SCOTUS’S 27 JUNE OPINIONS—NOTHING LESS THAN COMMON SENSE JURISPRUDENCE
INTRODUCTION
The left’s handwringing over the three decisions that I will discuss herein continues to establish its untethering from mainstream moral and legal thought. The bottom-line takeaways from these decisions clearly resonate with most Americans, who do not need to be Constitutional scholars or lawyers to truly understand that for all of the history, tradition, and legalese, the basics of these rulings are nothing more than common sense. In fact, much of so-called “conservatism” is nothing more than the harnessing of those natural rights of freedom and individuality that so offend the progressive mind. The logical disconnect that one carefully chosen District Court can bind the entire nation to a ruling through a universal injunction when, in practice, that opinion and judgment may not be binding on another District Court in that same District! The notion that the moral upbringing of a child, especially within the religious beliefs of a family and church, synagogue, or mosque, can be overridden by a School Board’s fiat, and, finally, that a child’s accessibility to pornography should be checked by an age certification are not concepts that should cause one to take decisive sides. These are decisions that should be applauded. And they are herein.
TRUMP V CASA ET ALS—UNIVERSAL INJUNCTIONS ARE NOW EXTINCT AND JUSTICE JACKSON’S CALL FOR AN IMPERIAL JUDICIARY GETS A BEAT DOWN
Here Justice Amy Coney Barrett comes out swinging, and in a 6-3 decision (the usual suspects dissent on very shaky legal ground, and Justice Jackson simply invented her Dissent) established for the ages that the Judiciary Act of 1789 does not give Article III federal courts the equitable authority to issue nationwide or universal injunctions from their District or Circuit. President Trump’s Executive Order 14160, which identified circumstances wherein a person would not be “subject of the jurisdiction of the United States,” was immediately challenged by several blue States and individuals in three District Courts. These Courts issued universal injunctions declaring the Orders unenforceable against ANYONE, not just the parties before the Courts and the Courts of Appeal in each instance declined to issue a stay of those Orders. The effect was to bind parties and States that did not challenge the Executive Order. These included persons and states that agreed with the Order’s pronouncement and would abide by its guidance and provisions. My analysis of the concept of “birthright citizenship” is examined earlier in this Blog and I believe that it does not apply to those who are not here permanently or naturalized. The Court here did not reach the merits of the constitutionality of the Executive Order, but it was the perfect vehicle to put the brakes on the prevalence of universal injunctions from the period of the 1960s until the present. Justice Barrett and the majority reviewed the history of traditional equitable relief since 1789, and before, and concluded that the universal injunction lacked a historical pedigree, was nonexistent even during the intense litigation that occurred during the New Deal era, and was also absent in the review of 18th- and 19th-century equity practice. The main point was that a universal injunction establishes the supremacy of the judicial branch in the inferior courts over the executive when a nationwide Executive Order can be frozen by a single District Court. Stated simply, Congress constrained the Judiciary by not authorizing universal “equitable relief” over nonparties, yet as Justice Jackson and the dissenters urged, what mattered regardless of the law was how the Judiciary may constrain the Executive. In her taking Justice Jackson to task, Justice Barrett wrote, “…Justice Jackson would do well to heed her own admonition: ‘Everyone, from the President on down, is bound by the law.’ That goes for judges too.” It didn’t stop there. Justice Barrett, in a departure from tradition, criticized the constitutional acumen of Justice Jackson’s Dissent in the body of the Opinion:
“JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever… In her telling, the fundamental role of courts is to ‘order everyone (including the Executive) to follow the law—full stop.’ Rhetoric aside, JUSTICE JACKSON’s position is difficult to pin down. She might be arguing that universal injunctions are appropriate—even required—whenever the defendant is part of the Executive Branch. … If so, her position goes far beyond the mainstream defense of universal injunctions. … As best we can tell, though, her argument is more extreme still, because its logic does not depend on the entry of a universal injunction: JUSTICE JACKSON appears to believe that the reasoning behind any court order demands “universal adherence,” at least where the Executive is concerned… In her law-declaring vision of the judicial function, a district court’s opinion is not just persuasive but has the legal force of a judgment… Once a single district court deems executive conduct unlawful, it has stated what the law requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere. 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.”
SCOTUS mic drop moment if there ever was one!!!!!
MAHMOUD V. TAYLOR—RELIGIOUS LIBERTY AND PARENTAL RIGHTS VINDICATED
During the 2022-2023 school year, and at the height of the Biden-Harris assault on the Equal Protection Clause as well as the First Amendment, and, well, pick one, the Montgomery County, Maryland, School Board (probably Weingarten acolytes) declared that DEI and its “Inclusive” component provided the impetus to introduce into the curriculum a variety of LGBTQ+ texts (who votes on what is included in the +?), which provided story lines for students from kindergarten through the fifth grade focusing on sexuality and gender. The Court noted in an Opinion written by Justice Alito that Montgomery County, Maryland, was not only the most populous but also the most religiously diverse County in Maryland, with several religions represented in the School District. The introduction of these controversial texts into the curriculum was tempered early on with an “opt-out” option for those with religious objections to this unabashed attempt at grooming young minds into accepting certain lifestyles and transgender ideology as “normal” and to be celebrated. One of the exhibits of record was a book depicting a young child begging his parents to be made into a different gender. When I was in fifth grade, we played with marbles and traded baseball cards. Scores of parents opted out, and after a year, the School Board held that no one could opt out because it would be “disruptive to the classroom.” Apparently, a School Board attorney thought that this would secularize the practice, and force-feeding children this nonsense in the name of “inclusion” was the full-speed-ahead protocol. Wrong.
