Denis Poroy/AP Photo
Navy SEAL trainees carry inflatable boats at the Naval Amphibious Base Coronado in Coronado, California.
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.
