Boots & Sabers

The blogging will continue until morale improves...

Category: Law

SCOTUS Signals Intent to Weigh in on Race Considerations in Higher Education

Racism, even if well intentioned, is still racism.

The Supreme Court on Monday called for President Joe Biden’s Department of Justice to weigh in on a pending case over affirmative action at Harvard University, signaling the court’s interest in a dispute that could scale back the widespread use of race in higher education admissions.

 

In an unsigned order, the justices requested a brief from acting Solicitor General Elizabeth Prelogar expressing “the views of the United States.” Such a move is often a prelude to the court ultimately deciding to hear a case, though not always.

Monday’s move also has the potential to delay the litigation, even if the court eventually votes to consider the case. If the court agrees to hear it in its term beginning in October, a decision would be likely by June 2022. If the court doesn’t hear the case until the term after that, the decision may not appear until the summer of 2023. It requires the votes of four justices to take up a case.

 

The dispute, known as Students for Fair Admissions v. President and Fellows of Harvard, No. 20-1199, was brought by a group led by the anti-affirmative action activist Edward Blum. Students for Fair Admissions said that Harvard’s limited consideration of the race of its applicants discriminates against Asian applicants in favor of white applicants. That runs afoul of Title VI of the Civil Rights Act of 1964, they argue.

 

A federal appeals court rejected the group’s arguments in November, finding that its “limited use of race in its admissions process in order to achieve diversity” was consistent with Supreme Court precedents. In February, Students for Fair Admissions filed a petition with the Supreme Court asking the justices to hear its appeal of that decision.

Racism, even if well-intentioned, is still racism

Good. Let’s hope this racist policy dies for good.

A federal judge has halted Joe Biden‘s ‘unconstitutional’ $4 billion program to pay up to 120 percent of black, Hispanic, Asian or Native American farmers’ debt, after 12 white farmers sued claiming it discriminated against them.

 

Wisconsin Judge William Griesbach issued a temporary restraining order Thursday blocking the loan forgiveness program Biden put in place after saying he wanted to tackle longstanding inequalities for farmers of color.

 

Judge Griesbach said the plan failed to provide adequate examples of recent hardships imposed on farmers from minority backgrounds. He also claimed that in trying to end one type of discrimination, the program ended up creating another.

Biden’s $1.9 trillion American Rescue Plan set aside $4 billion to the US Department of Agriculture (USDA) for loan forgiveness for socially disadvantaged farmers and ranchers.

 

The money would be used to pay up to 120 percent of direct or guaranteed farm loan balances for black, American Indian, Hispanic, Asian American or Pacific Islander farmers.

Wisconsin Supreme Court Strikes Down Dane County School Closings

Huzzah, huzzah. Hopefully the overreaches of government during the pandemic will be pushed back by the courts and at the ballot box.

The Wisconsin Supreme Court on Friday sided with private school parents and students in striking down a Dane County order from last August that sought to close all schools to most students to limit the spread of COVID-19.

The 4-3 decision — with all four of the court’s conservatives in the majority — comes with the school year essentially over and as rising vaccination rates appear to have virus in abeyance. The court in September had also placed a temporary hold on the order, meaning religious schools were free to conduct in-person classes for almost the entire 2020-21 school year, as many did.

But the court’s decision could resonate if there’s a resurgence of a virus variant or a completely new pandemic in the future.

The order by Public Health Madison and Dane County barred schools from offering in-person instruction for grades 3 through 12 until the county met certain benchmarks showing the coronavirus is better contained. In effect, it would have applied almost exclusively to private schools because public schools in Dane County had already decided to start the year online for almost all students in almost every grade.

Judge Strikes Down California’s Ban on Scary Black Guns

It only took 30 years for the gears of justice to turn.

A federal judge has overturned California´s three-decade-old ban on assault weapons, ruling that it violates the constitutional right to bear arms.

 

U.S. District Judge Roger Benitez of San Diego ruled Friday that the state´s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states.

 

He handed down the two page ruling in response to a lawsuit filed against the State of California by James Miller, Patrick Russ, Ryan Peterson and the the San Diego County Gun Owners Political Action Committee.

 

The plaintiffs successfully argued that California’s use of the term ‘assault weapons’ was ‘a politically-concocted pejorative term designed to suggest that there is an inherently unlawful or illegitimate basis for owning otherwise common firearms protected by the Second Amendment.’

