Boots & Sabers

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Tag: Supreme Court of the United States

SCOTUS Considers Consequential Docket

Fingers crossed.

It could be another really good session for expanding civil rights and ending institutional racism.

 

In cases from Harvard University and the University of North Carolina, the court could end any consideration of race in college admissions. If this seems familiar, it’s because the high court has been asked repeatedly over the past 20 years to end affirmative action in higher education. In previous cases from Michigan and Texas, the court reaffirmed the validity of considering college applicants’ race among many factors. But this court is more conservative than those were.

 

[…]

 

A new clash involving religion, free speech and the rights of LGBTQ people will also be before the justices. The case involves Colorado graphic and website designer Lorie Smith who wants to expand her business and offer wedding website services. She says her Christian beliefs would lead her to decline any request from a same-sex couple to design a wedding website, however, and that puts her in conflict with a Colorado anti-discrimination law.

 

The case is a new chance for the justices to confront issues the court skirted five years ago in a case about a baker objected to making cakes for same-sex weddings. The court has grown more conservative since that time.

 

[…]

 

In November, the court will review a federal law that gives Native Americans preference in adoptions of Native children. The case presents the most significant legal challenges to the Indian Child Welfare Act since its 1978 passage.

 

SCOTUS Allows State to Force University to Violate Religious Beliefs

That’s a shame. Another blow against religious liberty.

WASHINGTON — The Supreme Court has cleared the way for an LGBTQ group to gain official recognition from a Jewish university in New York, though that may not last.

 

By a 5-4 vote Wednesday, the justices lifted a temporary hold on a court order that requires Yeshiva University to recognize the group, the YU Pride Alliance, even as a legal fight continues in New York courts.

 

Two conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, sided with the court’s three liberal justices to form a majority.

 

The disagreement among the justices appears to be mostly about procedure, with the majority writing in a brief unsigned order that Yeshiva should return to state court to seek quick review and temporary relief while the case continues.

 

If it gets neither from state courts, the school can return to the Supreme Court, the majority wrote.

Power to the People

Here is my full column that ran last week in the Washington County Daily News. I’m glad to see that the rest of the rulings continued this theme.

It was a blockbuster week of rulings from the Supreme Court of the Unites States. With a few more important rulings to be released this week, we see a positive trend emerging from the rulings. SCOTUS is stripping back the power of government and returning it to the people.

 

Arguably the two most important rulings of this session have to do with gun rights and abortion. In New York State Rifle & Pistol Association, Inc. v. Bruen, the court was asked to evaluate if New York’s restrictive gun laws violated the 2nd Amendment. The law in New York prohibits people from carrying a firearm unless they obtain a permit to do so from the government. To obtain the permit, the applicant must cite a specific reason and it is up to the arbitrary judgment of the government official as to whether the given reason is good enough to get a permit. SCOTUS struck down New York’s gun restrictions. What is interesting, however, is that the court did not strike it down based on the 2nd Amendment protection of the right to keep and bear arms. Instead, the court struck it down based on the 14th Amendment’s protection for citizens being denied “life, liberty, or property, without due process of law.” Taking the rights guaranteed in the 2nd Amendment as already clarified by earlier case law, Justice Clarence Thomas brilliantly sums up the ruling by saying, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

 

In Dobbs v. Jackson Women’s Health Organization, the court issued a narrower ruling that, “the Constitution does not confer a right to an abortion.” Thus, “the authority to regulate abortion is returned to the people and their elected representatives.”

 

Abortion is not mentioned in the Constitution, but in Roe v. Wade the earlier court engaged in judicial activism to thrust the power of the federal government into the regulation of abortion. In Dobbs, the court corrected that wrong and transferred the power to regulate abortion from the unelected federal court system to the elected representatives of the people. This is how it was up until Roe.

 

While the court did confirm that aborting a baby is not a right guaranteed by the Constitution, it did not say that the Constitution protects someone from being aborted. The Constitution does protect citizens from being deprived of life without due process, but to make such a ruling, the court would have had to define when life begins. That was not the question before the court and to rule on that issue would have been an act of judicial overreach. Perhaps a future court will have the opportunity to consider that question.

 

In both cases, we see the court reducing the power of government. In the case of Bruen, the court checked any government from restricting the 2nd Amendment without the same kind of extraordinary justifications we require of government to restrict other rights enumerated in the Constitution. This will have a cooling effect on zealous gun grabbers.

