Why You Should Be ‘Never Biden:’ The Supreme Court Edition

Still can’t vote for Trump, but I was wrong. I can’t vote for Biden either, both because of his clear mental decline and because of the border.

It’s looking like another blank ballot in 2024. https://t.co/rqLKTnnOQG

— Alex Berenson (@AlexBerenson) January 13, 2024

And it’s not just people saying ‘Never Trump.’ Now, I am now seeing people say ‘Never Nikki.’

As I look over the field, I don’t think I yet have a first choice, but I do know one thing: count me in as #NeverNikki! pic.twitter.com/0RjbBhnwdc

— Rand Paul (@RandPaul) January 12, 2024

Although, to be fair, I’m not sure he would literally prefer Biden over Haley in the general.

Now, let's put my cards on the table. I preferred DeSantis. I’m not here to re-litigate the campaign. I am only telling you this so you know where I am coming from. So, I won’t write a treatise about why I supported DeSantis, but to briefly say that like William F. Buckley, I always vote for the most conservative candidate who I think can get elected. I don’t say that to stir up the issue, but just to let you know my perspective. I am someone who didn't want the choices before us now, and I see serious flaws in the other Republican candidates.

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But I am here to explain to you why I still plan to vote for pretty much any Republican who has a reasonable chance of being the nominee, over Biden or any other Democrat who has a reasonable chance of being the nominee. I mean, on the Republican side it would be genuinely surprising if it isn’t Trump. And on the Democratic side, I suppose the safe money says that Biden will be the nominee.

But that gets us to the Supreme Court.

The Supreme Court is the best reason I can imagine not to stay home, not to sit this out, but to get out to the polls and vote for the Republican, even if you have to hold your nose to vote for whomever it is.

The Supreme Court appointments were easily the best part about Trump’s first term, and the issue is more critical than ever. Allow me to explain why.

As of right now, who is the oldest Supreme Court Justice?

Thomas.

Who is the second oldest?

Alito.

Is it fair to say that the older you are, the more likely you are to either die or retire? I suspect both Alito and Thomas will only leave the Supreme Court ‘feet first.’ Thomas particularly will never give his detractors the satisfaction of quitting. But they are probably the two most likely to leave if only because they are the oldest.

And if they leave first, and a Democrat appoints their replacements, the liberals on the court will have a 5-4 majority. Right now, there are three liberals, Sotomayor, Kagan, and Jackson. Take away two conservatives and add two liberals and that is a 5-4 majority for the liberals.

And if that happens, I think we will lose the First and Second Amendments.

I mean, the amendments will still be there, but the Supreme Court will interpret them so that they no longer do what they are supposed to do.

Let’s take freedom of expression. Just last term, in 303 Creative, the Supreme Court ruled 6-3 that you can’t force the creator of a website to say things they disagree with. I covered that decision when it was handed down, and you can read the opinion for yourself, here:

...It is a victory for free speech. Three dissenting justices. https://t.co/jJc00UNq0A

— Jonathan Turley (@JonathanTurley) June 30, 2023

In that case a woman, through the company she was the sole owner of, wanted to get into the business of creating websites for weddings. From the Supreme Court opinion:

Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to ‘celebrate’ and ‘conve[y]’ the ‘details’ of their ‘unique love story.’ … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be ‘original,’ ‘customized,’ and ‘tailored’ creations. … The websites will be ‘expressive in nature,’ designed ‘to communicate a particular message.’ … Viewers will know, too, ‘that the websites are [Ms. Smith's] original artwork,’ for the name of the company she owns and operates by herself will be displayed on every one.

(Citations omitted.) But because Colorado has a law that prohibits discrimination on the basis of sexual orientation, she was concerned she would be forced to make websites for gay weddings with that kind of unique and expressive content, and she objects religiously to gay weddings. And the Colorado Supreme Court—the same court that deceived readers in order to claim that Trump’s expression on January 6, 2021 was unlawful incitement—said she could be forced to make gay marriage websites.

Now, a lot of people thought this case was about freedom of religion, but it wasn’t. Of course, freedom of religion benefitted, but this was instead treated as just general freedom of expression—freedom of speech and freedom of the press. Those two rights amount to the right to express your own point of view and to refuse to express points of view you disagree with.