 

They added that California banned guns which should have been lawful to own by designating them assault weapons using faulty rationales, such as a rifle’s ammunition capacity.

SCOTUS Rules that Warrantless Home Gun Confiscation Violates 4th Amendment

Excellent

On Monday, the Supreme Court released its opinion in Caniglia v. Strom, which unanimously held that a lower court’s extension of Cady v. Dombrowski’s “community caretaking” exception into the home defied the logic and holding of Cady, as well as violated the Fourth Amendment’s warrant requirement. With the court’s unanimity in Caniglia, the home remains the most sacred space under the Fourth Amendment; its sanctity literally houses its privilege. Sans warrant, exigency or consent, governmental search and seizure within it is unconstitutional.

 

[…]

 

A pithy four pages “long,” the opinion was unanimous and unambiguous: If police do not have the homeowner’s consent, an “exigent” circumstance, or a judicial warrant authorizing a search, then no version of Cady’s car exception applies to police entry into the home under the Fourth Amendment. “What is reasonable for vehicles is different from what is reasonable for homes,” Thomas wrote.

 

As always with realty – and, per Caniglia, the court’s Fourth Amendment jurisprudence — location matters. Specifically, the location of Cady’s warrantless search and seizure – a post-accident, routine search of an intoxicated, off-duty officer’s damaged and impounded car — simply cannot compare to a search of and seizure within a home. Governmental searches of vehicles regularly occur via exceptions to the Fourth Amendment’s warrant requirement; a myriad of decisions have constitutionalized warrantless searches of vehicles, their compartments, their containers and even their occupants. Not one of these warrantless exceptions is available for the home.

 

Accordingly, caretaking under Cady is not carte blanche for police to search or seize within the home, nor do their “caretaking” duties create a “standalone doctrine that justifies warrantless searches and seizures in the home,” Thomas wrote. Cady, itself, he noted, drew an “unmistakable distinction between vehicles and homes,” constitutionally embedding the exception outside the home.

Biden Supports Violating Intellectual Property Rights and Patents

I guess the pharmaceutical companies will have less motivation to develop vaccines and treatments for the next pandemic.

President Biden’s trade representative released a statement saying the White House would support a waiver on the intellectual property rights owned by the makers of Covid-19 vaccines during the pandemic.

 

The campaign for this has been going on amongst NGOs, some US Congressional Democrats and some developing countries such as India and South Africa. And as recently as March the US, the UK and the EU were resisting the moves in negotiations at the WTO in Geneva.

Wisconsin Supreme Court Continues to Reestablish Normal Order

Excellent.

MADISON, Wis. (AP) — The Wisconsin Supreme Court on Wednesday ruled that Gov. Tony Evers’ administration does not have the authority to issue capacity limits on bars, restaurants and other businesses without approval of the Legislature, a ruling that comes two weeks after the conservative-controlled court struck down the state’s mask mandate.

[…]
The Supreme Court ruled 4-3 Wednesday that the order issued by Evers’ Department of Health Services meets the definition of a rule, which by law must go through the Legislature.
Once again, what should have been a 7-0 ruling had three dissenters who are perfectly fine with the Executive exercising arbitrary power over all of Wisconsin. We are one Justice away…

Citizens Sue City of Green Bay Over Elections

The evidence is pretty clear that city officials ceded the management of the election to a private interest group.

The complaint alleges that the Center for Tech and Civic Life illegally dictated how Green Bay ran its election when it provided the city with $1.6 million to facilitate voting during the coronavirus pandemic. Minneapolis attorney Erick Kaardal cited a grant agreement that broadly required Green Bay to use the funds for “the public purpose of planning and operationalizing safe and secure election administration.”

“We want people to accept election results, and that requires fair and transparent elections,” Kaardal said during a news conference at the Brown County Courthouse.

Evers’ abuse of power stopped by state Supreme Court

My column for the Washington County Daily News is online. Here’s a part:

The court acted with good reason, for if a governor were permitted to rule in a permanent state of emergency, then the state Constitution is meaningless, and elections no longer matter. Governor Evers disagreed with the policy decisions of the Legislature, so he resorted to continually reissuing emergency declarations to enact his policy choices. In this case, Governor Evers was acting from behind the mask of compassion and claiming that only he knows the “science” that will save us all.

