The POTUS said that the SCOTUS is outrageous.
The Supreme Court is outrageous?
That's outrageous.
That is next.
♪♪
Hey, welcome back to The Barry Farrell Show.
Biden was just overseas at a NATO conference.
The first question he was asked when he was over there
was why 85%, the largest percentage in history,
why 85% of the U.S. public
thinks the country is going in the wrong direction.
Well, he denied reality.
He said that that poll just doesn't exist.
He literally said, they do not think that.
So he went on to say,
the one thing that has been destabilizing
is the outrageous behavior of the Supreme Court
of the United States.
Now, this is while he was on foreign soil.
It's the president of all of the United States
saying that one of the three branches of government
is outrageous.
Well, is there any truth to this?
The short answer is no.
The Supreme Court had a full session.
It's hard to keep track of everything.
I had to do a little research
to kind of remember all the things that were going on.
I learned that 36% of the major rulings in 2022
were either unanimous,
or seven to two, or eight to one.
Yet of the 14 major rulings in 2022,
the mainstream media would have you think
that they were all six to three
conservative justice rulings.
Truth of the matter is we have five justices
who are largely originalists.
They would look to the constitution
and amend any amendments from the perspective at that time.
And then we have a chief justice
who's sort of in the middle,
but he leans conservative on about 50% of the issues.
Three of the justices are liberal, they're progressive.
They do not believe the constitution's always right.
And they believe it's incumbent upon them to fix it
through the lens of modern day issues.
So, before we dive in, let's look at some numbers.
There were six decisions of the 14 that were six to three.
And of the five to four decisions,
two of them went with the liberals
and one went with the conservatives.
There were five super duper majority decisions.
One was seven to two, two were eight to one,
and two were nine to zero decisions.
You heard that right.
There were two unanimous decisions
of major rulings in 2022.
So, in percentage terms, 43% of the rulings
went with the conservative or lean conservative jurists.
The next category is the super duper majority.
That's 36% of the decisions were either seven to two
or eight to one or nine to zero.
And then the final category
is in that five to four decision category.
And that happens 21% of the time.
And two of the three went with the liberal view of the court.
They believe the constitution is a living document
as opposed to the originalists.
I agree with the originalists.
I think we should uphold the constitution
as it was understood at the time,
including the Bill of Rights and all the amendments since.
So, in other words,
I believe we should look at the 14th Amendment
through the lens of the values of 1868 when it was ratified.
Now, for a republic to last,
the three branches of government have to be intact.
And so, regardless of how upset you might be
over one decision or the other,
one branch should not denigrate another branch of government.
Otherwise, the freedom principles of life, liberty,
and the pursuit of happiness will be at risk.
So, in this podcast,
I'll briefly go over five of the cases
you might not have heard that much about.
And I'll let you decide for yourself
if the Supreme Court is outrageous.
To keep things straight for myself,
I had to put together a table.
The first column shows the date of the ruling
and the name of the case.
The second column is the annotated version
of the summary of the ruling.
The third column shows which justices ruled
to affirm the ruling, the majority.
And then the final column reflects the dissent's opinion
and which justices were the dissenters.
So, let's get started.
On June 30th, 2022, the case was West Virginia versus EPA.
The court's ruling curtailed the EPA's ability
to regulate the energy sector.
The agency can still regulate the industry
by using emission controls at individual power plants,
but it cannot use more ambitious approaches
like cap and trade systems and that sort of thing.
The ruling stated that the court's skeptical
of the power of the federal agencies
to address major issues,
unless they've got congressional approval.
In a minute, we'll look at a ruling
on the Health and Human Services and the OSHA agencies.
that are connected to this.
So this was a six to three decision.
Roberts, Kavanaugh, Barrett, Gorsuch, Alito,
and Thomas all voted together.
The three liberals, Sotomayor, Kagan, and Breyer
wrote a dissent.
Kagan said the ruling strips federal government
of power to control pollution.
And that's a blow to address climate change.
She started with this long passage
on the devastation of the planet.
Hurricanes and coastal erosion,
floods and famines and mass migration
and all the political crisis that would come as a result.
She said the court doesn't have a clue about climate change
and they should leave it to the EPA.
And then she references a couple other cases
where the agency went beyond their role.
This is not the Attorney General regulating medical care
or even the CDC regulating landlord tenant relations,
she wrote, it's the EPA.
That's the Environmental Protection Agency
in case the majority forgot, she says.
Acting to address the greatest environmental challenge
of our time.
Well, in my view, that's not a legal case,
but it's her opinion.
