TCB Edition 49 - 07/03/20

The Supreme Court hurts and helps the cause of religious liberty, Trump falls behind in polls, and another former White House advisor goes rogue.

Friday, July 3rd, 2020

1. Surprising decisions shape the realigned Supreme Court

Three major cases decided in the past two weeks by the United States Supreme Court have greatly impacted the state’s relationship with Christianity, albeit in very different ways.

The court first ruled in favor of LGBT rights in Bostock v. Clayton and Harris Funeral Homes v. EEOC. Chief Justice John Roberts, the new swing vote on the court after Anthony Kennedy’s retirement, and Trump-appointed Justice Robert Gorsuch joined with the liberal wing of the court to opine that gay and transgender employment protections are enshrined in the 1964 Civil Rights Act. In his majority opinion, Gorsuch states that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In Justice Samuel Alito’s lengthy dissent, he asserts that “what the Court has done today — interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity — is virtually certain to have far-reaching consequences.” Justice Alito is right: the court’s 6-3 decision will affect many Americans in many different ways. Although gay and transgender Americans will not have to live in fear of losing their job because of their sexual choices, corporations and small businesses may be forced to retain employees with lifestyles that directly oppose the values of the company. It is still unclear if religious exemptions can remain viable under the new federal interpretation of the Civil Rights Act, as a potential Democratic-controlled Congress could void these exemptions.

Less than two weeks later, the Supreme Court finalized its highly anticipated decision in June Medical Services v. Russo, an abortion case touted as a potentially huge win for the pro-life movement as a result of the newly conservative-leaning court. Unfortunately for social conservatives, Roberts again sided with the four left-leaning justices to strike down a Louisiana law requiring abortion providers to gain admitting privileges at a nearby hospital, which is typical of any outpatient clinic and simple common sense. Keeping the Unsafe Abortion Protection Act on the books would have forced all but one clinic in the state to close. Many pro-abortion activists viewed this as restrictive of abortion access, while truthfully, the law is simply ensuring safety for the woman. Some pro-lifers correctly made the case that June v. Russo is more about safety than it is about abortion.

One of the most controversial aspects of this case is the position of Chief Justice John Roberts. The chief wrote his first Supreme Court concurrence on this case because he wanted to fully and thoroughly explain his position. Although some may claim otherwise, Roberts is not necessarily supporting abortion rights here. Abortion advocate Gretchen Borchelt filed an amicus brief supporting the ultimately victorious side, but she conceded that “[Roberts] is striking down the Louisiana law only because he must, as chief justice, show some semblance of respect for the rule of law.” Four years ago, a similar law in Texas was struck down by the highest court in Woman’s Health v. Hellerstedt. In his concurrence, Roberts explains that his decision was bound by stare decisis (Latin for ‘Let the decision stand,’ which is precedent). Although the chief justice agrees with the Louisiana law on principle, he feels that it would improper to overturn settled precedent without an overwhelming consensus of evidence, therefore violating the rule of law. Even though Robert’s decision was based on precedent, the court’s decree is a major setback to the legal hopes of the pro-life movement. The efforts of other states to implement common-sense safety restrictions of abortion may become more limited, and the exciting hope for a court that would repeal Roe v. Wade may be premature.

The highest court in the land finally gave religious conservatives reason to cheer on Tuesday, as the conservative bloc delivered a victory for religious schools in Espinoza v Montana Department of Revenue. Many states have set up scholarship funds, most of which are funded by private individuals and corporations. Families can apply for grants and use the money to send their children to a successful private school, ensuring a fantastic education and allowing parents to choose a school that reflects their values. Three families in Montana sued the state because available scholarship funds could not be used at a religious school, and the case was subsequently heard by the Supreme Court after Montana eliminated the scholarship program. The case elicited strong reactions from both factions of the court. Newly appointed Justice Brett Kavanaugh dragged school choice restrictions as “rooted in grotesque religious bigotry against Catholics” (Kavanaugh is a devoted Catholic himself), while firebrand Justice Ruth Bader Ginsburg argued that no discrimination was present and simply said, “I dissent from the court’s judgment.” Ultimately, school choice and religious freedom emerged victorious. In the majority opinion, Roberts pointed out that “a state need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” The Supreme Court affirmed the clear precedent of past religious freedom cases: the state cannot actively discriminate against religious organizations because of their beliefs. This is great news not only for Christians and First Amendment advocates but also for children everywhere who desire and deserve a good, affordable education.

These cases were a mixed bag from the conservative Christian perspective. While many Christians probably disagree with the first two rulings, the last decision is a major win for American families. Although the surprising switches of Gorsuch and Roberts are just that, surprising, we must refrain from immediately extrapolating their decisions to a larger trend.

