The Supreme Court Clinches Multiple Wins for
Liberty, by James Burling, 7/12/19
The just-ended Supreme Court term went
exceedingly well for individual liberty. From property rights to government
agencies to offensive words, there were triumphs for individual rights and a
pushback against the encroaching regulatory state.
Take property rights, for example. When
rural Scott Township, Pennsylvania, told the public it could trespass across
Rose Knick’s 90 acres of farmland to look for alleged graves, she could get no
relief out of state court. But, when she went to federal court arguing that the
town took an easement across her property, she was again rebuffed based on a
34-year-old Supreme Court precedent — Williamson County v. Hamilton Bank — which locks the federal courthouse
doors to landowners.
In other words, property rights were
the only right protected by the Constitution that
could not be protected in federal court. Represented pro bono by Pacific Legal
Foundation, Rose managed to get Williamson County overturned.
As the Supreme Court put it in Knick
v. Scott Township,
property rights are no longer the “poor relation” of constitutional rights.
Regulatory agencies were also in the
Court’s cross-hairs in Kisor v. Wilkie, a case asking whether courts should
always defer to what federal agencies say their regulations mean. In recent
years, a growing number of scholars, lawyers, and even judges have begun to
question the doctrine that says courts can’t second-guess what regulators say
that a law means or even what a regulation interpreting the law means.
James Kisor was a Vietnam War vet who
was in a dispute over some disability benefits he thought he was owed. He also
believed that the Veterans Administration regulations favored his case, but the
VA saw things differently. The VA proceeded to tell the Supreme Court that
under the deference doctrine, it was the VA’s way or the highway.
Justice Kagan, writing for the Court,
said in essence, “not so fast.” While deference may be appropriate in some
cases, it’s not appropriate in all. From now on, the justices held, the courts
must examine all the facts and circumstances before deciding to defer to an
agency’s judgment over what its regulations mean. While this wasn’t a complete
takedown of deference, it should prove to be a pretty effective body slam. Or,
as one justice put it, deference has been “zombified.”
Earlier in the term, the Court was
confronted by an absent-but-endangered gopher frog on a tree farm in Louisiana.
That is, the U.S. Fish & Wildlife Service designated this tree farm
as critical habitat for the frog, even though the frog didn’t live on the
property, hadn’t been seen near the property in a half-century, and would
likely die out if it were moved there. Facing $34 million in costs, the
landowners sued.
A unanimous court in Weyerhaeuser v. U.S. Fish & Wildlife Service easily rejected the government’s arguments, and held that
“critical habitat” has to contain habitat. And, if the frog can’t survive on
the land, then calling it critical habitat can’t be supported.
Lastly, the Court proved that you can trust it on matters of
free speech. First, when a private New York City cable operator decided to
police the content of its public access channel, a person denied a platform
sued, claiming a First Amendment violation. But the Constitution prevents
only government from
restricting speech, not private persons, newspapers, or cable companies. In a
decision that should have significant implications for the modern internet
era, the
Supreme Court affirmed that just because someone receives a
license to operate, doesn’t prevent it from deciding what to publish.
And in its final free speech case of the
term, the Court held in Iancu v. Brunetti that the federal government
couldn’t refuse a trademark to a fashion company with the brand and an acronym
that may be offensive to some but clever to others: “Friends U Can’t Trust.”
The bottom line, according to Justice Kagan’s opinion, was that the government
may not engage in viewpoint discrimination.
These decisions should be celebrated by
fans of liberty, and we should be encouraged that the Supreme Court looks
poised to protect individual liberty in the coming term as well.
Norb Leahy, Dunwoody
GA Tea Party Leader
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