We Can’t Even Count on the Supreme Court to Save Us from the Bidenistas

Dershowitz to Newsmax: Courts Will Rule Against Biden on Mandate Penalties, per Newsmax headline.

The courts will likely agree that the federal government has the power to enforce vaccine mandates, but they’ll say that the rules and punishments will have to come from Congress, not from President Joe Biden, Harvard Law School professor emeritus Alan Dershowitz told Newsmax.

He also told Friday’s “American Agenda” that he expects the U.S. Supreme Court will issue a preliminary ruling within a month over whether Biden should have issued the mandates, and the decision will depend on the answers to several questions.

“No. 1, is this something the federal government can do as compared to the states?” Dershowitz said. “The states have police power. The federal government doesn’t have police power. The federal government’s powers have to derive from the text of the Constitution.”

Interesting. Dershowitz believes the Supreme Court will reject Biden’s mandate — NOT because it’s a savage violation of individual rights, but on pragmatic grounds, i.e because the Congress should do it, not the President. Seriously? Would it be ok for the federal government to force abortions or to sterilize people, or to put them in political prison camps, so long as Congress ordered it rather than the President!? If so, our Constitution is in ashes. Nevertheless, I don’t trust the Supreme Court even to issue the pragmatic decision Dershowitz predicts. After their refusal even to consider the considerable evidence suggesting election fraud in 2020, we can never trust them with anything again. Biden will get his way.

Will people refuse to comply? We shall soon know.

Michael J. Hurd, Daily Dose of Reason

Supreme Court Grants Rare Win For Economic FreedomBY ETHAN YANG | JUL 2, 2021 | REGULATION

Economic and civil liberties should not be seen as two ideals to be weighed separately but as one set of inalienable rights that are inherent to our humanity. What is economic prosperity worth if you can’t speak your mind? What value is there to having civil protections if everything else in your life is regulated into despair? Oftentimes civil and economic freedom are intertwined in such intimate ways that there really is no difference. Sadly, today economic rights have taken a second class status under the current judicial status quo, which is why policies that infringe on things like free speech receive plenty of scrutiny yet arbitrary regulations on business pass with almost no oversight.

This is why a recent Supreme Court decision, Cedar Point Nursery v Hassid, is such an important win for those concerned with economic freedom, specifically property rights. The case was decided on June 23, 2021, and was split 6-3 on “expected ideological lines.” Although there was likely much nuance in the thinking of the various justices, the win is a much-welcomed departure from the Progressive status quo of deference to the will of the state. The case itself concerned an “access regulation” in California that allowed labor unions to enter a private property in this case, Cedar Point Nursery, provided that they dispense notice to the Agricultural Relations Board. After doing so, the owner of the property is mandated to allow access without contestation. Such a policy seems to have been clearly put in place at the behest of politically influential labor unions and to the expense of private citizens.

A Rare But Important Victory

Ilya Shapiro and Sam Spiegleman from the Cato Institute weigh in on the matter by explaining:

Cedar Point will go down as a big and clean win for property rights. California’s law is no mere labor regulation: it grants a right to be on the owners’ land three hours per day for 120 days per year. Ending it respects the constitutional rights of both the property owners and union officials, who lose only the ability to trespass for a third of the year.

The Fifth Amendment’s Takings Clause provides, “nor shall private property be taken for public use, without just compensation.” Here, even though the state didn’t seize any property outright, the Supreme Court has long recognized that if a regulation “goes too far,” it’s functionally equivalent to the use of eminent domain.

The Court’s recognition here that state-sanctioned trespasses, even if not permanent and continuous, are compensable takings is a major victory for property‐​rights advocates who have toiled for decades to expand the universe of per se takings beyond the narrow scope of permanent physical invasions or total‐​value‐​loss regulations.

In particular, Cato’s Amicus Brief on the matter explains three basic points on why California’s labor regulation was unconstitutional and curtailed property rights, thus requiring at minimum, just compensation.

