SUPREME COURT IS FAKE LIARS

The US Supreme Court says they grant petitions for certiorari, only to consider clearly articulated abstract disputes of law. But in both the Trump Colorado ballot case, and in the Tiktok case, the Court jumped into politically important disputes in a case-specific way, while doing their best to obfuscate any abstract legal questions they were actually deciding.

In Trump v. Anderson the actual questions were something like 1) do federal courts have any jurisdiction to examine how states choose their electors, when it is not framed as equal protection of minorities or First Amendment or something, and 2) when the federal government creates a new legal interest in a certain activity, such as insurrection, does that exclude states from taking an interest in the same activity until Congress grants power back to them? But the Supreme Court decided to instead ask “Can Colorado do this specific politically unpopular thing”, as a way to come up with some reason they cannot.

The excuse “the Court can intervene any time a state claims to be enforcing federal law even if they are not”, is a carte blanche for the Court to intervene in any particular dispute on any side they want. Using this abstract concept they could use due process to invalidate AEDPA, if not for the political convenience of abdicating jurisdiction to let states victimize undesirables and nobodies, at the same time as stepping in for famous people like Trump and claim it is a matter of federal law or Congressional creation.

The questions in TikTok v. Garland are something like 1) can a federal law be characterized as narrowly tailored to foreign ownership of a business and indifferent to whether and how the business continues to operate or shuts down, where this relies on a theoretical assumption that an enterprise can be separated from its owners just because that is all the law demands? And 2) If the effect of a law on ownership is to reduce the operating capacity of an enterprise, can that be called content or viewpoint-neutral to American petitioners, when the business is demonstrably associated with a certain speech viewpoint, such as the viewpoint of dissidents or little guys? And 3) Can Congress always restrict major foreign-owned media operating in the United States which allows them to select what US viewpoints are given airtime, even if it means telling US speakers they can’t use that medium and are deprived of that forum?

The dumb political questions the Supreme Court chose instead to answer are, can a state choose how they pick their own electors when Trump is really popular? And can Congress attack TikTok when it is really popular? This behavior of the Court is very important because nearly all of their opinions are just political nonsense giving some fake color of legal reason. They do this at the same time as they deny certiorari to real violations and abstract disputes of law that are not as politically important in the specific case. The Supreme Court ignores real abstract disputes and hard violations when curing them would be politically unpopular, despite federal judges having lifetime appointments specifically to do politically aloof things.

The Supreme Court will invent any doctrine to give legal color to their political inclinations, whether “Congressional Creation Doctrine” to support telling Colorado how to pick their electors, or “finality” or “historical immunity” to repeal their Article III and 14th Amendment jurisdiction over fact and law in state criminal justice. The Supreme Court has again set themselves up to avoid answering any abstract legal question, to instead take a politically popular position in a narrow situation in a specific case, in this case using the narrowing language in their question “as applied to petitioners”.

The Court will usurp the power of Congress, to decide whether one particular platform in one case being really popular requires strict scrutiny, colored as a narrow interest of the petitioners in the specific case. And they will examine fact not law, to narrowly say whether Congress in this particular case has failed to demonstrate an urgent or imminent national security interest. The Court can use discretion to say whatever they want, such as saying this particular law is viewpoint neutral until it affects and gives standing to some future party other than TikTok. So the Court will say for these particular petitioners in this particular case, there is a national security interest or the law is content-neutral or being really popular requires strict scrutiny, or whatever.

The Court will be considering case-specific facts, and settling them using arbitrary discretion under influence of politics. And this will avoid answering abstract questions of law, in a way that will clarify or create case law that could guide future court decisions, which the Court is under no political pressure to do, but rather to not do. Such as can particular media or corporations be associated with a viewpoint of their American users? Is foreign ownership vetoed by political popularity, which can be colored as some other legal justification? The factual questions of the particular case have already been settled, such as whether there is a real national security threat, and whether the actual result of the law is shutting down TikTok or is assumed to be viewpoint-neutral. The Supreme Court should begin by saying “assuming the law will not shut down TikTok, or is not viewpoint-neutral if it does, posing a legal question…”

Whatever the Court decides, will leave even more ambiguity as to how it can be applied to other petitioners or communications media. This will give lower courts more discretion to themselves rule based on political convenience going forward. For lower courts to basically say “I defer to Congress” or “I defer to the State or to executive-branch immunity” or whatever. And then let the Supreme Court fix the few specific cases the public takes an interest in or according to their political inclinations.