Article VI of the Constitution describes what qualifies as the law of the land.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…

The only national laws are the Constitution, congressional law, and treaties. Conspicuously missing are Supreme Court decisions. While the court is known for deciding the constitutionality of laws, its decisions are not themselves laws. In the strictest sense, the opinions rendered by the Supreme Court are binding only on the parties before it. //

The Supreme Court is just that, a court. It was established to adjudicate cases and controversies before it. Courts cannot make general pronouncements of law; they exist to settle disputes.

In fact, the Supreme Court is prohibited from issuing advisory opinions or ruling on laws that do not arise through litigation. Justices are not consultant scholars but arbiters in the limited setting of a legal case, not general legal or public policy matters. Courts issue their rulings in the form of judicial opinions, laying out the holding and the rationale. //

We assume when the high court rules, it is articulating what the Constitution says. The Constitution is the supreme law, but it is also a plain text. That text is the law, the ruling is not. As Justice Story said of judicial opinions in Swift v. Tyson, “They are, at most, only evidence of what the laws are, and are not, of themselves, laws.”

It profits a man nothing to gain the world if he loses his soul—and the deal is even worse if the earthly gain is just a chance at the fleeting respect of a few law professors. Nonetheless, that is how the left is hoping to tempt Brett Kavanaugh as the Supreme Court considers a direct challenge to Roe v. Wade.

Writing at National Review Online, Ed Whelan observes that such a sales pitch from Harvard Law professor Noah Feldman “isn’t subtle.” //

The justices should do their duty and follow the law and Constitution to the best of their abilities. In the case at hand, this means overturning Roe and Casey, which are legal abominations, exercises of raw power divorced from the text and history of the Constitution. //

The most important consideration is the wickedness of the radical regime of abortion on demand established by Roe and confirmed by Casey. In the age of ultrasound, we know what abortion is, and who it kills. The images eagerly shared on social media and stuck to the fridge condemn the atrocity of our abortion regime, in which the child whose features can be seen on the screen, and whose movements can be felt in the womb, has less legal protection than livestock.

This acceptance of, and reliance on, the violence of abortion poisons society. It turns what ought to be the loving, primordial union of mother, father, and child into a battleground of selfish interests. Abortion hardens the hearts it doesn’t stop.

Overturning Roe will not in itself end these evils, for the justices are unlikely to extend 14th Amendment protections to the unborn, although there is an originalist case for doing so. Abortion policy would therefore return to the states, leaving the pro-life movement to face a grueling state-by-state fight. But at least our democratic victories will no longer be overridden by the caprice of federal judges. //

Millions of voters have supported the conservative legal movement on the promise that it would fight to get courts out of the abortion business. Thus, if the Supreme Court, with a 6-3 Republican-appointed majority, voted to uphold Roe and Casey, the decision might well blow up the conservative legal movement for good. Most of the voters who care about the courts are not interested in Chevron deference or other (to a layperson) esoteric legal doctrines. Rather, they want Roe overturned.

In the end, it took less than 25 days. In a 6-3 ruling, the CDC’s order was blocked. Even Chief Justice John Roberts joined the majority this time, with Justice Brett Kavanaugh keeping his word that he could flip sides if this issue came up again.

Steven Mazie
@stevenmazie
BREAKING: Supreme Court blocks Biden’s moratorium on tenant evictions by 6-3 vote.

Conservative majority says it "strains credulity to believe" that the statute under which the moratorium was imposed "grants the CDC the sweeping authority that it asserts".
9:23 PM · Aug 26, 2021 from San Diego, CA //

Meanwhile, the liberals on the court did what they always do, which is dissent based on things that have nothing to do with the law.

Arguing that taking illegal action is fine because it might be less forceful than other (probably illegal) actions is nonsensical on its face. The question was always whether the eviction moratorium itself passed muster. It clearly does not. Yet, the liberals continue to act as if the Supreme Court is a place for social experimentation and not interpreting the law.

