Some Thoughts on the Recent Session of the Supreme Court

Overall, I’m rather pleased. And pleasantly surprised.

First of all, let’s get the caveats out of the way: both of President Trump’s nominees to the Supreme Court –Neil Gorsuch and Brett Kavanaugh–were standouts. Not only were they not scared to go against conventional wisdom but on those occasions in which they voted with the Court’s liberals, they did so boldly and according to conservative principles.

Here’s the breakdown so far:

1. In The United States vs Quartavious Davis, Neil Gorsuch sided with the four liberals to rule that heaping excessive punishment on crimes committed with guns was unconstitutional. Writing for the majority, he said that “in our constitutional order, a vague law is no law at all”. This is Strict Constructionism 101, and the four conservative justices should have made this decision 9-0. But for some reason, they voted against it. Chalk one up for Liberty. One to zero.

2. In Terence Gamble vs the United States, Gorsuch sided with Ruth Bader Ginsburg (it was 2-9, a loss). Tragically, the doctrine of double jeopardy took a major (non-conservative hit). The three other liberal justices sided with the four other conservatives. Again, not good, should have been 9-0. Anyway, this is what he wrote: “A free society does not allow its government to try the same individual or the same crime until it is happy with the result. Unfortunately, the court endorses a colossal exception to this ancient rule against double jeopardy.” Ouch, not good. So far 1-1.

3. As for Brett Kavanaugh, he sided with the four liberals in Apple, Inc vs Pepper, which was a major blow against the tech giant Apple and its monopolistic practices. (Hopefully, this will entice the Congress to take up anti-trust legislation against Silicon Valley which is monopolistic to the extreme.) Another good one: 2-1.

4. In Nielsen vs Preap (5-4), both Gorsuch and Kavanaugh voted with the conservative bloc. This ruling upheld the Trump Administration’s policy of detaining non-citizens. Again, should have been a slam-dunk 8-1 or 9-0 but that’s why we have elections and hope that Republican presidents will appoint sound judges. Usually, that’s the case although sometimes it ain’t (i.e. Bush 41 nominating David Souter). 3-1.

5. The above are all great rulings. The most pleasing to me in an ironic sense, however, is Iancu vs Brunetti, which passed 6-3, the so-called trademark case. Though this ruling, unfortunately, will allow for the legality of scabrous and quasi-pornographic trade names (such as FUCT), it was nonetheless a major victory for free speech. Ironically, it is a bitter fruit (in liberal eyes) because its genesis was the Stalinist suppression of popular trademarks that were deemed unacceptable to leftist sensibilities. The most famous one being the Washington Redskins. Speech is speech and we’ve got to permanently smash the 24/7 grievance machine that blares up at the drop of a hat. (I have a recurring dream in which I shove Al Sharpton’s megaphone down his throat.) If I wanted to start a football team and call it the Syracuse Spartans, I should be able to do so. Likewise, if I wanted to start a team and call it the Texas Jewboys I should be able to do so as well. I realize that that’s not a completely fair analogy as there was a great Country & Western band several years ago called “Kinky Friedman and the Texas Jewboys” but you get the point. (And anyway, it probably would have failed, there’s that darn free market working again.) 4-1.

The last ruling confirms one of the foundational doctrines of true conservatism, that the best-laid plans of mice and men (in this case progressives) are frequently confounded. The moralistic busy-bodies who populate the higher reaches of our kakistocracy never saw this one coming. And I for one am pleased as punch.

6. Tremendously not happy with Dept of Commerce vs New York. This case involves the question as to whether the question of citizenship can be asked on the Census form. Again, should be a slam-dunk, especially after the notorious “3/5th rule” was stricken from the Law. Unfortunately, Chief Justice John Roberts decided to be the second coming of Anthony Kennedy and voted with the four liberals making this 5-4 against the Trump Administration. This should have been 5-4 the other way. It doesn’t comport with Nielsen above. Basically, Roberts was being too clever by half, he could have ruled the other way but he didn’t think that the law was strict enough (or something). 4-2. (Could be revisited next year.)

7. In Virginia House of Delegates vs Bethune-Hill, Roberts sided with the Republican Party and said that gerrymandering was best left to the states. While Commerce was a blow to the right, this one was a blow to the left. 5-2.

8. I was really excited by Tims vs Indiana. This one was unanimous and it struck down excessive fines levied by the states. One of the chief weapons of the Leviathan state is going after political enemies and bankrupting them. We fought against that back in 1776, didn’t we? 6-2 for liberty.

Overall, generally pleased. And thankful that The Golden Don is President just for these two nominations alone. (I’ve heard that he’s absolutely packed the lower rungs of the Federal judiciary, appointing more judges in two years than most presidents have done in two terms.)

While conservatism and liberty (basically the same thing as far as I’m concerned) generally won, say 75 percent of the time, at the end of the day we are still stuck in a progressive abyss. The fact that we have to sit on pins and needles wondering what one or two black-robed men are going to say shows the falsity of Alexander Hamilton’s prediction that the Courts would be the “least dangerous” branch of our government.

Almost from its inception, the judiciary has done incalculable harm to the democratic (small-D) process. It should have remained within its purview of being only a venue for aggrieved parties and not an umpire calling balls and strikes between the two elected branches of government (the legislative and the executive). I can see how a Supreme Court could be necessary to adjudicate a case between say, Arkansas and Oklahoma, regarding water run-off in the Illinois River but that’s it. I’d even give them the power to strike down an Executive Order by a simple majority, but giving them the power of Constitutional Review (which is not in the Constitution but which they arrogated to it among themselves in Marbury vs Madison was a huge error on the order of the President declaring war on his own authority).

Anyway, we fight with the army we got. And since the election of Trump, the Supreme Court has done more good than harm. At least from a constitutionalist/conservative point of view. Hopefully, when Notorious RBG is released from corbomite and sloughs the mortal coil, Amy Coney Barrett will be picked to replace her. That will clear the benches!

Here’s a rundown on the cases so far: