A federal appellate judge challenged Supreme Court infallibility

In the case of Tah v. Global Witness Publishing, Inc., which emerged from the United States Court of Appeals for the District of Columbia Circuit, nobody but the parties involved cared about the issues in the case. It became noteworthy, though, because Judge Laurence Silberman used the dissent, not just to disagree with the majority’s ruling, but also to warn against the danger of a national media that is completely allied with the party controlling all of Washington D.C. However, I find the case even more exciting because it attacks the notion of Supreme Court infallibility.

The majority in the Tah case did a good job of summarizing the case and you’ll see why nobody in America was paying attention:

In this defamation action, two former Liberian officials allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice. For the reasons set forth in this opinion, we affirm. The First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections.

The Supreme Court first enunciated those “broad protections for speech about public figures” in 1964, in New York Times Co. v. Sullivan.  In brief, it held that, if a public official or political candidate wants to succeed in a defamation claim, she or he cannot merely prove the elements of a defamation cause of action (i.e., publicly disseminated defamatory statements) but must also prove that whoever made the statement acted with actual malice. “Actual malice” means knowing the statement was false or recklessly disregarding its falsity. As a result of that decision, public officials stopped suing the media, so much so that they no longer sue even when obvious actual malice is present.

Judge Silberman wrote a dissent challenging not only how the majority applied New York Times Co. v. Sullivan to the case before it but also challenging the entirety of the Supreme Court decision. It’s this last aspect that makes Silberman’s dissent noteworthy.

Silberman points out that “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. *** As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”  

Although Silberman acknowledges the difficulty inherent in overruling “landmark” cases, he has come to see the 57-year-old New York Times opinion as “a threat to American Democracy. It must go.” And then Silberman goes into overdrive defending the Constitution.

He makes plain his disdain for Justice Kennedy’s contention that “criticism of the Court is tantamount to an attack on the Constitution.” Instead, “I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb.” It’s that kind of dissimulation that is “the real attack on the Constitution.” Indeed, “[t]he notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.”

What Silberman has written is incredibly important. The Supreme Court, unlike the Pope, is not God’s representative on earth (at least for Catholics). It’s a collection of lawyers, with those from the left being highly politicized. These same leftist lawyers pretend that they are, in fact, infallible, making their decisions indistinguishable from the Constitution itself – and as unassailable.

What lies behind Silberman’s attacking the imaginary doctrine of Supreme Court infallibility is the Court’s 67-year history of deciding cases on purely political grounds, while pretending that the Constitution is controlling. The most famous of these cases for conservatives is Roe v. Wade which found a constitutional right to abortion hidden in the Constitution’s emanations and penumbras.

However, the same “make it up as you go along” philosophy really began with a truly righteous case: Brown v. Board of Education. There was nothing in the Constitution to bar the heinous practice of academic segregation (one that Democrats are again embracing), so the Supreme Court, to advance a moral public policy, made up constitutional law. When doing so worked, the Supreme Court was off to the races. It now makes up imaginary constitutional rights on a regular basis. Just think of the Obergefell decision, in which Kennedy wrote a romance novel to find a constitutional right to gay marriage.

On the Supreme Court, Justice Thomas clearly understands that Supreme Court infallibility is a false doctrine and Justice Alito probably does, too. Justices Gorsuch, Kavanaugh, and Barrett may understand the principle. The remaining justices quite definitely do not. Until all the justices recognize that they’re merely fancy lawyers, with none having a claim to the papal throne, America will continue to fall victim to the fake constitutionality of an activist court.

(If you want to read about Silberman’s excellent attack on the unholy alliance between the media, Big Tech, and the Democrat party, I recommend Mollie Hemingway’s Twitter thread.)

IMAGE: By Andrea Widburg, using a public domain image.