Category: judiciary

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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,

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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.

 

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Photo credit: US Department of Agriculture

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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.

 

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Categories
crime and punishment First Amendment rights judiciary

Church Not Forced to Encourage Sin

compelled speech, censorship, force,

In Hawaii, those who would compel others to promote abortion have suffered a well-​deserved setback.

A U.S. District Court tossed a law requiring pregnancy centers to post ads for abortion clinics. Among the centers that would have been affected was one run by a church opposed to abortion. Of course, whether we’re religious or non-​religious, we have the same rights. 

The president of National Institute of Family & Life Advocates (NIFLA), Thomas Glessner, hails the decision as a “major victory for free speech and freedom of religion.” For its reasoning, the district court relied on a Supreme Court decision, NIFLA v. Becerra.

“In NIFLA v. Becerra, the Supreme Court affirmed that we don’t force people to say things they don’t believe,” says Kevin Theriot, a lawyer with Alliance Defending Freedom who argued that case before the Supreme Court. Thus, “the district court was correct to permanently halt Hawaii’s enforcement of Act 200’s compelled speech requirement.”

You shouldn’t be forced in any way to abet any conduct that you regard as morally wrong — not if the rest of us respect your rights as a moral agent. And it is worth remembering that a lot of people have moral qualms about all sorts of issues, and that many of the people running Hawaii’s non-church-​sponsored centers doubtless also oppose abortion.

Obvious? To you and me, maybe. But some people disagree. They appear eager to compel others to join their various causes. 

The noble cause of leaving other people alone isn’t on the list.

This is Common Sense. I’m Paul Jacob.

 

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Accountability crime and punishment folly free trade & free markets general freedom judiciary local leaders moral hazard nannyism Second Amendment rights too much government U.S. Constitution

Ought Implies Cantifornia

microstamping, bullet, California, law, guns, gun control

“Strip away the absurdity,” writes Scott Shackford at Reason, “and it’s essentially a very technical ruling.”

Shackford is explaining a bizarre recent judgment of the California Supreme Court. 

Politicians in Sacramento had, years ago, passed a gun control measure requiring gun manufacturers to “implement microstamping technology that would imprint identifying information on bullets as they were shot from semi-​automatic weapons.” In 2014, Smith & Wesson announced that it would pull some guns from the California market rather than comply. Why? The technology just wasn’t ready yet.*

Since California’s Civil Code contains a section reiterating an old commonsense principle to the effect that the “law never requires impossibilities,” the National Shooting Sports Foundation sued to block the law.

But the group just lost.

The Court did say it could protect citizens from punishment, but it refused to nullify the legislation on constitutional grounds.

Unanimously.

Why do this? Apparently to protect California politicians in their ongoing social engineering schemes.

The dollar costs of trying to comply with impossible demands are huge, of course. But the biggest costs may be more subtle.

In moral philosophy, it is a truism to say that “ought implies can.” In natural law as understood long ago, an impossible law was thought not a law at all, justifiably ignored by anyone and everyone.

In a just state, flouting of maddening regulations like California’s would lead not merely to the defense of the absurdly put-​upon citizen — as this court ruling still allows — but also to the nixing of the “impossible” law.

This is Common Sense. I’m Paul Jacob.

 

* Shackford notes that “a cynic might theorize that this is the law’s actual intent.” I wouldn’t limit that suspicion to folks given to cynicism. Pragmatists and political scientists and almost anyone else would be placing bets on that, too.

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Accountability crime and punishment general freedom ideological culture judiciary media and media people moral hazard national politics & policies Regulating Protest too much government

Post Blindfold

blind justice, unions, Supreme Court, polarization, politics

While the Supreme Court heard oral argument, Monday, in Janus v. American Federation of State, County and Municipal Employees (AFSCME), the court of public opinion focused not so much on the constitutionality of the law in question, i.e. justice, but instead on the partisan impact of the decision, i.e. politics. 

A Washington Post editorial advances the notion that the court was presented “with two questions. The first is the legal issue …” and the second “implicit” question is “how the court should conduct judicial review in a deeply polarized society.”

Plaintiff Mark Janus and his legal team are seeking an “extraordinary remedy in the context of the Supreme Court’s tumultuous recent history,” claims the Post.

But that history is not Mr. Janus’s.

Or the union’s.

Or even U.S. labor relations’.

The editors are talking about Washington’s bitter 2016 political fight. 

What does political polarization have to do with the facts or law of this case? Nothing. Except … what’s in peril is a system whereby government workers who do not wish to join a union are nonetheless forced to pay union dues.

So, if the Court nixes current law, AFSCME might wind up with fewer dues paying members … meaning less money for AFSCME’s political pet, the Democratic Party. 

And Democrats — now stuck with a conservative replacement for the late Justice Scalia — are left only with Obama’s pronouncement: “Elections have consequences.” 

And, embarrassingly, the Post’s bizarre case for “steering the court modestly down the middle of the road.”

A lady, blindfolded, holding scales and a sword symbolizes justice. That blindfold is not to avoid reading the law; it represents the imperative to ignore politics.

This is Common Sense. I’m Paul Jacob.

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