Tag: Supreme Court

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
national politics & policies Popular term limits U.S. Constitution

The Court-Packers

Supreme Court, NPC, packing the court, FDR, law, justice, constitution

“What if there were five justices selected by Democrats,” presidential candidate Beto O’Rourke explored at an Iowa campaign stop, “five justices selected by Republicans, and those ten then pick five more justices independent of those who picked the first ten?”

Beto, meet FDR.

President Franklin Delano Roosevelt tried something similar with the Judicial Procedures Reform Bill of 1937, which would have added six new justices to the nine-justice U.S. Supreme Court. It failed in the Senate, even though FDR’s Democratic Party controlled the chamber.

This “court packing” gambit may have been the most unpopular action of FDR’s whopping three-plus terms. 

Despite the obvious self-interested power grab, “Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand . . . would not rule out expanding the Supreme Court if elected president,” Politico reported.

“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Warren explained . . . with a straight face. Yet Beto’s suggested reform would officially turn the nation’s highest court into a partisan, two-party political institution.

To the good, Democrats are also bantering about term limits for the nation’s High Court. Trouble is, term limits require a constitutional amendment, meaning a two-thirds vote of both chambers of Congress as well as 38-state ratification. 

Court packing, on the other hand, only requires simple majorities of both houses and the presidency. Which Democrats threaten in 2020.

“You need to gain power,” Washington Examiner columnist Philip Wegmann reminds, “before you can abuse it.”

So the abuse, for now, is merely promising.

This is Common Sense. I’m Paul Jacob. 

PDF for printing

Supreme Court, NPC, packing the court, FDR, law, justice, constitution

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
crime and punishment media and media people moral hazard national politics & policies

Not an Accusation

Julie Swetnick

Brett Kavanaugh’s weekend confirmation as an Associate Justice of the U.S. Supreme Court, by a 50-48 Senate vote, didn’t settle the allegations of his past sexual conduct in a judicial manner.

Wild disagreement remains.

Many on the Left continue to believe our newest justice repeatedly lied under oath, having abused at least three women when in high school and college. Many on the Right will view all “three” of these female accusers as political players or pawns, who probably should be punished in some way for lying about such a fine man.

While I doubt we can know for certain about a number of the accusations, there should be less doubt on the exact number of accusations. Which were not three but only two.

“I cannot specifically say that he [Brett Kavanaugh] was one of the ones who assaulted me,” Julie Swetnick told NBC News. But she went on to offer a maybe, a could have, some might haves, an I don’t know . . . and more, none of which amounted to an accusation. What she offered was a chain of suppositions: “Because if Brett Kavanaugh was one of those people that did this to me, there is no way in the world that he should go scot-free on this and that he should be on the Supreme Court. . . . If he does, I, uh — there’s no justice in the world.”

As long as this sort of nonsense is treated seriously in the media and among partisans, there can, indeed, be no justice in the world.

This is Common Sense. I’m Paul Jacob.

 

PDF for printing

 

Categories
government transparency ideological culture national politics & policies

Last Week’s Least Credible Answer

Diane Feinstein, Kavenaugh, Supreme Court

So, who was lying, last week, at America’s big show trial — er, Senate Judiciary Committee hearing?

Professor Christine Blasey Ford or Judge Brett Kavanaugh?

Many Americans took sides. I cannot. Both said believable as well as scarcely believable things, but I’m with that minority who admits not to know what to believe.

Except for one thing: I am pretty sure I know who told the biggest whopper.

Senator Dianne Feinstein.

Democratic senators, especially Kamala Harris (D-Calif.), repeatedly pressured Kavanaugh to himself demand an FBI investigation to clear his name. It all seemed Orwellian: to make the accused insist on an investigation into allegations he had denied. It was also odd, considering, as Kavanaugh reminded his inquisitors, that he had repeatedly accepted any investigation the committee desired.

They just wanted him to demand it.

All of which is nuts, since the Committee possesses subpeona power, and can do an investigation itself.

