Supreme Court 2023 term – a moderates’ term

Supreme Court 2023 term – a moderates’ term
By Terry A. Hurlbut
Last Monday (July 1) the Supreme Court of the United States wrapped up its 2023 Term. This is the first Term in recent memory that wrapped in July instead of June. The Three Bloc composition of the Court remains – a point many Court watchers consistently miss. But the Moderates did not steer a middle ground between Originalism and Liberalism (as the Liberal Bloc defines it). The primary moderation they accomplished lay in refusing any grand, sweeping change most of them feared would be “messy.” Instead they opted for more fundamental changes in the relationship between and among the three branches of government. Those who value freedom can do more than they’ve done – now – to secure their liberties.
The Supreme Court Blocs and their respective agendae
Again, the roster of the Originalist, Moderate, and Liberal Blocs of the court reads as follows:
• Originalists: Samuel A. Alito, Neil Gorsuch, and Clarence Thomas
• Moderates: John Roberts (the Chief), Amy Coney Barrett, and Brett Kavanaugh
• Liberals: Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor
The Originalists have set forth their agenda many times: to restore governance according to the Constitution as its words meant when those who wrote it, did the writing. (For Amendments, that means the original meaning of the text of each Amendment when its proponents wrote it.) If Clarence Thomas especially had his way, the Elastic Clause (Article I Section 8 Clause 18) would be far less “elastic.”
The Moderates want to preserve the procedures and prerogatives of themselves and their judicial colleagues. One can best understand the most striking case whose opinion they wrote – the Chevron Deference case – in that light. Forty years ago, the late Justice John Paul Stevens gave away the store to quasi-legislative and quasi-judicial executive agencies. (In fact the entire Court did; the decision was unanimous.) Chief Justice Roberts, with his fellow Moderates and the three Originalists to help him, took it back.
The Liberals still treat the Supreme Court as if it were a Court of equity, not of law. Their jurisprudence seeks results, and the results they seek are not friendly to liberty.
Given the Court’s composition, the Moderates ruled the day in nearly every case.
Decisions not so friendly to liberty
Of all the decisions the Court made, these two are the least friendly to human liberty:
• United States v. Rahimi, allowing the federal government to deprive a man of his liberty to keep and bear arms following the process of State law. The problem, as Clarence Thomas (alone among his colleagues) saw it, is that the State process was inexact. It did not rise to the level of “beyond a reasonable doubt” that constitutes due process of criminal law. Indeed the law involved was not even criminal, but civil. (Not that Zackey Rahimi was any paragon of social virtue. He fired on a defenseless woman in public, and never denied it. Nevertheless, Thomas no doubt feels that the proper remedy is to render the defenseless capable of their own defense. Equally likely, he finds the thinking of his colleagues that the law can adequately defend the defenseless by order of a court, magical, not realistic.)
• Murthy v. Missouri, the Great State Actor Censorship Case. The federal government established liaisons with all social media platforms – except one, who brazenly refused. The Court held that users of those platforms have no standing to challenge moderational decisions. Their recourse, then, is to decamp from those platforms and sign up with Gab, the refusenik platform. Or with X, a platform that was a willing participant – until Elon Musk bought the company.
Decisions less friendly to life
Two abortion-related cases found their way to the Supreme Court, one involving a State’s prerogative to forbid abortion. In FDA v. Alliance for Hippocratic Medicine, a unanimous Court found that doctors who don’t like to stand by and watch women take a combination (or a sequence) of drugs that could bring harm upon themselves, have to “grin and bear it.” No one asks any of these doctors to prescribe that kind of medicine. Therefore they lose nothing if some other doctor does – or if a woman takes the sequence without a prescription. (Tellingly, at least one pro-abortion politician warned that the Court, in finding those doctors lacked standing, did not definitively rule against the distribution of the drug involved – mifepristone, once known as Roussel-UCLAF Lot 486.)
