The Supreme Court won’t save conservatism

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For decades, conservatives have sought to regain lost culture-war ground through judicial nominations, with GOP voters consistently rating the Supreme Court a higher priority than do Democrats.

As the latest high-court term winds down — one featuring a putative 6-3 “conservative” majority — it’s worth taking stock of where that project stands. The answer: not in a great place. Consider two of this term’s highest-profile cases: California v. Texas (on ObamaCare) and the Fulton v. City of Philadelphia (on religious liberty).

In California, a 7-2 majority of Supremes again left former President Barack Obama’s signature domestic policy untouched. The court declined to reach the substantive issue — the constitutionality of the individual mandate. Instead, they dismissed the lawsuit brought by Texas and 17 other states on the threshold question of standing — lawyer-speak for a plaintiff’s obligation to show a concrete, remediable injury traceable to the defendant’s conduct.

The technical standing dispute in California is legally debatable: Trump nominee Justice Neil Gorsuch joined Alito’s lengthy dissent. Yet Justice Clarence Thomas, who is no less a conservative, joined the majority. Trump’s other two nominees, Justices Brett Kavanaugh and Amy Coney Barrett, also joined the Justice Stephen Breyer-penned majority opinion.

Senate Judiciary Committee Democrats’ fear-mongering that a vote to confirm these conservative justices would be a vote to ­repeal ObamaCare proved pointless — as did conservatives’ various litigation campaigns to overturn ObamaCare.

In Fulton, meanwhile, a unanimous Court held that Philadelphia authorities violated the First Amendment when they refused to contract with Catholic Social Services for foster care unless it placed kids with gay couples.

Superficially, a 9-0 ruling for CSS is welcome, especially amid growing public support for same-sex marriage and the high court’s ­repeated emphasis on the need for “equal dignity” for same-sex couples, a notion that pervades Obergefell v. Hodges, the 2015 case that asserted a constitutional right to gay marriage. It is indeed notable that no one — not even far-left Justice Sonia Sotomayor — deemed the “dignitary harms” to prospective ­homosexual foster parents to be so great as to override CSS’ conscience objections.

But Fulton could, and should, have been so much more. The case represented the court’s best ­chance in years to overrule ­Employment Division, Department of Human Resources of Oregon v. Smith.

That deeply controversial 1990 ruling, from the late Justice Antonin Scalia, upheld “neutral,” generally applicable laws so long as they only incidentally curtail religious freedom.

Smith was always legally dubious. Taken to its conclusion, the ruling could allow a generic ban on wine that only “incidentally” ­infringed on Catholics’ ability to celebrate Mass. Likewise, Smith would uphold a general requirement to stun an animal before slaughtering it, even if it “incidentally” made kosher meat impossible to obtain.

This is why Alito, in his concurrence, snarked that Roberts’ exceedingly narrow decision “might as well be written on the dissolving paper sold in magic shops.” But Kavanaugh and Barrett apparently disagreed, depriving the court of a five-justice anti-Smith majority.

It’s time for a reckoning. The conservative legal movement needs to soberly confront its shortcomings. Some of those shortcomings are structural, such as an undue emphasis on nominating and promoting libertarian-leaning jurists who are passionate about reining in the administrative state but reluctant to defiantly wade into dreaded “cultural issues.”

And some of those shortcomings are methodological — namely, the widespread adoption of a blinkered positivist and historicist originalist jurisprudence to the exclusion of a more substantively conservative and natural-law-informed jurisprudence.

Regardless, the reality is that, as South Texas College of Law professor Josh Blackman recently wrote, “we don’t have a 6-3 conservative court. We have a 3-3-3 court,” including three centrists of varying degrees of malleability. Unless fundamental changes are made that cut to the core of the modern conservative legal movement, conservatives will remain disappointed. The court isn’t, and won’t be, our savior.

Twitter: @Josh_Hammer

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