 

In the case of Dobbs, the court returned the power to regulate abortion to the people to exercise through their elected representatives. While the federal legislature could take up the issue, reaching a consensus across the broad ideological spectrum represented in the national legislature would be difficult. The state legislatures will more practically take up the arduous task of regulating such a politically contentious issue. Since the government closest to you generally governs the best (a reliable, if not unfailing, truism), the court’s ruling has empowered the people.

 

As the courts final rulings are released, we may hope to see more of this trend of limiting the power of government and returning powers heretofore usurped by government to the people.

SCOTUS Rules in Favor of Biden on Immigration

While the policy is abhorrent, cruel, and destructive to the nation, I think the court got it right on the law. Essentially, one administration should be able to change discretionary policy that a previous administration made. This ruling will be important in 2025. Also, I agree with Kavanaugh in his consent opinion:

One final note: The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems

SCOTUS Reins In Power of Regulatory Agencies

Excellent.

But he added that the Clean Air Act does not give the Environmental Protection Agency (EPA) the authority to do so.

 

‘A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,’ he wrote.

Much like with the other rulings, this court is returning power to the people and their elected representatives from courts, executives, and agencies who have usurped that power over time. We WANT big questions to be debated and decided by the representative part of our government. Yes, it’s harder that way. It’s cumbersome, slow, inefficient, and often ineffectual. But representative government is far superior to the arbitrary rule of bureaucrats whether they wear black robes or suits.

Power to the people

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

It was a blockbuster week of rulings from the Supreme Court of the Unites States. With a few more important rulings to be released this week, we see a positive trend emerging from the rulings. SCOTUS is stripping back the power of government and returning it to the people.

 

[…]

 

While the court did confirm that aborting a baby is not a right guaranteed by the Constitution, it did not say that the Constitution protects someone from being aborted. The Constitution does protect citizens from being deprived of life without due process, but to make such a ruling, the court would have had to define when life begins. That was not the question before the court and to rule on that issue would have been an act of judicial overreach. Perhaps a future court will have the opportunity to consider that question.

 

In both cases, we see the court reducing the power of government. In the case of Bruen, the court checked any government from restricting the 2nd Amendment without the same kind of extraordinary justifications we require of government to restrict other rights enumerated in the Constitution. This will have a cooling effect on zealous gun grabbers.

 

In the case of Dobbs, the court returned the power to regulate abortion to the people to exercise through their elected representatives. While the federal legislature could take up the issue, reaching a consensus across the broad ideological spectrum represented in the national legislature would be difficult. The state legislatures will more practically take up the arduous task of regulating such a politically contentious issue. Since the government closest to you generally governs the best (a reliable, if not unfailing, truism), the court’s ruling has empowered the people.

Supreme Court Affirms Religious Freedom

Another great SCOTUS ruling.

The court said, “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”

 

The case deals with First Amendment protections of personal religious expression and the school system’s fears of being seen as endorsing a religion, which deals with the Constitution’s “Establishment Clause.” There are also questions about the rights of school employees vs. the duty of that employee not to coerce students, particularly on religious matters.

 

The majority said he was offering a “quiet prayer of thanks,” while the school system expressed concern about the visibility of the prayer at mid-field.

In the majority opinion, Gorsuch wrote, “He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton school district disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the free exercise and free speech clauses of the first amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

SCOTUS Overrules Roe and Casey

Hallelujah. Pray for peace.

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives

5-1-3. I admit… I did not think I would see this in my lifetime.

Interesting note from the ruling:

our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests,

So the ruling still leaves it to state legislatures to decide when life begins and when rights are imbued. In this way, the ruling leaves an open question for future litigation.

SCOTUS Rules In Favor of Civil Rights in Bruen

They ruled that New York’s gun laws violate the 14th Amendment.

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

 

[…]

 

A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.

 

[…]

 

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions

 

[…]

 

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

Supreme Court Rules Supports Religious Rights

Good news!

WASHINGTON — The Supreme Court ruled Tuesday that Maine can’t exclude religious schools from a program that offers tuition aid for private education, a decision that could ease religious organizations’ access to taxpayer money.

 

The 6-3 outcome could fuel a renewed push for school choice programs in some of the 18 states that have so far not directed taxpayer money to private, religious education. The most immediate effect of the court’s ruling beyond Maine probably will be in nearby Vermont, which has a similar program.

SCOTUS Declines SALT Challenge

It’s been a pretty good news day.

