Will Conservative Momentum at Supreme Court Continue This Term?

The Supreme Court begins hearing cases for its new term Monday, following its customary summer recess. If this term is anything like the last one, conservatives and constitutionalists will rejoice.

In the most recent term, conservatives achieved secured massive wins on abortion (Dobbs v. Jackson Women’s Health Organization); gun rights (New York State Rifle & Pistol Assn. Inc. v. Bruen); and religious liberty (Carson v. Makin and Kennedy v. Bremerton School District); plus another key win on rolling back the administrative state (West Virginia v. EPA).

Now, with such grotesque precedents as Roe v. Wade and Lemon v. Kurtzman properly overturned, will the Supreme Court continue to move rightward? Put another way, was the 2021-2022 term a mere blip on the radar, or the beginning of a broader, meaningful conservative legal restoration?

Although it is unclear, and there are fewer “culture war”-centric cases on the docket this term than last, there is still reason for cautious optimism in some of the marquee impending cases.

The biggest cases before the high court this term, perhaps by far, are the two cases pertaining to noxious race-conscious affirmative action admissions policies at universities: Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which will apply to private universities, and the sister case of Students for Fair Admissions Inc. v. University of North Carolina, which will apply to public universities.

The two cases had been “consolidated,” meaning they were to be decided in unison, before then being “de-consolidated” to permit Justice Ketanji Brown Jackson—who will have to recuse herself from the Harvard case—to participate in at least one of them. But the legal issues are effectively identical, so the two cases should come out the same way.

The court most recently upheld race-conscious university admissions policies in the 2003 case of Grutter v. Bollinger, in which Justice Sandra Day O’Connor’s majority opinion explicitly stated that “race-conscious admissions policies must be limited in time,” and added that the high court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In fact, not only did the Grutter court presciently telegraph its own ruling’s possible demise in the twin Students for Fair Admissions cases, but affirmative action is also one rare area where even Chief Justice John Roberts has shined as a voice of sanity.

After all, Roberts joined Justice Samuel Alito’s anti-affirmative action dissent in 2016’s Fisher v. University of Texas, and earlier penned perhaps his most famous line in the 2007 race-conscious education case of Parents Involved in Community Schools v. Seattle: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There is thus a very strong chance this term that the Supreme Court finally ends vile affirmative action policies—which, contra Black Lives Matter propaganda, represent the genuine last remnants of “systemic racism” in America.

The ultimate cherry on top would be if Justice Clarence Thomas, a longtime archfoe of race-conscious admissions policies, writes the majority opinions in the two SFFA cases, formally overturning both Grutter and 1978’s Regents of the University of California v. Bakke and thus sending “systemic racism” to the ash heap of history. Hopefully, Thomas gets that opportunity.

The other big “culture war” case this term is a First Amendment/religious liberty-adjacent case out of Colorado: 303 Creative LLC v. Elenis. Sound familiar? It should: The Supreme Court ruled on a similar First Amendment/religious liberty case out of Colorado just five terms ago, in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

But in Masterpiece Cakeshop, a court majority led by Justice Anthony Kennedy issued an extremely narrow ruling that redounded to Christian cake baker Jack Phillips’ case-specific free exercise interest, but failed to render a constitutionally meaningful judgment about the thorny intersection of nondiscrimination law, freedom of speech, and freedom of religion.

The fact that the high court granted certiorari in 303 Creative LLC and opted to hear the case, especially coming so soon after Masterpiece Cakeshop and due to the court’s notable personnel changes since 2018, strongly suggests that the court is prepared to issue a more sweeping ruling.

Here, that would entail ruling in favor of Lorie Smith’s claim that her creation of a wedding planning website is constitutionally tantamount to “pure speech”—and that her website’s commercial activity thus falls under the First Amendment’s strong protective ambit.

