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Supreme Court 2022 Term in Review
By Terry A. Hurlbut
The United States Supreme Court closed out its 2022 Term with its second most momentous ruling, among several. On the same day, slip opinions in two separate cases revealed a deep division in the Court. So deep does this division run that Court etiquette, usually impeccable (at least in public), has suffered. Worse yet, the Court has come under the most serious institutional attack since Franklin D. Roosevelt tried to expand it.
To say that “elections have consequences” is a facile explanation. In a republic, legislators, executives, and judges ought to understand that some things simply must not change if the republic is to retain its essential character. Sadly, too many of our country’s leaders have lost sight of that fact. This places on the people the burden to set things right if they expect the good the Court has done, to continue.
The Supreme Court and its three blocs
First, the Supreme Court has now organized itself into three distinct blocs of three Justices each. In most cases, this doesn’t matter – so far. All Justices recognize certain procedural matters so basic they can all agree on how to resolve them. But on matters of what kind of country each Justice wants America to be (or become), it matters a lot.
Clarence Thomas leads the Originalist Bloc – or the “Ultra-conservative Bloc,” or, some might say, the “Reactionary Bloc.” At least, that’s what CNN’s Van Jones might call it, if his rant over three of the last four opinions is any indicator.
https://www.youtube.com/watch?v=_xODwQBT2Z8
This is a tragedy, if you care about inclusion and equal opportunity and care about folks who don't have much, and trying to make it today, it is a tragedy. It is a tragedy that is a result of a strategy, and this is what we forget. This is a deliberate effort on the part of conservatives to hijack the courts and use them to do what is happening today. The Federalist Society was organizing on the campuses, getting the law students together in the '80s and the '90s. Mitch McConnell focused like a laser on stacking the courts and blocking Obama, and you have three Trump appointees, three, remaking America as they will.
And so forth and so on. No, Mr. Jones. The Originalists want the country to start obeying the Constitution as written and according to its original meaning. If that man went to law school, then law school failed him – and failed many more besides.
Samuel A. Alito and Neil Gorsuch round out the Originalist Bloc. We saw all three in action last term, and again this time, working tirelessly to check the power of government. And also to correct serious errors in the jurisprudence of the Supreme Court going back to Earl Warren.
Next comes the Moderate Conservative Bloc, of Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. Any doubt on how the Court will rule, depends on these three. Wild theories with inadequate defense will not impress them. As Rep. Timothy K. Moore (R-Cleveland Co., N.C.) found out the hard way.
The Liberal Bloc
And so we come to the Liberal Bloc of the Supreme Court. Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor form this bloc. Dissent after dissent from them, this term and (except for Jackson) the last, shows what’s wrong with them. They consistently treat the Supreme Court as a court of equity, not law. And their notions of equity should make any defender of a Republic shudder.
Justice Jackson did not sit on the Court last Term; she replaces retired Justice Stephen Breyer. Her jurisprudence is like his, but with a vicious twist. Justice Breyer, at least, tried gentle persuasion. If any of the Liberals could sway any of the Moderate Conservatives, he could, and often did. Justice Jackson apparently does not and cannot. So when Adam Schiff complains about a 6-3 Supreme Court, he should blame Jackson, and Biden for putting her there. He literally has none to blame but those two.
Justices Kagan and Sotomayor never seem to care about persuading anyone. In their world – as Clarence Thomas and Neil Gorsuch have both observed – systemic racism, sexism, “homophobia” and “transphobia” rules in America. In short, they are adherents and promoters of critical theory. Antonio Gramsci, who invented it, would be proud of these two – and of Jackson.
While Ruth Bader Ginsburg still lived, she and Breyer could keep Kagan and Sotomayor in line. Now that she’s dead, he’s retired, and Jackson is in place, all bets are off – and brazen rudeness is the order of the day.
The jurisprudence of the 2022 Term
Now we can understand the jurisprudence of the 2022 Term. In most ways it continued that of the 2021 Term. The Originalists succeeded in correcting what they plainly see are glaring errors in Supreme Court jurisprudence of the last century. CNAV understands the Students for Fair Admissions decision in that light. John Roberts of the Moderate Conservatives wrote the decision, and that reflects the seriousness of the error. Not only did the Originalists persuade the Moderate Conservatives that an error existed, but they also impressed them enough for their leader to want to take the lead in correcting it.
Not that Roberts said the Court had erred in 1978 (Regents v. Bakke) or 2003 (Grutter v. Bollinger). Instead he seemed to say that the Court, against its better judgment, gave the Gramscians a chance to prove their thesis and their good faith. The Gramscians failed on both counts, so Robert said, “No more!”
On the other hand, Timothy Moore blew his chance to promote the “Independent Legislature Theory” of Congressional redistricting, Electoral College appointment, and Federal elections procedures. Like a careless quarterback, Moore threw a “Hail Mary pass” and had no receiver in place to take it. So John Roberts and his fellow Moderate Conservatives ruled his pass incomplete, and the Liberals won the day. The Originalists weren’t happy about it, but Roberts and company weren’t going to let the Originalists make the argument Timothy Moore and his lawyer failed to make.
Other Originalist victories at the Supreme Court
In the last Supreme Court decision of the year, 303 Creative v. Elenis, the Originalists won another victory. The intemperate reaction to it, both inside and outside the Court, shows how far the American bar has strayed from a proper understanding of the Constitution. This is even truer of this decision than of the SFFA decision, if one can imagine that. In SFFA (or Harvard and UNC), When Justice Jackson railed about “gulf-sized gaps” in the collective luck of different college applicant pools, that was bad enough. It represented more of her Liberal idea that the Supreme Court is and should be a court of Gramscian equity. But, though she advanced incompetent, irrelevant and immaterial theses, at least they had an element of truth behind them. In contrast, Sonia Sotomayor made multiple assertions that were simply untrue. Neil Gorsuch called her on it – itself an extraordinary act.
