Category: judiciary

Categories
judiciary national politics & policies Popular Second Amendment rights

Packing

Beto

“Are you proposing taking away their guns?” 

“I am,” replied former Texas Congressman Robert Francis “Beto” O’Rourke to ABC World News Tonight anchor David Muir’s question. If, anyway, “it’s a weapon that was designed to kill people on a battlefield.” 

“Hell, yes,” he added, later in last week’s Democratic presidential debate.

“We’re going to take your AR-​15, your AK-47.”

Yesterday, I noted that U.S. Senator Kamala Harris seemed oblivious to any consideration of the constitutional rights of citizens to “bear arms.” Today, consider the constitutional work-​around both Democrat presidential contenders support. You see, when they talk about confiscating your guns, they do not intend to go to all the hard work of changing the law of the land. They plan, instead, merely to change the High Court — something the president, with a majority of Congress, can do — and have the new justices re-​visit the legal interpretation.

O’Rourke “spoke openly after launching his run,” informs Politico, “about expanding the high court to as many as 15 judges.” Fox News reported that he “is open to making drastic changes to fundamentally reshape the Supreme Court — essentially court-​packing, with a twist.”

The “twist” is the scheme that I wrote about in March. In a bizarre nod to bipartisanship, O’Rourke would have Republicans select five justices, Democrats select five more, and then have those ten judges select yet another five. 

Only tradition and public opinion have kept the highest court in the land from previous hijackings.

Is Republican opposition all that stands in the way now?

Gives a whole new meaning to the question: Are you packing?

This is Common Sense. I’m Paul Jacob.

Beto

—

See all recent commentary
(simplified and organized)

See recent popular posts


Categories
ideological culture judiciary

Exhibit A+

Neil Gorsuch, Supreme Court,

“Do you really want me to rule the country?” Supreme Court Justice Neil Gorsuch pointedly asked CNN’s Ariane de Vogue.

“It is not a judge’s job to do whatever he or she thinks is good,” Gorsuch added, in response to her concern that judicial activism might sometimes be “needed.” 

“We wrote a Constitution; we put down what we wanted to put in it,” explained President Trump’s first SCOTUS pick. “We can amend it when we wish, and it is not up to nine people to tell 330 million Americans how to live.”

Gorsuch is making the media rounds promoting his new book, A Republic, If You Can Keep It — borrowing Ben Franklin’s famous quip when asked about what form of government the delegates at the 1787 Constitutional Convention had produced. 

Gorsuch follows the judicial philosophy of originalism, criticizing interpretations that jigger the Constitution with the times. “You know, the living Constitution is going to take your rights away,” the justice argues, “and it’s going to add ones that aren’t there.”

And defending the rights actually in the Constitution means, Gorsuch believes, that judges must enforce limits on government. Last weekend in The Wall Street Journal, Kyle Peterson noted that Gorsuch has been true to that mission, pushing back against the High Court’s longtime deference to the administrative state. 

This philosophy puts him beyond partisanship. “Gorsuch voted with liberal justices on important decisions on surveillance and sentencing,” Jonathan Turley writes in The Hill. “He also joined in key decisions supporting free speech against the government.…”

All this makes Neil Gorsuch the best justice on the Supreme Court. Perhaps the best in my lifetime. 

And surely Exhibit A in Mr. Trump’s case for reelection.

This is Common Sense. I’m Paul Jacob.

PDF for printing

Neil Gorsuch, Supreme Court,

—

See all recent commentary
(simplified and organized)

See recent popular posts


Categories
judiciary responsibility

Caveat Tempter

apple, temptation, rotten,

If, like me, you expect people to bear the bulk of the brunt of their own decisions, big ticket court rulings often strike you as bizarre.

Case in point? “Drugmaker Johnson & Johnson must pay $572m (£468m) for its part in fuelling Oklahoma’s opioid addiction crisis, a judge in the US state has ruled,” reads a BBC report.

“During Oklahoma’s seven-​week non-​jury trial,” the BBC informs, “lawyers for the state argued that Johnson & Johnson carried out a years-​long marketing campaign that minimised the addictive painkillers’ risks and promoted their benefits.”

A certain credulity boundary has been stretched, here:

  1. Don’t all ads stress selling points over … non-selling points?
  2. Doesn’t everyone know this, and, therefore,
  3. Shouldn’t they be expected to adjust — caveat emptor-wise — accordingly?
  4. And doesn’t everyone know painkillers are dangerous, and opiates notoriously so?

“The state’s lawyers had called Johnson & Johnson an opioid ‘kingpin,’” the report continues, “and argued that its marketing efforts created a public nuisance as doctors over-​prescribed the drugs, leading to a surge in overdose deaths in Oklahoma.”

The public nuisance biz is idiotic, of course. If the company had been slipping its drugs to kids on a playground, something like this would have some plausibility. But the actual situation? Nope.*

Shifting responsibility from self to others, especially deeply pocketed others, has many bad consequences … not least of which is deflection of our attention away from why opioid use is up. Which is something we should be looking into for our friends’, families’, and neighbors’ sakes.

Lawyers are our tempters, in such cases. 

And monetary awards can sure be addicting. 

This is Common Sense. I’m Paul Jacob.

* Johnson & Johnson is appealing the decision, of course.

