by Mitch Kokai
Senior Political Analyst, John Locke Foundation
For decades, conservatives have sought to regain lost culture-war ground through judicial nominations, with GOP voters consistently rating the Supreme Court a higher priority than do Democrats.
As the latest high-court term winds down — one featuring a putative 6-3 “conservative” majority — it’s worth taking stock of where that project stands. The answer: not in a great place. Consider two of this term’s highest-profile cases: California v. Texas (on ObamaCare) and the Fulton v. City of Philadelphia (on religious liberty).
In California, a 7-2 majority of Supremes again left former President Barack Obama’s signature domestic policy untouched. The court declined to reach the substantive issue — the constitutionality of the individual mandate. Instead, they dismissed the lawsuit brought by Texas and 17 other states on the threshold question of standing — lawyer-speak for a plaintiff’s obligation to show a concrete, remediable injury traceable to the defendant’s conduct.
The technical standing dispute in California is legally debatable: Trump nominee Justice Neil Gorsuch joined Alito’s lengthy dissent. Yet Justice Clarence Thomas, who is no less a conservative, joined the majority. Trump’s other two nominees, Justices Brett Kavanaugh and Amy Coney Barrett, also joined the Justice Stephen Breyer-penned majority opinion.
Senate Judiciary Committee Democrats’ fear-mongering that a vote to confirm these conservative justices would be a vote to repeal ObamaCare proved pointless — as did conservatives’ various litigation campaigns to overturn ObamaCare.
In Fulton, meanwhile, a unanimous Court held that Philadelphia authorities violated the First Amendment when they refused to contract with Catholic Social Services for foster care unless it placed kids with gay couples. …
… But Fulton could, and should, have been so much more. The case represented the court’s best chance in years to overrule Employment Division, Department of Human Resources of Oregon v. Smith.
That deeply controversial 1990 ruling, from the late Justice Antonin Scalia, upheld “neutral,” generally applicable laws so long as they only incidentally curtail religious freedom.
Smith was always legally dubious.