Consent of the Governed, Part 2

This past Monday, the president nominated Judge Brett Kavanaugh to replace Anthony Kennedy on the U.S. Supreme Court.  The balance of power being what it is, unless Kavanaugh is found with a dead girl or a live boy (in the immortal words of Edwin Edwards), he will be confirmed by the Senate later this year and the nation’s highest court will be as ideologically conservative as it has ever been in our lifetimes.

From the moment Justice Kennedy announced his retirement last month, liberals have been running around the airwaves with their hair on fire, screaming that this development constitutes the end of the world as we know it.  That the replacement of Kennedy’s so-called moderation with the true blue right-wingery of his successor will usher in a generation of irreversibly destructive decisions on every issue the left holds sacred, from abortion rights to gun control to civil liberties to campaign finance reform.

While Democrats’ concerns about Kavanaugh are undoubtedly well-founded—after all, he comes pre-packaged and pre-approved by the conservative judge factory known as the Federalist Society—they are also misleading and incomplete, insomuch as they overlook a much larger and more profound fact:

Ruth Bader Ginsburg is 85 years old.

Lament Kennedy’s departure if you wish, but the truth is that he was a fundamentally right-wing jurist whose flirtations with progressive causes, however crucial, were few and far between.  While he is rightly credited with preserving abortion rights in 1992 and effectuating same-sex marriage in 2015, he is equally responsible for the majority opinions in Bush v. Gore and Citizens United v. FEC—the two worst Supreme Court decisions since Plessy v. Ferguson, according to most liberals.  During the most recent term, he voted with the court’s conservative wing in every high-profile case that was decided by a 5-4 vote.  Every.  Single.  One.

Long story short:  Replacing Kennedy with a rock-ribbed conservative will not be the end of the world as we know it.  But replacing Ruth Bader Ginsburg with a rock-ribbed conservative?  That will be the end of the world as we know it.

Perhaps it is bad form to observe that most human beings do not live forever, but if the Democratic Party is truly freaked out about losing every major Supreme Court case for a generation or more, it must come to grips with the fact that its most beloved and indispensable justice—the Notorious RBG—is an octogenarian and two-time cancer patient who, for health reasons, might need to leave the bench before the next Democratic president takes office.  Ginsburg may intend to serve well beyond the current administration, but then again, so did Antonin Scalia on February 12, 2016.

If Nancy Pelosi and Chuck Schumer plan to make themselves useful in the coming months, they ought to emphasize, in no certain terms, that a Republican-majority Senate in 2018-2019 guarantees the appointment of Judge Kavanaugh—already a foregone conclusion, so far as I can tell—and that the re-election of Donald Trump in 2020 makes it exceedingly likely the court will contain only three—or perhaps only two—liberals by the end of Trump’s second term.  (Ginsburg’s like-minded colleague Stephen Breyer turns 80 next month.)

Elections have consequences, and one of them is a Supreme Court shaped in the image of the sitting commander-in-chief—an arrangement that has been in place continuously since 1787.

The left can whine all it wants about Russian shenanigans and Mitch McConnell’s dirty tricks vis-à-vis Merrick Garland, but the fact remains that people voted for president in November 2016 in the full knowledge that a) the winning candidate would be selecting the successor to the late Antonin Scalia, and that b) there would almost surely be additional openings on the court before his or her presidential tenure was up.  Candidate Trump made this point repeatedly on the campaign trail.  In retrospect, Hillary Clinton did not make it nearly enough—a mistake her party’s candidate in 2020 would be well-advised to avoid.

Lame as it may sound, Neil Gorsuch is on the Supreme Court today because Donald Trump received the most electoral votes in 2016 and there weren’t enough Democrats in the Senate to stop him.  Brett Kavanaugh will be on the Supreme Court this fall for precisely the same reason.

If you find this situation intolerable, you have two choices:  You can vote for Democratic senators on November 6, 2018, and for a Democratic presidential candidate on November 3, 2020.  Or you can assume John Roberts will magically evolve into a liberal overnight and that Ruth Bader Ginsberg will live to 120.

