The Obama Administration has avidly attacked certain constitutional rights.
In one Supreme Court case, it argued that the government had the power to ban a non-profit corporation from publishing a book critical of a political candidate (the Supreme Court rejected this argument in a 5-to-4 vote, over a dissent by the liberal justices). In another, it took a position rejected by a unanimous Supreme Court, arguing that it could dictate who churches can hire as ministers or select to speak for them on matters of religious doctrine — a position so extreme that would have violated the Establishment Clause and the Free Exercise Clause of the First Amendment.
It has sought to not only preserve racial preferences where they already exist (like in admissions to colleges and universities, and in government hiring and federal contracts), but also to extend them to new areas, like health care, and racial quotas in school discipline, which violates a federal appeals court ruling enforcing constitutional equal-protection guarantees). And it wants to ban speech that it views as constituting, or inciting, discrimination, which would reach a vast range of speech ranging from the politically-incorrect to the blandly economic.
Former Education Department lawyer Curt Levey discusses the implications of Obama replacing two Supreme Court justices who will reach the age of 80 in a few years. Here is his “Top Ten” list of potential Supreme Court rulings that might result from Justice Scalia or Justice Kennedy being replaced as they reach an advanced age and retire:
#10 – A ban on voter ID laws, making it impossible to stop voter fraud.
#9 – Carte blanche for hate-speech laws that ban videos and other expression deemed offensive to Muslims and other minorities.
#8 – Abolition of the death penalty.
#7 – A prohibition on tuition vouchers being used for religious schools, crippling the school choice movement.
#6 – Elimination of all legal limits on racial preferences for minorities.
#5 – A requirement for taxpayer-funding of abortions through the third trimester of pregnancy.
#4 – Invention of a constitutional right to gay marriage that would trump all state laws and religious objections.
#3 – Striking down, as unconstitutional discrimination, any serious attempt to curtail the flow of illegal immigrants into the country or to deny them government benefits.
#2 – Elimination of an individual right to possess firearms.
#1 – Enshrinement of welfare and government-provided healthcare as constitutional rights, thus fulfilling Barack Obama’s dream of a Supreme Court willing to bring about “redistribution of wealth” by “break[ing] free from the essential constraints that were placed by the Founding Fathers in the Constitution.” (quoting 2001 PBS interview with Obama).
Some of his predictions will likely come true under an Obama Supreme Court, in whole or in part (I don’t view all of the things he predicts as being bad, although most of them are).
Levy argues that an Obama-picked Supreme Court will give the government “carte blanche for hate-speech laws.” This is both an overstatement and an understatement, but it contains an element of truth. I think that an Obama Supreme Court would interpret the Fourteenth Amendment as forcing colleges and universities — and conceivably cities and counties as well — to restrict hateful (and not-so-hateful) speech that creates or contributes to a “hostile environment” (i.e., a “hostile educational environment” or “hostile municipal environment.”)
A liberal federal appeals court has already ruled this year in DiStiso v. Cook that school officials are liable under the Fourteenth Amendment for racially-hostile “educational environments” created by racial name-calling and racist speech among kindergartners, effectively requiring teachers to ban such speech under fear of personal liability, even though students are not state actors or agents of their schools (just as private citizens are not state actors, or agents of their city or county). This radical ruling, which ignored the state-action doctrine accepted by the current Supreme Court, was unnecessary to prevent true harassment, since Title VI of the Civil Rights Act already reaches racial harassment by peers that is “severe and pervasive” enough to interfere with an education. (The plaintiff in the DiStiso case argued that the “harassment” was actionable under the Fourteenth Amendment even if it was not severe enough to violate Title VI or Title IX, effectively circumventing statutory limits on liability.)
Another federal appeals court has held that the government is liable for harassment by state actors in society generally, outside the workplace and schools. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999). If you put these two rulings together, as a logical chain, you could argue that local governments are obligated to suppress racist or sexual speech in the larger society as well, by private citizens, to prevent a racially or sexually hostile “municipal environment.” (All sorts of speech is forbidden in the workplace to prevent a “hostile work environment,” like when a liberal federal appeals court allowed a secretary to sue for sexual harassment over a professor’s looking at porn on his office computer.
