The Supreme Court’s 6-3 ruling in Murthy v. Missouri dropped Wednesday, shattering the hopes of conservatives that maybe, just maybe, the Judicial Branch would stand up for the First Amendment rights of ordinary Americans against the egregious abuses of the executive bureaucracy.
But no. The Court instead ruled that the plaintiffs lacked standing because the Biden White House allegedly backed off of its censorship campaign after the 2022 midterms (it didn’t). The ruling essentially allows the federal government to continue trampling on the First Amendment rights of ordinary Americans by deputizing social media companies to do what federal agencies cannot do directly: police what Americans are allowed to say online.
If this result shocks you, if you’re surprised and outraged that the Supreme Court, which you thought was dominated by a solid conservative majority, you shouldn’t be. If you thought the supposedly conservative majority on the Court was going to check the worst impulses of the executive branch and restore the constitutional rights of Americans, you shouldn’t have. If you reposed your hope for the survival of the American republic in five or six black-robed justices who would stand athwart the tyranny of the administrative state and the collapse of our political institutions, you can say goodbye to all that. The Supreme Court is not going to save America.
And just to be clear, neither is Donald Trump. In fact, the Court’s ruling makes it all the more likely that Trump won’t even get the chance, because it gives the Biden administration a greenlight to ramp up a speech suppression campaign ahead of the November election through “censorship by surrogate,” in the memorable phrase of constitutional law attorney Jonathan Turley.
But whatever happens in November, the Court’s failure to protect the free speech rights of Americans against censorship by the government should be a wake-up call for all of us. Our institutions are rotten, they do not function as intended, and we cannot rely on them to protect us or maintain our constitutional system of government. This is as true of the Supreme Court as it is of Congress and the Executive Branch.
The latter, for example, is totally beyond the control of the elected president, whomever it might be. Recall that the online censorship of Americans didn’t begin under President Biden, it began under Trump. From the beginning of the Covid-19 pandemic in March 2020 until Trump left office in early 2021, if you criticized the CDC or cast aspersions on the efficacy and safety of the forthcoming “vaccine,” you would very likely be targeted for censorship. Same thing if you suggested that ballot harvesting and absentee voting were unsecure ahead of the 2020 election.
Most notoriously, thanks to the Twitter Files we know that just before the 2020 election the U.S. intelligence community coordinated closely with Twitter and Facebook to suppress the Hunter Biden laptop story in what amounts to the biggest case of election interference in American history. All this happened under Trump, who was unable to control the rampant collusion between the national security establishment and Big Tech.
As for Congress, a GOP majority that can’t be bothered even to negotiate with Democrats to secure our southern border, and routinely fails to use any leverage it has to do the things Republican voters want done can’t be relied on to check the abuses of the executive bureaucracy. Of course, Congress is supposed to have oversight of those agencies, which is a complete joke. If a Republican-controlled Congress was ever going to do any real oversight, it would have already defunded and disbanded the FBI. Instead, it recently approved funding for an expensive new FBI headquarters. I guess all those government censors need more office space.
The point here is that we need to get our heads out of the sand and open our eyes to the reality of our situation. Conservatives have long vested their hopes for America’s future in an originalist majority on the Supreme Court. This was one of the talking points in favor of voting for Trump over Hillary Clinton in 2016 aimed at voters who disliked Trump. Hold your nose and vote for the Bad Orange Man because he’ll be able to appoint a bunch of justices! If Clinton wins the Constitution will be destroyed by a liberal Supreme Court majority!
There’s a certain logic to this, and indeed something to be said for voting in a way that increases the likelihood of at least some conservative sway over our institutions. Certainly, Roe v. Wade would never have been overturned without the three justices appointed by Trump. That was an historic achievement, and there’s no gainsaying it.
But as Wednesday’s ruling in Murthy v. Missouri shows, no Supreme Court majority is going to save America and rescue the Constitution. That’s only going to happen, if it happens at all, through a second American Revolution and the re-founding of the country. As I’ve argued before, we need to stop calling ourselves conservatives because there is nothing left to conserve. One of the things that means is letting go of the idea that a majority of originalist Supreme Court justices is going to swoop in and undo all tyrannical mechanisms that a century of administrative bureaucracy has built up for the purpose of undermining and destroying our system of government.
That’s simply not going to happen. Continuing to wish for it and expect it is a fool’s errand, and if we want to be prepared for what’s coming, we need to be realistic about that.
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