3/23/17
The Senate hearing on the confirmation of Neil Gorsuch has been viewed exclusively through a partisan lens -- with contempt by those who see him as a proxy for President Trump. The twenty hours describing his practices of judgeship, including detailed explanations of dozens of cases that he participated in, was a master course in the interplay of the three branches of our federal government and the prerogatives of the fifty States. These forces are all in play in a case that was a blow to the ACA, and thus the decision that he authored excoriated by Democrats
The Senate hearing on the confirmation of Neil Gorsuch has been viewed exclusively through a partisan lens -- with contempt by those who see him as a proxy for President Trump. The twenty hours describing his practices of judgeship, including detailed explanations of dozens of cases that he participated in, was a master course in the interplay of the three branches of our federal government and the prerogatives of the fifty States. These forces are all in play in a case that was a blow to the ACA, and thus the decision that he authored excoriated by Democrats
The "Hobby Lobby" decision where he supported the family-owners in refusing to cooperate with the ACA requirement was based on the Religious Freedom Restoration Act- RFRA which mandated extra-deference to religious beliefs, or strict construction in evaluating the acceptability of any restrictions on adherents. This replaced the previous common law which required that religious groups, while protected against restrictions because of their faith, were bound by general rules. This bill was passed almost unanimously by Congress, yet was partially overruled by the Supreme Court. (I suggest that those interested in the details go to the the previous link) Gorsuch, (and later Alito on the Supreme Court,) made the case that it was adherence to RFRA that controlled his decision. RIFA was a law introduced in the House by Rep Chuck Schumer and supported by Sen. Ted Kennedy that passed Congress almost unanimously .
This law redefined the first amendment by elevating "religious" above the other four distinct freedoms. I quote this concurrence with the decision, that finds it did not go far enough in weakening the statute that was only partially overruled:
Justice Paul Stevens, concurring:
In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).
Elaborating on Justice Stevens position, lets look at the first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances clause, “
In the “establishment clause, the first freedom uses a single word, “religion” that has two meanings, well defined in Dictionary.com :
1: A set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing human affairs.2: A specific fundamental set of beliefs and practices generally agreed upon by a number of persons
#1 religions would be the three Abrahamic ones, among many hundreds of others. #2 would include Universalist Unitarian, Scientology and First Amendmist Church of True Science — F.A.C.T.S
In the U.S., both #1 and #2 religions are treated the same in areas such as tax benefits and zoning along with the extra protection provided by RFRA.
There is a more profound contrast between #1 and #2 religions. It is that the former includes a commitment and belief in the supernatural, that all that we know from our naive observations to the most arcane understandings of the scientific endeavor are subject to being overruled by the dogma of their religion. Death is not irreversible, miracles do happen, good and evil are not human constructs, but the essential nature of the world. For the #1 religions, and those who espouse them, not only is global warming a hoax, but so could be anything or everything that has been explained by the formal or unarticulated principles of the scientific method.
Vice President Mike Pence in his proclamation, “ I am a Christian, a Conservative and a Republican, in that order" makes his identity known, never reaching “American” whose values and laws are thus subordinate to the edicts of his Christianity. In contrast, Donald J. Trump, while welcoming #1 Christians and Jews into his electoral coalition, shows no evidence of being one himself. In a similar way when Representative Charles Schumer sponsored this law, being a secular Jew it is unlikely that this was done for other than political expediency. Of course the same accusation can be made against most of those five hundred Congresspersons who voted for this law.
There is a more profound contrast between #1 and #2 religions. It is that the former includes a commitment and belief in the supernatural, that all that we know from our naive observations to the most arcane understandings of the scientific endeavor are subject to being overruled by the dogma of their religion. Death is not irreversible, miracles do happen, good and evil are not human constructs, but the essential nature of the world. For the #1 religions, and those who espouse them, not only is global warming a hoax, but so could be anything or everything that has been explained by the formal or unarticulated principles of the scientific method.