Judge Timothy Tymkovich of the 10th Circuit wrote a powerful and inspiring dissent last year, when this case reached his appeals court panel; that dissent could, and should, serve as a template for the Supreme Court’s majority opinion. Such a majority opinion in 303 Creative LLC would represent the court’s long-overdue constitutional validation of religious dissenters’ claim, at least on grounds of compelled speech doctrine, from the oppressive forces of “wokeism” and gender ideology.

A similarly definitive pro-religious liberty ruling on the intersection of nondiscrimination law and free exercise of religion—in particular, the possible overturning of the contested 1990 case, Employment Division v. Smith—will still wait for another day.

There is less red meat on the docket this Supreme Court term than there was last term, but there is still plenty ahead to which to look forward. Above all, the demise of the monstrosity that is modern America’s racist affirmative action regime would be an epochal step in bringing America closer in line with her noble, race-neutral founding ideals.

COPYRIGHT 2022 CREATORS.COM

The Daily Signal publishes a variety of perspectives. Nothing written here is to be construed as representing the views of The Heritage Foundation.

Have an opinion about this article? To sound off, please email letters@DailySignal.com and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the url or headline of the article plus your name and town and/or state.

The post Will Conservative Momentum at Supreme Court Continue This Term? appeared first on The Daily Signal .

Click here to see original article

Will Conservative Momentum at Supreme Court Continue This Term?

The Supreme Court begins hearing cases for its new term Monday, following its customary summer recess. If this term is anything like the last one, conservatives and constitutionalists will rejoice.

In the most recent term, conservatives achieved secured massive wins on abortion (Dobbs v. Jackson Women’s Health Organization); gun rights (New York State Rifle & Pistol Assn. Inc. v. Bruen); and religious liberty (Carson v. Makin and Kennedy v. Bremerton School District); plus another key win on rolling back the administrative state (West Virginia v. EPA).

Now, with such grotesque precedents as Roe v. Wade and Lemon v. Kurtzman properly overturned, will the Supreme Court continue to move rightward? Put another way, was the 2021-2022 term a mere blip on the radar, or the beginning of a broader, meaningful conservative legal restoration?

Although it is unclear, and there are fewer “culture war”-centric cases on the docket this term than last, there is still reason for cautious optimism in some of the marquee impending cases.

The biggest cases before the high court this term, perhaps by far, are the two cases pertaining to noxious race-conscious affirmative action admissions policies at universities: Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which will apply to private universities, and the sister case of Students for Fair Admissions Inc. v. University of North Carolina, which will apply to public universities.

The two cases had been “consolidated,” meaning they were to be decided in unison, before then being “de-consolidated” to permit Justice Ketanji Brown Jackson—who will have to recuse herself from the Harvard case—to participate in at least one of them. But the legal issues are effectively identical, so the two cases should come out the same way.

The court most recently upheld race-conscious university admissions policies in the 2003 case of Grutter v. Bollinger, in which Justice Sandra Day O’Connor’s majority opinion explicitly stated that “race-conscious admissions policies must be limited in time,” and added that the high court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In fact, not only did the Grutter court presciently telegraph its own ruling’s possible demise in the twin Students for Fair Admissions cases, but affirmative action is also one rare area where even Chief Justice John Roberts has shined as a voice of sanity.

After all, Roberts joined Justice Samuel Alito’s anti-affirmative action dissent in 2016’s Fisher v. University of Texas, and earlier penned perhaps his most famous line in the 2007 race-conscious education case of Parents Involved in Community Schools v. Seattle: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There is thus a very strong chance this term that the Supreme Court finally ends vile affirmative action policies—which, contra Black Lives Matter propaganda, represent the genuine last remnants of “systemic racism” in America.

The ultimate cherry on top would be if Justice Clarence Thomas, a longtime archfoe of race-conscious admissions policies, writes the majority opinions in the two SFFA cases, formally overturning both Grutter and 1978’s Regents of the University of California v. Bakke and thus sending “systemic racism” to the ash heap of history. Hopefully, Thomas gets that opportunity.

The other big “culture war” case this term is a First Amendment/religious liberty-adjacent case out of Colorado: 303 Creative LLC v. Elenis. Sound familiar? It should: The Supreme Court ruled on a similar First Amendment/religious liberty case out of Colorado just five terms ago, in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

But in Masterpiece Cakeshop, a court majority led by Justice Anthony Kennedy issued an extremely narrow ruling that redounded to Christian cake baker Jack Phillips’ case-specific free exercise interest, but failed to render a constitutionally meaningful judgment about the thorny intersection of nondiscrimination law, freedom of speech, and freedom of religion.

The fact that the high court granted certiorari in 303 Creative LLC and opted to hear the case, especially coming so soon after Masterpiece Cakeshop and due to the court’s notable personnel changes since 2018, strongly suggests that the court is prepared to issue a more sweeping ruling.

Here, that would entail ruling in favor of Lorie Smith’s claim that her creation of a wedding planning website is constitutionally tantamount to “pure speech”—and that her website’s commercial activity thus falls under the First Amendment’s strong protective ambit.

Judge Timothy Tymkovich of the 10th Circuit wrote a powerful and inspiring dissent last year, when this case reached his appeals court panel; that dissent could, and should, serve as a template for the Supreme Court’s majority opinion. Such a majority opinion in 303 Creative LLC would represent the court’s long-overdue constitutional validation of religious dissenters’ claim, at least on grounds of compelled speech doctrine, from the oppressive forces of “wokeism” and gender ideology.

A similarly definitive pro-religious liberty ruling on the intersection of nondiscrimination law and free exercise of religion—in particular, the possible overturning of the contested 1990 case, Employment Division v. Smith—will still wait for another day.

There is less red meat on the docket this Supreme Court term than there was last term, but there is still plenty ahead to which to look forward. Above all, the demise of the monstrosity that is modern America’s racist affirmative action regime would be an epochal step in bringing America closer in line with her noble, race-neutral founding ideals.

COPYRIGHT 2022 CREATORS.COM

The Daily Signal publishes a variety of perspectives. Nothing written here is to be construed as representing the views of The Heritage Foundation.

Have an opinion about this article? To sound off, please email letters@DailySignal.com and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the url or headline of the article plus your name and town and/or state.

The post Will Conservative Momentum at Supreme Court Continue This Term? appeared first on The Daily Signal .

Click here to see original article

Fact Check: What Politico, FEMA Chief Got Wrong as Florida’s DeSantis Prepared for Hurricane Ian 

Politico this week inaccurately reported remarks by FEMA Administrator Deanne Criswell about Florida’s response to Hurricane Ian, but she also appeared to be inaccurate in saying that she hasn’t ever acted politically during a natural disaster.  

Criswell, who runs the Federal Emergency Management Agency under the Biden administration, spoke Tuesday at a White House press briefing about the hurricane that was about to thrash Florida.  

Politico later changed some wording in its story that day, but only after the inaccuracy was cited during a Florida press conference as a way to criticize the response to Hurricane Ian by Florida Gov. Ron DeSantis, a Republican who has been critical of President Joe Biden, a Democrat.  

Politico initially reported:

Criswell acknowledged concerns about a lax response to storm warning from Floridians who have never experienced a hurricane in the state and those who have previously experienced a ‘near-miss.’

But Criswell actually didn’t say anything during the White House press briefing about a “lax response,” according to televised and transcribed remarks in which the FEMA administrator said: 

I do have concerns about complacency. We’re talking about impacts in a part of Florida that hasn’t seen a major direct impact in nearly 100 years. There’s also parts of Florida where there’s a lot of new residents that have never experienced this type of threat. … 

Heeding the advice of your local officials is the most important. And as far as the conversation, the president directed me to contact the governor [DeSantis] early on, before we even did the declaration; I did that.  

My regional administrator is with the governor right now, making sure that we’re understanding what the needs are. And our focus is on the current life safety needs that need to be met. 

