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The Conservative Supreme Court Has Arrived.


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2022 Jul 2, 4:14pm   598 views  10 comments

by Al_Sharpton_for_President   ➕follow (5)   💰tip   ignore  

From abortion and religion to guns and administrative law, ‘I don’t think Justice Thomas has ever had a better term,’ leading appellate litigator Paul Clement says.

Josh Hawley of Missouri came to bury originalism, not to praise it—and he was wrong. “It represents the end of the conservative legal movement,” he said on the Senate floor two years ago, referring to a decision by Justice Neil Gorsuch that redefined “sex discrimination” to protect gay and transgender employees. On Dec. 5, four days after the justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization, Catholic University of America legal scholar Joel Alicea issued a more sympathetic warning. “The conservative legal movement finds itself at its most precarious point since its inception in the early 1970s,” he wrote. If the court declined to overturn Roe v. Wade (1973), Mr. Alicea argued, it would “likely shatter the movement,” bringing “an end to one of the most successful intellectual and political projects of the past half-century.”

Instead, this was the term when the conservative court arrived. Roe and its successor, Planned Parenthood v. Casey (1992), are no longer good law. Neither is Lemon v. Kurtzman (1971), which set up a confusing three-part test to keep religion out of the public sphere. The court expanded gun rights for the first time in 12 years. And it limited the executive branch’s power to regulate without explicit authorization from Congress.

“Let’s put it in simple terms,” Paul Clement says. “I don’t think Justice Thomas has ever had a better term on the court.” (Clarence Thomas joined the court shortly after the start of the 1991-92 term.) Many of this term’s rulings, Mr. Clement says, “seem like they’re joined at the hip in terms of really trying to restore things to first principles, text, history and tradition.”

No one has a better seat to watch the evolution of the current court than Mr. Clement. The 56-year-old lawyer has argued more than 100 cases before the justices since 2000, more than any other advocate—including four this term, three of which he won. He has been at the frontlines of the conservative legal advance, as a clerk to Judge Laurence Silberman and Justice Antonin Scalia, as an appellate litigator in private practice, and at the Justice Department, where he served as solicitor general, the lawyer representing the government before the high court, from 2005 to 2008.

Mr. Clement’s victories this term illustrate the stakes for culture and policy and the conservative majority’s interpretive method. In Kennedy v. Bremerton School District, the court held that Mr. Clement’s client, a Washington state high-school football coach, was within his rights under the First Amendment’s Free Exercise Clause to pray quietly on the field after games. It rejected the district’s claim that such prayer was unlawful under the amendment’s other religion clause, which bars laws “respecting the establishment of religion.”

That’s where the Lemon test came in. In that case, the court had barred state funding for secular instruction at sectarian schools on the grounds that it constituted an “excessive government entanglement” with religion, thus failing the test’s third “prong.” (The first prong required a “secular purpose”; the second, a “primary effect” that was neutral as to religion.)

The Lemon test was “very typical methodology for the 1970s,” Mr. Clement says in a Zoom interview. “It was the product of a court that was very comfortable with fashioning tests and doctrines that were based less on the text of the Constitution and more on looking at previous cases the court had and trying to group them together and come up with a three-part test.”

Over the years the justices repeatedly modified or chipped away at Lemon but never expressly overturned it. That left lower courts without clear guidance even as the justices moved toward protecting religious liberty. In Kennedy, Justice Neil Gorsuch removed all doubt: “This Court long ago abandoned Lemon.” The effect, Mr. Clement says, was not only to vindicate Joe Kennedy’s rights “but to really clear up the doctrine here and make clearer than the court has ever made.”

It’s a classic example of originalism, the interpretive approach of looking to the Constitution’s text, history and tradition. So is another of Mr. Clement’s cases this term, New York State Rifle & Pistol Association v. Bruen, which he calls “a kind of natural experiment in originalism.” The Second Amendment had long been a constitutional orphan; only in 2008 did the justices recognize that it conferred any legal right at all. Because the court, “for better or for worse, took 100 years off,” Mr. Clement says, there’s no accumulation of precedent and it can look at the issue anew. “You get a window into what the court thinks is the best mode of constitutional interpretation.”

The answer turns out to be something different from the approach that has prevailed since the late 1930s, when the court first introduced “tiers of scrutiny”—tests for balancing governmental interests with constitutional rights, with the government’s burden depending on the importance the justices assign to the right being asserted.

