The US Supreme Court had a busy last session on Friday, June 27. Issuing rulings on five major cases, ranging from free speech to parental rights, the Court delivered a string of 6-3 decisions (with varying combinations) that will certainly set the judicial tone for the nation.
To discuss just how the country is about to change in light of these rulings, we spoke with Liberty Nation News Legal Affairs Editor Scott D. Cosenza, Esq.
A Big Day at SCOTUS
Mark Angelides: Before we jump into the big cases that were decided, I want to talk briefly about the halt that came down on “universal injunctions.” Does this essentially mean that all the district judges who have been telling President Trump he can’t implement parts of his agenda can now be ignored?
Scott D. Cosenza, Esq.: No, Mark, the administration cannot ignore district court judges. The ruling in Trump v. CASA means those judges are instructed not to make nationwide injunctions generally. So, the administration should not be subject to them, as a rule, and can find quick relief in the intermediate appellate courts if a district court judge does not fully integrate this ruling into her decision-making. There’s no guarantee that a Biden autopen appointee with Trump Derangement Syndrome won't issue another injunction. Yet we will certainly see a massive drop-off, combined with a significant shift in treatment by the appellate courts.
Mark: Justice Amy Coney Barrett delivered a scathing majority opinion on this and really raked Justice Ketanji Brown Jackson over the coals. How unusual is it to be so damning?
Scott: It’s seldom seen and would be terribly surprising except for Justice Jackson’s own dissent. She said the majority opinion “shamefully” permitted the Trump administration's illegal acts to “continue unabated.” There is an abundance of choices to pick from when looking for lines Jackson uses that denigrate her brother and sister justices. She went so far as to pretty much blame her colleagues for the near-future collapse of the country. That’s not hyperbole. Jackson wrote, “[T]his Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.” What invites counterattack more than that? Also, keep in mind that all the justices in the majority signed on to the full opinion, including the thrashing of Justice Jackson. They could have avoided that, had they wanted, by just concurring in part or writing their own opinion(s). So, Jackson’s cut was both very deep and broadly experienced.
Mark: I know you have an in-depth analysis of this decision, which our readers can visit here. So, moving on to the actual cases, would you say this was a big day for conservatives?
Scott: Hindsight and perspective are always the best starting basis for good analysis on a question like that. Lacking any here, I would say yes. The nationwide injunction ruling, which will surely be called a landmark, makes Trump much more likely to implement his agenda without interruption. That case alone makes it a big day.
Parental Rights
Mark: Let’s discuss the Mahmoud v. Taylor decision. I think this will be a significant road sign on the path to greater parental rights. What was the question, and how was it decided?
Scott: This case was about whether parents had the right to learn when the school district was going to indoctrinate their kids with LGBTQ+ propaganda and whether they had the right to opt their children out. The parents said their First Amendment right to the free exercise of their religion required the state to inform them about and allow opt-outs to cultural programming that is an affront to their sincerely held religious beliefs. And the Court agreed by a 6-3 vote with no surprises. Justices nominated by Republicans voted for the parents, and justices nominated by Democrats voted for the school board.
Mark: Just how likely are school districts to start implementing this? And are those that dilly-dally going to end up paying out?
Scott: Mark, they are either in receipt of – or will very soon be in receipt of – emails from their attorneys detailing how they should respond in light of this ruling. Model opt-out forms and notifications will be the norm, or – and this would be the real victory for conservatives – the cost of compliance, as it were, will be high enough that many of the programs will cease to continue.
A side issue that I saw and a potential problem for conservatives – if the law of unintended consequences comes back to bite them – concerns Satanists. There are lawfully recognized Satanic churches with tax exemptions and every other thing a Christian church has. They also, now, presumably have the right to expect notification and the right to opt out of instruction that venerates Christ or Christian values.
First Amendment Fracas
Mark: Another case that seems important in terms of forward-looking ramifications was Free Speech Coalition v. Paxton. Justice Thomas wrote the majority opinion here. What were the details, and what did the Court determine?
Scott: A Texas law required websites that host “pornographic material” to use age verification to ensure users were over 18. The challengers said the law should face strict scrutiny and that it would fail that test. The majority disagreed. Justice Thomas wrote the Court’s opinion – another 6-3 affair with no strange dance partners.
Mark: I felt that the dissent in this case was thin gruel. What’s your professional take on it?
Scott: I’m taking the liberty of ignoring the question about Justice Kagan’s writing specifically and instead turning to the issue of disagreeing with Thomas. No greater authority than the Foundation for Individual Rights and Expression said of the majority’s opinion: “Today’s ruling limits American adults’ access to only that speech which is fit for children — unless they show their papers first. … Americans will live to regret the day we let the government condition access to protected speech on proof of our identity.”
Here's hoping they're wrong.
Mark: Would you say this is a decision that will impact future First Amendment cases? Especially because it's based on digital distribution and access, it seems likely that this will be referenced again and again.
Scott: Yes. Typically, when a big case draws a new line in the sand, then the next few years, at least, are spent with lots of litigation sorting out exactly where the line begins and ends.
Kicking the Can
Mark: The case I was most curious to see resolved was what some might call a “reverse racism” issue in Louisiana v. Callais. A federal court rejected a voting district map and required the Bayou State to create a new one with two districts made to contain majorities of black people. The High Court decided to punt on this, pushing it into the next term to revisit arguments. Why would they do this?
Scott: There are some factual or legal issues outstanding for some critical mass of Justices. They may ask for a new briefing about a specific aspect of the case, for instance. We don’t actually know how many justices wanted the case reheard; we only know that Justice Thomas opposed the delay.
Mark: While the order was basically a one-liner, Justice Clarence Thomas filed a five-page dissent saying that this case needs to be decided. What were his reasons, and what indication did he give (if any) of how he would rule?
Scott: Justice Thomas sees it as the Court’s duty to resolve these kinds of challenges promptly. He said it was “particularly critical here” and, without ambiguity, called for a total overhaul of how the Court handles voting rights cases – moving away from race-based preferences.
Mark: President Trump held a briefing after the Court had finished its business. He was in quite a celebratory mood. Was this a good day for the president? And more importantly, as a constitutional attorney, would you say this was a good day for the Constitution?
Scott: When is anything all one thing? It’s a mixed bag, and just how the mix shakes out will only be seen through the lens of time. Just look at the First Amendment. There’s a strong case to be made that it took a big win and a big loss today.
When time allows for unforeseen and unintended consequences to reveal themselves, we’ll get a better sense of it.
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