Later, Criswell was asked about “anything unusual or any challenges” in contacting local officials. 

“The communication that we have had with state officials has been excellent,” she replied.  

Politico’s reporting was so egregious that DeSantis responded to the news outlet’s article during his own press conference in Florida.  

A reporter asked about the FEMA administrator’s concern about the “lax response to the storm,” which Politico had attributed incorrectly to Criswell.  

DeSantis shot back: “That is nonsense.” 

“Stop politicizing it. Stop it. We declared a state of emergency when this thing wasn’t even formed,” DeSantis told the reporter, adding: 

You’ve had counties that have done a lot of hard work. You are trying to attack me, I get it, but you are attacking these other people who work very hard. So that is just totally false. I don’t think we have ever–certainly since I’ve been governor–declared a state of emergency this early. 

On Twitter, the DeSantis War Room account wrote: “This reporter misrepresented FEMA Director’s words.” 

A follow-up tweet by DeSantis War Room showed how Politico had changed the wording of its story. It said, “nice stealth editing guys.” 

Politico’s original report said:

Criswell acknowledged concerns about a lax response to storm warnings from Floridians who have never experienced a hurricane in the state and to those who have previously experienced a ‘near miss.’

Editors at Politico changed this wording to:

Still, Criswell acknowledged concerns about Floridians not heading warnings, especially those who never experienced a hurricane in the state, and those who have previously experienced a ‘near miss.’

Before being named FEMA administrator by Biden, Criswell was commissioner of New York City’s Emergency Management Office for less than two years under Mayor Bill de Blasio, a Democrat. An Air Force veteran, she previously worked at FEMA during the Obama administration. 

During the same White House press briefing, Criswell told reporters: “We do not bring politics into our ability to respond to these disasters.”  

However, the FEMA administrator and DeSantis did not see eye-to-eye earlier this year, when Criswell denied assistance to senior citizens who survived tornadoes, as reported by The Center Square .   

On Jan. 16, tornadoes hit Florida’s Charlotte and Lee counties, destroying or severely damaging 158 homes. Most of the residents affected were senior citizens.   

“DeSantis issued an executive order declaring a state of emergency for both counties and requested a major disaster declaration from the Biden administration. Florida offered aid through its Individual Assistance program and requested assistance from FEMA,” Center Square reported. “But FEMA denied Florida’s request.”  

In a letter to DeSantis, Criswell wrote that “the damage from this event was not of such severity and magnitude as to be beyond the capabilities of the state, affected local governments, and voluntary agencies.” 

“Accordingly,” the FEMA administrator wrote, “we have determined that supplemental federal assistance is not necessary.” 

Ken McIntyre contributed to this report.

Have an opinion about this article? To sound off, please email letters@DailySignal.com and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the url or headline of the article plus your name and town and/or state.

The post Fact Check: What Politico, FEMA Chief Got Wrong as Florida’s DeSantis Prepared for Hurricane Ian  appeared first on The Daily Signal .

Click here to see original article

40 Years Later, the Left Goes to Court in Dubious Bid to Resurrect, Ratify Bygone ERA

Under Article V of the Constitution, two-thirds of Congress can propose constitutional amendments and, after 50 years of trying, sent the Equal Rights Amendment to the states in March 1972 with a seven-year ratification deadline .

Even after a disputed deadline extension, only 35 of the necessary 38 states had approved the ERA , and five of those states quickly withdrew their support.

The Congressional Research Service has repeatedly said that, as a result, “the ERA formally died on June 30, 1982.” Maybe not. Four decades later, Illinois and Nevada are suing the Archivist of the United States, claiming that the ERA is already part of the Constitution after all.

Their case was argued before the U.S. Court of Appeals for the District of Columbia Circuit this week.

What’s going on?

Constitutional amendments proposed by Congress begin as resolutions introduced in the House or Senate. Of the thousands of resolutions, on a host of subjects, introduced since America’s founding, only 33 had the two-thirds support of Congress to be proposed, and 27 of those were approved by three-fourths of the states.

