INGRASSIA: The Supreme Court’s Attack On Free Speech Proves The Federalist Society Can No Longer Be Trusted As An Authority For Selecting Judges In A Second Trump Administration
By Paul Ingrassia | Jun. 28, 2024 8:00 am
n 2016, one of the issues that helped calm the nerves of ambivalent conservatives and get them to support President Trump, whom they perceived as an insurgent populist with questionable positions on social issues like abortion, was his commitment to selecting judges on a list provided by the Federalist Society. The Federalist Society has long been considered a trusted authority, especially for conservative lawyers. For years it was customary to believe that any judge that had the FedSoc stamp of approval was worthy of an appointment to the federal judiciary. This was because FedSoc was supposed to stand for textualism and originalism, a faithful adherence to the Constitution’s intended meaning – its judges were widely perceived to be among the cream of the crop.
For years, the organization worked diligently behind the scenes to furnish the legal and jurisprudential handiwork to overturn Roe v. Wade. With President Trump’s election, and the nomination of three FedSoc-approved judges to the Supreme Court: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – all that hard work became reality. With these nominations, the Supreme Court finally delivered the fatal blow to Roe in the Dobbs case, returning the abortion question to the states after a long half-century, apparently vindicating all the Society’s work in the process.
That victory proved short-lived.
Since Dobbs, the Supreme Court’s conservative majority – particularly the decisions written by the three Trump nominations – has been, at best, mediocre. This was on full display this past week, with several disappointing decisions issued by the Supreme Court. For one, despite being a 6-3 majority, the Court struck down an abortion ban in Idaho. But the worst decision by far this week concerned free speech rights, and was written by Justice Barrett — and joined by Justices Kavanaugh and Roberts, along with the Court’s three liberals. This was the decision to punt the all-important issue of whether the government can censor social media platforms.
This should have been as straightforward an issue as one gets for the High Court. It is not a stretch to say that it is a flagrant violation of the First Amendment for the government to harass private social media platforms, like Facebook and Twitter, to censor opinions it dislikes, such as views that go against the dominant narrative on vaccines or election integrity. Rather than offering much needed clarity on the most important free speech decision in a generation, the Supreme Court looked the other way.
The majority opinion refused to address the issue squarely. And it’s not as though this case involved highly complicated issues of law – such as construction of the tax code or a tangled administrative rule, over which reasonable minds may differ. The First Amendment, compared to other constitutional provisions, is one of the most clear cut articles. The issue presented before the Supreme Court in Murthy v. Missouri was simple: does the government have the right to coerce private companies what to say? The answer, even simpler: Of course not!
And yet, the Court swung and missed. It dithered and hid under a legal technicality – saying that the plaintiff lacked “standing” to bring the issue before it. This is total nonsense. First, the Court rarely grants certiorari, or review, on important constitutional considerations, above all First Amendment questions, unless at least some justices believe that it can rule on the underlying merits of the case. The Supreme Court docket is very selective; it does not have the time or resources to ponder trivial matters.
Certainly, at least three justices – Thomas, Alito, and Gorsuch – felt that the Court was prepared to rule on the case’s merits, which they stated in their dissent. But Justice Barrett, who was joined by her fellow Trump nomination in Justice Kavanaugh, did not. Instead of deferring, as would have been appropriate, to the wisdom of Justices like Alito and Thomas, who have decades of more experience in the federal judiciary, Justice Barrett took it upon herself to run roughshod over the First Amendment – casting the most important guarantee in our Bill of Rights into a sea of doubt.
Although the judicial branch pretends to remain “above politics,” Supreme Court justices are not indifferent to political tides. They may hide under the veil of “standing” all they want, but the practical implication of their non-decision is highly political: it gives license to the Biden government to – continue what they have been doing for years – weaponizing Big Tech to subvert conservative voices, including The Gateway Pundit, whose founder, Jim Hoft, was one of the injured plaintiffs, especially in a critical election year.
Amy Coney Barrett and especially, Brett Kavanaugh, should know more than anyone what it means to be targets of a political hit job and censorship by an out of control Left. The fact that Kavanaugh would sign off Barrett’s decision, considering what he went through with his nomination process, is unforgivable!