Eric Schmitt
@Eric_Schmitt
🚨Breaking: By a 6-3 vote the Supreme Court agrees with Missouri and Texas — Joe Biden’s reversal of President Trump’s Migrant Protection Proticalls or the ‘Remain in Mexico’ policy was illegal — the policy is back in effect. #BidenBorderCrisis #SCOTUS #Winning
7:37 PM · Aug 24, 2021

Bear in mind, this isn’t a full decision on the merits — this is merely a ruling that Judge Kacsmaryk’s Order will not be stayed pending the appeal on the merits. The net effect is that the Remain in Mexico policy is back in effect, unless and until the Biden Administration wins an appeal on the merits. (Note, that in today’s Order, Justice Alito found that the Administration failed to demonstrate a likelihood of success on the merits, though nothing is set in stone until the appeals process is complete.) And that, indeed, is a big win.

The landlord association, understandably, has pulled no punches in immediately returning to the Supreme Court for relief. They argue that; “[a]s five Members of this Court indicated less than two months ago, Congress never gave the CDC the staggering amount of power it claims … the unqualified power to take any measure imaginable to stop the spread of any communicable disease.” In discussing the equities, they note that, in the past three months since the district court’s order was originally stayed, “the government has … distribute[d] rental assistance; health care providers have administered roughly 65 million additional vaccine doses; and the total cost of the moratoria to lessors, amounting to as much as $19 billion each month, has only increased.” The landlords emphasize that, due to the government’s sovereign immunity and the judgment-proof nature of the tenants, the massive wealth transfer accomplished by the moratorium will never be fully undone.

The landlords conclude by focusing on the larger issues at play. They properly highlight that the Executive Branch is taking advantage of the inherent delay that litigating matters before the Judicial Branch entails in order to cynically buy time to achieve policy goals in a way the courts think is unlawful. They note that it took 26 days for the Supreme Court to resolve the previous appeal in June and that it has now been 17 days since the CDC decided to extend the moratorium past July 31. They warn correctly that, unless the Supreme Court promptly vacates the stay, “Congress will know that it can legislate through pressure campaigns and sit-ins rather than bicameralism and presentment, the Executive Branch will know that it can disregard the views of a majority of Justices with impunity, and this Court will know that its carefully considered rulings will be roundly ignored.” This result is far more damaging to our nation than even the staggering financial losses suffered by landlords, in truth. Hopefully, the Supreme Court – or at least some of the Justices – will speak clearly to this issue as well in the course of bringing down the curtain on the moratorium.

The rhetoric around the First Amendment tends to be incredibly misinformed. On one side are the First Amendment absolutists who act like proscribing any speech—even hate speech, or even when the prohibition is made by a private company—is tantamount to an assault on the very concept of freedom and liberty. Usually, these absolutists are screaming at people on the other side who haven’t actually thought through how wide-reaching government restrictions on speech—“Ban Fox News!” “Ban people who lie!”—would lead to an utter dystopia.

Invariably someone shows up to say, “You can’t shout ‘Fire!’ in a crowded theater” (which is not true—you absolutely can shout fire in a crowded theater, so stop quoting this line), and everybody turns off the television less informed than when they started.

The reality of our First Amendment freedoms is altogether more boring, and more nuanced. The government does and must have the authority to regulate speech in all kinds of situations. But that authority is and should be treated with deep skepticism. The government should always be challenged to come up with the least restrictive means to achieve its legitimate ends. But when courts adhere to that principle, when judges issue practical rulings that balance the right to free speech against the government’s legitimate interest in restricting certain kinds of speech, the cases don’t make the news.

That’s why the decision at the end of the Supreme Court’s term in Mahanoy Area School District v. B.L.—better known as the “cheerleader case”—garnered comparatively little attention, even though the underlying controversy was widely publicized. At issue was a Snapchat post from Brandi Levy. As a first-year high school student, Levy failed to make the varsity cheerleading team. Disappointed, she posted a picture of herself with the caption “Fuck school fuck softball fuck cheer fuck everything.”

Students who made the squad saw Levy’s post and showed it to the cheerleading coach. The coach then suspended Levy from the junior varsity team. Levy sued the school. //

It’s not hard to imagine an off-campus Snapchat post that could require in-school discipline. Most people would probably agree, for instance, that the school could punish Levy if she had joked about doing violence to her coaches, even if the message did not rise to the level of “true threat” required to get law enforcement involved. Other, more subtle forms of intimidation also might warrant punishment from the school. And yet Levy’s particular post was clearly not that, and schools should generally be prohibited from policing students after hours. That is the job of their parents, not the state.

