It is that time of year again where we all sit on our hands and hold our collected breaths to see what the Supreme Court has to say on the controversies of the day. This week, the Supreme Court came down with three opinions: one on Trump’s so-called “travel ban,” another involving compelled speech at a California clinic, and one involving compulsory union dues for non-members.
The Travel Ban Case
The Court ruled 5-4 to uphold Trump’s executive order. The order placed a 90 day ban on individuals from a handful of predominately Muslim countries from entering the country. Almost immediately, various power and attention seeking state attorneys general started suing. In total there were three orders and many lawsuits.
The argument from people like Washington State Attorney General Bob Ferguson, who was among the first to sue, was that “the law matters.” The First and Fourteenth Amendments allegedly showed that discrimination based on religion rendered the travel orders unconstitutional. When he was challenged that the executive orders were not in-fact “a Muslim ban” but a ban on certain predominately Muslim countries, Ferguson went from “the law matters” to saying the actual law is irrelevant, what really matters is what Trump said during the campaign.
The left has taken the 14th Amendment’s Equal Protection Clause and said that whatever their preferred policy happens to be is mandated by the Constitution. Thus, all the left has to do is use the magic word “equality” and it becomes a Constitutional right, or “discriminatory” and it becomes unconstitutional.
If people like Ferguson had not sued, this would have been over nearly 400 days ago. But Ferguson could not do that because he has spent the past year and half suing the Administration to build up his anti-Trump credentials before he runs for governor.
Either because they are historically ill-informed or because they are being willfully dishonest, many FDR loving liberals have taken to comparing the case to the infamous Korematsu decision. As Chief Justice John Roberts wrote in his opinion, such a position is ridiculous.
Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy of denying certain foreign nationals the privilege of admission.
The Court Upholds Free Speech
In another 5-4 case the Court struck down a California law that required clinics, even pro-life clinics, to advertise abortion.
The same people who decry any regulation limiting abortion, even in the slightest manner, as a violation of some part of the Constitution that does not actually exist are eager to run all over the First Amendment, which does exist.
Justice Clarence Thomas wrote in his opinion that California’s argument that the regulation was justified because patients have a right to information about procedures available to them was problematic. He wrote
The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an ‘uncontroversial’ topic.
In California, the First Amendment lives to see another day. This is good (for now), but the fact that there are four justices on the Supreme Court who believe that abortion a constitutional right, and those who find the practice morally repugnant must promote it, should scare everyone.
A “Strike” to Unions
The latest 5-4 decision involved a case regarding the ability of public unions to collect dues from non-members. For public unions, it seems unconscionable that someone would not want to “support the union” for it betrays union solidarity. Unfortunately for public unions, not everyone wants to see part of their paycheck go to left-wing Democrats in the form of donations derived from union dues, so they refuse to join the union. The unions, however, still collected dues from these non-members, or at least they did until Wednesday. Justice Samuel Alito, quoting Thomas Jefferson, wrote the Opinion for the Court, putting an end to this “sinful and tyrannical” practice.
In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.
Again, the First Amendment barely survives as there are four justices on the Court who think that the political well-being of public unions is more important than the First Amendment.
The Constitution is more important than any negative feelings you have for Trump. It is more important than promoting abortion, and it is more important than public sector unions. The Constitution won at the Supreme Court this week, because there are five justices who seem to understand this. That there are four who do not is deeply worrisome. With Justice Kennedy announcing his retirement, it is important that his replacement also understands this.