Will the New Chemical Abortion Pill Be Dangerous for Women?

Today the U.S. Supreme Court heard oral arguments in two combined cases regarding the regulation of abortion drugs by the Food and Drug Administration (FDA). In the first case of Alliance for Hippocratic Medicine v. Food and Drug Administration, the 5^th U.S. Circuit Court of Appeals ruled that it was unlawful for the FDA to decide “in 2016 and 2021 to drop the safety rules for obtaining and using mifepristone.”

According to an article by Thomas Jipping and Sarah Parshall Perry, Danco Labs is the maker of a generic version of the drug, and the Supreme Court combined the appeals from the FDA and Danco Laws. The high court will announce its decision before ending its term in June. The article continued. 

The FDS approved mifepristone, under the brand name Mifeprex, in 2000 under strict safety restrictions. It could be prescribed only by physicians with the requisite training to handle potential complications, and women had to obtain it in person. Doctors were also required to report all medical complications from its use. These were unusual restrictions, but they reflected the FDA’s concern about the risks of using this drug.

Medical associations first challenged the FDA’s decision by way of a “citizen petition,” bringing their concerns to the FDA itself and arguing that the evidence did not justify concluding that mifepristone was safe and effective.

Not only did the FDA refuse to reconsider its original approval, but in 2016 and 2021 it actually dropped two sets of original safety restrictions. As a result, doctors no longer have to report any nonfatal complications arising from use of mifepristone, women can use the drug during the first 10 weeks of pregnancy (an increase from the previous seven-week limit), and women never have to see a doctor for an ultrasound or examination before obtaining the drug.

Four medical associations and four individual doctors filed a lawsuit in federal court in November 2020. They challenged both the original approval of mifepristone and both decisions to drop its safety restrictions.

A U.S. District Court in Texas agreed with them that the FDA did not have a sufficient basis for either approving mifepristone or for dropping its safety rules.

On appeal, the 5^th Circuit said that the lawsuit was filed too late to challenge the original approval of mifepristone, but that the decisions to drop the safety rules were unlawful. The original plaintiffs, the FDA, and Danco Labs each appealed the part of the 5^th Circuit’s decision that they lost.

The Supreme Court agreed to consider only whether the FDA had made its 2016 and 2021 decisions to drop mifepristone’s safety restrictions properly, and in accordance with federal law.

There are questions about whether women are in more danger with the decisions of the FDA. Will doctors in emergency rooms be faced with cleaning up the mess when the pills do not cause complete abortions? Will emergency doctors who oppose abortions be forced to complete a botched chemical abortion? Will the chemical abortion pill cause more health problems or even death for women? The authors voiced my thoughts about the case before the justices.

Now, the Supreme Court must weigh the evidence, and decide whether every federal agency is bound to follow the law, or whether the FDA gets a pass simply because it thinks its choices were justified.

           For the sake – and safety – of American women and girls, let’s hope they decide correctly. 

How Long Will This Ruling Last?

Texas won the current skirmish in the battle with the Biden administration over illegal migrants. The Biden administration failed to secure the southern border, so Texas did it. Then the Biden administration sued Texas to stop their action. The Supreme Court ruled that “Texas’ law enabling local police to arrest illegal migrants” could take effect today, according to Katelynn Richardson at The Daily Signal. 

After extending a pause on the law multiple times, the Supreme Court allowed Texas’ SB 4 to take effect Tuesday, declining the Biden administration’s effort to halt it while litigation continues. The Department of Justice first filed its lawsuit against Texas to prevent enforcement of the law in January.

While Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elene Kagan dissented in the decision, Justices Amy Coney Barrett and Brett Kavanaugh concurred. Barrett wrote the following in her concurrence.

So far as I know, this Court has never reviewed the decision of a court of appeals to enter – or not enter – an administrative stay…. I would not get into the business.

Texas’s motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5, almost two weeks ago…. Merits briefing on Texas’s challenge to the District Court’s injunction of S. B. 4 is currently underway. If a decision does not issue soon, the applicants may return to this Court.

The ruling says that Texas can arrest illegal migrants – for now – while litigation continues, so it may or may not be a permanent condition. However, we should be grateful for Texas fighting the fight against illegal immigration. It is obvious that President Joe Biden and his administration is purposely allowing America to be invaded by foreign nationals.

It does not seem to matter to them that terrorists are among the millions of people massing at and crossing the southern border. Anyone who votes for Joe Biden to give him a second term as President has intentionally shut their eyes to the damage being done to America.

I believe that if Donald Trump does not win the presidential election that America as we know it is gone. It will help if Republicans could also take the Senate and the House because Democratic-controlled House would simply impeach Trump once again and a Democratic-Senate would vote to remove him from office.

 

How Will the Supremes Rule about Trump Being on the Ballot?

The liberty principle for this Freedom Friday is the duty of the United States Supreme Court to determine constitutionality of laws. Today the Supreme Court heard arguments in Trump v. Anderson, a case brought by activists in Colorado trying to keep the name of Donald Trump off the ballot. The justices listened to arguments for 80 minutes and asked numerous questions about the consequences of Colorado or any other state having the opportunity to choose whose name should be on the ballot.

The justices all asked tough questions on both sides with the lawyer for the activists struggling at times to answer the questions. The toughest questions seemed to come from the liberal justices. Hans von Spakovsky, a senior fellow at The Heritage Foundation, wrote about the appearance. 

The essence of the case is the decision by four justices of the Colorado Supreme Court, over the dissents of three colleagues, that because Trump engaged in an “insurrection” on Jan. 6, 2021, he is disqualified from being president under Section 3 of the 14 Amendment to the Constitution and thus may be removed from the ballot.