But the weirdest aspect? The FBI had already checked Kavanaugh’s background, had performed an official investigation. But since Senator Feinstein had not tipped the agency off to Professor Ford’s confidential accusation — had effectively sat on the letter — the FBI hadn’t covered that precise avenue of inquiry.

And then, after the hearings were nearly over . . . the leak. And the bouhaha.

When asked whether she leaked Ford’s epistle, Feinstein said No. When asked if her staff did, she said she . . . hadn’t asked them.

Oh, come on.

Not as believable as either Ford or Kavanaugh.

This is Common Sense. I’m Paul Jacob.

 

PDF for printing

 

Categories
ideological culture

The Opposite Party Is Partisan!

When departing Senator Jeff Flake indicated, the other day, that he would vote to place President Trump’s nominee Brett Kavanaugh onto the Supreme Court — despite the ugly accusations of Kavanaugh’s youthful sexual misconduct — much re-tweeted actress Alyssa Milano called him a “coward.”

We understand what she means. Because Flake “caved” to pressure from his party* — the GOP — he proved himself “spineless,” in another Twitterer’s terminology.

But the thing is, calling your opponent a coward because he does not do what you want is at least a bit odd. One does not approach a knight defending his castle and call him a coward for not surrendering.

Weird world, eh? Where our enemies are cowards for opposing us!

This is not new. Remember George W. Bush calling the terrorists of 9/11 “faceless cowards”? Bill Maher lost his comedy newschat show at the time because he made the obvious point that people who give their lives to a cause, even if terrible, are anything but cowards.

Human beings are a mixed bag — of virtues and vices. This should be treated as a given . . . for folks on all sides.

In one sense, however, Ms. Milano and many others in the Twitter brigades are not wrong. In politics, today, our biggest challenge is often resisting the besetting sins of our respective tribes.

But the fact that she and her friends “call out” the Senator for his partisan moral failings while rigorously maintaining their partisan ranks does not exactly indicate a moral heroism transcending partisanship.

This is Common Sense. I’m Paul Jacob.

 

* Some Republicans likely regard Flake as “caving” to pressure from the left, by calling for an FBI investigation before a Senate floor vote on the Kavanaugh nomination. Flake did this after a confrontation with two women who were victims of sexual assault.

PDF for printing

 

Categories
crime and punishment free trade & free markets general freedom ideological culture media and media people moral hazard national politics & policies privacy property rights responsibility U.S. Constitution

Wouldn’t Freedom Be … Easier?

cake, gay rights, Supreme Court, freedom of association, discrimination, law. nanny state

To bake or not to bake, that is the question.

Actually, the question was may a state discriminate against Christians in regulating “public accommodations”? The Supreme Court has decided, in a supermajority 7-2 ruling, that the Colorado Civil Rights Commission wrongly prosecuted a Christian baker who would not make a special wedding cake for a gay couple — while the Commission shrugged when it came to bakers who wouldn’t bake Bible verse cakes.

The ruling came down along the lines I suspected in December: Equal protection. This narrow ruling focused “on what the court described as anti-religious bias on the Colorado Civil Rights Commission when it ruled against baker Jack Phillips,” Fox News informs us.

In his majority opinion, Justice Anthony Kennedy censured the “Commission’s hostility” to Phillips. And Kennedy recognized the root problem, the “difficult questions as to the proper reconciliation of at least two principles”:

  1. “the authority of a State and its governmental entities to protect the rights and dignity of gay persons”;
  2. “fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.”

Ah, discrimination. Has picking at this, like a scab, really increased comity? It sure would be easier were we to stick to freedom of association.

Wouldn’t that dredge up less animus?

States should not engage in invidious discrimination. Sure. Vital.

But businesses? Must they serve anyone and everyone? Even when it requires the baker or florist to create something custom — or the pianist to perform? Especially when customers can easily go to a competitor?

Besides, in Colorado, anti-discrimination laws were used by government to persecute Christians.

This is Common Sense. I’m Paul Jacob.