And the Supreme Court has long said that a religious belief—even disbelief or skepticism—is a point of view, as protected as any other point of view, be it capitalism, communism, Nazism, or whatever. In other words, the fact that this point of view is rooted in faith is irrelevant to the decision. If a person is opposed to straight marriage, for instance, because they believe that it just serves the patriarchy or because there are just too many humans and they hate people, the decision would be the same. 

Mind you, the Supreme Court has allowed for limited examples of forced expression. They have said that in the context of commercial speech, the government can require disclosure of ‘purely factual and uncontroversial information.’ A classic example of this is the Federal Government forcing companies to put ‘Nutrition Facts’ on food containers, telling you about the ingredients included and the nutritional value of the food in question. This is allowed to be required under the First Amendment because the information is non-controversial and factual, and presented solely in the context of commercial speech. Likewise, the government can require cigarette companies to put warnings about the health effects of smoking on every pack of cigarettes. On the other hand, the Obama Administration ran afoul of the First Amendment when they required much more advocative warnings. This was struck down in RJ Reynolds Tobacco Co. v. Food and Drug Admin., 696 F. 3d 1205 (D.C. Cir. 2012), with the court describing the problems with the labels as follows:

In fact, many of the images do not convey any warning information at all, much less make an ‘accurate statement’ about cigarettes. For example, the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words ‘I QUIT’ do not offer any information about the health effects of smoking. And the ‘1-800-QUIT-NOW’ number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information. These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.

Last I heard about that case, the Obama administration saw the writing on the wall and dropped their Supreme Court appeal, instead deciding to go back to the drawing board on the warnings themselves.

Now that you understand the rule, you see that the dissent in 303 Creative wanted to dangerously innovate First Amendment law. They wanted to say that the plaintiff in that case could be forced to write a website full of information that was neither strictly factual nor noncontroversial. It isn’t strictly factual, because love isn’t really a fact: Often we are unsure of our feelings. It isn’t uncontroversial because it is literally the story of a relationship and impending marriage that the author considered sinful, and, until pretty recently, the marriage wasn’t recognized in most states.

And look, these things are not entirely academic issues to me. I am in an interracial marriage and there are people who object to my marriage on that basis. I mean, it was my state’s laws that were overturned in Loving v. Virginia, 388 U.S. 1 (1967)—possibly the most perfect name for a Supreme Court case, ever—striking down laws prohibiting interracial love and marriage. But for the life of me, I will never understand the impulse to force people to participate in a wedding when they hate you. Sure, make the person bake the wedding cake for you, if you mind don’t consuming someone’s bodily fluids on your big day. *rolls eyes*

No, back when my wife and I were planning our wedding, if you had a problem with us getting married, I would prefer you to tell me. I wouldn’t sue you, or even argue with you very much. I just would take my business elsewhere. I might even thank you for your honesty.

Seriously, one of the great things about freedom of expression is it gives morons and bigots the chance to self-identify. Why would we want to suppress that?

In any case, three ‘liberal’ justices voted to force a person who objects to something to write glowingly about it. That is frankly terrifying. 

But, arguably there is a case that is even worse when it comes to the First Amendment. When leftists claim that Trump or some other Republican is a threat to democracy on Twitter/X, I often pose this question in response: ‘In 2016, which party nominated someone to be president who thought it should be a crime to make a movie criticizing a Presidential candidate?’

Well, in context, you can probably guess who I am talking about: Hillary Clinton. And I base it on the fact that she wants to overturn Citizens United v. Federal Election Com'n, 558 U.S. 310 (2010). She even claimed she was a victim of that decision, and in context, that is horrifying. 

But, of course, you are not told this. You are told that this is all about spending. That is because ever since the decision came out, there has been a campaign to lie about it. If you don’t believe me, I link to the opinion here:

Well the answer is Hillary Clinton and she vowed to overturn citizens United which said it was not a crime to make a movie criticizing her. https://t.co/TsoAXIIUEv

and I’m willing to bet that’s not what you were told about the decision which is why I provided a link to it

— (((Aaron Walker))) (@AaronWorthing) March 28, 2023

Read it for yourself. See if I am telling the truth.

