by and with the Advice and Consent of the Senate,” appoint justices, Federal judges, and key public officials. On March 16, 2016, President Barack Obama nominated Judge Merritt Garland, a well-qualified moderate Judge respected by Republicans and Democrats alike, to serve as an Associate Justice of the Supreme Court. Mitch McConnell and the Senate Republican majority refused to hold a hearing or even give Garland a courtesy meeting. The Republican majority refused to provide advice and consent on this nomination during the final year of Obama’s presidency. The Senate’s unprecedented refusal to accept or reject the Garland nomination to fill the vacancy created by the death of Antonin Scalia (who died on one of his famous hunting junkets funded by special interests) left the Court with eight justices. Obama’s executive power to appoint a Supreme Court Justice was thwarted by Republican Senators ignoring their role to “advice and consent.” By stonewalling Obama, they handed Trump an opportunity to appoint Neil Gorsuch. McConnell extended simple majority policy to Supreme Court appointments and confirmed three problematic extreme right-wing justices appointed by Trump with simple majorities.
Now that a Federalists Society majority is in firm control of the High Court, we should anticipate a much more aggressive role for the Court attacking health and environmental laws without restraint. We should also expect more terrible ideological decisions that conflict with sound science from this unelected political body that is legislating from the bench.