a few things were obvious about Trump as a candidate and president.

First, he didn’t have strong political beliefs. Many, including one former writer here a RedState, used to get what seemed to be sexual gratification from calling Trump a “New York liberal.” But, as a salesman, he knew what was important to those who voted for them. To this day, I’m not terribly sure what Trump believes, but I’m also sure that it doesn’t matter.

Second, he didn’t hold Americans in “fly over country” in contempt. I think Trump connected with conservative Americans in a way that no candidate since Ronald Reagan has managed to do because he wasn’t laughing at us to his rich liberal buddies at cocktail parties.

Third, in the words of my Old Man, “ya dance with them what brung ya.” When Trump was sworn in, he had a choice to make. He could stay true to the people who voted for him or yield to the siren call of Washington’s social life. In a singular act of political courage, he chose loyalty to his supporters.

One of those signs of loyalty was Trump’s overt embrace of the Pro-Life Movement. I’m not sure that Trump had ever spent ten consecutive seconds thinking about the issue of abortion. From his life and lifestyle, I’d not be surprised to find that he didn’t have a personal problem with this horrific practice. Unlike President George W. Bush, whom I admired, Trump was not ashamed of us. President Trump became the first president to personally appear at the March for Life rally since its inception in 1974. Neither Reagan nor Bush, all of whom talked big talk about being pro-life, ever made an appearance, but a New York City playboy cared enough to show up. When it came time to appoint justices, Trump delivered three whose records indicated they were pro-life and conservative.

Unsurprisingly, people who made a career out of being “Never Trump” are trying to rewrite history to take credit for something that happened despite their best efforts. //

A pause here for a brief fact check. The famous lists of possible Supreme Court nominees were developed inside the Trump White House by a team led by Don McGahn. The Federalist Society executive vice president Leonard Leo was an adviser. The selections were not by any stretch of the imagination “delegated.” In fact, it was Conservative, Inc. insiders who howled as loudly as the Washington Post editorial board about how the proposed justices would scare moderate voters. //

Sure, George W. Bush gave us Samuel Alito. But, do you know who else he gave us? John Roberts. Roberts is the guy whose concurrence in Dobbs tells the majority that included all three Trump-appointed justices that they were completely wrong in their decision. In a weird way, we are lucky to have John Roberts. We were saved from much worse because Bush couldn’t find enough inbred senators willing to foist Harriet Miers off on us. I agree that Clarence Thomas is a treasure. But do you know who else George H. W. Bush put on the bench? David Souter. Souter wrote the opinion in Casey that sought to forever lock in abortion as a Constitutional right. He voted with the majority in the Lawrence vs. Texas decision that changed or placid “slouching towards Gomorrah” posture into the Usain Bolt-style sprint that put us on the glide path to codifying a cheap simulacrum of actual marriage as the law of the land. //

The Gospel Matthew (21:28-32) contains the Parable of the Two Sons. The story is that a father asks his two sons to go work in the vineyard. One tells his father “no,” but then relents and goes off to work. The other tells his father, “yes,’ and doesn’t go. The question is, who actually did their father’s will? I’m not trying to make a theological argument defending Trump; I am merely using this well-known (at least I hope) Bible reading as a point of departure for a comparison. Trump spent his entire life never giving much thought to governance. Yet once he was president, he governed more conservatively than any president in the past 20 years. Not only on Life but the economy, neutering Iran, the Abraham Accords, and, I’d contend, bullying the freeloaders in NATO into starting to meet their obligations. In essence, he said “no” at first but ended up doing the hard work in the vineyard.

On the other hand, we had “conservatives” who were elected, pledging to defend life. When it came down to nut-cutting time, they still agreed to fund Planned Parenthood, ignore the Pro-Life Movement outside of election year photo-ops, and appointed judges who, to this day, continue to support abortion and anything else the administrative state desires. They are the ones who said “yes,” and decided they liked being invited to the cool parties and maybe moving out of the conservative punditry ghetto more than fighting for causes. So who was actually the more conservative?

Donald Trump won in 2016. He won because he likes to win and because he knows if you aren’t a winner, you are the other thing…that would be a loser. //

There is a place inside the conservative tent for thinkers as well as for doers. What there isn’t a place for are people who fought tooth and nail to keep abortion legal by supporting Hillary Clinton…and Joe Biden…and then claim the Dobbs victory for themselves and their fellow travelers because they had wonderful thoughts and wrote erudite articles.