Justice Alito wrote for a 6-3 majority, and, yes, the usual suspects dissented:
“Our Constitution proclaims that ‘Congress shall make no law … prohibiting the free exercise’ of religion. Amdt. 1. That restriction applies equally to the States by way of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). And the right to free exercise, like other First Amendment rights, is not “shed . . . at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506–507 (1969). Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise. The parents assert that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice and opt-outs—unconstitutionally burdens their religious exercise. At this stage, the parents seek a preliminary injunction that would permit them to have their children excused from instruction related to the storybooks while this lawsuit proceeds. To obtain that form of preliminary relief, the parents must show that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction would be in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008). The parents have made that showing.”
The parents who sued are a mix of Muslim and Christian parents who vehemently objected to this insult to their sincerely held religious beliefs. The Muslims believe that there are biological men and women divinely created and that gender cannot be fluid or unwoven from sex. To teach otherwise and have it given the imprimatur of a public-school lesson would be to contravene these beliefs. Likewise, the Christian parents objected to the notion of same-sex union and the belief that “sex” was fluid and untethered to your biological sex. These lessons, which one would question being part of any curriculum, were directly contrary to current religious teachings. To send your child to a public school is not to surrender the moral component of their upbringing, whether that sounds in religious or secular moral teachings. Focus on science, math, history, and English. Leave the moral issues to the family. This is anathema to the Marxist educator who wants to nullify what those pesky parents are teaching their children at home.
These parents prevailed on their injunction, and the stage has been set for all public schools to refrain from engaging in the type of indoctrination and grooming that has no place in a country where we are severely behind in STEM and reading. In loco parentis does not mean they get to raise your child. Nuff said.
FREE SPEECH COALITION V. PAXTON—A COMMON-SENSE REQUIREMENT OF PROOF OF AGE TO PROTECT MINORS FROM ACCESS TO OBSCENE CONTENT
Justice Thomas wrote for the 6-3 majority, yes, you guessed it, and upheld Texas’ H.B. 1181, which required proof of age to access content that is obscene to minors, while also holding that the age requirement is only an incidental and non-substantial burden on the First Amendment rights of adults. Therefore, the law survived the intermediate scrutiny that the law was subjected to. Intermediate scrutiny is cast between the rational basis test that presumptively validates the police power enactments of a legislature and strict scrutiny, which is the most stringent test to apply in the protection of fundamental rights like speech. This law implicated First Amendment-protected content; however, the burden of age verification was not substantial for adults, and the minors had no First Amendment right to access speech that is obscene to them. It therefore passed the intermediate scrutiny test of constitutionality imposed by the Court. He wrote:
“The First Amendment, which applies to the States through the Fourteenth Amendment, prohibits laws ‘abridging the freedom of speech.’ As ‘a general matter,’ this provision ‘means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). But this principle ‘is not absolute.’ Ibid. To determine whether a law that regulates speech violates the First Amendment, we must consider both the nature of the burden imposed by the law and the nature of the speech at issue. Our precedents distinguish between two types of restrictions on protected speech: content-based laws and content-neutral laws. ‘Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if ‘ they satisfy strict scrutiny. Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). That standard requires that a law be ‘the least restrictive means of achieving a compelling state interest.’ McCullen v. Coakley, 573 U. S. 464, 478 (2014). Content-neutral laws, on the other hand, ‘are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.’ Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) (citation omitted). Under that standard, a law will survive review ‘if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.’ Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997) (Turner II)”
Justice Thomas went on to validate the right of Texas to prevent minor’s access to obscene content:
“The power to verify age is a necessary component of the power to prevent children’s access to content that is obscene from their perspective. ‘No axiom is more clearly established in law, or in reason, than that … wherever a general power to do a thing is given, every particular power necessary for doing it is included.’ The Federalist No. 44, p. 285 (C. Rossiter ed. 1961) (J. Madison); accord, T. Cooley, Constitutional Limitations 63 (1868); A. Scalia & B. Garner, Reading Law 192–193 (2012). Hence, where the Constitution reserves a power to the States, it also reserves ‘the ordinary and appropriate means’ of exercising that power. 1 J. Story, Commentaries on the Constitution of the United States §430, pp. 412–413 (1833). For example, in the Eighth Amendment context, we have explained that, because ‘capital punishment is constitutional, … “there must be a constitutional means of carrying it out.”‘ Glossip v. Gross, 576 U. S. 863, 869 (2015) (alteration omitted). Similarly, because the First Amendment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition. Requiring proof of age to access that speech is one such means.”
We do not need to parse out the different levels of constitutional scrutiny used by the Judiciary to measure intrusions on protected rights—the decision makes sense and is a proper guide for those states that have similar laws.
CONCLUSION
The left will continue to question the legitimacy of a Court that is not a rubber stamp for regulatory agencies and school boards. A Court that refuses to legislate and respects the separation of powers. This Court protects fundamental rights without carving them from whole cloth. Justice Jackson’s whole cloth approach to the binding effect of a single District Court ruling is to embrace an imperial Judiciary with significant power over the Executive. When that Executive is Trump, expect the level of Judicial activism to be on steroids. Also expect the Supreme Court to be on high alert.
Mike Imprevento
June 29th, 2025.
