The other day, in a virtual rally called “Fight Back for Fair Courts,” longtime Obama aide Dan Pfeiffer conceded that “the Supreme Court is the greatest obstacle to progressive policies in America.”
It’s been clear for some time that the Constitution — as written — is incompatible with a progressive agenda. This is the reality that drives the hysterics over Federalist Society–endorsed judicial appointments, over the Electoral College, and over other counter-majoritarian institutions. It’s why Pfeiffer and others advocate expanding, really neutering, the Supreme Court. It’s why a growing number of left-wingers argue that the Senate is a fundamentally unfair institution.
Constitutional restrictions on centralized power are a core problem for progressives. So is the Bill of Rights, which protects due process, open discourse, and the right to self-defense — all of which are now regarded as old-fashioned.
This week, two decisions by the court upheld religious liberty and conscience rights against incursions by the state. Both decisions represent modest victories, attained with liberal help. One ruling held that the ministerial exception to employment law (which allows religious organizations to choose who their own ministers are without being sued) applies also to teachers at religious schools who are responsible for religious education. In the other case, the court upheld the right of Americans not to participate in mandatory contraception coverage under Obamacare’s employer mandate.
For years, left-wing pundits mocked conservatives who maintained that Obamacare’s employer mandates abridged basic religious freedom — laughing as if this idea was the silliest, most fraudulent thing they’d ever heard. In a 2012 editorial, the New York Times scoffed at the “phony crisis over ‘religious liberty’ engendered by the right” and praised President Obama for standing his ground on “an essential principle — free access to birth control for any woman.” At some point in the ideological evolution of the American Left, “free access” to abortifacients was transformed into an “essential principle” of American life while the concept of religious liberty was consigned to existence between quotation marks.
Both cases ended up 7–2.
How things have changed in America. In 1993, the Religious Freedom Restoration Act passed unanimously in the House, attracted 97 votes in the Senate, and won Bill Clinton’s signature. Today, the First Amendment would be unlikely to get out of a House committee.
The Obama administration didn’t sue nuns who devote their lives to helping the elderly because it hated Catholics, but because it cared less about them than about its desire to remake the world. In the hierarchy of progressive values, state-run insurance schemes don’t merely supersede conscience rights; they crush them. Which is why the Little Sisters of the Poor were forced to fight a decade-long legal battle — a battle that will probably continue if Joe Biden is elected — in order to live by convictions that are defined by 2000 years of theology rather than by the whims of bureaucrats at the Department of Health and Human Services.
The real tragedy of this week’s tepid SCOTUS defenses of the First Amendment is that they weren’t 9–0. In a healthy constitutional republic, Ruth Bader Ginsburg and Sonia Sotomayor would be shamed and impeached for their flagrant and endless neglect of their oaths. In her Little Sisters of the Poor dissent, for example, Ruth Bader Ginsburg accused the Court of leaving “women workers to fend for themselves,” as if this topic were anywhere within the court’s bailiwick. She does this all the time.
For the past decade, at least, the media have adopted the progressive vernacular when covering courts. I’m not just talking about Washington Post columnists who believe that nuns who choose not to chip in for condoms are demanding extra-constitutional rights, but about reporters. Here is how NPR’s Nina Totenberg framed the employment decision:
The Supreme Court has carved out a giant exception to the nation’s fair employment laws — ruling 7–2 that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by religious institutions. [Emphasis added.]
Here is how Reuters reported on the Little Sisters of the Poor decision:
The U.S. Supreme Court on Wednesday endorsed a plan by President Donald Trump’s administration to give employers broad religious and moral exemptions from a federal mandate that health insurance they provide to their workers includes coverage for women’s birth control. [Emphasis added.]
These characterizations are both false. The religion clauses within the First Amendment reflect inalienable rights. Insosfar as we make exceptions in America, it is to the First Amendment’s protections, not to employment law. As for that “federal mandate” to which the Trump administration has supposedly accorded “employers broad religious and moral exceptions,” it was not in fact included within the text of the Affordable Care Act, but added later by the executive branch in an attempt to create a wedge issue for the 2012 election. If Barack Obama was permitted to add a contraception mandate that affected nuns, Donald Trump was sure as hell allowed to remove it.
Once, most of our debates revolved — if only superficially — around a shared conception of constitutional governance. But this is no longer so. Progressives view a Supreme Court that protects nuns who don’t want to buy abortifacients as the greatest threat to its political objectives. Which tells us a lot, doesn’t it?