Tag: Supreme Court

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crime and punishment First Amendment rights judiciary

States Without Standing

Friends of freedom of speech had been looking forward to a certain U.S. Supreme Court decision, Murthy v. Missouri.

The Biden administration has for years worked to suppress social-​media speech that disputes official government doctrines about biology, pandemic policy, elections, and other controversial matters. In short, the kind of speech the First Amendment was designed to protect.

Several suits have been launched against the federal government’s censorship. This one had been brought by Louisiana, Missouri, and other states, abundantly proving that administration officials actively pressed social-​media companies to suppress speech.

By a 6 – 3 vote, the court tossed lower-​court rulings that favor the states’ position. According to the decision’s coiled reasoning, the states lack legal right to sue. They lack standing.

Dissenting: Justices Alito, Gorsuch, Thomas.

The majority made a big point of ruling only on this question of “standing” — which none of us speakers of speech have, apparently — and not on the main question. We can hope, I guess, that some other case will someday be brought by plaintiffs whose rights the majority will concede have been infringed by the government’s infringing actions, which by their nature assault the right of freedom of speech of all Americans.

Meanwhile, in the words of Louisiana Attorney General Liz Murrill, the court’s decision “gives a free pass” to the government’s efforts to “threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment.”

This isn’t a minor procedural setback.

This is Common Sense. I’m Paul Jacob.

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judiciary national politics & policies regulation

Regulatory Pressure?

gun control, Supreme Court, regulations, regulators, persuasion

Should government regulators be able to urge financial institutions to cancel clients that regulators dislike for political reasons? Such as oil companies and groups advocating Second Amendment rights?

Although a court of appeals has said Yes, the Supreme Court has just said Maybe No in a case involving the National Rifle Association (NRA v. Vullo).

The NRA hasn’t won final victory. But the court is unanimously letting it proceed with its lawsuit, which argues that by pressuring banks and insurance companies to cancel their business with the NRA, New York regulator Maria Vullo violated its freedom of speech.

The Supreme Court seems to accept an artificial distinction, though, between a regulator’s “persuading” an organization to hurt a client and “forcing” it to do so.

An official with power over a company who seeks as a government official to “persuade” that company to do something is engaging in coercion. The implicit threat is: “I have the power to hurt you if you don’t do this little favor for me.”

Moreover, in sending the case back to the lower court, the Supreme Court has also said that it may consider whether Ms. Vullo is protected by qualified immunity, the get-​away-​with-​anything card that government officials are too often able to rely on when they commit wrongdoing.

So this decision is hardly a final, definitive victory for the NRA and other victims of thug-​regulators. But at least the NRA can keep fighting — for itself and the rest of us.

This is Common Sense. I’m Paul Jacob.

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Greed & the Innocent Owners

civil asset forfeiture

“We know there are abuses of the forfeiture system,” Supreme Court Justice Sonia Sotomayor declares. “We know it because it’s been documented throughout the country repeatedly.”

Civil asset forfeiture is a crime — if a legal one. I’ve devoted numerous columns to it, here, these past few decades. Interestingly, there’s no overt political reason for it not to stop, for opposition to it comes from both left and right — and middle.

The problem, explains left-​wing Justice Sotomayor, is that this legal practice of seizing property associated with crime does not have checks and balances in American law, since, until the 1970s, it had been used circumspectly, for the most part — against pirates and such. Since then, and in great part because of the War on Drugs, it has gotten out of hand: greedy functionaries in law enforcement have grabbed property and kept it, requiring even “innocent owners” — people not directly engaging in any crime — to go through absurdly difficult legal maneuvers, expending inordinate time and far too much money to get back what’s theirs.

It’s all very corrupt, as Justice Neil Gorsuch — no left-​winger, he — observes. “Clearly, there are some jurisdictions that are using civil forfeiture as funding mechanisms,” he said.

All this I glean from a terrific article by Jacob Sullum in Reason. Like many of my past columns, Sullum identifies litigation by the heroic Institute for Justice.

What strikes me now, however, is how unresponsive our governments have been. We are still dealing with this horrific practice year after year despite near universal opposition to it by citizens. Politicians could have stopped it cold years ago. 

Justice delayed is justice denied.

Why pussyfoot around this? Because politicians are not serving us. They are greedy, too. For power. They’ll even use our property for their cause.