The current federal standard for school restrictions on speech was set in Tinker v. Des Moines, in 1969. The Supreme Court ruled that students do not lose First Amendment protections simply by showing up to school, but they do not enjoy absolute freedom of speech either; schools can punish students whose speech “materially and substantially” interferes with school business. In the years since, Tinker has been extended to things like field trips, but it has never been applied to fully off-campus speech like Levy’s. And it has never contended with the age of social media.

In Mahanoy, the Supreme Court, by a vote of 8-1, ruled to protect Levy—and declined to extend the Tinker standard all the way off campus. In his majority opinion, Justice Stephen Breyer issued a limited and exceedingly pragmatic ruling that made clear that Levy’s conduct is constitutionally protected and sent a signal to schools that their authority to police off-campus speech is much more limited than their authority to police speech within their buildings. //

Breyer disagreed. Instead, he listed a number of instances in which a school may have cause to regulate off-campus speech, including when a student uses social media to bully or harass other students.

In a per curiam decision — meaning the outcome is 9-0 but no specific Justice was assigned to write the Opinion of the Court — the Supreme Court reversed the Ninth Circuit and sent the case back. The Court held that the “taking” of property by a governmental entity happens upon the act giving rise to a federal constitutional claim, and the Pakdels’ claim against San Francisco was not dependent on their following-through on and compliance with various procedural requirements under the ordinance in order to have that their “takings” claim heard by a federal court.

The only “finality” required for their federal claim was an expression by the governmental agency that the landowner either do “something” with the property or suffer consequences for not doing so. San Francisco told the Pakdels to either offer a lifetime lease to the renter or they would face an “enforcement action” that could have canceled the conversion or fined the Pakdels for their failure to do so.

Justice Barrett’s concurring opinion — joined by Justices Kavanaugh and Breyer in a show of “solidarity” from both sides of the Court — comes down to the issue that if Smith is overturned, 30 years of federal court cases upholding laws and ordinances “incidentally burdening” religious practices will all be up for being re-litigated. Federal courts will be inundated with “religious freedom” challenges, with the Court divided on how new cases seeking to re-litigate settled issues should be resolved. She preferred to put off the question of what to do about Smith to another day.

But conservatives recognize that this is the front-line of the cultural battle being fought in the courts and at the ballot box. This is a clash between a fundamental right provided for by the Founders, and “civil rights” being extended by political processes to various groups who claim an entitlement to be treated in ways that don’t offend them.

I think we should call it what it is — the right to be free from conduct by others that makes me feel bad about myself. I don’t remember studying that in Con Law, but maybe I was sick that day. //

In the same way that the cultural battle over Roe was guaranteed to continue as a result of the “wheeling-and-dealing” with votes behind the scenes in Casey, it appears that the cultural battle over religious liberty grounds will continue through “wheeling and dealing” behind the scenes over Smith. It will only end when Kavanaugh or Barrett takes a stand and decide the question at the center of the debate.

The Supreme Court’s unanimous judgment was a clear win not only for Catholic Social Services but for First Amendment advocates looking for a strong denunciation by the court of blatant religious discrimination by the city government.

Even so, the court’s opinion was narrower than some advocates of religious freedom would have preferred.

The Catholic agency had asked the Supreme Court to overturn Employment Division v. Smith, a problematic 1990 opinion that has restricted the free exercise of religion for decades. The court instead found that this case fell outside the parameters of Smith and declined to reexamine the precedent.

The justices split 6-3 on whether the opinion in Smith should be overturned immediately.

Roberts’ 15-page opinion, which declined to overturn Smith, was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett.

Justice Samuel Alito penned a 77-page concurrence, joined by Justices Clarence Thomas and Neil Gorsuch, arguing that the court should overturn Smith.

Alito offered extensive textualist and originalist analysis of the Constitution’s free exercise clause, concluding that the “case against Smith is very convincing” because of how that decision “conflicts with the ordinary meaning of the First Amendment’s terms.”

