Category Archive 'Supreme Court'
26 Jun 2015

You Could Tell This Was Coming

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StatueofLibertyWeepingAngel

Breaking News via SCOTUSBLOG: There is a right to “marriage equality”. Opinion: J. Kennedy.

Scalia’s dissent, footnote 22: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

22 Jun 2015

Tweet of the Day

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Tweet88

Hat tip to Walter Olson.

01 Jul 2014

Liberal Reaction to Hobby Lobby Ruling

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ThomasMore
Sir Thomas More

My pseudointellectual liberal classmates have been reacting to the Supreme Court decision in favor of Hobby Lobby, excusing religious employers from providing contraception through employee health insurance, with ridicule, treating the very idea of moral reservations toward contraception as bizarre, insane, and a fringe position.

But the civilization of Europe and the Modern World were actually built by people of traditional religious faith, who until very recently in overwhelming percentage believed on the basis of revealed religion that contraception was wrong. I am not myself a believer, but I differ from most of my Yale classmates in declining to believe that today’s community of fashion has arrived at some uniquely superior and sophisticated position on every issue and that anyone who disagrees is some sort of troglogyte.

Thomas Babbington Macauley was the ultimate Whig historian, but even Macauley found himself obliged to acknowledge that Modernism and Scientism are not actually competent to refute religious faith.

Natural theology, then, is not a progressive science. That knowledge of our origin and of our destiny which we derive from revelation is indeed of very different clearness, and of very different importance. But neither is revealed religion of the nature of a progressive science. All divine truth is, according to the doctrine of the Protestant churches, recorded in certain books. It is equally open to all who, in any age, can read those books; nor can all the discoveries of all the philosophers in the world add a single verse to any of those books. It is plain, therefore, that in divinity there cannot be a progress analogous to that which is constantly taking place in pharmacy, geology, and navigation. A Christian of the fifth century with a Bible is neither better nor worse situated than a Christian of the nineteenth century with a Bible, candor and natural acuteness being, of course, supposed equal. It matters not at all that the compass, printing, gunpowder, steam, gas, vaccination, and a thousand other discoveries and inventions, which were unknown in the fifth century, are familiar to the nineteenth. None of these discoveries and inventions has the smallest bearing on the question whether man is justified by faith alone, or whether the invocation of saints is an orthodox practice. It seems to us, therefore, that we have no security for the future against the prevalence of any theological error that ever has prevailed in time past among Christian men. We are confident that the world will never go back to the solar system of Ptolemy; nor is our confidence in the least shaken by the circumstance that even so great a man as Bacon rejected the theory of Galileo with scorn; for Bacon had not all the means of arriving at a sound conclusion which are within our reach, and which secure people who would not have been worthy to mend his pens from falling into his mistakes. But when we reflect that Sir Thomas More was ready to die for the doctrine of transubstantiation, we cannot but feel some doubt whether the doctrine of transubstantiation may not triumph over all opposition. More was a man of eminent talents. He had all the information on the subject that we have, or that, while the world lasts, any human being will have. The text, “This is my body,” was in his New Testament as it is in ours. The absurdity of the literal interpretation was as great and as obvious in the sixteenth century as it is now. No progress that science has made, or will make, can add to what seems to us the overwhelming force of the argument against the real presence. We are, therefore, unable to understand why what Sir Thomas More believed respecting transubstantiation may not be believed to the end of time by men equal in abilities and honesty to Sir Thomas More. But Sir Thomas More is one of the choice specimens of human wisdom and virtue; and the doctrine of transubstantiation is a kind of proof charge. A faith which stands that test will stand any test.

24 Apr 2014

The Supreme Court Is Going to Have a Second Chance

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NewDealNRA

Amity Schlaes thinks the Suprene Court’s decision in the upcoming Sebelius v. Hobby Lobby case could come out as a replay of Schecter Poultry Corp. v. United States, the 1935 case which killed the New Deal’s legislative centerpiece, the National Industrial Recovery Act.

