SHOULD SCOTUS BE ELIMINATED?
IF IT DOESN’T WANT TO DO THE JOB, SHOULD IT BE CLOSED?
Previously articles have been written here about the problem with SCOTUS not hearing cases of importance to the Constitution and thus to the people of our country. In this article we will examine the case of Stockton v. Ferguson another blatant example of the Court’s rejection of cases dealing with constitutional rights.
John Stockton, Richard Eggleston, M.D., Thomas T. Siler, M.D., Daniel Moynihan, M.D., and Children’s Health Defense brought an action against Robert Ferguson, in his official capacity as Attorney General of the State of Washington, and Kyle S. Karinen, in his official capacity as Executive Director of the Washington Medical Commission because the Department of Health of the state of Washington was investigating physicians who had allegedly spread “misinformation” about the COVID-19 vaccine shots and sought to deprive those physicians of their license to practice medicine.
The basis of the lawsuit was that silencing these doctors about critical information violated their right to freedom of speech under the First Amendment of the Constitution, and deprived the public of the right to hear that information in a debate that should have occurred regarding the safety and validity of the vaccines. The parties sought an injunction stopping the investigations and proceedings that might result in cancellations of their medical licenses while the courts were hearing and deciding the case.
The lower District Court held against the physicians and private parties and denied the injunction and the case is now on appeal to the Ninth Circuit Court of Appeals.
The doctors and private parties filed for a preliminary injunction in SCOTUS so the proceedings of the Washington State Department of Health could not continue with its proceedings until the decision had been made by the Court of Appeals and possibly appealed to SCOTUS for a determination of the constitutional question.
Portions of the application for injunction are set out here for a better understanding of the argument present to SCOTUS as a reason to hear the case. The application was presented to Associate Justice Kagan, who is assigned to oversee the Ninth Circuit (which includes the state of Washington) to be presented to the Court. The brief supporting the application in SCOTUS begins:
“In the Supreme Court of the United States
John Stockton, Richard Eggleston, M.D., Thomas T. Siler, M.D.,
Daniel Moynihan, M.D., Children’s Health Defense, a not-for-profit
corporation, AND JOHN AND JANE DOES, M.D.s 1-50,
Applicants,
v .
Robert Ferguson, in his official capacity as Attorney General of the State of
Washington, and Kyle S. Karinen, in his official capacity as Executive Director
of the Washington Medical Commission
Respondents
To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and Circuit Justice for the Ninth Circuit
Application for Injunction
REASONS FOR GRANTING THIS APPLICATION
PHYSICIANS’ PUBLIC VIEWPOINT SPEECH IS FULLY
PROTECTED BY THE FIRST AMENDMENT, SUBJECT TO STRICT
SCRUTINY AND THE RECORD REQUIRES THE GRANTING OF THE
REQUESTED INJUNCTIVE RELIEF”
Supporting the above reasons, the brief quotes the words of Justice Jackson from a concurring opinion in the case of Thomas v. Collins, 323 U.S. 516, 545-46, (1945), where he said:
“[I]t is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628. Nor would I. Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press. These are thereby left great range of freedom. * * *
This liberty was not protected because the forefathers expected its use would always be agreeable to those in authority or that its exercise always would be wise, temperate, or useful to society. As I read their intentions, this liberty was protected because they knew of no other way by which free men could conduct representative democracy.
At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. See Lowe v. SEC, 472 U.S. 181, 232, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) (White, J., concurring) (“Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that ‘Congress shall make no law … abridging the freedom of speech, or of the press.’ ”); Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L.Rev. 939, 949 (2007) (“When a physician speaks to the public, his opinions cannot be censored and suppressed, even if they are at odds with preponderant opinion within the medical establishment.”); cf. Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773 (Colo. Ct. App. 1997) (holding that the First Amendment does not permit a court to hold a dentist liable for statements published in a book or made during a news program, even when those statements are contrary to the opinion of the medical establishment). That principle makes sense because communicating to the public on matters of public concern lies at the core of First Amendment values. See, e.g., Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011) (“Speech on matters of public concern is at the heart of the First Amendment’s protection.” (internal quotation markets, brackets, and ellipsis omitted)). Thus, outside the doctor-patient relationship, doctors are constitutionally equivalent to soapbox orators and pamphleteers, and their speech receives robust protection under the First Amendment.
