Opinions Coming Up From a 5-4 Republican Supreme Court: Free Speech and Voting Rights


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After last year’s long list of 5-4 partisan decisions, and with this year’s biggest cases coming up in the next few weeks, this report jumps ahead to take an advance look at the future of the 5-4 Republican Court.

By breaking more than 200 years of precedent to install Neil Gorsuch into the deciding seat, and by moving the Court more to the reactionary side with Bart O’, Republican Justices are looking to rebuild and maintain the oligarchy that reigned in the late 1800’s. Each 5-4 case opinion takes another little piece out of America, and some of them bite out big chunks. Here are four examples of the kinds of cases we may expect in the near future concerning free speech and voting rights:

Conglomerate Internet Provider, ISP v. Federal Communications Commission, FCC

Say that net neutrality is restored by law and that the FCC is given authority to regulate it. The FCC finds against an ISP for throttling, blocking, refusing service, or some other proprietary discrimination against a user or content provider. The ISP appeals to the Supreme Court.

Invoking First Amendment “free speech” and property rights, the 5-4 Court could easily find any regulation of net neutrality at all unconstitutional using earlier 5-4 corporate personhood cases like Citizens United and Hobby Lobby. The big conglomerate owns the ISP, it is their right to speak or to censor, and you can just go and try to find another provider. Besides, there is no right to the internet.

See also Smoking Guns: SCOTUS Nominee Neil Gorsuch Not Only Wants But Expects Corporate Theocracy. This article describes how existing Court precedents may be combined to force American workers and consumers to abide by religious doctrines of businesses and corporations.

United States of America v. Donald Trump

After Donald Trump is out of office, “Individual-1” is charged with criminal campaign funding violations. Republican lawyers appeal the charge straight to the Supreme Court before trial. Under the new originalism of corporate Constitutional personhood and money equals speech, a 5-4 Court determines that Donald Trump has a First Amendment free speech right to pay off a porn star to silence her. Further, the Court resolves conflicts in prior cases and decides that anonymous political speech is protected, even where the speech is money and the money buys shutting someone up from speech. The Donald marches into the sunset, vindicated, and the door is open to unlimited anonymous campaign funding.

People of the State v. Voter in Washington State

Speaking of money equals speech, a man in Washington is caught selling his vote to a certain pair of oligarchs for ten dollars out of their 1.4 billion of tax savings from the Donald Trump tax cut. The man is promptly arrested and charged with a crime. The case gets to the Supreme Court.

As states move from in-person voting to mail-in ballots, vote selling could become very easy. A wealthy person simply buys the official form, fills it out and mails it.

Voting was declared a “right to expression” in a 1992 case. The 6-3 Court then used a “flexible standard” to deny access to write-in ballots, but the general idea that voting is a form of speech was assumed by the majority. The three who dissented agreed that voting was a free speech right, so that made it unanimous on the particular issue.

Combining precedents of money equals speech with voting equals speech, a 5-4 Court simply must find that money=speech=voting; and therefore, Americans have a right to sell their votes to the highest bidder. Hard to get out of this one: If money=speech and voting=speech, then money=voting. It’s quite formally logical. Either that, or one of the ideas, money=speech or voting=speech has to go.

Voting Rights Group v. Republican Gerrymandered State

The Supreme Court continues to avoid this thing called “extreme partisan gerrymandering” as election after election goes by where Democrats win the majority of votes but Republicans win control of state legislatures and take extra seats in the House of Representatives. At some point, they are going to have to actually decide. (A decision may come down as soon as next month, but don’t count on it. If so, an update will be inserted here.)

UPDATE: On June 27, 2019, the last day of the term’s case opinion releases, the Supreme Court presented the results of case Rucho v. Common Cause. Chief Justice John Roberts, Jr., wrote the 5-4 opinion, with a perfectly partisan split. The Court let the ‘extreme partisan gerrymandering’ stand — this time without limitations. It is now the official law of the land: the Supreme Court will not involve itself in the issue.

A voting rights group handles a case of a disgruntled voter in a gerrymandered district who complains that his vote doesn’t make a difference because the district is 90 percent Democratic, and only one candidate has a chance to win. A 5-4 Supreme Court could block resolution of such a case under various reasoning:

  • The voter has no right to sue because the harm is not “individualized” to the particular voter. It is a “generalized” concern.
  • The issue is a political matter, not one for the Court but rather for the legislature — the very legislature that has gamed elections to maintain its partisan control.
  • The issue is being dealt with by other means, like for example, voters passed a referendum to set up a state commission. We should just keep waiting longer and longer.
  • In some giant wave election that theoretically may come along every decade or so, the effect of partisan gerrymandering can be overridden, so let’s not worry about those long periods of partisan lock.
  • There is simply no way the Court could calculate how much partisanship is permissible in elections, so just let the partisans take the whole state unchecked.
  • The legislature has not admitted that the purpose of the gerrymander was to hold onto power, but provided other excuses to explain it.
  • There is no right to vote in a competitive partisan election in the Constitution.

All of these arguments are around. Any one of them could allow ‘extreme partisan gerrymandering’ to continue indefinitely.