The Supreme Court handed down three blockbuster rulings Thursday focused on hot-button cultural issues, and all three of them went in the conservative direction.
That’s not exactly a surprise—the court has a conservative majority, after all. The first real surprise was that the rulings were unanimous. The second real surprise? Each of the court’s three liberal justices wrote one of the opinions.
Justice Elena Kagan, a Barack Obama appointee, wrote the opinion in Smith & Wesson v. Mexico, upholding the rights of U.S. gun manufacturers from Mexico’s attempt to sue them, blaming them for abetting cartel violence.
Justice Sonia Sotomayor, another Obama appointee, wrote the opinion in Catholic Charities v. Wisconsin Labor and Industry Review Commission, defending a Catholic nonprofit from Wisconsin’s attempt to tax it.
Justice Ketanji Brown Jackson, the Joe Biden appointee, wrote the opinion in Ames v. Ohio Department of Youth Services, upholding the rights of a straight woman (Marlene Ames) who claimed her employer discriminated against her because she wasn’t gay.
The Supreme Court’s decision to release this trifecta of heartening rulings, each one unanimous and each one written by a different liberal justice, seems an intentional statement of solidarity, but I fear something else might be happening behind the scenes.
The justices don’t always see eye-to-eye, but in these cases, at least, they all agreed to uphold the plain text of the law, following the tenets of judicial originalism—or so it seems.
According to originalism, judges should interpret the law based on the original public meaning of the law’s text at the time it was passed. This theory conflicts with the “living Constitution” framework, where judges interpret the law based on their modern interpretation of the intentions of the original law. That looser framework led to court rulings such as Roe v. Wade, the now-overturned 1973 case in which the court claimed the Constitution protected abortion.
For instance, the 6th Circuit Court of Appeals had ruled against the straight woman in the Ames case, applying a “background circumstances” rule that required a higher threshold for members of “majority groups” (versus minority groups) to prove that they had faced discrimination. This “background circumstances” rule wasn’t part of Title VII of the Civil Rights Act of 1964. Justice Clarence Thomas, in his concurrence, noted that judges had created the rule, and Jackson’s opinion Thursday rightly struck it down.
Judges applying the “living Constitution” model would say that so-called reverse discrimination—where someone discriminates against a straight person for being straight at a time when most people in the society identify as straight—is a wrongful application of laws initially meant to grant more rights to minorities.
The court’s three liberal justices have routinely twisted the law to favor leftist causes, straining to find any excuse to uphold the claims of women, racial minorities, LGBTQ+ people, or whichever leftist group is most relevant at the time.
Heritage Foundation Senior Legal Fellow Giancarlo Canaparo recently highlighted Jackson’s double standard when it came to participation in the political process.
In the case Allen v. Milligan, Jackson vociferously defended people’s right to participate in the political process. During oral arguments, she slammed the state of Alabama for failing to create an additional majority-black congressional district.
Yet in Libby v. Fecteau, Jackson voted against granting relief to Laurel Libby, a conservative member of the Maine House of Representatives. The Democrat majority had barred Libby from voting on any bills because she condemned a transgender policy allowing a boy to compete on a girls’ sports team. Jackson voted against granting Libby relief because she had “not asserted that there are any significant votes scheduled in the coming weeks [or] that there are any upcoming votes in which Libby’s participation would impact the outcome.”
In other words, Jackson seems to consider participation in the political process a fundamental right for a black group of voters but not a fundamental right for someone concerned about women’s sports. After all, this is the justice who strained to support racial preferences and refused to answer the question, “What is a woman?” during her Senate confirmation hearing.
While the Supreme Court issues many unanimous rulings, it is rare to see unanimous rulings on hot-button issues like guns and “reverse” discrimination.
Perhaps the Democrat-appointed justices truly believe that the gun companies, Catholic Charities, and Marlene Ames were in the right. Perhaps these rulings suggest those justices are finally willing to consider the law rather than use it to force their leftist preferences on us. Color me skeptical on that point.
I consider it far more likely that Kagan, the craftiest of the three, orchestrated this trifecta of rulings as a strategy. The next time conservatives fault Sotomayor, Jackson, or her for an ideologically skewed ruling, Kagan can point to these opinions as evidence of their “fairmindedness.”
Either that, or the liberal justices traded their votes in these cases in order to derail one or more of the remaining hot-button case decisions coming down the pike.
I celebrate these cases, but they also make me nervous. What’s really going on behind the scenes?