The first being that allowing labor unions to simply enter private property with a permission slip from the government violated the right to exclude. If you cannot exclude people from your property, it has ceased to be private property. The fact that the government has given itself the power to grant that decision makes the use of such powers a per se taking of private property.

The second argument is that the state of California has clearly not implemented the access regulation to make businesses safer, nor does the regulation confer reciprocal advantages, which would also make it a per se taking. Allowing labor unions to forcefully enter a private business and stir up commotion is by no means a necessity for safety nor is that benefiting the community as a whole.

The third point is that the state does not have the justification to use its police power because not allowing union trespassing on private land does not in any sense of the imagination pose a safety risk.

For decades, the state and a deferential court system have allowed the gradual unraveling of property rights to the will of the regulatory state. This has justified the aforementioned relegation of economic freedoms and autonomy to second-class status, with the government being able to intervene in economic life provided that it can merely find a rational basis. In the case of Cedar Point Nursery, California’s law essentially allowed property rights to be confiscated by the state for union access, three hours a day, 120 days a year, without just compensation. This was justified as being a “labor regulation” and “necessary for public safety”.

The Supreme Court finally handed a rare, but hopefully, consequential victory to those who respect the institution of property rights. In this case, the Court ended what was an incoherent charade to skirt around the 5th Amendment’s Takings Clause. A charade that attempted to call a blatant appropriation of private property to bolster the power of unions at the expense of property owners an exercise in public safety.

The Importance of Strong Property Rights

Our entire civilization is built on the foundation of private property. Such an institution not only creates strong economic incentive structures that lead to good practical outcomes but also has an important moral foundation. National Affairs recounts the rhetoric surrounding the Civil Rights Act of 1866 by writing:

Illinois Senator Lyman Trumbull, the leading champion of the legislation in the Senate, explained that the “first section of the bill defines what I understand to be civil rights: the right to make and enforce contracts, to sue and be sued, and to give evidence, to inherit, purchase, sell, lease, hold, and convey real and personal property.”… As a member of the House from Ohio argued, “It is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby alone he can live. It is a mockery to say that a citizen may have a right to live, and yet deny him the right to make a contract to secure the privilege and reward of labor.

The right to private property is the right to the products of your own labor. The right to your own labor and its products is the right to your body. Professor Emeritus at Vanderbilt University, James W. Ely, writes:

(T)here are few examples of free societies that do not respect the rights of property owners. One could persuasively maintain that without guarantee of property rights the enjoyment of other individual liberties, such as freedom of speech, would be meaningless. Put simply, the absence of a system of private property renders self-government unlikely. As Justice Joseph Story explained in 1829: “That government can scarcely be called free, where the rights of property are left solely dependent upon the will of a legislative body.

For much of American history, this admiration and recognition of property rights remained a cornerstone of political as well as legal thought. However, much with everything concerning the size and scale of American government, this drastically changed during the 20th century, most notably during the Progressive Era. Ely writes:

Like the Progressives, the New Dealers were impatient with constitutional restraints on governmental power. They quite openly set out to revise constitutional law and reduce private economic rights. Despite some initial judicial resistance, the New Dealers were remarkably successful in achieving their goals and fundamentally altering the legal landscape. Modern constitutional law bears only a faint resemblance to the original constitutional design.

Ely concludes by noting that although many of the judicial precedents have been unwound, the Progressive Era’s legacy on property rights is still salient. The new battle over the soul of constitutional interpretation has only begun and the end result is yet to be seen.

Key Takeaways

Cedar Point was a rare, well deserved, and sorely needed victory for private property rights, a once sacred institution that has all been desecrated over the years. In this case, the Supreme Court affirmed the right of individuals and dealt a blow to cronyist labor unions and their enablers in the government. The Court’s decision marks a step in the right direction towards a judicial regime that enforces the Constitution and does not view it as simply a welcome mat for the ambitions of state actors. Although it is only one decision, it should send a clear signal that in this country, under this constitution, the inalienable rights of individuals shall be protected from the mob as well as the Leviathan.

