Media hysteria over the Supreme Court has reached fever pitch, with a chorus of fake news pundits repeating that America now has a “far right” court. This reaction is to be expected.What should be surprising, though, are the number of conservative and populist figures, from pundits to law scholars, who are validating this ridiculous narrative.
While it is true that the 2022 Term brought more originalist victories than in years past, the idea that the Court is consistently siding with the political Right is ludicrous. Below are five cases demonstrating how, for all their posturing, leftwing and anti-originalist judicial activists continue to rack up wins in the nation’s highest court.
Note that this list does not include what are arguably the most devastating actions of the Roberts Court—denials of certiorari for appeals from egregiously wrong rulings by blatantly partisan lower court judges.[1] It also leaves out rulings from the Court’s emergency, or shadow, docket, where it decides what temporary injunctions to impose or remove while the multi-year legal process plays out (this term, the Court decided to reinstate a hold on Texas’s anti-censorship law, but allowed President Biden to purge unvaccinated doctors and nurses from private hospitals while he stretched out court proceedings).[2] The following list instead covers only final judgments with binding precedents, as these are the ones that will cause the most long-term damage to our laws, our Constitution, and our country.
5. Taylor v. United States
Virginia drug dealer Justin Taylor and an accomplice decided to rip off their customer mid-deal and rob him at gunpoint. When the victim refused to comply, Taylor’s accomplice shot him and the duo fled the scene, leaving the man to die (which he did).[3] In order to avoid murder charges, Taylor pled guilty to Hobbs Act robbery. The Hobbs Act provides a sentencing enhancement for one who “uses or carries a firearm . . . . during and in relation to any crime of violence” or “in furtherance of any such crime.”[4] A crime of violence is defined as either a crime which has “as an element the use, attempted use, or threatened use of physical force against the person” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[5] In his guilty plea, Taylor acknowledged he had engaged in a crime of violence.[6]
One would think that this would be an easy case. Instead, Neil Gorsuch’s majority opinion upheld a lower court conclusion that, actually, Taylor did not meet the Hobbs Act requirements of committing a “crime of violence.”[7] You see, back in 1990, the Court, while interpreting an unrelated criminal statute, decided to develop a “categorical” approach, where instead of judging the actual facts of a specific offender’s actions for sentencing enhancements, courts would look to the “generic” “elements” that would go with such a crime.[8] For consistency, the Court then decided to apply this categorical requirement to so-called “residual clause[s],” such as the one in the Hobbs Act referring to a crime that “by its nature involves a substantial risk [of] physical force.” A categorical approach makes little sense to a residual clause (“substantial risk” was an inherently case-specific inquiry), so the court then struck down that part of the statute as “unconstitutionally vague.”[9] That left the only part of the Hobbs Act for judging a “crime of violence” to be the part defining a crime that had as “an element the use, attempted use, or threatened use” of physical force.[10] Taylor’s underlying crime was only attempted robbery (the two criminals had abandoned the theft after escalating it to a killing), and it is theoretically possible for someone to attempt robbery without engaging in the use of physical force. Therefore, under the categorical approach, Taylor’s crime was not actually one of violence.[11]
If this seems confusing gibberish, that is because it is. As Clarence Thomas describes it in his dissent, the Court’s Hobbs Act interpretation has been a “30-year excursion into the absurd.”[12] Taylor is a prime example of judges utterly obfuscating the meaning of plain text statutes by piling bad precedent on top of bad precedent because they would rather be consistent with their earlier stupid rulings than acknowledge their own error (it also did not help that federal prosecutors in Taylor refused to make arguments that might have prevented more bad precedent from being created).[13]
The Taylor ruling comes as the nation grapples with an escalating epidemic of gun violence.[14] Judges are largely protected from the bloodshed, but their refusal to enforce gun laws like the Hobbs Act have very real consequences. Societies cannot disregard these problems forever.
