Tag Archives: Supreme Court of the United States

Seeking Justice For All Under The Constitution

Brett Kavanaugh, who was heading toward Senate confirmation at press time, would be one of five Catholic justices on today’s Supreme Court.

Kavanaugh, 53, until recently had been a judge on the Washington D.C. Circuit Court of Appeals. If confirmed, he will succeed Justice Anthony Kennedy, also a Catholic, who was often a swing vote in many of the high court’s closely decided decisions.

During the heated question-and-answer exchanges during September’s confirmation hearings, Kavanaugh’s mere use of the phrase “abortion-inducing drugs” was enough to incense abortion advocates. But when all was said and done, the hearings didn’t alter his trajectory.

In introducing Kavanaugh during a White House press event on July 9, President Donald Trump praised him as “a brilliant jurist” with “impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law.”

A JUDGE WITH GREAT DISTINCTION

“For the last 12 years, he has served as a judge on the D.C. Circuit Court of Appeals — with great distinction — authoring over 300 opinions, which have been widely admired for their skill, insight, and rigorous adherence to the law,” President Trump said.

Kavanaugh has served on the D.C. Circuit Court since being confirmed 53-36 by the Senate in 2006. Prior to that, he clerked for Kennedy and served as a staff secretary and senior associate counsel for President George W. Bush.

Legal commentators have described Kavanaugh as a well-respected federal judge with a philosophy of interpreting the Constitution as it is written.

“He’s a person of the highest intellect, very much in the mode of Neil Gorsuch,” said Robert George, a constitutional scholar and the McCormick Professor of Jurisprudence at Princeton University, referencing Trump’s first appointment to the Supreme Court.

In a conference call with reporters shortly after the president announced Kavanaugh’s nomination, Marjorie Dannenfelser — Legate and president of the Susan B. Anthony List — welcomed the news as a positive step for the pro-life movement.

“We have a man who’s devoted to interpreting the text of the Constitution as it is written and as it applies to today’s debate,” Dannenfelser said.

WINDOW TO HIS APPROACH

Some of his rulings from the D.C. appellate bench offer a window into Kavanaugh’s approach. In 2017, Kavanaugh dissented from an appeals- court vote to allow an undocumented pregnant 17-year-old in immigration detention to seek an abortion. He said the majority decision represented “a radical extension of the Supreme Court’s abortion jurisprudence.”

In the 2015 case of Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh said the Affordable Care Act’s requirement for contraceptive coverage in employee health insurance plans violated the religious freedom of religious nonprofits.

“My judicial philosophy is straightforward,” Kavanaugh said from the White House on July 9. “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

PRACTICING CATHOLIC

In addition to being a respected conservative jurist, Kavanaugh is also a practicing Catholic who serves meals to the homeless as a volunteer for Catholic Charities and coaches CYO basketball in the Washington, D.C., area.

“I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things, but we are united in our commitment to serve,” Kavanaugh said at the White House.

Kavanaugh is a former altar boy who graduated from the Jesuit-run Georgetown Preparatory School near Washington, D.C. before attending Yale Law School. He has also taught law, primarily at Harvard Law School.

In his White House remarks, Kavanaugh, a married father of two daughters, emphasized that his Catholic high school’s motto was “Men for Others.”

Said Kavanaugh, “I’ve tried to live that creed.”

BRIAN FRAGA is a Legatus magazine staff writer.

Supreme Standoff

Justice Antonin Scalia’s sudden death in February created a vacancy on the U.S. Supreme Court during a highly volatile time — right before a hotly contested presidential election, with a sitting Democrat President. No matter how or when the vacancy is filled, it will deeply affect not only the balance of power between conservatives and liberals on the Supreme Court but the very life of our nation.

Two Legatus members and the senior counsel for the Alliance Defending Freedom weigh in on the Supreme Court vacancy.

Bursch-LiMandri-CortmanJOHN BURSCH is a member of Legatus’ Grand Rapids Chapter. He is a partner in the law firm of Warner, Norcross and Judd. He has argued nine cases in the front of the U.S. Supreme Court.

CHARLES LIMANDRI is a member of Legatus’ San Diego Chapter and received Legatus’ Ambassador of the Year award in 2005. He is the founder of the Law Offices of Charles LiMandri. He spearheaded efforts to maintain traditional marriage in California. LiMandri is helping to defend David Daleiden from Planned Parenthood lawsuits.

DAVID CORTMAN is the senior counsel for the Alliance Defending Freedom. He is ADF’s primary U.S. Supreme Court litigator.

 

WHAT LEGACY DID JUSTICE SCALIA LEAVE AT THE SUPREME COURT?