In a separate concurrence, Gorsuch noted that the court’s failure to address the old opinion hands the Catholic agency a rather tenuous win. As Gorsuch explained, that opinion allows governments to restrict religious exercise through laws that are “neutral” and “generally applicable.”

In the Philadelphia case, the majority opinion found that the law in question contains a clause that made it not “generally applicable,” rendering the law’s restriction of religious freedom unconstitutional.

Gorsuch noted that “with a flick of a pen, municipal lawyers may rewrite the city’s contract” to remove the problematic clause and make the law generally applicable.

If this happens, Gorsuch said, the Catholic agency will find itself “right back where it started,” in danger of being shut down by the government and in a new round of litigation. For this and other reasons, Gorsuch supported Alito’s recommendation to overturn Smith.

But, as Justice Alito stressed in his dissent, there is an easy way around the court’s decision: eliminate the Section 3.21 exemption—an exemption the city never used. “If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started,” Alito explained.

And he is right. The case of Jack Phillips from Masterpiece Cakeshop proves the point. Justice Gorsuch highlighted this in his separate concurrence, which Justices Alito and Thomas also joined.

“After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today,” Justice Gorsuch wrote. Specifically, in that case, “because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act ‘neutrally’ under Smith.”

However, “with Smith still on the books,” Justice Gorsuch added, “all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives.” That is precisely what Phillips faces now, being fined and again hauled into court for refusing to craft a “gender transition cake.”

The time has long since passed for the high court to overturn Smith, and Justices Gorsuch and Alito’s concurrences, which Thomas joined, lay bare that reality. So, while yesterday’s decision was a win for CSC, it was not a victory for religious liberty.

Today the US Supreme Court announced it would take up the issue of abortion in the upcoming fall term in a case that promises to be significant.

The case is called Jackson Women’s Health Organization vs. Dobbs. //

This could very well be the most important abortion decision of the past 10 or so years because even though Mississippi’s appeal included three questions:

(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 Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.

the Supreme Court is only going to hear arguments on issue #1. This is not an argument over procedure; it is a question that will frame the abortion debate in the future. If the Court agrees with Mississippi, then the door is open for those states that wish to regulate all abortions. If the abortion industry wins, then all “pre-viable” babies can be killed without mercy. As Jeanne Mancini of March for Life observes, “the United States is one of only seven countries – including China and North Korea – that allows abortions through all nine months of pregnancy. An overwhelming majority of Americans agree that this goes way too far, in fact 70% think abortion should be limited to – at most – the first three months of pregnancy.”

On Monday, the Supreme Court, in a 9-0 decision in Caniglia v. Strom, overruled the First Circuit Court of Appeals which had held a plaintiff’s Fourth Amendment rights had not been violated in a civil case involving the police entering his house without a warrant to seize lawfully owned and possessed firearms inside. //

There is an interesting factual anomaly here that I noted in my earlier article.

Among the three judges on the panel of the First Circuit Appeals Court that extended the doctrine to cover warrantless searches of homes was retired Supreme Court Justice David Souter.

You could look at this as the Supreme Court unanimously reversing a former Supreme Court Justice.

I’m not sure that has ever happened before.

May 17, 2021 By Jordan Davidson

The U.S. Supreme Court agreed to take up a case examining whether Mississippi’s pro-life ban on elective abortions 15 weeks into pregnancy is unconstitutional.

This particular restriction in Missippi was first enacted in 2018 and allowed abortions after the 15-week date for “medical emergencies” and “severe” fetal abnormalities. Lower courts, however, including the U.S. Court of Appeals for the 5th Circuit, blocked the law and ruled that it places an undue burden on women who want to abort their child after the state’s deadline.

By choosing to take up Dobbs v. Jackson Women’s Health, justices on the Supreme Court are teeing up to reevaluate “whether all pre-viability prohibitions on elective abortions are unconstitutional” and potentially change how landmark abortion cases such as Roe v. Wade and Planned Parenthood v. Casey affect Americans.

Pro-life activists celebrated the decision as a step in the right direction to ban abortion altogether.

