Calvin Freiburger

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Supreme Court judges who refuse to defend life and liberty must be held accountable

Calvin Freiburger

June 6, 2018 (LifeSiteNews) – Monday was a good day at the Supreme Court...in the short term. It’s of course a relief that Jack Phillips won't be punished for not baking the cake, and that the justices didn’t enshrine a “right” to abortion for teenage illegal immigrants. But just beneath the surface, even these victories portend long-term dangers.

The court’s most notoriously incoherent thinker, Justice Anthony Kennedy, went out of his way to stress that his majority opinion didn’t set a precedent for “the outcome of some future controversy involving facts similar to these,” and that Colorado lost because it made public statements displaying “clear and impermissible hostility toward [Phillips’] sincere religious beliefs.” In other words, LGBT thought police may very well prevail if they’re just more polite to the next Christian they try to control.

Likewise, the abortion ruling punted on the merits, and merely declared that the lower court ruling it nixed “became moot after the abortion.” Neither case set positive precedents for the future.

Indeed, ACLU attorney David Cole, who represented the gay couple suing Phillips, wrote yesterday that his side “lost a battle but won the war.” Cole takes Kennedy’s declaration “that [religious and philosophical] objections do not allow business owners...to deny protected persons equal access to goods and services” to mean “states are free to require businesses, including bakers, to serve gay and lesbian customers equally, including in the provision of wedding cakes.”

“In fact, Charlie Craig and David Mullins could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary,” he writes, “and if Jack Phillips refused them, he would have no First Amendment right to turn them away.”

Unfortunately, he’s probably right. Conservative Review senior editor Daniel Horowitz admits he agrees with the ACLU’s takeaway, and warns that “this was a very technical decision and will not stop the slew of lawsuits and state laws against the rights of property and conscience.”

Monday was a perfect example of something too few in the pro-life, pro-family movement realize: simply nominating new judges (a process entirely dependent on the pace of elections and vacancies, and which can backfire even with the best pro-lifers selecting nominees) isn’t enough to restore the rights to life and religious liberty.

So what else should we be doing? Horowitz suggests that Congress pass legislation clearly protecting religious liberty, and in a separate article he proposes additional actions. First, he calls on states to more proactively defend their citizens.

“Why is Mississippi the only state in the union with a solid religious liberty law in place to protect against anti-conscience coercion of private property owners?” he asks. “Rather than sending out fundraising letters praising Kennedy’s incoherent Masterpiece decision, social conservative groups should be stepping on the gas pedal promoting these laws in every state the same way the cultural Marxist groups promote transgender ordinances.”

Second, Horowitz says Congress should use its power under Article III, Section 2 of the Constitution to pass laws “stripping lower courts of the power to block implementation of religious liberty laws,” or requiring that “that any lower court ruling forcing an individual to violate his conscience must be stayed until the appeal to the Supreme Court is exhausted.” 

This isn’t a new idea, by the way, just a neglected one -- there’s already a bill called the Sanctity of Life Act, which takes abortion-related laws out of the federal courts’ jurisdiction entirely. It’s introduced in every session, but never acted upon.

Third, he suggests that Congress “place a rider in the appropriation bill funding the Justice Department prohibiting use of any federal law enforcement to enforce any court opinion or governmental action taken against someone who declines to violate his conscience with his private property,” and that it “prohibit the Equal Employment Opportunity Commission from taking any punitive action against such businesses.”

All of this would be tremendously important, but there’s one essential piece missing: holding rogue judges accountable for abusing the Constitution. Federal judges can be impeached just as presidents can, and if blatantly subverting the law one swore to uphold doesn’t demand it, nothing does.

Admittedly, it will be incredibly rare for the Senate to ever muster the 67 votes needed to remove a Supreme Court justice, but that’s no reason not to talk about it or make the attempt. Our culture overwhelmingly assumes that judges are somehow above public servants in the other two branches of government. And considering we talk about voting out congressmen and presidents all the time, while judges can’t be voted out ever, can you blame them?

Discussing consequences for their actions is necessary to begin undermining judges’ perceived infallibility. Frank conversations about their betrayals of the public trust would build support for the aforementioned legislative measures to limit the harm they can do. And naming names just might shame a justice or two into reevaluating how they want to be remembered.

In Federalist 78, Alexander Hamilton predicted that the judiciary would “always be the least dangerous” branch, because it had no means of unilaterally enforcing its judgments. But he also warned that while “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” 

By unconditionally deferring to the judiciary’s every whim and refusing to use their constitutional tools to check its excesses, America’s elected branches have created the functional equivalent of that union. Until the movement rallies around a comprehensive plan to break it apart, we’ll continue to be at its mercy.

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