Some time in the coming months, the Supreme Court will hand down its opinion in Sebelius v. Hobby Lobby, the case of the retailer that claims that its religious freedom or that of its employees is violated by contraceptive coverage required as part of the Affordable Care Act. The attitude of the health-care act’s supporters toward such cases is irritation. How dare a little religious case trip up the mighty Affordable Care Act and jeopardize the ACA’s establishment as permanent law of the land?

Cases involving religious details, however, do have a way of stopping big social legislation, and not only because they violate the principles of the religious denominations involved. Regardless of the Court’s decision, even pro-choice Jews, Unitarians, and Muslims may eventually change their views on the ACA precisely because of Hobby Lobby and cases like it.

To see how this might happen, it helps to go back to a case involving a commensurately ambitious piece of legislation, Franklin Roosevelt’s 1933 National Industrial Recovery Act. …

Just as the ACA stumbled over its own website this past winter, the NRA stumbled over it own forms and names, which were long enough to provoke ridicule. The name of the code that governed a family of Brooklyn chicken butchers called Schechter, for example, was “The Code of Fair Competition for the Live Poultry Industry for the Metropolitan Area In and About New York.” …

One of the many firms the NRA investigated was ALA Schechter Poultry, a Brooklyn butcher shop where authorities found numerous violations of the poultry code. After the Schechters were convicted in lower courts, the authorities grew increasingly confident that Schechter would be the case in which the Supreme Court would confirm the constitutionality of their law and the New Deal. Then as now, a kind of assumption, or at least a pretense, was at work. People pretended that the fact that the Schechters were Jewish and that the butcher shop they ran was kosher were ancillary details, a kind of coincidence, or even an annoyance.

But the fact that these particular butchers observed kashruth, the Jewish body of laws involving food, was not a coincidence of this case. It was causal. This was the early 1930s, after all. These were immigrants in an industry that had already seen convictions for racketeering. One could suggest they were the Jewish equivalent of Al Capone. The immigrants’ lawyers were not likely to be a match for the government’s untouchables, the legal-powerhouse solicitor general, Donald Richberg, and his talented deputy, Walter Lyman Rice (Harvard Law). A smelly business, a poultry butcher shop would be unattractive to the public. The pro-Roosevelt journalists could make a funny story out of the pathetic little immigrants with their chickens, and they did.

The distingushed columnist Drew Pearson (Phillips Exeter, Swarthmore, American Friends Service Committee) titled his book chapter on the Schechter case “Joseph and His Brethren” and wrote mockingly of the Schechters’ attorney, Joe Heller (Brooklyn Law). “In his Brooklyn Hebrew accent he told the jury how he had known the Schechter boys since they were children,” Pearson wrote of the lawyer. The government attorney could suggest, and did, that such a company’s practices were antiquated and that poultrymen endangered public health either by ignoring Jewish law or by enforcing it imperfectly. Perhaps the Schechters were hypocrites, as it is being suggested the Hobby Lobby proprietors are. Very early on, indeed, the federal prosecutors on the Schechter case began to contend that the Jews had broken their own religious law by selling many sick chickens.

But this contempt backfired, just as contempt for Christian pro-life culture may backfire on the government in Hobby Lobby. That is because the exposure the Schechters’ case got was extensive. The public, if it cared to know, learned that the butchers worked on Sundays but not Saturdays, that they allowed the customers to pick their chickens from the coop (another NRA violation), that their butchers had special Jewish titles — they were called “shochet” or “shochtim.” All this was transcribed in the newspapers. And that exposure gave the public time to think about what they were observing.

What was evident was that two large bodies of law were clashing. On the one hand was the elaborate and new NRA poultry code. On the other hand there was the code of the Jewish dietary law, based on the Bible itself. In a contest between NIRA (48 stat. 195) and Deuteronomy (14:21), perhaps Deuteronomy had more authority. The government had its health inspectors, but who were they to go up against Maimonides himself, who had proclaimed that Jews were forbidden to serve “unwholesome” food? As it turned out, the Schechters had not sold much, if any, bad meat — there was no actionable “sick chicken” in the Sick Chicken Case.