The short version of the facts is that Citizens United made a documentary called Hillary: The Movie. I have never seen it, but my understanding is that it is basically designed to convince people that Hillary Clinton should not be elected to dog catcher, let alone president, and released it during the primary campaign for the 2008 election season. And the FEC claimed, based on the McCain-Feingold legislation, that this was a crime and it was a crime to advertise for it. The Supreme Court agreed that the law made it a crime, and, therefore, ruled that this part of McCain-Feingold was unconstitutional.

Here's how the majority opinion Supreme Court described that statue (called § 441b here):

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

Indeed, during oral argument, the Solicitor General said that the statute could be interpreted to ban books. And, by that I mean a real ban, not the failure to carry a book at a library as a way of subsidizing it. Despite that fact, the Solicitor General said that the statute didn’t violate the Constitution, because they had never prosecuted a person for publishing a book under the statute—which is idiocy under the First Amendment.

Oh, and that Solicitor General? Future Supreme Court Justice Elena Kagan. Apparently, that response earned her a promotion.

Of course, the objections I hear the most often are silly.

For instance, many claim that Citizens United held that speech is money. Actually, that was in Buckley v. Valeo, 424 U.S. 1 (1976)—involving the same William F. Buckley I referenced earlier. In that case, they recognized that in the modern media landscape of 1976, you really couldn’t communicate very effectively without money.

I have long been critical of that decision only in the sense that they didn’t explain their point very effectively. This was a chronic problem in the Burger Court.

If I was writing the opinion in Buckley, I would point out that from literally the beginning of this republic, we have had a form of media that has relied on money: Printed materials. You know, books, pamphlets and newspapers … that sort of thing. It was the first mass media and it ran on money. I mean, it was theoretically possible for a person to literally make their own paper (grow the trees, chop them down, turn them into paper), make their own ink, make their own press, do their own reporting, writing and editing and then even do their own distribution, but I am pretty sure literally no one ever did that. No, I'm pretty sure every newspaper in history has been, at least to some degree, a group effort using money to buy necessities like the printing press itself, paper, ink and so on, and often using employees to help fill the paper with content and distribute the paper itself—usually to sell for money. Even where the words of a single author is being published, like in a book or pamphlet, I don’t think they were making the ink and paper themselves. Money and commerce has always been essential to the press—as it is for all mass media. For that reason, freedom of expression requires the free flow of money.

As a practical matter, freedom of the press was arguably more important than freedom of speech back when the First Amendment was ratified. Back then, freedom of speech was self-limited by the fact that one could only speak so loudly. Today we have technology that would allow me to whisper on a live stream, and be heard by billions of people all around the world. Back then, shout as loud as you want, but if you are speaking in South Carolina, you won’t be heard in New York City. Even approximately four score years later, during the run up to the Civil War, the only way a person living in Massachusetts might learn about what is being said in the debate between Abraham Lincoln and Stephen Douglas over in Illinois is if your local newspaper decided to cover that story. In fact, the primary reason the Lincoln-Douglas debates got so much attention was because the transatlantic telegraph cable had broken shortly beforehand. American newspapers were suddenly cut off from most international news and so they were desperate for something to fill their paper with and they felt that the debates were interesting and the controversy would sell.

That transatlantic cable was also a conduit for expression and it also ran on money.

Since then, we have seen the rise of other forms of mass communication. Radio, television, movies, and eventually the Internet—though that last one arose after Buckley. It is fair to say that the Internet has had a good leveling effect. I remember when Dan Rather presented what he thought were damning documents about President George W. Bush’s service in the Texas Air National Guard, only for some random anonymous commenter to notice that they were poor fakes. That was the proverbial pebble that set off an avalanche of small bloggers noticing how the documents supposedly written in the 1970’s looked exactly like they would if you typed them into a just-out-of-the-box copy of Microsoft Word. So, it was truly a case of David v. Goliath, or ‘An Army of Davids,’ as Prof. Glenn Reynolds would say.

IS TED CRUZ TAKING 'AN ARMY OF DAVIDS' APPROACH? “The Cruz mobile app, which helps volunteers coordin… https://t.co/8Lvj8tUjj8

— JT Badenov (@cbinflux) October 30, 2015

CBS News, an outlet that spent millions of dollars to express themselves, was defeated by millions of small bloggers who just only their own computers, a few cheap websites, and the truth on their side. And the little guys won that one.

