Ending the Imperial Judiciary

On Friday (June 27), the Supreme Court delivered a powerful message: The job of the judiciary is to apply the Constitution and laws enacted by the people’s representatives, not to implement a judge’s political agenda. In delivering this message, Supreme Court Justice Amy Coney Barrett humiliated ideologue Ketanji Brown Jackson, who declined to engage in legal analysis, because it was (as Jackson put it) “mind-numbingly technical.”

The Supreme Court gives a lesson to the federal judiciary

In decision after decision this term, the court restored jurisprudential principles to the judiciary’s mission, culminating in repeated rebukes of progressive judges who use the Constitution and federal law as props to advance their political agendas. The era of liberal activist judges that began with Earl Warren’s ascension to chief justice in 1953 has officially ended.

The re-emergence of the Constitution began when the court eschewed “penumbras” emanating from the Constitution hallucinated by Justice William O. Douglas in Roe v. Wade, returning abortion decisions to the states. Then, a unanimous court stopped Democrats from protecting democracy by depriving voters of the opportunity to vote for Trump. Ending the Biden administration’s lawfare, a split court next explained that because the powers of the executive branch are vested in just one person, the president must have immunity to utilize the powers of the office. In other words, the courts are not the president’s boss.

Since January, activist Democrat-appointed judges committed to preserving radical left policies have repeatedly enjoined Trump’s orders. Even liberal appeals courts have begun to stay or reverse the most egregious abuses involving tariffs, immigration, and government layoffs.

The National Guard drama

Last week, after U.S. District Court Judge Charles Breyer enjoined Trump from federalizing the California National Guard because he disagreed with Trump’s prescription for quelling the violence caused by anti-ICE rioters, a three-judge panel of the Ninth Circuit unanimously reversed. The panel rejected Breyer’s right to decide the law, facts, and policy, and reminded him (and 111 other district court judges in the Ninth Circuit) that on matters related to the National Guard, the president’s judgment stands unless it is so extreme as to be dishonest.

During the first 20 weeks of Trump’s second term, the administration filed 19 emergency applications to the Supreme Court to stop district court judges who substituted their policy judgments for the president’s. In almost all cases, the administration prevailed, at least pending a complete judicial review, preserving its right to deport illegal aliens; permitting DOGE to review government spending and recommend cuts; disqualifying transgender people from military service; and allowing cuts to ideologically driven federal grants.

On its regular calendar, the Supreme Court unanimously: held that straight white people have the same rights to be protected from discrimination under Title VII of the Civil Rights Act of 1964 as do so-called marginalized minorities; protected a Catholic charity threatened with loss of its tax exemption by Wisconsin for offering services to non-Catholics; and dismissed the Mexican government’s effort to sue U.S. gun manufacturers for drug cartel violence.

Taking the lower-court judiciary back to school

On June 27 alone, the court:

• Ruled that the American judiciary is required to consider only the “cases and controversies” before it, and may not order nationwide injunctions;
• Agreed parents may withdraw their children from classes that indoctrinate them in trans ideology;
• Held that Texas may bar minors from viewing internet pornography; and
• Strengthened Trump’s powers to impose tariffs by reaffirming, in an unrelated case, that Congress can delegate power to executive agencies if it lays out the general policy, principles and boundaries.

In Mahmoud v. Taylor, Justice Sonia Sotomayor argued that indoctrinating children in trans ideology is “critical to our Nation’s civic vitality” and overrides the First Amendment right to religious freedom. Writing for the majority, Justice Samuel Alito blasted her “deliberately blinkered view” that the purpose of the program at issue was to teach kindness, adding that Sotomayor “ignores what anyone who reads these books can readily see” – that the purpose is to advocate the use of pronouns and choice of gender as “values and beliefs” to be “celebrated” and contrary values and beliefs to be “rejected.”

In Trump v. CASA, Inc., a case the administration may ultimately lose involving Trump’s authority to end birthright citizenship, the majority held that federal courts do not have the power to grant nationwide injunctions that go beyond the specific parties and issues before them to block administration orders.

Calling out a dissenter – by name

The liberal justices dissented, complaining that the limitation would allow Trump too much leeway. Apparently tired of Jackson’s substituting politics for legal analysis, in her majority opinion, Barrett excoriated Jackson’s dissent for being untethered to any legal doctrine, dismissively declaiming:

We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.

When Supreme Court justices and even the Ninth Circuit use strong language to rein in activist judges, the end of the imperial judiciary is nigh.

This article was originally published by RealClearPolitics and made available via RealClearWire.