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If the Supreme Court Betrays Social Conservatives, Red States Could Revolt
The Supreme Court is playing a dangerous, stupid game that threatens to destabilize our republic
After roughly half a century of institution building necessitated by the nihilism of Justice Blackmun’s ruling in Roe v. Wade, the “conservative legal movement” has achieved its coup: ostensibly “conservative” justices now hold a 6-3 majority on our highest court.
The prospect of defending life and fundamental civil liberties by the appointment of originalists and textualists to the Supreme Court and federal judiciary has helped bind social conservatives to the GOP for decades. It has also been one of the few enduring forces securing their allegiance to a federal government whose permanent bureaucracy has grown increasingly hostile to their values.
If conservative justices fail to live up to the promise of their principles and instead compromise with judicial nihilism, not only will the national GOP lose out to the often unruly passions of its state and local corollaries, red states could eventually refuse to recognize the court’s authority.
Some social conservatives may celebrate the court’s recent refusal to grant injunctive relief against the Texas Heartbeat Act—which bans abortion after a fetal heartbeat is detected, but leaves enforcement to citizens willing to file civil suits—but they are foolish to interpret the court’s decision as anything other than the neutral application of textualism to the petitioners’ utterly bungled suit. Writes Justice Alito for the majority:
we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
The ruling quite simply tells us nothing about how the majority might rule in a case that addresses substantive claims.
I used to have faith in the conservative legal movement. But after the milquetoast ruling in Fulton v. Philadelphia and, even more, the court’s refusal to hear Arlene’s Flowers v. Washington, I have no faith at all.
In Fulton, which challenged Philadelphia’s exclusion of Catholic Social Services from its foster care program, the court had the opportunity to overturn the noxious precedent set by Antonin Scalia in Deployment Division v. Smith (1990). Smith had established that a “compelling government interest” was not necessary to justify enforcement of a “neutral law of general applicability” when such a law incidentally proscribed religious practices. Justice Alito wrote in 2018 that in Smith,
the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination.
It was a patently unjust, asinine ruling, and the court had a duty to refute it in Fulton. Instead, although a measure of justice was secured for Catholic Social Services, it was secured on grounds too narrow to establish meaningful precedent; indeed, the ruling is so weak that it seems to leave open the question of its own future annulment.
The narrowness of Chief Justice Roberts’s ruling in Fulton is similar to that of Justice Kennedy’s in Masterpiece Cakeshop v. Colorado (2018). In both cases, it appears that the rulings were tailored so narrowly, at the cost of setting precedent, in order to secure stronger majorities (7-2 in Masterpiece; 9-0 in Fulton). Justice Gorsuch did not mince words in his concurrence:
The Court granted certiorari to decide whether to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). As Justice Alito’s opinion demonstrates, Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no “need” or “reason” to address the error of Smith today. …
Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.
Gorsuch no doubt feels the same way about his colleagues’ refusal even to hear Arlene’s Flowers v. Washington. The case, which concerns the state of Washington’s persecution of a Christian grandmother for refusing to arrange flowers for the wedding of a gay client (and friend) she had otherwise served faithfully for nearly a decade, would have proved a fitting sequel to Masterpiece, finishing what Kennedy had left undone. But it does not provide the court with the same opportunity to rule narrowly without addressing Smith head-on.
Roberts, Kavanaugh, and Barrett, all supposedly conservatives, laid their cards on the table in refusing to join Gorsuch, Thomas, and Alito in green-lighting the case. Gorsuch may chalk this up to a lack of “fortitude,” as he did in his Fulton concurrence, but I think that’s too generous. Their present refusal speaks more to an abundance of cowardice. Or, perhaps, to their having abandoned principle by de-prioritizing religious freedom.
It’s no secret that Chief Justice Roberts cares more about protecting the court’s image than about rendering just verdicts. Even if his deepest hermeneutical principles demand a robust interpretation of free-exercise, he cannot be counted on to rule accordingly. But I had higher hopes for Kavanaugh and especially Barrett. Unless they have plans to resolve the problem of Smith in some other way, they, like Roberts, have betrayed the social conservatives who put them on the bench.
And that betrayal may be endemic to the conservative legal movement more generally. In a recent article on the movement’s history, Harvard Law professor Jack Goldsmith highlights an episode recounted in Ruth Marcus’s book on the Kavanaugh confirmation hearings. During the first meeting on selecting Scalia’s replacement,
White House Chief of Staff Reince Priebus noted that major Republican donors cared little about abortion and same-sex marriage but a lot about chopping down the regulatory state. White House Counsel McGahn, in Marcus’s paraphrase, added that conservatives’ “emphasis on social conservatism and its associated hot-button issues ended with Scalia,” and that now judge-selection is “all about regulatory relief.” McGahn stated that on that criterion, Scalia himself “wouldn’t make the cut.”
As Goldsmith observes, the Federalist Society is riven by a feud between social conservatives and libertarians, who prioritize abolishing the “Chevron doctrine” above defending human life. If Justices Kavanaugh’s and Barrett’s refusal to hear Arlene’s Flowers indicates commitment to an anti-regulatory project to the exclusion of fighting against abortion and for religious freedom, the nation is headed towards a frightening impasse.
Social conservatives who dominate state and local politics in red states could simply refuse to recognize the Supreme Court’s authority on issues such as abortion and free-exercise when its rulings adulterate the Constitution. Red states will call the federal government’s bluff with respect to enforcement, much in way blue states have with the legalization of recreational marijuana use. And if enough red states participate, they are sure to succeed. No president, however authoritarian their disposition, is going to sic the military on half the states of the Union to coerce compliance with the Court’s farcical diktats.
Red states will be justified in taking civil disobedience this far, but no farther. My fear is that the momentum of victory will incentivize broader defiance, which in turn could precipitate a decisive crack-up of our republic.
We’ll know quite soon whether this dark prognostication is accurate. The Supreme Court has agreed to hear Dobbs v. Jackson Women’s Health Organization this term. More precisely, the Court has granted certiorari to address the question: “Whether all previability prohibitions on elective abortion are unconstitutional.” The stakes are high. As Gerard V. Bradley writes in First Things,
The court will struggle, and perhaps mightily, to write an opinion that discards “viability” without overturning Roe. The pro-life justices will be unsatisfied with throwing up any facile or arbitrary line, though, in pursuit of a moderate result that somehow divides elective abortions into coherent categories of those which are constitutionally immune to state bans and those which are not, distinguished by some relevant principle and not by judicial fiat. Perhaps that opinion simply cannot be written. We should pray for that event, for it would augur, as Mississippi suggested, that “Roe and Casey should indeed be overruled.”
When Dobbs is decided, social conservatives will learn whether their decades-long effort at judicial reform was a success—which is to say, they will learn whether our nation remains a functioning constitutional republic. If it turns out that the game is rigged against them, expect them to stop playing.