by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Seldom in American history has the Supreme Court unanimously rejected positions advocated by presidents’ administrations.
But in this respect at least, President Obama has produced the fundamental transformation he promised in his 2008 campaign. Over the last three years, the Court has rejected Obama administration positions repeatedly in unanimous 9-0 decisions.
A review of these cases reveals much about the governing philosophy of the Obama administration.
One thing is abundantly clear, namely that this administration has a crabbed view of the First Amendment right of free exercise of religion. That is apparent not only in June’s 5-4 decision ruling in Burwell v. Hobby Lobby that the Obamacare contraception mandate is trumped by the Religious Freedom Restoration Act.
It’s even clearer in the 2012 Hosanna-Tabor Church v. EEOC case, in which the Court unanimously said that churches have the right to select their own clergy. The administration’s position, that government could decide who counts as clergy, was described as “amazing” by Justice (and former Obama solicitor general) Elena Kagan.
The First Amendment freedom of speech is not highly valued by the administration either. In McCullen v. Coakley, decided last month, all nine justices overturned the Massachusetts law, supported by the administration, outlawing protests within 35 feet of an abortion clinic.
Property rights are also disfavored by the Obama administration. A unanimous court said the Fifth Amendment requires compensation when the government repeatedly floods its land in Arkansas Game & Fish Commission v. U.S. in 2012. …
… The increased proportion of unanimous Supreme Court decisions — the highest proportion over the last year since 1940 — may owe something to Roberts’ striving for unanimity and to justices’ willingness to decide cases on narrow grounds on which all nine can agree.
But it also owes something to what Kagan might describe as the administration’s chutzpah, a word she has used in decisions.
The cases cited here involve different principles, statutes and constitutional provisions. But in each, we see an administration inclined to lawlessness, to statism if not authoritarianism, a government that is bossy and eager to push people around.