If I was president of the United States,
I certainly wouldn't say she was outrageous,
but I would disagree.
Now the six in the majority stated that the ruling
simply limits the power of unelected
and unaccountable bureaucrats from over-regulating industry.
Roberts said that Congress had not given the EPA
sweeping power to regulate the energy industry.
The EPA is not supposed to,
the Environmental Protection Agency,
is not supposed to be able to sidestep the Congress.
The key legal issue is called the major questions doctrine.
Now this is the notion of whether an agency
should have highly consequential power
when a problem is recurring
and has wide and significant impact.
Can the federal government agency act
beyond what Congress could reasonably be understood
to have granted?
So Chief Justice Roberts' opinion
advanced the central goal
of the conservative legal movement,
which is to curtail the power of the administrative state.
But it did so in a pretty measured way.
Here's her quote.
When Congress seems slow to solve problems,
it may be only natural that those in the executive branch
might seek to take matters into their own hands,
Justice Gorsuch wrote.
But the Constitution does not authorize agencies
to use pen and phone regulations as substitutes
for laws passed by the people's representatives.
Does that sound pretty outrageous or reasonable?
No, it's just an application of the law.
Six to three, conservative win.
Now as bonus coverage,
and this is for no extra cost on your part,
I also looked at the polling data.
I used the source, the SCOTUS poll,
and I use these folks because it keeps it consistent
versus going from one source to the next
based on the decision.
In other words, whatever accuracy or deficiency
they have in their process,
and they seem to be more or less pretty accurate,
it should be relatively comparable.
They ask Americans their opinion on each ruling,
and they do a pretty good job of summarizing the issue,
and then they ask the respondent, what do you think?
So below each case, I have another table
which uses that SCOTUS poll data.
Now justices are not supposed to make decisions
based on the popularity or the unpopularity
of their legal assessment.
However, it's kind of instructive
to see how people felt overall about each decision.
So in this first case that we looked at,
the ruling was conservative or originalist.
Did the Supreme Court look at the polls
to make their decision?
I don't think so,
because only 53% of Republicans agreed with them.
They agreed that the EPA can set limits
on individual power plants,
but not more broadly regulate emissions
across the energy sector, but only 53%.
In fact, 59% of all people and 73% of Democrats
and 55% of independents think the EPA
should be able to be more broad within what SCOTUS ruled.
So they weren't being outrageous.
Now, let's go back to January and pick up where Kagan,
writing for the dissent on the previous case, was so angry.
Remember when she said that the EPA
should have direct authority,
not based on the Constitution,
not based on any legal theory,
but based on her understanding of climate change
and her progressive view of the world.
So the Biden versus Missouri case of January, 2022
was one of the cases she was referring to.
It found that the Biden administration's mandate
to require healthcare workers at facilities
receiving federal money to be vaccinated was lawful.
No, wait a minute.
I thought we had a six to three majority.
How can that be?
Well, Robertson-Kavanaugh actually joined
the three liberal justices here.
We actually don't know who wrote the opinion
because it's unsigned.
Bugs me when they do that.
But, this was a 5-4 ruling and it sided with the liberals.
The court allowed a limited mandate requiring health care workers at facilities that receive
federal money to be vaccinated.
The majority added that facilities that receive money from Medicare and Medicaid, those programs,
they must comply with whatever the federal health and safety requirements are.
So if we're adding one more safety or health requirement, who are we to intervene with
that or interfere with that?
So the majority wrote that the mandate fits neatly within the language of the statute.
Basically, Congress has authorized sweeping action against the executive branch employees.
So all the executive branch has to do is make up a rule and the executive branch, all those
million plus employees, have to do what the executive branch says.
So the dissent disagreed.
And this was Gorsuch and Barrett and Alito and Thomas.
Alito and Thomas, just for your info, are my two faves.
Now in his dissent, Thomas wrote the federal government should not be allowed to force
health care workers to choose between losing their livelihoods and acquiescing to a vaccine
they have rejected for months.
These cases are not about the efficacy or importance of COVID-19 vaccines, he wrote.
They're only about whether the agency has the statutory authority to force health care
workers by coercing their employers to undergo a medical procedure they do not want and they
cannot undo.
There he goes again, arguing on the basis of law.
But do you find either the affirmation or the dissent outrageous?
This went five to four liberal win.
So far, it's liberals won, conservatives won.
And what do people think here?
Well, the Health and Human Services vaccine mandate is lawful according to 53% of the
people overall, 76% of Democrats, 49% of independents, about in the middle, and only
31% of Republicans.