If the U.S. Supreme Court upholds the Colorado high court’s decision, it would disenfranchise millions of voters in Colorado and other states that follow Colorado’s misbegotten action, a concern raised by more than one justice during Thursday’s arguments. Those voters would have their right to choose who they think should be president taken away from them by a small group of state court judges and partisan election officials.

One could see the difference almost immediately in the opening statements of the two sides. Jonathan Mitchell, the former solicitor general of Texas who was arguing on behalf of Trump, presented a constitutional argument on why Colorado and other states don’t have the authority to enforce Section 3 against a federal candidate.

Mitchell also argued that the provision in the 14^th Amendment doesn’t apply to Trump because the former president doesn’t fil the precondition of being a former “officer of the United States” since he was elected, not appointed, to a federal office.

Mitchell spent a large part of his allotted time answering questions about the constitutional basis for that precondition, along with questions about whether Section 3 can be enforced when no federal legislation provides for that enforcement.

It is always difficult to determine how the justices will rule from the questions that they ask. I am a non-lawyer, but the questioning seemed to me to be quite negative toward the side of Colorado. Most experts expect the Supreme Court to hand down their ruling in a matter of days or weeks rather than in June as they do with most decisions.

Will the Supreme Court Kick Trump Off the Ballot?

The United States Supreme Court will hear arguments in the Trump vs. Colorado case on Thursday. The Heritage Foundation held a panel discussion on the topic today to analyze the arguments. Fred Lucas reported that Josh Blackman, a professor at South Texas College of Law in Houston, an expert on the panel concluded that Trump would have to lose “bigly” – lose everything. Lucas quoted Blackman as saying that the Supreme Court would have to “overcome major obstacles” to uphold the December 19 decision of the Colorado Supreme Court. 

“The court has to find, No 1, that Colorado can enforce Section 3 [of the 14^th Amendment to the U.S. Constitution]. No. 2, that the president is an ‘officer of the United States,’” Blackman said. “No. 3, there was an insurrection. No. 4, that Trump engaged in insurrection. No. 5, there is no First Amendment defense to whatever Trump did on Jan. 6. No. 6, the phrase ‘officer of the United States’ refers to the presidency.” …

“If Trump is correct on any one of those junctures, any one of those steps, then he is on the ballot,” Blackman said. “It would take an absolute and complete collapse of Trump’s legal team to lose everything. It’s possible. But he would have to lose every single human point.”

Lucas shared answers to “four big questions ahead of the oral arguments” in the Trump ballot case on Thursday.

1. To Whom Does Section 3 Apply?

The language of Section 3 of the 14^th Amendment reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a ember of Congress, or as an officer of the United States, or as  member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Blackman is the co-author of a friend of the court brief filed at the U.S. Supreme Court. It contends that “civil officer,” referred to in Section 3, applies only to an appointed official or to someone who previously took an oath – not to the president or vice president. To back up that point, he referenced the Constitution’s appointments clause, commissions clause, impeachment clause, and oaths clause.

Further, Blackman noted in speaking of the Civil War-era provision, even Confederate President Jefferson Davis, as well as numerous Confederate politicians and military officials, previously had taken an oath to the U.S. Constitution in appointed or elected positions.

Trump is unique in history as someone whose only oath to the Constitution came as he was sworn in as president on Jan. 20, 2017.

“This is the ultimate off-ramp for the Supreme Court,” Blackman told the Heritage audience….

2. What’s Supreme Court Precedent?

Indiana Attorney General Todd Rokita, a Republican who also co-authored a brief for the high court, argued that neither the courts nor state officials can decide how to apply Section 3 of the 14^th Amendment….

 

3.Is Section 3 Still Relevant?

If the section of the 14^th Amendment does cover Trump, it’s not clear that it is still relevant, since Congress twice voted to remove the barrier to office.

Section 3 is unique in specifying that Congress “may by a vote of two-thirds of each House, remove such disability” for holding office, noted Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.

Congress voted by majorities of two-thirds to do so in both 1872 and 1898.

“It specifically gave Congress the power to void Section 3 and basically remove it from the amendment. There is nothing like that anywhere else in the Constitution,” von Spakovsky said. “It makes sense that they put this in, because this section was put into the 14^th Amendment by Republicans who controlled Congress, because they were angry that all these Confederate military officers and government officials were getting reelected to Congress.” Acknowledging that the Trump ballot case provokes political divisions, von Spakovsky noted: “The most important thing for anyone in this situation to do is to divorce themselves from whether they like or don’t like Donald Trump.”

4. What Happens Jan. 6, 2025, If Supreme Court Punts?

There are grounds for the Supreme Court, led by Chief Justice John Roberts, to punt on the issue of Trump’s eligibility for the Colorado ballot, Blackman said….

My fear is that if the court, a majority, takes this off-ramp and says Congress can do it, then you are going to let Congress do it. The problem is, this lingers on to Inauguration Day.

 

What Can We Expect from Supreme Court in the Future?

            The United States Supreme Court has been much in the news over the past two months. The 2021-2022 court term has been described as a “block buster” one and “absolutely historic.” Of course, the term was capped by the overturning of Roe v. Wade, “the greatest victory of the conservative legal movement” to save the lives of unborn babies. 

            The Supreme Court had mixed decisions among the one hundred or so cases, some supported by conservatives and some that supported by liberals. However, the decision causing the most consternation among liberals was the one sending the abortion issue back to the states. In the aftermath of the decision, the Senate Judiciary Committee held a hearing about the post-Roe legal landscape in America, and a leftist pro-abortion group offers to pay a bounty for information about the location of any conservative justice that dares to go out in public.

            The current Supreme Court found that Roe v. Wade was not decided on a constitutional basis. There is nothing in the Constitution to support the abomination known as Roe v. Wade. The overturning of Roe v. Wade fixes the mistake made by a previous Court.