Read on: NBC News: Bostock v. Clayton, SCOTUSblog: June v. Russo, TCB - The Life Line, NYT: Espinoza v. Montana Department of Revenue

2. Biden grows polling lead in key swing states

Polling season is here, and it’s here to stay for the next four months. President Trump defied almost every pollster in 2016 to eke out an Electoral College victory over Hillary Clinton. What pushed him over the edge? His clutch performance in swing states. The president delivered in Pennsylvania, Florida, Michigan, and Wisconsin by one point or less four years ago. North Carolina and Arizona were carried by about four points, and Trump won Ohio by eight percent and Texas by nine.

But things have changed in four years. Donald Trump is no longer a political newcomer challenging a deeply unpopular candidate in Hillary Clinton. He’s been impeached, handled a deadly pandemic poorly, and is now running against Joe Biden, a former vice-president who is generally well-liked and respected (at least more than Hillary). Trump is backed into a corner, and he knows that he must retain the swing states that he won in 2016 to have a fighting chance at retaining his seat in the Oval Office.

Unfortunately for the president, all the data points reflect poorly on his odds. A highly regarded New York Times/Siena College poll found last Thursday that Trump is trailing by about ten points in six of those key swing states.

The poll found Biden ahead of Trump 47%-36% in Michigan, 49%-38% in Wisconsin, 50%-40% in Pennsylvania, 47%-41% in Florida, 48%-41% in Arizona and 49%-40% in North Carolina.

If Biden can win even just three of these six states while holding the states that Clinton won four years ago, he would easily sweep Trump in the Electoral College. And we didn’t even get to the other potential swing states yet. RealClearPolitics gives Trump a tiny two percent lead over Biden in a state long considered solidly conservative, and their data also says that Biden and Trump are nearly tied in Ohio, a state won by Bill Clinton and Barack Obama.

Director of the University of Virginia's Center for Politics Larry Sabato told USA Today that we cannot jump to conclusions based on the results of recent polling, and he makes a fair point.

We make the same mistake every four years. Not that this poll was wrong, I think it was basically a reflection of what is true today. But the election – I used to say it is Nov. 3, but actually, it starts in September with early voting – but it's still in the fall. We have a whole season and a half to go.

Yes, we learned in 2016 that polls don’t necessarily point to the winner. But Trump is facing deficits of ten percentage points across the board in many swing states, states that he was only losing by two to four percent in 2016 polls. To win, the president will almost certainly have to claim Florida and Pennsylvania plus four or five other swing states. Not an easy task.

Read on: USA Today, Fortune, RealClearPolitics

3. Bolton slams Trump as the White House plays defense

Omarosa Manigault. Jeff Sessions. John Kelly. James Mattis. John Bolton.

What do a former communication director, Attorney General, White House Chief of Staff, Secretary of Defense, and National Security Advisor have in common? All of these people left the Trump administration and have since spoken out against their former employer.

During the impeachment proceedings in the house, many Democrats urged House leadership to subpoena John Bolton to force him to tell Congress what he knew about the impeachment allegations. Bolton indicated that he was willing to testify, but Republican leadership blocked their Democratic colleagues from calling him to the witness stand. Interestingly, Bolton refrained from voluntarily testifying, instead choosing to write and release a book called The Room Where It Happened. In this explosive 5000-word recounting of his seventeen months in the White House, Bolton tore into the president’s foreign policy decisions and exposed quite a few unthinkable acts allegedly performed by Trump. For example, Bolton claims that Trump expressed support for the Chinese persecution of Uighur Muslims, offered to help dictators by initiating investigations, and said that Venezuela is "really part of the United States.”

Now, what Bolton asserts cannot necessarily be confirmed or denied. But the simple fact that Bolton is aggressively standing against Trump speaks volumes. John Bolton has been a highly respected figure in the GOP military community since the Reagan administration, and radio host Charlie Sykes was right to point out that Bolton deals in truths. Bolton may be right or he just may be interpreting the facts wrong, but we must take his claims seriously.

These allegations could have major repercussions on the Trump administration, so the White House created a sort of counter-narrative to push back against Bolton and his claims. Meredith McGraw of Politico put it well.

The coordinated attack is ultimately an attempt to counteract Bolton’s central thesis as he promotes his book: Trump poses a danger to the country. It’s the other way around, Trump and his aides are insisting: Bolton is the national security threat.

Two claims have emerged on the part of the president’s allies: Bolton is either lying or leaking classified information. President Trump went straight to the ad hominem attack (like it or not, it’s his style).

Former White House Chief of Staff Mick Mulvaney and former press secretary Sarah Sanders assailed Bolton’s book and allegations, as Mulvaney called Bolton’s press appearances a “classless display.” The RNC attacked Bolton as a “liar and a warmonger” in recent fundraising emails.

Director of National Intelligence John Ratcliffe, NSA Director Paul Nakasone, and even Bolton’s former chief of staff Fred Fleitz have expressed concern that Bolton’s book includes classified material that was not properly vetted by Pentagon lawyers. Bolton said that he is “confident that there’s no national security information, no classified information in the book.” The manuscript was originally vetted and approved, but after the Justice Department restarted the process, Bolton decided to publish the book anyway.

Read on: BBC, Politico, Business Insider