But even then, money was needed even for the Davids’ expression. Even the original commenter, who went by Buckhead, had to have a computer and Internet access—which costs money. So, while the Internet has made expression cheaper than ever before and made it easier for the little guy to take on the big guy, money is still important. Even the words you are reading right now required an infrastructure of employees to create and maintain the Twitchy website and, not to put too fine a point on it, I am not doing this for free, either. Nor do I think any rational one would expect me to.

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So, while Citizens United didn’t say money is speech, it is important to understand that the sentiment is correct: Limiting political expenditures effectively limits speech. This didn’t stop the Supreme Court from putting some limitations on political expenditures, but it didn’t let Congress have carte blanche over the topic, either. 

And, in fact, McCain-Feingold flipped that concept on its head. The logic of the law was (paraphrase) ‘if money is speech, then speech is money. Since we can limit political spending, we can also limit political speech.’ That law represented a dangerous innovation against freedom of expression that the Supreme Court rightfully struck down.

Another objection is that supposedly corporations should have no right to freedom of expression. For anyone who says this, let me suggest this: Keep an ‘expression journal’ for a week. Every time you read something, listen to something, watch something, or even play something (like a game), and so on, note where it is coming from and look to see who takes responsibility for it. For instance, every television show you watch on network TV or on a major streaming service is made by a corporation. This is even true of many YouTube Channels. For instance, I enjoy Corridor Crew’s shows …

… and if you look under the hood, you realize that they are a corporation. The vast majority of movies you watch are made by corporations, too. The vast majority of music you might buy or stream is officially made and published by corporations (most bands incorporate, for instance). And, of course, any streaming service for video or music is run by a corporation. The Supreme Court has said that video games are a form of expression protected by the First Amendment, and the vast majority of video games are made by corporations. This is often true even if one guy is the ultimate creator. For instance, one guy named Markus Alexej Persson (a.k.a. ‘Notch’) created Minecraft. But even then, he did so under a corporation called Mojang. (Toby Fox, on the other hand, might not have been acting within a corporation—my research hasn’t been able to rule it in or out.) Virtually all books are published by corporations, as are most newspapers and news websites, including this one.

With the rise of blogs and later social media, it is fair to say that more than ever random people are able to create mass media without creating or joining a corporation, but the majority of the media you consume is created by people who are on duty as an employee of a corporation. If you aren’t sure of that, spend a week making that journal as I suggested.

And corporations can rightfully try to influence elections. For instance, in 2004, two movies came out that I think were designed to influence the presidential election. The easy one is Fahrenheit 9-11—Michael Moore pretty explicitly said he was rushing the movie to DVD because he hoped it would convince people to vote against George W. Bush (the second Bush).

But I also think Team  America: World Police was also trying to influence the election. There is a central speech toward the end that seems to be the point of the whole movie and, frankly, I can’t quote it or show it to you on this Christian website, but it makes a very gross and moderately funny anatomical metaphor to make its point. To clean it up a bit, the basic idea is that there are wimps, jerks and monsters, and sometimes you need the jerks to take care of the monsters (like terrorists and dictators). They reference certain parts of male and female anatomy in saying this, but I will say no more on this site. And they don’t say anything directly about the election, but I really think the underlying message was ‘Vote for Bush, because he is a jerk who will take care of the monsters.’

Now, you may or may not agree with all or some of what these two movies said, but would anyone really think the founders intended to let the Federal Government censor them?

Of course, I think again the Supreme Court didn’t do a perfect job explaining themselves. It's not so much that a corporation has free speech as that a corporation can only ‘speak’ through people and those people do not lose their right to freedom of expression because they work for a corporation. In other words, just because Michael Moore is working for and being paid by a corporation doesn’t mean the Federal Government gets to prohibit him from expressing his opinion. 

(Of course, if the corporations he is working for has a problem with what he is saying, that is a different issue.)

Like let’s say that David Fincher decided to release a movie this year, through his production company (a corporation), where most of the movie is a political thriller, but toward the end he has his main character, played by Michael Fassbender, says something like ‘we are going to stop this movie and say a little something about why you need to vote for Joe Biden this year.’ And then he goes on and on for five minutes, lecturing us on why Biden deserves a new term. I would not be very happy if I was sitting in the theater and this happened. I might even walk out. But I would be first to acknowledge that making that movie cannot be a crime consistent with the First Amendment. The fact that Fincher is associated with a corporation when he speaks is not justification to silence him and the same could be said of Fassbender.

