The Reluctant Reaper
Jan 10 (Olivia’s Birthday)
On January 3rd U.S. District Court Judge Reed O’Connor in a highly questionable decision issued a preliminary injunction blocking the U.S. Navy’s enforcement of its mandate that all of its active-duty personnel be vaccinated against Covid-19. All of the plaintiffs in that action (35 Navy Seals) had sought an exemption from the Navy’s mandate claiming that compliance would require them to violate their religious beliefs. Judge O’Connor’s decision, which reeks of political bias, was rendered just four days after Supreme Court Chief Justice Roberts had issued a blunt warning to the members of the federal judiciary against allowing their political biases to infect their decisions.
There is no question that the Chief Justice has become concerned that politics has invaded the federal judiciary and is threatening to undermine the public’s confidence in the rule of law. (See, “Saving SCOTUS’s Credibility and the Rule of Law.”) Still, this was an unusual move for the Chief Justice who until now has taken every available opportunity to assure the public that federal judges receive lifetime appointments freeing them from political influence. This has become no less a fantasy than Donald Trump’s insistence that the 2020 election was clandestinely stolen from him. Unfortunately, the Chief Justice has been one of the principal factors in the politicization of the courts -- bringing to mind the Biblical proverb that “You reap what you sow.”
My recent article entitled “Tribal Politics and Political Pawns” describes the Covid vaccination mandates imposed on U.S. military personnel and the three types of exemptions (medical, administrative and religious) that may excuse a service member’s compliance with those mandates. The Navy’s mandate, which is similar to those imposed by the nation’s other military services, includes procedures for applying for an exemption and for appealing adverse determinations. The recent sidelining of one of the Navy’s ships due to an outbreak of Covid underscores how the effectiveness of our military forces can be greatly undermined by the spread of an infectious disease. This is why all military personnel are required to receive eleven different vaccinations just as a condition of their joining one of the nation’s military services. Some must receive up to six additional vaccinations depending on the nature and location of their assignments. Therefore, it’s difficult to even conceive of how any person enlisted in our armed forces could honestly harbor a religious objection to receiving a Covid vaccine.
There is no recognized religion whose teachings would serve to restrict vaccination against Covid. The only religious leader who has even attempted to provide guidance for applying the religious exemption is Archbishop Timothy Broglio who oversees the Catholic diocese responsible for the military services. He stated that armed forces personnel may conscientiously object to the mandate “based upon their own personal convictions.” Taken literally, the Archbishop’s pronouncement would allow armed forces personnel to formulate their own “religious” beliefs and considering their prior acceptance of other mandated vaccines, to apply those beliefs in an inconsistent manner. Based on the highly questionable nature of any application for a religious exemption to the Covid vaccination mandates, it is not surprising that none of the more than 17,000 such applications have been granted.
The principal requirement for the issuance of a preliminary injunction (like the one issued by Judge O’Connor) is a finding by the court at the outset of the litigation that the plaintiff has “established a substantial likelihood of success” when the matter is finally decided. Considering the total lack of religious teaching that might support the plaintiffs’ professed religious beliefs, it is difficult to understand how Judge O’Connor was able to conclude that the mandate would violate the religious belief of any of plaintiffs, much less the beliefs of all 35 of them who represent three different denominations of Christianity (Catholic, Eastern Orthodox and Protestant). Was Judge O’Connor unaware that Pope Francis was encouraging vaccine skeptics to become vaccinated? Also what could have convinced him that any such professed religious convictions could be valid when the plaintiffs had previously complied with at least a dozen other vaccination mandates including ones for Hepatitis A and B, Influenza, Measles, Tetanus-Diphtheria, Meningococcal and Adenovirus?
Judge O’Connor’s decision was premised on his conclusion that the religious exemption to the Navy’s Covid vaccine mandate is a sham because no applications for a religious exemption have been granted. It’s important to understand that Judge O’Connor reached this conclusion without having examined any of the Navy’s decisions denying applications for a religious exemption. By contrast, he summarily concluded that plaintiffs’ religious convictions against taking the Covid vaccines are “indisputably sincere.” We know this because he went on to assert that “[I]t is not the role of the court to determine [the plaintiffs’] truthfulness or sincerity.” One has to wonder just how he could have even concluded that the plaintiffs’ claims had a substantial likelihood of success without assessing the sincerity of their professed beliefs. Moreover, the specific reasons cited by the plaintiffs for not wishing to be vaccinated (e.g. the vaccines were developed using a line of cells from aborted fetuses and the vaccines would alter the chemistry of their bodies) apply equally to all of the vaccines they had previously received when they joined the Navy.