She also conflated letting a Christian speak as he pleased, with ending anti-religious discrimination. Clearly she, like the respondents she defended, thinks religious is a subset of nut.
Elena Kagan also broke Court etiquette in her dissent in the student loan case. Indeed her prose so outraged the Chief Justice that he wrote back that he hoped she didn’t mean it! “Disturbing feature,” “We do not mistake … for disparagement,” “harmful to this institution and our country” – if this is not a reprimand and an admonition, it comes close.
Examples of unanimous decisions
But at least two decisions that will have lasting national import, were unanimous! Sackett et ux. v. EPA et al. smacked down the Environmental Protection Agency even more thoroughly than did the West Virginia case last Term. To the obvious disappointment of the environmental lobby, a mud puddle on the opposite side of a road from a drainage ditch does not a wetland make. (And the environmentalists shamed themselves by treating a couple hoping to build a retirement home, as if they were a big-time, heartless, morally hazarded corporate polluter. Never mind that the ridiculous EPA determination was too much even for Justice Jackson to take.)
Later, the Court unanimously said a former postal worker deserves his day in court over the United States Postal Service facilitating Sunday delivery for a private firm. Justice Sotomayor offered a concurrence to say one should measure effects on other staff as a cost of business. (The theory: if one doesn’t work, everyone else must work that much harder.) But even she didn’t raise that concern to the level of a dissent. Some things, coming even from government agencies, are still too hard to swallow, it seems.
But the Moderate Conservatives didn’t give everything away to the Originalists. Besides Moore v. Harper, they also have kept the abortifacient mifepristone available – for now. They also “punted” on the place of Section 230 of the Communications Decency Act.
Did Donald Trump change the balance of the Court?
Rep. Alan Schiff (D-Calif.) and CNN contributor Van Jones certainly think so. But as someone has already pointed out to Schiff, that’s not necessarily the case. Donald Trump preserved an ideological balance that was already in place when he arrived. His appoints of Gorsuch (replacing the late Antonin Scalia) and Kavanaugh (replacing Anthony Kennedy) fall within that line. (Though if anything, Brett Kavanaugh has been a more consistent moderate conservative than Anthony Kennedy was.)
His appointment of Amy Coney Barrett to replace the late Ruth Bader Ginsburg did affect the balance of the Court. With Barrett’s appointment, the three-bloc structure took over at the Supreme Court. Moreover a Liberal vote disappeared, and a Moderate Conservative vote took its place. Barrett, Kavanaugh, and Roberts have steered the Court ever since. Any victories the Originalists have won, they have won with the Moderate Conservatives’ cooperation.
Nevertheless, without Trump, the balance of the Supreme Court would have turned liberal and stayed there. Imagine a Court with Justices Merrick Garland, Barack Obama, Ketanji Brown Jackson, and Bill Clinton appointed in that order. Considering who they would have replaced, we would have seen a 7-2 Liberal Court with Justices Alito and Thomas writing nothing but dissents. Not only would the Court have kept Roe, but it would also have kept separation of faith and state. It would also have kept affirmative action, and the compulsion of “woke” speech. The Court might even have permitted another Gun Control Act.
Reactions
Reactions to these decisions prove every point the Originalists and/or the Moderate Conservatives have made. For example, Justice Gorsuch (303 Creative) tripped up Justice Sotomayor on the question of what a public accommodation means. Imagine his reaction to this suggestion by former Biden field organizer Erica Marsh:
https://twitter.com/ericareport/status/1675176746348605440
She just called for credit card issuers to refuse her custom – totally. The shoe is squeezing the other foot; clearly someone wants the public accommodation principle for her friends, not her enemies.
Here she encourages the President to fly in the face of the Court’s decision in Biden v. Nebraska.
https://twitter.com/ericareport/status/1674881324610637824
Here is her answer to the Harvard/UNC case. (The site ReSeeIt has sprung up to capture embarrassing tweets whose authors delete them. Its displays are much easier to manage than Wayback Machine displays.) A Twitter user successfully embedded it:
https://twitter.com/DakotaSidwell/status/1675138788916355074
When she found out she couldn’t make her tweet “go away,” she had to apologize.
https://twitter.com/ericareport/status/1674933641955401733
A few users were not inclined to accept that:
https://twitter.com/amuse/status/1675117336016084995
https://twitter.com/AgentRayEpps/status/1675216181416919047
https://twitter.com/southoldny/status/1675287223913021440
One user tried to see justice in her original message – but another user pointed out how absurd that message was.
https://twitter.com/2020_matter/status/1675293028007784449
Van Jones’ reaction does not bear repeating.
Looking ahead
Next Term will see a few more cases along this line, including another case asking whether Congress can create a federal offense when a person, under a State court temporary restraining order arising out of a domestic violence allegation, still owns a gun and does not sell, surrender, or otherwise part with said gun(s).
But the Presidential primaries will play out in the background of the 2023 Term – and the Conventions will take place while the Court is in recess. The 2024 Term’s Argument Season will be in full swing during Early Voting and up to and through Election Day. We have seen how Presidents (and the Senate) can affect the balance of the Supreme Court. That we should even have to talk about such “balance” should shame us all. But talk about it we must – because if the Court goes as liberal as Hillary Clinton could have taken it, then the Republic is dead.
Link to:
The article:
https://cnav.news/2023/07/02/editorial/talk/supreme-court-2022-term-review/