Category Archive 'Supreme Court'
12 Dec 2020

One Key Reason They Always Win

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Glenn Reynolds quotes a correspondent:

Thought experiment. There are five Democrat justices on the Supreme Court. There was a Democrat president who just ran for reelection. He supposedly lost, but virtually all Democrat voters believe that massive fraud in several Republican controlled states caused him to lose. Many Democrat attorneys general file a lawsuit in the US Supreme Court, essentially identical to the one that is pending now.

Does anyone believe for a second that those five Democrat justices wouldn’t do absolutely anything necessary to make sure the Democrat control of the presidency was maintained? Democrats care about power. Democrats do not care about process, or rules. Now we are being asked to be so meticulous about adhering to the rules, that we are to allow a laughably egregious fraud to succeed, and to permit our own throats to be cut by turning over the executive branch to the people who just committed the biggest political crime in history. I hope five US supreme court justices will show just a tiny bit of the creativity, to put it politely, which Democrat justices had when they, for example, found an imaginary abortion right in the US Constitution. We’ll see what happens.

and adds himself:

People always take for granted that the liberal justices will stick together, and rule for the Democrats. Even Democrats take that for granted.

06 Nov 2020

Why Trump Ought to Win Pennsylvania

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The democrats are busily harvesting ballots and the MSM has awarded Pennsylvania to Biden, but it’s not actually over, ’til it’s over.

Alexander Macris explains that there is a very major problem here: the democrat-controlled Pennsylvania Supreme Court went ahead and blithely violated the US Constitution, and when Donald Trump appeals and that appeal goes to the US Supreme Court, he’s got a winning argument.

In 2019, the PA legislature passed a law called Act 77 that permitted all voters to cast their ballots by mail but (in Justice Alito’s words) “unambiguously required that all mailed ballots be received by 8 p.m. on election day.” The exact text is 2019 Pa. Leg. Serv. Act 2019-77, which stated: “No absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than eight o’clock P.M. on the day of the primary or election.” I agree with Justice Alito: That is unambiguous.

Act 77 also provided that if this portion of the law was invalidated, that much of the rest of Act 77, including its liberalization of mail-in voting, would also be void. The exact text is: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”

To again put this into common English, the Pennsylvania legislature passed a law that said mail-in ballots had to arrive by 8PM on election day to be counted, and then said that if the Court over-ruled that law, the entire law that permitted mail-in ballots was invalid.

In the face of this clear text, the Pennsylvania Supreme Court, by a vote of four to three, made the following decrees, summarized here by SCOTUS:

    Mailed ballots don’t need to be received by a election day. Instead, ballots can be accepted if they are postmarked on or before election day and are received within three days thereafter. Note that this is directly contravenes the text above.

    A mailed ballot with no postmark, or an illegible postmark, must be regarded as timely if it is received by that same date.

In doing so, PAs’ high court expressly acknowledged that “the statutory provision mandating receipt by election day was unambiguous” and conceded the law was “constitutional,” but still re-wrote the law because it thought it needed to do so in the face of a “natural disaster.” It justified its right to do so under the Free and Equal Elections Cause of the PA State Constitution. …

There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. Justice Alito writes: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

Justice Alito is referring to the following clauses of the US Constitution:

    Art. I, §4, cl. 1, which states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

    Art. II, §1, cl. 2, which states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Again, translating this into common English, the US Constitution grants state legislators the exclusive right to prescribe the time, place, and manner of holding elections, and to direct the appointment of the electors.

The Pennsylvania Supreme Court didn’t just say “Act 77 is unconstitutional.” It re-wrote Act 77 itself, by judicial fiat, creating new rules for time, place, and manner, of holding elections. In doing so, the State Supreme Court violated the US Federal Constitution.

And that’s the real case here. The US Supreme Court is going to rule that the State Supreme Court violated the US Constitution, the State Supreme Court’s ruling is going to be overturned, and the votes that arrived after 8 PM on election day will be discarded. On that basis, Trump will win Pennsylvania.

RTWT

10 Oct 2020

Biden Didn’t Answer

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24 Sep 2020

Glenn Reynolds Points Out That Supreme Court Seats Were Never Intended to Be So Powerful and So Important and So Worth Fighting Over

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Glenn Reynolds points out very astutely that, if the Supreme Court were genuinely representative of the country, instead of a small, and currently intensely abberant elite cultural clique, and if the Court had properly limited itself to interpreting the Law, rather than following the grand Dred Scott tradition of exploiting an ephemeral Court majority to settle intensely divisive national issues by judicial fiat, we wouldn’t have the vicious political struggle over Supreme Court appointments that has become the norm in recent years.

The power of playing the decisive Platonic Guardian card and getting your way permanently is too valuable a prize.

Why does Justice Ginsburg’s replacement matter so much that even “respectable” media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg’s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.

