Expand and rebalance the federal judiciary, the Freedom From Religion Foundation is appealing to the U.S. Senate.
The Senate is holding a hearing tomorrow, Wednesday, Sept. 29, about the infamously anti-abortion Texas law, which the Supreme Court failed to enjoin, and the Supreme Court’s recent abuse of the shadow docket. Both are symptoms of a deeper sickness on this court, FFRF stresses. Without a true cure, these symptoms will recur and others will manifest.
“The deeper malady is a federal judiciary that has already been stacked with ideologues who were handpicked by shadowy interest groups for their extremist and Christian nationalist credentials, including their commitment to overturning Roe v. Wade,” FFRF Co-Presidents Dan Barker and Annie Laurie Gaylor write to Sens. Dick Durbin and Chuck Grassley, chair and ranking member, respectively, of the Senate Judiciary Committee.
President Trump’s appointments now make up one-third of the federal judiciary, including a third of the Supreme Court, FFRF underscores. Court expansion is the only way to correct the damage done to the Supreme Court after Sen. Mitch McConnell (then Senate majority leader) stole two seats. The courts are already “packed.”
Court expansion of the lower federal judiciary is objectively long overdue, given that Congress hasn’t expanded the courts of appeals since 1990, when 179 active judges served 250 million Americans. Today, with a population of 330 million Americans, there are still only 179 active judges serving on the appeals courts — and they are swamped.
The shadow docket in the previous presidential term began to look like collusion between Trump justices and the Trump administration, FFRF points out. In four years, President Trump’s administration made 41 requests of the shadow docket and prevailed in 28. In contrast, only eight requests were filed in the 16 previous years spanning the two terms of both George W. Bush and Barack Obama — and they only won four. The recent further abuse of the shadow docket during President Biden’s tenure has shown that five justices, including all of the Trump justices, have already made up their minds on many important issues.
The right-wing lurch of the Supreme Court must be corrected, FFRF emphasizes. Several strong bills have been introduced that would, together, expand the entire judiciary, including the Supreme Court, and would create ethical mandates for Supreme Court justices, which are currently sadly lacking, FFRF reminds the Judiciary Committee.
“Allowing a small group of hyperconservative extremists and theocrats to rewrite constitutional law jeopardizes the fundamental rights of every American,” FFRF’s letter concludes. “Court reform, expansion and rebalance is the way to restore public confidence in the judiciary, and to preserve myriad hard-fought human and civil rights.”
The testimony is being submitted on behalf of the Freedom From Religion Foundation (FFRF) and its 35,000 secular members. FFRF is a national nonprofit organization with members in all 50 states, Washington, D.C., and Puerto Rico. Its purposes are to protect the constitutional separation between state and church, and to educate the public about nontheism.
Abolish capital punishment, the Freedom From Religion Foundation and its allies are asking the U.S. Supreme Court.
The state/church watchdog’s friend-of-the-court brief submitted today in the Ramirez v. Collier case (which deals with religious access) argues that the death penalty is unjustified in a secular nation such as the United States, since it stems in part from biblical roots, and is unconstitutional under the First and Eighth Amendments.
Ramirez v. Collier has been in the news recently because of the Supreme Court’s seeming willingness to make a religious allowance for the death-row inmate.
“The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday night in Texas,” reports SCOTUSblog. “The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.”
FFRF’s brief asserts that the issue before the court is Kafkaesque because the law is quibbling over Ramirez’s constitutional rights moments before it takes them away forever. Also, if there is going to be an execution, FFRF maintains, any rule the court hands down should apply to the nonreligious.
“A state-sponsored execution violates the Eighth Amendment because it permanently destroys a person’s human dignity, and is thus cruel and unusual,” states the brief. “Further, the Damocles sword hanging over a person on death row is torturous, and death row tenure is so long that a death sentence in practice amounts to more than a decade of torture, which is itself cruel and unusual punishment in violation of the Eighth Amendment.”
The brief makes a number of cogently argued points.
First, it contends, the Supreme Court should hold that capital punishment is unconstitutional, since the current application of the death penalty as a punishment in America is fraught with peril — from its unreliability to its arbitrariness to its cruelty. Death sentences infamously fall disproportionately on prisoners of color. The Supreme Court rightly abolished the death penalty in 1972, but cavalierly reversed course just four years later.
And of all the ways a state could impermissibly interfere with someone’s free exercise of religion, killing them is certainly the worst way. This simple fact highlights a legal absurdity in the petition before the Supreme Court: Ramirez is asking it to recognize that Texas’ policy requiring him to die without physical contact violates his ability to freely exercise his religion, but even if the court vindicates Ramirez’s asserted right, it simultaneously allows that same right to be permanently obliterated by allowing his execution to go forward.
Second, FFRF asserts that the biblically based death penalty should be rejected once and for all. While the root of capital punishment may not be solely biblical, in the Western world the bible’s primitive “eye for an eye, life for a life” injunctions in both the Hebrew and New Testament bibles have been a major sourcebook for the death penalty. The Christian church, in particular, “has played a significant role in validating the state’s use of capital punishment,” as scholar Davison M. Douglas points out. These biblical justifications were also used by the colonists in the Americas.
Third, FFRF’s brief posits that if executions are allowed to take place, end-of-life accommodations must be equally available. A long string of unbroken precedent holds that neither may the government officially favor one religion over another nor may it favor religion over nonreligion. If the court chooses to allow state-sponsored killings to continue, it must ensure that end-of-life accommodations are made equally available to those of all religions and those with no religion at all.
It suffices to say, FFRF concludes, that the Supreme Court need not decide whether Texas’ policy of disallowing spoken prayer and physical contact inside the execution chamber is permissible, because it should conclude that the death penalty itself is unconstitutional.
“The United States’ use of punishment by death is a global embarrassment,” the brief convincingly states. “As our society moves toward an acknowledgment that punishment by death is no longer acceptable, this court should give effect to ‘the evolving standards of decency that mark the progress of a maturing society’ [to quote the Supreme Court’s language from a past ruling] and end capital punishment once and for all.”
The Freedom From Religion Foundation’s interest in this case arises from its position that capital punishment is an unconstitutional, inhumane imposition of a religiously based punishment. In modern times, freethinkers have been the first to speak out for the abolition of the death penalty. The overwhelming majority of FFRF’s membership opposes the death penalty, according to its 2020 survey. FFRF is headquartered in Wisconsin, which was the first state to abolish the death penalty permanently for all crimes (in 1853), and the second principality in the world, after Iceland, to abolish the death penalty.
FFRF Legal Director Rebecca Markert and FFRF Staff Attorney Ryan Jayne drafted the amicus brief for the organization. The American Humanist Association and American Atheists are the other groups that have joined in FFRF’s brief.
Photo via Shutterstock by Felipe Caparros