 

PDF for printing

 

Categories
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.

PDF for printing

 

Categories
Accountability crime and punishment First Amendment rights general freedom government transparency local leaders moral hazard Regulating Protest too much government U.S. Constitution

Lock Her Up

Deyshia Hargrav, superintendent, schoolboard, Vermilion Parish school board, free speech, government, local government, Lozman v. Riviera Beach, Florida, Supreme Court

“Who Are We?” I asked Sunday at Townhall.com.

Today’s question: What have we come to?

Under a seemingly click-bait headline in The Atlantic, “Can Government Officials Have You Arrested for Speaking to Them?” Garrett Epps examines last week’s outrageous handcuffing and arrest of a Louisiana teacher, Deyshia Hargrave, for speech displeasing to the Vermilion Parish school board at a public meeting.

The elementary school teacher complained about a $30,000 raise the board was giving the superintendent, noting that teachers had not seen an increase in nearly a decade. After asserting that the raise would be “basically taken out of the pockets of teachers,” she was ruled out of order by the school board president and then asked to leave the premises. She calmly left the meeting room . . . only to be forced to the floor, handcuffed and arrested once in the hallway.

Police claimed the arrest was for “remaining after having been forbidden” and “resisting an officer.”

The school district announced it won’t press charges. Very funny. Anyone can see from the video that her treatment was excessive.

Next month, the U.S. Supreme Court will hear oral arguments in Lozman v. Riviera Beach, Florida, where an arrest was clearly retaliatory, but the city is newly claiming another violation it could have used to arrest Mr. Lozman.

Does this after-the-fact adding on of charges provide governments with an escape clause? As Epps argues, a Lozman decision “could either rein in, or embolden, the tiny-handed tyrants who rule county buildings and city halls around the country.”

If respectfully challenging our so-called public servants in meetings designed for that can lead to being arrested, handcuffed and dragged off, we no longer live in ‘the land of the free.’

This is Common Sense. I’m Paul Jacob.

PDF for printing

 

Categories
crime and punishment First Amendment rights general freedom moral hazard property rights too much government

A Cakewalk Case?

Masterpiece Cakeshop v. Colorado Civil Rights Commission, Supreme Court, civil rights, first amendment

The Justices seem split — on the “gay cake” case.

A Christian baker had no trouble selling a gay couple a pre-made cake, out of his showcase, but balked at selling a custom wedding cake of any kind. According to NPR’s Nina Totenberg, the couple understood that requesting a “gay” themed cake would go too far. But the baker’s refusal to decorate any wedding cake seemed unacceptable.

In Colorado, where the cake didn’t get made, there is a public accommodations law that says businesses must serve all customers regardless of race, religion, or sexual orientation. So Colorado went after the baker, the baker hired a lawyer, and Masterpiece Cakeshop v. Colorado Civil Rights Commission was heard by the Supreme Court this week.

Commonly billed as a conflict between First Amendment-guaranteed religious freedom* and the civil rights of citizens as defined and protected by a state law, it almost defies easy solution.

One could argue that the First Amendment right to freely associate (including the right not to associate) should extend to business. But that goes against legislation built up since the 1964 Civil Rights Act, which in many places ended an often violent racial segregation** no one wants back. However, a custom-made wedding cake is also expressive and therefore speech.

One could decide for Colorado on federalist grounds. And the late Justice Antonin Scalia, Ms. Totenberg tells us, argued that a general law not directed at a religion does not allow a specifically religious defense.

But one defense of the baker may work. The Colorado Civil Rights Commission has not applied its rulings equally. It sided with non-Christian bakers who refused to make cakes for Christians requesting Bible-verse cakes.

And that “takes the cake.”

This is Common Sense. I’m Paul Jacob

 

* In this regard, Justice Kennedy stated from the bench that it seemed to him “that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” Kennedy will likely be the swing vote.

** No small amount of this violence, segregation and discrimination was coerced by state laws in defiance of the Fourteenth Amendment and the Bill of Rights.

PDF for printing