(Bear in mind, I am just randomly picking out that director and actor. I don’t even know what their politics are and I don’t think they would do something this boneheaded, anyway. In fact, I was actually inspired by Steven Segal’s movie Fire Down Below, where he did do something that boneheaded on environmentalism.)

This would also seem as good a time as any to mention what the dissent said in Citizens United. The dissent believed that the fact that the speakers were associated with corporations was sufficient to justify censorship. As for the suggestion that this would mean that even newspapers could be banned, they claimed that the right to freedom of the press only belongs to institutional press and therefore newspapers would be entitled to that kind of First Amendment protection. That would almost certainly protect Penguin Books and the New York Times, but what about some small-time blogger who has an opinion or perhaps original reporting that the media has been ignoring? Such a person seems unlikely to be protected under the dissent’s approach. Certainly, it would be hard to argue that a random citizen who recorded an encounter with the police and posted it on social media was part of the institutional press, so I guess the dissenters wouldn’t protect those people, either. That would be a frighteningly pinched reading of freedom of the press.

By comparison, the majority view of freedom of the press is that it is simply the right to express oneself in written form. Any person who manages to put words on a piece of paper is protected under this view of freedom of the press. The majority would unquestionably say that your grandpa shooting his mouth off on Facebook is entitled to First Amendment protection. The dissenters would disagree. And if a Democratic president is allowed to replace Thomas and Alito with liberal justices, the dissenters would get their way.

In the end, freedom of expression generally is important, but freedom of expression in relationship to elections is critical. The syllogism is simple:

1. If you have a right to vote, you have a right to make an informed choice.

2. To make an informed choice, you need to receive information from others.

3. To receive information from others, those other people need to be able to speak freely.

4. Therefore, freedom of expression is necessary for any kind of free and fair election.

So, without freedom of speech, especially about elections themselves, we are neither a democracy nor a republic. And yet it is precisely those people who say they want to ‘save democracy’ who want to censor people’s speech, particularly about elections.

Of course, the leftward refrain is that ‘disinformation is dangerous to democracy!’ Look, if a person votes based on information that turns out to be false that’s not a good thing. But the problem is ‘who decides what the truth is?’ The Supreme Court once said in West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) that

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

In short, the First Amendment does not allow for a Ministry of Truth. I also find myself pulling out one of my favorite quotes from President Kennedy:

We seek a free flow of information across national boundaries and oceans, across iron curtains and stone walls. We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.

I used to say that the left had abandoned his principles. However, in some sense they still agree with Kennedy. They agree that if you are afraid to let people judge truth and falsehood for themselves you have to be terrified of the people. The point of disagreement they have with Kennedy is that the left is indeed absolutely terrified of the people! If you understand that, you understand why they constantly want to control social media and why they don’t want ordinary people to be able to defend themselves. And they certainly don’t want you to be able to vote freely, which is why they support removing Trump from the ballot. They are afraid of the people and they don’t think it is a bad thing!

To return to Citizens United, another argument is to say ‘we are not limiting speech, we are just limiting spending.’ This is fallacious. The statute didn't say corporations can’t spend money—they do that all the time. They didn’t say corporations can’t spend money to express themselves—they do that almost as often. They said corporations can’t spend money to say certain things, namely to vote for or against a particular candidate. That is not really a restriction on spending, then. It is a restriction on freedom of expression, as sure as if Congress passed a law saying it was illegal to buy ink and paper in order to criticize a Democrat.

Finally, you might say ‘but that’s just Hillary Clinton, and have you heard some of the things Trump said about freedom of speech?’ Well, yes, Hillary Clinton has been uniquely awful on the issue. Here’s what she said in the 2016 campaign: 

And let’s remember, Citizens United, one of the worst Supreme Court decisions in our country’s history, was actually a case about a right-wing attack on me and my campaign. A right-wing organization took aim at me and ended up damaging our entire democracy. So, yes, you’re not going to find anybody more committed to aggressive campaign finance reform than me.