4. Ramirez v. Collier
During a 2004 crime spree defined by staggering brutality, John Ramirez stabbed Corpus Christi convenience store clerk Pablo Castro twenty-nine times in order to rob him (Castro had only $1.25).[15] Ramirez left Castro by a dumpster, where the hardworking father of nine died choking on his own blood.[16]
What followed has been an unending quest by Ramirez to cheat justice. He evaded police in a car chase.[17] He fled the country.[18] He deliberately sabotaged his own sentencing hearing so he could then appeal his death sentence on the grounds of ineffective counsel.[19] He gave lie-filled TV interviews wherein he tried to shift the blame to Castro.[20] When he finally got an execution date, he requested an extension so he could file a separate habeas request, then waited an additional year to actually submit the petition.[21] He submitted a new suit asking for the punishment to be postponed until a pastor was permitted in the chamber, insisting the advisor “need not touch [him] at any time in the injection room.”[22] When Texas acquiesced to his demand, he changed it up, saying his Baptist faith now compelled him to have his pastor “lay hands on him” during the execution.[23] By the time he got to SCOTUS this year, Ramirez was insisting this accommodation was not sufficient, either—the pastor needed to be simultaneously singing and touching him at the exact moment he passed.[24]
Several of Pablo Castro’s children filed a brief pleading for the court to finally do its job and allow the execution to proceed. One wrote how the endless “loopholes” Ramirez exploited had left him with a “‘lack of closure for many years, ever since [he] was merely a child.’”[25] Another detailed the “pain and suffering” from constant establishment media celebration each time Ramirez got courts to grant another delay.”[26] A third begged that the Court allow “the healing process [to] continue without being reopened every couple of years to entertain Ramirez’s appeals.’”[27]
The justices sided with Ramirez anyway. Under RLUIPA (the Religious Land Use and Institutionalized Persons Act), the government allows exemptions from certain generally applicable laws for sincerely held religious beliefs so long as it would not impose a “substantial burden.”[28] According to Chief Justice John Roberts’ majority opinion, which disregarded the mountains of evidence that Ramirez’s claims were insincere, eighteen years of delayed justice (and the incredible pain it put the Castro family through) was not a substantial enough burden to meet the RLUIPA standard.[29] Rubbing salt on the wounds, Stephen Breyer wrote separately this term to argue that all capital sentences should be lifted because it was unfair to the murderers for them to have to endure decades of delays.[30]
Just weeks before the Ramirez decision, the Court had issued a shadow docket ruling against the plaintiffs in Dr. A v. Hochul, who challenged a governor’s arbitrary decision to explicitly prohibit “religious beliefs” as a justification for exemptions to vaccine mandate imposed on the private sector.[31] The Court’s ruling even allowed the revocation of already granted exemptions (the suit had been brought under Title VII, which requires employers to offer reasonable accommodations to individuals with sincerely held religious beliefs).[32] A few months later, the justices ruled against the Dr. A plaintiffs for a second and final time, permanently enshrining the vax order without even giving the objectors a chance to make their religious freedom argument at their Court.[33]
The Fourteenth Amendment insists on equal protection of the law. Instead, John Roberts applies it selectively, always with an eye to the preferences and prejudices of the media establishment.
3. Denezpi v. United States
One of history’s largely forgotten villains was President Chester Arthur, the creator of today’s administrative, or deep, state. Arthur, who served less than a single term in the 1880s, was obsessed with annihilating the Constitution’s separation of powers and creating semi-independent, largely unaccountable federal bureaucracies that acted outside the traditional branches of government. As part of this mission, his Secretary of Interior, a Colorado railroad baron named Henry Teller, issued an “administrative decree” demanding to create a Court of Indian Offenses.[34] As Teller described it, the Court was a necessity so Indians would “desist from the savage and barbarous practices . . . calculated to continue them in savagery” (these forbidden practices included “heathenish dances” and “conjurers’ arts”).[35] Though the tribunals were staffed by Indians, “tribal members often regarded these courts as ‘foreign’ and ‘hated’ institutions” (imagine that!).[36]
Later on, Congress permitted tribes to opt-out of the Court of Indian Offenses by recreating their own tribal courts; many larger nations chose to do so. The Indian Offenses tribunals—now called Code of Federal Regulations, or C.F.R., courts—ceded more lawmaking authority to the tribes, and (as intended) became more disconnected from the federal government that created them. Nevertheless, the feds (though not any individual in particular) continued to have the ultimate say on who sat on the tribunals.[37]
In 2017, Navajo Nation member Merle Denezpi accepted a plea deal in C.F.R. court, allowing him to be released with time served and no sex crime conviction after committing a brutal rape while visiting the Ute Mountain Ute Reservation.[38] Frustrated with this lenient sentence, ordinary federal prosecutors brought new charges for the same offense: Denezpi was convicted, labeled a sex offender, and given thirty years in prison.[39]
Amy Coney Barrett’s majority opinion did concede that the C.F.R. courts may have been of “the same sovereign” as the ordinary federal courts.[40] However, the Court nevertheless upheld Denezpi’s conviction, arguing that the C.F.R. rules he was convicted under were a creation of Indian law and thus entirely separate from federal law (under our federalist Constitutional structure, territory and state statutes are independent of federal laws and their enforcement raises no double jeopardy concerns).[41] This is of course absurd—the C.F.R. rules were created by federal executive order that not only disregarded but disparaged Indian sovereignty, and the institution is still overseen by federal bureaucrats.