In the Supreme Court arguments, the standard jurisprudential challenges involving the Commerce Clause and delegation were standard. Violation of those principles turned the justices against the NRA. But what had also become clear to the justices and the public was that the Schechters were simple businesspeople. … When the Schechters’ lawyer, that same Heller, showed how ludicrous the regulations for chicken selection were, the justices and the whole room laughed. The same kind of slapstick humor that had worked against the butchers before now worked for them. Even the justices got in on the wordplay, writing in their 9–0 finding against the NRA that the Schechter case showed that not only the poultry code but also the entire NRA corpus must collapse, “bone and sinew.”

The best explanation for the shift in opinion is that such conflicts give the public a chance to consider what it is the government is intruding into or impinging on — not just a vacuum, but the private sphere, the personal sphere, the business sphere, and, yes, the sphere of faith. The spectacle of that intrusion is not easily forgotten once perceived. The chicken of daily business life and ritual can, from time to time, vanquish the eagle.

27 Jun 2013

Good Luck With That

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Ross Douthat predicts that Americans’ future liberty of conscience will be dependent on liberal magnanimity, and wonders (characteristically) if surrendering now might produce better terms.

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular. If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.

I’m still editing my own opinion, taking out all the epithets and toning down the pejoratives.

27 Mar 2013

Marriage Equality

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The Graeco-Egyptian deity Serapis is commonly depicted wearing a modius (a sort of Egyptian headgear favored by Elusinian deities). Roman copy after a Greek original from the 4th century BC, stored in the Serapaeum of Alexandria. Vatican Museum

The argument that there exists a supposed “right to marry” currently in some cases unfulfilled is clearly specious. In the first place, everyone in the United Stated already enjoys exactly the same right to marry right now. What some people are demanding is not the opportunity to marry, which they already possess. What they are demanding is the right to redefine marriage and the recognition of the state of other kinds of associations (the sort they desire) as the same thing as marriage, and as marriage’s moral and social equal.

The proposition that the association of a pair of persons of the same sex is just as good, just as valuable to society, just as morally acceptable as marriage is unquestionably a controversial proposition, and one from which a very large portion of the population of the United States would dissent. It is about as good a case as you could possibly find of a matter of theoretical moral and religious opinion on which rational men of good will are inevitably going to differ.

The American tradition is one of pluralism and we are theoretically constitutionally committed to state neutrality on issues of religious faith and morals. So, the real question ought to be: what is the authentically neutralist position that the state ought to be taking on the practice of same sex marriage?

It is widely agreed that the state has no right to enforce traditional religious morality or to interfere with the voluntary and private actions of consenting adults. And that is the status quo. No liberty of association of same sex couples is currently being infringed. No one is stopping them from living together. No one is interfering with their sexual relations. No one is even preventing them from conducting whatever sort of ceremonies of mutual commitment they desire, or preventing them from describing themselves within their own circles as married. The same sex marriage offensive is not really aimed at gaining for same sex couples the ability to file joint tax statements or the other practical benefits of matrimony. If insurance coverage, pension benefits, and joint tax returns were really the issue, we would be discussing some kind of civil union arrangements and the level of controversy and heat of argument would be very different.

What same sex couples want, however, is not really something practical. What they want is the Same Sex equivalent of the Civil Rights Bill of 1964. They want federally-enforced moral and social equality. They want the government on their side, enforcing their worldview and their moral perspective on everybody else.

Same sex marriage advocates refer routinely to “Marriage Equality,” but no system of real equality allows someone who is actually not equal to someone else in specific characteristics pertaining to any kind of special conventionally recognized status to simply change the definition in order to gain access to prestige and privileges associated with that status for which he is not qualified.

On the contrary, the ability to modify the fundamental definition of an important institution to benefit oneself is really not “Equality” at all. It is actually a most extraordinary kind of special power and privilege, not normally accessible or available to anyone.

The spectacular inequality characteristic of the contest for “Marriage Equality” can even be seen in the history of the case currently before the Supreme Court. In California, in 2004, the mayor of San Francisco simply set aside state law and began issuing same sex wedding licenses. In doing so, he deliberately ignored a statute passed by the State Legislature in 1977, and a ballot initiative (Proposition 22) passed by a margin of 61.4% in 2000. The State Supreme Court, however, in 2008, intervened to rule, In re Marriage Cases, in favor of Same Sex Marriage. Which, in turn, produced Proposition 8, another ballot initiative in which Californians affirmed their opposition to state recognition of Same Sex Marriage.