PDF for printing

apple, temptation, rotten,

Photo by Max Pixel

—

See all recent commentary
(simplified and organized)

See recent popular posts

Categories
judiciary partisanship U.S. Constitution

Heal or Heel?

Supreme Court, packing, packed, red, blue, Republican,Democrat, right, left, partisan,

Call it High Court chutzpah?

In a Second Amendment case seeking U.S. Supreme Court review, five U.S. Senators have filed an amicus curie or “friend of the court” brief … that wasn’t very friendly.

“The Supreme Court is not well,” argue Sens. Sheldon Whitehouse (D‑R.I.), Richard Blumenthal (D‑Conn.), Mazie Hirono (D‑Hawaii), Richard Durbin (D‑Ill.), and Kirsten Gillibrand (D‑N.Y.) in their brief against the Court accepting the case. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

A not-​very-​veiled threat.

Is their goal really to ‘reduce political influence’? Or to leverage influence against the Court should it not “heal itself” — or come to heel — by authoring judicial decisions more to Democrats’ liking? 

Seven Democratic presidential contenders, including Sens. Elizabeth Warren, Kamala Harris and Kristen Gillibrand, support court packing — having the next Democrat-​controlled Congress increase the size of the SCOTUS beyond nine justices, to 12 or 15.

“[M]ost Americans recognize this tactic for what it is, which is a direct attack on the independence of the Supreme Court,” Sarah Turberville and Anthony Marcum write in The Hill. “It is no coincidence that court packing is employed by would be autocrats all over the world rather than by leaders of liberal democracies.”

To supposedly “depoliticize” the “partisan” Supreme Court, Mayor Pete Buttigieg wants to pick five justices to represent Democrats and five to represent Republicans, and then those ten would together choose five additional justices. 

Nothing like being overtly partisan to vanquish partisanship, eh?

This is Common Sense. I’m Paul Jacob.

Supreme Court, packing, packed, red, blue, Republican,Democrat, right, left, partisan,

—

See all recent commentary
(simplified and organized)

See recent popular posts


Categories
crime and punishment general freedom judiciary property rights

Property Rights vs. Absentee Frogs

frog, Supreme Court, property

When an assault on individual rights achieves a certain depth of irrationality, the Supreme Court is capable of common sense. Even unanimous common sense.

The 8 – 0 ruling in Weyerhaeuser v. U.S. Fish and Wildlife Service pertains to the desire of the U.S. Fish and Wildlife Service to designate over 1500 acres of Louisiana land a “critical habitat” of the dusky gopher frog. The designation means that owners may not develop the land that they own in even the simplest ways without consulting with/​begging permission from bureaucrats.

If a property owner has an actual right to his own property, the government cannot properly commandeer even one square inch of it to appease Lithobates sevosus. Give the creature a YouTube video and leave it at that.

But sevosus doesn’t even inhabit the so-​called “critical habitat.”

The frog is not on the property!

This fact enabled Chief Justice John Roberts (not always clear on the meaning of words) the chance to emphasize that words have meaning. “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” Roberts clarified. “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

Concurring, pundit George Will says that the decision represents “a recuperative moment for the court” and delivers “a chastisement of the administrative state, the government’s fourth branch, which is one too many.”

Is this ruling as thoroughgoing as it should be? No. Nevertheless, the decision is surely a victory for minimal common sense. Of which we could use more.

And more, also, of maximal common sense.

I’m Paul Jacob.

 

PDF for printing

 

Photo credit: US Department of Agriculture

» See popular posts from Common Sense with Paul Jacob HERE.

 

Categories
free trade & free markets judiciary

The Cheese Stands “Unprotected”

Witte WievenKaas, cheese, copyright, law

Governments tempt us — with special privileges and advantages. 

You know what also tempts us?

Cheese.

Cheese? Yes. In the Netherlands, cheese is a big deal, as Baylen Linnekin relates in “Cheese Fight Ends With Court Declaring Producers Can’t Copyright Taste,” over at Reason — where I go for all my cheese-​related coverage. (Don’t you?)

The tale is about two cheese companies and the European Union’s “Directive 2001/​29/​EC,” which tries to reconcile copyrights among member states. Specifically, it involves the legal fight between “two Dutch herbed cream cheese spread makers,” as Mr. Linnekin relates, “Heksenkaas (‘witches’ cheese’) and Witte Wievenkaas (‘wise women’s cheese’).” The former sued the latter for infringing on “its copyright on the taste of Heksenkaas.”

The case went from a Dutch court to the European Court of Justice, where the Court (Grand Chamber) ruled against Heksenkaas. There can be no copyright on “taste.”

This is of no great significance, I suppose, but in a world where the government gets involved in everything, it’s worth noticing when the government resists its temptation to tempt us.

The rationale for non-​involvement, in this case, was not a move against intellectual property as such, but against the idea of property involved in subjective taste. “The taste of a food product cannot,” the Court determined, “be pinned down with precision and objectivity.…”

Well, sure. But what was really going on here was one company not wanting competition from another company. 

A temptation, for sure. But some temptations (like some cheeses?) must be resisted.

This is Common Sense. I’m Paul Jacob.

 

PDF for printing

 

» See popular posts from Common Sense with Paul Jacob HERE.