In granting certiorari earlier this week, the Supreme Court will finally address the constitutionality of New York’s law. However, in granting review of the case, the Supreme Court narrowed the issue for review to “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” This question differed from that which the petitioners had sought review, namely “whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

Both framings of the issue, however, squarely present the Supreme Court with the question of whether Heller and McDonald’s guarantee of an individual right to keep and bear arms is limited to the home. While several circuit courts have read Heller and McDonald as limited to the possession of guns within a home, Justice Thomas’ recent dissent (joined by Justice Kavanaugh) from the denial of certiorari in a gun case exposed the folly of such a view:

As this Court explained in Heller, at the time of the founding, as now, to bear meant to carry. When used with arms, . . . the term has a meaning that refers to carrying for a particular purpose—confrontation. Thus, the right to bear arms refers to the right to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person. The most natural reading of this definition encompasses public carry. Confrontations, of course, often occur outside the home. See, e.g., Moore, supra, at 937 (noting that ‘most murders occur outside the home’ in Chicago). Thus, the right to carry arms for self-defense inherently includes the right to carry in public.

This conclusion not only flows from the definition of bear Arms but also from the natural use of the language in the text. As I have stated before, it is extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. The meaning of the term bear Arms is even more evident when read in the context of the phrase “right . . . to keep and bear Arms. To speak of bearing arms solely within one’s home . . . would conflate bearing with keeping, in derogation of [Heller’s] holding that the verbs codified distinct rights. In short, it would take serious linguistic gymnastics—and a repudiation of this Court’s decision in Heller—to claim bear Arms does not extend the Second Amendment beyond the home.

Justice Thomas added to the above reasoning an analysis of “cases and treatises from England, the founding era, and the antebellum period,” all of which “confirm that the right to bear arms includes the right to carry in public.”

Of course, several justices are nonetheless likely to resort to linguistic gymnastics to avoid what they perceive as bad (or unpopular) policy. But will five justices stand firm? We will know next year.

the Supreme Court today agreed to hear the case of New York State Rifle & Pistol Association, Inc. v. Corlett, a major 2nd Amendment case that will address the question:

Whether the state’s denial of Petitioner’s applications for Concealed-Carry Licenses for Self-Defense violated the Second Amendment?

Interestingly, that is not the question as posed in the Petition. In the Petition the Court was asked to answer the following question:

Whether the Second Amendment allows the government to prohibit ordinary lawabiding citizens from carrying handguns outside the home for self-defense? //

the question as posed in the Petition asked for an interpretation of the breadth of the Second Amendment’s pre-emption of state regulation, whereas the question as reformulated by the Court focuses on what New York has done and whether that act violates the Second Amendment — a question that can be answered without sweeping away all other state-imposed limitations on gun ownership and possession.

The language chosen by the Court suggests a narrower analysis of the specific New York’s firearm permitting process, and seems to focus on the specific applications made by the Petitioners within the framework of the statutory limitations created by New York going back to a point in time prior to the adoption of the Second Amendment. //

Deciding the applicable “standard of review” — particularly if the Court decides that “strict scrutiny” is the proper standard — would then be a basis to send the case back to the Second Circuit without addressing the foundational issue of how broad are the protections afforded by the Second Amendment. It would also cause a likely “reset” of other cases recently decided or currently pending in other circuit courts. A decision establishing the “standard of review” would “rewrite the rules” in a meaningful fashion on how lower courts should evaluate state restrictions on gun ownership and possession. Such a “reset” of lower court cases would allow the Supreme Court to again put off resolving the more controversial issues about how far the Second Amendment should reach in prohibiting state regulation of firearms. //

DannyBhoyo13
4 hours ago
From what I gather, the Supreme Court narrowing the question under dispute give them another opportunity to punt on decision concerning, “shall not be infringed.” //

Romeg
4 hours ago edited
The Right of Self-Defense PRE-EXISTS the creation of ANY State since it is a Natural Right that is part and parcel of being a natural person while The State is an artifice, a creation of mankind whose 'just powers' derive from those who created The State. Having thus been created and granted such powers as it has and not having been granted, expressly, the right to LIMIT natural rights, The State, therefore, LACKS the power to grant unto itself the power to LIMIT the Natural Rights of those who created IT.