There is yet another problem with Judge O’Connor’s decision. One of the basic rules of the federal courts is that in order for a case to be ripe for adjudication, the plaintiff must have exhausted all of his/her administrative remedies. However, none of the plaintiffs in this litigation had even sought a review of the denial of their exemption application. Indeed, there has not even been a denial of the initial applications of six of the plaintiffs. The ripeness issue was raised by the Navy and Judge O’Connor rejected it claiming that the Navy’s exemption review process, like the exemption itself, is a sham. Even assuming Judge O’Connor is correct in this assertion, under the order promulgating the mandate, no adverse consequences would befall the plaintiffs until after that review had been decided. Thus, the threat of irreparable harm (also a requisite to the granting of a preliminary injunction) was not imminent.
The indefensible nature of Judge O’Connor’s decision can only be ascribed to his allowing his well-known political bias to influence his conclusion that the plaintiffs had a “substantial likelihood” of ultimately prevailing. It must be appreciated that Judge O’Connor has a history of political partisanship dating back to when he served as a staff member in the U.S. Congress. Wikipedia describes him as a “reactionary” and a “go-to favorite“ of conservative lawyers as he tends to reliably rule against Democratic policies.” The political nature of his decision is also underscored by the fact that 47 Republican lawmakers are reported to have provided Judge O’Connor with a letter in support of the plaintiffs’ petition.
At this point, you might be wondering why our Chief Justice should bear any responsibility for Judge O’Connor’s ruling. After all, only four days before it was rendered the Chief Justice had admonished all members of the federal judiciary to eliminate political partisanship from their determinations. In addition, Judge O’Connor appointment to the federal judiciary was steeped in the political bias that has characterized his career -- he was vetted and recommended by the partisan Federalist Society and was appointed by President George W. Bush, a man whose presidency was secured by the Supreme Court’s decision in Bush v. Gore, the most politically partisan decision in the annals of the Supreme Court. To be sure, both President Bush and the Federalist Society are certainly not without blame. Yet, our long-serving Chief Justice has played no less a role in corrupting the nation’s judicial systems through his own decisions and actions which clearly countenance allowing political beliefs to shape judicial decisions.
The political corruption of the courts has not happened overnight. In fact, the origins of this transformation date back to the 1960s when a small group of Republican political advisors developed a strategic plan to enable their party to attain and maintain control of the federal government. That strategic plan which has enjoyed a high degree of success over the past 30 years is more fully described in my article entitled “Partisan Politics.” The plan’s central element was the establishment of a symbiotic relationship between the party and its wealthy donors. The party would direct the policies of the federal governmental to enhance the wealth and well-being of its donors and the donors would reciprocate by providing financial support for the political campaigns of the party’s candidates.
The courts were to play an important role in implementing this plan by striking down existing restrictions on political campaign contributions. The courts were also charged with invalidating the business regulations that invariably impose costs on the party’s donors. This required the party to constantly expand the number of federal judges (and Supreme Court Justices, in particular) committed to its political agenda. To that end, the party established the Federalist Society for the purpose of inculcating potential jurists with the party’s agenda and recommending them for judicial posts. This is how Chief Justice Roberts and Judge O’Connor, both appointees of President George W. Bush, came to become members of the federal judiciary.
A critical building block of this plan was put into place in 2010 when Chief Justice Roberts steered the Republican-appointed majority on the Court in deciding Citizens United v. Federal Election Commission. That decision swept aside long-standing restrictions on the financing of political campaign embodied in legislation first enacted by the Congress in 1971. This made possible virtually unlimited contributions to political campaigns by corporations as well as by individuals. Because the Republican Party skewed its governing policies to favor large corporations and wealthy individuals, this change represented a major political victory for it. While the Chief Justice has always professed to be guided by judicial conservatism this decision was clearly an act of judicial activism long decried by Republican politicians.