Four of the unratified amendments are still pending before the states because Congress did not set a ratification deadline, though no states have ratified any of them for nearly a century. One amendment, proposed in 1978 to give the District of Columbia congressional representation, expired when only 16 states ratified it by its seven-year ratification deadline.

That leaves the ERA.

The last state to ratify the ERA before its expiration date was Indiana in 1977. Then, Illinois passed a resolution purporting to ratify in 2017, Nevada did so in 2018, and Virginia followed in 2020.

Advocates claim that these “ratifications” were valid even decades after the deadline, while ratification rescissions by five states before the deadline were invalid.

Do the math, they say, 38 total states means the ERA is officially part of the Constitution. On advice of the Justice Department, however, the Archivist of the United States concluded that those approvals were not legally sufficient, and the three latecomers originally sued in 2020 to force the Archivist to officially publish in the Federal Register that the ERA is part of the Constitution.

With Virginia now under more sensible political and legal leadership, Illinois and Nevada pressed on.

ERA advocates do not claim that Congress lacks authority to set a ratification deadline at all. Nearly one-third of the amendments in the Constitution were proposed and ratified under a deadline. More than a century ago, the Supreme Court held that Congress’ authority under Article V to propose constitutional amendments includes the power “to fix a definite period for the ratification.”

Nor do ERA advocates argue that Congress’ ratification deadline for the ERA was questioned or disputed by anyone when it was proposed. Resolutions to propose the ERA had included ratification deadlines since the 1940s.

Supporters said in 1972 that such a deadline was “customary,” and the National Woman’s Party, which originated the ERA in the 1920s, said that the ERA’s backers would have no objection to it.

In a 1977 report co-authored by then-professor Ruth Bader Ginsburg, the U.S. Commission on Civil Rights acknowledged that the ERA would become part of the Constitution only if ratified by enough states within Congress’ seven-year deadline.

And when Congress extended that deadline by 39 months, the President’s Advisory Committee for Women conceded “three more states must ratify the ERA by [the June 30, 1982, deadline] if it is to become an amendment to the Constitution.” The only federal court to rule on the question said that the original deadline was firm and that the extension was unconstitutional.

Nor can supporters dispute that the ERA’s extended ratification deadline ended decades ago. In June 1982, five days before the ERA’s final expiration date, The Washington Post reported that the National Organization for Women had “concede[d] defeat,” ending its battle for the ERA’s ratification.

The Justice Department’s Office of Legal Counsel concluded the obvious in a 2020 opinion : “Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.”

The slim reed on which Illinois and Nevada base their claim is that Congress placed the 1972 ERA’s ratification deadline in the wrong place. It appears in the introductory clause of the proposing resolution rather than the text of the proposed amendment itself, and advocates claim that, therefore, it was not part of what the states ratified.

Everything rests on that distinction making an enormous constitutional difference. That’s the issue that the appeals court explored on Wednesday.

Where the deadline appears on the page, however, is irrelevant to whether the ERA remains open for ratification 40 years after everyone agreed it had died.

When Congress proposes a constitutional amendment, it votes on the proposing resolution, not simply on the amendment text. Testimony in 1978 during hearings on the ERA’s ratification extension established that 25 states passed an ERA ratification resolution that quoted Congress’ resolution in its entirety, including the ratification deadline.

In five other states, the record shows that the deadline was an explicit consideration during the ratification process.

ERA advocates are throwing some pretty dry legal spaghetti against the judicial wall and hoping it sticks in this case. Reviving the ERA, which—to again quote the Congressional Research Service—“formally died” 40 years ago is their only hope of ever getting something like this in the Constitution.

The original case for the ERA—namely, that states would not eliminate discriminatory laws and the courts would not interpret the Constitution to do so without it—evaporated long ago.