            Virginia Allen hosted a podcast with Heritage Foundation legal experts Zack Smith and GianCarlo Canaparo to discuss what is ahead for the Supreme Court.

Smith: And I think it’s interesting, Virginia, because each term there’s typically one, maybe two cases where I think you look at and you say, “Wow, students will be reading this case in their first-year law classes, 10, 15 years from now.” But it seems like this term, there were many, many of those cases, not only the Dobbs case that [Canaparo] was talking about. But there was also an important Second Amendment case, also several important religious liberty cases. And so this really was a blockbuster term in the history of the court.

Canaparo: And don’t forget the sleeper issues were some of the administrative law cases, which we can talk about in some detail. But those, they don’t tend to get noticed as much because they don’t implicate sort of the high-profile political issues of the day. But in many ways, those are actually some of the most important cases the Supreme Court decided this term.

            Allen asked for a brief discussion about the “significance of some of those cases. Canaparo began with the “very beginning … the Constitution.” He discussed the “great genius” of the Constitution being the fact that “it was written law.” Other countries, including Great Britain had constitutions, but none of them were written. Another important thing about the U.S. Constitution is “the idea that power is separated.” You “can’t protect freedom as long as the power over that freedom is in one person or one institution’s hand. So they cut out power.”

            According to Canaparo, the second genius of the government created by the framers of the Constitution is that of the three branches of government. The legislative branch was given the authority to create the laws, the executive branch was given the authority and power to enforce the laws, and the judicial branch was given the authority to interpret the laws and to determine if they are constitutional.

            Canaparo continued by explaining that some presidents, such as Woodrow and Franklin D. Roosevelt, usurped power from Congress and consolidated power in the executive branch. “So these executive branch agencies, the alphabet soup of Washington, have the power to essentially write laws.” There were tasks that legislators did not want to do, so they passed their authority to a willing executive branch. So, the executive branch now has power to make laws, enforce them, and even “power to hear cases and trials about those laws.” He continued:

So you’ve got an enormous amount of power conglomerated in the administrative state and like any sort of power-hoarding body, it grows, it expands its own power. And for many years the judiciary has been OK with that under a doctrine called Chevron and Auer. These re deference doctrines the court has said, “Look, as long as the agency is doing something, that’s sort of reasonable. We’re going to let them just do whatever they want.”

And that has been a big problem for a lot of reasons. Not only is it sort of, as a matter of first principles, wrong on the Constitution, but you get a lot of very progressive types who stock administrative agencies because they tend to be the kinds who think that the government is the salvation of the people and you have just seen the administrative state run away with itself.

And this term, we got a number of cases where the Supreme Court put the [brakes] on that in a pretty big way and said, “Look, no, the legislative power belongs to the people and their representatives in Congress and the executive agencies need to stop this runaway power grab.”

Allen then asked some questions about “this particular Supreme Court as a whole.” She said that people are claiming that this Supreme Court is “much more conservative, maybe in their political views, than other Supreme Courts in past history. She wanted to know if this is “a fair assessment” and how this Court compares to “some of the past sitting courts we’ve seen.” Canaparo explained that there is a small “C” conservative and a big “C” conservative.

So yeah, let me start pushing back on the narrative that what the court does is inherently political. The court is conservative in a small “C” way. But what that really highlights is that there’s two aspects to conservatism.

There is conservatism with a big “C,” where you’re striving for political outcomes, which are conservative. But conservatives have done a good job of developing a method of doing what judges do that is conservative in a small “C” way, but not reaching for politically conservative outcomes.

And what that is, it’s called originalism, when we’re talking about the Constitution or textualism, when we’re talking about statutes. And the principle’s simple. It’s that judges have the power to interpret the law, not the power to make law. And so they need to be constrained by what the law actually says. The meaning of the words on the page.

And this is typically a small “C” conservative position, although there are a lot of very thoughtful, smart, liberal law professors out there, some of the best ones, some of the smartest ones, even on the left, who agree that originalism and textualism is the way to go.

But that process of limiting judges to the text of statutes is often going to produce conservative big “C” political outcomes, simply because it means that the legal process isn’t going to lend itself to new and liberal expressions of the law that don’t preexist them. Right?

So if you want to change the law and you are a liberal and you want a judge to change the law for you, rather than the legislature to rewrite a law, a judge isn’t going to have that power if they are a textualist judge.

So it’s going to lend to small “C” conservative outcomes oftentimes, but not always, but it is a mistake to say that this is political conservatism at work. What it is, it’s judges being restrained. It is judges saying, “The text of a statute, which may have been set down many years ago when social mores were different, for instance, controls until Congress or the people change it themselves.”

So in that way, we have seen a shift. This is really the first time since originalism really took off as an idea and a theory in the ‘80s with Ed Meese and [Robert] Bork and Justice [Antonin] Scalia, this is the first time we have had a majority of the court that is really committed to that idea. And that is really heartening.

There will be growing pains as some of the really aggressive activist decisions of the past are reversed because the court used to think that the judges were philosopher kings who could do what they wanted. But so, we’re going to have some growing pains as we correct those mistakes. But that, in the long run, is a very good thing.

            The discussion then went to the appointment and swearing in of a new justice – Justice Ketanji Brown Jackson. She is the first Black woman to become a justice on the Supreme Court, even though there have been two Black men on it. Justice Jackson is expected to join the liberal side of the court with liberal ideology, although she “echoed to some extent some of those originalist textualist talking points” given by other justices currently on the court. Since she replaces another liberal on the court, Justice Stephen Breyer, the court is still considered to have a “conservative” majority.

Could a Biological Male Become the Next “Black Woman” Justice?