 

Despots, however, never rise to power by telling the people that they will strip them of their civil liberties and crush them under the boot of oppression. Despots always rise to power with the promise to protect the people from something like a foreign aggressor, internal strife, or, in this case, a disease. Despots claim that normal government is not sufficient to respond to this unprecedented apocalyptic crisis, so normal government must be suspended in favor of the nimble and extensive power of autocratic rule.

 

[…]

 

First, the Supreme Court waited far too long to issue its ruling. The original petition happened on October 15, 2020, and oral arguments were heard on November 16, 2020. The court waited until March 31, 2021 to issue its ruling. That is almost half a year between the petition of the court and the court’s ruling. In a case in which the state Constitution has been suspended while a rogue governor issues orders from behind a permanent state of emergency, the people of Wisconsin have a right to expect more expeditious action from their elected Supreme Court justices. They are elected to make rulings on important issues facing the state and their sloth smacks of snobbery.

 

Second, the ruling was decided by a single vote with four justices voting in the majority and three in the minority. The law is crystal clear in this case and yet three of Wisconsin’s Supreme Court justices supported the governor being able to suspend normal government forever by continually issuing emergency declarations. Wisconsin is on the razor’s edge of slipping into autocracy with almost half the court cheering for it. That should keep every freedom-loving Wisconsinite up at night.

SCOTUS Considers 2nd Amendment Case

The New York law is clearly unconstitutional.

The court has largely dodged the issue since issuing two landmark opinions in 2008 and 2010, when it held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self- defense.

 

Gun rights advocates and even some of the justices themselves have expressed frustration that the court has declined to further define the scope of the right as lower courts across the country have upheld restrictions.

 

Three years ago, for example, Justice Clarence Thomas charged that the “Second Amendment is a disfavored right in this court.”

 

[…]

 

The new case concerns a New York law governing licenses to carry concealed handguns in public. It requires residents to show they have what the state calls an “actual and articulable” need to do so.

 

[…]

 

“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” New York Attorney General Letitia James wrote in court papers.

No other Constitutional right requires the citizen to declare an affirmative need – subject to review by a government official – in order to exercise it. Imagine if you had to declare a “need” before being allowed to speak, or practice your religion, or assemble, or get a jury trial, or petition your government, or get a lawyer… and if some government official decided that your “need” did not meet his or her ambiguous threshold, you wouldn’t be allowed to do it.

Nuts, right?

Right.

So why would that standard apply to the rights protected in the 2nd Amendment if it wouldn’t to those protected by the 1st?

SCOTUS Allows Free Speech Lawsuit to Continue

Excellent.

Washington (CNN)The Supreme Court on Monday revived a lawsuit brought by a former student seeking to hold his state university accountable for violating his First Amendment rights when it barred him from speaking about his religion and distributing religious literature.

Justice Clarence Thomas, writing for an 8-1 majority, allowed the lawsuit to continue even though the student, Chike Uzuegbunam, who has since graduated, was only asking for $1 in damages and the school’s policy has changed.
Thomas wrote that it was “undisputed” that Uzuegbunam’s rights were violated and that he could proceed with the case even though he was only seeking nominal damages.
[…]
In 2016, Uzuegbunam, an evangelical Christian who was a student at Georgia Gwinnett College, was standing on a stool in a “speech area” at his school, talking about his religion and passing out religious literature. He had followed the school’s direction and reserved a spot designated by the school as a “speech zone.”
But he was approached by campus police who said there had been complaints about his speech. The officer said the space did not allow “open air speaking” and that he had violated the school’s code of conduct because his speech constituted disorderly conduct.

Dane County Reduces COVID Fines Against Dance Studio

Excellent!

The News: Dane County attorneys, on behalf of Public Health Madison and Dane County, have significantly reduced the fines they are seeking from A Leap Above dance studio in Oregon, Wisconsin. WILL is representing A Leap Above after the health department fined the dance studio for what it misleadingly characterized as a “performance” of the Nutcracker on December 13, 2020. The initial complaint sought nearly $24,000 in fines.

WILL attorneys got the City of Madison to dismiss the initial enforcement action because the Dane County health department illegally enlisted City attorneys to enforce a county ordinance. WILL attorneys also noted that the initial filing’s legal theory—one count per person allegedly at the studio—was inconsistent with both the order and ordinance. Dane County attorneys refiled the action on Friday, but dropped most of the counts.