In the entire history of the matter, we find a special interest group (the Same Sex community) allied with the national community of fashion elite determined, by hook or by crook, to have their way.

What the issue really revolves around is the determination of the national elite to impose its own faith and morals position coercively, using government, on everybody else.

Same Sex Marriage advocates are particularly fond of attacking a strawman argument, and pointing out that recognizing Same Sex Marriage does not practically impact traditional marriages. They would be indignant, I am sure, if I were to note in reply, that Same Sex Marriage does, however, insult and demean, by travestying traditional marriage, by the imitation of its form, and the usurpation of its honorable status by that which is not honorable.

A fraudulent libertarian argument commonly used tries to contend that no one else is injured if Same Sex couples are recognized by the state as married.

Suppose, just for example, that another wonderful new species of Enlightenment swept the land, and that the intelligentsia, the international elite, Hollywood, the mainstream media, and, what Vito Corleone used to call the Pezzonovante all suddenly converted to the Hellenic and Elusinian cult of Serapis. You and I might continue to think in terms of Christmas and Easter, and all that, but Barack Obama, Bill and Hillary Clinton, the presidents of Yale and Harvard, the editorial board of the New York Times, Sean Penn, Tina Fey, Oprah Winfrey, and the rest were all now mad keen worshipers of the god Serapis. And now they want the image of Serapis placed on the US dollar bill in the place of the portrait of George Washington.

It would just be a small concession of Elusinian Equality. Who would it hurt? Only the uncharitable and mean-spirited could possibly deny a school of thought discriminated against for two thousand years its basic dignity.

11 Dec 2012

George Will Has Lost Touch With Reality

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George Will
, on ABC News recently, did everything but sing Hallelujah to the river gods as civilization appeared ready to slide another long mile downstream, with the Supreme Court announcing its intention to intervene in the culture wars conflict over Same Sex Marriage in the grim immediate aftermath of the 2012 election.

While Supreme Court watchers ponder how justices will come down in the debate over gay marriage, ABC’s George Will said Sunday on ABC News “This Week” it’s clear where public opinion is headed.

“There is something like an emerging consensus,” Will said, noting voters in three states recently endorsed same-sex marriage initiatives. [emphasis added] “Quite literally, the opposition to gay marriage is dying. It’s old people.”

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Why, I wonder, is George Will apparently surprised that young people are so commonly successfully-brainwashed subscribers to establishment community of fashion articles of faith, like the principle that no mere theory should ever be allowed to stand in the way of immediate individual personal gratification, or the even more important principle that Equality is the utmost supreme value transcending all other values?

It always looks exactly this way in every culture wars battle. Young people care nothing for theories and tradition and everything for fashionable opinion and being nice.

But Mr. Will overlooks a couple of important considerations.

Young people inevitably grow older and gain experience and most of them recover from the illusions with which they were indoctrinated during their school years. Time is not really on the side of the progressive left. Conservatives and sane rational people do not just grow old, die off, and become extinct, leaving behind a Saturnalia of progressive fantasy. What really happens is that each generation of dummer jungen gradually matures, turning from radicals and fashionistas into sober and responsible burgesses, tax payers, and adults. The gleeful supporters of free love and transgressive sex turn into censorious grey-haired married couples with children of their own.

In the end, you simply wind up with the repetition of the comedy of a society always divided nearly evenly between the party of the young, the radical, and the stupid and the party of the adults.

We have a serious problem in America in having allowed too many important institutions to fall into the hands of an unworthy and only-superficially-intelligent intelligentsia. But we do not need to despair.

George Will obviously spends too much of his time in the fantasy cocoon of media culture. He has succumbed to believing in the left’s narrative of the grand march of Progress, of the inevitable and irreversible movement of society in the direction of coercive egalitarianism, materialism, and statism.

