Category: judiciary

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initiative, referendum, and recall judiciary

The 6 Percent Solution

Idaho, initiative

The Idaho Supreme Court has stated the obvious.

The question was whether legislation passed by the Republican-​dominated Idaho state legislature making it prohibitively difficult to run a successful initiative campaign is consistent with the state constitution.

In August, the court ruled that requiring petitioners to obtain signatures from at least 6 percent of voters in every single legislative district of the state — 35 districts — would usher in “tyranny of the minority.”

It said that the new law “conflicts with the democratic ideals that form the bedrock of the constitutional republic created by the Idaho Constitution, and seriously undermines the people’s initiative and referendum powers enshrined therein.”

As the Idaho Statesman observes, the law would have enabled voters of a single district to prevent a question from reaching the ballot.

The Statesman also smashed the silly argument that the current initiative process somehow burdens specifically rural voters in any quest to post a question.

Under current law, petitioners must obtain signatures from 6 percent of all registered voters in the state and also reach that threshold in at least 18 districts, not all 35 districts. The all-​35 mandate would have made the job of running a petition drive massively harder no matter what regions petitioners happen to reside in.

Foes of citizen initiative rights also tend to ignore the fact that getting a question on the ballot hardly constitutes its enactment. Every voter, from whatever part of the state, can then decide Yes or No.

This is Common Sense. I’m Paul Jacob.

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initiative, referendum, and recall judiciary

The Ultimate Legislature

California, AB5, gig work, freelance driver

Proposition 22 was supported by 59 percent of California voters last November.

The statutory initiative partly reverses the destructive effects of AB5, a law that forced many California gig workers or freelancers to be treated as regular employees who must receive benefits — whether these gig workers like it or not. 

One notices at Ballotpedia that all the listed opponents of this measure were politicians, including our current Vice President (then Senator) Kamala Harris as well as socialist Bernie Sanders, while the diverse list of Prop 22’s supporters included: the California Chambers of Commerce along with the Black, CalAsian, and Hispanic Chamber of Commerce, Crime Victims United of California, California Farm Bureau Federation, California NAACP State Conference, California Small Business Association, and Mothers Against Drunk Driving.

The benefits of the so-​called gig economy are politically opposed and diversely appreciated. 

Unions funded the opposition, though far outspent by the prosperous app companies: Uber, Lyft, Doordash, etc. Those same unions, having failed to win over voters, then filed suit to block implementation of Prop 22.

‘The Court finds,” reads Judge Frank Roesch’s opinion, “that Section 7431 is unconstitutional because it limits the power of a future legislature to define app-​based drivers as workers subject to workers’ compensation law.”

Simply. Not. So.

A statutory California initiative can only be changed via a vote of the people, whether that vote happens because the legislature places the change on the ballot or citizens do so through the initiative petition process. 

The voters are the ultimate legislature. 

Therefore, nothing prevents the elected California Legislature from providing a change to ultimately be decided by the people of California, i.e. the whole legislature, at the ballot box.

For good reason, the judge’s decision is being appealed.

This is Common Sense. I’m Paul Jacob.

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judiciary property rights

Landlords Defended, Sorta

Supreme Court, property rights, rent

In late June, the Supreme Court declined to end an unlawful CDC-​enacted national moratorium on evictions.

Things have apparently changed. The court just ruled — in a 6 – 3 decision — that the “balance of equities” has tilted in favor of qualified deference to property rights and letting landlords try to financially survive.

Now it will be easier, or possible, for many beleaguered property owners to maintain properties — on which they depend for their livelihoods and tenants depend for things like heat as well as their residencies.

The three dissenters on the high court say that the “balance of equities” still tilts the other way, in favor of violating the property rights of landlords to help tenants unable or unwilling to pay the rent.

The court’s decision does not mention property rights. It does cite a 1972 precedent that cites other precedents “[requiring] Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.”

Of course, the U.S. Constitution gives Congress no authority to violate individual rights at will — even if it uses exceedingly clear language to do so. The Constitution does not say it’s OK to violate the Constitution.

What now? 

Many landlords are still subject to state or municipal restrictions on evictions that this decision does not overturn. But the ruling may help them press for relief.

And we must hope that the U.S. Congress doesn’t get around to intelligibly re-​revoking the rights of property owners.

This is Common Sense. I’m Paul Jacob.

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judiciary term limits

Term Limits or Death?

Supreme Court, packing

“The only responsible choice for Justice Breyer is to immediately announce his retirement,” contends Brian Fallon, executive director of Demand Justice, “so President Biden can quickly nominate the first-​ever Black woman Supreme Court justice.”

Not merely pushing identity politics, Fallon is warning of the risk of “Democrats losing control of the Senate before a Biden nominee can be confirmed.” 