Even though Gorsuch refuses to say it, Lemon is effectively overruled. The Supreme Court has ordered lower courts to stop using it as the standard for deciding Establishment Clause cases. If you read the dissent by Sotomayor, had the Court followed Lemon and subsequent cases based on Lemon, this would have been a slam-dunk for the Bremerton School District. The rules have changed, and the nation should be grateful that the Supreme Court has put aside official hostility to religion and replaced it with a policy of neutrality.

After 49 years of legal arguments, protests and political battles over the composition of the Supreme Court, the court has finally overturned Roe v. Wade.

No matter how you feel about abortion, this should be welcomed as a healthy development for American democracy and for the rule of written law made by the people’s representatives. Roe was a legal mistake that played a large role in driving our national politics crazy. Now the democratic process gets to decide what happens to abortion. //

The Supreme Court’s job is to read the law, not write it. Nothing in the Constitution mentions abortion even indirectly, and nobody before the 1970s thought the Constitution made abortion legal. At the time, even pro-abortion legal scholars thought Roe was shoddy. Its trimester framework reads more like a piece of legislation than like judicial reasoning, yet it foreclosed the democratic process from the kinds of compromises and changes over time that usually go into popularly enacted laws. //

The undemocratic nature of Roe produced a backlash that left the pro-life movement in politics much stronger than it had been in 1973. It revolutionized how political conservatives thought about constitutional law. It mobilized opposing factions in national elections, polarized along religious and cultural lines. It turned Supreme Court nominations into a circus. It occasionally triggered violence.

One of the evils of the criminal justice system that we at RedState have editorialized against over the years is civil asset forfeiture. This Orwellian process involves law enforcement confiscating property they allege to be the product of a crime without the inconvenience of either specifying the crime, charging a criminal, or even showing that a crime happened. This is from Heritage Foundation’s Civil Asset Forfeiture: 7 Things You Should Know:

https://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know

https://dailycaller.com/2015/01/30/the-7-most-egregious-examples-of-civil-asset-forfeiture/

//

A trial court judge ordered the Land Rover returned as it was clearly bought with proceeds from a life insurance policy and it was excessive. The Indiana Supreme Court ruled that that silly old Eighth Amendment had never been incorporated, that is, made applicable to the states and because of that, the Indiana cops could do as they damned well pleased.

At the Supreme Court arguments, it was pretty clear that Indiana was on very unsteady ground with five justices very skeptical about the state’s arguments. No one knew just how skeptical the Supreme Court was until earlier this morning:

The Supreme Court ruled unanimously Wednesday that states may not impose excessive fines, extending a bedrock constitutional protection but potentially jeopardizing asset-forfeiture programs that help fund police operations with property seized from criminal suspects. //

The court also held that the Eighth Amendment did, indeed, apply to the states. This is the decision.

What the court ruled was that violating the Fifth Amendment is a constitutional violation that will get you into court with a “§1983” claim, but the Miranda warning is not the Fifth Amendment. Furthermore, two separate trial judges admitted Tekoh’s voluntary statement into evidence knowing there was no Miranda warning. That, right there, should tell you that this case is really about expanding the scope of §1983 for litigation and has nothing to do with the Fifth Amendment.

Miranda rests on a pragmatic judgment about what is needed to stop the violation at trial of the Fifth Amendment right against compelled self-incrimination. That prophylactic purpose is served by the suppression at trial of statements obtained in violation of Miranda and by the application of that decision in other recognized contexts. Allowingthe victim of a Miranda violation to sue a police officer for damages under §1983 would have little additional deterrent value, and permitting such claims would cause many problems.

So the courts reduced it to simplicity itself: Miranda became only required in situations of “custodial interrogation”. That meant the suspect had to PHYSICALLY be in custody when the interrogation occurred for the courts to feel the overwhelming presence of the state was inherently coercive. There could still be questions involved regarding whether or not a person was considered physically in custody, and to a great extent they relied on ‘reasonable man’…. i.e. would a reasonable man observing the circumstance objectively think the suspect was in custody? If not, police were free to ask anything they wanted-to. Spontaneous statements were also admissible.

