Category Archives: Courts

A Bogus Beef is Swatted

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When Congress passed and President Joe Biden (D) signed the recent debt ceiling bill, one of the items included was a requirement for construction on the Mountain Valley Pipeline to proceed to completion and for the pipeline to begin operation. In conjunction with that, the bill removed from lower courts their jurisdiction over questions  regarding the natural gas pipeline.

The Fourth Circuit, when “environmentalists” got their cases to it, blocked construction while it sorted out whether it could rule on the matter.

The Supreme Court has sorted the matter out for the Fourth Circuit, at least temporarily: the pipeline will be completed with no further delay; the Court has lifted the Circuit’s stay.

The “environmentalists'” beef was this, as paraphrased by The Wall Street Journal:

stopping legal challenges before the Fourth Circuit violated the separation of powers clause of the Constitution, in effect giving Congress the power to decide the outcome of judicial proceedings.

This would be risible, were it not so cynical. No judicial proceeding is being predetermined by Congress. What has been specified, as allowed under our Constitution, is the jurisdiction of courts below the Supreme Court; in this case, that lower courts do not have jurisdiction to hear cases involving the MVP. Nor have the courts as a whole been denied jurisdiction; such cases still can come before the Supreme Court, should that Court choose to hear them.

This Will Be Instructive

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Of course, Israel’s newly enacted judicial reform bill, limited in reform as it is, will go before Israel’s Supreme Court; an initial hearing is set for September.

Israel’s Supreme Court said Wednesday that it would hear a petition challenging the constitutionality of a judicial overhaul law enacted earlier this week, setting up a possible showdown between the court and the government.
The court, however, didn’t issue an immediate injunction, as petitioners had requested.

It will be instructive to see the Court’s ruling and how anxious those Justices are to hang onto their power—political, especially, as well as judicial.

Israel’s Judicial Reform

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Israel has taken a step toward limiting the governing power and authority of its Supreme Court. Prior to last Monday’s vote, Israel’s highest court could blithely strike down Knesset-enacted statutes based on nothing more concrete or measurable than the personal opinions of what constituted the statute’s “reasonableness” in the minds of the judges constituting the Court’s majority in any particular case. If those judges didn’t like the statute, they could cry “unreasonable,” and strike it.

This reform law will restrict

the power of the country’s top court and hand more control to lawmakers. It aims to restrict the Supreme Court’s ability to strike down government or executive decisions on the basis of reasonability…. Supporters say the reasonableness standard is too nebulous and allows the courts to overrule the will of elected officials for political purposes.

In fine, the new law requires the Supreme Court to have a far more specific and publicly measurable rationale for striking a law. Otherwise, the matter is returned to the representatives of the Israeli people, the Knesset, and to the people themselves. In particular, if the people disagree with the law, they can fire their Knesset representative(s) at the next election and replace those persons with representatives who will make the adjustments or recissions the people demand. The people have no such possibility with the Supreme Court; those worthies, once selected, are in office until age 70. The people making the ultimate decisions, rather than unaccountable office holders doing so, is the stuff of democracy, whether popular or republican.

Critics of the new law claim that it’s an attack on democracy. One citizen:

We refuse to accept this. It is clear to us all that there is no alternative. We either escalate or we leave the country.

And Yair Lapid, an opposition leader:

This is the destruction of Israeli democracy[.]

That’s democratic opposition? No, that’s opposition to democracy. It’s disappointing that the “opposition” in Israel is so opposed to the idea of the people’s representatives—and the people themselves through their democratically selected representatives—having the primary say in Israel’s laws. It’s also illustrative of the opposition’s ideology that they’re so opposed to that degree of democracy.

The kerfuffle also is illustrative of the problems stemming from not having an actual, written-down constitution to which anyone—government official (judge, member of the Knesset, Prime Minister) or private citizen—can point and say, “This is what our constitution requires,” and engage in open and transparent (to coin a phrase) debate concerning what a law or a proposed law says, rather than depending on cloistered judges’ obscure and too often limited explanations that are stripped of the reasonings and closed-chambered debates conducted as the Court arrives at its rulings.

An Opportunity to Reverse Kelo

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Kelo v City of New London was a 2005 case involving our Constitution’s 5th Amendment Takings Clause: a homeowner who didn’t want to sell her home in New London, CT, to a property developer who said he needed the property to finish out the development of shopping mall. New London agreed on the developer’s representation that his mall would produce more tax revenue for the city than the homeowner’s property tax remittances. In the resulting suit, the Supreme Court decided that government has the authority to commit such a Taking and redistribution for the public purpose of increasing government’s tax revenue.  The Court said that one man’s private purpose is superior to another’s so that other must surrender his property to the one.

What the Takings Clause actually says is

…nor shall private property be taken for public use, without just compensation.

For public use, not for public purpose, and certainly not for a private enterprise’s claimed public purpose.

Now a case is developing that should end in the Supreme Court and present the Court with an opportunity to reverse that shameful ruling.

A public school district in Texas is pursuing an eminent domain process to remove a 78-year-old man from the home that his family has owned for more than a century in order to build a high school football stadium parking lot.

The 78-yr-old homeowner’s daughter, Tara Upchurch:

I want you to understand what the significance of this place is for my father. It is where he played as a child with his grandparents, where he woke up 4 a.m. to milk cows, it’s where he spent 39 years happily married to my mom, and it’s where he raised a family, and it’s a place we never thought he would leave[.]

On the other hand,

Aldine ISD is planning to build a $50 million football field and parking lot on his property and is using eminent domain options after the Upchurch family rejected an initial offer to purchase the property last year, KPRC reported. Eminent domain allows the government to acquire private property for public use.

Aldine ISD wants it, and its desire is more important than a property owner’s…ownership. Well, then. That settles it. That’s what Kelo has wrought.

Private property ownership isn’t actually ownership: if another private entity wants it, all that one needs to do is to persuade a government or quasi-government that its desire is greater than the original owner’s ownership, and the owner must give it up.

This is the mess that Kelo caused, and this is the mess that the Supreme Court should get an opportunity to clean up, and it should clean it up.

More Coverup

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Recall that President Joe Biden has had (and still has?) classified documents squirreled away in his garage at his house in Delaware, albeit protected by the presence of his Corvette. Recall, further, that Biden has had classified documents squirreled away in a variety of unsecure locations ever since he walked away with them when he was a Senator and had no legal ability to possess them anywhere. Among those unsecure locations is the library at the University of Delaware. And now,

Delaware’s highest court has blocked a request by conservative groups seeking to access President Joe Biden’s Senate papers at a state university.
The July 6 ruling by the Delaware Supreme Court upheld a lower court decision that sided with the University of Delaware in denying a request from Judicial Watch and another group seeking access to the records, which Biden gifted to the public university in 2012.

But,

The university says Biden donated the documents on the condition they not be released until they have been “properly processed and archived.”

But, but: that was 11 years ago. Why is the University so slow in the processing and archiving? Its slowness raises other questions in my pea brain:

What classified documents are among those documents?

What information regarding Tara Reade, who accused Biden of sexual assault in 2020, is among those documents?

What else is the university hiding for Biden’s sake?