So this one is totally on party lines.
According to 69% of Republicans, the HHS vaccine mandate should not be lawful.
Yet it is the law of the land, according to SCOTUS.
You know what's funny?
I don't recall anyone burning anything down when the Republicans lost this case.
On that same day, SCOTUS ruled differently on a similar issue.
This was on the case of whether or not OSHA could make the overreach to mandate on the
basis of safety that all employers would have to mandate that all of their employees would
have to get the vaccine.
This was another January 13, 2022 ruling.
The case was called the National Federation of Independent Business versus Department
of Labor.
The court found that Biden administration's vaccine or testing mandate for large employers
was not lawful.
So it was a win for the originalists.
Roberts, Kavanaugh, Gorsuch, Barrett, Alito, and Thomas ruled in favor of freedom.
The three in the minority wanted OSHA to have more far-reaching power than any law says.
I'll go to my OR, Kagan, Breyer argued in their dissent that they basically said that
regulating safety in the workplace is precisely what OSHA is commanded to do.
Commanded to do, really?
They believe institutional competence trumps medical freedom.
Who decides how much protection and of what kind American workers need from COVID-19?
An agency with expertise in workplace health and safety acting as Congress and the president
authorized or a court lacking any knowledge of how to safeguard workplaces and insulated
from all responsibility for any damage that they cause.
So they believe that all these types of decisions should be in the hands of the agency.
And in this case, the OSHA, the Occupational Safety Health Act guys.
But the majority blocked the Biden administration from enforcing a vaccine or testing mandate
for large employers.
I'm glad they did.
They argued that Congress has not authorized the executive branch to take sweeping actions
against employers.
They said a statute on workplace hazards did not justify a mandate that would have required
more than 80 million workers to be vaccinated against coronavirus or to wear masks and to
be tested weekly.
It also stressed the novelty and the sweep of the mandate that was issued by the Labor
Department's Occupational Safety and Health Administration, saying Congress had not authorized
the agency to act in describing its response as a blunt instrument.
In other words, not very surgical, not very accurate, and not limited like it should have
been.
The mandate, according to the affirmative, according to the ruling, draws no distinctions
based.
on industry or risk of exposure to COVID-19.
The majority opinion said, adding that it was a significant encroachment into the lives
and health of a vast number of employees.
And what do people think?
Well, you know, interesting here, it was 50-50 overall, but man, this thing went right down
party lines.
Only 23% of Democrats felt that the OSHA vaccine or testing mandates was not lawful,
but 50% of independents and a whopping 72% of Republicans agreed with the ruling.
So here you have a case that was ruled on the basis of the law.
77% of Democrats don't care.
They want OSHA to have the power to force large companies to force their employees to
have a vaccine.
But if SCOTUS had ruled with the Democrats here, that might've been actually kind of
outrageous.
You can't just make up laws from the executive branch.
That check and balance is intentional.
We don't want either side to be able to turn the executive branch into a dictatorship.
So we have SCOTUS ruling here, 5-4 that the vaccine can be mandated when it falls under
the jurisdiction of the federal funds that are being sent to the hospital or the facility.
And that very same court ruled 6-3 that you cannot make that same argument with OSHA when
you're talking about private employers.
Is that outrageous?
It's a 6-3 conservative win.
Let's move to our final two rulings that we're going to discuss this time, Biden versus Texas.
The ruling was just made, June 30th, 2022.
Here the question on the table was, should the Remain in Mexico policy that was put in
place under the Trump administration, which requires that some migrants have to wait in
Mexico while their cases are heard, should that be held in place?
The court in a 5-4 ruling sided with the liberals and actually cleared the way for the Biden
administration to end the Trump era immigration program.
Roberts and Kavanaugh joined the liberal justices, Sotomayor, Kagan, and Breyer.
Roberts wrestled with the technical issues.
It's tough being in the middle without really clearly defined freedom principles.
There are three statutory decisions that do point in different directions, and to his
defense, one of those laws says that the federal government shall detain immigrants, but Congress
never funded that.
A second law says that government may return migrants, and then the third one allows the
government to release migrants on a case-by-case basis.
So Roberts is looking at these three different laws, and the first one he says is kind of
a moot because we're not funding it, so it's not really a law.
And since one of the laws says that we may return migrants, Roberts said that wasn't
conclusive enough.
Therefore, Biden can do whatever he wants, and it's foreign policy anyway.
And the Supreme Court of the United States doesn't regularly intervene in foreign policy.