Made available by the American Institute for Economic Research.

It’s True: Democrats Have Court-Packing on the Menu

News broke on Wednesday that Democrats have prepared bills for both the House and the Senate aimed at increasing the Supreme Court from the current nine justices to thirteen. Were this to pass and new justices to be added, the Supreme Court would cease to be a body that reflects the back and forth of elections, with presidents of one party or another getting the opportunity to add new justices as old ones leave. Instead, it would simply become an unelected quasi-legislative body that pretends every item on the leftist wish list is encompassed in a “living” Constitution.

The Intercept reports that, in the House, the legislators behind the bill are Jerry Nadler (D-N.Y.), Hank Johnson (D-Ga.), and Mondaire Jones (D-N.Y.). Just to give a sense of the IQ behind this trio, Johnson thinks islands, if their population becomes too great, can tip over. (And no, his retrofitted excuse did not remove the stain of that idiotic statement.) Nadler is the shriveled gnome who insisted that Antifa violence in Portland is a myth. (The myth just burned a federal building.) Jones is the generic new Democrat: Stanford and Harvard Law grad, black, gay, demanding Sen. Josh Hawley’s expulsion, refusing to work with Republicans, etc. (And no, his “elite” credentials do not impress me since the odor of affirmative action hangs heavily around him. He’s also graduated so recently that both of those institutions were focused more on indoctrination than education.)

In the Senate, Sen. Ed Markey (D-Mass.) supported the bill. Markey is to the left of left. In addition to sponsoring the Green New Deal that morphed into Biden’s fake “stimulus” plan, here are just some of the things he’s said: Thanksgiving is about “atrocities” against Native Americans; we should take all “weapons of war” from police; and Trump’s nominating Amy Coney Barrett, which was consistent with the Constitution and historic precedent, was “illegitimate.”

Court-packing is nothing but a raw power play. Currently, the Court commands a certain level of respect. The justices represent the kind of ideologically mixed bag one gets when alternating Republican and Democrat presidents have the opportunity to appoint new justices. Because the balance of power goes back and forth, the justices must have a working relationship. Famously, Antonin Scalia and Ruth Bader Ginsburg were genuinely good friends.

This will all change if the Democrats do away with the filibuster and pack the Court. The four new justices will not have any hint of moderation about them. They will be hardcore leftists who may not even pretend to any respect for the Constitution. Currently, the activist justices consider the Constitution a “living” document that can be bent and stretched to meet their ends. With a packed Court, the justices could easily announce that it’s a dead document and conclude, ironically as a constitutional matter, that it’s no longer applicable to modern issues.

If the Democrats can pack the Court, they’ll also add Puerto Rico and Washington, D.C. as new states, which will create a permanent Democrat majority in Congress. Once that happens, this is how things will play out:

Democrats will pass wish-list bills. These might include formally and completely socializing medicine, granting amnesty and citizenship to all illegal aliens, and declaring the Republican Party an insurrectionist organization, with all current and past members subject to immediate arrest. Or perhaps the administration will announce that it will seize all privately held guns or that, in the future, China will have a place at the Joint Chiefs of Staff table.

Horrified citizens will sue. However, no matter how the lower courts decide the case, once they get to the Supreme Court, the packed Court will rubber-stamp all congressional and legislative acts. In other words, despite the fact that the justices are appointed, not elected, they will be a super-legislature. At first, these decisions will come dressed in constitutional garb. Soon, though, the justices will abandon that pretense.

At that point, America, as a constitutional democratic republic, will cease to exist. It’s that simple. We won’t even be a soft democratic socialist country like many in Europe. We will, instead, be a fascist dictatorship, led by a cabal of corporations and politicians.

