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Progressives predicted a hard swing to the right after Justice Brett Kavanaugh’s confirmation cemented a 5-4 conservative majority on the U.S. Supreme Court. So far this term, that fear hasn’t materialized.
Judicial philosophies don’t always align with political ideologies, and decisions released last week and this week show plenty of thoughtfulness and independence on the bench — including a notable split between President Trump’s two high court nominees.
Here’s our take on four recent Supreme Court decisions:
THUMBS UP to the court’s ruling in American Legion v. American Humanist Association. A 7-2 majority found that a World War I memorial in the shape of a cross installed on public land does not constitute a state endorsement of the Christian faith and does not violate the First Amendment’s Establishment Clause.
Known as the peace cross, the monument was built to honor American troops who made the ultimate sacrifice. In his majority opinion, Justice Samuel Alito noted the purpose behind the memorial’s shape.
“That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials,” Alito wrote. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
Removing the cross or mangling it to form an obelisk, the majority correctly noted, would demonstrate religious hostility, not neutrality. The marker is a war memorial and must be left undisturbed.
THUMBS DOWN to the 6-3 decision in Food Marketing Institute v. Argus Leader Media, which strengthened state secrecy and weakened the public’s right to know.
The Argus Leader newspaper of Sioux Falls, South Dakota, sued to obtain federal government data on food stamp use from supermarkets and retail stores under the Freedom of Information Act. Investigative reporters wanted to comb the records for potential fraud and abuse to ensure the food stamp program was being properly administered.
The high court held that stores’ sales data is protected by a FOIA confidentiality exemption, an interpretation that will make it far easier for federal agencies to keep secrets.
“This decision erodes the foundation of what is considered public information and will greatly harm the public’s right, and need, to know how their tax dollars are being spent by their government,” advocacy group News Media for Open Government said, noting that it’s now up to Congress to fix the fractured FOIA.
Don’t hold your breath.
THUMBS UP to the 5-4 ruling in United States v. Davis, which struck down a nebulous federal statute used to increase sentences for defendants who use a firearm in connection with a “crime of violence,” a statutorily undefined term often left to prosecutors’ prodigious imaginations.
Justice Neil Gorsuch voted with the court’s liberal wing — Ginsburg, Sotomayor and Justices Stephen Breyer and Elena Kagan — and wrote the majority opinion.
“In our constitutional order, a vague law is no law at all,” Gorsuch wrote. “Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements.”
Kavanaugh wrote the dissent, joined by Justices Alito, John Roberts and Clarence Thomas.
The sparring between Trump’s two high court picks has been a leading storyline. But Gorsuch has long been skeptical of untrammeled government power, insisting that feds given an inch will take a mile at the expense of civil liberties. In this instance, he’s right.
THUMBS UP to a partially unanimous ruling otherwise decided on a 6-3 split in Iancu v. Brunetti that tossed out a law barring the federal government from registering “immoral” or “scandalous” trademarks.
A clothing designer sued to register a brand name spelled differently from but pronounced the same as the past tense of a vulgar word. We won’t name the brand in this family newspaper, but we’ll note that the plaintiff says it’s an acronym for “Friends U Can’t Trust.”
“A law disfavoring ‘ideas that offend’ discriminates based on viewpoint, in violation of the First Amendment,” Kagan wrote for the majority.
While there’s no explicit First Amendment right to a trademark, bureaucrats pick winners and losers when they discriminate against businesses because they object to the messages their names convey. The decision is a win for free speech that places government in the neutral role where it belongs.