One of the breakthrough aspects of Conservative Review in 2016 was our increased focus on judicial tyranny up and down the federal judiciary. I was proud to accompany the release of my book, “Stolen Sovereignty,” with dozens of columns about the federal judiciary, demonstrating conclusively that its entire modern construction is irremediably broken.
Throughout the year, we explored specific cases from the Supreme Court and especially from lower federal courts showing how their entire conception of constitutional interpretation is irretrievably broken. What is regarded by settled law as a federal power, the courts give to the states; what is a state power they give to the feds. What is an inalienable right enshrined into the Constitution, they read out of it; what is antithetical to our founding values or not discussed in the Constitution they enshrine as a fundamental right.
Moreover, we have concluded that the entire public perception of the role of the courts as the sole and final arbiter of constitutional questions is fundamentally at odds with every tenet of our founding values as a democratic republic. Congress has the full array of constitutional tools at its disposal to rein in runaway courts. Also, the legislative branch, along with the executive branch and the states, can use their powers to check and mitigate the damage incurred from bad court decisions as it relates to the actual execution of those decisions as national precedent for broad political and social issues.
I look forward to doubling down on the focus of judicial reform from a legal, constitutional, historical, philosophical, and practical perspective in the coming year. This is the year I hope that conservatives in politics will finally wake up and smell the stench of the judicial tyranny. With Republicans in complete control of the federal government and most state governments, we will only be playing defense in the courts. The legal Left will successfully place every political decision in the courts and will likely succeed in most cases. Although Trump can make a small dent in the mess by immediately filling some vacancies, we have shown how in the long run that strategy will never work to stem the entrenched and irremediable post-constitutional precedent already observed even by conservative judges, aside from the rare Clarence Thomas.
It is my hope that the coming judicial onslaught — from destroying state sovereignty and religious liberty laws to mandating rights for illegal aliens and codifying transgenderism — will serve as the inspiration for conservatives to finally restore the proper balance of power between Congress, the states, and the federal judiciary. Concurrently, with control of 33 state legislative chambers, hopefully this is the year when we finally gain critical momentum in the push for an Article V Convention of the States to reform the judiciary and the entire broken political structure from outside Washington, D.C.
To that end, I give you a partial year in review from our archives to look back at some of the craziest court decisions of the year:
In the landmark SCOTUS ruling of the year, Anthony Kennedy wrote a 5-3 opinion in Whole Woman's Health v. Hellerstedt asserting that states can’t require abortion clinics to meet the health standards for ambulatory surgical centers, or require doctors at the facilities to have admissions privileges at a hospital within 30 miles. The decision opened the door for lower courts to assail every common sense regulation states have implemented to prevent a repeat of Kermit Gosnell horror stories in abortion clinics. With this decision, the Court expanded the concocted right to an abortion to the right to an unregulated abortion clinic.
While Anthony Kennedy and his ilk bastardize the Fourteenth Amendment and concoct phony rights that prevent states from defining marriage, enacting common sense abortion regulations, enforcing immigration law, and maintaining basic state powers over election laws, they allow states to actually discriminate on behalf of “minorities.” In Fisher v. University of Texas at Austin, Kennedy and the other liberals said that college affirmative action programs that blatantly discriminate against whites are constitutional as long as they are necessary to achieve “the educational benefits of diversity.” Thus, the one true violation of “Equal Protection” was blessed by the Court, even as they strike down our history and tradition based on false applications of the Fourteenth Amendment.
Every circuit court that has heard cases related to photo ID laws have “struck down” those common sense laws as violations of the Voting Rights Act and the Fourteenth Amendment. The most egregious was the Fourth Circuit ruling insinuating that black Americans are essentially incapable of obtaining photo ID, even when provided by the state of North Carolina for free. In addition, the Fourth Circuit mandated 17 days of early voting and all sorts of new constitutional rights, such as same-day registration, pre-registration of 16-year-olds, and out-of-precinct voting. Oh, and the court also said that North Carolina election maps were racist. The Supreme Court refused to stay the lower court decision, and only Justice Thomas would have overturned the ruling mandating that 16-year-olds be allowed to register to vote!
After originally “striking down” North Carolina’s state elections maps — an area of law over which states fully control — a federal district court mandated new state legislative elections to be held in 2017, in contravention to the state’s constitution. Together with many other rulings this year throughout the country, federal courts have crowned themselves king over state elections. They have effectively empowered themselves to create new election maps and even new elections, invariably benefiting Democrats.
Talk about the soft bigotry of low expectations! District judge Gershwin Drain ruled that there is a Fourteenth Amendment right for voters to have the option of checking a party-line box on the ballot that automatically renders every vote down-ballot for the same party. The judge opined that simple “office by office ballots” are likely to increase voter confusion and miscast ballots in black neighborhoods because they evidently, in his estimation, can’t ascertain the Democrat candidate running for individual offices. The Sixth Circuit upheld his ruling.
According to the Sixth Circuit, states can’t even clean their voters rolls after employing a painstaking process of verification. In a 2-1 decision, which included a Republican-appointee, the Sixth Circuit forced the Ohio secretary of state to reinstate “voting rights” to 465,000 dead voters who were removed from the rolls through the very process required by the motor voter law. By misinterpreting congressional statutes to prevent states from fighting voter fraud, the courts are essentially abolishing free and fair elections, the underpinnings of our federal representative democracy.