And here’s the really scary thing: currently, the only thing stopping this from happening is the promise that Sen. Joe Manchin (D-W.Va.) and Sen. Kyrsten Sinema (D-Ariz.) made to refuse to go along with their fellow Democrats’ demand to do away with the filibuster. That’s because, even if the bill passes the House (and it presumably will), the filibuster means that it will take 60 senators to vote yes on court-packing, and that’s not going to happen. Without the filibuster, only 50 Senators, plus Kamala Harris, are required to destroy America.

Be afraid. Be very afraid. And for goodness’s sake, contact your representatives and politely but firmly tell them that the Court is perfectly constituted with nine members.

Andrea Widburg, American Thinker

Kavanaugh and Barrett: John Roberts Retreads ?

All that work for, and faith in, Kavanaugh and Amy Coney Barrett! As with John Roberts before, we are once again the victims of unrequited affection and lost labor. Like other Republicans, I expended lots of hours and effort to do my part in getting all three confirmed. I wrote articles, did radio and TV interviews, gave speeches, called Senators and asked my friends to do so, and spoke to countless people.

I even attended the Senate Hearings for two of them; and in the case of Kavanaugh went face-to-face against a wild group of “feminists” blocking my way to the Senate hearing room, was bad-mouthed by them while in waiting-lines, and harassed in the office taken over by these “non-insurrection” protestors while trying to get my pre-arranged ticket which they had dumped. (Interestingly, when complaining to police how the “progressive” protestors had taken over Senator Grassley’s office, the Capitol Police replied: “This is a public space, open to the people, and we cannot stop them from exercising their right of speech and assembly”).

I have traveled over 800 miles, paid for motels, and over the years took off work so as to help these nominees become confirmed justices. Like so many others on our side, we believed in them. Finally, strong justices, conservative like us. The Court was finally ours… a dream come true.

Well, the dream has died and our hopes for the Great Cause have not been respected by those in whose behalf we so tirelessly worked.

First, the Roberts/Kavanaugh/ ACB trio did not agree to take the Texas case brought by the AGs of Texas and many other states, supported by 100 Congressional representatives, that logically asserted that the voters of their respective states had been disenfranchised by the illegalities of those states that had twisted their election laws to guarantee a national Democrat electoral victory, effectively nullifying a fair election result for those voting in other states. Yes, the reasoning may have been correct, but the trio, together with the pre-disposed liberals, said Texas had “No Standing.”

The Pennsylvania’s case, brought separately and earlier, was the most egregious of all. Pennsylvania’s civil servants and courts brazenly nullified the wishes of the state legislature. State legislatures have been given full and final say-so by the U.S. Constitution over election matters. The Republican legislature was stripped of its constitutional authority by local Democrats, culminating in allowing ballots where addresses and signatures were not verified or postmarked and allowed entry even three days after the election. Yet, the trio and other liberals on the Court said: “Until the actual infraction happens, the case is not actionable.” Yet another excuse allowing the Democrats to cheat as they brazenly did.

To our disbelief, now that the election has happened and the reprehensible consequences have been revealed and implemented in actuality, with grave portent for upcoming elections, Roberts, Kavanaugh and Barrett agreed the case “was moot.” It already happened, they said, and thus it’s too late. In other words, we will never accept these cases, not before the election or after the election and we won’t acknowledge “standing,” either. This is blatantly contradictory, dishonest, a shirking of responsibility and, worse, an indifference to justice and regular voters.

By now, we have seen how Roberts will decide some of the small cases for conservatives, but does whatever legal juggling is necessary to provide the Deep State, Obama, and the Democrats what they want on the big and important cases. Roberts is their clutch hitter. His effusion for Obama and public distaste for Trump is obvious, and his decisions reflect this unprofessional side of him. Old news. Lost cause. While Liberals don’t betray their patrons, has-been conservatives frequently do.

It seems to me that while Kavanaugh and Barrett are “Originalists” in their legal approach to the Constitution, which is but an academic and theoretical discipline, they are not movement conservatives. They are not authentic replacements of Scalia. They are probably not America First types or paleo-conservatives. It is Ivory Tower stuff, not grass roots, rarified thinking, not earthy, gritty conservatism. They are not motivated by an inward, primal urge to do that which allows the people to control their destiny, to undo this injustice to America’s regular voters. They are not, it seems to me, put off by the long reach of the elites or elitism itself.

