Tag: supreme court

The Nuclear Countdown

The Democrats now appear to have enough votes to filibuster the Gorsuch nomination. Make no mistake: this is not about Gorusch, who is a mainstream conservative judge (and, in some ways, more appealing than Garland). This is about tit-for-tat for the GOP not considering Obama’a nomination, a game that has been building since the 80’s.

The GOP is now talking about invoking the “nuclear option” to end the filibuster. I would prefer that a deal be struck or, if the nuclear option is invoked, it be invoked narrowly on judicial nominations. The GOP will not be in charge forever and there will come a time where we will need the filibuster to stop a Democratic President. A lot of people complaint that the filibuster is “undemocratic”, to which my reply is generally, “Gee, I hope so.” The system is designed to curb the enthusiasm of the people. It needs to continue to do so.

In this case, however, I think killing it is better than letting it hamstring the judiciary forever.

Update: Just to be clear: I don’t think Gorsuch is ideal. I think he’s about as good as we’ll get. But he does not come without concerns. I’m not referring to his stance on issues, but rather to his background. SCOTUS clerk, boutique law firm, the justice Department, then appellate justice. He doesn’t have a lot of experience of our criminal justice system.

And that’s an issue. As I’ve noted before:

One of the biggest problems with the Supreme Court is that, for all the efforts to “diversify” it, the Court has very little intellectual diversity. Every single judge went to either Harvard or Yale Law. Very few have practiced law and none as a defense attorney. As a result, they say stunningly myopic things about our legal system.

SCOTUS decisions have a tendency to read like the minutes of a Harvard debating society. The justices are extremely knowledgeable. They are full of theory and precedent. But their practical knowledge of how the legal system actually works is limited, at best. They’ll debate points of minutia and legal theory, but miss the big picture. It’s what allows them to uphold assert forfeiture using the pedantic lawyer bullshit that property has no right and so charging the property with a crime is OK. It’s what allows them to claim the grand jury system is a functional bulwark of our liberty. It’s what allows them to pretend that a mandate is a tax.

Gorsuch has a few concerns in this direction. During the hearings, he Democrats focused on the trucker case. A trucker had a broken down truck that was freezing as he awaited instructions from the company. He detached the trailer and drove for assistance and the company fired him. He appealed the firing because, under federal labor law, you can’t fire someone for refusing to operate equipment in an unsafe manner. Gorsuch was in the minority in rejecting his argument, saying that the law only applied to people who refused to operate unsafe equipment, not people who refuse to not unsafe equipment, logic the majority tore apart.

The more I’ve thought about this, the more it worries me. Democrats, being Democrats, focused on the poor trucker. But was I was more concerned about a judge focusing so narrowly on the exact wording of a law rather than the intent of the law. Because laws can not be written to anticipate every eventuality. At some point you have to apply common sense (Common Law). And Gorsuch worries me that he’ll be yet another judge who gets lost in the narrow tiny words of the law and fails to focus on what the law actually means.

(And yes, such narrow focus might have struck down Obamacare. It might also strike down every law out there, including a lot we favor.)

Ultimately, I support Gorsuch’s nomination. But it does not come without concerns. It never does.

It’s Gorsuch

Well, it was done like an Apprentice finale, but we finally got Trump’s nominee to replace Scalia: Neil Gorsuch. So far, the conservative wing is extremely pleased. Gorsuch is a textualist, an independent thinker and a good writer. He clerked for Kennedy. He’s another member of the Harvard-Yale axis, unfortunately. I will have to read up more but my initial impression is that this is a solid nomination by Trump.

I thought that the GOP should have considered Garland. And I think the Senate should move forward on Gorsuch. Grill him. Vet him. Question his rulings and opinions. That’s their job. But if he’s qualified and has not serious issues, he should be our next Supreme Court justice. I expect the Democrats to put up a bit of a fight but, as he’s replacing Scalia, it will probably not be too bad. If they’re smart, they’ll save it for if/when Trump has to replace a liberal or moderate.

Obama Smacked Down. Yes, Again.

The Supreme Court split 4-4 on United States v. Texas. This lets stand the lower court ruling that invalidated Obama’s attempt to do immigration reform by executive fiat. And it really should have been 8-0.

I support immigration reform. I also support doing it through Congress, as the Constitution mandates. If Obama has the executive power to rewrite immigration law, so will Trump.

SCOTUS Second Amendment Smackdown

One of the more ridiculous argument used by anti-Second-Amendment types goeth thusly: “OK, the second amendment gives you the right to bear arms … as defined in 1789. So you can have a musket.”