No retirement announcement yet from 82-​year-​old Stephen Breyer, who recently advised Democrats against court-​packing. Having served on the High Court for the last 27 years, he is the oldest justice and second-​longest serving.* 

“Democrats’ fears about Breyer come after [Justice Ruth Bader] Ginsburg refused to heed calls from liberals and former President Barack Obama to step down,” notes Forbes, “which ultimately resulted in Trump appointing conservative-​leaning Justice Amy Coney Barrett to succeed her when Ginsburg died in September.” 

It is painfully obvious: life terms at the highest court have produced gamesmanship — not on the Court, mind you, but in Congress, that cesspool of even longer tenure where our supposed representatives do anything but.

And why allow personal circumstances or the vagaries of death to decide such potentially critical matters in our republic? 

To prevent politicians from politicizing the Supreme Court of the United States, put the number of justices (9) into the Constitution and term-​limit those justices to a single 18-​year term. No renomination. With nine justices, cycle one out and a new one in every two years. 

There are other matters to consider and settle. Do so in constitutional form, so the whole country is engaged and the Court is hereafter more secure and independent of that branch most in need of term limits.

This is Common Sense. I’m Paul Jacob.

 * On the all-​time Supreme Court longevity list, Breyer thus lags ten places behind Justice Clarence Thomas, who has served 10,767 days on the court and currently ranks 16th.

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judiciary national politics & policies

Constitutionalize the Court

Supreme Court, court packing

“To undo the damage Republicans did by stealing multiple Supreme Court seats,” argues Demand Justice, “we should immediately add seats to the Supreme Court and appoint justices who will restore balance.”

“Stealing”? That’s hyperbolic, to say the least. The Senate used its constitutional prerogative by refusing to approve President Obama’s nomination of Merrick Garland in 2016 and four years later by swiftly voting to confirm Justice Amy Coney Barrett.

The group’s proposal? Add four new justices. 

Facing a 3 to 6 justice deficit (Dem-​nominated vs. GOP-​nominated), many Democrats and groups like this one have settled on adding four.

For “balance.” 

Which means, to them, going from the minority to the majority.

And you thought Democrats weren’t good at math!

Last week, President Biden announced a commission to look into this “court packing” notion, as well as other possible changes to the High Court, including term limits. 

“My colleagues and I need not wait for the findings of a commission,” offered Rep. Mondaire Jones (D‑N.Y.). It is “obvious,” he added, “we must expand the Supreme Court, before it’s too late.”

That is, before the next election or a resignation or tragic death of a single D‑Senator might flip the Senate to Republican control. 

“Adding seats is straight-​forward and easy,” reminds Demand Justice, correctly explaining that the Constitution specifies no number, “so Congress can change it at any time.”

Yes, even with the slimmest of congressional majorities Democrats could completely re-​make the High Court. Without a single Republican vote. 

A partisan takeover of the Supreme Court is way too “easy” — until we place the number of justices firmly in the Constitution, away from poisonous partisan politicians. 

It’s the most urgent reform of all.

This is Common Sense. I’m Paul Jacob.

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Ghost of an Argument

Amy Coney Barrett, ACB, ,Supreme Court

On the 73rd anniversary of the birth of Hillary Clinton, the United States Senate confirmed Amy Coney Barrett to the Supreme Court.

Mrs. Clinton, the former Democratic presidential candidate, looms in the background of the issue as a sort of éminence grise, a specter of the politics of the left. Had she won in 2016, late luminary RBG would have been replaced by a progressive woman. Not ACB.

For what would have been Hillary’s, count ’em, third nomination.

Not a specter, or grisey eminence, is Senator Kamala Harris (D‑Calif.), Joe Biden’s partner in procuring 2020’s big prize. 

“I’m on my way to the Senate floor to vote no on Judge Amy Coney Barrett’s nomination to the Supreme Court,” Harris tweeted, yesterday. “Health coverage for millions of people hinges on who fills this seat. It’s clear that this nominee has the potential to do great harm to the American people.”

Note that this complaint has nothing to do with actual judicial qualifications. It has to do with a policy that Democrats insist upon: socialized medical billing. But as ACB made clear in the hearings, her judicial mindset is about legal process, as it should be, not government policy.

An hour later, candidate Harris asserted that Senate Republicans had “denied the will of the American people by confirming a Supreme Court justice through an illegitimate process.”

Illegitimate?

Well, you see, “more than 62 million people have already voted.” That is it. Harris pretends that since there is an election next week, and some people have already voted, the normal, constitutional business of Congress should not go on.

Anything to rescue their broken policy, Obamacare. 

Next week’s election sure will have consequences, but ACB’s stint on the Court resulted from Hillary’s quite legitimate loss.

This is Common Sense. I’m Paul Jacob. 

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