This article first appeared at The McAlvany Intelligence Advisor on Wednesday, October 9th, 2013:

The potential for liberty’s shrinkage during the ’s session that began on Monday is significant, with some exceptions. The cases on the docket range all across the spectrum:

  • The constitutionality of the recess appointments by President Obama back in 2012
  • The employer mandate in Obamacare requiring them to provide coverage for contraception
  • The authority of police to search the cell phones of citizens they have arrested
  • The current cap on political contributions by individuals directly to candidates
  • Limits on protesters at clinics
  • Restrictions on affirmative action in Michigan
  • Prayers at the start of legislative sessions

Some of these give the court a chance to rectify wrongs and override precedents and expand liberty. Some are obvious. Some, unfortunately, are not. Liberty could be expanded. But it might not be, either.

The recess appointments case looks like a lay down. When Obama nominated two highly suspect and morally decrepit individuals to the National Labor Relations Board while the Senate was in session, he caused an outrage that led not only to his eventual withdrawing of their names, but a lawsuit that was decided in the District of Columbia’s Court of Appeals unanimously against the president. The judge’s words were crystal clear:

An interpretation of “the recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement [in the Constitution] giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.

This cannot be the law.

The judge’s name is David Stentelle. His name ought to be enshrined somewhere.

If the confirms that court’s decision, then it will not only confirm that President Obama (a “constitutional” lawyer himself, so we are told) cares nothing for the document he swore to uphold and defend, but is actively working against the very provisions the founders created to prevent just such appointments to be made. If the court affirms, then future presidents will, it is hoped, be somewhat less enthusiastic about abusing the power, restoring a little balance between the legislative and executive branches.

On the other hand, if the court denies, then it won’t take long for the present president, and others to follow, to exploit that opportunity to the fullest and turn the Constitution’s “advice and consent” requirement into sound and fury, signifying nothing.

In considering the mandate built into Obamacare that employers must provide coverage for contraception, the court will address an increasingly incendiary issue, but will give the court the opportunity to negate at least a part of that Chief Justice Roberts, in a remarkably twisted ruling, declared to be constitutional. Such a negation would be welcome, and perhaps would invite future filings to negate other parts of the law as being unconstitutional as well. One can hope.

The power of police to search, without a warrant, the cell phones of people they have arrested is a sticky issue, placing privacy versus the state’s interest at the forefront. It’ll be interesting to see how this plays out, especially during traffic stops that result in vehicle searches.

In 1971, Congress passed the Federal Election Campaign Act, which restricted political contributions – most of which were negated in Buckley v. Valeo. However, the court left standing the limits placed on individual contributions directly to candidates, for fear of “corruption or its appearance” if a contributor seeks to influence the candidate’s position on an issue in exchange for the money – a “quid pro quo,” in other words. Two members of the court, Justices Antonin Scalia and Clarence Thomas have each argued that Buckley should be overturned on the basis of the First Amendment’s guarantee of free speech. In essence, they are saying that financial contributions are a form of expression of free speech.

There are several problems with this, and this is where the danger lies. How can the court find a middle ground whereby a citizen can make a contribution in support for a candidate without such support influencing how that candidate would vote on issues of interest to the contributor?

Ron Paul found that middle ground. He refused to allow anyone to lobby him on a particular piece of legislation and so lobbyists stopped calling. When one of Paul’s staff members started lobbying him on an issue, Paul was clear and abrupt: “None of my staff will ever lobby me on a bill or they are gone.” Gary North, Paul’s legislative assistant during his first term in Congress in 1976, saw this happen with his own eyes.

Citizens in Michigan got tired of affirmative action overriding good sense in public universities they were supporting with their tax dollars, so they passed an amendment to the state constitution saying so. A lawsuit was brought claiming that this violated the 14th Amendment to the federal constitution, and the has taken this on. This is another sticky one. The original Bill of Rights was intended to place restrictions on Congress, but the 14th Amendment has been ruled to apply to the states as well, with all manner of unintended consequences resulting. This is one of them. The real issue is not affirmative action, although the press will no doubt try to make it sound like it. No, it’s an issue, at its core, of states’ rights. The court has opened the conversation and it’ll be interesting to see how they sort it out.

In another case before the court, the challenge will be to determine free speech rights of protestors at clinics. The court decided back in 2000 in Hill v. Colorado that the 8-foot rule was constitutional. That case was decided by two liberals who no longer reside on the court: Sandra Day O’Connor and David Souter. Their reasoning was typically convoluted: the real issue wasn’t free speech or the First Amendment at all, but instead something called “unwanted approaching” and the court decided that it had an interest in protecting young vulnerable unwed mothers from hearing the pro-life message.

Two present justices on the court, Scalia and Thomas, wrote at the time that “this law is not content neutral” as O’Connor and Souter claimed, and further that “protecting citizens from unwanted speech is not a compelling state interest.”

And so the court will have a chance to revisit the issue, and perhaps overturn Hill in the process, when it considers a Massachusetts law mandating that protestors at clinics must stay 35 feet away, rather than 8. Once again it’s a First Amendment and Fourteenth Amendment issue.

The one case most likely to raise peoples’ ire emanates from the tiny town of Greece, New York, which for the past sixteen years has been inviting members of the clergy to give an opening prayer at the start of each city council meeting. But in 2008, Susan Galloway, a Jew, and Linda Stephens, an atheist, with the help of Americans United for the Separation for Church and State, decided to file a lawsuit, complaining that

A vast majority of the time, [those] Christian clergy have delivered explicitly Christian prayers. Meanwhile, the people in the audience are there to petition their government, receive honors or take the oath of office and they are asked to stand and bow their heads for these kinds of prayers that their conscience doesn’t permit them to participate in.

The case wound its way up to the Supreme Court, which decided it was worthy of consideration. As David Cortman, a spokesman for Alliance Defending Freedom which represents Greece, noted, if the court decides for Galloway and Stephens,

It would have to abandon prior precedent, it would have to abandon hundreds of years of practice going back to the founders of our country, and [it would] put in jeopardy the many practices and events that reflect our religious heritage throughout the country….

On the other hand, if the court finds for Greece, it would be confirming previous precedent in Marsh v. Chambers where the court ruled that such prayers are constitutional. So the decision here should be easy.

But little is predictable when the unelected black robes consider such weighty issues. No matter the outcomes, it should be remembered that each decision is a “decision of the case” and doesn’t automatically become “ of the land.” That power of creating laws resides firmly in the legislative branch of the government, not in the judicial.

In addition, many cases that the court refused to consider are equally deserving, but lower courts’ decisions were allowed to stand. Finally, liberty is tenuous with Chief Justice Roberts being the fulcrum of the court.

May the prayers of the people in Greece, New York, and elsewhere ascend to the throne of the Maker of the Universe in supplication and petition that the be guided by the original intentions of the founders. May it successfully and firmly resist listening to the siren song of expediency in order to meet the agenda of those seeking to remake America in another image.



The Washington Times: Small town, big impact: Supreme Court case could define religion’s role in public

Newsmax: Supreme Court Docket Offers Chances for Conservative Majority

The New York Times: Supreme Court Has Deep Docket in Its New Term

Recess appointments

Buckley v. Valeo

Hill v. Colorado

Schuette v. Coalition to Defend Affirmative Action

Marsh v. Chambers

Greece, NY v. Galloway

Equal Protection Clause of the 14th Amendment

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