The Supreme Court on Monday declined to hear a challenge to the $10,000 state and local tax (SALT) deduction cap, a Trump-era tax law that hit the pocketbooks of wealthy people in blue states.

 

New York led a group of states including ConnecticutMaryland and New Jersey in seeking to strike down the law that limits people to deducting $10,000 of state and local tax from their federal tax bill. The cap was enacted as part of the 2017 Trump tax bill as a way to offset other cuts.

 

The states had argued that the cap improperly encroached on their taxing ability.

What is a woman?

We want this person to make huge decisions based on the interpretation of words and they are (I assume I can’t call Jackson a “she?”) unwilling or unable to define what a woman is? We are erasing women from society.

Supreme Court nominee Ketanji Brown Jackson refused to define the word ‘woman’ during the second day of her confirmation hearing conducted by the US Senate‘s Judiciary Committee.

 

The moment came during a tense exchange with Senator Marsha Blackburn (R-Tenn.) who pressed Jackson on sex and gender issues amid the fallout of biological male swimmer Lia Thomas storming to victory in the NCAA championships against female competitors.

 

Quoting late Supreme Court judge Ruth Bader Ginsburg, Blackburn said: ‘Physical differences between men and women are enduring. The two sexes are not fungible. A community made up exclusively of one sex is different from a community composed of both.’

 

[…]

 

When Jackson claimed she had never heard the quote, Blackburn asked directly: ‘Can you define the word ”woman”?’

 

‘Can I provide a definition?’ Jackson responded.

 

‘No, I can’t,’ she declared, before adding: ‘I’m not a biologist’.

 

Jackson’s staunch refusal to offer a definition of a woman came at the end of the second day of questioning which tackled the big issues of race, abortion and judicial philosophy.

 

Breyer Retires

Not unexpected that the Democrats want to get this pushed through before they likely lose control of the Senate. I’d hope that the Republicans make the normal objections to any rabidly liberal appointees and vote accordingly, but not attempt to take any extraordinary actions to stop it.

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to multiple reports on Wednesday.

 

The current court term will end in June or early July.

 

Breyer is one of the three remaining liberal justices and has been under pressure to step down in order to let President Joe Biden appoint his replacement.

 

[…]

 

Biden is expected to act quickly to nominate a successor who can be ready to serve when the court’s new term begins Oct. 3.

 

Senate Democratic Leader Chuck Schumer said Biden’s pick would be confirmed with ‘all deliberate speed.

Sotomayor Concerned More With Optics than Law

The entire reason that we give Supreme Court justices lifetime appointments is so that that can dispassionately rule on the law irrespective of the social or political winds. Roe is bad law and SCOTUS has a history of revisiting bad decisions and correcting them.

Justice Sonia Sotomayor questioned whether the legitimacy of the Supreme Court would endure if it overturned abortion rights during a landmark hearing on a Mississippi law restricting the procedure.

 

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor said during oral arguments Wednesday morning. “I don’t see how it is possible.”

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.

Justice Barrett

Huzzah, huzzah.

Amy Coney Barrett was confirmed to the Supreme Court Monday evening by the Senate in a 52-48 vote – with Republican Susan Collins crossing the aisle to vote against her.

Donald Trump’s third nominee was not in the chamber to watch the roll call vote, which allows her to join the eight justices on Tuesday morning, and potentially to decide on cases about voting before the November 3 election.

Senate president pro tempore Chuck Grassley declared her confirmation at 8.06pm; outside the Supreme Court conservatives chanted Coney Barrett’s name as soon as she was confirmed.

Biden Plans to Pack the Court

There is no other way to interpret this answer. You lefties OK with this? You do realize that if Biden does it, then the Republicans will also do it the next time they are in power? Eventually, we will have a SCOTUS with 79 members.

‘They’ll know my opinion on court-packing when the election is over,’ Biden said Thursday as he arrived in Arizona for a campaign stop with running mate, Sen. Kamala Harris.

Unfortunately, I think that our civics education has become so intentionally bad that only a minority of voters will even understand what an assault this is on our Republic.

Trump Nominates Barrett for SCOTUS

Sorry for going dark yesterday. I was in final consideration for the SCOTUS pick. As you can see, the President went another way.

US President Donald Trump has nominated Amy Coney Barrett, a favourite of social conservatives, to be the new Supreme Court justice.

Speaking by her side at the White House Rose Garden, Mr Trump described her as a “woman of unparalleled achievement”.

