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MARCH 29, 2022

Meyerson on TAP

Alito, Gorsuch, and Thomas Declare They're Also Admirals

Injecting themselves into the military chain of command, they take
judicial activism to a new depth.

Next week-or if not then, sometime soon-Judge Ketanji Brown Jackson
appears certain to win Senate confirmation to a seat on the Supreme
Court. With the possible exceptions of Susan Collins, Lisa Murkowski,
and Mitt Romney, all of the Senate's 50 Republicans will vote against
her, at minimum citing, as they already have, that she's a "judicial
activist."

This hoary critique is among the most preposterous talking points in
American politics. From the right-wing justices who cut off the Florida
recount and handed the 2000 presidential election to George W. Bush, to
the right-wing justices who effectively nullified the Voting Rights Act
after Congress voted nearly unanimously to renew it, to the current crop
of right-wingers who appear bent on curtailing American women's
freedom to choose whether or not to have a child, the judicial activism
of the past several decades has come almost entirely from
Republican-appointed and Republican-confirmed justices.

Last Friday, the three most Trumpian justices set a new standard for
right-wing activism. The case

concerned whether the Navy could factor in its sailors' COVID
vaccination status in deciding whom it should deploy and, more
generally, whether its orders had to be obeyed. Thirty-five sailors,
including 26 Navy SEALs, had refused to obey the service's orders to
be vaccinated for COVID, and sued the Defense Department for its
position that it would factor their refusal into its deployment and
continued employment decisions.

The Defense Department was carrying out an order from President Biden
that all members of the military had to be vaccinated for COVID, save
only those whose medical conditions made that risky. To date, well over
90 percent of service members have received at least one injection.

The vaccine refuseniks were represented by attorneys from First Liberty,
who argued that their clients' objections were religious. As members
of the military are routinely required to get a host of vaccines, and in
the case of those who, like the SEALs, are frequently deployed overseas,
had already received nine separate vaccines without a peep of protest,
the idea that either the deity or the Bible instructs believers to get
those nine shots but not the one for COVID brings a level of biochemical
specificity to holy texts that no prophet or learned theologian had
previously detected.

Trumpian judges on lower courts, self-appointed theologians all,
actually upheld the SEALs' position, but when it reached the Supreme
Court last Friday, the Court struck those rulings down. In her brief,
Solicitor General Elizabeth Prelogar had called the lower-court
decisions an "extraordinary and unprecedented intrusion into core
military affairs," and Brett Kavanaugh, one of the six justices who
ruled for the Defense Department, apparently felt compelled to note that
"the President of the United States, not any federal judge, is the
Commander in Chief of the Armed Forces."

But three justices-Sam Alito, Neil Gorsuch, and Clarence
Thomas-dissented, effectively claiming that the courts can indeed
inject (no pun intended) themselves into the military chain of command
when it comes to the question of who can obey or disobey orders and who
is deemed safe to deploy and who is not. In their dissent, Alito and
Gorsuch hailed the litigants for having "volunteered to undertake
demanding and hazardous duties," which no one was contesting, and failed
to consider whether susceptibility to a potentially fatal virus, not to
mention the SEALs' insistence on obeying only those orders with which
they "religiously" (that is, politically) agreed, could compel their
commanders not to deploy or continue to employ them.

Baby, if you want to see some judicial activism, keep an eye on the
aspiring military pooh-bahs who sit on our Supreme Court.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter

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