Vice President Mike Pence in his proclamation, “ I am a Christian, a Conservative and a Republican, in that order" makes his identity known, never reaching “American” whose values and laws are thus subordinate to the edicts of his Christianity. In contrast, Donald J. Trump, while welcoming #1 Christians and Jews into his electoral coalition, shows no evidence of being one himself. In a similar way when Representative Charles Schumer sponsored this law, being a secular Jew it is unlikely that this was done for other than political expediency. Of course the same accusation can be made against most of those five hundred Congresspersons who voted for this law.
What did it take to allow John Paul Stevens to write his cogent clear observation on the RFRA case, something that no individual in electoral politics could do -- then or now. It certainly could not have been gleaned from his Republican political affiliations, or his conservative decisions on the Court of Appeals. His hearing in 1975 (It’s all here) was a non partisan affair with letters of recommendation from two-time Democratic Presidential nominee Adlai Stevenson among many others. He had been appointed to the appeals court by Richard Nixon, and the Supreme Court by Jerald Ford, replacing the most liberal Justice in history, William Douglas. Were the Democrats outraged by this partisan selection? Not exactly, as there was not a single vote against his confirmation..
And then Stevens, who like Neil Gorsuch, was a brilliant scholar with the humanity and courage of his convictions, performed his duties on this highest of courts that brought to bear this intellect and integrity. He never asked himself when analyzing a case what outcome will benefit one side or another, but balanced precedent with something deeper. He, among all of those in Government when RFRA was being considered, could actually understand the minds of our founders, those deist- rationalists who would never have allowed #1 type religions to dominate the nation they were defining.
I'm convinced that Neil Gorsuch has the best potential to become an independently minded Justice who would, at the least, emulate Stevens; with the possibility of his growing into a transformational figure such as Justice Earl Warren. The cathartic rage of a Democratic filibuster, ironically led by Charles Schumer, the sponsor of RFRA, may provide immediate satisfaction; but it will only escalate the further erosion of the now quaint civility of John Paul Steven’s unanimous confirmation four decades ago..
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Addendum 1:
Gorsuch's first vote, only a week after his joining the court, (See N.Y. Times Editorial) to allow a man to be executed when there was Supreme Court precedent that would have spared him, cast doubt on my position in this essay. His identity with Republic conservatism seems more likely now to define his tenure on the court.
Addendum 2:
This statement (82/234 PDF) made by the President of NOW. at Steven's hearing, lists the litany of his decisions that went against women's equality that had been recently enshrined in federal civil rights laws. Unlike cases decided by Gorsuch that were antithetical to current standards of equal rights, there were no balancing supportive opinions. Yet, this statement by the same organization of appreciation of his thirty five years of decisions supporting women's rights at his retirement, shows that the past was not prologue in his case.
My argument above is that there is a probability that Gorsuch will be like a Paul Stevens, but the fear of Democrats is that he will be another Antonin Scalia. These two served together for a quarter century, so given the commonality of their pre-court conservative history, a complete evaluation of how they differed, and they mostly did, would be illuminating, but lengthy. Among their opposite positions are an array of abortion cases. Stevens espoused the pro-choice position while Scalia was adamantly pro-life to the the degree of favoring reversal of Roe v. Wade. In the landmark Heller decision both reached back to the original interpretation of the second amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" each coming to opposing conclusions of the founders meaning.
Both of these jurists were independent thinkers, which allowed a switch of roles where it was Stevens who took the conservative position that burning the American Flag could be criminalized, whereas Scalia stood firm that it was symbolic speech protected by our First Amendment in Texas v. Johnson 1989. This case illustrates not only the complexity of thought and discussion within the Court, but how in any legislature those who would have protected burning of the American Flag would not only have had their electoral career ended, but could have faced violent retribution.
It is the same first amendment "Free speech absolutism" that underpinned the right of powerful giant corporations unlimited voice in elections in Citizens United that also protected enraged self destructive protesters to burn our national emblem. Perhaps this is why, as few would guess, the very liberal ACU supported this decision.