In Moyle v. United States and Idaho v. United States, the Court dismissed a writ of review as improperly granted. That decision pleased no one, least of all Ketanji Brown Jackson. She wanted a ruling that no State shall forbid abortion at any time – and didn’t get it. What happens next is that the case moves through the Court of Appeals for the Ninth Circuit. The Moderates wanted every procedural element fully satisfied before they proceeded. They found their intervention “messy,” therefore not to their liking.
The Supreme Court does strike some blows for liberty
But no one can doubt that this Supreme Court struck several blows against some immoderate actions of lower courts and federal and State bureaucrats. In National Rifle Association v. Vullo, the Court held that New York’s Banking and Insurance Commissioner could not on her own tell banks and insurers to stop doing business with gun owners or sellers. Believe it or not, even the Liberals could not stomach such behavior. Justice Sonia Sotomayor donned her adult clothes and wrote a no-mistake opinion for a unanimous Court. The only remaining question was whether the insurance products the NRA was offering, were legal or illegal.
In Garland v. Cargill, the Court held that “bump stocks” (spring-loaded stocks that allow rapid fire even from a semi-automatic gun) did not qualify as “machine guns,” and the Bureau of Alcohol, Tobacco, Firearms and Explosives couldn’t make them so qualify on their say-so alone. This decision was as much an anti-Chevron ruling as a pro-Second Amendment ruling.
Two weeks later, in Loper Bright Enterprises v. Raimondo, the Court put paid to “Chevron deference.” Actually, the Court could have decided the original case (Chevron v. NRDC) more narrowly than it did, forty years ago. At issue then was a rule that a “stationary source” of pollution covered an entire compound, not merely one smokestack. A common-sense ruling – but the Supreme Court took all discretion away from its own branch of government! Mercifully, the Roberts court took that discretion back.
Cases involving Donald Trump and his supporters
But the cases involving Donald Trump and his supporters created the greatest sensations, and provoked the most overwrought commentaries. This applies equally to Supreme Court dissents as to commentaries by legacy media personalities.
Fischer v. United States created the greatest confusion for Court watchers. Federal authorities have charged several “January 6 participants” with obstructing an official proceeding. But they charged them under a Sarbanes-Oxley provision having more to do with destruction of financial records than anything else. The Supreme Court held, 6-3, that these were not proper charges. Now for the confusing part: Justice Amy Coney Barrett dissented, while Justice Ketanji Brown Jackson concurred! Not that their votes would have made any difference – for Chief Justice Roberts and Justice Kavanaugh sided with the Originalists.
But Trump v. United States created a stir that is still going on. The Court held, 6-3, that a President does enjoy immunity against criminal prosecution for certain acts in office. This Presidential immunity is absolute for his Constitutional duty and provisional regarding his acts under any statute. Justice Sotomayor dived off the deep end, suggesting that a President could order a political assassination. Former Special Forces personnel have definitely said: NO! The Court did not say that! Nor would any of them obey such an order, holding it to be unlawful.
Moving forward
The Supreme Court has left the country freer, on balance, than it was at the beginning of this Term. Their overruling of “Chevron deference” is far more important than many people realize. The effects of that ruling will “ripple through” the rulemaking processes of every regulatory agency. And the most dangerous agency whose wings the Court clipped, is the Bureau of Alcohol, Tobacco, Firearms and Explosives. Garland v. Cargill was a specific blow against that agency. Loper Bright Enterprises v. Raimondo set a broader principle that applies to all such agencies.
Concerning censorship: if the users lack standing, the platforms themselves still have it. Andrew Torba, founder of Gab, and Elon Musk, who bought Twitter and renamed it X, proved one thing others miss. Namely that the federal government is a paper tiger. They couldn’t force platforms to impose censorship unless the platforms willingly, even gladly, took their orders. Andrew Torba refused, built his own infrastructure, and today laughs at them. Elon Musk bought an existing company, fired almost all collaborators, and slowly introduced freedom of speech to his customers.
Concerning abortion: time, and the very practices of abortion advocates themselves, will give victory to the pro-life side. As one side destroys its own children, the other will “be fruitful and multiply.” Guess which side will outvote the other in a generation or two.
Unless, that is, the Last War, and the Second Coming of Christ, intervene.
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