Clearly ‘custody’ obtained if the officer said the magic words, “You’re under arrest”. It would also obtain if the officer physically restrained the person before asking questions, and it may even obtain if the person was in a police station when being questioned. For this reason, any time I questioned someone at the police station, I had them sign a document that said they were in the police station of their own volition and were free to leave at any time and say nothing to me at all. It also said if that situation changed, they would be further advised of their rights at the time it did. This is a common practice in police investigations and is known as a Behelor admonishment. //

The idea that police can be sued for failing to Mirandize when there is no requirement they do so is ridiculous. If you don’t want to have police be able to do their jobs… just defund them. We’ve all seen where that leads.

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” //

In his concurring opinion, Alito slammed dissenting Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor for bringing up irrelevant statistics to try and justify restricting Americans’ consitutional rights.

“Why, for example, does the dissent think it is relevant to recount the mass shootings that have
occurred in recent years?” Alito asked. “Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?”

Alito also questioned how the dissenting justices “account for the fact that one of the mass shootings near the top of its list took place in Buffalo?”

“The New York law at issue in this case obviously did not stop that perpetrator,” he noted. //

Alito also noted in his concurring opinion that “The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City.”

And since “ordinary citizens frequently use firearms to protect themselves from criminal attack,” they shouldn’t be stopped from carrying a gun for self defense in crime-ridden cities in states such as New York.

“Some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury,” Alito noted. “Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.”

Editor’s note: In these exclusive excerpts from the book “Created Equal: Clarence Thomas in His Own Words,” out Tuesday, author Michael Pack asks the Supreme Court justice about the influence of his maternal grandfather. Thomas was 2 when his father left the family.

The new book is a successor to the 2020 documentary about Thomas with the same title, which Pack produced and directed. Pack wrote the book with Mark Paoletta, a former official in both the Bush and Trump administrations who played a key role in the Senate’s confirmation of Thomas to the Supreme Court in 1991.

Michael Pack: In 1955, you moved to live with your grandparents in Savannah, Georgia. How and why did that happen? //

My grandfather said, “I will never tell you to do as I say. I will always tell you to do as I do.” Years went by and I thought about who would put that burden on themselves, because a kid sees all and a teenager sees and knows even more. And that’s the burden he put on himself.

I asked my brother when we were both in our 40s: “Did you ever think he was a hypocrite because of what he said, ‘Do as I do?’” My brother without hesitation said, “No.” Whatever mistakes he made, he admitted them, and he just said, “Follow me.”

He made us follow him. He wouldn’t let us play organized sports. He wouldn’t let us stray. He kept us close to him as though we were his apprentices in life, that we were adults in training. He was the one who was going to train us, so we were to follow him. Watch how he did it. “Watch how I live my life and you will learn.” //

On Saturdays, invariably, I was the one who went on the oil truck with him, and that was all day. When you rode with him, he was the professor and you were to be seen and not heard. You could not initiate a conversation unless you wanted to clarify an instruction he had given. You were constantly getting this one-way input. And you couldn’t get away from him because you always had to be around him.

In a win for religious freedom and education choice, the U.S. Supreme Court ruled on Tuesday that a Maine government program that only granted tuition aid to parents who sent their children to a pre-approved private school without any religious affiliation is unconstitutional.

In a 6-3 decision that reversed a lower court ruling, the Supreme Court found that the Maine Department of Education’s decision to exclude religious schools from the government’s tuition assistance program violates the Free Exercise Clause of the First Amendment.

Supreme Court nominee Ketanji Brown Jackson doled out a lenient sentence to a child rapist for violating probation — and he allegedly struck again during the time when prosecutors wanted him locked up, The Post has learned.

The Biden nominee’s handling of sex offender Leo Weekes’ case emerged in a tranche of court filings and transcripts sent to the Senate Judiciary Committee Friday — just days before the panel is set to vote on whether to report her nomination to the full Senate. //

During Jackson’s confirmation hearing, the Biden administration gave the Judiciary Committee information on seven cases in which she had sentenced defendants to terms below what prosecutors and probation officers had requested.

The Weekes case — which was revealed just days before the Senate is expected to confirm Jackson to the highest court in the land — was not among them.

“At [Jackson’s confirmation] hearing, senators rightly raised concerns about the consequences of light sentences for sex offenders,” the Republican Judiciary Committee aide said. “As this case sadly illustrates, those concerns aren’t theoretical.

“Had the judge imposed the sentence recommended by the government, this child rapist would have been behind bars when he sexually assaulted another family member. Judge Jackson’s personal policy preferences steered her judgement.”