BURSCH: His biggest contribution was his approach to judging, which was through “originalism.” This means that when Congress enacts a statute, you need to apply the plain words. Words don’t change meanings. If you want to change the meaning, you do it through an amendment. Several judges ascribe to the idea of a “living Constitution.” They look at the spirit and how it would apply today, but Scalia just applied the text. This has become the dominant philosophy. It has had a major impact on the judiciary throughout the country.

LIMANDRI: Scalia was a very faithful adherent to the “originalist” interpretation of the Constitution. He was very clear and consistent. The only way to properly interpret the Constitution was: What did they [the Founding Fathers] intend? You can’t project yourself into it. You can’t do it in light of current fads, because these can change and shift. These demi-gods [progressive judges] hold themselves out as enlightened ones and scoff at the Founding Fathers. Scalia was a voice of sanity and truth, and he influenced his colleagues by tempering them. There have been lots of conservative judges who have been influenced by Scalia. His clarity of voice has given lots of material to conservative thought.

CORTMAN: Justice Scalia was one of the most influential Supreme Court justices of all time. His wit and intellect were admired by Americans of all political persuasions, and his adherence to the text and original meaning of the Constitution illuminated the way we understand the law.

 

WHAT WAS YOUR REACTION TO MERRICK GARLAND’S NOMINATION?

BURSCH: He is a pretty moderate choice. Garland is very centrist in his views. We do not know about his views on abortion and same-sex “marriage,” but President Obama would only nominate someone with his views. On religious liberty cases, he has had four cases. On two cases, he was in favor the government. On the other two cases, he was in favor of the plaintiff. Garland is well liked by everyone and he’d be a fairly easy person to confirm, except that this is an election year. Some Republicans who are up for re-election this year have expressed a willingness to speak to him. This is a pretty rare situation — to nominate a Supreme Court Justice during the last year of a lame duck presidency. It hasn’t happened in 80 years. If he gets approved, he would be the fourth Jewish justice on the current Supreme Court.

LIMANDRI: Merrick is, at best, a moderate, but he is predisposed to liberal positions. Obama wants someone who follows his views: empathy rather than judicial precedent. He wants judges who bend with the times, which is trending liberal. I don’t want any nomination that Obama makes to be approved.

 

WHO WOULD YOU LIKE TO SEE APPOINTED?

LIMANDRI: I would like for Republican leadership to stand by and not act on this nomination. They’re not required to do so. There is no more important issue than the replacement of Scalia. People don’t realize that our Founding Fathers were enlightened. When they got stuck writing the Constitution, it was Ben Franklin who asked everyone to take a few days off to pray. George Washington dedicated the U.S. to Christ.

CORTLAND: The concern every time a new nomination to the Supreme Court comes up is whether the nominee will faithfully interpret the Constitution and rule in accordance with its original meaning. It’s no different this time, so of course ADF hopes that the next justice to be seated for a lifetime appointment on the court will uphold the Constitution and apply the law neutrally.

 

HOW WILL THE NEXT JUSTICE AFFECT THE BALANCE OF POWER?

BURSCH: Before Scalia’s death we had four conservatives and four liberals, and Kennedy was a swing voter. If we appoint a liberal, then all the cases will come out more liberal.

LIMANDRI: We’re talking about someone who will serve for 10 to 20 years. They will influence the U.S. for decades. There are issues in SCOTUS — like the HHS mandate, religious liberty, the effort to regulate abortion clinics, the second amendment, immigration issues, the death penalty — these are important issues that will determine if the U.S. can turn around or continue down this path. If liberal judges get the majority, for those of us with a Judeo-Christian point of view, our country will be put in a free fall: Religious liberty will be written out of existence, devout Catholics will go to jail. Liberals will see us as traitors. They don’t like how we think. This will turn into a desire to destroy us. I know from experience from my work in defending marriage in California. I have gotten hateful emails and death threats.

CORTLAND: Every Supreme Court justice is extremely important. However, Justice Scalia’s passing is unique, not only because of who he was and what he represented, but because of the time in history in which we lost him.

 

DOES THE SUPREME COURT HAVE TOO MUCH POWER?

BURSCH: It has been a long time since we’ve been able to democratically decide things. There has been a legal gridlock in Congress, so things are now decided in the courts.

