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What Was the Court’s Rush?

Yonoson Rosenblum

The Democratic Party’s descent into madness

Wednesday, February 20, 2019

I

 have long thought that religious liberty is more secure, at least for now, in the United States than any other Western democracy because of the current makeup of the Supreme Court. And I still think so.

But if I were looking for a reason to doubt that proposition, I would need to look no further than a brief two-paragraph opinion, joined by the five most conservative justices on the Supreme Court, issued last week. The five justices voted to vacate a stay of execution of Dominique Ray, a Muslim death row prisoner in Alabama, entered by a unanimous panel of the 11th Circuit. Ray was subsequently executed by lethal injection on February 7.

Ray brought suit under the Religious Land Use and Institutionalized Persons Act (RLIUPA) to have a Muslim clergyman present in the room with him at the time of his execution. The prison in question had a Protestant chaplain, who, as prison personnel, was allowed into the execution room, but had no Muslim clergyman on staff.

Given that the prison had provided clergy in the execution room for some prisoners, the state of Alabama was hardly in a position to argue that the absence of such clergy was not a significant imposition on Ray. And the fact that clergy was available for those of some faiths and not others raised both a potential Establishment Clause claim and an Equal Protection claim. It was those issues that the 11th Circuit wanted briefed and argued prior to the execution.

And it was those issues upon which the Supreme Court foreclosed any hearing by ruling that Ray’s complaint under the RLIUPA had not been filed in a timely fashion, even though it was within five days of learning that he would not be allowed the presence of clergy.

The majority opinion of the five conservative justices is so astoundingly tone deaf that it beggars explanation how Chief Justice John Roberts, who is acutely sensitive to the public image of the Court, could have joined in it. First question, what could have possibly prompted the Court to get involved at all? There was no compelling state interest in expediting the execution of Dominique Ray, who was not, after all, challenging his conviction or sentence, just the conditions of his execution.

And by not even considering any of Ray’s claims, the Court seemed to be downplaying the importance of claims of religious conscience. The next time a case like Masterpiece Cakeshop comes before the Court, the conservative justices have opened themselves up to the charge of valuing certain religious claims over others, or perhaps certain religions over others. Why do that? (The flip side is that the four liberal justices who dissented have also opened themselves up to the claim that they are more sensitive to some religious claims and to the adherents of certain religions than others.)

Finally, any concerns that Alabama had with allowing unauthorized personnel in the execution room could have been accommodated with minimal effort. The contempt of court power, for instance, would have been enough to deter any Muslim clergy from trying to interfere with the execution, as Justice Kagan pointed out in her dissent.

When I was in law school, I had a cold spot in my heart for Justice Felix Frankfurter, once the Court’s leading stickler for proper court filings and the like, even in capital cases where there was good reason to believe that the sentenced man might have been innocent and/or incompetently represented. In those cases, the prevention of a potential miscarriage of justice and the execution of an innocent man struck me as more important than procedure.

While over the years I have become much more sympathetic to many aspects of Frankfurter’s conservative jurisprudence, that particular aversion has remained. True, Ray was neither innocent nor sympathetic. Those who have committed sufficiently heinous crimes to land on death row rarely are.

But there was no reason for the conservative bloc on the Court to rush to prevent him from even gaining a hearing on his religious claims. And even though they established no precedent on the interpretation of the Constitution’s religion clauses in denying Ray a hearing, they appear not to have considered wisely the implications of their decision.

 

Any Sane Ones Left?

One of the most seductive political dreams, especially to those who view themselves as intelligent, is a world run by the smart people. That vision underlies all central-planning nostrums and explains the continuing siren call of socialism.

Yet far from being more rational, efficient, and humane, as its proponents imagine, rule of the “wise” is its own form of irrationalism, as it flies in the face of all historical experience. The citizens of Venezuela, once the richest country in South America, now battle one another over rat carcasses to eat. Just the latest example of the consistent failure of central planning.

Two recent articles describe the sense of entitlement and contempt for democracy of elites on both sides of the Atlantic — indeed among the entire Davos set — in virtually identical terms. Brexit has triggered a political crisis in Britain, writes Dr. George Friedman of Geopolitical Futures, by revealing deep fissures between the elites and everyone else.

British elites assume that pro-Brexit voters “are uneducated and incapable of understanding the consequences of their vote,” Friedman writes. They attempted to “delegitimize the vote by effectively delegitimizing the democratic process.” The Brexit result has also embittered “remain” voters: “To them this was not merely a policy debate but a question of who rules Britain.” On the other hand, any retreat from Brexit would convince the 52 percent of Britons who voted in favor that “the only purpose of the referendum was to affirm the elites’ position on the EU and that they will keep trying until they win.”

The parallel crisis in the United States, argues Kevin Willamson in National Review, is that the ruling class does not currently rule. Donald Trump is a rude gesture in human form from the peasants to the elites.

Among those affiliated with Harvard, donations to Hillary Clinton outstripped those to Trump 200:1; at Princeton 209:1; and at Yale a mere 128:1. The ratios were similar in Silicon Valley: 100:1 at Facebook; 135:1 at Apple; 70:1 at Google.

At the largest Wall Street banks, Clinton outraised Trump by 70:1 at Goldman Sachs to a low of 7:1 at Wells Fargo; among venture capitalists 7:1; among hedge funds managers 8:1.

Only two of the nation’s 100 largest circulation papers endorsed Trump. Clinton won 76 percent of the vote in the US’s ten largest cities, and carried every state capital, except the three smallest.

Those who evaluated the candidates differently than the chief executives on Wall Street, denizens of the Ivy League, media shapers of public opinion, and the political class must, in the elites’ opinion, be “driven by some occult malevolence.” The party of the Ivy League, Silicon Valley, The New York Times, and Wall Street have to offer the nearly 50 percent of Americans who voted for Trump nothing but another lecture on “white privilege.” The irony is lost on those whose sense of entitlement to rule borders on the Divine Right of Kings.

Living, however, in an intellectual echo-chamber, where one never has to defend one’s opinions, and where even the smallest deviations from the norm are instantly punished, is apparently not good for one’s sanity. Witness the Democratic Party’s descent into madness.

Democratic presidential candidates have signed off on the Green New Deal proposals of a 29-year-old bartender, who promises within ten years to replace airplanes with high-speed trains (at the very moment California has finally dropped its bullet train fantasy), end cow flatulence, refurbish every building in America, and eliminate all hydrocarbon energy, at a price tag that would exceed the entire national budget many times over and require drafting the entire workforce. And which would, incidentally, achieve nothing unless India and China, the major world polluters, also signed on to an economic suicide pact.

From once having argued that abortion should be “safe and rare,” the left now treats it as a sacramental rite of passage and celebrates legalized infanticide, or something close.

Remarkably, the Democrats have achieved what would once have been thought impossible: They have made President Trump seem like the sane one in the room.

Originally featured in Mishpacha, Issue 749. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com

 

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