“Judge Jackson is endorsed by the Fraternal Order of Police, the International Association of Chiefs of Police, over 60 sheriffs and police chiefs leading many of the largest and busiest departments in our nation, and 83 former state attorneys general from both parties – as well as a coalition of anti-sexual violence advocates and survivors,” a White House official told The Post Sunday evening. “She has answered the most questions for the record of any Supreme Court nominee in history and has provided thousands of pages of documents to the Committee, including about her decisions – all of which are public record.” //

Defenders of Jackson have argued her sentencing record is irrelevant, since criminal cases rarely come before the Supreme Court. Republicans and conservatives have countered by noting that such cases make up the bulk of Jackson’s record, since she has served just 10 months on the DC appeals court.

During her confirmation hearing, Jackson responded to criticism of her sentencing record by insisting that federal guidelines needed to be reformed by Congress, which did not sit well with Senate Majority Leader Mitch McConnell.

“It was not reassuring to hear Judge Jackson say that if senators want her to be tough on crime, we need to change the law, take away her discretion and force her to do it,” he said March 24 in announcing his opposition to her nomination.

“That response seems to confirm deeply held personal policy views seep into her jurisprudence, and that is exactly what the record suggests.”

In the 2020-2021 term, Thomas authored more concurrences and dissents than any other justice, including more solo concurrences and solo dissents.

As Nina Totenberg of NPR put it not too long ago, in a passage dripping with disapproval, “He is the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it’s unconstitutional to require campaign funders to disclose their identity; he’s the only justice who voted to strike down a key provision of the Voting Rights Act; and the only justice to say that the court should invalidate a wide range of laws regulating business conduct and working conditions.”

But we are supposed to believe that his unexplained sole dissent in the Trump records case must be corrupt.

A while ago, the respected Supreme Court watcher Tom Goldstein wrote that if “the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.”

If holding views about the 2020 election meant a justice couldn’t decide legal issues arising from it, then all nine would have to recuse themselves.

Roe should be overruled. Almost no one believes it was rightly decided. Instead, the parties defending the case rely almost entirely on stare decisis, the judicial doctrine holding that judicial constancy is better than judicial correctness.

Yet Roe and later abortion cases are not just wrong, but egregiously so. Roe has thwarted the democratic process and made blood sport of judicial confirmations. It has proven hopelessly unworkable. Fifty years of legal and factual development have further demonstrated how wrong Roe is. Stare decisis should be no barrier to overruling Roe. //

Rather than deferring to the “bank and capital” of prior judicial reasoning, Burke identified five criteria needed for precedent “to have the qualities fit to render them of full authority in law”: [1] numerous; [2] concurrent and not contradictory and mutually destructive; [3] made in good and constitutional times; [4] not made to serve an occasion; and [5] agreeable to the general tenor of legal principles. //

Roe flunks at least three of Burke’s five-part test. First, American abortion law is contradictory. Roe relied on a trimester framework. Casey overruled this framework (along with several other of the Supreme Court’s abortion cases) and substituted the novel undue burden standard. Then, the Supreme Court came to opposite results in two nearly identical partial-birth abortion cases. Today, the lower courts cannot agree on what the undue burden standard even is.

Second, Roe was not decided in “good and constitutional times.” For 50 years, the Supreme Court has flitted from one constitutional rationale to another, unable to find the right to an abortion anywhere in the Constitution. Justice Ruth Bader Ginsburg called the decision “difficult to justify” and Justice Elena Kagan describes such former judicial endeavors as “policy-oriented” with judges “pretending to be congressmen.”

Third, Roe is not “agreeable to the general tenor of legal principles,” but departs from those principles at every turn. It is flatly inconsistent with the Supreme Court’s substantive due process precedents. It arrogates the judicial over the legislative. And it makes a mess of every area of law it touches.

The Supreme Court has limited its ability to discover extra-constitutional rights since the days of Roe. For a liberty interest to be protected by the Fourteenth Amendment, it must be “deeply rooted” in our nation’s “history and tradition.” No such right to abortion exists.

this case might resurface in the future, as the Supreme Court appears to be set to refine how the Voting Rights Act can be used. In the past few years, the Supreme Court has transformed the Voting Rights Act from an un-Constitutional means of mass punishment and imposing collective guilt to something that is merely offensive to the Constitutional right of states to set “time, place, and manner” of elections and a tool for the left to interject chaos and ad hoc rules in defiance of state law. There is a very good chance that five justices will drag Chief Justice John Roberts to outlaw the use of race in setting voting district boundaries.

he sought to make the public case against the conservative doctrine of "originalism." He wrote two books arguing for a different interpretation of the Constitution and often debated conservative Justice Antonin Scalia in public. Scalia's often-repeated view was that the Constitution, as he put it, "is not living but dead," and it must be interpreted as the Founding Fathers would have. Breyer's view was that the founders understood perfectly well that nothing is static, citing for example, the Constitution's ban on cruel and unusual punishment.

