Pierce: Nothing Is Beneath These Guys

http://www.esquire.com/news-politics/politics/news/a55886/anthony-kennedy-supreme-court-travel-ban/


Nothing Is Beneath These Guys

Meanwhile, the Supreme Court tackles religion in more ways than one.

By Charles P. Pierce
Jun 26, 2017


Before we get to the running-for-the-beach-house day of decisions from the Nine Wise Souls on Monday, we should first visit what went on over the weekend when it became clear that someone—or a whole bunch of someones—were dedicating themselves to pushing Justice Anthony Kennedy into a cab and sending him off to the land of still-life portraits. The invaluable SCOTUSBlog has the weekend roundup.

The much-bruited possibility that Justice Anthony Kennedy will retire prompts coverage from Mark Sherman at the Associated Press, Ariane de Vogue at CNN, Max Greenwood at The Hill, Mary Kay Linge at The New York Post, and Daniel Politi at Slate. But, based on reports from Saturday night's Kennedy law clerk reunion, David Lat at Above the Law and Jess Bravin in The Wall Street Journal cast doubt on the prevailing rumors.

Now, nobody would be surprised if ol' Weathervane hung 'em up. The man is 80, after all, and he and his fellow justices were down a skater for most of the last two years. That has to wear on a fella. But there was something different about how these rumors ignited.

Let us be cynical for a moment and put ourselves in the place of someone within the Republican congressional leadership and/or someone in the White House. (Don't worry. In the latter case, all you have to do is hire an imaginary lawyer.) God only knows what will happen in the 2018 midterm elections. You may only have one shot at replacing another justice on the Court and swinging the majority in the general direction of the Star Chamber. Neither Elena Kagan nor Sonia Sotomayor is going anywhere for the foreseeable. Stephen Breyer's departure is highly unlikely, and you couldn't get Ruth Bader Ginsberg out of there with Seal Team Six. So what's an earnest young schemer to do?

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However, as long as we still have all nine of these jamokes, the White House got itself a win on Monday when the Court allowed most of the administration's travel ban to stand pending a formal hearing of the case this fall. In the decision, as the WaPo shows us, the Court's conservative bloc, now reinforced with the addition of Justice Neil Gorsuch, is solidifying nicely. In a number of ways, including dissenting in a case in which the Court said that state officials had to list both same-sex parents on their child's birth certificate, Gorsuch sent a message that he can be counted on to drift to the right even of Samuel Alito. Nice work, Mitch.


Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch would have let the ban take effect as written and objected to what they called the court's "compromise." A partial stay will "burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country," Thomas wrote. Such a compromise, the justices said, will lead to a "flood of litigation" over what constitutes a "bona fide relationship" before the overall case is resolved after oral argument in the fall.


Well, one can only hope. The Court has left open a loophole. It didn't do so by accident. Basically, it told the administration to get its act together on vetting procedures, and it told the lower courts they overreached a bit. The ultimate constitutionality of the ban is a question for yet another day. I get the feeling that a good bit of the Supreme Court doesn't want to rule on this question at all.

However, it was not shy in taking yet another big whack at the separation of church and state. It reversed a lower court opinion in Trinity Lutheran Church of Columbia v. Missouri Department of Natural Resources. This case involved the church's desire to resurface its playground with scrap rubber from a state-sponsored Scrap Tire Program. The state had a policy of denying participation to any religious entity on constitutional grounds. Chief Justice John Roberts led a 7-2 majority—in which Kagan joined—in concluding that to exclude churches from a state program aimed to improve public safety—rubberized playgrounds are safer places on which to fall than gravel ones—is a violation of the First Amendment's guarantee of the free exercise of religion since public safety is a secular concern. Roberts wrote:

"The exclusion of Trinity Lutheran from a public benenfit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."


In an unusual step, Sotomayor read her dissent from the bench. It said, in part:

"Today's decision discounts centuries of history and jeopardizes the government's ability to remain secular."


However, out of his apparently irresistible desire to hedge his bets, Roberts added a footnote that drew the ire of the more conservative justices. This case, he wrote:

"…involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination."

In other words, playgrounds only, at least this time around. Thus do we carve out a constitutional exception on behalf of the monkey bars. God save the United States and this honorable Court.