Neil Gorsuch responding to twenty hours of challenging questions seemed to actually enliven him, as if he relished the opportunity to articulate just how and why courts are different than elected bodies. Demagoguery, to some degrees is what electoral politics is about, but no judge should ever consult an opinion survey. The Supreme Court is more than being objective, as values of the Justices do matter. As we see in the examples of Antonin Scalia and John Paul Stevens, there is no way to predict the evolution of a Justice when on the bench. From my fairly extensive study of Neil Gorsuch, he will provide that mix of reason and humanity that is so vital at this moment in time.
addendum: 6,28,17
Gorsuch has now participated in several decisions, and he has joined Alito and Thomas in one, and the other it was only Thomas. If my hope is to turn out to have any validity, it will be a long process, as now he is more extreme than Scalia. Wishful thinking is a powerful force
I'm convinced that Neil Gorsuch has the best potential to become an independently minded Justice who would, at the least, emulate Stevens; with the possibility of his growing into a transformational figure such as Justice Earl Warren. The cathartic rage of a Democratic filibuster, ironically led by Charles Schumer, the sponsor of RFRA, may provide immediate satisfaction; but it will only escalate the further erosion of the now quaint civility of John Paul Steven’s unanimous confirmation four decades ago..
----------------------------
Addendum 1:
Gorsuch's first vote, only a week after his joining the court, (See N.Y. Times Editorial) to allow a man to be executed when there was Supreme Court precedent that would have spared him, cast doubt on my position in this essay. His identity with Republic conservatism seems more likely now to define his tenure on the court.
Addendum 2:
This statement (82/234 PDF) made by the President of NOW. at Steven's hearing, lists the litany of his decisions that went against women's equality that had been recently enshrined in federal civil rights laws. Unlike cases decided by Gorsuch that were antithetical to current standards of equal rights, there were no balancing supportive opinions. Yet, this statement by the same organization of appreciation of his thirty five years of decisions supporting women's rights at his retirement, shows that the past was not prologue in his case.
My argument above is that there is a probability that Gorsuch will be like a Paul Stevens, but the fear of Democrats is that he will be another Antonin Scalia. These two served together for a quarter century, so given the commonality of their pre-court conservative history, a complete evaluation of how they differed, and they mostly did, would be illuminating, but lengthy. Among their opposite positions are an array of abortion cases. Stevens espoused the pro-choice position while Scalia was adamantly pro-life to the the degree of favoring reversal of Roe v. Wade. In the landmark Heller decision both reached back to the original interpretation of the second amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" each coming to opposing conclusions of the founders meaning.
Both of these jurists were independent thinkers, which allowed a switch of roles where it was Stevens who took the conservative position that burning the American Flag could be criminalized, whereas Scalia stood firm that it was symbolic speech protected by our First Amendment in Texas v. Johnson 1989. This case illustrates not only the complexity of thought and discussion within the Court, but how in any legislature those who would have protected burning of the American Flag would not only have had their electoral career ended, but could have faced violent retribution.
It is the same first amendment "Free speech absolutism" that underpinned the right of powerful giant corporations unlimited voice in elections in Citizens United that also protected enraged self destructive protesters to burn our national emblem. Perhaps this is why, as few would guess, the very liberal ACU supported this decision.
Neil Gorsuch responding to twenty hours of challenging questions seemed to actually enliven him, as if he relished the opportunity to articulate just how and why courts are different than elected bodies. Demagoguery, to some degrees is what electoral politics is about, but no judge should ever consult an opinion survey. The Supreme Court is more than being objective, as values of the Justices do matter. As we see in the examples of Antonin Scalia and John Paul Stevens, there is no way to predict the evolution of a Justice when on the bench. From my fairly extensive study of Neil Gorsuch, he will provide that mix of reason and humanity that is so vital at this moment in time.
addendum: 6,28,17
Gorsuch has now participated in several decisions, and he has joined Alito and Thomas in one, and the other it was only Thomas. If my hope is to turn out to have any validity, it will be a long process, as now he is more extreme than Scalia. Wishful thinking is a powerful force
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