SCOTUS Has Ended Life as We Know It—For the Better

It has been quite a season for the US Supreme Court. The term generally runs from fall of one year through June of the next. It can go longer, and has. But typically you get the docket completed by the end of June. So June is a big month. This year June was ratcheted up a couple of extra notches.

The Supreme Court building, taken on a trip
to Washington, DC, in 2014

I have in past years tried to analyze the Court's term on my own. There are easier ways now. SCOTUSblog has published a 28-page "stat pak" about the rulings, here. There will always be plenty to talk about related to the highest court of the land; there have been 66 rulings this term. But for today I'm mainly looking at four of the late June rulings.

Dobbs

The biggest news-getter was the June 24 ruling on Dobbs, which overturned Roe and Casey. We saw it coming because of the leaked document in early May—a leak which in itself upended the tradition of trust within the Court. But we have been disappointed so many times in the past, it was hard to be certain it would happen. But it did. It completely overturned those past cases, which had not based their rulings on the Constitution.

This does not ban abortion in the US. It returns the question of abortion to the individual states.

At some future point perhaps there will be a case that considers the question of the right to life of the preborn. This case only considered whether the Constitution granted a right to kill preborn life, and the Court ruled that the Constitution is silent on the issue and therefore the decision is in the hands of the states.

In Texas and a number of other states, that means there is a ban on abortion. In Texas we passed a trigger law in the last legislative session, which said that when/if Roe and Casey were overturned, Texas would assert its right to ban abortion. Also, logically it would mean the law reverts to what it was prior to Roe in 1973, and abortion was illegal in Texas at that time.

This does not mean that women are forced to risk death in order to carry a pregnancy to term. When two lives are at stake and both cannot be saved, the mother’s life is given priority. It happens that in almost all such cases, it’s a matter of losing both lives, because the baby isn’t going to survive to term in a dead mother. If the baby can survive—has reached viability, which is getting earlier all the time—then it’s not an either/or decision. Doctors will try to save both, if they can.

It also does not mean that women with an ectopic pregnancy will be refused care. Termination of an ectopic pregnancy has never been considered an abortion; it is a necessary procedure, because the baby cannot grow to term without ever being in the womb, and failure to end that situation has a high chance of causing death in the mother. If you’re being told otherwise, it’s a scare tactic lie.

In Texas, the punishment for participation in abortion is still being worked out. But at this point the doctors and other participants are held liable, not the pregnant woman.

In other states, the question may still be open. Some states are using the opportunity to extend abortion to abominable levels—up to the moment of full-term birth, and possibly beyond birth, which is infanticide.

Another unfortunate direction is using mail-service prescriptions for abortifacients, which add risk to pregnant women, who will not be under a doctor’s care if complications ensue.

At any rate, when semi-sane people realize they can still get an abortion if they’re determined to do so, the protests simmer down, and people go back to working on their state legislatures. 

Protest following the Dobbs ruling, Getty Images, found here

The decision of June 24, 2022, lifts from us the burden of condemnation for killing babies in the womb—a hideous pagan practice. Individuals—and some states—will retain that burden. But many of us see that God has accepted our efforts to fight against this evil. And we trust that He will help us in the battles yet to come.

 

NY Rifle

The day before Dobbs, there was a big decision on gun rights in New York, where people had been required—for 100 years—to justify their need to get a concealed carry permit. Reasons such as self-protection from overt threats of violence from a stalker could be turned down as insufficient. The Supreme Court ruled that the Constitution was clear; the state could not infringe on a person’s Second Amendment right, as it had been doing.

But the Court didn’t limit the decision to this case. They declared that, not only was this 100-year-old requirement in New York unconstitutional, because the Second Amendment is clear that the right to bear arms shall not be infringed; they said that plenty of other cases needed to be remanded to lower courts for reconsideration based on this decision.

So that changes the trajectory of gun law cases in the US going forward. I’d say that’s a big deal.

 

Kennedy v. Bremerton School District

Those rulings came out on a Thursday and Friday. The following Monday, June 27, SCOTUS ruled on the Kennedy case, in favor of Coach Kennedy and religious freedom. Joseph Kennedy, a football coach in Bremerton, near Seattle, Washington, had been fired for praying after games, on the football field, where people could see him. Students often joined him, including students from opposing teams. The Court ruled that the school district’s claim that, as a government employee he was not allowed to express his religious views where they could be seen was in complete contradiction of the First Amendment, which says the government cannot infringe on our God-given right to freely exercise our religion. They also ruled that his First Amendment freedom of speech had been violated. This is a positive and definitive statement upholding the First Amendment, and it should be good precedent going forward.

