Supreme Court or Supreme Insult?
By David Hoffman
During my years serving as Legal Editor for the English Edition of Pravda.Ru, I have had many occasions to write about the inanity, hypocrisy, mendacity, and corruption displayed by the current United States Supreme Court, where a "conservative" majority dominated by five unethical, politicized, and overtly biased "justices"-Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy, and Chief Justice John Roberts-unabashedly and unconscionably impose their personal, political, economic, racial, and religious agendas upon millions of Americans through the force of law, oftentimes overturning decades of legal precedent in the process.
Yet, not surprisingly, one hears little denunciation in conservative political circles about this new brand of judicial activism, even though it was conservatives who rabidly denounced the Warren Court for its alleged judicial activism during the 1950s and 60s-an activism that included the expansion of civil rights and liberties for African-Americans and other racial minorities. In fact, conservatives deceptively heralded the replacement of Chief Justice Earl Warren with Warren Burger as a new dawn of "judicial restraint."
In reality, this new dawn should have served as a harbinger to Americans regarding the increasingly farcical nature of their highest court, because conservatives were not celebrating the fact that a learned, unbiased jurist was now Chief Justice, but instead applauding the rudimentary steps toward the creation of a Supreme Court comprised of racist, right-wing "justices" who would place their personal beliefs and agendas above existing law, and overturn or dilute many of the Warren Court's decisions.
Today they have finally gotten their wish.
However, it was not intended to be this way. When America's founders were constructing the nation's "check-and-balance" system, they came to realize that two of the three federal government branches-the legislative and executive-were dependent upon the will of the majority; therefore, they decided that judges who comprised the judicial branch would be appointed instead of elected. It was believed that by freeing these judges from the necessity to appease and appeal to the whims of the voters they would be in a better position to protect and defend the rights of America's racial, religious, and political minorities.
But what America is witnessing today is the sobering reality that the only minority the Roberts court is interested in protecting is the minority with the majority of the money.
This has become glaringly clear in cases like Citizens United vs. Federal Election Commission (FEC) and McCutcheon vs. FEC-two decisions that have undermined democracy by giving wealthy corporations and individuals unrestrained power to use their vast financial resources to buy the influence of politicians via political ads and campaign "donations."
But it is the court's recent, widely applauded decision in the case of Town of Greece vs. Galloway that demonstrates just how deeply it has abandoned its role as guardian of America's minorities.
The facts of this case are as follows: The town council in Greece, New York habitually opened its meetings with prayers that overtly favored the Christian religion. According to Supreme Court Justice Elena Kagan, the council made no effort to accommodate any other faiths until some residents complained.
Yet, in another 5-4 ruling, the court's "conservative" majority stated that prayers at government meetings are constitutionally acceptable even when they clearly favor one religion over another.
Writing for the court's majority, Kennedy noted that having judges evaluate the content of prayer to ensure it is nonsectarian would essentially make them censors. Yet, apparently, he has no problem with government legislators acting as censors when determining which particular religions are invited to give invocations, because he imposed no obligation on them to reach out to non-Christian faiths, going so far as to say "the Constitution does not require [the town of Greece] to search its borders for non-Christian prayer givers in an effort to achieve religious balancing."
I will admit that it is often difficult to write about religious issues, particularly in the Constitutional realm, since there is always the proclivity for critics-sometimes mistakenly, but usually disingenuously-to claim that authors of such articles are "anti-religion" or hostile to a particular faith.
But two things must be pointed out regarding such criticism: First, saying that religious favoritism does not belong in a government that is supposed to represent the rights and interests of all its citizens does not diminish the right of all Americans to personally worship (or not worship as the case may be) according to their individual beliefs or consciences; Second, such criticism actually illustrates the coercive influence religion can have, because people are often afraid of being ostracized, condemned, or attacked if they openly disagree with or disassociate themselves from religious practices in a public setting.
It is undoubtedly this second argument that compelled the Obama administration to throw its support behind the town of Greece. After all, ever since his election, many conservative critics have accused Obama of either being "Muslim," or having Islamic sympathies. What better way to appease these critics than to endorse Christian prayers at government meetings?
At the risk of facing such criticism, I offer below three reasons why, despite its popularity, the Galloway decision is just another nail the Roberts court has driven into the coffin that now holds the Constitution of the United States.
First, as an article by CNN's Daniel Burke explains (After Supreme Court Ruling, Do Religious Minorities Have a Prayer, 05/05/2014), Kennedy's opinion reads like a historical essay that is oblivious to the diversity of today's America, while Kagan's dissenting opinion is more cognizant of the nation's "increasingly pluralistic present."
This article also describes a hypothetical scenario Kagan presented, in response to the court's majority, where a Muslim resident of Greece, New York comes before the town board to "request a permit." Before she is allowed to do so, however, a minister "deputized by the town" delivers a Christian prayer, whereupon the woman is confronted with the uncomfortable choice of remaining in the room despite her religious objections, or leaving until the prayer is concluded at the risk of offending the very people responsible for deciding whether or not to grant her this permit.