Perhaps they want to be on the good side of their boss, John Roberts, who assigns plum cases. Perhaps, Barrett and Kavanaugh do not want to be seen or be considered part of the Trump camp, nor be blasted in the headlines of the New York Times and Washington Post. Kavanaugh was thrashed and burned by Democrats during his confirmation hearing and may have learned the lesson they were warning him: Don’t do anything that will thwart us politically or we will again come after you and your family via headlines. A traumatized Stockholm Syndrome victim. Perhaps, Mrs. Barrett wants her children to be accepted in certain Ivy or second-tier influential schools. There is a price to be accepted for that entry: part of your soul.

Perhaps they want to be on the good side of their boss, John Roberts, who assigns plum cases. Perhaps, Barrett and Kavanaugh do not want to be seen or be considered part of the Trump camp, nor be blasted in the headlines of the New York Times and Washington Post. Kavanaugh was thrashed and burned by Democrats during his confirmation hearing and may have learned the lesson they were warning him: Don’t do anything that will thwart us politically or we will again come after you and your family via headlines. A traumatized Stockholm Syndrome victim. Perhaps, Mrs. Barrett wants her children to be accepted in certain Ivy or second-tier influential schools. There is a price to be accepted for that entry: part of your soul.

I suspect that though conservative in approach to constitutional “wording,” Barrett and Kavanaugh are “fair-haired” types, in a way privileged, used to being looked up to and admired, not necessarily fighters, and most likely enamored of certain social “respectability,” getting the nods from the Chevy Chase, Bethesda, Georgetown in-neighborhoods. Perhaps after high school they never had to claw their way up… certainly not like Scalia or Thomas or Alito. They remind me of those sport figures at school that always had a certain leg-up, an ease of acceptance. They got used to it, expected it, and felt entitled to it.

No doubt they are not liberals like Breyer, Kagan, or Sotomayor and will disagree with them regarding the Commerce Clause, some religious liberty issues, etc. After all, conservatives are allowed to support these things without getting totally shunned and ostracized. But they may not be willing to align themselves with the “unsophisticated, deplorable” crowd, something their assent in these cases may have been seen as.

In Yiddish, there is an expression: “der finer mentschen.” It means those who are not willing to get their hands too dirty, like a Romney or Toomey. I hope I’m wrong, but I think these two rarified conservative justices may be from that type, a little too antiseptic and self-conscious to fight the earthy fights. They’ll give us a bone, but not raw meat. Next time, I’ll be looking for a John Wayne-type justice before I travel 800 miles to help.

Photo crefit: YouTube screengrab (cropped)

Rabbi Aryeh Spero is president of Caucus for America and author of Push Back: The Battle to Save our American Judeo-Christian Heritage (which can be purchased on the caucusforamerica website

Supreme Court Goes Full Nicaragua in PA Election Case

For a couple of years, my wife and I escaped Obama’s America by owning a Pacific Ocean hotel in San Juan del Sur, Nicaragua. The irony was that in supposedly socialist Nicaragua, Daniel Ortega’s government left us alone far more than government did in the supposedly free country of the United States of Obama.

Still, while Ortega 2.0 might have shed most of his socialism, he had not shed his lust for power, and the job of making sure he never lost again was that of the Chief Justice Roberto Rivas Reyes of what is in effect the Nicaraguan Supreme Court. I’m not sure who was actually more powerful or corrupt — President Ortega or Justice Rivas — but Rivas’s was bigger. His motorcade, that is, and he owned the two biggest homes on the two most elevated lots in San Juan del Sur, the nation’s top coastal town, a few hundred yards from our hotel.

Today I’m not sure whose court is more corrupt vis-a-vis election law: Nicaragua’s court or our Supreme Court. It appears that Donald Trump has remade the U.S. Supreme Court — in Mitt Romney’s image! (I am not blaming Trump, just stating the obvious.)

