Arrogance of an Activist Justice

The Supreme Court recently lifted a district court judge’s injunction that blocked President Donald Trump’s (R) Executive Order requiring heads of agencies to work with the Department of Government Efficiency on hiring decisions and developing plans for layoffs. The Court also ruled that it had based its decision on the legality of Trump’s Executive Order, and didn’t rule on whether any reorganization plans broke the law. And

The Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful[.]

Justice Ketanji Brown Jackson piped up in her lone dissent.

This was the wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground[.]

This is her Preciousness, and the arrogance of her activism. The Court knows little of what’s actually happening on the ground? But Jackson does know? Or in her shared Court ignorance, she would leave intact an injunction that’s blocking no known ill effects? Of course, highly talented and educated woman that she is, she knows full well that “don’t know” means…”don’t know.”

What she does know, though, as do all of the Justices on the Court (the other eight of whom voted to lift the injunction), is that no hiring decisions or layoff plans have been developed yet, much less begun execution. There is, then, no reason for the injunction, the EO itself being entirely legal.

This is the sort of activism—ignorant, not just ideological—that we can expect to deprecate the Supreme Court under a Progressive-Democrat President and Progressive-Democratic Party-dominated Senate.

Judicial Inconvenience

A prison inmate went without his heart medication for a week, had a heart attack, and died. The 6th Circuit ruled no Qualified Immunity for the nurse who didn’t, per the Institute for Justice‘s 27 June newsletter, call his pharmacy to verify his prescriptions or take 10 minutes to get the necessary release form filled out for getting his prescription filled out.

The dissenting judge in the panel beefed (IJ paraphrase),

Now everyone in CA6 who dies in jail because they were briefly without their medication has a constitutional claim.

Sorry, Judge, the convenience of you or your court is no excuse for denying even a prisoner his due, and it’s no excuse for not holding materially accountable those prison officials who deny a prisoner his due.

The Circuit opinion and dissent can be read here.

Artificial Hysteria

The Supreme Court earlier this week stayed a district court’s order blocking the Trump administration from deporting illegal aliens to countries that are not the home countries of those illegal aliens. The activist Justices on the Court demurred. The Court’s stay does not address the underlying case; it merely allows the administration to proceed while that case makes its way through our court system. It’s the nature of their demurral that’s instructive here, though.

Justice Sonia Sotomayor wrote for the dissenters,

Apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled[.]

This over-the-top manufactured hysteria by the activist Justices does the Court no good at all. In an environment where many begin to question the legitimacy of the Court, Sotomayor’s excessive hype is the sort of thing fueling that question.

Judge Shopping

A Wall Street Journal editorial correctly decried this, and a letter writer to the news outlet’s Letters section correctly included the Northern District of Texas as a particular judge shopping target for bringing suits convenient to the Trump administration. The letter writer also pointed out that, as an attempt to mitigate, if not eliminate judge shopping, the Judicial Conference of the United States, strongly discourag[ed] the practice, and some Federal districts changed their rules to enhance random assignments of their judges—but those rules are District by District.

Lost in this kerfuffle (cynically so, say I given that judges as a group surely know better) is a nation-wide requirement of centuries-long standing [emphasis added]:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….

And

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….

For those of you following along at home, those are from our Constitution’s 6th and 7th Amendments, respectively.

For the quibblers of the lawyer class, the latter is easily extensible by statute to explicitly require the civil suit to occur in the State and district wherein the [cause of the tort] shall have [first occurred].

The ability of Congress to make such a thing explicit is in this nation-wide requirement of equally centuries-long standing:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The District courts, as creatures of Congress, have their jurisdictional authorities set by Congress. This Congressional power over jurisdictional authority extends to the Supreme Court [emphasis added]:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Again, for those of you following along at home, those are from our Constitution’s Art III, Sect 1, and Art III, Sect 2, respectively.

All that’s required to eliminate judge-shopping is a renewed respect for and enforcement of our Constitution.

False Premise

The Biden administration had argued, in the course of its participation in a lawsuit against Tennessee’s law barring transgender-based treatments for children, that

A teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.

The Supreme Court last week issued its ruling that the Tennessee law was, in fact, perfectly fine; the ruling was 6-3, with the three activist Justices voting in dissent. Chief Justice John Roberts wrote the Court’s opinion, and Justice Amy Coney Barrett wrote a concurrence centered on answering one of the objections in the dissent. Justice Clarence Thomas wrote a separate concurrence in which he took to task all the plaintiffs’ demand that the Court knee-jerk accede to so-called experts in the Executive Branch regarding transgenderism.

However, it would have been good if the Court had addressed one more item—the Biden administration’s false premise underlying its argument.

That erroneous premise is this: that sex is assigned at birth. This is blatantly false. Sex is assigned at the moment of conception, when the male sperm, carrying either an X chromosome or a Y, joins with the egg and its X chromosome. The subsequent union, the zygote, is then deterministically a male with an XY combination or a female with an XX combination. That male or female—boy or girl—result is carried on through subsequent development all the way through fetus development and birth. The sex determination is immutably fixed at that first moment of union; it is not “assigned” later.

Had the Court put that underlying false premise to bed, also, would have obviated a myriad arguments (legal, anyway) about the origins of an individual’s transgender situation.