"Flogging might have been fine in the 18th century," Breyer said in a 2010 interview with NPR. "That doesn't mean that it would be OK and not cruel and unusual punishment today."

What's more, he observed, even historians don't agree on what the founders meant at the time they wrote the Constitution.

"History is very often in these matters a blank slate or a confused slate, and if you want to govern the country by means of that history, then you better select nine historians and not nine judges to be on the court," Breyer told NPR. "And I'll tell you, those nine historians will very often disagree with each other."

The job of a Supreme Court justice, Breyer said, is to apply the Constitution's values to modern circumstances, using the tools of judging — precedent, text and the purpose of the constitutional provision at issue.

You can think of the Constitution as laying down certain frontiers or borders, he said. "And we're the border patrol."

"Life on the border is sometimes tough, and whether a particular matter — abortion or gerrymandering or school prayer — whether that's inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question," he said.

Yesterday, the US Supreme Court heard a case that could profoundly affect the future of education in the United States.

Maine has about 180,000 students enrolled in grades K-12 distributed over 260 school districts. Because of the low population density in some districts, high school students must either attend school in another district or go to private school. Maine has a tuition assistance program that subsidizes tuition for students living in a school district that does not operate a secondary school to assist in this.

Until 1980, the student could use that assistance to attend any school.

the state barred sectarian options after the Maine Attorney General, in 1980, opined that including them as a choice in the program violated the federal Establishment Clause. Me. Op. Att’y Gen. No. 80-2 (1980) (J.A. 35-68). The legislature codified this bar in a statute providing that a student’s chosen school must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” 1981 Me. Laws 2177 (codified at Me. Stat. tit. 20-A, § 2951(2)).

Eventually, some parents sued, and the case made its way to the Supreme Court as Carson v. Makin. The parents claim that instead of bringing Maine into compliance with the anti-establishment clause of the First Amendment, it actually goes the other way and violates the First Amendment’s right to free exercise of religion.

Mississippi Abortion Case – Roe v. Wade’s Flight 93 Oral Argument For Sotomayor, Breyer, Kagan

Sotomayor seemed desperate: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” //

Three questions were presented in the Petition for a Writ of Certriorari, but the court granted review only on the first question:

1. Whether all pre-viability prohibitions on elective abortions are unconstitutional.

2. Whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens.

3. Whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.

That question, particularly to the exclusion of the others, seemed to be a signal that Roe v. Wade, which rested on viability, was on the table: //

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

The problem, of course, is that Roe v. Wade always was an exercise of political compromise, a compromise that never had clear popular support.

And the “stench” of politics has been injected into the system by those who support Roe v. Wade, starting with the disgusting treatment of Republican nominees from Robert Bork to Brett Kavanaugh. Every time a Republican makes a Supreme Court nomination, Democrats demand to know the nominee’s position on Roe v. Wade, it’s the central issue during hearings, media coverage, and protests.

The contrived and partisan battles that transpire in the Judiciary Committee do little to inform us as to what type of justice the nominee to the bench might be and instead serve as grotesque works of performance art for the individual senators who are merely auditioning for their eventual presidential campaign.

Hearing the nine justices actually quizzing the attorneys charged with arguing the Dobbs v. Jackson Women's Health Organization enlightened us profoundly on their intellect, empathy, and abilities to carry out the critical job they've been given for the rest of their lives.

In some cases, the level of banal and insulting queries mixed with political pontifications left quite a bit to be desired (looking at you, wise Latina). However, some of the justices rose to the occasion of the historic day this may very well turn out to be.

Toward the very end of the arguments, Justice Brett Kavanaugh succinctly articulated exactly what today's discussion is really all about:

SCOTUSblog
@SCOTUSblog
·
Dec 1, 2021
Replying to @SCOTUSblog
Kavanaugh presses Prelogar about the argument that the Roe/Casey framework accommodates both the interests of pregnant people and the interests in protecting fetal life. Kavanaugh is openly skeptical that it's possible to balance both interests.