            I have written several times about the follies presented by President Joe Biden’s promise to nominate a black woman to the Supreme Court. His promise is blatant discrimination. Such a promise clearly tells all men and any woman other than black women that they need not apply. Only black women will be considered. This is unconstitutional.

            Biden’s promise is also unfair. It is unfair to all Americans who deserve to have the nominee be the person with the best qualifications. It is unfair to all the people who are told that they need not apply. It is also unfair to the person who will be nominated. Biden’s promise plainly tells that person that they are not qualified for the position unless affirmative action is applied. In other words, Biden is telling black women that he does not see them as qualified unless he makes the playing field uneven.

            There may be another reason why Biden’s promise can be dangerous to all women who seek to break the glass ceiling. Biden is striving for complete “diversity and equity.” He also supports transgenderism. Mario Diaz pointed out, “At least theoretically, the first black woman Supreme Court justice could be a biological male who self-identifies as a woman.” Biden has shown that he believes that males can be women. Diaz reminded his readers of Biden’s words when he appointed Dr. Rachel Levine to her position. 

Recall that the Biden administration celebrated with great pride the appointment of Dr. Rachel Levine, a biological male who transitioned in order to appear as a woman, as the “first female four-star admiral of the U.S. Public Health Service Commissioned Corps.”

This administration has also promised to change the long-standing definition of “sex” as biological male-female distinctions under Title IX of the Educational Amendments of 1972 – which prevents sex discrimination in any educational program receiving federal funding – thereby undoing 50 years of women’s progress in this, its anniversary year.

So, yes, in the eyes of the new woke White House, a person who is male biologically can be a woman if they want to be. Males can be females. Period. There is no distinction whatsoever. Unchangeable “XX” and “XY” chromosomes in every cell of a person’s body don’t matter.

            This means that a biologically black man who thinks he is a woman could be considered as the next justice for the Supreme Court. This would be insulting for all women no matter their color. It would also put a justice on the Supreme Court who was mentally ill because no mentally healthy male would claim to be a woman.

Do You Believe that Biden Should Consider All Possible Nominees?

            The topic of discussion for this Constitution Monday is President Joe Biden’s promise to nominate a black woman to replace Supreme Court Justice Stephen Breyer. During the presidential campaign, Biden promised to nominate only a black woman to the Supreme Court and to choose a woman as his nominee for vice president. He is determined to keep both promises, even though his female vice president is an absolute disaster. 

The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court…. It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.

The main qualifications for choosing the next Justice will be race and sex – two categories that various court cases have declared cannot be used to determine ability. In addition, such a decision is inherently unfair. It is unfair to the nominee, and it is unfair to every other potential nominee. It basically says, “No men need apply. No white women, Asian women, or Native American women need apply.”

 Distinguished attorney Jonathan Turley wrote that Biden’s decision to “impose a racial and gender exclusionary rule will now unnecessarily add a controversy to his nomination.” The sad thing about Biden’s promise is that his eventual choice – even though professionally qualified – will be saddled “with an asterisk nomination that is unfair to both the nominee and the Court.” According to Turley, Biden should have expressed his desire to put a black woman on the court, while adding that he would seek the best qualified individual. 

            Most Americans do not object to having a black woman on the Supreme Court. Black women deserve the honor as much as white women do – or Native American women or Asian American women or men of all races. Americans deserve to have the best qualified individual sitting on the highest court of the land.

            Polls show that most Americans disapprove of Biden’s criteria for nominating the next Supreme Court Justice. This ABC News/Ipsos poll finds that “Americans overwhelmingly believe Joe Biden should ‘consider all possible nominees’ (76%) rather than ‘consider only nominees who are Black women, as he has pledged to do’ (23%).” There are “major differences in attitudes” about this topic with “virtually all Republicans saying, ‘consider all’ (95%) compared to only half of Democrats (54%). 

Is There a Threat to Freedom of Religion?

             The liberty principle for this Freedom Friday concerns freedom of religion. This constitutionally protected right has been threatened numerous times during the COVID-19 pandemic and prior to it. The Supreme Court accepted four religious freedom cases for its 2021-22 docket. Kelsey Dallas has the following descriptions of the cases. She included the dates that the cases will be heard. 

Ramirez v. Collier: This case grew out of a death row inmate’s quest to have his pastor with him just before he was put to death by the state of Texas. Under the state’s current policy, religious advisers do not have access to inmates in their final moments. Last month, the Supreme Court put John Ramirez’s execution on hold in order to weigh his religious freedom concerns. The justices will hear oral arguments in this case on Nov. 1.

Federal Bureau of Investigation v. Fazaga: In the wake of 9/11, Muslim Americans faced intrusive and often unjustified surveillance, as I reported last month. However, the people affected generally struggled to challenge the government’s practices in court, in part because officials could claim “state secrets privileges” and refuse to turn over significant evidence. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will examine the limits of these privileges and determine whether the government has been given too much leeway. Oral arguments will take place on Nov. 8.

Carson v. Makin: This case centers on a tuition assistance program in Maine that’s currently unavailable to students at some private, religious schools. The justices will consider whether it’s unlawful to use public money to fund faith-based education, as state officials believe it is. Oral arguments are scheduled for Dec. 8.

Shurtleff v. City of Boston: Can faith-related flags fly on public flagpoles? That’s one of the key questions in this clash between Boston officials and a Christian group. The group alleged religious discrimination after the city turned down its request to use a city hall flagpole that had been shared with a variety of other organizations. The Supreme Court will have to decide if Boston officials were right to worry that flying the flag would represent unlawful religious expression. Oral arguments have not yet been scheduled in this case.

Should Biden Expand the Supreme Court?

