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When the Supreme Court punted on what Justice Alito called the most important First Amendment case ever, I called them out for supreme cowardice. It was a swing and a miss at a critical time when our Republic could use a couple of out-of-the-park home runs.
On the other hand, I must commend this court for several key decisions that defend the Constitution and push back against the encroachment on freedoms the federal government has been wont to do.
The court showed signs of its Constitutional heartbeat with the overturning of Roe and several other rulings that were strong on religious liberty. Roe was a convoluted Gordian Knot of legal theories that never should have passed muster in the first place. Returning the abortion issue to the states has allowed the people to have more say in a controversial life-changing part of their lives.
Not every decision was good. The appeals regarding vaccine mandate abuses being rejected, to mention one. But we must acknowledge sanity whenever we see it. The latest batch of cases have rightfully earned praise. With cases involving the SEC, Chevron deference, Fischer, EPA, and the Sackler/Purdue oxycontin travesty, the Supremes have finally settled into their proper role of defending the Constitution and pushing back on the overreach of government power that has expanded unchecked for too long. The left’s outrage is revealing.
The SEC case seemed a simple case about an individual’s right to a jury trial, but by ruling for the defendant, the court has exposed a little-talked-about situation known as ALJs. An administrative law judge is a judge posted inside an executive branch agency to judge cases. This effectively enables a federal agency to be prosecutor, judge, and jury, a clear violation of the separation of powers. This ruling may roll back that power.
In Fischer, the Supreme Court ruled that the DOJ had misapplied a law in prosecuting J6ers resulting in over-punishment in some cases. More importantly, the ruling struck right at the heart of the DOJ overreach against J6 defendants and Trump in cases that, if upheld, would have threatened several First Amendment rights including speech, assembly, and petitioning government.
In the EPA case, the Supreme Court finally ended one of the most brazen examples of bureaucratic tyranny in modern times. Congress enacted the Clean Water Act in 1972 to prevent pollution of the nation’s waterways. A ruling applied it to adjacent wetlands. Since 1972, federal agencies have changed the definition of wetlands jurisdiction 13 times, always expanding EPA power. Because the Clean Water Act imposes strict criminal liability, farmers plowing their own fields can be treated like midnight dumpers heaving barrels of dioxin into a river. Essentially, the EPA was creating more crimes. The Sackett decision is a landmark in restoring Americans’ due process and property rights and curbing agencies from arbitrarily creating crime.
All these cases returned some of the government power to the people or at least put up some resistance to the steady onslaught against freedoms. But the case with the widest reach was on something called Chevron deference. A ruling decades ago gave broad power to federal agencies. In practice, it becomes a license for Congress to write vague laws that delegate legislative power to administrative agencies. The agencies gobbled up the power. Over the last 40 years the Federal Register of regulations has grown by tens of thousands of pages. This Supreme Court ruling ended the practice for good.
Naturally, the left has lost their minds. No leftist wants a Constitution. Constitutional governments don’t lend themselves easily to tyranny. The rule of law is diametrically opposed to totalitarian power. The left’s current attempt to slander what they call right-wing justices and the push to pack the court and impose term limits and other constraints will, if successful, destroy the court. There is no left or right when it comes to the Supreme Court, only Constitutional or not. It is tyranny versus freedom. This makes sense since the Supreme Court’s primary role is to uphold the Constitution and defend the rights of the people that it represents. As more Americans have woken up to the left’s drive toward tyranny, the left has lost whatever patience it had. Doxing the Justices, the illegal protests at their homes, and the assassination attempt on Justice Kavanaugh were not enough.
In the days of FDR, when the Supreme Court refused to allow his blatant government overreach, he threatened to expand and pack the court to get his way. After winning reelection in 1936, Roosevelt wanted more power. As the historian William Leuchtenburg put it, the court-packing scheme “bore the mark of a sovereign who after suffering many provocations had just received a new confirmation of power.” But even the sovereign doesn't always get what he wants. The radical court-packing plan had fierce opposition from FDR's own party, particularly from Democrat Senator Burton K. Wheeler, a fiery progressive who declared, “Every despot has usurped the power of the legislative and judicial branches in the name of the necessity for haste to promote the general welfare of the masses — and then proceeded to reduce them to servitude.” The Senate soundly rejected Roosevelt's court-packing plan by a vote of 70-20.
But in the end Roosevelt didn’t have to pack the court, though the attempt is widely credited with influencing swing-vote Justice Owen Roberts. A switch in time saved nine, as the saying went. The threats and pressures broke Roberts who switched his vote and allowed FDR to overrun the Constitution, pass his infamous New Deal, and send the country on the big government path it has been on ever since. The idea of court-packing slipped into a deep sleep until now.
Ironically, we have a Justice named Roberts today who flip-flops more than a caught fish. But so far he has been steadfast on most of these recent cases. With the current push for massive Supreme Court reform, no doubt the left is hoping that history will repeat itself. A look at Brazil and Venezuela shows us how dangerous a bad court can become. Today we must vociferously validate the constitutional Justices for doing their job and hope that they will continue. No less than our Republic hangs in the balance.
And that’s the simple truth.