The justices laid out no such test in their earlier Second Amendment cases, D.C. v. Heller (2008) and McDonald v. Chicago (2010), but lower courts had improvised their own. No longer. “When the Second Amendment’s plain text covers an individual’s conduct,” Justice Thomas wrote in Bruen, “the government may not simply posit that the regulation promotes an important interest.” Instead, the test will be whether “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Mr. Clement describes Bruen as “kind of wiping the slate clean of a decade of post-McDonald circuit-court law.”

In Dobbs, the term’s highest-profile decision, Justice Samuel Alito’s decision also emphasized constitutional text and history. But unlike in Kennedy and Bruen, only five justices joined it. Chief Justice John Roberts voted with them to uphold Mississippi’s law limiting abortion but said in a lone concurring opinion that he wasn’t prepared to overturn Roe.

One difference is that Dobbs reversed precedent much more dramatically and consequentially than Kennedy did. “Stare decisis is hard,” Mr. Clement says. “The chief is a very conservative justice by historical standards, who happens to be the chief—and either because of who he is or because he’s the chief, sort of has an acute concern with the institution and how quickly it moves and all of that.”

That’s harder for him to control now that the court is no longer evenly divided on many of the most politically charged cases. “If five of the chief’s colleagues to his right are ready to move on something, there are only so many tools in the chief’s toolboxes,” Mr. Clement says. “It’s one of the paradoxes of the job. You call him the chief, the court tends to get named after him, but in reality, for a lot of purposes, other than being the ceremonial head of the Smithsonian and a few other things, you really are just a justice, and you’ve got to operate this dynamic of the nine justices.”

A litigator has to operate the same way. “The job of a Supreme Court advocate is to get to five for your client,” Mr. Clement says. During the Rehnquist court, when Justices Sandra Day O’Connor and Anthony Kennedy often voted unpredictably, he had to figure out how not to “alienate” them while also holding the court’s conservative minority.

“I used to joke that sometimes I think Justice Scalia would ask me a friendly question that was perfectly designed to get his vote and no others, or certainly not more than three,” Mr. Clement says. “You just had to be careful about that, and you had to build your coalition.”

He took special pleasure in arguing before Scalia, his former boss. “He asked me once in a case about implied rights of action,” a doctrine that allowed plaintiffs to bring lawsuits under federal statute that don’t specifically authorize them. “I made an allusion to a case being decided that wasn’t decided in the bad old days when the court inferred causes of action. And he asked me, ‘Well, when do you think the bad old days ended?’ And I said, ‘Well, when you got on the court, Mr. Justice Scalia,’ and that’s still one of my favorite answers.” It wasn’t mere flattery, Mr. Clement insists; it was “exactly the right answer. That is when—it was about 1986 when the court stopped inferring causes of action. So it was a great answer.”

The court closed its term on Thursday with two decisions, both written by Chief Justice Roberts, in which states challenged federal administrative decisions. The Biden administration went 1 for 2. In West Virginia v. Environmental Protection Agency, the six conservatives struck down the EPA’s Clean Power Plan, finding that it exceeded the agency’s authority under the Clean Air Act. In Biden v. Texas, the three liberals and Justice Brett Kavanaugh joined the chief in upholding a change from the Trump administration’s immigration policy.

“It does not seem like an accident that the chief kept the two big administrative-law cases for himself, decided them together on the last day, and ruled for the Biden administration in one but against it in the other,” Mr. Clement says in a Thursday afternoon email. “At one level, today’s cases show that the chief is still a pivotal justice, especially when it comes to administrative law.”

Mr. Clement sees a “commonality” between conservative decisions in administrative-law cases like West Virginia and in constitutional ones like Dobbs. In both cases, the justices are asking: “How do we get issues to a part of the political system where the people can have more of a direct voice? And in doing so, I think the theory is that we will take some pressure off the court in the long run and that will be good.”

He says that pressure inevitably rises when the court is “where the most contentious issues in society are being decided.” That makes it “impossible for the court not to be politicized,” especially in a polarized era. At the same time, the court is “not institutionally wired to respond to wokeness,” because its “whole function depends on having two very different positions, both of which are controversial in one circle or the other, being presented as ably as possible.”

That explains why “one of the things that all nine of them agree on is free speech. . . . That’s really out of step with what’s happening at some of the law schools and some of the undergraduate schools, where the coming generation just doesn’t have the same commitment to free speech principles as my generation had.”