             The topic of discussion for this Constitution Monday is the United States Supreme Court. The U.S. Constitution assigns the President to nominate people to the Supreme Court with the advice and consent of the U.S. Senate. According to this history site, it is Congress and not the Constitution that determines the number of justices on the Supreme Court. Congress passed the Judiciary Act of 1789, and President George Washington signed the Act into law – setting the number of justices on the Supreme Court at six. 

            According to the history site, President John Adams was the first president to use the Supreme Court for political purposes. When he lost the 1800 presidential election to Thomas Jefferson, he and his Federalists allies in Congress worked to deny Jefferson, a Democratic-Republican, a pick for the Supreme Court.

            When Chief Justice Oliver Ellsworth resigned from the Supreme Court for illness, Adams nominated, and Congress confirmed a successor, John Marshall, on February 4, 1801, before Adams left office the following month. Adams and the Federalists went one step further and passed the Judiciary Act of 1801, decreasing the number of justices on the Supreme Court from six to five. This further lowered the odds that Jefferson would appoint a justice.

            As often happens, President Jefferson and the new Congress repealed the Judiciary Act of 1801, returning the official number of justices from five to six. During the interim, there were no changes on the Supreme Court, so the number of seated justices never dropped to five.

            Other Presidents and Congresses added and subtracted justices for political reasons. The history site continued with this information.

By the start of the Civil War, the number of Supreme Court justices had increased to nine in order to cover additional circuit courts in the expanding American West. But Abraham Lincoln, upset over the Supreme Court’s 1857 decision in Dred Scott and wanting to cement an anti-slavery majority on the Court, added a 10^th justice in 1863.

After the Civil War and Lincoln’s assassination, Congress clashed with Lincoln’s successor, Andrew Johnson, who was rapidly undoing the “Radical Republicans’” plan for Reconstruction. To limit Johnson’s power, Congress passed legislation in 1866 that cut the number of Supreme Court justices back to seven, all but assuring that Johnson wouldn’t have the opportunity to fill a vacant seat.

The last time Congress changed the number of Supreme Court justices was in 1869, again to meet a political end. Ulysses S. Grant was elected president in 1868 with the backing of the congressional Republicans who had hated Johnson. As a gift to Grant, Congress increased the number of justices from seven back to nine, and Grant gamely used those picks.

The Supreme Court had just ruled that paper money was unconstitutional, which would have “wreaked havoc” with the U.S. Treasury, says Marcus. But Grant and Congress quickly confirmed two new justices who reversed the Court’s decision in the earlier case, saving the Republicans from having to undo the nation’s entire system of legal tender.

            The number of justices remained at nine until the 1930s when Franklin D. Roosevelt was in office. The Supreme Court made some rulings that “undercut” some of FDR’s New Deal legislation. In response, FDR and his Justice Department proposed a bill that would allow FDR to appoint six new justices, bringing the total of justices on the Supreme Court to fifteen. The legislation proposed that “all sitting justices older than 70 would be asked to resign.” For each justice that refused to resign, FDR would appoint an additional justice to the bench. There were six justices age 70 or older at the time, which meant that FDR could appoint up to six new justices. FDR was accused of “packing the court,” and his plan was rejected by a vote of 70-20 in the Senate.

            The number of Supreme Court justices has remained at nine since 1869 despite FDR’s attempt. However, Democrats are upset with the Republican majority justices currently on the Court. There are five conservatives and three liberals on the Supreme Court with Chief Justice John Roberts being the swing vote. The Republican majority, particularly the number of justices who rule according to the Constitution, makes it difficult for liberals to win court cases. Therefore, President Joe Biden is seeking to make a change to the Supreme Court.

            Biden wants to expand the number of justices on the Supreme Court to overcome the conservative majority. Last week Biden signed the “Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the United States. This commission is “a working group of federal judicial experts” who will determine if “reforming” the Supreme Court is a feasible idea and if such a change would have public support. The commission will study the matter for six months to make their determination.

            Several powerful Democrats have already weighed in on the matter. Ilya Somin wrote a recent virtual speech that Justice Stephen G. Breyer gave at Harvard Law School. He told liberals to “think long and hard” about expanding the Supreme Court to eliminate the current 6-3 conservative majority. He said that such a move would “risk making justices appear more political and eroding public confidence in the court.” He stressed the independence of the Court by pointing to the resistance of the Court to listen to Donald Trump’s attempts to have the Court rule on the election. 

            Somin wrote that Breyer echoed the words of the late Justice Ruth Bader Ginsburg who said the following in 2019:

Nine seems to be a good number. It’s been that way for a long time…. I think it was a bad idea when President Franklin Roosevelt tried to pack the court….

If anything would make the court look partisan, … it would be that – one side saying, “When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”

That impairs the idea of an independent judiciary….

            Harry Reid, former Senate Majority Leader, told Democrats to be “very, very careful” in threatening to expand the Court. “I have no problem with the commission, but I think that the commission is going to come back and disappoint a lot of people because I think they’re going to come back and say, ‘We should just kind of leave it alone.’ I think it would be inappropriate at this time after that long history we’ve had in the country to have term limits for judges.”

            Personally, I would not be surprised if Speaker of the House Nancy Pelosi and the House Democrats wrote and passed a bill expanding the Court. Pelosi seems to think that she can do whatever she wants, and she has the votes to get such a bill passed. It is questionable if such a bill would pass the Senate. However, Biden would not hesitate to sign such a bill into law.

Why are Liberals So Upset with the New Constitutionalist Justice?

             The topic of discussion for this Constitution Monday is constitutionalist judges and justices. A constitutionalist judge or justice makes decisions based on what the Constitution says and the original meaning of those words. President Donald Trump campaigned in 2016 on his promise to nominate constitutionalist judges and justices, and he has kept his promise.