They're usually domestic.
Now the four conservatives, Barrett, Gorsuch, Alito, and Thomas dissented.
Alito said he agreed with the court's majority that lower courts did not have the authority
to order the Biden administration to reinstate remain-in-Mexico policy, but he also argued
that officials do not have the authority to release large numbers of migrants.
So where does that leave them?
Alito argued it'd be closer to the reading of the three laws, when you mesh them together,
to understand that we still have a removal process.
If the migrant went through that normal proceeding, a whole large number, a big number of those
would be in fact removed.
So even though Congress didn't fund it, removing the remain-in-Mexico policy, which does not
violate any law, leaving that intact wouldn't have violated any law, but removing it violates
other clear terms of the law.
Now you can get your head spinning on this one, especially when three congressional laws
go in different directions and one of them is not even funded.
But what happened here was a ruling that they thought was right.
It was 5-4 liberal win.
Was it outrageous?
I mean, the SCOTUS is not supposed to make decisions on the basis of what people think
or what they want, but here we go again with looking at what people were thinking here,
just on the basis of the law.
And this one's really interesting.
So 5-4 ruling liberal, yet the SCOTUS poll shows that just less than half, 49%, overall
think Biden should be able to end the remain-in-Mexico policy.
But a whopping 77% of Democrats think that the ruling was correct.
Not so with independents, 56% think the remain-in-Mexico policy should have remained intact.
And 80% of Republicans, this is the largest number on all these polls, 80% of Republicans
think the Remain in Mexico ruling, until we sort out if you're legally able to come to
the United States, was a good deterrent and they think the SCOTUS was wrong here.
Did anybody burn down any buildings?
Was it outrageous?
Finally, there's a June 29, 2022 ruling that almost no one knows anything about.
This was Oklahoma v. Castro Huerta, horribly, I'm probably doing that bad, but he horribly
neglected a child on an Indian reservation in Oklahoma.
Should the local and state authorities have the right to prosecute non-Indians who commit
a crime against Indians on those reservations?
Historically, Indian reservations enjoy huge levels of autonomy and they operate almost
like sovereign city-states in the United States.
They're like little itty-bitty nations.
Previously, if the reservation did not prosecute you for a crime on reservation territory,
that was the end of it.
What this ruling did is limit the sweep of Indian reservation autonomy to just Indian
on Indian crime.
After the ruling, if a non-Native American commits a crime against a Native American
on the Indian reservation, the local and state courts can intervene.
This ruling resulted in Roberts, Kavanaugh, Barrett, Alito, and Thomas polling together
a very slim majority.
They agreed that Indians and non-Indians alike should be protected from the loophole that
previous decisions have left open.
So they overruled a previous court decision.
One of the primary arguments was that the guy who neglected his child, he got only seven
years in Indian court, and that would have been 35 years in U.S. law.
Now, it's kind of funny that the dissent was loudest by another conservative, Gorsuch.
His belief was that it erodes history of Indian law.
It's kind of interesting to note that Gorsuch is from Colorado.
He's the only one on the court who really understands anything about Indian reservations,
and he believes that reducing the sovereignty of Indian law is a slippery slope.
So this is a tough one.
Is it really conservative versus liberal?
I'm not so sure, but since all the liberals voted with Gorsuch in the dissent, we will
call it a five to four conservative win.
Now what do people think?
This one's interesting.
Overwhelmingly in favor of the conservative majority.
States should be able to prosecute non-Native Americans who commit crimes against Native
Americans on Native American land according to 66% of the overall population.
And according to 68% of Democrats, 63% of Independents, and 70% of Republicans, basically
everyone agrees with this five to four conservative decision.
Does this mean that Gorsuch was outrageous to be a dissenter?
Now look, I don't agree with all the rulings.
I don't think I would have known for sure what to do on the Indian thing without more
research.
I think I would have been with Alito and Thomas every time, and probably for the same reasons.
I lean toward individual freedom if it's not clear, but I have to accept that the SCOTUS
is an independent body.
It's put in place to preserve the Republic.
So to all of those who are threatening to burn down buildings because they don't like
one of the rulings, you're not being consistent or fair to the reality on the ground.
Next time, we'll look at some more rulings.
Until then, to your freedom.
Hi, I'm David Farah.
Thank you for listening to my dad's podcast, The Barry Farah Show, Culture Shift.
Click subscribe now to be sure you don't miss an episode.
Share this podcast with your friends on social media and give The Barry Farah Show your five-star
rating.
See you next time.