This is Common Sense. I’m Paul Jacob. 

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education and schooling judiciary

Thomas & Thomas

race, racism, Supreme Court, college, education

In the Students for Fair Admissions decision, the Supreme Court rules that using race as a criterion of university admissions is unconstitutional.

Ambiguous aspects of the decision and the determination of some universities to keep using race as a criterion mean that qualified applicants may, alas, still be penalized for being the “wrong” color. Unambiguous, though, is Justice Clarence Thomas’s rebuke of the decision’s dissenters for, among other things, assuming that only racism can explain the different average outcomes of ethnic groups.

“[N]one of those statistics are capable of drawing a direct causal link between race — rather than socioeconomic status or any other factor — and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds.…”

Has Thomas been perusing the work of Thomas Sowell?

One of Sowell’s career-​integrating insights is that statistics summarizing differences in average group outcomes are mute about the causes. 

One must investigate causally relevant facts.

Consider, for example, differences in characteristics and outcomes between subgroups of a broader ethnic group. Sole possible cause: racism? Or the fact that Asians on average perform better than whites in certain academic or economic categories. Sole possible cause: racism?

Just two of many pertinent questions that Dr. Sowell has asked as he, in his numerous books, surveyed our world’s cultures, lands, and histories.

This is Common Sense. I’m Paul Jacob.

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Fifth Amendment rights general freedom property rights

Government Greed Swept in Double-Header

takings, property rights, Supreme Court

Geraldine Tyler lived long enough to see the U.S. Supreme Court rule against those who robbed her. She is 94.

On May 25, 2023, the Court determined in a 9 – 0 ruling that Hennepin County, Minnesota, is not constitutionally entitled to pocket the entire sale-​price value of a condo in massive excess of the property taxes that Geraldine Tyler owed on the property when the government seized it for unpaid taxes.

Including penalties and interest, Tyler had owed about $15,000. But after selling the condo for $40,000, the county government seemed to think that $25,000 was a reasonable brokerage fee.

Pacific Legal Foundation, which represented Tyler in the case, argued that the county violated the Takings Clause of the Constitution by taking private property for public use “without just compensation.”

The Court agreed, saying that exploiting the debt “to confiscate more property than was due” effected “a ‘classic taking in which the government directly appropriates private property for its own use.’ ”

The ruling also rejects the county’s argument that Tyler somehow forfeited her constitutional rights by failing to pay her property taxes.

The same day, PLF also won another huge victory in the U.S. Supreme Court when the Court ruled that the EPA does not have limitless authority to block property owners from building on their own land if the agency chooses to designate a soggy part of the land a protected “wetland.”

Two for two. Not a bad batting average.

This is Common Sense. I’m Paul Jacob.

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Justice (Almost) Done

donuts, racist, college

It ain’t over until the money’s in the bank. But one wrong, long fought, may soon be righted. Justice done.

Years ago, Gibson’s Bakery won a judgment of $38 million against Oberlin College because of the Ohio school’s role in harassing the bakery and defaming it as “racist” after a 2016 shoplifting incident. 

The shopkeeper of the family-​donuts, racist, college bakery, Allyn Gibson, caught students trying to steal wine. They attacked him. They were black.

For whatever reasons, students on campus chugged into uproar mode, accusing the bakery of racism as if it prefers to be robbed only by persons of pallor. 

The shoplifters eventually pled guilty and acknowledged that the bakery is not racist.

The students’ irrationality was bad enough. Then Dean of Students Meredith Raimondo chimed in, working with protesters to defame the bakery. The school canceled its contract with Gibson’s and would claim in legal filings that the bakery’s “archaic chase-​and-​detain policy regarding suspected shoplifters was the catalyst for the protests.”

In 2017, the bakery sued Oberlin and won.

Oberlin has been appealing. Now it has lost in the Ohio Supreme Court, which refused to hear the appeal.

Only the U.S. Supreme Court can save Oberlin now. But according to the Legal Insurrection blog, the chances that it will even consider the case are slim.

Is $38 million the right award? Perhaps Oberlin should pay Gibson’s $50 million. Or a cool billion. 

But Oberlin deserves to be punished just as Gibson’s deserves to be compensated. 

May this finally happen.

This is Common Sense. I’m Paul Jacob.

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