A federal appeals court relied on the First Amendment to dismiss a racial harassment lawsuit over a professor’s anti-immigration emails, but it didn’t deny that they fell within the broad concept of “hostile work environment,” and liberal lawyers argued the speech should be suppressed as equality-depriving “verbal conduct”). On the other hand, if they wish to restrict hate speech, local governments will not have “carte blanche” even under an Obama Court, since they will have to frame any hate-speech ban as a ban on “verbal conduct” that creates a “hostile environment,” using “verbal conduct” as a euphemism for speech (an argument that worked in the California Supreme Court in the Aguilar v. Avis case), rather than coming right out and declaring their intention to ban all hate speech, irrespective of whether it contributes to a hostile municipal environment. Liberal judges like banning certain speech, but only when they can call it something other than speech.
Moreover, public opposition to banning such speech in society generally (as opposed to just in schools and college campuses) might be great enough to deter even a liberal Supreme Court from trying to ban speech by private citizens that fosters a “hostile municipal environment.” Conservative justices are less enthusiastic about such restrictions on free speech: Four conservative and moderate Supreme Court justices once worried that banning speech that creates a “hostile educational environment” could lead to violations of academic freedom in the college setting, in their dissent in a K-12 harassment case where no First Amendment defense was raised or ruled on.
For the reasons I have given elsewhere, I think #4 on Levy’s list, dealing with gay marriage, is partly erroneous. I don’t think churches will ever be forced to perform gay marriages if they don’t want to. Conversely, given strong support for gay marriage in the legal profession, which is much more socially liberal than the general population, I believe that the days of gay marriage being banned are numbered, regardless of who is president. (A bipartisan panel of a federal appeals court struck down the federal Defense of Marriage Act, based on reasoning that could also take down state gay marriage bans).
I do agree with him that Obama Supreme Court nominees are more likely to override the religious objections of non-churches, such as religious colleges and hospitals, to various coercive government mandates favored by gay-rights lobbying groups, than are Justices appointed by more conservative presidents. Even Republican or libertarian lawyers who support gay marriage often believe that religious businesses and professionals should have a First Amendment right not to be forced to participate in publicizing or photographing gay unions, as this amicus brief in a New Mexico case illustrates. This distinguishes conservative lawyers and judges from their liberal counterparts, who tend to like such government mandates, and are more likely to believe that it is legitimate to use government power to try to extinguish religiously-motivated prejudices and force changes in people’s thinking.)
Levey also argues that an Obama Court would lead to a “requirement for taxpayer-funding of abortions.” This is right, to at least a certain extent. The Supreme Court’s decision that state Medicaid programs don’t have to pay for abortion was decided by a 5-to-4 vote (see Harris v. McRae). Liberal law professors have denounced that ruling ever since. Moreover, if you accept Justice Ginsburg’s argument that abortion restrictions are automatically a form of sex-discrimination (a very controversial argument, to be sure), then the decision was wrongly decided.
So I think that even a single Obama appointee to the Supreme Court over the next few years could result in that ruling being overruled. Some abortion rulings seem unlikely to be overruled regardless of who is president, and abortion is unlikely to be banned even under a Republican Presidency. Ever since Nixon, who railed against “acid, amnesty, and abortion,” Republican presidents have denounced abortion, but while this had led to restrictions on taxpayer funding of abortion, it has never led to abortion being prohibited (taxpayer funding for abortion, both at home and overseas, has been more limited under conservative Congresses and Administrations than under liberal ones, but even when the Supreme Court included seven GOP appointees and only two Democratic appointees in 1992, it reaffirmed Roe v. Wade in its Planned Parenthood v. Casey decision.)
Another Obama appointment to the Court could also lead to an overruling of the Supreme Court’s 5-to-4 ruling upholding a restriction on a gruesome procedure used in so-called “partial birth abortion,” since that ruling was decided over a dissent by all of the Supreme Court’s liberal justices, who oppose any restrictions on partial-birth abortion.