Neil Gorsuch was confirmed to the Supreme Court on April 7 last year, and on April 9 I welcomed him with a post titled "A Few Places Where Justice Gorsuch Can Make A Difference." That post took note of the remarkable fact that, while the "conservative" justices on the Supreme Court often disagreed with each other in high-profile cases, that was never the case for the "liberals." In any case viewed as politically important to achievement of some policy outcome favored by the progressive movement, the "liberal" justices could always be counted on to vote as a unified bloc. From that post:
The overriding philosophy of the "liberal" bloc has been discussed many times on this blog, and there is nothing complicated about it. The basic concept is that the government consists of neutral, apolitical experts whose job it is to move us all towards greater and then perfect justice and fairness through the magic of more and more laws, rules and regulations. The neutral experts must be given full authority and discretion to rule over the people in order to complete this project. Obviously the government [and not the people] must run the country, because otherwise there would be chaos! Or, even worse, unfairness!
Once you observe this unified voting for more bureaucratic power over the people enough times, you might even get the impression that perhaps these justices care little about upholding the Constitution, and mostly care about making sure that "our side" wins and the other side gets suppressed.
It is typical in any given year for the Court to save some of its highest-profile cases for the end, and this year has proved no exception. This week the last four cases of the term have come down, and three of them were among the most highly anticipated. All four cases turned out to be 5-4 decisions. But the only one where the liberal and conservative blocs got shuffled was the one you've never heard of, involving a border dispute between Georgia and Florida. The other three were high-profile and politically important cases. The justices voted totally in line with their blocs. Let's consider the three cases:
- NIFLA v. Becerra. California has a statute requiring all pregnancy centers to inform clients of free and reduced-cost abortions available from the state. NIFLA -- a pro-life group that ran pregnancy crisis centers with the purpose of convincing clients not to have an abortion -- thought that they shouldn't have to do it. Can the state compel the group running these centers to communicate information that they find abhorrent? The four "liberal" justices all thought that the answer should be yes. According to Justice Breyer, this was just a normal regulation of professional conduct, making sure that women would be provided appropriate information as to their "health." Read Breyer's dissent, and you quickly realize that he (and presumably the other "liberal" justices who joined him) just can't get his head around the idea that any sane person might disagree with him on the subject of abortion. But as Justice Thomas stated in his opinion for the Court, if merely informing women about issues relating to their health was the state's real purpose, then "California could inform low-income women about its services 'without burdening a speaker with unwanted speech.' . . . Most obviously, it could inform the women itself with a public-information campaign." In other words, how is the real purpose of the statute other than putting political opponents in their place by instructing them as to what they must say?
- Janus v. AFSME. Janus is another compelled speech case, this time challenging the requirement in many states that state employees join unions and pay dues, much of which are then used for political purposes -- and essentially all of that going to the Democratic Party and its candidates. Previous cases had required the unions to separate their expenditures into political and non-political portions, and to give a credit to dissenters for the political portion. But the dissenters here, and in other similar cases, contended that essentially everything the union did was political to some degree, let alone that the political/non-political distinction was drawn in an arbitrary and abusive way. For example, in a comment on the case today at PJ Media, Tyler O'Neill gives the example (from one of the briefs in the case) of the AFSME annual convention, something funded by the compulsory portion of the dues: "The AFSCME convention in July 2016 involved political advocacy, featuring a lengthy 'AFSCME FOR HILLARY' program, culminating with a speech by the candidate herself. One speaker led attendees in a chant of 'I'm With Her!' On the very first day of the convention, the union's president led attendees in booing Donald Trump. On the third day, the convention adjourned early, so members could participate in a 'TRUMP HOTEL DIRECT ACTION' protest march. The convention even chartered buses for the protest." All completely "non-political" of course. In any event, forcing people to pay for this kind of thing against their will was completely OK with the members of the Court's "liberal" bloc. The stated grounds of the dissent have something to do with the facts that the previous rule was long established and supposedly assisted in achieving "labor peace." (Somehow the majority of the states are able to achieve labor peace without such a system.) So maybe what was really at stake was a few hundred million dollars of compulsory annual union dues for "our side"?
- Trump v. Hawaii. And finally, the so-called "travel ban" case. Somehow the Ninth Circuit had managed to uphold a nationwide injunction against enforcement of President Trump's executive order without ever citing 8 U.S.C. Section 1182(f) ("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.") Although the executive order under consideration mentioned nothing about religion, and contained restrictions against entry of people from countries that are not majority Muslim (North Korea, Venezuela), the Sotomayor/Ginsburg dissent contains an extensive section of quotations from President Trump's campaign and pre-election website as sufficient proof of "religious discrimination" to support the lower court's injunction. In other words, President Trump is disabled from exercising the full powers of the presidency -- powers that another president would be permitted to exercise, and powers including ones needed to protect the American people against international terrorism -- because we disagree with things he said during the campaign.
There can be no doubt that each of these cases would have come out the other way had Merrick Garland made it onto the Supreme Court instead of Neil Gorsuch.
Think about the three cases, and you will realize the unifying theme. Each of the three represented use of the legal system by the progressive left to implement its preferred policies and keep its people in office, and to make it as difficult as possible for objectors or dissenters ever to change the system or have their voices heard. That's the "swamp." Four justices of the Supreme Court view their most important job as keeping the swamp from ever being altered in any significant way, let alone drained.