But the more important thing is that as awful as her words were, she is not alone. I can’t think of a single Democrat who says that Citizens United was correctly decided. And getting that decision overturned has been a part of the Democratic platform in every year since the decision. So, this isn’t one person. This isn’t a fringe group. It is the official party line. It is what you can expect any mainstream Democrat politician to do.

At the same time, Trump is no great advocate of freedom of expression, but his worst statements have virtually no support on the Supreme Court. For instance, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said that in defamation suits that where someone is accused of defaming a public figure, that a uniquely high standard of proof would apply. That decision is good, because it keeps those public figures from using lawfare to browbeat their critics into silence. The ugly truth is that in our modern society, many people are scared to tell the truth because they think bad people will sue them into oblivion—and the Sullivan decision curtails that lawfare. We need to do more to curtail lawfare, but it’s better than nothing.

Trump has made remarks suggesting he would like to see that rule overturned and I am opposed to his stance on that subject. And, as of this date, exactly one Supreme Court Justice has expressed any desire to overturn that precedent. I correctly calculated in 2016 that Trump would not get what he wanted on that issue. I was right back then and I think I am right today when I say that Trump wouldn’t get his way on the issue if he had four more years. I might prefer someone hasn’t even expressed a desire to do such a thing, but Trump wanting it and failing to get it is acceptable.

And I can say something similar about Nikki Haley’s comments about online anonymity. She previously said she wanted to identify every person posting on social media, which is pretty horrifying. But she also backed off, pretending she never said that (she did) and then saying she only wanted foreign users to have this happen to them. This flies in the face of controlling Supreme Court precedent, namely McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), where they confronted a law that made it illegal to distribute anonymous campaign literature—shortly before the Internet started to become a significant force in American life. Expounding on the importance of anonymous speech, the Supreme Court said:

‘Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.’ … Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

(Citations omitted.) The only dissent was by Scalia, a rare stumble for a justice normally excellent on freedom of expression. The majority believed that the right to speak included the right not to speak even when the government asks you to, including the right not to provide (speak) your own name or other identifying information, and I think they have the better of that argument. And in the years since, I don’t think the changes in the Supreme Court’s personnel adds up to a majority to overturn that precedent. So even if Haley reverts to her position against anonymous speech, she won’t get her way on it.

Finally, you might say, ‘but what are you worried about? The precedents are set. Citizens United and 303 Creative are now the law of the land.’ It is true that traditionally the Supreme Court Justices are supposed to honor precedents that they don’t agree with. But that never happens with liberal justices. The only precedents they want to honor are the ones they like. To give a simple example, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court said that states had a right to ban gay sex. In Lawrence v. Texas, 539 U.S. 558 (2003) the Supreme Court said that one had a constitutional right to engage in gay sex, overturning Bowers. And to top it all off, in Obergefell v. Hodges, 576 U.S. 644 (2015), the Supreme Court said we had a right to gay marriage. That is, they claimed that the Fourteenth Amendment, which was written by evangelical Christians who regularly imprisoned gay people for gay sex, was designed to protect the right of gay people to marry. Neither history nor precedent was on their side, and that was barely a speed bump to the liberal justices (and some moderates).

(And for any slow leftists who might read this, I am not saying that I want to, for instance, throw gay people in jail for consensual sex between adults. But no Supreme Court Justice should substitute their own policy preferences for what the Constitution actually says.)

And even if they honored precedent, what do we do when the next case comes up? The next time someone tries to come up with a new way to infringe on First Amendment freedoms, will there be enough people faithful to the Constitution on the Supreme Court to thwart it?

I just showed you that the First Amendment would be endangered. Now, would you like to see how dire it would be for the Second?

Well, look at recent Supreme Court decisions on the Second Amendment.

Take District of Columbia v. Heller, 554 U.S. 570 (2008). That rebuffed the theory, popular in academic circles but with no support in history or precedent, that the right to keep and bear arms found in the Second Amendment was actually a collective right, rather than an individual right. That decision was 5-4—five conservatives against four liberals.

Next, there is McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). Where Heller dealt with attempts by the Federal Government (in the form of the government of the District of Columbia) to limit the right to keep and bear arms, McDonald asked whether the states were bound to the Second Amendment. The Supreme Court said yes, 5-4. No liberal joined the majority.

