Joe Mathews: Supreme Court lays bare its California bias

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California’s Congressional representatives should demand that the replacement for Supreme Court Justice Stephen Breyer is from the Golden State, says Joe Mathews. Photo by Shutterstock.

The U.S. Supreme Court caused a stir this week when it agreed to weigh in on a case that could pose a direct challenge to Roe vs. Wade and access to abortion. 

But some members of the court are already in hot water with commentator Joe Mathews over a First Amendment case they recently heard out of California. It involves Americans for Prosperity Foundation, a conservative group funded by the Koch Brothers. The foundation is suing California over the state’s rule, requiring nonprofits to disclose the names of their major donors.

Mathews says it’s not so much the case itself, but the way the justices are handling it that has him steamed. 

Read Mathews’ column below:

Maybe the U.S. Supreme Court should recuse itself from California cases. Because the current court isn’t bothering to disguise its anti-California biases anymore.

That was the unmistakable impression from recent oral arguments on a challenge by conservative foundations to a California rule requiring non-profits to disclose their major donors.

For the record, it’s perfectly understandable in these polarized times for Republican-appointed judges to have doubts about the laws produced by California Democrats and their state’s confounding governing system. But the ways the justices treated California raise real questions about whether this court gives our state a fair shake. 

It wasn’t just the way the justices seemed to assume bad faith on California’s part. It wasn’t only the sarcasm in Justice Samuel Alito’s voice as he repeated California’s claims in the case. Nor was it Justice Brett Kavanaugh’s suggestion that California’s rule was suspect because 46 other states don’t have similar rules.

It was the decision by Barrett to participate in the case at all. She should have recused herself, because the foundation suing California — the Koch-sponsored Americans For Prosperity (AFP) — donated $1 million to the effort to rush her onto the court last year. Kavanaugh and Justice Neil Gorsuch, whose own confirmations were backed by AFP, should have recused themselves, too. Instead, all three indicated in arguments that they would vote against California and for their own donor. 

Perhaps having anti-California justices doesn’t sound so bad. After all, anti-California bias is a socially acceptable prejudice in the United States, and our state has earned our national reputation for nuttiness. But Californians shouldn’t have to accept increasingly open bias by the highest court in the land. 

Such bias has become common since 2015, when Justice Antonin Scalia wrote that “California does not count” as a real American or Western place in a dissent against a historic decision guaranteeing marriage equality. Last year, Alito gave an odious, partisan speech criticizing California’s pandemic restrictions — even as our deaths rose. The justice, who defended Trump’s Muslim ban, also ludicrously claimed that our state — a leader in protecting new forms of religion practice — was biased against religious liberty. Alito made these public statements even as the court considered California cases on the pandemic rules, but did not disqualify himself from hearing them.

Instead, once Barrett joined the court last fall, the court began overturning California’s pandemic restrictions as infringements on religious freedom because they apply to churches. One Friday night in February, the Supreme Court justices issued an emergency order that froze California’s pandemic restrictions on indoor religious services. Three weeks later, the Court struck down a similar Santa Clara County restriction. The orders were unsigned, and came without a hearing or even an opinion explaining the decision. 

The only thing worse than the court’s anti-California rulings without opinions are its rulings with opinions. In a case involving pandemic restrictions on a church in my hometown of Pasadena (which still won’t hold the Rose Parade on a Sunday), Gorsuch appealed to hackneyed stereotypes of Californians as godless: “If Hollywood may host a studio audience or film a singing competition while not a single soul may enter California's churches, synagogues, and mosques, something has gone seriously awry.” In his performative piety, Gorsuch failed to note that Hollywood productions had complied with COVID safety measures, while the church was defying them.

Barrett, in the same case, doubled down on Gorsuch’s appeal to anti-California prejudice: "If a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral.” That’s pure hypocrisy from a justice whose own rushed appointed was celebrated with a White House super-spreader event.

While it’s typically not wise to pick fights with judges, California ought to make an exception for this dishonorable Supreme Court. California politicians should hold Congressional hearings on the behavior and conflicts of the justices. They also should back reforms of the court including adding more justices.

Those additional justices should be Californians. For starters, our Congressional representatives should demand that a Californian replace Stephen Breyer, the court’s only Californian, if retires this spring. If nine judges are going to govern our country, at least one should be from the state that 1-in-8 Americans call home.

Joe Mathews writes the Connecting California column for Zócalo Public Square.



Darrell Satzman