Why Periods Of Crisis Coincide With Calls For Court Reform | New Conservative Majority Is Dead Serious About Religious Liberty

April 13, 2021

In The Washington Post, Thomas M. Keck notes that when our democracy has been faced with major periods of crisis, prominent proposals for court reform have been raised. He offers a number of examples of crises that have coincided with calls for reshaping the courts and notes, “Throughout U.S. history, crises of democracy have prompted discussions of Supreme Court reform because the court itself has often been perceived as a barrier to democratic preservation and renewal. That’s true beyond the United States as well. In a number of democratic countries in recent years — including Poland, Hungary, Turkey and India — anti-democratic leaders have tried to enlist the courts in efforts to undermine fundamental norms and institutions of democracy. When and where this happens, advocates for small-d democracy respond with calls for court reform.”

Todd Ruger with Roll Call reports one popular proposal for reforming the Supreme Court is ending life tenure and impose 18-year, staggered terms so that each president gets an appointment every two years. “Advocates of such change say that it would make the court’s ideological makeup better reflect the country’s and that there is support for the idea from across the political spectrum. One big catch: When a justice’s term ends, the Constitution still gives the Senate final say over who fills that vacancy.” But REP. RO KHANNA offered a solution in a bill he introduced in September — the first time Supreme Court term limits had been proposed in legislation, rather than as a constitutional amendment. His bill has a provision that says if the Senate doesn’t act on a nomination within 120 days, it will waive its “advice and consent” authority and the president’s nominee will be seated as a justice. GABE ROTH, Executive Director of the nonpartisan group Fix the Court, supports Khanna’s legislation and says, “The assumption is that a series of failed or voted down SCOTUS nominees would in time be punished at the ballot box, and the Senate (or presidency) would switch hands.”

The Supreme Court’s “shadow docket” — in which justices hand down rulings through unsigned orders that are often only one sentence long — has always been around. But Steve Vladeck argues in Slate that the way justices have been using it recently is problematic. “What’s new (and alarming) is not the shadow docket itself; it is the extent to which the justices are using it more and more often to issue significant rulings that change the rights and responsibilities of millions of Americans, all without the daylight (including multiple rounds of briefing, oral argument, and lengthy opinions setting out principled reasons for the decision) that comes with plenary review.”

Also in Slate, Mark Joseph Stern reviews the Supreme Court’s split decision on Friday in the case of Tandon v. Newsom in which SCOTUS blocked California’s COVID-related ban on religious gatherings. He writes, “Although the conservative majority’s decision was unsigned and ran just four pages long, it radically altered the law of religious liberty. Since 1990’s Employment Division v. Smith, the Supreme Court has not interpreted the First Amendment’s free exercise clause to require religious exemptions to laws that don’t discriminate against religion. In Tandon, however, the majority effectively overturned Smith by establishing a new rule, often called the ‘most favored nation’ theory. Under this doctrine, any secular exemption to a law automatically creates a claim for a religious exemption, vastly expanding the government’s obligation to provide religious accommodations to countless regulations.”

“For 30 years, the Supreme Court applied a simple rule when someone with a religious objection to a state law sought an exemption from that law. So long as the law applied equally to everyone, regardless of whether someone is religious or not, then everyone had to comply with the law. As the court held in Employment Division v. Smith (1990), religious objectors must follow ‘neutral law[s] of general applicability.’ Ever since JUSTICE AMY CONEY BARRETT joined the court last fall, however, the Supreme Court has been rapidly dismantling Smith.” That’s Ian Millhiser with Vox remarking on the massive victories the Christian right has received thanks to the Supreme Court’s newest justice. Millhiser suggests, “The court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19. The court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.”

Jessica Levinson writes in a column for MSNBC that even though DONALD TRUMP is out of office, his Supreme Court appointees get to keep their jobs for life. The new conservative majority is wasting no time advancing its agenda, particularly in response to ongoing public health orders relating to the pandemic. She reviews the high court’s decision in the California case, and notes that for those of you who hadn’t heard about it before last week, that would be because of the aforementioned “shadow docket.” Levinson: “There were no full briefings by each side. And there was no signed and full opinion. On issues as important as how we balance the free exercise of religion with a state’s power to implement restrictions for our health and safety, one would certainly expect that increased transparency, including a full airing of the issues, both in written and verbal form, would be preferable. Particularly when, as it did here, the court implicitly overturned prior case law by relying, in the words of JUSTICE ELENA KAGAN, on ‘separate opinions and unreasoned orders signals.'”