Posted on 07/10/2025 4:36:18 AM PDT by MtnClimber
Currently at the U.S. Supreme Court, the conservatives hold a 6-3 majority. While there are exceptions, most of the politically sensitive cases break along the 6-3 ideological lines. Recent prominent examples of cases breaking in that way include Trump v. CASA (limiting the ability of district judges to issue nationwide injunctions against executive actions); U.S. v. Skrmetti (upholding Tennessee statute banning transgender surgeries on minors); and Loper Bright v. Raimondo (ending the rule that courts should “defer” to administrative agencies as to interpretation of their regulations). In these and numerous other cases, the three liberal justices (Kagan, Sotomayor, and Jackson) would have reached the opposite result.
But the 6-3 conservative majority is very much a result of happenstance. Donald Trump won the 2016 election by a hair, and then got three Supreme Court appointments in his first term. Had Hillary Clinton won, she would have appointed three liberals. Barack Obama’s appointment of Merrick Garland got sunk by some deft maneuvering by Mitch McConnell. Liberal David Souter, appointed by George H.W. Bush in 1990, retired in 2009 (and has since died), while conservative Clarence Thomas, appointed by the same president in 1991, continues to serve.
With a few different breaks, the Court could easily have a 6-3, or even 7-2, liberal majority. Do you ever wonder what our law might look like if that had occurred?
You don’t have to look far to find out. In Europe and Israel, the political left has found ways to control the judiciary, and in particular the highest courts, no matter which political parties win the elections. And here in the U.S., the barrage of litigation against Trump administration initiatives has given a coterie of Obama- and Biden-appointed district court judges the opportunity to show their view of how the law ought to work.
In Israel and various European countries, left-wing judges have somehow arrogated to themselves powers to overrule most any decision of the political branches that they don’t like. At Gatestone Institute on July 8, Drieu Godefredi has a roundup. Godefredi calls what is going on alternately “judicial imperialism” and “judicial tyranny.” Excerpt:
From Israel to the United States, via Europe, the judicial coup d'état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging.
Consider the case of Israel. Although Israel has had conservative governments for most of the last several decades (Benjamin Netanyahu has been Prime Minister for almost 18 years out of the 30 years since 1996), the Israeli Supreme Court is firmly in the hands of the left. Rather than being named by the political branches as in the U.S., the Israeli Supreme Court’s members come from a Judicial Selection Committee, the majority of whose members are selected either by the Supreme Court itself or by the Israel Bar Association. Lacking a written Constitution like we have in the U.S., the Israel Supreme Court has decided that it can declare actions of the political branches invalid because they are “unreasonable.” Godefredi:
In the 1980s and 1990s, . . . the Court took on the power to assess the "reasonableness" of government decisions, thus giving itself a political veto over the elected government's choices. . . . There is no decision of the Israeli government and parliament that cannot be overturned by unelected judges.
The court has gone as far as to disallow appointment of cabinet officers on the grounds of “unreasonableness.”
Or consider the case of France. While the Biden administration got tied up in knots trying to prosecute its main political adversary (Trump) on some phony charge or other, the French judiciary has been more efficient. Godefredi:
Leading in all the presidential polls, Marine Le Pen, leader of the National Rally party, has been sentenced to a five-year ban from holding public office with provisional execution. . . .
Le Pen’s alleged wrong was “assigning assistants paid by the European Parliament to French national tasks.”
Here’s another example cited by Godefredi:
In 2024, the Constitutional Council censured [struck down] several provisions of the Immigration Act, adopted under political pressure to tighten the conditions for entry and residence in France.
And in summary:
There is effectively no longer a single "right-wing" measure that can be adopted in any field by Parliament or the government without being struck down by the Constitutional Council or the courts.
Other examples cited by Godefredi include several from the European Court of Human Rights compelling European states to accept immigrants from Africa despite statutes to the contrary.
Well, the Europeans and the Israelis have nothing on some of their American counterparts. Consider the latest from one Judge Indira Talwani of the District of Massachusetts. It seems that one of the many provisions of the One Big Beautiful Bill Act, that became law upon signature of President Trump on July 4, would prohibit the federal government from providing further funding for Planned Parenthood. On July 7, Planned Parenthood was promptly in court seeking an injunction against the end of its funding. Note that this termination of funding was not a result of some unilateral Trump Executive Order, but rather part of a duly enacted statute. Under what possible theory could a court order that Congress could not do that?
Here is a write-up from National Review today. Excerpt:
The case went to Judge Indira Talwani, a Barack Obama appointee. Before even waiting to hear the Justice Department’s defense of a duly enacted federal law, she issued a “temporary restraining order” (TRO) ordering that the federal government, starting immediately and continuing the next two weeks, “shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood” and affiliates. Planned Parenthood is already asking the court to extend the order further before giving the federal government its day in court. . . . Judge Talwani did not issue a legal opinion explaining why she was overturning an act of Congress. Her order made none of the findings required under the Federal Rules of Civil Procedure for a TRO. Nor is this a proper TRO. As we have previously observed, “a TRO is supposed to restrain one side of a case temporarily, so that nothing changes until the court can issue a final order changing things, which then can be appealed. But [the district judge] tried to force the government to pay money it can’t get back.” By ordering that moneys be irrevocably withdrawn from the Treasury without an act of Congress — indeed, in direct contravention of an act prohibiting them — she is flatly contradicting the Constitution’s allocation of powers.
