by Ted Noel MD, America Outloud:
Chief Justice Roberts famously said that we don’t have Republican or Democrat judges. This was an obvious attempt to defuse leftist arguments around the Dobbs abortion decision that the Supreme Court is illegitimate and ought to be changed/abolished or otherwise transformed into a rubber stamp for leftist legal positions. Unfortunately for the Chief, he’s simply wrong and should know better.
“Judge shopping” is a fine art in legal circles. If you want a conservative judge, North Texas is fertile ground, and you can file in a single-judge district. That way, you know exactly which judge you’ll get. If you want Leftist judges who will certify class action torts easily, Austin or some remote parts of Alabama pop up. Of course, if you really want federal courts that will sign off on gun bans, you’ll file in the 9th (CA, etc), 2nd (NY, CT, VT), 3rd (DE, NJ, PA), or 7th (Il, WI, IN) circuits. Those areas are reliably anti-Second Amendment jurisdictions. Roberts knew that because SCOTUS told courts in those places to straighten up and fly right with the Bruen decision in 2022. But only the 9th seems to have listened.
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In this week’s hearing on the federal government’s censorship efforts via GooFaTwit, newly minted Justice Jackson revealed her Leftist bona fides. She revealed that she was concerned that a proper view of the First Amendment would “hamstring the government.” OMG! That’s exactly what should happen. The Bill of Rights was written for the express purpose of protecting the citizen from government overreach. Any Justice who doesn’t understand that is ignorant of history and Supreme Court precedent. One case stands out.
In 1983, in the case of Minneapolis Star, the Court said, “Prior restraints, for instance, clearly strike to the core of the Framers’ concerns, leading this Court to treat them as particularly suspect.” Or we could look more recently. When Opulent Life Church sued the city of Holly Springs, Mississippi, in 2012, the 5th DCA declared that “Upon a showing that an “alleged” fundamental right is “either threatened or in fact being impaired,” a movant is substantially threatened with irreparable injury that “cannot be undone by monetary relief.”
Let’s look at that again. A prior restraint on the free exercise of a Constitutional right is an “irreparable harm. That’s the strongest “don’t ever do that” in law. And Justice Jackson seemed unaware of it. Of course, in the 2022 New York gun rights case Bruen (citing a 2008 DC gun rights case, Heller), the Supreme Court flat out said that when the Constitution protected an individual’s conduct – not the government’s conduct – that conduct is presumptively protected. Full stop. So, if I wanted to say that masks don’t work, it was wrong for the government to push YouTube to take down my video. If I wanted to point out that Ivermectin was effective against COVID, it was wrong for the government to push Facebook and Twitter to restrict my speech. My speech is supposed to be protected. The government is not allowed to take action to restrict my speech. Put bluntly, the only time my speech is not protected is when it is a direct cause of criminal action. And that’s rather difficult to prove.
We need not look any further. There are Democrat judges, and they are an existential threat to our freedoms. They have written decisions that immunize the government and penalize the people. To begin, they’ve made it very hard to enter the courtroom with their doctrine of “standing.” It requires a “concrete, particularized injury” to be a “controversy” that the Court will even hear. So, in a country of 300 million people (rounded down for simpler math), if the Feds spend $30 billion on various benefits for illegal aliens, that’s $100 of my tax money going for an unconstitutional purpose. (Don’t throw any rotten tomatoes here, I’m just illustrating.) The Supreme Court held that a $5 poll tax was an unconstitutional restriction on the right to vote, but now it seems that spending $100 of my taxes on an unconstitutional purpose is not? Why? I can’t show how MY $100 was the $100 that was spent. Maybe it went to the military. This effectively blocks the ordinary citizen from stopping the Feds from doing things the Constitution doesn’t allow them to do.
Or we could look at “Qualified Immunity.” This legal doctrine says that police ought to be given a little slack in enforcing the law because they are acting in a high-stress environment and can’t be expected to have time to deliberate before acting. But it now says that if there isn’t a case directly on point saying they can’t do it, QI becomes a “Get Out of Jail Free” card. That’s how police were excused for setting a suicidal man on fire, stealing $150,000, and many other crimes.
Perhaps the worst is Commerce Clause abuse. During the New Deal, SCOTUS decided Wickard v. Filburn. In it, an Ohio farmer was fined for producing more wheat than the Feds allowed. He answered that none of that wheat was ever sold since it was all used as cattle feed. SCOTUS declared that it could have an effect on interstate commerce, therefore he was subject to the limit, and had to pay the penalty. Since then, the list of enumerated powers in Article 1 §8 has become a nullity since Congress can claim the right to do literally anything under the Commerce and General Welfare clauses.
More recently, SCOTUS handed virtually unlimited power to Executive Branch agencies in Chevron v. Natural Resources Defense Council (1984). Basically, if an Executive Branch agency says that its interpretation of a statute gives it the right to do something, the Courts have to pretty much go along. Fortunately, SCOTUS heard Loper Bright Enterprises v. Raimondo this year, and we can hope for the doctrine of Chevron Deference to get reeled in.
The basic problem is that, as a rule, Democrat judges look at the policy implications of a case. They tailor their decisions based on their own policy preferences. All you have to do is to read the liberal dissents in Bruen to see how true this is. But the purpose of a judge is to rule on the law. Laws are created by legislatures. And while judges do, of necessity, create law by their interpretations, it is essential that they not veer into a legal ditch when they do so. Policy is the realm of the Congress, not the Judiciary.
Republican judges, again as a rule, tend toward a more conservative approach to law. SCOTUS’ Bruen decision made it explicitly clear that courts should look to the original meaning of the original statutory constructions. Certainly, the progress of time may make certain changes, such as print press becoming electronic and broadcast, but at the same time, the principle of the press hasn’t changed. SCOTUS declared this truth in Bruen, to the screams of liberals.
And here lies the greatest danger in the upcoming election. The evil that is manifest in Joe Biden and today’s Democrat Party cannot be overstated. It appears that they are trying to destroy America. There does not seem to be any rational basis for this action, and as Bruce Wayne’s butler Alfred notes, “Some men aren’t looking for anything logical, like money. They can’t be bought, bullied, reasoned, or negotiated with. Some men just want to watch the world burn.”
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