Taking this scenario a step further, it is not difficult to imagine the furor that would erupt on Faux (Fox) News and other conservative media outlets if the Supreme Court required Christians to either sit through Islamic prayers at government meetings or leave the room.
Naturally, some pundits will respond to Kagan's scenario by contending that many predominantly Islamic nations demonstrate little tolerance for faiths other than their own. But this only serves to underscore how government favoritism of one religion over another instigates intolerance, and, oftentimes, violence.
But Islam is not the only religion negatively impacted by the Galloway decision. As Burke's article points out, one impetus behind Roberts, Thomas, Scalia, Alito and Kennedy's cavalier and dismissive attitude toward other religions is that all five of them are Catholic, and therefore "don't understand what it's like to belong to a minority faith in America." This is perhaps best evidenced by the fact that three of the four justices who issued dissenting opinions-Kagan, Ruth Bader Ginsberg, and Stephen Breyer-are Jewish.
Of course, many will argue that local governments in smaller towns, where religious diversity is scant, should not be prohibited from saying Christian prayers on the remote chance that a practitioner of another faith might be seeking a permit. But this leads to the second reason why the Galloway decision signals the death knell for the Constitution.
Catholicism is just one form of Christianity practiced in the United States. According to Joseph Gaer's book How the Great Religions Began, there are over two hundred different Christian sects in America. Protestants and Catholics even have their own distinct versions of the Ten Commandments. So how long will it be before Christians seek to promote their particular "brand" of Christianity at government meetings? Will other Christians with differing views be compelled to leave the room? Or will legislators decide that such promotions are unacceptable, thereby engaging in the very censorship Kennedy claims to abhor.
Ironically, even Alito, in his concurring opinion, acknowledged this is a possibility, noting that even at America's birth Christians were "so divided in religious sentiments [that] some Episcopalians, some Quakers, some Anabaptists, some Presbyterians, and some Congregationalists could not join in the same act of worship."
As "politically incorrect" as it may be to say, the reality is that "freedom of religion" in America is incessantly interpreted in the same manner as "freedom of speech": People zealously support it when it protects and allows the expression of their own faith, but trivialize or denounce it when it protects the faith of others.
Lastly, in recent Pravda.Ru articles, I have argued that a significant minority of individuals in the legal and political worlds (including the "conservative" majority on the Roberts court) are sociopaths-conscienceless individuals who care about nobody's desires except their own, and who will use, abuse, or exploit anything and anybody to achieve them. Exporting religion into the government arena will do nothing more than allow these sociopaths to inject their self-proclaimed "religiosity" into political campaigns, duping gullible voters into believing they are more "godly" than their opponents. Even with the past limitations on religion in government, politicians who could not rationally defend their actions or agendas frequently claimed they were following "the will of God."
Just ask George W. Bush why he stole the presidency or invaded Iraq.
In an 1832 letter to Rev. Jasper Adams, founding father James Madison wrote that an entangling of government with religion would tend to lead to "usurpation on one side or the other, or to a corrupting coalition or alliance between them."
In other words, by allowing the Christian religion into government the Roberts court destroyed the Christian religion, making it nothing more than a tool to be exploited by demagogic politicians to garner cheap votes to gain offices and power they do not deserve.
The antics of the Roberts court have proven, without doubt, that Supreme Court "justices" habitually act without regard for the law, the Constitution, or the public interest. In fact, a study by the University of Southern California, cited in Burke's article, concluded "Supreme Court justices are opportunistic supporters of the First Amendment."
Some may argue that I am presenting the "worst case scenario" in regard to the Galloway ruling. But it must be remembered that the law is governed by precedent, and even though the Roberts court incessantly ignores, distorts, and/or overrules precedents, lower federal courts usually do not have that luxury, which means that specious Supreme Court rulings often infect America with injustices that last for years, and oftentimes decades. Those who doubt this should remember that it took more than fifty years for the Supreme Court to overturn, in Brown vs. Topeka, the segregationist doctrine of "separate but equal" it heartily endorsed in Plessy vs. Ferguson.
In addition, crafty lawyers are quick to realize that once a court has nudged a door open, it does not take much effort to push it the rest of the way. For example, several years ago, when the Supreme Court permitted the random drug testing of student athletes in public schools, assurances resounded that this ruling would not result in the testing of the "chess club." Yet, just a few years later, with the Supreme Court's approval, the "chess club" and all other participants in extracurricular activities at public schools were subject to random drug testing.
In my article The Supreme Court Should Not Be Supreme (Pravda.Ru, 06/21/2012), I contended that Supreme Court decisions should be reviewed and voted upon by all judges in the federal judiciary before becoming law. Given the number of 5-4 rulings issued by the Roberts court, clearly something must be done to restrain the power of these five unethical, politicized, racist, hypocritical, biased, agenda-driven "justices" who are having such a destructive impact on the Constitution of the United States.
If nothing is done, America is destined to become a nation where, at every government meeting, corrupt, hypocritical, mendacious politicians with their eyes on the next election will be praising Jesus with their words and reviling Him with their deeds.
Which, sadly, seems to be the very type of America the Roberts court desires.
David R. Hoffman
Legal Editor of Pravda.Ru