            According to this site, Trump appointed just over 200 judges to the federal bench as of September 2020. I assume that this number includes the two Associate Justices on the Supreme Court – Neil Gorsuch and Brett Kavanaugh. When Judge Amy Coney Barrett was confirmed by the Senate and sworn into office last week, she made three constitutionalist justices appointed by Trump. She brings the balances of the court to six “conservative justices and three “liberal justices.” This is the first time in decades that conservatives have outnumbered liberals on the Supreme Court.

With Chief Justice John Roberts being an uncommitted conservative, there could be a lot of 5-4 decisions in favor of conservatism. However, most of the so-called conservative justices have surprised conservatives at least a time or two. I know that the votes of Gorsuch and Kavanaugh have raised conservative eyebrows, but I do not remember any such votes by Clarence Thomas or Samuel Alito. However, we know that conservatives do not vote as a block.

With the nomination, confirmation, and swearing in of Justice Barrett, liberals and Democrats have gone nuts. It seems that they do not like judges and justices that adhere to the Constitution. I wonder why they do not like such judges.

David Harsanyi wrote that “Nothing threatens the progressive project more than the existence of a Supreme Court that adheres to the Constitution,” and this is the reason for the tantrums taking place. 

The Democrat’s tantrums over Justice Amy Coney Barrett assuming the Ruth Bader Ginsburg seat have nothing to do with her knowledge of the Constitution or her record as a judge. They threaten to pack the Supreme Court and to gain power in the judicial system even though the separation of powers outlined in the Constitution will be destroyed. They also want to “fix” the Electoral College and the Senate. Harsanyi gave the following explanation.

If President Donald Trump had nominated Garland to replace Ruth Bader Ginsburg, Democrats wouldn’t have any problem placing him on the court – not even on Nov. 2.

Liberals act as if they are imbued with a theological right to dictate not only the terms but also the nominees of confirmation hearings, whether they win or lose elections.

And when you’re under the impression that the system exists solely to facilitate your partisan agenda, something will seem “broken” every time you lose….

If Democrats win back the presidency in 2020, the opposition will no longer be “resisting,” it will be “obstructing.” The filibuster will need fixing again. The media will again obsess over the problem of “gridlock.” History’s trajectory arcs left, and everything else is just an impediment.

Even though Barrett is highly qualified for the position of associate justice, Senate

Minority Leader Chuck Schumer (D-New York), claimed that the day of her confirmation would “go down as one of the darkest days in the 231-year history of the United States Senate.” He was obviously upset by a justice that adheres to Constitution. Harsanyi continued his explanation.

Once Barrett’s confirmation became a reality, however, Democrats began turning to the real problem. Originalism is the stick in the spoke of progressivism. This crusade has the demagogues leading the idiots.

The former are people such as Sen. Ed Markey, D-Mass., who alleges that “originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.” The latter are the minions who regurgitate this kind of vacuous talking point because they lack a basic comprehension of legal philosophies or civic education that includes an explainer on “amendments.”

None of which is to say the radicalized contemporary left has nothing to fear. Yesterday, Schumer warned: “A warming planet. Workers falling behind. Dark money flooding politics. The curtailing of the right to choose. The limiting of voting rights. Those are the consequences of this nomination.”

            What Schumer really means is that a Supreme Court with an originalist-majority will slow the progressive machine in pushing through policies that undermine the American way of life. He means that he is concerned that the Supreme Court will determine that abortions on demand and attacks on religious freedoms might not be the way to go. He means that unlimited third-trimester abortions on demand and funded by the state might be in trouble, that attacks on religious freedom might be blunted, and that states may be obligated to follow their own laws on Election Day rather than concoct rules as they go along.

Harsanyi continued his article by stating that an originalist-majority will probably upset partisan Republicans at times also. A non-partisan and constitutionalist majority will rule according to the Constitution, which is the way that the Supreme Court should rule. If the Left or the Right are to win, they must win according to the Constitution. The noise made by the Left about the appointment of Barrett shows that they would rather change the court than work to win cases according to the terms of the Constitution.

Who Is Amy Coney Barrett?

             My VIP for this week is Amy Coney Barrett. She is a U.S. Circuit Judge of the Court of Appeals for the Seventh Circuit. She is also the first and only women to occupy an Indiana seat on the Seventh Circuit Court of Appeals. She is 48 years old, pro-life, and a faithful Catholic. She is married and the mother of seven children, two of which were adopted from Haiti.

            Barrett was nominated by President Donald Trump on Saturday, September 26, 2020, to the seat left open by the death of Associate Justice Ruth Bader Ginsburg. By all accounts, she is brilliant and an excellent choice for the seat.

            Growing up in Louisiana, Barrett went to law school at the University of Notre Dame in South Bend, Indiana, where she graduated summa cum laude in 1997. Five years later she returned to Notre Dame (2002) where she taught federal courts, constitutional law, and statutory interpretation. She was named a professor of law in 2010. She received a “distinguished professor of the year” award in 2010 and 2016. While at Notre Dame, she belonged to the conservative legal group, the Federalist Society. 

            Apparently, Barrett is the nightmare for all liberals no matter their party. She is staunchly pro-life and believes that life begins at conception. She is also a constitutionalist. In addition, she is the mother of a child with Downs Syndrome. While many women would have aborted such a child, Barrett chose to give the child life and love. It goes without saying that Barrett’s personal views are different than that of the two women currently serving on the Supreme Court. Therefore, she has much to add to discussions. However, she has affirmed that her personal views as a Catholic and pro-life woman will not influence her constitutional decisions.

Danger to the Supreme Court

            The topic of discussion for this Constitution Monday concerns the dangerous situation in which the Supreme Court currently sits. The Justices that sit on the Supreme Court should not be partial to either political party. They are to judge the law according to the Constitution and not use their position on the bench to support or weaken any politician or party.