Personally, I’d recommend Option No. 1, however inconvenient it might be.  You’d be surprised what a democracy can accomplish when its citizens behave democratically.

Build Up This Wall

My fellow Americans:  Is it really that hard to separate church from state?

I admit that for an atheist like me, the challenge of keeping my religious convictions to myself in public is no challenge at all.  I have no religious convictions in the first place, and thus no church from which to part ways when involving myself in the affairs of state.

I understand that for the super-majority of my countrymen for whom God and/or religion play a significant role, this is not such an easy task.  I understand that one’s sincerely-held articles of faith cannot simply be checked at the door upon leaving one’s house—not any more than can my own view that the existence of God is neither real nor necessary in leading a virtuous life.

And yet I nonetheless wonder why America’s believers are so very insistent upon foisting their godliness upon us nonbelievers—we, who would rather be left to practice our devil worship in peace.  Is it really too much of an imposition to keep one’s religion within one’s own heart without introducing it into the public square?

Apparently so.

The reason I ask, you see, is because of this week’s Supreme Court decision in Town of Greece v. Galloway, in which the court ruled, 5-4, that a town board could begin its public sessions with a prayer without violating the First Amendment to the U.S. Constitution.

In the upstate New York town of Greece, legislative meetings have indeed kicked off with a formal prayer, led by some chaplain or other, since 1999.  The town says it welcomes religious adherents of all faiths (and atheists) to deliver these invocations.  In practice, however, they have been overwhelmingly Christian.

Consequently, two residents of Greece—Susan Galloway, who is Jewish, and Linda Stephens, who is an atheist—issued a formal complaint, which was dismissed by the U.S. District Court in 2010, but reversed in 2012 by the U.S. Circuit Court of Appeals, which ruled that Greece’s tradition violated the Establishment Clause of the First Amendment.  This past Monday, the U.S. Supreme Court found precisely the opposite, and that is where we now stand.

The Establishment Clause to which we refer reads simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Thomas Jefferson famously elaborated on this concept in a letter in 1802, writing of a “wall of separation between Church and State,” justified by the fact that, in his view, “religion is a matter which lies solely between Man and his God.”

In this context, one cannot help but wonder how the Greece case is not a textbook example of religion intruding where it plainly does not belong.

The high court’s majority view, as articulated by Justice Anthony Kennedy, is that the prayers at Greece’s board meetings serve a purely ceremonial role—they are “meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage,” as Kennedy put it—and, as such, cannot reasonably be seen as an endorsement of any particular religion or, indeed, any particular doctrine therein.  No one is being coerced into accepting the chaplains’ remarks as gospel, so to speak, and (as previously noted) no member of a minority faith is excluded from participating.

I am prepared to accept all these premises as true, but I would nonetheless argue that it ultimately doesn’t matter.

To wit:  The fact that a chaplain’s prayer at the start of a government session does not actively seek to convert its audience does not negate the fact that it is a plainly religious act being performed in a government building, on government time, with the full endorsement of the government.

If it really is just a symbolic gesture to “lend gravity to the occasion,” why not substitute it with a piece of prose equal in significance but without the problematic sectarian bent?  Say, the Preamble to the Constitution or the Pledge of Allegiance (albeit without the meddlesome “under God”)?  Why does this invocation need to have religious tones, when our country’s founding documents so strenuously caution against it?

It is worth recalling that in 1777 when Thomas Jefferson drafted the Virginia Statute for Religious Freedom—a document that would serve as the template for the First Amendment—it was in explicit opposition to an initiative by Patrick Henry for the government to financially support all churches, rather than none at all.

Henry lost this argument in Virginia, yet his scheme sounds an awful lot like what the good folks of Greece, New York—and, thanks to the Supreme Court, any locality in America—have just won for themselves.  Namely, the notion that so long as all faiths are accorded equal moral weight and consideration (if only in theory), the principle of removing religion from government need not be strictly enforced.

It might sound like a sensible idea, but it sure ain’t in the Constitution.