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Thomas Gallatin / Jun. 27, 2018

SCOTUS Narrowly Upholds Constitution

Three clear issues regarding Rule of Law divide the High Court along ideological lines.

On Tuesday, the Supreme Court handed down two significant rulings that both upheld clear, constitutionally and statutorily defined powers and rights. On Wednesday, it issued a ruling on another First Amendment case. However, the disturbing fact was that all three decisions were determined by the narrowest of margins, the 5-4 split. This demonstrates just how fundamentally divided the highest court in the land is when it comes to viewing Rule of Law and the Constitution. And how important election results can be.

In Trump v. Hawaii, the Court upheld President Donald Trump’s statutory authority under 8 U.S.C. §1182(f) to enforce his “travel ban” on immigrants from certain countries. That this explicitly delineated authority was even in question, and that it rose all the way up to the Supreme Court to enforce, speaks volumes as to the state of the nation’s judiciary. It was obvious that Trump had the statutory authority, irrespective of the merits of his decision. But judicial despots at every level insisted that they could divine Trump’s supposedly racist and anti-Muslim intent, ruling on that basis instead of what the law actually says.

Likewise, in NIFLA v. Becerra, the Court ruled in favor of free speech protections and against state-compelled speech by striking down California’s Reproductive FACT Act, which mandated that any women’s health clinic — including those dedicated to pro-life services — provide information on abortion services. Clearly, the law targeted pro-life organizations, compelling them to advise in favor of the very issue they exist to oppose. Justice Clarence Thomas noted that the Constitution recognizes no such dubious category of “professional speech” that supposedly “[gives] the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” And Justice Anthony Kennedy pointedly observed that the FACT Act was inherently discriminatory and “a paradigmatic example of the serious threat presented when government seeks to impose its own message in place of individual speech, thought, and expression.”

The third case likewise involved compelled speech — that of public employees subject to forced union dues, or “fair share” fees to support collective bargaining and other union activities. “This procedure violates the First Amendment and cannot continue,” Justice Samuel Alito wrote for the majority. “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The ruling is a big loss for Big Labor.

Collectively, the most concerning aspect of these rulings is the Court’s 5-4 split. All three decisions would have gone the other way if Merrick Garland rather than Neil Gorsuch had been sitting on the bench. As for Kennedy, still no word on his rumored retirement, but now — with Trump and Senate Majority Leader Mitch McConnell still at the helm — would be a great time.

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