The U.S. Supreme Court just voted to uphold the Deferred Action no Childhood Arrivals programs, or DACA, put in place by Barack Obama and rolled back by President Donald Trump — and Justice Clarence Thomas, in a dissent, issued a stern warning against the future politicization of the court.
Wise words. But too little, too late.
The Supreme Court, thanks in large part to Chief Justice John Roberts, has already shown a propensity for political decisions. Can you say Obamacare?
That was the decision where Roberts went rogue and instead of sticking with the argument of Team Obama — that it wasn’t a tax — said it was indeed a tax, and therefore ruled it passed constitutional muster. The nation’s still spinning on that one.
“The Obamacare ‘Tax’ That Chief Justice Roberts Invented Is Still Unconstitutional,” Ilya Shapiro wrote in Forbes some years ago.
He went on to say, “As we all know … Roberts changed the Affordable Care Act’s individual mandate into a tax and thus rescued President Obama’s signature legislation. What you may not know is that with this slight of hand — or flick of the wrist — he actually sent Obamacare flying from the constitutional frying pan into the constitutional fire.”
Go Team Roberts. Yay. He’s been batting for the Democrats for some time.
Then there was the Supreme Court’s 5-4 decision to reject a church challenge to COVID-19-tied shutdown orders — orders that were being randomly and unevenly enforced. Again, it was Roberts to the liberals’ rescue, equating churches and religious worship and the congregations of the faithful — the foundation of America’s government and governing principles, mind you — to, say, a movie theater. Or a baseball game.
Then there was the Supreme Court ruling on LGBTQ rights, adding this protection to Title VII and setting the stage for sure-to-come-and-come-soon court challenges against Christian-based schools, evangelical nonprofits, traditional family policy and education organizations, and the like. As if, as Justice Neil Gorsuch wrote in his opinion for the 6-3 majority, “sex discrimination” actually includes personal and individual sex choice and identification.
As if biology and God have nothing to do with it.
No, the court’s been politicized for a while now.
But kudos for Thomas, one of the bright lights remaining on SCOTUS, for trying.
“Today’s [DACA] decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” he wrote. “The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own.
“In doing so,” he went on, “it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”
Just like another political decision the high court made some years ago that best belonged in the hands of legislatures — that in fact was in the hand of legislators, until the court stepped in and overruled the people’s will: Obergefell v. Hodges.
The case that ushered in gay marriage across the United States.
The case that tossed out state referendums and wills of the people and votes of the duly elected, to usher in gay marriage across the United States.
It’s good to know Thomas is on the high court, fighting hard to protect the separation of branches and the rights of the people to self-govern.
And he is quite right to warn of the politicization of the High Court. But sadly, it’s a case of too little, too late. This Supreme Court, as recent decisions show, has a majority that’s only too willing, nay eager, to wade into the political swamp — separation of branches, will of the people, fate of the Constitution be danged.
• Cheryl Chumley can be reached at firstname.lastname@example.org or on Twitter, @ckchumley. Listen to her podcast “Bold and Blunt” by clicking HERE. And never miss her column; subscribe to her newsletter by clicking HERE.