Roberts Court’s Latest Term Replete With Legal Cowardice

The Supreme Court is 6-3 Republican-appointed, including three justices picked by President Trump. Yet as we reach the annual end of the Supreme Court term, which customarily wraps up before July, there are remarkably few conservative decisions to halt the advance of the liberal agenda.

For example, the Santa Clara County Office of Education in Silicon Valley has imposed a teaching guide requiring teachers to be pro-LGBTQ+ — even in math problems. One of the recommended books for young children is “Pride Puppy,” which invites three- and four-year-olds to look for certain images at a pride parade including an “intersex” flag, and a drag “king” and “queen.”

Last year the Supreme Court decided in favor of religious rights for parents in Mahmoud v. Taylor, but the opinion was so weak that school districts continue to impose transgender ideology on unsuspecting parents without giving them a meaningful opportunity to opt out. Parents have just sued in California over this issue that the Supreme Court should have firmly resolved.

Trial court judges have been overwhelmingly opposed to Trump’s position on the transgender and other issues. Language in some of their decisions have been scathing against Trump, while the Supreme Court has failed to rein them in.

The Supreme Court held only 58 oral arguments this term, which is merely a third of the number of oral arguments heard annually when liberals controlled the Warren Court in the late 1950s and 1960s. During this entire current decade, the Supreme Court has heard an average of only about 60 cases per year. This is the lowest average since the Civil War.

A vote of only four justices is needed for the Supreme Court to accept a case and schedule it for oral argument, and then render a decision on its merits. In important petitions for court review, conservative Justices Thomas and Alito have often voted to “grant cert” while the three Trump appointees failed to join them, thereby ducking important issues that should be addressed.

There is a pattern in the issues that the newer Republican-appointed justices are avoiding. These justices often avoid abortion, transgender, vaccine mandates, and parental rights cases.

While the aging Justices Thomas and Alito, who are courageous, continue on the Supreme Court, now is the time to establish strong precedents that can last for decades. The younger Trump nominees need merely to vote silently with Thomas and Alito, yet too often are unwilling to do even that.

Most of the Trump-appointed justices repeatedly voted against granting cert in a string of so-called “conversion therapy” cases, until they finally took a case from Colorado and declared the therapy to be a First Amendment right. That decision should have been rendered years earlier to stop the widespread infringement on conservative counselors’ freedom of speech, and by delaying the Trump-appointed justices allowed infringement.

Far from being the bold MAGA court that Trump supporters campaigned so hard to attain, this court has retreated to near irrelevancy. It treads water rather than swimming, thereby inviting future Democrat appointees to take charge.

Kamala Harris gave an interview to Don Lemon last week calling for Democrats to add four more justices to the Supreme Court at the first opportunity. If that happens, the newly empowered leftist justices will not timidly avoid social issues as the Republican-appointed justices have.

In the most recent abortion case, all of the conservative nominees except Thomas and Alito sided with abortion pill manufacturers to allow them to continue to distribute their product widely in pro-life states without an in-person dispensing requirement. Neither the Trump nominees nor Chief Justice John Roberts explained their ruling, for now, in favor of the abortion pill that causes two-thirds of all abortions.

Religious liberty is supposedly fashionable with this court, but it declined to take the appeal of Amish grade schools hit with massive fines by New York for not requiring their children to be vaccinated. New York has eliminated the religious exemption from vaccines, and the court punted this case back to an appellate court rather than uphold a religious right to decline vaccination.

The court refused to “grant cert” in at least three appeals concerning the unfair transgender invasion into girls’ sports, until finally taking a pair of cases that it is deciding now. The court has repeatedly declined to grant cert in cases concerning parental, particularly fathers’, rights.

The effect of the conservative justices declining to grant cert in significant controversies is that bad decisions by liberal lower courts are left standing. The younger conservative justices may be worried about possible impeachment by a future Democrat majority in Congress, but that would reinforce the need to nominate older justices willing to stand up against D.C. leftists.

John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work.