George Will has forgotten the first thing any conservative ought to remember. Magna est veritas et prævalebit. (“The truth is mighty and it shall prevail.” The Revolutionary Convention may renumber the calendar and change the name of the months to “the windy one” and “the rainy one,” an infatuated majority of supreme court justices may decide that the intention of the framers guarantees the sacramental equality of sexual perversion, but History will go on, and absurdities, grotesqueries, and the wild excesses of human folly and obsession over time typically fall of their own weight. Later generations laugh at the Victorian sexual pudeur that once installed skirts on piano legs, and succeeding generations will similarly marvel at the extravagantly bizarre positions so many in our own era were driven to by the current dementia founded upon egalitarianism.

There has never, in the entire history of the human race, been any society or culture that regarded homosexual attraction as a basis for lifelong monogamous relations or which looked upon the sterile couplings of members of the same sex as worthy of the dignity of recognition as equivalent to normal marriage.

Today’s moral breakdown and intellectual disorder may possibly lead to the official proclamation of such absolute nonsense as the new law of the land, but the left’s fools and demoniacs can never possibly in the long run succeed in establishing permanently so preposterously-based an institution as Same Sex Marriage.

07 Jul 2012

Quantum Sophistry at the Supreme Court

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The search for the Roberts’ Taxon exceeded in difficulty the search for the Higgs Boson.

Iowahawk has news of the latest breakthrough in constitutional ontology.

Jubilant scientists at the DNC’s High Speed Word Collider (HSWC) announced today they have conclusively disproven the existence of Roberts’ Taxon, the theoretical radioactive Facton particle that some had worried would lead to the implosion of the entire Universal Health Care System.

“I think it’s time to pop the champagne corks,” said HSWC Director David Plouffe. “Then blaze some choom.”

The landmark experiment in Quantum Rhetoric began early this week after legal particle cosmologist John Roberts published a paper in the Quarterly Journal of Tortured Logic that solved the long-debated Pelosi’s Paradox in Universal Health Care Theory.

“Pelosi’s Paradox states that in order to find out what is in a health care bill, it would have to be passed,” explained physicist Steven Hawking. “But in order to be a law it would have to be constitutional, which means someone would have to know what was in it, which would mean it couldn’t have been a bill in the first place. Think of Schroedinger’s Cat, except with a lobotomy.”

To solve the paradox, Roberts proposed the existence of the Taxon – an ephemeral, mysterious facton particle that in theory would allow the Universal Health System to be constitutional, without directly observing what was in it. DNC scientists at first cheered Roberts’ findings, but it soon came apparent that it opened an even deadlier dilemma.

“If Roberts’ Taxon were really to exist, and was woven throughout the Health-Government-Time continuum, the merest realization of it would create a giant black hole in Gallup Space and cause free healthcare reality to collapse upon itself,” said Plouffe.

In order to disprove the Taxon, scientists at the HSWC devised a test experiment in their enormous CarneyLab bullshit accelerator. This test involved speeding a small mass of Facton – theoretically containing Roberts’ Taxon – and smashing it at near-light speed against a flaming super-dense ionized clod of purified bullshit.

04 Jul 2012

Why Not Next?

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03 Jul 2012

“Constitutional as a Tax!”

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03 Jul 2012

Why Do Republican Supreme Court Appointments So Often Turn Out To Be Mistakes?

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Marc A. Thiessen discusses the differences in result between democrat and Republican Supreme Court appointments and speculates on just why Republican appointments produce such ideologically unreliable results.

Chief Justice John G. Roberts Jr.’s decision to side with the court’s liberal bloc and uphold Obamacare raises an important question for conservatives: Why are Republicans so awful at picking Supreme Court justices? Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.

Just compare the records over the last three decades. Democrats have appointed four justices — Ruth Bader Ginsberg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy) only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter). With George W. Bush’s appointments of Samuel A. Alito Jr. and Roberts, conservatives thought finally they had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.

So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.

Read the whole thing.

01 Jul 2012

We Can Always Just Get Drunk

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Tristyn Bloom reacted to the Chief Justice voting to uphold the constitutionality of Obamacare with some mixed drink recipes themed to the occasion.

The Randy Barnett
Activity tonight, inactivity tomorrow!

    1oz absinthe
    1oz vodka
    2.5oz Red Bull

Believe me, you’ll know the difference (even if you won’t remember why).

Read the rest.

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