The idiocy of this argument scarcely needs commenting on. No one would claim the First and Fourth Amendments didn’t apply to computers since computers didn’t exist in 1789. No one would claim Mormons can’t have religious freedom because the LDS church didn’t exist in 1789. And yet this argument has been dragged out from time to time. And a Massachusetts Court gave some credence to that argument:

Enter Jaime Caetano, a Massachusetts woman who had obtained a restraining order against an abusive ex-partner and carried a stun gun for self-protection. When police discovered the weapon in her purse, she was convicted of violating the state’s ban on stun guns. She appealed, contending that the ban violated the Constitution’s right to bear arms. The Massachusetts Supreme Judicial Court ruled against her, declaring that stuns guns were not in existence when the Second Amendment was written.

So how did the Court take to this argument? Very poorly. They rejected it per curiam in scathing terms with Alito and Thomas issuing a concurring opinion. To be clear: they didn’t decide that the stun gun ban is unconstitutional; they simply sent it back to the Supreme Judicial Court with a note saying, “Think harder, Massholes.”

Again, per curiam, which means the “musket gambit” is so silly, even the liberals on the Court who voted against Heller thought it was a ridiculous argument.

Because … you know … it is a ridiculous argument. It might make for good cheer lines on The Daily Show/Full Frontal/SNL/Real Time. But it won’t hold a thimble of water in a Court.

It’s Garland

Obama has announced his SCOTUS nominee: Merrick Garland.

I think the GOP would be wise to consider the nomination. They don’t have to accept it. They are well within their prerogative to reject it. But I think it should be considered.

For me, I would not support Merrick. He’s yet another product of the Harvard-Yale axis. Yet another nominee who has no experience in criminal defense (he’s been a career prosecutor). He’s yet another nominee who defers to the government and to law enforcement rather than defend our civil liberties. He also opposed Heller.

I won’t form a final opinion just yet. But my initial response is negative. I expect the GOP will like the things I dislike about him.

Scalia Dead

Antonin Scalia has apparently died. He was one of the most formidable intellects in the history of the Court, returning the interpretation of law to the Constitution and refusing to rewrite the Constitution to conform the political desires of the moment. I disagreed with him sometimes but he was one of the few justices who would occasionally defend civil liberties, most notably in the flag-burning decision. But his conservatism made him despised in liberal circles.

What impressed me about Scalia was his humor, his intellectual vigor and his unwillingness to make the personal political. His best friend on the Court was Ruth Bader-Ginsberg, his ideological opposite.

The balance of the Court is about to shift dramatically. Stay tuned.

Update: I’m tweeting a lot about this. Replacing Scalia is going to be a highly contentious issue. It’s Obama’s duty to nominate someone. It is the Senate’s duty to vet. There’s no reason why the Senate can’t reject someone who is unqualified or too ideological (see Bork, Robert).

I’ll hedge that last one. The Second Amendment is a critical civil liberty. And Scalia was a critical voice upholding it.

SCOTUS vs. EPA

So this happened:

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.

The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.

But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.

That last part is true. However, it is also true that we have never had the federal government try to enforce a far-reaching rule like Obama’s coal regulations over the objections of Congress, over the rights of the states and through a highly contentious (and likely unconstitutional) reading of the Clean Air Act. Ilya Shapiro:

In June 2014, the Environmental Protection Agency proposed a new rule for regulating power-plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal-fired plants are.

I think global warming is real and reducing carbon emissions is important. But it’s clear to me that the EPA does not have the authority to do this unilaterally. And it’s also clear to me that, with such a bitterly contested rule, the Court is right to stay implementation until the issue has been decided. We’re not just talking about an enormous burden on the states and power plants. We’re talking about a fundamental change in the way the EPA does business. You don’t just start doing that when there’s a very good chance you’ll be stopping it a few months from now.

Update: There are some indications that the White House may proceed anyway in defiance of the Court. What will it take for Congress to act here?

A Scalia Smear

The Supreme Court, earlier this week, heard arguments in a case of whether affirmative action should be allowed in Texas Law schools. You may have heard about this because the entire Left Wing exploded into outrage over Scalia’s alleged racism:

Demonstrating once again that his reputation for cheap demagoguery has been well-earned, Senator Harry Reid this morning took a wild shot at Justice Antonin Scalia. “It is deeply disturbing,” Reid suggested, “to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court.”

What did Scalia say, precisely?

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­ advanced school, a slower-track school where they do well,” he said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.”

That’s it. Scalia didn’t even advance the theory that admitting blacks to schools they are underqualified for only makes them struggle. He threw it out there as a discussion point to hear what the lawyers thought about it. You wouldn’t know this from the screaming headlines (the New York Daily News, which has completed its descent into pure Left Wing hysteria, had a screaming headline branding Scalia a racist).