That’s true at law firms as well. The day the court decided Bruen, Mr. Clement and another partner announced that they were leaving Kirkland & Ellis because it told them they’d have to drop their gun clients if they wanted to stay. It wasn’t a first for Mr. Clement: In 2011 he left another firm, King & Spalding, when it withdrew from a case in which his client, the U.S. House of Representatives, sought to uphold the 1996 Defense of Marriage Act. (He lost that case, U.S. v. Windsor, at the high court in 2013.)

What do the justices have in store for the October 2022 term? On Thursday they agreed to hear Moore v. Harper, in which North Carolina lawmakers urge them to hold that state courts can’t rewrite laws governing federal elections “based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”

Next term’s most contentious case may be Students for Fair Admissions v. Harvard, which will revisit Grutter v. Bollinger (2003), the ruling that upheld racial preferences in higher education. Chief Justice Roberts has consistently opposed such preferences. “One of the most memorable lines from the chief over the years is that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ ” Mr. Clement says. “This does seem like an issue that he’s cared about, going back to his days as a practitioner. . . . That might be a context in where you expect to see the opinion written by the chief.”

Mr. Clement says that “historically, when the court has had a term anything like this, it often does nothing but take bankruptcy cases the next term and let the steam out of the system a little bit.” Not this time: “They’re slated to have another fairly substantial and momentous term.” The conservative legal movement may be picking up steam.

Mr. Tomaino is an assistant editorial features editor at the Journal.

https://www.wsj.com/articles/the-conservative-court-has-arrived-paul-clement-dobbs-bruen-religion-administrative-state-justice-roberts-alito-thomas-11656692402

Comments 1 - 10 of 10        Search these comments

1   FuckTheMainstreamMedia   2022 Jul 2, 5:33pm  

I have posted several times that the individual American has no better friends than Clarence Thomas and Antonin Scalia(and Rand Paul in the Senate). I’ve been repeatedly downvoted for those comments, but I am not wrong. Justice Thomas has vindicated my belief in many minority opinions, now everyone can see what an ally of freedom he is.

It’s a shame that the corrupt msm attempts to portray Justice Thomas as lacking intellect. Nothing could be further from the truth. Read any of his opinions. He is a very bright man.
2   Undoctored   2022 Jul 2, 7:16pm  

Will it be possible for this Court to strike down the medical fascism that’s been going on? The verdict on Dobbs might suggest that they would think that as long as it’s not the Federal government coercing people to take a vaccine they’d be OK with that.

However I think an Originalist argument could be made that no level of government can mandate vaccination, as the people are to be “secure in their persons” (4th amendment)? and not be deprived of liberty (5th amendment). Unfortunately I don’t think there are any cases on the way to this Court where they will decide on this issue.

Also much of the unequal treatment is being done by ostensibly private organizations. If the Court is to stop the employment, educational, and public accommodations discrimination against the unvaccinated they’d have to do it in the with reference mainly to civil rights law, not the Constitution.
4   Patrick   2022 Jul 2, 10:54pm  

https://patriotpost.us/opinion/89517-best-pride-month-ever-2022-07-01


Best Pride Month Ever
In the course of a few weeks in June, the Supreme Court has restored democracy, expanded gun rights and expanded religious liberty in ways few thought possible.
5   Al_Sharpton_for_President   2022 Jul 3, 4:30am  

Clarence Thomas Heroically Resists Left-wing Attacks and Exposes the Real Racists

The attacks against Thomas are just the symptom of a great sickness, one of leftists who continue to consider blacks their inferiors and not their peers, and therefore must obey them or be cancelled out

The mirror tactic has worked extremely well for Democrats over the past decade. Relentlessly, systematically, and exhaustively, the left has accused conservatives, libertarians, independents, or people akin to the Republican Party, of being racists, fascists, and any number of adjectives that would surely better identify them, but since only the narrative matters to the left, and not reality, the mirror tactic has worked quite well.

Surely a good number of Americans, ignorant of their own history, know that it was the Democrats who were the perpetrators and defenders of slavery. Yes, the current progressive party was the one that took up arms to defend “their right” to own slaves; and it was the Republicans, led by Lincoln, who fought a war to free their fellow Americans from Democrat slavery.

Another fact that I’m sure few know is that the first African-American senator elected in U.S. history was Hiram Rhodes in 1870 for the Republican Party, while the Democrats elected their first black representative to Congress only in 1993, 123 years after Rhodes’ election.

Yet, despite this, today much of the Western world, supported, of course, by the traditional progressive press, has installed the notion that the Republican Party is racist.

It is curious, since the only party that has openly promoted racism in the history of the United States is the Democrats, while the Republicans took up arms to abolish slavery, and today they are the “racists.”