So we now have District Judges who think that they can order the President to spend taxpayer funds that Congress has specifically directed cannot be spent. I would expect this one to get overturned promptly on appeal. But that’s only because of our current Supreme Court. Is there any doubt that a Supreme Court with a majority of Ketanji Brown Jacksons would uphold Judge Talwani’s order?
In Trump’s first term the Supreme Court could not issue an injunction preventing him from saving the Supreme Court. We are so fortunate that Hillary lost.
From Israel to the United States, via Europe, the judicial coup d'état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging.
Excellent article.
What we would look like is not rule of law but lawlessness and anarchy as the oligarchy seized power and protected themselves and left the rest of us to live in the hell on earth they created.
Indeed we are. And I will never forget waking up, thinking that she HAD won, and then finding out otherwise in a call from my sister: “Can you believe it! THANK GOD!” I had no idea, and found it hard to believe, but was quite, quite happy.
“Currently at the U.S. Supreme Court, the conservatives hold a 6-3 majority.”
Wanted to stop reading there, but I rolled my eyes and continued.
When it comes to President Trump intervening in what the democrats were doing and planning to do, I’ll always believe God’s hand was on all of it.
Think about all the things that had to happen and NOT happen for him to be POTUS....ESPECIALLY this time.....it had to be supernatural to a certain degree.....that’s what I think anyway.
This is exactly why the Executive has to HIMSELF stand up for his rights when the courts trash law reason and tradition. Giving a corrupt institution the final vote on the question is insane. We’re not talking about the grey area of written law here that is the courts bailiwick.
Someone pass the word to the Wisconsin GOP - they were asleep at the switch as the Wisconsin Supreme Court was flipped. That oversight will take years to reverse.
It isn’t 6-3 conservative. More like 4-5.
There is a bit of fear porn in this article. The fact is that there is a solid, somewhat conservative majority on the court. The court is undoing a lot of bad liberal jurisprudence. Could it be better? Sure. But its as good as it has been in a long time. This is a time to celebrate and use the court to achieve conservative aims. Not worry about what happens if Liberals take a 6-3 majority.
I do have a pet peeve when people call the court a 6-3 conservative court. At best it is a 5-3-1 Court as Roberts is not a conservative. It is a 6-3 Republican President appointed court. But Democrats do a better job at appointing ideological loyalists.
“The Fate Of The U.S. If The Left Got Control Of The Supreme Court”
...and Mark Levin was good with this through much of 2016, including through a month after the convention, when it was officially either Trump or Skunk Cabbage. He only decided to support Trump that September, after his (crashing) ratings came in. And all because Trump fought back against Cruz.
So much for him being our “Constitutional Scholar”...he was more of a “Constitutional Terrorist” in those days.
Oh, and possibly Dobbs/Roe's repeal, too.
Stick with me.
The Lifeguard of Chappaquiddick is largely responsible for the destruction of Robert Bork's SCOTUS candidacy. That slot was occupied by Justice Anthony Kennedy ultimately.
Justice Kennedy was a squish. But he DID side with the majority in Heller. That's big.
Ah, but what if Bork hadn't been Borked. Well...the truth is... Bork MAY have voted against Heller.
In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.”[4] While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right. In fact, Bork’s skepticism regarding the gun lobby’s advocacy of individual rights under the Second Amendment (shared by former Chief Justice Warren Burger) may have been the reason the National Rifle Association chose to remain neutral during Bork’s 1987 confirmation hearings. Moreover, Bork might have been reluctant to overrule (or distinguish into irrelevance) the arguably contrary precedent in United States v. Miller[5], which is what the majority in Heller did. It appears that Bork construed Miller the same way Justice Stevens’ dissent in Heller did: as ruling that the Second Amendment confers a collective, not an individual, right. The way he put it in Slouching Towards Gomorrah (12 years before Heller) was: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”
By blocking Bork and paving the way for Kennedy, Uncle Ted very possibly helped save the legality of the Individual Model.
It gets better.
Bork died in 2012 during Obama. That would have guaranteeing a leftist nut-job replacing Bork, tipping the scales to a 5-4 liberal SCOTUS majority until Ruth Buzzy Ginsberg died in 2020. That is a LOT of bad rulings.
It also means no 6-3 margin for Dobbs, Bruen, or EPA. Parenthetically, anyone whining about ACB et al look at actual empirical evidence vs conservative surrender-monkey nonsense.
So Ted, you magnificent liberal, wherever you are, thank you for being a friend of the NRA and patriotic Americans.
Yes I know, here on Free Republic , only Alito and Thomas are described as conservatives.
It depends on people’s point of view. The MSNBC crowd and most in the media, consider the court to be 6-3 conservative.
They really should clarify that six were appointed by Republicans, but that does not mean they are going to be conservative in every single case, which comes before the court.
If they get Congress back they will pack the Supreme and legalize all illegals to vote. Instant permanent majority.
Our freedom still hangs by a thin thread.
They have control now.
As much as I can’t stand Mitch McConnell, we really owe that dude for his ballsy, unprecedented Merrick Garland nuking.
the three liberal justices (Kagan, Sotomayor, and Jackson) Three blind mice, three blind mice...
A TRULY frightening thing to consider! The SC would immediately dispense with all Constitutional regard and institute fascist liberalism upon America citizens. America would quickly become a cesspool of the worst that current democrat run States now endure...
unfortunately, it WOULD then be time for the patriots of the United States to bear arms against them.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.