LIMANDRI: SCOTUS has taken over power it was not intended to have. It’s supposed to interpret, not make laws. The source of interpretation is the Constitution and the text of laws. You have to look at what the law says, not what you want it to say. On same-sex “marriage,” the Constitution says nothing on marriage. It was always left up to the states. The US v Windsor case said that two years ago. And then two years later, they ruled in Obergefell v Hodges to legalize same-sex “marriage.” SCOTUS has stolen power from the people. Two out of three people had voted against same-sex “marriage” in state referendums. SCOTUS has destroyed the institution that allows life to come in an ordered way.

SABRINA ARENA FERRISI is Legatus magazine’s senior staff writer

ObamaCare at the bottom of the ninth

Dorinda Bordlee & Nikolas Nikas say efforts to overturn ObamaCare are ongoing . . .

Nikolas T. Nikas

Nikolas T. Nikas

In July of 1973, Yogi Berra’s New York Mets trailed the Chicago Cubs by nine games in the National League East. That’s when he uttered his most famous phrase: “It ain’t over till it’s over.” The Mets rallied to win the division title on the final day of the season.

Most are aware that the Health and Human Services “contraceptive mandate” cases are proceeding, but the legal challenges to ObamaCare as a whole are over, right? Not according to the U.S. Supreme Court. We’re writing this article to summarize the revived ObamaCare challenge — and to invite Legates to join a “friend of the court” amicus brief.

On Nov. 26, 2012, just three weeks after the presidential election, the U.S. Supreme Court issued an order reviving a 2010 lawsuit challenging the constitutionality of vital ObamaCare provisions — provisions that if struck down could prove to be fatal to the entire ObamaCare scheme.

In this revived case — Liberty University v. Geithner (No. 11-438) — the Supreme Court granted the Christian university’s petition for rehearing and “remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius.NFIB v. Sebelius is the case issued by the Supreme Court this past summer that upheld ObamaCare’s individual mandate under Justice Roberts’ strained reasoning that the penalty on individuals could be viewed as a “tax.”

Dorinda C. Bordlee

Dorinda C. Bordlee

The NFIB case did not raise or address many issues that will now be the subject of federal court scrutiny, including provisions regarding the employer mandate and its crippling penalties, the individual mandate in light of possible constitutional infirmities that arise from the Supreme Court’s interpretation of the penalty as a “tax,” and — as raised in our original amicus brief — conscience issues and Free Exercise violations posed by ObamaCare’s hidden “abortion premium mandate.”

The Liberty case will be briefed and argued by Liberty Counsel lawyers before a federal appeals court in Richmond, Va., this spring and might end up before the U.S. Supreme Court on the merits before the 2014 effective date of the ObamaCare state exchanges.

Bioethics Defense Fund — the non-profit legal organization that we founded to put law in the service of life in accord with the natural law teachings of the Catholic Church — will be counsel of record on the amicus (friend-of-the-court) brief designed to support Liberty University by fully addressing issues of religious liberty and pro-life conscience.

Several Legatus members have already agreed to be named as “amici” (friends) in the brief to be presented to the U.S. Fourth Circuit — and later to the U.S. Supreme Court. We are looking to add as many Legatus members as possible. As amici, you would be on record as a Catholic businessperson who has an interest in educating the federal judges about provisions that raise serious conscience objections for Catholics. Amici are not parties to the lawsuit, and they are free from any legal obligations.

All that would be required to join the brief as a friend-of-the-court is your name (and that of your spouse if desired) and the location of your Legatus chapter. We will list you in your individual capacity as a Legatus member, but you may list your position and the name of your company for purposes of identification only.

Our brief will address the “abortion premium mandate,” a section that allows health plans in the state exchanges to carry abortion coverage but not to disclose it until enrollment. ObamaCare then requires that every enrollee who ends up in a health plan with abortion coverage must pay a separate itemized abortion premium of a minimum $1 per month, with no exceptions. That separate premium, directly paid from the pockets of individual enrollees, is required to be placed by the insurer into a fund designated solely to pay claims for other people’s elective abortions.

As counsel on amicus briefs in nearly a dozen HHS mandate cases, we know that the Obama Department of Justice has its hands full defending religious liberty lawsuits across the country. But the rights of conscience lawsuits are set to explode exponentially once millions of Americans find themselves in plans that require a government-compelled abortion premium mandate in 2014 — unless ObamaCare is fatally undermined by this revived legal challenge.

Action Item: To join the BDF ObamaCare amicus brief in the Fourth Circuit on behalf of individual Legatus members who have an interest in educating the judges about the abortion premium mandate, contact us at info@bdfund.org or (504) 231-7234. Click here to join us in this effort.

DORINDA C. BORDLEE and NIKOLAS T. NIKAS are attorneys and founders of Bioethics Defense Fund, a national legal and educational organization whose mission is to put law in the service of life.