Donald Trump may be out of office–for now–but conservative justices on the U.S. Supreme Court are still showing interest in taking on some issues that were near and dear to his heart when he was president.
In an opinion this week, Clarence Thomas said Twitter might need to be more highly regulated and said he thought the court would soon be tasked with addressing Big Tech’s “highly concentrated control” of speech.
Thomas and conservative colleagues Samuel Alito and Neil Gorsuch also said they hoped they would get to rule on whether state officials and courts have the power to change election laws and rules without legislative approval or backing, as happened frequently in the 2020 presidential election.
The court is currently 6-3 conservative, and comments like these seem to be an open call for cases that would address those issues.
Justices calling for lawsuits?
“Justices have long used public statements or published opinions to invite litigation or legislative reform,” constitutional law professor at Boston University Robert Tsai said. “It reminds us that they are part of the political community and that the modern Supreme Court is not simply a neutral institution but one that participates in determining the nation’s values.”
None of the justices said they would rule in any particular way on the issues mentioned.
Trump advocated for a repeal or modification of Section 230 liability protections for Big Tech before the election, and a post-election poll showed that social media suppression of stories favorable to Trump and detrimental to President Joe Biden did impact voting in ways that would have changed the result.
Similarly, election law changes by state courts and officials benefitted Biden in the vote counts, but the extent of the impact on swing state election results was not immediately clear.
Ruling on some of these issues before the election could have impacted the results and led to a completely different political ball game right now, but that did not happen.
To be clear, Thomas, Alito and Gorsuch wanted to rule on the election issue when it came before them just before the election, but they did not have enough justices in agreement to do so.
Law professor at the University of California Irvine Rick Hasen said having three or more justices believe in a “strong version” of the independent state legislature doctrine should embolden would-be litigants to argue for it in future lawsuits.
“Sooner or later, the Supreme Court is going to have to weigh in on the issue,” he said. “I only hope it is in a case that is not of national prominence, like a presidential election.”
And there’s the problem, even with the Supreme Court–too little courage of one’s convictions in the very vital situations where it counts most.