Finally, New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022) concerned itself with whether a person had a right to carry a handgun outside of the home. This time it was 6-3 to say one had that right, but not because any liberal justice has seen the light. Instead, it was because there were now six justices you could call conservative and only three you could call liberal.

Given those numbers can there be any doubt that if liberal justices got hold of the majority, that we would see every single one of these decisions overturned in short order? And certainly the next Second Amendment decision isn’t likely to end in victory for those who believe in the right to bear arms.

And while I didn’t foreshadow this at the beginning, let’s mention another recent case: Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022). That would be the case that appropriately threw Roe v. Wade into the dustbin of history. Is there any question that if there was a 5-4 liberal majority, that they would suddenly claim that there is a right to abortion, after all? History and precedent didn’t stop the march toward gay marriage and it won’t stop their lust to reinstate the so-called right of abortion.

So that’s the stark reality. If we give Joe Biden—or any other Democratic president—the next four years, we might lose the First and Second Amendments. And what's at stake with Roe and Dobbs is not even abortion itself, but whether or not We the People get a say in abortion (without having to actually amend the Constitution). I was born a year before Roe was decided and for the first time in my life, I am able to really have a vote on the topic.

Now, where the Constitution actually takes a topic away from the ordinary political process—such as the Eighth Amendment’s prohibition on cruel and unusual punishment—there is nothing wrong with We the People not having a say (outside of amendment). But that’s not what happened with abortion. I used to run a blog called ‘Allergic to Bull’ and I haven’t lost that allergy just yet, so let’s all just be honest for a moment. There is no right to abortion in the Constitution—not in the original Constitution and not in any of its amendments. This was the Supreme Court pulling the right out of its hindquarters because seven of the justices on the Court at the time thought it was a good idea. And using this method to change policy is not republican values and it is not democracy: It is oligarchy.

Because in the end, as much as Democrats claim that they are protecting democracy, right now they don’t believe in democratic or republican values. They don’t want the people to decide the really important issues like abortion or gay marriage. They don’t want the people to speak freely. And they certainly don’t want us to be able to defend ourselves.

Of course, there is no absolute guarantee that any Supreme Court Justice will do what you want them to—more so with Republican appointees than Democrats. But Trump’s Supreme Court justices have been pretty solid as conservative votes—you can complain about votes they have cast that have made you or I unhappy, but their overall record is solid. And as for Haley, I can’t say for sure what kind of justices she would nominate. But imagine she was as bad as George H. W. Bush (a.k.a. the first Bush). Well, he gave us Souter, who was definitely a disappointment to conservatives. But he also gave us Clarence ‘The Hammer’ Thomas (to give him a nickname I just made up). So even if she has a similar track record, giving us effectively one liberal and one conservative, that would still hold the line with a 5-4 conservative majority. That wouldn’t be perfect—because we would be relying on at least one justice, Roberts, who is not always reliable—but it is better than losing the majority entirely.

As for the notion that we need a third party that better represents your preferences, I have sympathy with that, but we really can’t let the Democrats have the White House right now. This is a critical juncture in the Supreme Court’s history. A Democrat president could flip the majority for decades. We can’t afford to have disunity.

I also understand that this might mean choking down some genuinely hurt feelings and justified anger. I think it might be a good idea for some people who have acted badly to try to mend fences. But even if the truly obnoxious people continue to be tools, you have to ask yourself what is more important—and I am hard pressed to think of something more important than protecting the first two amendments.

In the end, you should take some time with it. November is a long way away, and you don’t have to decide right now. Vote however you want in the primaries—including writing in anyone you want who currently isn’t on the ballot. I might do that in my primary just to let people know what my preference was. But at some point, there will be a nominee for the Republican Party, and consider this issue of the Supreme Court seriously when deciding whether you will support him or her and what you will do to help that person. But I already know I will almost certainly be pulling the lever for the Republican nominee.

Finally, it might be depressing to know that our Republic can be so fragile. Maybe it’s not something that has been brought home to you, before, but it is something we have been warned about for years. To quote from President Reagan:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

I believe this is a moment where freedom has to be fought for, protected and handed down to our children. That might not make our choice in November easy, but for me it makes the choice clear.