Not much is certain about US politics these days. But if there’s one thing we know about Amy Coney Barrett’s confirmation hearings it is this: she will be asked about the role politics will play in her judicial decision making. If history is precedent, Judge Barrett will adamantly reject the supposition that her politics impact her adjudication. Starting with Chief Justice John Roberts – who, during his confirmation hearings, famously described the judicial role as one of a neutral baseball umpire “call[ing] balls and strikes” – it has become a commonplace for both liberal and conservative US supreme court nominees to declare that politics have no bearing on judicial decision making.
In reality, there is no dearth of data measuring the extent to which judges decide cases based on political preferences. Consider the recent spate of cases concerning religious institutions which challenged coronavirus-related lockdown orders as violations of religious freedom. Freedom of religion and the future supreme court are of particular importance: the survival of many recent progressive initiatives – including the Affordable Care Act’s mandate requiring employers to provide health insurance that covers contraception, and laws prohibiting discriminatory treatment of LGBTQ people, to list just two – will rest in no small measure on courts’ interpretation and application of the “free exercise” religion clause of the first amendment of the constitution. Findings from a survey I conducted suggest that the outcome in some subsets of religious freedom cases track political affiliation to a staggering degree.
I surveyed every merits-based federal court decision pertaining to a free exercise challenge to a stay-at-home order. The findings are staggering: 0% of Democrat-appointed judges have sided with a religious institution; the vast majority (67%) of Republican-appointed judges have sided with a religious institution; and 0% of Trump-appointed judges have ruled against religious institutions. In other words, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city government. To be sure, my sample set – 74 cases – is not enormous. But the ability to predict to such a high degree the outcome of cases implicating the same free exercise question (in remarkably similar context) is illuminating. It suggests that Covid-19 has produced not only a partisan divide in the courts, but also that freedom of religion itself has become dramatically politicized.
It was not long ago that religious freedom was considered a bipartisan issue, garnering near unanimous support on Capitol Hill. When the supreme court in 1990 drastically narrowed the meaning of free exercise, it was met with outrage from Republicans and Democrats alike. That outrage fueled the passage of the Religious Freedom Restoration Act (RFRA), which was designed to resurrect the religious freedom the court had eviscerated. RFRA passed the House unanimously and was approved in the Senate by a vote of 97-3.
Such collaboration on religious freedom could not be imagined today. In the wake of Obergefell v Hodges, in which the supreme court legalized same-sex marriage in 2015, conservatives became alarmed at the prospect of America shifting sharply more “progressive” on cultural and social issues. Conservatives, especially rightwing Catholics and evangelical Protestants, rallied around the banner of religious freedom. They fought the Affordable Care Act’s contraception mandate and argued that the accommodations for churches in the Act were insufficient. Religious pharmacists also sought exemptions from state requirements that they dispense contraceptives.
Yet by far the most charged battle over religious accommodation has concerned same-sex marriage. Conservatives worked hard at the state and federal levels to carve out religious exemptions through state statutes and proposed constitutional amendments. Liberals saw these exemptions as fronts to discriminate against LGBTQ individuals and women seeking contraception. As a result, Democrats in Congress are attempting to pass the Equality Act, a bill which would prohibit almost all discrimination based on sexual orientation and gender identity. A specific provision would pre-empt the possibility of RFRA being employed as a defense against a discrimination allegation. The Democratic congressman Jerry Nadler – who was a vocal advocate of RFRA two and a half decades ago – co-sponsored the new legislation.
Religious freedom has undergone a cataclysmic change over the last decade. Whereas it was once seen as an American value on which Americans across the aisle could agree, now its polarization in society is mirrored in the judiciary. The root of the problem is inflexibility. Rather than take to heart the possibility that a cake shop owner truly feels inhibited by his religious beliefs to assist in the celebration of a gay marriage, advocates for gay rights – and the judges who agree with them – insist on being served by a religious baker, dismissing out of hand the legitimacy of his religious objections. Meanwhile, some religious employers demand to be exempted from merely having to notify the government that they will not provide conception healthcare under their insurance plans, claiming that even doing that violates their religious sensibilities. Neither side seems willing to give an inch, thus further entrenching a polarization that has now infected the judiciary to a staggering degree.
To “save th[e] honorable court[s],” and the country, we must learn to listen to, and take to heart, the positions of others. What we need in a polarized country is not the idle fantasy that politics can or will never play a role in adjudication – it always will – but to strive for a world in which we believe in the power of encounter, of giving and listening to the other side, and of being open to compromise.
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