The Denezpi ruling will stretch far beyond the bounds of the technical, Indian law question it purports to answer. By allowing C.F.R. courts, SCOTUS already failed in its duty to respect separation of powers, creating rogue bureaucracies, like the one in the Ute Mountain Reserve which’s lack of accountability to both the US president and the Indian nations led it to release a violent rapist with effectively no punishment. Now, SCOTUS has permitted the inevitable result of this violence on the Constitution—elimination of longstanding civil liberties as another of the government’s tendrils tries to compensate for its sister agency’s follies. The Court should not pretend that deep state agencies will not leap at this new grant of power.
2. City of Austin v. Reagan National Advertising of Austin
Apologists for the current Supreme Court’s refusal to engage in originalist or liberty-minded jurisprudence generally argue one of three things: 1) you shouldn’t blame the Roberts Court because it needs to respect precedent; 2) the Court’s bad rulings are mostly of statutes, and those can just be fixed by the Legislature; or 3) an originalist ruling would reak too much havoc and destabilize the Court’s legitimacy. Reagan National demonstrates how none of these explanations are accurate: Instead, the Court struck down an uncontroversial lower court ruling on constitutional law that faithfully applied SCOTUS precedent from just five years ago.
In 2015’s Reed v. Town of Gilbert, the Court rightly concluded that municipal sign ordinances with “content-based restrictions” generally violated the First Amendment’s guarantee of freedom of speech.[42] In 2017, Austin—under Mayor Steve Adler, the man infamous for demanding his subjects stay-at-home via video feed from a bougie Cabo resort—refused to give permits for Reagan National Advertising to digitize some of its billboards.[43] The city indicated it would not allow sign owners to “change the method or technology used to convey a message” if that message would “advertis[e] a business, person, activity, goods, products, or services not located on the site where the sign is installed, or. . . direc[t] persons to any location not on that site” (otherwise, digitization was okay).[44] Faithfully applying Reed (and the Constitution), the Fifth Circuit ruled Austin’s actions unconstitutional.[45]
Sonia “Why is a Human Being Not Like a Machine?” Sotomayor—selected by Roberts to write the majority opinion—reversed the Fifth Circuit, proclaiming that the restriction was in fact “content neutral” as it merely relied on “location-based lines.”[46] In his dissent, Thomas underlined the impossibility of this assertion:
Much like in Reed, that an Austin official applying the sign code must know where the sign is does not negate the fact that he also must know what the sign says. Take, for instance, a sign outside a Catholic bookstore. If the sign says, “Visit the Holy Land,” it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is “Holy Land Books”). But if the sign instead says, “Buy More Books,” it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, “Go to Confession.” After examining the sign's message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances “requires [Austin] officials to determine whether a sign” conveys a particular message, the sign code is content based under Reed.[47]
Reagan National is just another example of the Roberts Court’s opening the door to censorship by rubber-stamping seemingly (but not actually) neutral categorical distinctions: political speech restrictions that don’t apply to establishment media, covid regulations that only apply to churches, etc. Depressingly, though, this Constitutional atrocity was not enough for the radical Left. In his concurrence, Stephen Breyer lamented that the Court did not take the opportunity to explicitly overrule Reed, hold that “[r]egulatory programs almost always require content discrimination,” and grant a presumption of constitutionality to all content-based censorship so long as it was in the name of regulating commercial speech.[48] Perhaps someday Roberts and Co. will realize that no matter how much they capitulate, they will never be able to find common ground with the left-wing extremists recent Democrat presidents have infected the judiciary with.
