While the Supreme Court’s decision in the case of Van Buren v. United States is surely of great interest to experts on computer fraud and related crimes, it may well be that the more crucial message it sends is a rather broader one concerning the integrity of the high court amid calls from the left for its fundamental transformation, as Fox News reports.
On Thursday, in a 6-3 vote, three Trump-appointed justices joined with three members of the institution’s liberal wing in supporting a narrow reading of the Computer Fraud and Abuse Act of 1986. While the decision in and of itself was perhaps not one of the most highly-anticipated of the current term, some commentators believe that it, combined with recent unanimous rulings in five other matters, was intended as a signal to those calling for major structural change at the court.
Justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch – together with liberals Stephen Breyer, Sonia Sotomayor, and Elena Kagan – found themselves on the opposite side of conservative stalwarts Justices Clarence Thomas and Samuel Alito as well as Chief Justice John Roberts in a somewhat unexpected alignment.
Georgetown University law professor and Fox News contributor Jonathan Turley has expressed his own suspicion that the court is attempting to send a message designed to counter critics who suggest that the institution is so fraught with intractable partisan divides that only a wholesale reformation of its composition can solve the problem.
With far-left advocacy groups – and some congressional lawmakers – demanding the expansion of the court for the purpose of filling new seats with progressive jurists and President Joe Biden convening a commission to explore and provide recommendations on issues including “the length of service and turnover of justices…the membership and size of the Court…and the Court’s case selection, rules, and practices,” Turley argues that the justice themselves are offering something of a tacit counterpoint.
The professor opined that the justices may be interested in communicating through their rulings that they are not nearly as ideologically bound as critics argue and that the concerns lodged by those fighting to expand and pack the court are not well-founded.
It is worth noting that Breyer, a longtime liberal on the court, has been subjected to loud, repeated demands for his resignation from progressive advocates who believe he must step aside now while President Joe Biden has the power to appoint an ideologically suitable replacement. However, he has been vocal in warning against the folly of attempts to pack the court to achieve blatantly political ends.
Turley says his theory that the ruling in Van Buren is further evidence of the court’s desire to telegraph its independence is supported by the fact that Breyer himself would have been the one to assign opinion writing duties in the case to Coney Barrett, something he described as a “a nightmare for activists: a consensus opinion written by Barrett for three conservative and three liberal justices.”
As Turley makes clear, “justices are meant to speak through their opinions and this decision speaks profoundly and clearly…that the Court remains unpacked and unbowed in carrying out its constitutional duties.” Whether that wholly appropriate state of affairs is permitted to persist, however, remains to be seen.