The constitution is known to be built on checks and balances, but nowhere does it specifically call for a “separation of powers” or insist on “separation of church and state.”
These two widely understood legal concepts have evolved over more than two centuries of judgments.
Today, however, the emboldened conservative majority of the Supreme Court relies on one – the separation of powers – to block progressive policies and regulations even as it destroys the other – the line between government and religion.
While the recently concluded court session is best remembered for its rulings on abortion and guns, it also saw the emergence of new anti-regulatory activism.
The judges stopped a Biden administration order extending a moratorium on evictions during the COVID-19 pandemic and overturned a rule that would have required large employers to vaccinate their workers.
Then, on the final day of the term, judges blocked the Environmental Protection Agency from enacting sweeping regulations to combat climate change. They opposed an Obama-era rule that could have forced a shift away from coal-fired power plants in favor of natural gas, solar and wind power.
While environmentalists and the court’s three liberals focused on the threat of a global climate catastrophe, the conservatives saw the problem of the separation of powers.
Chief Justice John G. Roberts Jr. said the government’s response to climate change is an “important issue” that must be decided by Congress, not regulators or the President. In essence, the court ruled that the regulation amounted to new legislation.
“The doctrine of the big questions … protects the separation of powers of the Constitution,” Justice Neil M. Gorsuch wrote in a unanimous opinion explaining the conservative view. “In Article I, the people gave all federal legislative powers to Congress.” They “failed to create a regime administered by a ruling class of largely irresponsible ‘ministers.’ According to our constitution, the people-elected representatives in Congress are the decision-makers here.”
Gorsuch pointed to the “explosive growth of the administrative state since 1970,” and the theory he outlined leaves little room for significant regulation.
UCLA law professor Jon Michaels described it as “justifying a radical effort to reverse 90 years of court-approved sweeping federal delegations.”
It was fitting that the verdict came on the day Judge Stephen G. Breyer officially retired.
During his 28 years, Breyer was the court’s foremost advocate for federal agencies. In his view, Congress passed sweeping legislation to clean the air and protect workers, consumers and investors, but left it to federal agencies to implement those promises.
When cases came to court, he spoke of government officials as serious experts trying to make the government work.
But on the right, the “administrative state” has been attacked for decades, and regulations are routinely derided as “power grabs” by unelected left-leaning bureaucrats.
The libertarian CATO Institute hailed the EPA ruling as “a great day of freedom,” while the progressive American Prospect said the Supreme Court had “staged a coup d’état against government regulation … and in the process endangered the planet.”
The split in the High Court parallels the political split in Washington. Democratic governments have relied on regulations to enforce environmental protection and civil liberties, while Republicans rub shoulders with rules opposed by employers and corporations.
The conservative majority is far less enthusiastic about a different kind of “separation” between church and state.
In an 1802 letter, President Thomas Jefferson described the First Amendment as establishing a “wall of separation between church and state.” It protects both the free practice of religion and the “foundation of a religion”.
The Supreme Court adopted the Founding Father metaphor in a unanimous 1947 Opinion from Judge Hugo Black. The First Amendment prohibition on “founding a religion” means the government may not “aid one religion, aid all religions, or favor one religion over another,” he wrote in Everson vs. Board of Education. “No tax of any amount, large or small, shall be levied in support of any religious activity or institution…to teach or practice religion.”
In 1962, Black authored the court’s opinion striking down the reading of official prayers in public schools, a decision that won the endorsement of President John F. Kennedy, the nation’s first Catholic to hold that office.
By contrast, the court’s conservatives, led by Justice Clarence Thomas, now deride the separation of church and state and the ban on funding religious schools as a 19th-century doctrine “born of bigotry” against Catholic immigrants .
“It was an open secret that ‘sectarian’ was code for ‘Catholic.’ [and] emerged at a time of pervasive hostility toward the Catholic Church and Catholics in general,” Chief Justice John G. Roberts Jr. wrote in a 2020 decision overturning Montana’s ban on public funding for religious schools. (Espinoza vs. Montana)
Last month, in two 6-3 rulings, the court overturned Maine’s ban on state college grants for students enrolled in religious schools (Carson vs. Makin) and ruled on a high school football coach who defied school officials to kneel after games in the Prayer on the 50 yard line. (Kennedy vs Bremerton)
The majority of the court said the 1st Amendment protects the coach’s right to freedom of expression and worship.
In contrast, Judge Sonia Sotomayor said the ruling “elevates a person’s interest in personal religious practice … over society’s interest in protecting the separation of church and state.”
The next target for repeal may be the 1970s rulings that said cities and school districts could not openly display religious symbols on public property, including crosses, the Ten Commandments, or nativity scenes.
Gorsuch authored another comprehensive justification in May, arguing that the ban on “forming a religion” was mainly limited to laws that would require people to support a church or participate in a religious activity. He said it has not banned any government action because it appears to “promote” or favor the religion.
He argued that the court went too far in taking this no-endorsement approach in the 1970s.
Until then, “this court had never regarded the display of a religious symbol as a religious institution,” he wrote in Shurlett vs. Boston. “Our Constitution was not designed to erase religion from American life; It was designed to ensure respect and tolerance.”
Church-state advocates worry about where the court is headed. They say it would be a mistake to inject religion into public schools, city halls or county offices.
“Our concern is that this realignment of constitutional values will harm religion and create more conflict,” said Holly Hollman, legal counsel for the Baptist Joint Committee for Religious Liberty. “The impact on religious minorities will be felt the most. But the more the government is allowed to promote religion, the more it will distort religion. Christians should be concerned that religion becomes just another tool in a politically divided nation.”
https://www.latimes.com/politics/story/2022-07-07/supreme-court-likes-separation-of-powers-but-not-separation-of-church-and-state Supreme Court likes separation of powers, but not of church and state