Coach Joseph Kennedy
image found here

 

West Virginia v. EPA

I was thinking how remarkable it was to get three such rulings in a row, and wondered what would be next. Then Mr. Spherical Model pointed out to me that there was a case about to be ruled on that had the potential to be much more explosive than Dobbs. It turns out that ruling came on Friday, June 30. The case is West Virginia v. EPA.

On Monday, July 4^th, Joshua Philipp (Crossroads on EpochTV) spent much of his hour on this case, saying it was one of the biggest cases in the US in a long time. He says, “What they actually did was make a ruling against the administrative state.”

Joshua Philipp talks about the Supreme Court's ruling against the EPA.
screenshot from here

So, what is the administrative state? Sometimes called the regulatory state (and sometimes the Deep State, although I’d say that goes beyond the administrative state), it’s a corruption of the Constitution that has been going on for close to a century. Somewhere around Woodrow Wilson’s time, and pretty well established by FDR’s administration, the idea cropped up that the modern world is too complicated now for mere congressmen to be able to understand, so we ought to turn their job over to experts, the regulators.

The regulatory agencies are part of the executive branch. The legislative branch has abdicated its role by passing big, complex laws that mostly say, “and the agency will fill in the details.” The agencies are glad to do that; they live for that. For them it is not so much about accomplishing their stated purpose as it is about building and perpetuating their power. (It was learning this by hard experience that changed economist Thomas Sowell from a Marxist to a conservative.)

What it has come down to is, these unelected bureaucrats set up the laws (only they call them rules, for some sleight of hand), they police and prosecute companies and/or individuals not in compliance, they hold court within their own system, and they pass sentence, which could be a fine, repeal of license to do business, confiscation of property, or worse. In other words, they take upon themselves all three branches of government, essentially wielding unlimited power within their purview.

As we saw during the pandemic, an agency with the assignment of tracking and warning about communicable diseases, the CDC, suddenly took upon itself the power to shut down businesses, declare that landlords cannot evict renters who fail to pay rent, declare under what conditions various companies may operate, force people to wear masks, social distance, etc.

The current case specifically was about the Environmental Protection Agency. The state of West Virginia, along with two coal companies and other parties, sued the EPA. Problems with the EPA go back to its inception. But this particular case related to the Biden administration’s goal of creating a carbon pollution-free power sector by 2035, and then net zero emissions economy-wide by 2050. As Philipp points out, “Folks, you and I are made of carbon. And cows breathe out carbon— We breathe out carbon dioxide. Carbon dioxide net zero is impossible to do, unless you eliminate all life on earth.”

But those are the EPA targets. And, of course many of the administration’s efforts, their new rules to accomplish these audacious goals, were passed through the administrative state, not through Congress, not through any actual legislative process.

Maybe you think, nevertheless, that it’s not a bad idea to limit greenhouse gas emissions, mercury toxicity in the air, coal ash in air pollution, and various Clean Air Act standards for power plants and for particulate matter and ozone levels, haze in population centers, etc. Maybe you think there’s some level of sanity we could agree on there, just so long as it does not mean getting rid of all our power sources practically overnight.

But then they go too far, even for you, when they decide that the EPA is also about “racial justice.” What does that look like? I don’t know. But some bureaucrat who is not accountable to me or any other voter gets to decide. And maybe they’ll decide I’m in violation of EPA standards for writing things they don’t agree with on a blog like this. Or for being ethnically “white” instead of whatever color they decide deserves favor. And if I object to their ruling against me, I have no recourse, no way to defend myself.

It’s called a whole of government approach. So “racial justice,” or whatever the priority whim of the day, relates to all the various agencies: EPA, HHS, CDC, OSHA, you name it.

West Virginia, et al., felt they were suffering harm from these Biden administration policies. And fortunately they were granted standing, because of this harm. These administrative courts generally don’t grant standing; they don’t allow a jury trial; they don’t allow for a public defender—so essentially only the large companies with plenty of resources can push back on regulations. So getting standing in an actual court of law was necessary.