            There were great political fights about whether Judge Neil Gorsuch should be confirmed as a Justice for the Supreme Court. Republicans were forced to eliminate the filibuster in order to confirm him. Conservatives celebrated his confirmation, but Chief Justice John Roberts defined the “real danger” that the Supreme Court faces.

            As reported by The Blaze and the Washington Post,  Chief Justice Roberts held a “question-and-answer session at Rensselaer Polytechnic Institute” and said that the “partisan hostility” that took place between the death of Justice Antonin Scalia and the confirmation of Justice Gorsuch “threatens the sanctity of the court.” The Chief Justice said the following.

I want to point out one thing – that throughout this whole process, the Supreme Court has been quietly going about its business of deciding the cases before it, according to the Constitution, in a completely nonpartisan way. … We’ve done it for the past 14 months with one vacancy, and we’ll do it going in the future now that we have a full complement.

            The Chief Justice continued his comments by stating his real concern about the partisanship that took place in the confirmation process.

It is a real danger that the partisan hostility that people see in the political branches will affect the nonpartisan activity of the judicial branch. It is very difficult I think for a member of the public to look at what goes on in confirmation hearings these days, which is a very sharp conflict in political terms between Democrats and Republicans, and not think that the person who comes out of that process must similarly share that partisan view of public issues and public life.

            The Chief Justice showed his faith in the new Justice by saying that he is “confident” that Gorsuch will not be political in his rulings.

The new justice is not a Republican, not a Democrat – he is a member of the Supreme Court. But it is hard for people to understand that when they see the process that leads up to it.

            The problem as described by the Chief Justice is not that the Justices will be partial to one party or the other, but that the people will think that the Justices are political in their judgments. We have witnessed several rulings in recent years – such as the rulings on Obamacare and same-sex marriage – that could look like they are political but maybe not.

            I suppose that there can be differences between “liberal” rulings and “conservative” rulings without politics being involved, but I can see the danger outlined by the Chief Justice. There have been riots in the streets of the nations for the past six months, and some people are still claiming that Donald Trump is not the legitimate president. What would happen in the nation if unhappy groups of people decided that the Justices were not legitimate because they ruled against the interests of those people? I hate to envision the divisions that would form in the nation. We must insist that Congress take the politics out of the confirmation process and vote on the abilities of the judges. Gorsuch would have been confirmed with 100 percent of the votes, and the voting would have been done quickly!

Marriage Battle

                The war between good and evil continues with the marriage battle.  When this battle ends, there will be other battles to fight until the return of Jesus Christ to earth.  We must stay strong and continue our fight.

The Supreme Court of the United States heard oral arguments about marriage last week.  On Tuesday, March 26, 2013, the Justices heard arguments on California’s Proposition 8, and they heard arguments about the federal Defense of Marriage Act (DOMA) on Wednesday, March 27, 2013.  The Proposition 8 arguments on Tuesday focused on those who want to marry while the DOMA case on Wednesday concerns those who are already married. 

                The Justices will deliver their decisions on the cases in June, but court watchers are suggesting possible conclusions.  In the Proposition 8 case, the Justices weighed the fundamental issue of whether or not the Constitution requires that people be allowed to marry whom they choose, regardless of the gender of either partner.  There was a question of why the Supreme Court was even hearing this case:  no state recognized the unions of same-sex couples before 2003 and forty states still do not allow them.  The Justices made clear from the beginning of the eighty-minute argument that they had doubts about whether they should even hear the challenge to California’s voter-approved ban on same-sex marriage.  There was a suggestion that the case could be dismissed with no ruling at all, an outcome that would probably allow gay marriages in California but have no effect in any other state.

                The DOMA case could also falter on a legal technicality without a definite ruling by the Supremes.  The first fifty minutes of this argument focused on “whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.”  If the case ends without a definitive ruling, the Defense of Marriage Act would remain on the books.

                Same-sex marriage supporters as well as pro-marriage citizens gathered in Washington, D.C., to support their causes.   UKDailyMail reported that “Both sides of the debate were out in force, with Christian opponents easily outnumbering advocates for gay marriage.”  We would never know this information except for foreign media sources.

Thousands of pro-marriages citizens from across America peacefully gathered at the National Mall on March 26 to send two simple messages to the Supreme Court:  “Respect Our Votes!” and “Kids Deserve a Mom and a Dad!”   The March for Marriage was led by the National Organization for Marriage (NOM) and a coalition of more than forty-five organizations, all united for the common purpose of defending marriage between one man and one woman.  The event featuring more than twenty speakers demanded that the Supreme Court “respect the millions upon millions of Americans who have voted to enact laws protecting marriage in their state constitutions.”

                Brian Brown, President of NOM said, “A diverse crowd of more than 10,000 marched today to show that those who protect marriage are on the right side of history.  The Supreme Court has no right to redefine marriage and roll back the efforts of Americans to protect marriage as the union of one man and one woman, the only social arrangement that gives children the mother and father they deserve.”

                Brown continued, “The fact that our supporters remained peaceful, kneeling in prayer and singing songs and chants even in the face of verbal attacks and intimidation by our opponents is a testament to the respectful way pro-marriage activists carry themselves, even when harassed."

                Brown concluded, “Forget the media hype and confusion, our numbers today show that the American people are strongly pro-marriage and pro-marriage Americans aren’t going anywhere.  This is the beginning of the fight to protect marriage.  Our opponents know this, which is why they are hoping the Supreme Court will cut short a debate they know they will ultimately lose if the political process and democracy are allowed to run their course.  Those who believe that marriage is the unique and special union of one man and one woman are on the right side of history.”

