The left doesn’t like the rule of law much. If they legally lose an election, they take to the streets as if some injustice had been done to them. If we enforce our border laws, they become hysterical and try to intimidate and bully public officials. If they can’t get a law passed by constitutional means, they are perfectly happy to use regulation to exert extra-legal control over the citizenry.
All of which is bad enough in leftist media, leftist mobs and leftist officials. But in leftist Supreme Court justices, it’s even worse.
In an interview on my podcast this week, constitutional law attorney Jenna Ellis — the director of public policy at the James Dobson Family Institute — put several recent Supreme Court decisions in context as “compelled speech cases.” Whether it was allowing a Christian cake designer to refuse to use his art to celebrate gay marriage in Masterpiece Cakeshop, preventing the state of California from forcing abortion advertising on anti-abortion pregnancy centers in NIFLA v Becerra, or allowing public employees to work without funding leftist unions in Janus, the court, Ellis explained, has declared “the government cannot compel you as an individual to participate in or subsidize speech that you fundamentally disagree with.”
All of this is good news, of course, for those of us who love freedom, but for the left it is, as they say, problematic. In a dissent on Janus, leftist Justice Elena Kagan accused the court of “weaponizing the first amendment:”
“Speech is everywhere – a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”
Alone among the left-wing justices, Kagan has always struck me as intelligent and honest, so this twisted logic is particularly disappointing coming from her. What she means by “citizens’ choices,” after all, are laws made by representatives elected by the majority of voters. But the whole point of the First Amendment is that there are certain choices citizens are not allowed to make — like compelling or curtailing the speech of the opposition. To say this is “weaponizing” the First Amendment is simply to say it is putting it to use.
In general, the leftist minority on the court has shown itself no friend to the law. It really is disturbing. In Hawaii, only the five conservatives agreed that the president had the legal power to bar travel from certain countries he deemed dangerous. Really? This is what the law says:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
You don’t have to be a lawyer to find that crystal clear. And you don’t have to like Trump’s so-called “travel ban” to see he has the legal power to implement it. And yet, in a dissent, leftist Sonia Sotomayor claimed that Trump’s anti-Muslim campaign rhetoric somehow overrode the facts of the case. In other words, what would have been legal for a president she liked was not legal because… Trump.
If the rule of law can be overridden by the emotions of the people, the machinations of officials or the prejudices of courts, we can no longer depend on equal treatment or representative government. Given the fact that most of the above cases were decided by only one vote, news of Justice Anthony Kennedy’s retirement from the court comes as something of a relief. Kennedy has been an unreliable vote for liberty and if Trump can put another Gorsuch-like constitutionalist in there, all of our freedoms will be safer.
It is not too much to ask the Supreme Court to support the rule of law.
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