It never occurred to the Founders to apply the language of the Second Amendment to the states since, first off, The Constitution of The United States establishes the Federal Government and the Bill of Rights, which includes The Second Amendment thereto, LIMITS the powers of The Federal Government. But for the Natural Right of Self Defense which presupposes the right to Keep and Bear Arms, the American Revolution would have been lost before that first shot was fired on April 15, 1775 and NO STATES would exist as the consequence. They would be Provinces akin to other former elements of the United Kingdom.

If NO STATE can invade a woman's privacy for the sake of protecting the life of another human being then how, in G*d's Name, can it have the power to tell one of its citizens that unless you can demonstrate some special need, you don't have the right to arm yourself for your own protection?

The language is plainly on display in the Second Amendment to The Constitution of The United States: "A Well Regulated Militia Being Necessary to the Maintenance of a Free State*, The Right To Keep and Bear Arms Shall Not Be Infringed"

*Free State, in the context of this amendment, does NOT refer to any political subdivision. Rather it refers to the CONDITION of being Free, as in the language of the Apostle Paul in Philippians 4: 10-14, to wit:

"10-But I rejoice in the Lord greatly, that now at length ye have revived your thought for me; wherein ye did indeed take thought, but ye lacked opportunity. 11-Not that I speak in respect of want: for I have learned, in whatsoever state I am, therein to be content. 12-I know how to be abased, and I know also how to abound: in everything and in all things have I learned the secret both to be filled and to be hungry, both to abound and to be in want. 13-I can do all things in him that strengtheneth me. 14-Howbeit ye did well that ye had fellowship with my affliction."

TechFreedom, a libertarian-leaning think tank that filed a brief in the case, said the Supreme Court ruling "restores due process at the FTC." TechFreedom President Berin Szóka wrote:

The text of the Act is clear: Section 13(b) allows the agency to stop deceitful or fraudulent conduct quickly, so that the conduct is not ongoing while the agency then completes a more rigorous process for clawing back ill-gotten gains. This process ensures a balance: fraudsters' misconduct is promptly shut down, but the agency is forced to prove that its target is indeed engaged in fraud before taking money from it. Although the agency (and several Senators) have recently emphasized how important the agency's Section 13(b) authority is for obtaining consumer redress, it is only important because the agency has made it so, by convincing courts to let the agency misuse it for that purpose.

Public Knowledge said the ruling "decimates [the] FTC's ability to protect consumers through restitution" but pointed out that Congress can restore the FTC's powers by amending the law. //

As Justice [Stephen] Breyer noted in his opinion, Congress can easily fix this problem by clarifying that the FTC can seek equitable remedies along with an injunction," Petros wrote. "Given that both sides of the aisle support the agency's ability to seek restitution, it should be a priority for legislators. It's common sense for ill-gotten gains to be returned to the pockets of consumers—not kept by those that would take advantage of them."

“I do think we should be expanding the court,” she told reporters. “The idea that nine people, that a nine-person court, can overturn laws that … hundreds and thousands of legislators, advocacy and policymakers drew consensus on … we have to … just ask ourselves, I think as a country, how much does that current structure benefit us? And I don’t think it does,” she said.

That’s literally the point of the Court, according to the purpose of the Founders, that nine people sometimes overrule laws and decisions of politicians and others. To be above the political fray, to not do what is popular, but to do what is in accordance with the Constitution, however unpopular it might be. The Court’s decision is based on interpretation of the law, not the politics. //

“How much does that current structure benefit us?” Yikes. According to this logic, why would adding four more justices – what the court-packing Democrats are proposing – make things any better? What’s magical about thirteen? //

The Recount
@therecount
·
Apr 15, 2021
Sen. Ed Markey (D-MA): “The Republicans stole two seats on the Supreme Court … we undo the damage that the Republicans have done by restoring balance. And we do it by adding four seats to the court …”

Sen. Ed Markey (D-MA): “We must expand the court and we must abolish the filibuster to do it.”