                There are numerous opinions on the Internet about why there is a war on marriage.  The staff at Conservative Headquarters believes that this war is a political means to destroy the foundation of America.  “Today’s Supreme Court hearings on same-sex marriage come cloaked in an aura of solemn legal proceedings, but they have little to do with the Constitution and everything to do with the raw politics of the campaign to replace the foundations of American exceptionalism with radical secular liberalism….

                Today, Christians are the only religious believers in America that are regularly subjected to publicly sanctioned discrimination.  From the petty (such as banning Christmas displays) to the personal (such as schools and employers banning the wearing of Christian religious symbols) to the fundamental attacks on Christian beliefs perpetrated by the federal government through the Obamacare abortion and contraception mandates, Christians are subjected to a relentless campaign to stifle the public profession or demonstration of Christian belief – and to prevent them from living and conducting their businesses according to those beliefs.

                “None of this is by accident in our view.

                “The Left long ago figured out that traditional Christian faith is the greatest obstacle to their agenda – and that if secular liberalism was to become the governing philosophy of America, then traditional Christianity would have to be destroyed and replaced with something more akin to the state-sponsored churches of Red China.

                “If Christians are left alone to freely practice their faith, then many elements of Barack Obama’s secular liberal agenda (such as Obamacare) would fall, or at least lose some of its most oppressive and coercive elements.

                “Today’s Supreme Court hearing isn’t really about fairness or the separation of powers between the states and the federal government.  It is about forcing traditional Christians to accept radical homosexual practices and the radical secular liberal agenda, stifling traditional Christian religious freedom and undermining the influence of traditional Christian practices and beliefs on American culture.

                “That is the goal of this week’s hearings at the Supreme Court and ultimately of the secular left.”

                Doug Hagmann believes the hearings are more sinister in nature.  “What we are seeing today in the fight for `equal rights’ by homosexual activists is the culmination of an agenda that was set in motion more than a half-century ago.  Before you can fully understand and appreciate what is taking place today, you must first understand that you are being lied to, hoodwinked, and manipulated into the erroneous belief that the issue is about `civil rights’ or `equal rights.’  It’s not.  It’s a deliberate perversion of the moral integrity of our society to advance a much larger and more nefarious agenda.

                “The Progressive homosexual agenda is a tool of those who are seeking the destruction of America.  The activists hypnotized by the illusion of equal rights are nothing more than pawns duped into believing they are fighting for tolerance and inclusion, while the end game scenario leaves no room at the proverbial table for them.  What is taking place today is the systematic destruction of a nation from within, and is insidious in nature and effectiveness by its simplicity.  It is a tactic that uses the pretext of tolerance to break down our cultural standards of morality.  You might be surprised to learn that presenting homosexuality, degeneracy and promiscuity as `normal, natural, healthy’ was identified as one of the goals of the Communist agenda for the takeover of America as read into the United States Congressional record on January 10, 1963 by Rep. A. S. Herlong of Florida.  Of course, the mere mention of such an inconvenient truth will earn you the title of conspiracy nut within the corporate media.

                “If that premise is so far-fetched, one must ask how a mere 3.8% of the U.S. population who identify themselves as homosexuals, bisexuals and `transgendered’ are able to wage such an effective campaign to redefine the morality of our nation.  And even that number is arguably generous as it includes all natures of behavior that do not fit within the definition of traditional heterosexual behavior.  So, how is it possible that such a small percentage of our population is able to polarize a nation?

                “The answer is simple.  The homosexual agenda is an extremely well-organized, well-funded initiative to destroy our core moral values, redefine what is healthy and normal, and to erode our Judeo-Christian values for a greater purpose.  Much like the feminist movement of the 1960s, it is simply one battle of a larger war against America….

                “The fight for the recognition of homosexual marriage rights is not about equal rights, but the promotion of special rights.  It’s not about civil rights, but about moral wrongs.  It’s not about tolerance, but redefining the traditional moral values of our nation.  It is a perverse and sustained assault against our culture.”

                Hagmann concluded his article by stating that “those who choose silence over vocal opposition are complicit and will be held accountable for the violation of our values and for the fate of our nation….  Tolerance of an immoral behavior becomes itself immoral.  Therefore, we will be judged accordingly by our silence.”

                Still another idea was put forth by John Horvat who claims that the bottom line on marriage has to do with economics.  “There are those who claim that the notion of traditional marriage should be `redefined.’  In fact, the Supreme Court is now considering the future of marriage in this country.  Those who advocate `redefining’ marriage fail to understand that we do so at great risk.

                “There are plenty of moral arguments that deal with the need to defend traditional marriage.  However, many refuse to recognize the existence of an objective morality.  For these, perhaps the best way to explain the importance of this essential institution is in terms that people today understand best – economic terms.  If one can reduce things to the bottom line, it seems people sit up and take notice.

                “And so the bottom line is this:  a wedding is more than just a social celebration; it is also a major economic event.  It signals the entry of a new entity – the family – into economy that naturally favors balanced production and consumption.  By its very nature, the family expands the economy by celebrating the coming of life since children are seen as blessings, not burdens….

                “The bottom line is that the heart and soul of economy is found in the family based on indissoluble marriage.  Strong families lead to strong economies.  Frenzied lifestyles cause frenzied markets with their restless spirit of frenetic intemperance.  That is the long and short of it.”

                I believe this entire battle is just a distraction from other more serious problems.  I have little doubt that the marriage battle will continue in the United States regardless of the decisions made by the Supreme Court.  Pro-marriage advocates are not going away, and neither are those who want to redefine marriage.  We will continue to fight this battle because we know that marriage between one man and one woman is ordained of God.  We know that marriage has been between a man and a woman since the time that God performed the marriage ceremony of Adam and Eve in the Garden of Eden.  We know that man does not have the power and authority to change the laws of God.  Same-sex marriage may win the battle on earth, but marriage will continue to be one man and one woman throughout eternity.