The worry, expressed by anti-constitutionalists, since at least 2019, has been that a conservative court might reconsider what was being termed the non-delegation doctrine—that the Congress did not have the power to delegate lawmaking authority, as it had been doing pretty consistently for 84 years or so. Justice Thomas had conversed with Justice Scalia about just such ideas some years ago. A majority conservative court could actually do something about it.

The night before the ruling, Gregg Phillips (the tech guru in 2000 Mules) tweeted out: 

I hope y’all will consider joining us in prayer tonight. The Supreme Court will rule on West Virginia v. EPA.

The consequences of this ruling will resonate for another 100 years. For more than a century Congress has ceded power to write broad and far-reaching laws to bureaucrats accountable to no one. This is how the deep state was built.

I pray that the SCOTUS delivers a blow from God’s mighty hand.

Gregg Phillips tweet, here

The Supreme Court could have ruled in a limited way, simply that the EPA had overstepped the boundaries of its power.

But their reasoning said that this overreach entailed making laws that did not pass through Congress, and were therefore unconstitutional.

That means this ruling applies to all regulatory agencies acting this way.

It’s one of those things that might not look like much when it happens but might eventually be seen as the pivotal moment. Something like a small seismic event that causes what appears to be a small crack in a dam, but which turns out to be the structural weakening that eventually brings the whole dam down in a massive flood.

The enemy worried big time when the Court took up the case. And in the week leading up to the ruling—which did what they feared it would—there was a fair amount of handwringing going on. But since then there has been radio silence.

Joshua Philipp commented on it:

I'm blown away, frankly, by the fact that almost no media is talking about this, like the weight of what just happened. I mean, I'm telling you all this right now, I feel the weight of what just happened can’t be overstated. This basically changed the way our government has worked for over 80 years.

This has brought America back to the government we had prior to this…. This is a huge, huge seismic shift in how our country functions.

I asked son Political Sphere about this general silence on the case, during our Fourth of July family time, and he thinks it’s because no one wants to call attention to it. It’s not a sudden collapse. It will be a gradual one, as one lawsuit after another takes on regulatory overreach using the WV v. EPA ruling as their pattern. So the lawsuits are being lined up, and those people don’t want undue attention that could make their road harder. And the opposition doesn’t want to encourage more people to take up lawsuits, by speaking about it now that it is the reality.

But, despite the deafening silence, it’s a big deal. As Joshua Philipp puts it,

Most of the government, as it stands right now in the United States, is unconstitutional. Most of the administrative state is unconstitutional—most of the laws we have to abide by that were not passed through Congress are unconstitutional.

And he adds,

By deciding in favor of West Virginia, the Court could begin to rein in the vast powers of the alphabet agencies in DC that run our lives and return it to legislators, whom we elect, to create legislation.

It may not be hyperbole when he says, “I would call it like the second American Revolution we just witnessed.”

screen capture, highlighted, from the Opinions page of the Supreme Court

 

Summary

The Supreme Court has been on a roll. I like it.

The great thing for the country is, when the Supreme Court abides by the Constitution, everyone wins; when they go off and make rulings based on their own feelings, everyone loses—and the country might take 50-100 years to recover from those bad rulings, however well-intentioned the justices might have been when they made them.

There are a couple of metaphors I’m picturing for this term. In one, I picture SCOTUS, and mainly Justice Clarence Thomas, in the role of Martin Luther nailing his list of grievances on the church door. He was reminding the church of his time of the infractions against the law and doctrine the people were supposed to be able to count on. Eventually that church made all, or most, of those reforms. But in the meantime, the whole world changed, reformed, and religious freedom became a big part of the change.

In another metaphor, I’m picturing the signers of the Declaration of Independence, with Justice Thomas holding the pen and parchment as Thomas Jefferson did. The Declaration is, in large part, a list of grievances, deviations from the common law the citizens were supposed to be able to count on, but that King George had violated. The patriots had the moral high ground. And God upheld them.

I believe our Constitution was God-inspired—the rule of law, equality under the law, the balance of powers, the preservation of inherent rights, the limits placed on government. It’s a beautiful work.

Ignoring the Constitution has put us in peril. Ignoring the laws of God—honoring God, family, life, truth, and property ownership—has put us under condemnation. This term's rulings lift some of the condemnation, and some of the peril. May God bless these good justices! And may God shine His light on this exceptional country once again!