In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.”  The thought was that the Supreme Court relied on the other branches to follow through on court orders.  However, in our legal system, court orders are usually obeyed.  And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches.  Courts, however, simply require a majority to act.  And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government.  That is not to say that every decision is political.  There are lots of legal issues that are not partisan in nature.  And there are some issues that split conservatives.  However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate.    The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.

The first case is Kennedy v. Bremerton School District.  What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief.  The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court.  In this case, however, a major conflict between the two opinions is their characterization of the facts.  The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship.  The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment.  The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.”  Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened.  In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion.  It should shock nobody that this approach means that very little will be a violation of the Establishment Clause.  With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause.  Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.

The second case Oklahoma v. Castro=Huerta.  This case involves criminal jurisdiction on tribal lands in Oklahoma.  Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation.  As such, the lands were still legally part of those reservations.  Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense).  The new case involved crimes against natives by non-natives.  With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority.  As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court.   Now, both this decision and the earlier decision are based on statutes.  In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely. Continue Reading...