If dead Americans can vote, why can’t live foreign nationals vote in our elections? That is the conclusion we must draw from two court decisions this year. Both the D.C. Circuit Court of Appeals and the Tenth Circuit blocked states from requiring proof of citizenship for voter registration, even when the U.S. Election Assistance Commission explicitly gave them permission to do so. With thousands of non-citizens erroneously registering to vote through motor voter laws, the courts have now blocked the only practical way to prevent non-citizens from diluting the integrity of our elections.
Earlier in the year, the Fourth Circuit ruled that the Fourteenth Amendment and Title IX of the federal education code forces states and school districts to allow boys into female private dressing rooms. More recently, the Sixth Circuit ruled that transgenderism being enshrined into civil rights is already “settled law.” Earlier in the year, a federal judge in Colorado urged the State Department to adopt “gender neutral” passports. Thus, the most immutable laws of nature are now being settled by the courts as the very opposite of their nature. This coming year, the Supreme Court will rule on one of these cases, Grimm v. Gloucester County School Board, in what is likely to be Kennedy’s transgender equivalent of Obergefell.
Almost every district and federal court that has heard cases filed by Planned Parenthood this year have ruled in the group’s favor, forcing states to fund them. Evidently, private abortion groups under criminal investigation for trafficking baby organs now have an inalienable right to taxpayer funds — out of reach of the state legislature to regulate. The Tenth Circuit ruled that Planned Parenthood has a First and Fourteenth Amendment right to taxpayer funding! Judge Michael R. Barrett, a Bush-appointed federal judge in Ohio, ruled that the state cannot cut off funding because the butcherhood "will suffer a continuing irreparable injury for which there is no adequate remedy at law.” This has now dissuaded weak governors like John Kasich from even signing pro-life legislation into law.
A GOP-appointed judge wrote an opinion for the Tenth Circuit completely rewriting the First Amendment, essentially declaring secularism the national religion. They gave standing to a group of pagan polytheists to sue against a privately funded replica of the Ten Commandments placed on the city hall lawn in Bloomfield, New Mexico. How did they demonstrate injury-in-fact to successfully obtain standing against the monument? With a straight face, the judge opined that the plaintiffs suffer “irreparable injury” because they have to pass by the monument while paying their water bill! Meanwhile, states and law enforcement can’t obtain standing to sue when their suffer security and economic problems as a result of Obama violating immigration laws.
By now you are seeing the pattern of how the courts have denuded states of any long-held powers.
While a private abortion organization evidently has the right to taxpayer funding — even if it is violating the conscience of half the taxpayers funding it — a private business does not have the right to merely mind its own business and run its organization according to its conscience. In July, Judge Carlton Reeves blocked the Mississippi legislature from enforcing HB 1523, a law protecting private organizations from being forced to service the homosexual or transgender agenda when it interferes with their “sincerely held religious beliefs or moral convictions.” The Fifth Circuit, including a GOP-appointed judge, refused to stay the district judge’s ruling. Thus, the most sacred rights of conscience and property are shredded by the same courts that create rights to taxpayer-funded abortions.
By now you are seeing the pattern of how the courts have denuded states of any long-held powers. Yet, when it comes to the one legitimate federal power — immigration enforcement — the courts are siding with sanctuary cities that thwart federal immigration officials. On September 30, Judge John Lee of the Northern District of Illinois codified sanctuary cities into law by ruling that localities in six states may not cooperate with federal authorities to detain illegal aliens unless ICE can somehow prove that each random individual is a known flight risk. This is part of a troubling trend of courts overturning settled law and granting illegal aliens standing to sue for avenues to remain in the country against the national will. If nothing is done to block such meddling in congressional power over immigration, the courts will likely thwart every effective immigration enforcement measures conservatives are encouraging Trump to implement.
The Ninth Circuit codified Obama’s illegal executive amnesty by ruling that Arizona could not follow congressional immigration statutes and must instead grant driver’s licenses to those amnestied by Obama. The court ruled that illegals have a Fourteenth Amendment write to affirmative state benefits and that Arizona doesn’t even have a public interest other than “animus” to prohibit them from obtaining driver’s licenses, despite the rash of drunk driving incidents. Meanwhile, this same court refuses to recognize a true right for Americans, the Second Amendment. A few months later, a federal judge in Texas gave standing to illegal aliens to sue the state of Texas to grant their children birth certificates simply by showing Mexican ID cards, thereby stealing the birthright and sovereignty of American citizens.
Indeed, we have a judicial emergency to contend with in 2017!
The courts were responsible for the crime wave of the ‘70s. If nothing is done to stop them, they will spawn a new crime wave in the coming years. In Welch v. United States, with Justice Thomas as the lone dissenter, the Supreme Court retroactively invalidated a major statute which created a mandatory minimum 15-year sentence for those who had three prior convictions for a “violent felony.” Consequently, thousands of the worst criminals in federal prison are flooding liberal district courts with petitions to reopen their cases for potential early release.
In a case where silence is deafening, the Supreme Court refused to hear an appeal from a family-owned grocery and pharmacy store in Washington state that was forced by the lower courts to stock their shelves with Plan B morning-after pills. Justice Alito wrote a scathing dissent noting that the high court’s refusal to overturn lower court tyranny was an ominous sign that there are now five justices on the court who won’t even recognize the most foundational of inalienable rights. Even if Scalia’s seat is filled with a rock star constitutionalist, Anthony Kennedy has jumped the shark on religious liberty.
Indeed, we have a judicial emergency to contend with in 2017!
Alabama’s Chief Justice Roy Moore has been publicly lambasted and stripped of his job and his income for standing up to the Supreme Court.Posted by Conservative Review on Saturday, December 10, 2016
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.