Fred Schilling, Collection of the Supreme Court

A curious thing just happened on the Supreme Court when it issued the sole decision of the day. The 6-3 decision of the Supreme Court in Van Buren v. United States is not one of the blockbuster decisions that are being eagerly awaited in the coming days. The case involving computer fraud is interesting to some of us for its says about the intricacies of the federal statute. However, it is even more interesting in what it says about intricacies of the Court. In its line up of justices, the Supreme Court is again speaking loudly to critics who are demanding court packing and radical transformations of the Court. As I recently discussed regarding the release of a series of unanimous decisions, the Court could be speaking as an institution to remind the public that they are not nearly as partisan as their critics.

The decision itself concerns a police officer who ran a license plate for money. The question was whether that act constitutes a violation of the Computer Fraud and Abuse Act of 1986. The Court held that it did not.

The line up must have been another disappointment for Democratic members and advocates who are demanding raw court packing. The decision was written by Justice Amy Coney Barrett and joined by Justices Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh. The first name is important because as the most senior justice, Stephen Breyer, must have assigned it to his conservative junior colleague, Barrett. It is a nightmare for activists: a consensus opinion written by Barrett for three conservative and three liberal justices.

That is not supposed to be the way the Court operates, according to Democratic members and advocates.  It is supposed to be hopelessly and blindly divided along ideological lines.  President Joe Biden called the Court “out of whack” due to its conservative majority. In calling for court packing, Jerrold Nadler, chair of the House Judiciary Committee, declared “We are not packing the Supreme Court, we are unpacking it.” Nadler insisted that such radical action (long opposed by the vast majority of citizens) is necessary because there is a need to “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.”

Others have openly threatened conservative justices that they had to either vote with their liberal colleagues or face dire consequences for the Court.  Sen. Richard Blumenthal, D-Conn., told The Hill:

“It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles. It’s already driving that movement. Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”

Blumenthal went as far as to mention specific cases and the expected rulings. This follows raw demands in the confirmation hearing of now Justice Amy Coney Barrett that she promise to rule on particular cases “correctly” as a condition for her confirmation.

Senate Majority Leader Chuck Schumer shocked many in front of the Supreme Court last year when he declared “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

The Court is expected to issue divided opinions on upcoming cases, but it seems to be frontloading opinions that drive home the fact that most cases are not driven by such ideological divisions.  The fact that Breyer gave the case to Barrett is particularly notable.  Breyer has been the target of a campaign by a Democratic “dark money” group called Demand Justice and others. Breyer warned against any move to expand the Supreme Court and rejected the characterization of the current Court as “conservative” or ideologically rigid. He was denounced by figures like cable news host Mehdi Hasan who called him “naive” and called for his retirement.

Demand Justice is pushing the court packing scheme and had a billboard truck in Washington the next day in the streets of Washington warning “Breyer, retire. Don’t risk your legacy.” (Demand Justice once employed White House press secretary Jen Psaki as a communications consultant, and Psaki was on the advisory board of one of its voting projects.)

The pressure on Breyer to retire could backfire. He could decide that the greatest harm to the Court is not he continuing but his leaving the Court after such a coercive and reckless campaign.

Justices are meant to speak through their opinions and this decision speaks profoundly and clearly to those like Blumenthal threatening the Court and its member with “seimic” changes. It again seems to speak, by accident or by design, that the Court remains unpacked and unbowed in carrying out its constitutional duties.

Source: Jonathan Turley

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