We held [in Pickup] that “public dialogue” by a professional is at one end of the continuum and receives the greatest First Amendment protection. Id. To illustrate, we explained that even though a state can regulate the practice of medicine, a doctor who publicly advocates for a position that the medical establishment considers outside the mainstream would still receive “robust protection” from the First Amendment. Id. pp. 10-11”
In addition, in the brief presented to SCOTUS the argument was made that a requirement that strict scrutiny had to be satisfied, had not been met, saying:
“At a minimum, under all existing appellate and Supreme Court statements, the Respondents’ enforcement program is subject to scrutiny since it targets both viewpoint and public speech. “Robust” First Amendment protection requires nothing less.
Strict scrutiny means that the Appellees must prove a compelling state<interest, and they also must prove that the means chosen were narrowly tailored such that the least restrictive means possible were used. South Bay PentecostalChurch v. Newsom, 141 S.Ct. 716, 718-19 (2021); Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015).
Strict scrutiny also requires actual evidence that less restrictive alternatives were considered and found to be less effective than the statutory solution. Ashcroft “>ACLU, 542 U.S. 656, 666 (2004); see also Gonzalez v. Centro Espirita Beneficent Uniao do Vegetal, 546 U.S. 418, 429 (2006); United States v. Playboy Ent Grp. Inc.
13529 U.S. 803, 817 (2000) (Strict scrutiny requires the government provide evidence that other alternatives that do not involve restricting protected speech would not have been effective to achieve the compelling state interest); Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 799 (2011) (to satisfy strict scrutiny “[the] State must specifically identify an ‘actual problem’ in need of solving [Citation], and the curtailment of free speech must be actually necessary to the solution….” Under strict scrutiny the state “bears the risk of uncertainty” and “ambiguous proof will not suffice,” as well as a “direct causal link” between the targeted information and the harm. Id.) “Furthermore, the Department must provide actual evidence, not just conjecture, demonstrating that the regulatory framework in question is, in fact, the least restrictive means. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 475-76 (5th Cir. 2014), citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (italics in original). pp. 13-14”
The petitioners also argued in their brief in SCOTUS that tests established to allow the Court to hear the case had been satisfied, saying:
“For irreparable injury, “‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury’ for purposes of the issuance of a preliminary injunction.” Elrod v. Burns, 427 U.S. 347, 373 (1976). p.15”
In other words, all the appropriate arguments were made in order for SCOTUS to think the case important enough to grant the temporary injunction at least until the Ninth Court of Appeals had made its decision. The reason, of course, is that if the proceedings were allowed to continue by the state Department of Health and resulted in the licenses being revoked, the case would have to take on a much different approach if an appeal was then taken to SCOTUS. In the meantime, before SCOTUS could hear the case, the physicians would have lost their right to speak out under their right to First Amendment protection and the public would have been deprived of the right to hear their opinions so they could make their independent decision whether to be vaccinated.
On the other hand, if the Ninth Court of Appeals found in favor of the doctors, the issue of Freedom of Speech would be decided and if the state of Washington insisted in appealing, they would bear the burden of proof that taking such action would satisfy that provision of the Constitution. It seems preposterous that the Court would not want to protect citizens acting within their constitutional rights from the vagaries of the law by denying keeping the status quo with the granting of an injunction.
Why wouldn’t the Court hear the case? We will never know because there is no requirement that any reasons be given. The statement in the record is simply:
“Application (24A440) denied by Justice Kagan.” This is transparency in government so the public would know how and why they are ruled as they did?
How the Court handled the case clearly supports the position that SCOTUS has become a tyrannical ruler that does not even abide by the oath taken by its members to “uphold the Constitution of the United States”. Therefore, the question is whether SCOTUS should be eliminated. There must be a better system than exists today to serve the ends of justice.
Please visit and ask others to visit my website where information can be found about me, my family, and my book, “The Tyrannical Rule Of The U.S. Supreme Court; How The Court Has Violated The Constitution”. You can purchase the paperback book at Ingram Spark or the paperback or ebook at Barnes & Noble. By reading the book you will learn more about how SCOTUS has ruled us by distortions of the Constitution.
Contact: donsbooks@proton.me
© 2023 Donald Brockett
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