1. Biden v. Texas
On President Joe Biden’s first day in office, his administration issued a two-sentence memo saying that it would end the Remain-in-Mexico program.[49] Remain-in-Mexico was a system painstakingly created by President Donald Trump and DHS Secretary Kirsten Nielsen to stop the migrant invasion the previous administration’s pro-trafficking policies like DACA (Deferred Action for Childhood Arrivals) had unleashed. Remain-in-Mexico clarified that when detention facilities were full, most southern border aliens could not enter the country until their immigration processes (generally bogus asylum requests) were complete.[50]
When Biden’s abandonment of Remain-in-Mexico faced a slew of lawsuits, DHS Secretary Alejandro Mayorkas issued a new memo clarifying the reasons for the new policy.[51] When that memo faced skepticism from the courts, Mayorakas issued a slightly-different second memo mid-litigation.[52]
In his tortured and convoluted decision, Roberts conceded that perhaps Mayorakas’s procedure was not consistent with the law, and that the Biden administration had indeed switched their posture three separate times. Nevertheless, Remain-in-Mexico could be immediately dismantled: any critics of Biden’s open border policy needed to start over in courts, and SCOTUS might hear them at another time…if they felt like it.[53]
What makes Roberts’ Biden v. Texas ruling so astounding is how blatantly it contradicts his own decision two years earlier regarding the Trump Administration’s DACA recission. In that case, DHS v. Regents of the University of California, Trump’s acting-DHS secretary conceded to state suits against DACA, acknowledging the illegality of Obama’s signature executive order that granted 1.5 million illegal aliens amnesty and access to government benefits.[54] A few months later, Nielsen issued a more lengthy memo that further reiterated the reasons for ending DACA, detailing how the Trump Administration’s decision was both required by law and necessary as a matter of policy.[55] Roberts conceded that yes, the Trump Administration did have the authority to end DACA; and yes, the DACA program may have always been illegal; and yes, Obama may have enacted it in flagrant disregard for all administrative procedures; and yes, the Nielsen memo was probably a thorough justification compliant with all procedural requirements.[56] However, since Trump had previously rescinded DACA prior to Nielsen’s confirmation, and that original memo (which mirrored Obama’s decree from years before) had not been as detailed, Roberts held that all litigation regarding DACA needed to be started from scratch, with the over one-and-a-half million aliens DACA covered getting an indefinite reprieve to spend enjoying their handouts.[57]
Roberts’ total reversal between DHS and Biden exemplifies the ugly truth that even if American patriots manage to overcome fake news, voter fraud, and outright persecution to elect a president for them, that leader will not receive the same equal treatment under the law that is given to the choice of more establishment-inclined voters. If the Supreme Court follows down this path, elections will soon become mere ceremony—outcomes of a president’s policy rely on the courts’ approval, and the so-called justices have already picked the winning side.
[1] See, e.g.,Dr. A. v. Hochul, 213 L. Ed. 2d 1126 (June 30, 2022), denial of cert.; VDare Found. v. City of Colorado Springs, 212 L. Ed. 2d 216 (Feb. 28, 2022), denial of cert.; McCarthy v. Pelosi, 142 S. Ct. 897 (Jan. 24, 2022), denial of cert. [2] SeeNetchoice v. Paxton, 142 S. Ct. 1715, 1715–16 (May 31, 2022), stay of vacated injunction granted; Biden v. Missouri, 142 S. Ct. 647, 650 (Jan. 13, 2022), stay denied. [3] United States v. Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [4] Id. [5] Id. [6] Id. [7] Id. [8] Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [9] Id. [10] Id. [11] Taylor, 596 U.S. _ (2022). [12] Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [13] SeeTaylor, 596 U.S. _ (2022) (Thomas, J. dissenting); see also Taylor, 596 U.S. _ (2022) (Alito, J. dissenting). [14] Holmes Lybrand, The spike in gun violence continues, with 2021 on pace to be the worst year in decades, CNN (Sep. 19, 2021), https://www.cnn.com/2021/09/19/politics/gun-violence-spike-2021-explainer/index.html (“2021 is on pace to be the worst year for gun violence in decades, surpassing even the high levels last year”). [15] Ramirez v. Collier, 142 S. Ct. 1264, 1289–90 (2022) (Thomas, J. dissenting); Ramirez v. State, No. AP-76,100, 2011 WL 1196886, at *1 (Tex. Crim. App. 2011). [16] Ramirez, 142 S. Ct. 1289 (Thomas, J. dissenting); Ramirez, No. AP-76,100, 2011 WL 1196886, at *1. [17] Ramirez, 142 S. Ct. 1290 (Thomas, J. dissenting). [18] Id. [19] Ramirez, 142 S. Ct. 1293–94 (Thomas, J. dissenting). [20] See Former US Marine on Death Row for Murder in Cold Blood, BBC Three, YᴏᴜTᴜʙᴇ (Mar. 18, 2018), https://www.youtube.com/watch?v=THfVYstlL2Q&t=1s. [21] Id. at 1294. [22] Ramirez v. Collier, 142 S. Ct. 1264, 1278 (2022). [23] Ramirez, 142 S. Ct. at 1290–91 (Thomas, J. dissenting). [24] Ramirez, 142 S. Ct. at 1276. [25] Ramirez, 142 S. Ct. at 12905 (Thomas, J. dissenting). [26] Id. [27] Id. [28] Ramirez, 142 S. Ct. at 1277. [29] Id. at 1278 (pretending there is “ample evidence that Ramirez's beliefs are sincere”). [30] Smith v. Shinn, 142 S. Ct. 1714, 1714–15 (May 23, 2022) (Breyer, J. respecting denial of cert.) [31] SeeDr. A v. Hochul, 142 S. Ct. 552, 552 (Dec. 13, 2021) (Gorsuch, J. dissenting from denial of injunctive relief). [32] 42 U.S.C.A. § 2000e et seq. [33] Dr. A. v. Hochul, 142 S. Ct. 2569, 2569 (June 30, 2022), denial of cert. [34] Denezpi v. United States, 142 S.Ct. 1838, 1850 (2022) (Gorsuch, J. dissenting); see also “Henry Teller,” Cᴏʟᴏʀᴀᴅᴏ Eɴᴄʏᴄʟᴏᴘᴇᴅɪᴀ (2022), https://coloradoencyclopedia.org/article/henry-teller. [35] Denezpi, 142 S. Ct. at 1850 (Gorsuch, J. dissenting). [36] Id. [37] See Denezpi, 142 S. Ct. at 1843; see also Denezpi, 142 S. Ct. at 1850 (Gorsuch, J. dissenting). [38] See Denezpi, 142 S. Ct. at 1844; United States v. Denezpi, 979 F.3d 777, 780 (10th Cir. 2020), aff'd, 142 S. Ct. 1838 (2022). [39] Denezpi, 142 S. Ct. at 1851 (Gorsuch, J. dissenting). [40] SeeDenezpi, 142 S. Ct. at 1843. [41] SeeDenezpi, 142 S. Ct. at 1843; United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314 (1922) (“We have here two sovereignties, deribing [sic] power from different sources, capable of dealing with the same subjectmatter [sic] within the same territory.”). [42] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015). [43] SeeCity of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1470 (2022); Tony Plohetski, As mayor urged Austin to ‘stay home,’ he was vacationing in Mexico following daughter’s wedding, KVUE ABC (Dec. 2, 2020), https://www.kvue.com/article/news/investigations/defenders/austin-mayor-steve-adler-coronavirus-covid-19-daughter-wedding-vacation/269-d76bf9b8-54bb-4736-9b00-80fdf2953145/. [44] Reagan Nat’l, 142 S. Ct. at 1470; City of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1481 (Thomas, J. dissenting). [45] Reagan Nat’l, 142 S. Ct. at 1470. [46] Reagan Nat’l, 142 S. Ct. at 1471; Tim Meads, Justice Sotomayor Slammed For Comparing Humans ‘Spewing Bloodborne Viruses’ To Dangerous ‘Machines,’ Dᴀɪʟʏ Wɪʀᴇ (Jan. 7, 2022), https://www.dailywire.com/news/justice-sotomayor-slammed-for-comparing-humans-spewing-bloodborne-viruses-to-dangerous-machines (“Why is a human being not like a machine if it’s spewing bloodborne viruses?”). [47] Reagan Nat’l, 142 S. Ct. at 1484 (Thomas, J. dissenting). [48] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 177 (Breyer, J. concurring); see City of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1476, 1477 (2022) (Breyer, J. concurring). [49] Biden v. Texas, 142 S. Ct. 2528, 2536 (2022). [50] SeeBiden, 142 S. Ct. at 2535; Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1902 (2020). [51] Biden, 142 S. Ct. at 2536. [52] Id. at 2537. [53] See id. at 2544–48. [54] DHS, 140 S. Ct. at 1903. [55] Id. at 1904–07. [56] See id. at 1913–16. [57] See id. at 1913–16.
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