With Clarence Thomas, the hypocrisy of the left and the Democratic camp was once again exposed. Progressives are furious because Justice Thomas ruled in the Supreme Court based on the U.S. Constitution ruling against Roe v. Wade, which sends back to the states the responsibility to legislate on abortion. This was enough for the entire Democrat propaganda apparatus and leftist mobs to mobilize to brand Thomas as a “dumb n**ger,” “n**ger slave,” and Uncle Tom, among other expletives.

Attacks on Clarence Thomas

Democrats, supposedly the party of inclusion, detest Thomas despite the fact that he is only the second African-American justice in the history of the Supreme Court. In fact, at the time, current President Biden adamantly opposed Thomas taking the bench.

Because of Thomas’ decision, Hillary Clinton was one of those who fired her hateful ammunition, claiming that the Supreme Court justice is a “person of grievance,” full of “resentment and anger.” That is, for the former Democratic presidential candidate, the fact that Thomas interprets the constitution is not a legal fact, but one of resentment; perhaps this is because, as Biden said, blacks must vote compulsorily, whatever the white Democratic elite says, otherwise they are not black.

Chicago Mayor Lori Lightfoot, a Democrat, also took advantage of her participation in an LGBT pride event to send a message to Thomas: “F*ck Clarence Thomas,” she shouted to the crowd, and then took a picture with a white person in the background wearing a T-shirt with the same caption. Ocasio-Cortez also strongly urged the impeachment of Justice Thomas, since what’s the point of having a black justice on the Supreme Court who doesn’t obey the Democratic elite?

Progressive Whoopi Goldberg, on her ranting TV show, told Thomas that she hoped they would not go for him now, because his wife was white and according to her, marriage between people of different races is now also at risk.

It is curious that, despite the fact that the Supreme Court is made up of 9 members, 6 of whom voted in favor of overturning Roe v. Wade, the attacks from the Democratic Party and progressive activists focused on the figure of Clarence Thomas.

For those who look at American politics objectively, it is easy to see that racist woke is nothing new, we are certainly not discovering warm water by writing this column about Thomas, we are only, reflecting what many refuse to acknowledge, no matter how much it glistens in their eyes.

The attacks on Clarence Thomas are just the symptom of great sickness, one of the leftists who continue to consider blacks their inferiors and not their peers, and because of that, insist on affirmative action, and publish articles like the one in the LA Times, asking if California is ready for blacks to arm themselves and exercise their Second Amendment rights.

It seems that the Democrats are still anchored to the era of slavery, although nowadays, it is not shown with forced labor, but with freedom of thought, which must be fanaticized towards leftist causes, or else blacks lose their racial status.

https://elamerican.com/clarence-thomas-resists-left-racists/
6   FuckTheMainstreamMedia   2022 Jul 3, 7:31pm  

Lol I forgot about Thomas being married to a white woman. The imbeciles…and I do mean that in the worst possible way, that are claiming Thomas would come after interracial marriage…are unthinking, uncaring mouth breathers.
7   Patrick   2022 Jul 5, 9:02am  

FuckTheMainstreamMedia says

that are claiming Thomas would come after interracial marriage


Lol, I had not considered the absurdity of that.
8   Patrick   2022 Jul 5, 9:02am  

https://spectatorworld.com/topic/the-epas-loss-is-a-win-for-democracy/


The administrative state’s threat to democratic accountability, which does not feature in Kagan’s dissent, is the theme of Gorsuch’s concurrence. “The framers believed that a republic – a thing of the people – would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers,’” Gorsuch argues. He cites his about-to-retire colleague Stephen Breyer — who signed Kagan’s dissent — on the dangers of the legislative branch divesting its power to the executive branch and the risk of legislation becoming nothing more than the will of the current president or, worse, the will of unelected officials barely responsive to him.
9   FortwayeAsFuckJoeBiden   2022 Jul 5, 9:05am  

do you guys ever get a feeling thst its all coordinated? like how suddenly left leaning judges vote conservative on few soecific issues? like its all political theater for us?

absurd gender politics, gays and trannies everywhere? it all seems absurd and not organic. and fag gates buying up all farmland…

all this shit seems too damn well coordinated
10   Patrick   2022 Jul 5, 9:38am  

https://www.manhattancontrarian.com/blog/2022-7-1-there-are-two-fundamentally-irreconcilable-constitutional-visions

Vision 1. The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection. The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.

Vision 2. The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete. The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document.

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