Winston Churchill once said that a Democracy is two wolves and a sheep voting on what to have for dinner, but in a Republic, with a Bill of Rights, the sheep has enforceable minority rights to protect it from the majority. And that makes sense because, if you think about it, both the executive and legislative branches of government are elected by the majority, so they are not likely to focus upon minority rights. Thus it is really only the judicial branch that is positioned to protect those minority rights. Of course, by definition, often those rights are controversial with the majority of people in our country. But our judiciary protecting minority rights is one of the genuine reasons why our country has been great. (So please bear with me because, since this issue is so important and often so nuanced, I am using more than the normal two paragraphs to discuss it.)

In reality, the appointment and confirmation of Justices on the United States Supreme Court are political exercises, often both for the politicians as well as the nominees. But, once confirmed, the justices still maintain their judicial philosophies in their decision-making, but I believe virtually all of them steadfastly take their judicial responsibilities seriously and try to be fair neutral and impartial. And it is critically important to our nation’s future that “We the People” continue to believe this to be the situation! But today many politicians and media commentators are attempting to erode that basic trust.

A stark example of those attempts is the case of Cedar Point Nursery v. Hassid. In this 2021 case the U.S, Supreme Court affirmed the right of an owner of a small farm to prohibit union organizers from entering his property and loudly encouraging the farm workers to unionize. Thus the Court found that a California law that purported to allow union organizers that access for up to three hours per day and for a total of 120 days per year was unconstitutional. The rationale? Forcing property owners to allow this access was a trespass upon their property rights to the extent that it constituted a “taking of that property without due process of law,” as protected by the 5th and 14th Amendments.

Despite the fact that the Supreme Court expressly left in force its 1980 case of Prune Yard Shopping Center v. Robins, which allowed union organizers to hand out leaflets on private property which was generally accessible to the public, many commentators, being strongly outcome oriented, described the ruling in Cedar Point Nursery in terms of “union-busting,” “segregationist,” “race,” enforcing “mega-corporate interests,” and the “denial of civil rights.” Yes, the difference was nuanced, but the Supreme Court made a logical distinction in Cedar Point Nursery to enforce the minority rights of this small farm owner. And I’m sure you see the difference.

This situation is so serious that several current Supreme Court Justices have recently gone public with their concerns about these many attempts to undercut the impartiality of the court system in the minds of the public. For example, Justice Amy Coney Barrett opened a speech by saying that “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks;” Justice Elena Kagan publicly assured people that the Court should be seen as “above the fray;” Justice Neil Gorsuch said that it is “rubbish” to treat justices as “politicians with robes;” and Justice Stephen Breyer, who is one of the Court’s most liberal justices, wrote that “Political groups may favor a particular appointment. But once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

So please stand with groups like the Institute for Justice, Pacific Legal Foundation, People 4 Liberty, Cato Institute, Reason Foundation, Mercatus Center, Students for Liberty and others and decry such baseless attacks on the courts and our judicial system! And that also means to decry the current terribly-misguided political efforts to expand the number of Justices on the U.S. Supreme Court! Yes, if the present number of justices were to be expanded from 9 to 13, as is being advocated, the present liberal Administration would be able to appoint an additional 4 more liberal justices. But – please consider this – when a new and more conservative Administration is eventually voted into power, it could raise the number of justices to 17! Etcetera and etcetera. No! Please help us keep politics away from the judiciary as much as possible! As pollster Frank Luntz said in a new documentary, “The biggest tragedy is that we are now hopelessly divided on the last thing that that used to unite us, which is our judiciary. Now there’s nothing that pulls us together. Nothing.” We cannot let this happen!

Question for the week: What do you call a beehive that has no exit?
Answer: Unbelievable.

Judge Jim Gray (Ret.) Superior Court of Orange County, California 2012 Libertarian Candidate for Vice President

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