Barrett’s 30-page spiel masquerading as a judicial opinion is legal sophistry of the worst kind; obscuring a critical issue beneath a tidal wave of technicalities because she plainly wants to avoid a matter she deems controversial and unworthy of her time. What she did was disloyal and cowardly.
And a great deal of that fault is traceable to the Federalist Society itself, which nominated her, for one; and has plainly failed to equip its lawyers with the skill sets needed to tackle some of the most important constitutional issues of our time.
Abortion is fine and all, but the issue post-Dobbs is now settled law. The Federalist Society placed all its eggs in the abortion basket, while ignoring other equally important issues, like immigration, religious liberty, criminal justice, and indeed speech. Justice Kavanaugh has sided with the Court’s liberal wing on several noteworthy law enforcement and immigration decisions. And Justice Gorsuch, who is widely held to be the best of President Trump’s three picks, wrote perhaps the most odious Supreme Court decision of our time – Bostock v. Clayton County (2020), which forced the government to recognize “gender identity” as a protected class, in the same category as race or sex, under the Equal Protection Clause. This would allow the government to discriminate against persons who do not recognize “fundamental rights” for transgenders.
Today, the Court may well release positive decisions on questions of presidential immunity and prevent the federal government from weaponizing obscure statutes to crackdown on January 6th protestors. However, the rulings the Court hands down must be analyzed with a fine-tooth comb; the Court’s “conservative majority” always makes very narrow holdings; this is the expectation for both Fischer (the § 1512 decisions implicating rights of J6 demonstrators) and Trump v. United States (the presidential immunity decision), where the Court will likely only hand conservatives qualified victories (where they should be complete victories) on each.
Moreover, what should not be lost in all the noise, however, is the fact that we have only reached this dire place, where the Court is forced to rule on whether the leading candidate to become the 47th President of the United States should face jail time, because it failed to take up the issue of election integrity when given the opportunity to do so in the immediate aftermath of the 2020 election (again, using the guise of “standing”). Back then, the Court “punted,” much as it did again this week on the First Amendment. The result of that cowardice has been four years of relentless witch-hunts and weaponized justice against not only President Trump, but thousands of his supporters.
That all could have been avoided had the Supreme Court taken up the election integrity question at the time it was brought before it — which would have cleared its docket of a litany of future cases, from presidential immunity to the Steve Bannon case, all byproducts of their failure to rule decisively on the merits originally.
The repeated failures are symptomatic of a High Court utterly ill-equipped to deal with some of the most important constitutional issues of our time. In large part, those failures are directly traceable to the Federalist Society, which has been a disaster in vetting judges for the competence and character necessary to deal with the difficulties political realities our country now faces. With this week’s slew of disappointing judgments, the chickens have finally come home to roost.
The judiciary is the third branch of government and is thus, by its very nature, political. There is no escaping politics, even behind the cloak of a Justice’s robe. For judges to think they are “above politics” is really an admission that they are more devoted to the institutions than the Presidents — and people — who appointed them. The President, who is the most democratically representative member of the federal government because he is the only officeholder chosen by the whole country, is the one who gives his Supreme Court nominees their judicial mandate.
That is a lesson that has been clearly lost on The Federalist Society, many of whose members are still reticent about President Trump – even though he gave them more power (and victories — and, indirectly, money) than any president or politician in their entire forty-two-year history. Whether owing to complacency or cowardice, or sheer incompetence, the Federalist Society and the judges it has anointed have proven woefully inadequate to meet the challenges of our times. Instead of producing street fighters with the legal genius to sufficiently respond to a constitutional crisis of the magnitude our country is facing, and adapt their jurisprudential stances when necessary, they have instead yielded an unimpressive lot of squishy judges who cannot stand on principle whenever confronted with the slightest hint of controversy.
What more appropriate a conclusion than by paraphrasing the late Justice Scalia, whose portentous words that ended his dissent in Obergefell v. Hodges can be slightly adapted to be applied, with uncanny pertinence, to the Federalist Society today, as it did then to a Supreme Court drunk off its own pride: With each decision of the Federalist Society that takes from the People a question properly left to them—with each decision that is unabashedly based not on law …FedSoc moves one step closer to being reminded of their impotence.