Now there are reason to think that this theory is wrong. Recent studies have shown that black students admitted on affirmative action catch up quickly and have graduation rates similar to white students. However, others have argued that it keeps black students out of the more difficult subjects like science, where catching up is particularly difficult. This theory — not Scalia’s, but a common theory — is not far out of the mainstream at all. It’s been mentioned in prior SCOTUS decisions on this matter.

But this is a bit more dangerous than calling Scalia a racist. Alex Griswold

First of all, it’s worth noting that oral arguments are not an avenue for justices to share their views on the case at hand; it’s an opportunity to suss out any holes in the arguments of both parties. To that end, justices often advance arguments and theories they do not necessarily hold. Take for example Chief Justice John Roberts‘ extremely harsh questioning of government lawyers in NFIB v. Burwell, even though he eventually voted to uphold the individual mandate anyways.

Arguing before the Supreme Court is a notoriously nerve-wracking experience, since justices try to find arguments and lines of attack attorneys would never consider. In this case, the transcript make it clear that Scalia was asking a question about a theory put forward by others, not himself:

Scalia, in particular, has a tendency to play devil’s advocate. During the flag burning case, he asked if burning the flag could be banned by being considered fighting words. But he eventually decided with the majority to strike down the flag burning laws.

Charles Cooke, linked above, brings this home:

If we are to have a functioning justice system, we cannot hold lawyers personally responsible for the unpleasant parts of their designated roles. When a defense attorney successfully demonstrates that the prosecution’s case is too weak for a conviction, he is not betraying a preference for murder or rape or grievous bodily harm, he is ensuring that his client gets a fair shake. When a corporate counselor illustrates that a given statute is so badly written that it cannot be used to secure guilt, he is not endorsing whatever misconduct yielded the case in the first instance but upholding the rule of law. And when a Supreme Court justice pushes those before him to respond to the countervailing briefs — or offers whatever devil’s advocacy occurs to him on the spot — he is not pitching his own ideas but mediating a dispute. The day that we fail to understand this will be the day we give in to barbarism.

All too often these days we conflate principles with outcomes. Thus, to defend the free-speech rights of neo-Nazis is to be accused of endorsing their words. Thus, to protect the right to keep and bear arms is to be charged with complicity in its abuse. Thus, to oppose further government surveillance is to be lumped in with terrorists and hackers. During the 2013 Texas gubernatorial race, the Republican nominee offered the uncontroversial observation that, as attorney general, he was obliged to defend laws he personally opposed, and that this would have been the case during the 1960s, too. For this accurate appraisal of his professional responsibilities, his opponent labeled him a foe of interracial marriage. If this approach to government were to become quotidian, we would soon find ourselves living in a country ruled by men and not by law.

Raising points of law and discussion is Justice Scalia’s job. And … apparently … taking cheap shots at him is now the Democrat’s job.

The Culture War Rout Is On

So, this week George Takei called Clarence Thomas a “clown in black face” for this dissent in Obergefell. He has since apologized for the remark, claiming that he said it in a moment of anger.

As you know, I’m not one for the Outrage of the Day. What set Takei off was Thomas’ argument that government can not take away your dignity no matter what it does; dignity is intrinsic. Thomas used the internment camps as an example and Takei, who was interred, was angered by that comparison. That’s understandable.

However …

The reaction to Takei’s remarks has little to do with him. It has everything to do with a racial smear campaign that has pursued Clarence Thomas since the day he joined the Court. Just as Takei’s comments have their origin in his long experience with racial and anti-gay discrimination, the backlash to them has its origin in 24 years of liberals slagging Clarence Thomas, all too often in racist language. Thomas is a race traitor. Thomas is an Uncle Tom. Thomas doesn’t know his history. Thomas is an idiotic sock puppet of Scalia (actually, the Scalia-Thomas pairing isn’t even in the top ten for SCOTUS). Thomas never writes any significant opinions (I recently cited his wonderful dissent in Kelo; he’s written many many others).

We’re told that Thomas doesn’t understand or care about race relations. We’re told this of a man who was born in the segregationist South; who experienced vile racism in his early life; who was and is an admirer of Malcolm X; who is thoroughly versed in our country’s racial history; who can cite you chapter and verse about how our country has perverted the law and the Constitution to screw over black people. Thomas is well aware of his race, conscious of it and proud of it. But he the temerity to disagree with liberals about how the Constitution should be applied to the law. And so none of that matters.