That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.

The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

Almost as bad, the Court is highly unrepresentative. That doesn’t matter when it’s deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of America’s elite political class. Which, as I mentioned earlier, is in general pretty terrible.

Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices — Justice Robert Jackson was the last — didn’t have law degrees, having “read law” after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwick’s words, “judicial thoroughbreds” with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.

So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.

RTWT

24 Sep 2020

Liberal Supreme Court Victories No More

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In the liberal stronghold of the Atlantic, Minnesota Law Professor Alan Z. Rosenshtein warns his fellow lefties that the time of liberal goals being legislated from the bench is drawing to an inevitable close.

[T]he Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nation’s most important profession—the priests and elders of the civic religion that is American constitutionalism.

Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.

But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and ’90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Court’s conservative transformation. Whatever was left of the Court’s sacred aura as above partisan politics was ripped away by Mitch McConnell’s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.

The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate.

RTWT

18 Sep 2019

Why the Latest Kavanaugh Smear?

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John Kass explains, in the Chicago Tribune, now that Ruth Bader Ginsburg’s pancreatic cancer is back in the news, the Left is panicking that its loss of control of the Supreme Court will be lengthened and reinforced, and some of its stolen culture war victories may be reversed.

The strategy of the left is undeniable and clear. It is about the use of force, about relentless pressure and shame, using media as both handmaiden and the lash. It is about those who virtue signal most often about due process, demanding it, yet denying those same due process considerations to those with whom they disagree.

The left’s end game is the delegitimization of the Supreme Court, if justices don’t give them the political outcomes they can’t achieve through legislation.

One way to accomplish this is to sear into the American mind the idea that Kavanaugh is personally illegitimate, and therefore, his reasoning and decisions are illegitimate. Though the allegations against him remain uncorroborated, and most are incredible and fall apart in embarrassing fashion, like the one most recently in the Times, the assault continues.

And not only against Kavanaugh, but also against other justices and future nominees. They are warned that destruction and humiliation await.

So, the left would hang upon his neck an asterisk like some medal of shame, a reminder to future history that everything he accomplishes is illegitimate.

RTWT

13 Jul 2018

Trump Could End Up Replacing 4 Supreme Court Justices in his First Term

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Business Insider points out that Trump may just be getting started on remodeling the Supreme Court.

Trump now stands to secure two justices in the first half of his first term. Presidents Barack Obama and George W. Bush appointed two justices each during their eight years in office.

Supreme Court justices, who serve for life after a presidential appointment and Senate confirmation, represent one of the longer-lasting marks a president can leave on the country, as the justices often serve for decades.

But Trump reportedly thinks he can get an additional two justices in.

In October, the news website Axios cited an anonymous source detailing private predictions by Trump that Justices Ruth Bader Ginsburg and Sonia Sotomayor would retire during his term.

“What does she weigh? 60 pounds?” Trump asked of the now-85-year-old Ginsburg, a source told Axios. The same report indicated Trump said Sotomayor, over 20 years younger than Ginsburg, was also in trouble because of “her health.”

“No good. Diabetes,” Trump reportedly said.

Sotomayor had a health scare in January with paramedics treating her for low blood sugar, but she quickly returned to work. Sotomayor says she’s vigilant about her Type 1 diabetes, which she’s had since childhood.

During the 2016 campaign, Trump often said he or his Democratic opponent, Hillary Clinton, could end up appointing five justices. …

Ginsburg and Sotomayor are liberal justices, so replacing both Kennedy and either of them with conservatives could change the court’s makeup for decades, possibly reversing decisions like Roe v. Wade.

RTWT

30 Jun 2018

Kennedy’s Retirement and Liberal Doom

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Bill Jacobson explains why they are taking it so hard:

There’s a reason the left is freaking the hell out over the Kennedy retirement. The federal district and appeals courts have been the principal vehicles for achieving liberal political gains that could not be gained at the ballot box or through congressional elections. The Supreme Court, usually by a one-vote Kennedy margin (with the exception of Obamacare, where Roberts defected), also has served that role in fewer, but the most important, cases.

We are used to losing institutions. The left is not. They are waking up to the possibility that the judiciary may be restored to the neutral role it should play, and would no longer serve as a liberal super-legislature.

28 Jun 2018

Send This as a Sympathy Card to Your Liberal Friends

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10 Dec 2017

Will SCOTUS Revive Freedom of Association?

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Zman thinks a major blow to the Custodial State may be in the works.

[T]he Left is in something close to a full panic over the oral arguments in Cakeshop v. Colorado Civil Rights Commission. The reason for this is the way Judge Gorsuch questioned the attorney for the homosexuals. He correctly pointed out that the “remedy” for the alleged discrimination, is to force the baker to say things in public that he would never say and that he finds offensive. Gorsuch did not say this, but this is how Chinese communists punished heretics in the Cultural Revolution.

