Supreme Court Justices Cross the Partisan Divide in Two Remarkable Decisions

Congress and the public might be sharply divided by bitter partisan politics, but justices on the United States Supreme Court appear to have not gotten the memo.  Two decisions handed down by the Court this morning reflect that the Republican and Democratic-appointed justices are more than willing to cross partisan lines depending on the facts of the case.

By a 7-2 vote, the Supreme Court dismissed a Republican-led attempt to have the Affordable Care Act, i.e. "Obamacare," declared unconstitutional.  Conservative justices Clarence Thomas, Brett Kavanaugh, Amy Comey Barrett in Fulton v. Philadelphia joined Chief Justice Roberts and the Court's three liberals to render the decision.  The Court used a technicality - a lack of standing - to dismiss the case, but it is clear the Court is growing tired of these challenges to the ACA.  The ACA can still be repealed, it will just have to be by Congress, instead of the courts.

While Republicans are licking their wounds over another ACA loss, they do have something to celebrate - another religious liberty win in the courts.  The nice justices unanimously ruled that the city of Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex couples as potential foster parents because the Catholic Church believes marriage should be between a man and a woman.  Philadelphia was enforcing its anti-discrimination law but had not carved out an exception for religious institutions with doctrines that conflict with the law.

The decision seems to contradict Employment Division v. Smith, the controversial decision written by Justice Antonin Scalia in 1990 which says that as long as an anti-discrimination law applies generally to everyone it does not violate the First Amendment Free Exercise of Religion Clause.  However, the majority wasn't willing to to go that far, a decision which led Justice Gorsuch (joined by Justices Thomas and Alito) to pen a concurring opinion arguing that Employment Division should be definitively overruled.

Nonetheless, it is astonishing that the Court's three liberal justices - Kagan, Breyer and Sotomayor - voted in favor of religious liberty when confronted with applying an anti-discrimination law.  And this is not the first time. 

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OOP's short takes:

• Politico headline says it all: "GOP hands Dems a new line of attack: They're for 'Trump over the cops"  Yep.  GOP members of Congress refuse to investigate the insurrection which resulted in over 120 police officers getting injured.  Twenty-one House Republicans voted against even honoring the police officers who engaged in hand-to-hand combat with the insurrectionists and possibly saved their lives. One GOP member, Andew Clyde (R-GA), declared it was just a "normal tourist visit" and then refused to shake the hand of an officer who was seriously injured defending members of Congress during the "visit."  Now, the FBI is being accused of instigating the insurrection to frame Trump. 
• Can we please stop pretending that Trumpers support law enforcement?  Their actions say otherwise.  Plus, you look at the history of the white nationalist groups, which were major players in the Insurrection, most are very anti-law enforcement.  
• Oh, and I'm sorry, the insurrectionists are not off the hook because Capitol Police Officer Brian Sicknick died of "natural causes" shortly after being assaulted during the riot.   If while robbing a bank, a teller drops dead of a heart attack out of fear, the robber can be charged with murder.  The insurrectionists were committing violent criminal acts and they are responsible for everything that results from those acts, including the death of Officer Sicknick.  All that is required is that the criminal act be a contributing factor to the death by natural cause.  It does not even have to be the major factor.
• In Florida, Republican congressional candidate William Braddock was recorded threatening to have his primary opponent Anna Paulina Luna killed.  "I really don't want to have to end anybody's life for the good of the people of the United States of America....but if it needs to be done, it needs to be done."  Notice how Braddock linked his threat of violence to a patriotic purpose (i.e. he would be doing it "for the good of the people of the United States.)?"
• Make no mistake about it, political violence is coming.