But there’s something here even beyond the usual Clarence Thomas race-baiting. Let’s take a step back. For the last week, numerous Republicans have been responding angrily to the gay marriage and Obamacare decisions. Rick Santorum, Mike Huckabee and Bobby Jindal, among others, have questioned the Court’s legitimacy. We’re told that this is a sign of how insane Republicans are. But … you’ll see equal amounts of rage from the Left when the Court doesn’t go there way. Hell, just last week, people were responding to Scalia’s dissent with angry tweets and articles about Bush v. Gore and Citizens United, decisions which liberals responded to by … gasp! … questioning the legitimacy of the Court.

Look, it’s understandable that people get mad at the Court when it makes decisions they don’t like. Hell, I’m still upset about Kelo. That’s fine. I really don’t see anything unusual or alarming about anti-gay-marriage politicians being angry about the recent decisions. We have to accept the Court’s decisions as a matter of law; but that does not mean we have to accept them into our hearts. Be angry when you think the Court has gotten it wrong.

What’s striking, however, is how angry the Left gets when they win. Granted, most of the Left is just plain happy about last week’s decisions. But there’s a not insignificant faction that’s just furious that the conservative bench had the nerve to dissent.

As Clark at Popehat recently noted, the Culture War in this country has had two distinguishing features: an incredible series of wins for the Left and an even more incredible series of whinges about it:

The problem I have is that the blue alliance has been on a winning streak, and with recent Blue success in gay marriage, immigration of client populations, university-and-media roll-up, etc. I feel like the culture war is over and the victors are going around (metaphorically) humiliating and shooting survivors of the losing side, and conducting mop-up operations. Witness team Blue forcing bakers to bake cakes and forcing photographers to shoot photos for partnerships that they consider immoral. Witness blue team arguing that innocent people should go to jail for rape, because – and I’m quoting Ezra Klein here – we “need to create a world where men are afraid.” Red team men, I take that to mean. Football players. Frat boys. Not nice guys like Ezra.

Look at how the reasonable Left, who would never question the legitimacy of the Court, responded to last year’s Hobby Lobby decision. Just to remind you: the Supreme Court decided that the government could force almost all employers to provide unrestricted contraception coverage to their employees. But because of the RFRA, they decided that a small subset of businesses — privately owned or closely held businesses — could refuse coverage for a small subset of birth control methods that they considered abortificients. It’s exactly the kind of compromise that the Left always claims to want; one that respects our diverse and pluralistic country. In fact, it’s better: they got about 99.5% of what they wanted, with a small bone thrown to religious conservatives. Even better, the Court’s decisions was grounded in a law that can be repealed, not in any supposed First Amendment rights of corporations. By any definition, it was a big win for them.

And yet .. the “reasonable left” who would never question the legitimacy of the Court, responded by proclaiming that we were in a corporate theocracy. They disparaged Catholics on the Court. We were told that it turned back the clock on women’s rights. You can see a bunch of “reasonable” tweets here, including a comparison to Plessy vs. Ferguson (remember when Republicans comparing SCOTUS decisions to Dred Scott was over the line? Good times.)

That’s when they “lose” by such a tiny amount it’s really a huge victory. But last week, the Left won outright. And granted, most liberals are responding with jubilation. My FB feed filled with happy posts about the victory of gay rights. But there is a noisy faction that have spent the last week poring through the dissenting opinions to find something, anything to get in a tizzy over. Jon Stewart has done multiple segments mocking the dissenting opinions and the politicians who didn’t like the rulings. And then, of course, you had Monday’s afterbirth when liberals screamed that the Court has “struck down” limits on mercury emissions (it did nothing of the kind).

So, on it’s own, Takei’s remarks are nothing — something dumb said out of anger. But in the larger context, it was the intersection of two ugly trends: racial animosity toward Clarence Thomas and incessant left-wing whinging about a political battle they have won.

So, yeah, Takei’s apology is fine (Thomas, I suspect, does not care either way). But it’s nothing compared to the long smear campaign against Clarence Thomas and the vitriol with which far too much of the Left has responded to a decision that went their way.

The Culture War is over, guys. You’ve won. Hell, I’m on your side for most of these social issues. We’ve won. Do you really have to ride down your defeated foe?

Gay Marriage Debate Ends

A lot going on today, but the big news is that the Court has upheld gay marriage by a 5-4 vote. With that, the debate over the subject is effectively over. And, as someone who has supported the GOP in the past, I couldn’t be happier. The issue can go away and we can focus on more substantive issues.

More to come.

You should read the opinions. It includes vintage Scalia. But it also includes a very good dissent from Roberts who argues that the problem is not gay marriage; the problem is the way the Court has interpreted the Constitution. It’s quite good and conciliatory. Roberts can drive me nuts sometimes, but I still think he’s one of the best things to come out of the Bush 43 Administration.