You have the right to expose kids to drag shows, but you do not have the right to bodily autonomy free of forced COVID mRNA jabs. That’s the upshot of the U.S. Supreme Court’s recent refusal to hear a pair of cases — one from New Jersey, the other from Florida — that go to the heart of the First Amendment.
Once again, Justices Brett Kavanaugh and Amy Coney Barrett proved to be disappointments. And once again, we see how federal courts that are missing in action in the fight to protect real rights in blue states can be counted on to impose phantom rights in red states.
The justices denied an appeal from New Jersey nurses who were forced to get the dangerous COVID jab or lose their jobs in state hospitals. A federal district court ruled in 2022 that no rights were violated by the state. By the time the case reached the U.S. Court of Appeals for the Third Circuit earlier this year, New Jersey Governor Phil Murphy had lifted the mandate, so the matter was considered moot.
It’s the same problem we seem to always have with election cases. When we ask the courts to weigh in, they refuse. When we finally gain some traction in the fact-finding portion of the matter, a judge will say the question is moot, and we’re back to square one. Better luck next time! And when it comes to biomedical tyranny mandates, there will be a next time.
Considered in a vacuum, the court’s decision might be excusable. But paired with Barrett and Kavanaugh’s consistent unwillingness to consider the merits in any state mandate case as lives were on the line, the court is sending a clear message that it is maintaining, at least for now, the Jacobson precedent.
The court in 1905 ruled in Jacobson v. Massachusetts that the Cambridge Department of Health could levy fines on individuals who refused to take the smallpox vaccine. That eugenics-era decision has formed the legal basis and rationale for every COVID mandate since. The courts consider Jacobson “settled law.”
When the livelihoods of millions of Americans were hanging in the balance due to vaccine mandates — the ultimate “ripe” case and controversy — the Supreme Court consistently allowed state mandates to go into effect.
In December 2021, six justices denied emergency injunctive relief to New York health care workers who were being deprived of a religious liberty exemption from the state’s vaccine mandate. Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito said they would have granted relief because of the irreparable harm incurred pending the litigation.
But Kavanaugh was so radical on the issue that he even upheld the ability of the federal government to mandate vaccines when he sided with Chief Justice John Roberts and the three Democrat appointees in upholding the CMS health care worker vaccine mandate in January 2022.
So here we are with two of Donald Trump’s Supreme Court picks holding that even bodily autonomy is not a constitutional right. Perhaps that should come as no surprise. But the COVID cases were far more onerous than the ordinance in Jacobson, which merely imposed a $5 fine (about $150 today). That is quite different from barring someone from school, employment, and vital goods and services — up to and including organ transplants.
Government has a strong power to tax but not to coerce. As the Massachusetts Supreme Judicial Court noted: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.”
Well, if Barrett and Kavanaugh hold such a strict and limited view of fundamental rights, at least red states remain free to rid themselves of the licentious transgender agenda without the courts creating phantom rights. Not so fast! Federal courts across the nation are striking down anti-drag-show laws as antithetical to the First Amendment because, evidently, there is a fundamental right to expose minors to male twerking so long as you get your COVID shot and wear a mask.
At issue was Florida’s law yanking liquor licenses from bars that hold adult sexual performances where minors may be present. A federal district court in Florida issued a statewide injunction, warning that the state likely violated the free speech of bar and restaurant owners.
Kavanaugh and Barrett voted with the liberals not to hear Florida’s appeal. Although Kavanaugh made it clear that he was not ruling on the merits of the First Amendment, he allowed the injunction to remain in place on procedural grounds. In an explanation joined by Barrett, Kavanaugh wrote that because the state was only seeking to overturn the injunction on non-parties to the legal case, it wasn’t a good vehicle to decide the merits.
But because the context of the question on the overbroad injunction arose from a First Amendment case, somehow that was also an “imperfect vehicle” to consider the procedural question about the injunction over non-parties, too! Either way, Florida is out of luck.
On paper, Kavanaugh’s decision is defensible. But when federal judges are blocking so many important laws on such novel grounds, why should it take years for the Supreme Court to settle these questions? Remember, Kavanaugh and Barrett are the ones who harbor such a narrow view of fundamental rights in the blue states, but they are open to a right to public obscenity in red states.
Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated they would have granted Florida the appeal on such an important case. They are correct. When a lower court interferes with the democratic process to create a novel right, the Supreme Court has an obligation to police the inferior courts when they are clearly in the wrong. Barrett and Kavanaugh are content to maintain the status quo so long as it benefits the left. And to think we almost had a civil war over Kavanaugh’s nomination!