There is a reason President Donald Trump’s nomination of Amy Coney Barrett to the United States Supreme Court has become a central issue at the heart of the upcoming election. On the conservative side is the constitutional duty to appoint a Supreme Court justice who will respect the written text of the United States Constitution; on the progressive side is the desire to effectively use the judicial branch as an alternative to the legislative branch. To see just how impactful the Supreme Court has become in terms of legislation, one only needs to look at recent, wide-reaching decisions by the Court. Below are eight such decisions. Some permitted legislative victories to be achieved for the Left via the judicial branch, and others narrowly prevented such victories. Whether we personally view the following decisions as right or wrong, what the Supreme Court’s modern history has shown is that a small collection of unelected judges have overwhelming power over the state and direction of our society, and have the ability to effectively enact legislation deciding the most fundamental debates of our time. Issues of transgenderism, freedom of association, affirmative action, and many more have not been settled by Congress, but by the judiciary.
1. Obergefell v. Hodges (2015)
This landmark civil rights case ruled that both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution guarantees the right to marry to same-sex couples. This decision effectively legalized same-sex marriage on a federal level, requiring that all states sanction and recognize same-sex marriages in the same manner as opposite-sex marriages.
This was one of several decisions where Justice Anthony Kennedy gave the deciding vote in a 5-4 decision. Justice Kennedy authored the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas each wrote a dissenting opinion, with Justice Samuel Alito also dissenting.
Standing as a blatant counter-argument to the Democrats’ sporadic criticism of the politicization of both the Supreme Court and the White House, President Obama famously celebrated this decision by illuminating the White House in rainbow colors.
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2. Burwell v. Hobby Lobby Stores, Inc. (2014)
This landmark decision protected the religious objections to regulations held by the owners of privately-held for-profit companies. The result of this decision rejected the Affordable Care Act’s contraceptive mandate, which required that employers cover some contraceptive costs either directly or through available health insurance plans.
This 5-4 decision was supported by Chief Justice Roberts and Justices Alito, Scalia, Kennedy and Thomas, with Justices Ginsburg, Sotomayor, Breyer, and Kagan dissenting. Ginsburg penned a stern dissent, writing “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Ginsburg also warned that “The Court, I fear, has ventured into a minefield.”
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3. Citizens United v. Federal Election Commission (2010)
This was a landmark decision regarding campaign finance, with the Court ruling that the First Amendment prohibits the governmental restriction of “independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.” Specifically, this case determined whether or not the conservative non-profit Citizens United violated the Bipartisan Campaign Reform Act of 2002 by attempting to launch a film criticizing Hillary Clinton close to the 2008 Democratic primaries.
Justice Kennedy provided the familiar swing vote, with the Court voting 5-4 in favor of Citizens United, deciding that the Bipartisan Campaign Reform Act violated the First Amendment, with Justice Kennedy writing “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Justices Stevens, Ginsburg, Breyer and Sotomayor dissented, with Justice Stevens writing “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” In this vein, the subject of Citizens United has become synonymous with the concept of “money in politics” occasionally condemned by Democrats during election seasons.
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4. Masterpiece Cakeshop v. Colorado Civil Rights Commission
This case centered on the refusal of Jack Phillips, the owner of Masterpiece Cakeshop in Colorado, to bake a cake for a gay wedding due to his religious beliefs regarding same-sex marriage. The Colorado Civil Rights Commission ruled that Phillips and the bakery had discriminated against the couple.
In a 7-2 decision, the Court determined that the Colorado Civil Rights Commission had violated Phillips’ First Amendment rights to freedom of religion. Chief Justice Roberts and Justices Kennedy, Alito, Breyer, Kagan, Thomas and Gorsuch ruled in favor, with Justice Kennedy criticizing the religious hostility of the Commission against Phillips. Justices Ginsburg and Sotomayor disagreed, with Justice Ginsburg writing that “what critically differentiates them is the role the customer’s ‘statutorily protected trait,’ played in the denial of service.”
This case became central to the debate surrounding the breadth of freedom of religion and freedom of association, and particularly their impact on the real or supposed freedom of others.
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5. Bostock v. Clayton County (2020)
Also a landmark civil rights case, Bostock v. Clayton County ruled that Title VII of the Civili Rights Act of 1964 also protects employees against discrimination on the basis of sexual orientation or — more controversially — their gender identity, since Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national origin,” with “sex” being the relevant factor in this case.
Justice Neil Gorsuch delivered the majority opinion in this 6-3 decision, writing, “An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Alito, Thomas, and Kavanaugh dissented, Alito writing, “There is only one word for what the Court has done today: legislation.”
Justice Kavanaugh’s dissent also criticized the use of the judicial branch to achieve legislative victories, writing: “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law … They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”
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6. Whole Woman’s Health v. Hellerstedt (2016)
This decision ruled that the state of Texas cannot place restrictions on abortion providers which “create an undue burden for women seeking an abortion.” The basis for this case was Texas’ H.B. 2, which placed requirements upon abortion providers, including that they have admitting privileges at a hospital within 30 miles and that they meet the same standards as ambulatory surgical centers.
With only 8 members of the Supreme Court, the decision was reached with a 5-3 vote. Justice Breyer wrote the majority opinion, arguing that every restriction places a “substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.” It’s important to recognize that the premise that abortion is constitutional relies on the landmark case of Roe v. Wade in 1973, which is another example of impactful legislation achieved via the judicial branch.
Chief Justice Roberts and Justices Thomas and Alito dissented, with Thomas again decrying the evasion of legislative responsibility, writing that Justices Breyer, Ginsburg, Kennedy, Sotomayor, and Kagan had reimagined “the undue-burden standard” for abortion access, creating a “benefits-and-burdens balancing test” that courts “should have instead deferred to the legislatures to resolve.”
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7. Grutter v. Bollinger (2003)
This landmark case addresses the subject of affirmative action when it comes to student admissions, with the Court determining that it is not a violation of the Fourteenth Amendment’s Equal Protection Clause to favor “underrepresented minority groups” in an admissions process as “long as it takes into account other factors evaluated on an individual basis for every applicant.”
This 5-4 decision was supported by Justices Sandra Day O’Connor, Stevens, David Souter, Ginsburg, and Breyer, ruling that the United States Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” O’Connor also noted that “race-conscious admissions policies must be limited in time.”
Chief Justice William Rehnquist and Justices Scalia, Kennedy and Thomas dissented, with Thomas writing, “For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”
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8. Boy Scouts of America v. Dale (2000)
This landmark decision determined that the Boy Scouts of America’s decision to expel Scoutmaster James Dale from the organization due to his sexuality was permitted by the constitutional right to freedom of association. Yet another 5-4 decision was supported by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. The decision concluded: “We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message.”
Justices Stevens, Souter, Ginsburg and Breyer disagreed, with Stevens writing that the ongoing prevalence of prejudice against homosexuals “can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers.”
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Ian Haworth is host of The Ian Haworth Show and The Truth in 60 Seconds. Follow him on Twitter at @ighaworth.
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.