After joining the Supreme Court, Ginsburg said in a 1997 interview that “[t]here is no practical difference between what has evolved and the ERA.” In this case, the U.S. District Court dismissed the states’ lawsuit, finding that the states did not have legal standing to sue the Archivist and that “even if Plaintiffs had standing, Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count.”

The appeals court panel hearing from Illinois and Nevada included Judges Neomi Rao, appointed by President Donald Trump; Robert Wilkins, appointed by President Barack Obama; and, in her first oral argument, Michelle Childs, appointed by President Joe Biden.

During the argument, Wilkins acknowledged the Supreme Court precedents upholding Congress’ authority to set a ratification deadline, and Rao called the standing issue “tricky.” Since the requisite number of approving states, not the Archivist’s announcement, determines final ratification, Rao said, the Archivist’s decision not to issue that announcement does not legally harm Illinois or Nevada.

The Justice Department filed a brief agreeing with the 2020 opinion that Illinois and Nevada do not have legal standing to bring the lawsuit. Attorney Sarah Harrington suggested that a case in which legal standing is clear might be a better way to address the underlying issue of the ERA’s status.

This case in the D.C. Circuit parallels one brought in the 1st Circuit, which last year affirmed a district court’s dismissal on standing grounds.

The ERA has certainly acquired symbolic significance, even as the concrete need for it has disappeared. Its backers want to hang onto it for a host of other purposes , including to reestablish a constitutional right to abortion and block state pro-life laws.

But expiration dates matter, and even then-Justice Ginsburg said that the proposal and ratification process should start over. That should be an easy decision.

Have an opinion about this article? To sound off, please email letters@DailySignal.com and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the url or headline of the article plus your name and town and/or state.

The post 40 Years Later, the Left Goes to Court in Dubious Bid to Resurrect, Ratify Bygone ERA appeared first on The Daily Signal .

Click here to see original article

New York Will Ban Gas Car Sales by 2035, Copying California

New York Gov. Kathy Hochul, a Democrat, said Thursday that New York will follow California’s lead by banning the sale of gasoline-powered cars and light trucks by 2035.

All passenger cars, pickup trucks, and SUVs sold in the state will have to be classified as “zero-emissions vehicles” by no later than 2035, according  to a press release. Hochul directed the state’s Department of Environmental Conservation to begin implementing the new rules that will also require 35% of state vehicle sales to consist of electric cars by 2026, rising to 68% by 2030.

dailycallerlogo

“With sustained state and federal investments, our actions are incentivizing New Yorkers, local governments, and businesses to make the transition to electric vehicles,” Hochul said.

California enacted an identical regulation in late August to ban  gas cars. California’s move to mandate the sale of “zero-emissions vehicles” enabled New York to adopt the same regulation, according to the press release.

“We had to wait for California to take a step because there’s some federal requirement that California had to go first,” Hochul said  at a press conference Thursday.

California’s law is pushing an increasing number of states to force Americans to exclusively buy electric vehicles as 13 states have previously adopted California’s “clean car” standards, according  to the Maryland Department of the Environment. Washington Gov. Jay Inslee, a Democrat, also said  on Aug. 26 that his state would ban the sale of gas vehicles by 2035.

President Joe Biden’s Environmental Protection Agency restored California’s Clean Air Act waiver in March, giving the state legal authority to set its own strict vehicle emissions standards that other states can choose to adoptaccording  to an EPA press release.

The Trump administration revoked  the waiver in September 2019, stating that California did not need specific emissions standards as its environmental concerns were not unique to the state.

“We’re driving New York’s transition to clean transportation forward, and today’s announcement will benefit our climate and the health of our communities for generations to come,” Hochul said.

Hochul’s office did not immediately respond to the Daily Caller News Foundation’s request for comment.

Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities for this original content, email licensing@dailycallernewsfoundation.org.

Have an opinion about this article? To sound off, please email letters@DailySignal.com and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the url or headline of the article plus your name and town and/or state.

The post New York Will Ban Gas Car Sales by 2035, Copying California appeared first on The Daily Signal .

Click here to see original article