Put another way, the “remedy” for those not wanting to associate, in this case do business with, another group of people, is to frog march them into the public square and force them to say things they think are false and possibly evil. Of course, it is the only remedy, short of genocide, that is possible in a society without freedom of association. Once the state can force you to be around other people, people you may not like, they have no choice but to supervise your speech, your thoughts and your every move. You are a slave.

That is the reality of the custodial state. The people in charge see themselves as your caretakers, like a baby sitter or care giver. In reality though, you are their slave, because like a slave, you no longer control your body. They control where it is and what it is permitted to do. In this particular case. the state is trying to force this baker to perform his services for the homosexuals. The efforts to punish him are no different from a slave master flogging a runaway slave. It’s to send a message to the rest of the slaves.

RTWT

04 Feb 2017

How To Save a Liberal Court? Kale, Gay Bodyguards, Maybe Vampirism…?

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Ruth Bader Ginsburg nods off during event.

SFGate reports that lefties are panicking. Trump’s first Supreme Court appointment will be nearly impossible to oppose succcessfully, and Ruth Bader Ginsburg is 83 and a survivor of two forms of cancer. Gorsuch on the Court restores the 4 liberals, 4 conservatives, and Anthony Kennedy who can go either way status quo prevailing prior to the death of Antonin Scalia. One more conservative and Roe v. Wade might be in trouble.

On Tuesday evening, President Donald Trump nominated Neil Gorsuch for deceased Supreme Court Justice Antonin Scalia’s long-empty seat. On Wednesday morning, liberals woke up, did the math and realized it was time to be concerned about Ruth Bader Ginsburg’s fiber intake. Also bone density. Also exposure to airborne viruses (Madame Justice, what is your flu shot status?), and salmonella, and slippery ice, and also: Has anyone heard how scientists are coming along with a Zika vaccine?

“I’m very interested in this.” says Jeanette Bavwidinski, a community organizer in Pennsylvania. “I’m interested in what her daily regimen is. Like, what are you all feeding RBG? Is she getting enough fresh air? Is she walking? Is she staying low-stress? What is she reading? Is she reading low-stress things?”

“Can she eat more kale?” asks Kim Landsbergen, a forest ecologist in Ohio. “Eat more kale, that’s all I can say. We love you. Eat more kale.

The facts in play: Ginsburg is 83 years old, the oldest justice by more than three years. She is one of the four reliably liberal jurists on the Supreme Court, and a mascot and hero to the left. There is one swing vote on the court, Anthony M. Kennedy, and there are three staunch conservatives. Adding Gorsuch would maintain the balance that existed when Scalia was alive: conservative replacing conservative.

But what if Ginsburg retires? What if Ginsburg gets sick and needs a leave of absence? What if Trump ends up replacing Ginsburg? In a week that has seen a relentless churn of White House news, liberal residents of the nation funneled their worst fears into a tiny, elderly woman.

“I kept thinking, you know, I could organize a bunch of gays,” says John Hagner, a consultant for Democratic campaigns who lives in Washington. “I could organize the gays, and we would just make a protective circle around her at all times. We could help her get up and down the stairs. We got this.”

With a rainbow phalanx protecting the justice against potential slips and falls, Hagner would then feel free to turn his attention away from external dangers, and toward microbial pathogens. “At that point,” he says, “what I’m mostly concerned about is the cancer. Is she getting her checkups? Do her doctors realize how important it is for her to get her checkups? Do they? The woman is 98 pounds.”

Ginsburg, appointed to the bench 23 years ago, has the endurance of a “Law & Order” franchise, but there are those YouTube clips of her nodding off during the State of the Union address, and she has already survived both colon and pancreatic cancer (a death sentence to many, though Ginsburg was back at work two weeks after surgery). And there are those people who remain furious that she didn’t step down during Barack Obama’s presidency: “Looking back, it was seriously dumb (and, frankly, selfish) of Ruth Bader Ginsburg and Stephen Breyer not to retire from #SCOTUS in 2013,” fumed a user on Twitter shortly after the Gorsuch announcement.

But! Bygones. Now was the time for liberals to work with the reality they had. Now was the time to channel the energy of thousands of anxious supporters into a solution for the Ruth Bader Ginsburg problem.

“I was just talking to a friend about this,” says Michael J. McClure, an associate professor of art history at the University of Wisconsin. “Like, what could we do? What could we do to help Ruth Bader Ginsburg? Could we protect her with packing peanuts? Then it turned into, ‘I need to become a vampire. Like in ‘Twilight.’ I need to become a vampire so I can make her a vampire with eternal life.’ If I’m damned to eternal life myself, so be it. It’s a sacrifice worth making.”

Read the whole thing.

17 Oct 2016

Trumpkins: “You’ve Got to Vote for Trump. The Supreme Court…”

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