While I think the United States Supreme Court stumbled badly in its 7-2 rejection of the Texas case on standing last year, the refusal to “grant cert” (i.e., to take the case) yesterday in a Pennsylvania case is horrifying beyond words. I could say that our election laws are now full-on banana republic, but I’d hate to insult bananas that badly.

What the Supreme Court codified yesterday, and what it started with the Texas rejection, is that election laws and procedures cannot be challenged beyond a state court, at any time, regardless of how badly those states shred the United States Constitution, and regardless of the major consequences to the other 49 states as a result. They don’t ever say that per se, but the results of what those two rulings have done are just that. Period.

Those trying to challenge Pennsylvania’s obviously corrupt and rigged election system have been told that they cannot challenge the laws ahead of the election, because there is not yet a victim. They’ve been told that fellow Americans impacted by Pennsylvania’s corrupt system cannot challenge, because of standing. Now they’ve been told that they cannot challenge after the election, because it’s after the election – and therefore moot.

Ortega on line one, asking the Democrats just how do they get away with this?

This kind of infantile and absurd logic just defies belief and takes one’s breath away. And not just mine. I think it’s clear that Justice Clarence Thomas is even more mystified than am I, and he was livid. He was also, as he always is, right on the money in his analysis.

“One wonders what this Court waits for,” understates Thomas in his dissent, adding “we failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”

In other words, we are punting the ball again. But let’s make no mistake — this is “not doing nothing” with all respect to Justice Thomas. This is proactive, and it absolutely legalizes institutional voter fraud and neuters state legislatures in lieu of state courts. Lawyers gonna lawyer, I reckon.

The only other quibble I have regarding Justice Thomas’s statement is that actually no, we don’t expect more of our courts any more. This is exactly what we have come to expect. We saw Brett Kavanaugh emasculated in his hearing process, and clearly he hasn’t had enough testosterone replacement shots yet, and Amy Coney Barrett, the mom, seems worried about her kiddies at school. Cancel Culture 1, Constitution 0. Voters be damned.

For the record, the broad strokes of the Pennsylvania case revolve around the fact that the Pennsylvania Supreme Court changed election laws at the last minute to expand unchecked mail in voting. The Constitution, that once relevant but now apparently irrelevant document, makes it clear that the state legislatures are in charge of state elections. In Pennsylvania, as in many states, the legislature is controlled by Republicans – while Pennsylvania’s Supreme Court is controlled by radical leftists. One lesson the late, great Rush Limbaugh helped teach us is that the left always uses the courts to get stuff done that they could never accomplish through the ballot box.

Never has that been truer than in the 2020 Election, in Pennsylvania and other places as well. As Thomas adds:

“The Constitution gives to each state legislature authority to determine the ‘Manner’ of federal elections…Yet both before and after the 2020 election, non-legislative officials in various States took it upon themselves to set the rules instead…. [T]he Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots… the Pennsylvania Supreme Court extended that deadline… (and) ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day. … these cases provide us with an ideal opportunity to address (this) before the next election cycle. The refusal to do so is inexplicable.”

Tragically, it’s not inexplicable. It’s very explicable. It’s that the explanations are chilling and uncomfortable. Our Supreme Court is now part of the Washington Swamp, and the Washington Swamp is now totally divorced from any understanding of or caring about the rest of the nation. Roberts surrendered to the Swamp shortly after being seated. Kavanaugh and Coney-Barrett have done so even quicker.

Our Supreme Court is now no more an agent of a free people than similar courts are in places like Venezuela and Nicaragua. Our nation is becoming ungovernable, because there is no reason for a thinking person to have any respect for our institutions like the FBI, The Justice Department, or our courts on any level. We are facing dark days indeed.

Edmund Wright is a long time contributor to American Thinker, Breitbart, Newsmax TV, The Rush Limbaugh Show and author of several political books.