[…]

After graduating from Notre Dame University Law School in Indiana, she clerked for the late Justice Antonin Scalia. In 2017, she was nominated by Mr Trump to the Chicago-based 7th Circuit Court of Appeals.

She is an outstanding pick. If there is one thing that Trump has proven to be very capable of, it’s choosing Supreme Court Justices. His previous two picks have been outstanding and this one is too.

Given that the Senate confirmed her just three years ago, there shouldn’t be a need for much of a confirmation hearing. There will be, of course, but it’s just theater with Republicans trying to goad Democrats into bashing a Catholic Midwestern woman and the Democrats taking the bait.

Democrats Will Overreach

I wrote this in February of 2017.

The Democrats have already reflexively announced their opposition to Gorsuch, even though their criticisms have failed to rise to any cogent standard. Wisconsin’s own Senator Tammy Baldwin has even refused to meet with Gorsuch, thus abdicating her role in the process and retreating behind nasty press releases and daft commentary.

Far be it from me to advise the Democrats, but their overreach on Gorsuch may neuter them further on future picks. Remember that former Senate Majority Leader Harry Reid killed the filibuster rule for all but Supreme Court picks in his effort to ram through President Obama’s lower court appointments, but left it in place for Supreme Court appointments. In doing so, Reid laid the ideological groundwork and precedent for killing the filibuster rule for Supreme Court picks too.

If the Democrats in the U.S. Senate choose to filibuster and obstruct what is clearly a brilliantly qualified choice for the Supreme Court, the Republicans can rescind the filibuster rule for Supreme Court picks too and confirm the appointment without needing to make a single concession to the minority party. The Democrats’ intransigence and unwillingness to even participate in the process, and the precedent already established by Harry Reid, will provide ample political cover for the change in rules.

Then, if and when Trump gets another opportunity to appoint a Supreme Court justice, the rules will already be set to allow an easy confirmation. If the Democrats participate and allow a vote – even if all of them vote against the nominee – they will likely preserve the filibuster for future Supreme Court nominations while undercutting the political justification to rescind it next time.

If the political battles of the past few years in Wisconsin have taught me anything, it is that Democrats will overreach. Their base of radicals demands unbending fealty to ideology – even at the expense of victory.

As it turned out, McConnell did end the filibuster for SCOTUS confirmations over the Gorsuch fight and here we are. Then the Democrats hardened once “play nice” Senators like Graham during their atrocious behavior in the Kavanaugh hearing. Again, I expect the Democrats to overreach again here.

Through all of this I continue to lament that we attach so much importance to a single judge; on a 9-judge panel; in one branch of our federal government. It shows how much power we have ceded to the federal government and, specifically, the Supreme Court. Do you know why judge appointments were mostly a non-event outside of Washington for well over a century of our nation’s history? Because it didn’t impact the lives of most Americans. That’s not the case anymore and our Republic is worse for it.

Democrats Threaten to Pack the Supreme Court

This is very simple. There is no practical purpose to expand the court for the good of the American People. The only reason to do it is to change the philosophical center of the court one way or the other. It is about raw power.

Democrats have threatened to pack the Supreme Court if Donald Trump‘s nomination gets confirmed following the death of Ruth Bader Ginsburg.

The president on Saturday urged the GOP-run Senate to consider ‘without delay’ his upcoming nomination to fill the seat vacated by Justice Ginsburg, who died Friday after a battle with cancer.

[…]

Several Democrats have vowed the party will expand the size of the court if they capture the Senate in November and Republicans have already pushed through a conservative successor to Ginsburg.

Joe Kennedy III, who represents Massachusetts’ 4th Congressional District and is the grandson of Robert F. Kennedy, tweeted Sunday: ‘If he holds a vote in 2020, we pack the court in 2021. It’s that simple.’

Let’s think this through a few steps. Let’s say the Democrats win the presidency and majorities in the Congress, so they expand the court to 11 members, appoint two liberals, and shift the balance. What’s to stop the Republicans from doing the same thing the next time they are in control? Does the Republic then just keep expanding the Supreme Court every time a party gets in power? We still experience the sway of courts as elected officials from one party or the other gain power, only now it happens faster because they don’t have to wait for sitting justices to die or retire.

Is that better? Is our Republic better for it?

Nope. Do the Democrats care? Nope.

Let’s hope this is a passing tantrum and more thoughtful people step to the front of the Democratic Party.

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