The Chief Justice has also made a number of other contributions to the Republican strategic plan. One is found in the Supreme Court’s 2013 decision in Shelby County v. Holder striking down key provisions in the Voting Rights Act of 1965. The dubious rationale for that decision, penned by the Chief Justice, was that the Voting Rights Act had been enacted 40 years previously and its restrictions had outlived their usefulness. This rationale ignored the fact that Congress had renewed the provisions of the Act only five years before. The utility of the stricken provisions has been amply demonstrated by what followed; namely, Republican controlled state governments have gone on to gerrymander their election districts and to take other measures to restrict voting. It is that decision which is currently facilitating the wave of vote-suppressing election law changes being adopted in Republican-controlled states.
More recently the Chief Justice allowed his own political bias to infect the Supreme Court’s actions in a variety of other ways -- setting a precedent for, and giving license to, other federal judges to do the same. For example, he exercised his bias in the scheduling of two politically-charged cases that came before the Court in December of 2019 so they would not be resolved before the 2020 election. One involved a constitutional challenge to the Affordable Care Act. The Chief Justice, citing the pandemic, deferred consideration of that case so it would not even be argued until after the 2020 elections. More than a year later it is still yet to be decided.
The second matter involved appeals from two Circuit Court rulings compelling disclosure of President Trump’s financial and tax information. There was absolutely no recognizable rationale supporting the President’s efforts to prevent the disclosure of this information. Rather than refusing to even consider these two cases and allowing the decisions of the D.C. and Second Circuit Courts to stand, the Court agreed to hear them, further delaying compliance with the subpoenas issued by a New York City Grand Jury and the U.S. House of Representatives. When the Court finally got around to issuing its opinion on the last day of its 2019-2020 term, it concocted two separate rationales for keeping the President’s financial information under wraps.
It concluded that the Manhattan Grand Jury could immediately receive the information knowing that all information supplied to a grand jury would remain secret until ultimately presented in the trial of a case; and to date no case has even been brought, much less scheduled for trial. With respect to the subpoena issued by the House of Representatives, the Court remanded the case to the D.C. District Court to make a finding regarding the House’s need for the information, a finding which could be and was appealed back up to the Supreme Court. This was a particularly egregious move as the Congress, and not the courts, is the final arbiter of what it needs to carry out its legislative duties. These tortured judicial maneuvers have caused the subpoenaed material to remain hidden from the public.
Another politically partisan stratagem concocted by the Chief Justice involved a recent challenge to Roe v. Wade, the Court’s landmark 1973 decision upholding a woman’s right to have an abortion. Specifically, the Court was being asked to uphold a Louisiana statute drafted in a way to eviscerate the protections provided by that decision. The Court’s decision was a spectacular display of judicial gymnastics. Breaking from his four Republican-appointed colleagues on the Court who voted to uphold the Louisiana statute, the Chief Justice wrote a concurring opinion siding with the four Democratic appointed Justices declaring the Louisiana statute “unconstitutional.” The Chief Justice explained that he was compelled by stare decisis (a judicial doctrine calling for adherence to prior Supreme Court decisions) to strike the Louisiana statute even though he personally had voted to uphold an identical Texas statute when it had come before the Court a year earlier when Justices appointed by Democratic presidents represented a majority on the Court. The remaining four Republican appointees on the Court obviously did not feel similarly compelled to honor the stare decisis doctrine when they voted to uphold the Louisiana statute. This decision is more fully described in “Roberts Rescues Roe in a Judicial Triple Play.
The Chief Justice has every reason to be concerned about the public’s perception of his Court. That, in large measure, explains why he has altered his current message. He now no longer seems to be trying to reassure the public of the Court’s non-partisan nature and has started to admonish the members of the federal judiciary to refrain from allowing their politics to infect their decisions. Judge O’Connor’s decision, however, would appear to indicate that the Chief Justice’s admonitions are too little and too late. Further evidence of the seeming futility of his current strategy was on display this past week when the Supreme Court heard oral arguments in two cases involving two other vaccine mandates promulgated by the Biden administration. During that hearing all six of the Court’s conservative justices voiced skepticism concerning the power of the federal government to issue vaccine mandates even though the Court’s only prior decision addressing the legality of a federal government vaccine mandate upheld the government’s action.