“Expanding the Supreme Court rights the wrongs the Republicans have done to this great court. Expanding the Supreme Court is equal justice and will ensure equal justice is dispensed to all Americans.”

The reality: The United States Supreme Court is not broken. Rather, the balance on the Court is not currently to the liking of the left. And the “wrongs the Republicans have done” have been comprised solely of operating within constitutional boundaries agreed upon by both parties 232 years ago and a nine-justice limit in place for 152 years, Ed. //

We’ve seen it time and time and again. When Democrats don’t win by the rules, they try to change the rules — and/or cheat, of course. Hillary wins the popular vote in 2016, but loses the Electoral College? Eliminate the Electoral College.

Yet, if 2016 had been a mirror image? If Trump had won the popular vote but lost the Electoral vote? A: Republicans would not have called for the demise of the EC. B: Democrats would have defended the EC to their dying hypocritical breath.

And so? They set about changing as many state election laws across the country between 2016 and 2020 as they could get away with. Yet when Georgia Republicans enact true election reform — which benefits all voters? Cry “Racism!, “Jim Crow!,” and behave as the left is now behaving.

And when the literal law of the land — nine justices on the United States Supreme Court, a number which even liberal-stalwart justice Ruth Bader Ginsburg was opposed to changing — doesn’t go your way? You attempt to pack the Court. All in the name of “democracy.”

Ted Cruz encapsulated it, this morning.

“Today’s Democrat Party doesn’t care about undermining the rule of law.

If Democrats pack the Court, our free speech rights go out the window, our religious liberty goes out the window, and the Second Amendment is effectively repealed from the Bill of Rights.”

National Review’s David Harsanyi dug up a quote from the Roosevelt era that pretty much sums up the whole thing.

FDR’s Court-packing scheme, wrote the Democrat-controlled Senate Judiciary Committee in 1937, “is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” //

Today, modern progressives, intent on centralizing state power and nullifying constitutional protections for the minority, disagree. After spending four years delegitimizing the Supreme Court, they’ve convinced Joe Biden to create the “Presidential Commission on the Supreme Court,” which is another step in normalizing the idea of packing the Supreme Court.

Applicants are likely to succeed on the merits of their free exercise claim; they are irreparably harmed by the loss of free exercise rights “for even minimal periods of time…”

This language seems to emphasize the “supremacy” of free exercise claims in the view of the five-Justice majority. This may be why CJ Roberts chose to not join the majority, as it goes against his incrementalist approach to developing new Court precedent. I predict the five Justices in the majority will return to this sentence in future cases on a host of religious freedom matters that are currently the subject of litigation around the country, many of which involve clashes between the constitutionally grounded religious free exercise right, and statutorily based “civil rights.” //

First, this was not a decision on the “merits” of the case now pending in the Ninth Circuit. What was under Supreme Court review was the refusal by the Ninth Circuit to grant an injunction against enforcement of the California restrictions while the case is pending before the Ninth Circuit. The question was whether California would be allowed to enforce the restrictions in place while it defended the case on appeal after the restriction had been upheld by a district court judge in San Jose. The Ninth Circuit had declined to issue an injunction while the matter was being reviewed, and late on Friday the Supreme Court reversed that decision and ordered that the injunction be issued while the matter is pending review. //

The Ninth Circuit panel looked at the prior decisions of SCOTUS which evaluated similar gathering venues and allowed occupancy under other types of regulations — churches v. shopping venues — and concluded its task was to compare the impact of the California restriction on in-home religious activities with the impact on in-home non-religious activities. Since both were similarly burdened by the California restriction — unlike the churches v. shopping venues in earlier SCOTUS decisions which were unequally burdened — the Ninth Circuit concluded the restrictions on in-home services would survive constitutional scrutiny.

But this approach failed to give sufficient importance to the constitutional foundation of religious free exercise. It’s not that the Ninth Circuit was defending California’s restriction, the Ninth Circuit simply drew the wrong conclusion from prior SCOTUS’s orders as to what analytic framework it should employ. In some respects this is a product of the fact that the Supreme Court has developed this body of law via the “shadow docket” and not in one comprehensive majority opinion on the issues being decided.