Kavanaugh: “You can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time. And that’s why this is so challenging.” //

Hugh Hewitt
@hughhewitt
Justice Kavanaugh (doing great work for public and media here) reviews the interests of the fetal life. “You have to pick. one interest has to prevail over the other at a point in time. And the question becomes: What does the Constitution say about that. Why should Ct decide?” 👏
11:49 AM · Dec 1, 2021 //

There's no way to know how the Court will decide, and we will probably have to wait six excruciating months to learn of the decision. What we do know is this all boils down to the fundamental conundrum Kavanaugh articulated:

You have to pick one interest over the other; they can't both prevail. So... what does the Constitution say?

If they truly rule based on that simple question, they must come down on the side of life.

The case comes from New York and is called New York State Rifle & Pistol Association v. Bruen. This is a thumbnail sketch of the issue. For 108 years, the state of New York has severely curtailed the ability of ordinary citizens to carry concealed weapons outside their homes. New York follows what is called a “may issue” standard for obtaining a license to carry your weapon. What that means is that to carry a firearm outside your home, you must convince some state apparatchik that you have a “proper cause” to do so. //

The main arguments of the left seemed to revolve around the fear that New York was much more violent than the 41 “shall issue” states. //

Chief Justice John G. Roberts Jr. pointed out that constitutional rights do not have to be justified, such as the Second Amendment right to bear arms. “The Constitution gives you that right,” Roberts said. “And if someone’s going to take it away from you, they have to justify it.” //

Roberts responded: “I’m not sure that’s right. I mean, regardless of what the right is, it would be surprising to have it depend upon a permit system. You can say that the right is limited in the particular way, just as First Amendment rights are limited. But the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”

For the first time since Thomas Jefferson, Speaker Nancy Pelosi invited nonsensical and irrelevant ad hominem attacks to be both spoken on the floor of the House and to be entered into the permanent congressional record. Sadly, her invitation was eagerly accepted. Freshman Rep. Cori Bush, D-Mo., called President Trump “a white supremacist president,” and “white supremacist-in-chief,” while Rep. Rashida Tlaib, D-Mich., called him “racist-in-chief.” //

“Fighting words” are ad hominem. They attack the person without addressing the argument. //

Oral arguments began on Feb. 22, 1971, with Chief Justice Warren Burger instructing Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in his opening argument, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F— the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

For his open defiance of the chief justice, Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. As Justice John Harlan famously wrote for the majority: “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” //

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977, Cohen was cited as a reason to permit Nazis to chant Jewish insults and carry the swastika through Skokie, Illinois — a community of Holocaust survivors.

In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F— you,” in the halls of education. In 1992 the court unanimously struck down long-standing prohibitions against the Ku Klux Klan’s cross-burning threats.

Beginning in the mid-’90s, the advent of so-called “hate speech laws” closed the circle. Now certain ideas cannot be expressed without public penalty. Florists, bakers, clerks, and printers have been devastated by lost business, government fines, and legal costs just for expressing the idea that the words “male” and “female” are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets.

It’s been a half-century since the Warren court poisoned popular discourse, there yet remain public places that prohibit the ad hominem and the obscene. For instance, rules in the U.S. House of Representatives dating back to Thomas Jefferson require members to “Avoid characterizing another Member’s personal intent or motives and discussing personalities,” and to “Refrain from speaking disrespectfully of the Speaker, other Members, the President or Vice President.” //

Unfortunately, however, those very rules are now under assault. The House Committee on Rules met on Jan. 12, 2021, and adopted an ad hoc rule change providing “that the prohibition against personality in debate with respect to references to the President shall not apply during consideration of H. Res. 21 or any special order of business providing for the consideration of H. Res. 24.”

Thus, rules against ad hominem attacks on President Donald J. Trump were suspended during floor debates on Vice President Pence’s invocation of the 25 Amendment (H. Res. 21), and the motion to impeach President Trump (H. Res. 24).

Thanks to Pelosi, the language of the school-yard bully has now entered our highest deliberative body. As Cohen led to the cancel culture in the public square, so name-calling on the House floor led immediately to the suppression of unfavored ideas in Congress. Within hours, eight senators and 139 representatives who had followed congressional decorum in calling for an investigation of election fraud suddenly found themselves threatened with censure and expulsion merely for expressing the idea.

In 1942, Justice Murphy asserted, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. Now, only 80 years later, the case is reversed. Nonsensical, vile, and intentionally injurious words are fully protected speech while the expression of certain ideas — even in the kindest possible terms — is strictly forbidden. Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.