Shapiro raises doubts about Kavanaugh and Barrett living up to conservatives’ high hopes for them

Author and conservative pundit Ben Shapiro is voicing his doubts over the lackluster performance of Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett after the end of what he calls a “markedly unambitious” term.

“So far, we have seen little from either Barrett or Kavanaugh to justify conservatives’ high hopes for them,” Shapiro stated in an interview with Fox News, referring to two of former President Donald Trump’s appointees.

“To be sure, they haven’t engaged in David Souter-type liberal rulings or Anthony Kennedy-style vacillation. But they have been markedly unambitious in their judicial approaches, most obviously in Fulton, which should have presented a clear opportunity to overrule Employment Division v. Smith, and in their unwillingness to accept the Barronelle Stutzman case,” he stated in reference to two high-profile cases that went before the court recently.

Both Fulton v. City of Philadelphia and Ingersoll & Freed v. Arlene’s Flowers Inc. dealt with religious freedom under the First Amendment and delivering services to same-sex couples. Many are criticizing the justices for not upholding conservative principles in those cases. Fellow Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are also reportedly criticizing Kavanaugh and Barrett for their weak rulings.

Fulton was only a partial victory for conservatives and certainly not what they had expected from a conservative-leaning court. It was anticipated that the precedent set by Justice Antonin Scalia in Employment Division v. Smith would be overturned. That particular case contended that neutral laws with general applicability didn’t violate the First Amendment’s free exercise clause.

Chief Justice John Roberts threw a wrench into the outcome of Fulton. He was joined by Kavanaugh and Barrett and others in a narrower decision. In a separate opinion, Barrett criticized Smith but worried about replacing it with something else.

“We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes,” she stated. Kavanaugh and Justice Stephen Breyer concurred.

Gorsuch’s opinion accused the majority of “dodging the question” of Smith. “These cases will keep coming until the court musters the fortitude to supply an answer. Respectfully, it should have done so today.” Both Clarence Thomas and Samuel Alito concurred.

In another less-than-stellar ruling. Kavanaugh and Barrett gave a tepid ruling for a church that was seeking to block California’s coronavirus-related restrictions. Gorsuch and Thomas would have granted the full injunction that was requested. But Kavanaugh and Barrett posited that the church failed to show why the court should block a ban on chanting or singing. That ruling was perceived as opposing people of faith.

While many conservatives had initially believed that the Supreme Court was now leaning to the right, it seems to be more of a three-way split these days.

“The cases mentioned in the Newsweek piece provide early evidence that at best, Barrett and Kavanaugh are incrementalists rather than change agents,” Shapiro noted. “Conservatives can only hope that that assessment turns out to be incorrect.” Shapiro was referring to an article in Newsweek where law professor Josh Blackman said that opinions by Kavanaugh and Barrett lacked “fortitude.” Gorsuch used that wording when arguing the court should have gone further in the Fulton case.

Many Republicans had hoped a conservative majority on the court would get rid of the landmark abortion case Roe vs. Wade once and for all. Those hopes are fading now.

Live Action’s Lila Rose tweeted: “Goodbye and good riddance, Roe v Wade,” adding “It’s a matter of time. Roe v Wade is a nonsensical decision with murky legal precedent that is constantly shifting because it has no constitutional basis.”

More and more it appears that Roberts, Kavanaugh, and Barrett will sit in the middle of the political whirlwind that is the Supreme Court and cannot be counted on to rule as originalists or even really as conservatives. Shapiro is warning that the high hopes of Republicans may be dashed on the legislative rocks when it comes to the Supreme Court.

Former President Trump has also expressed he is “very disappointed” by a number of rulings by Kavanaugh and Barrett, especially when it comes to Obamacare.


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