Judge Denies New Warrant for Rittenhouse

Testy

Schroeder refused both of Binger’s requests. During a testy hearing the judge said people out on bail often fail to update their addresses and aren’t arrested. He ordered Rittenhouse attorney Mark Richards to turn over Rittenhouse’s current physical address but said it would be sealed to the public and only he and the Kenosha County Sheriff’s Department would have access to it.

 

The judge refused to give Binger the address, saying he didn’t want more violence in Kenosha. The move — and the comment — left Binger flabbergasted.

 

“I hope you’re not suggesting sharing this with our office would lead to further violence,” Binger said. “We are not the public. We are the prosecuting agency. I have never heard of a situation where the information has been withheld from my office.”

There’s a back story here…

DOJ Investigates SpaceX for Hiring Too Many Americans

Ridiculous.

The U.S. Department of Justice is investigating SpaceX over whether the company discriminates against non-U.S. citizens in its hiring practices and said Elon Musk’s company is stonewalling a subpoena for information, court documents revealed Thursday.

 

The DOJ’s Immigrant and Employee Rights Section received a complaint of employment discrimination from a non-U.S. citizen claiming that the company discriminated against him based on his citizenship status.

 

“The charge alleges that on or about March 10, 2020, during the Charging Party’s interview for the position of Technology Strategy Associate, SpaceX made inquiries about his citizenship status and ultimately failed to hire him for the position because he is not a U.S. citizen or lawful permanent resident,” DOJ attorney Lisa Sandoval wrote in a complaint filed Thursday.

Even if the allegation is true, citizenship (or not) is not a protected class. Discriminating on the basis of citizenship is not illegal. Why is the DOJ even investigating? And didn’t the President just photo copy and reissue a Buy American executive order? I thought we liked discriminating on behalf of America.

Federal Judge Temporarily Halts Biden’s Deportation Pause

Interesting.

(CNN)A federal judge in Texas temporarily blocked the Biden administration’s pause on deportations Tuesday, delivering a blow to one of the administration’s first immigration actions.

The court order stems from a lawsuit filed by Texas Attorney General Ken Paxton challenging the 100-day pause on deportations, which took effect Friday. The complaint cited in part an agreement signed between the Department of Homeland Security and Texas in the waning days of the Trump presidency that required the department to consult the state before changing or modifying policies.

Judge Drew Tipton of the Southern District of Texas, however, said the temporary restraining order was appropriate under the Administrative Procedure Act. Tipton blocked the Biden administration from executing its deportation pause for 14 days.
If the DHS signed an agreement with Texas, then it does seem like Biden’s action violates a contract.

Indiana County Repeals Anti-Hippie Law

Heh.

LaGrange County, Indiana, has repealed a 1971 law that was intended to block huge gatherings like the 1969 Woodstock music festival in New York state.

“I called it our anti-hippie ordinance,” county commissioner Dennis Kratz said with a smile.

 

The ordinance regulated large gatherings that lasted more than 12 hours and involved more than 500 people, The News Sun reported.

 

The law was recently dropped as part of an effort to repeal ordinances that have no practical use but have been on the books for as long as 100 years, especially certain traffic restrictions. County attorney Kurt Bachman’s research lasted three years.

Small Businessman Sues Twitter for Labeling Him a “Hacker”

This will be an interesting case.

A computer repair shop owner who Hunter Biden handed his laptops over to in April 2019 is suing Twitter for defamation, claiming moderators labeled him a hacker.

John Paul Mac Isaac is seeking $500 million in damages from Twitter after The New York Post’s story about Biden, obtained from the 50-year-old’s laptop, was labeled as potentially coming from hacked material.

Facebook and Twitter both restricted viewing of the Post’s story, and Twitter pointed to its ban on posting ‘hacked materials’ as an explanation.

Mac Isaac claims, according to The Verge, that Twitter specifically made this decision to ‘communicate to the world that [Mac Isaac] is a hacker.’

He says that his business began to receive threats and negative reviews after Twitter’s moderation decision, and that he is ‘now widely considered a hacker’ because of Twitter.

Ignore the Hunter Biden connection and the ridiculous dollar amount. This is a case where Twitter employees – not Twitter users – specifically labeled this guy a hacker and damaged his reputation and livelihood. The facts of the case are self-evident. So the court will have to decide if a company like Twitter can be held liable for the defamatory actions of its employees. In a normal world, this seems like it would be a slam dunk. After all, if a company like Microsoft or General Mills had their employees defame someone in public, they could be held accountable. But in today’s hyper-charged environment, who knows?

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