Category Archives: Courts

Activist Judges

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There are three of them on the 4th Circuit, those who unanimously ruled that construction on the Mountain Valley Pipeline must stop pending those judges’ personal review of the Interior Department’s record of decision for permitting pipeline construction in the national forest.

These judges don’t care that the 4th Circuit has no jurisdiction over the pipeline or cases related to it. The recently concluded debt ceiling law explicitly stripped the 4th Circuit of jurisdiction, limited questions about the pipeline to constitutional questions, and placed those questions solely within the jurisdiction of the DC Circuit.

The Wall Street Journal‘s editors concluded their editorial with this:

Three willful judges have improperly usurped the power of Congress and the executive branch. Judges who refuse to honor proper orders from the political branches are begging to have the political branches ignore their rulings.

These three judges also have violated their oaths of office and have thereby rendered themselves vulnerable to impeachment and removal from the bench.

A Step in the Right Direction

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The 6th Circuit overruled a Tennessee federal district court’s injunction, lifting it, and allowing a Tennessee law barring gender-related child abuse “gender-affirming” “care” for minors to go into effect. Per the AP, the appellate court ruled

[i]n a 2-1 ruling, the majority opinion stated that decisions on issues such as transgender care, which is considered an emerging policy issue, is better left to legislatures rather than judges[.]

This is a good start, and a strong step in the right direction. It’s also important to keep in mind the fact that the matter is still in the courts: the appellate court lifted an injunction; it did not uphold the law itself.

Decisions on issues such as transgender care, though, are even better left—are best left—in the hands of the parents. Government—at any level of governmental hierarchy—has no legitimate business inserting itself into a family’s internal affairs beyond protecting family members from abuse. Which “treatments” to alter a child’s gender away from his or her biological gender most assuredly is.

“Activist Judicial Opinion”

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“Legal analysts” don’t like the preliminary injunction issued by a Federal district court judge that bars much of the Federal government and many of the individuals in it from telling, or even merely attempting to pressure, social media entities what those entities must permit and must bar from their Web sites.

Legal analysts on both CNN and MSNBC attacked a federal judge who found that the White House likely violated the First Amendment by claiming that his decision was an “activist judicial opinion” that “goes too far.”

CNN legal analyst Ellie Honig:

Yes, it’s a dramatic decision by this judge, if you read through it. He’s citing to literature and George Washington, and Ben Franklin. Here’s what really is astonishing to me. This is a conservative ideology that clearly comes through in this decision. … But the ruling itself is the opposite of judicial conservativism. This is one of the most aggressive, far-reaching rulings you’ll ever see.

Because upholding our individual free speech rights, adhering to the supreme Law of the Land, isn’t at all judicial conservatism.

And on MSNBC, Tulane University Professor Walter Isaacson:

I think Judge Doughty’s decision goes too far.
I think this is a little bit of a corrective but I clearly feel that in the end the decision will be refined somewhat, because government has to have the right to have its own free speech to push back when they see things on social media they think are dangerous[.]

It would have been good had Isaacson actually read the ruling. There is nothing at all in it that bars the government from push[ing] back when they see things on social media they think are dangerous. Quite the opposite:

The Court finds…that a preliminary injunction here would not prohibit government speech.

And [emphasis mine]

A government entity has the right to speak for itself and is entitled to say what it wishes and express the views it wishes to express. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.

And the government—the men and women who populate and animate government—have a plethora of outlets of their own:

the White House, for instance, the Senate, and the House all have their own Web sites, as do each of the several Federal Departments and agencies, and every Congressman in the Congress. And many of those Congressmen hold aperiodic town halls to talk directly with their constituents—all of them should, and those meetings should occur more frequently—but that’s the Congressmen’s choice. Nothing bars any Congressman from doing any of those direct-to-constituents conversations as often as a Congressman might wish.

And that doesn’t approach the interviews and op-eds each of those men and women are free to give and to write, along with the posts on the social media they tried to, and are now barred from, controlling.

This is how far Left the press is gone, that journalists actually think judges, and Justices, come to that, who adhere to the text of our Constitution as that Constitution and their oaths of office require, are “activist” while Justices, and judges, who rule in accordance with their personal views (or the press’) of societal circumstance are somehow…normal…and acting properly.

Misguided

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A Federal judge has issued a preliminary injunction (meaning the matter must still go through the courts before anything becomes final) barring the Federal government from communicating with social-media companies with a view to influencing what those companies post or allow to be posted on their sites.

Some on the Left are objecting.

Some legal scholars have been skeptical that…courts could intervene without chilling legitimate government speech about controversial matters of public interest.

“Some legal scholars” are cynically distorting the situation. There is nothing in the judge’s ruling that bars government speech about controversial matters of public interest. The “government”—i.e., the men and women in government—remains entirely free to speak on any matters it wishes, and in any venue it wishes. The “government,” however, may not seek to tell—or even to try to influence—private enterprises what they might post or not post, or allow or not allow to be posted, on their sites.

The government has a plethora of outlets of its own: the White House, for instance, the Senate, and the House all have their own Web sites, as do each of the several Federal Departments and agencies, and every Congressman in the Congress. And many of those Congressmen hold aperiodic town halls to talk directly with their constituents—all of them should, and those meetings should occur more frequently—but that’s the Congressmen’s choice. Nothing bars any Congressman from doing any of those direct-to-constituents conversations as often as a Congressman might wish.

Furthermore, the judge noted in his injunction that

The Court finds…that a preliminary injunction here would not prohibit government speech.

And

A government entity has the right to speak for itself and is entitled to say what it wishes and express the views it wishes to express. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.

At bottom, and especially in light of that last—and the plethora of legitimate government outlets for its own speech—the answer to speech with which government disagrees is not to bar the speech (outside of deliberate and overt incitement to riot), but to answer it with their own speech.

The judge’s preliminary injunction ruling can be read here.

Justice Thomas Demurs

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Last week, the Supreme Court issued its ruling in Students for Fair Admissions, Inc v

President and Fellows of Harvard College, in which the Court ruled that the use of race in college admissions was unconstitutional.

This post is centered entirely on Justice Clarence Thomas’ concurring opinion, and that part of it in which he took issue with Justice Ketanji Brown Jackson’s dissent, a dissent that, IMNSHO, is steeped in racism. Thomas noted that

With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race.

Then he proceeded [external citations omitted, references to Brown’s dissent retained].

Yet, JUSTICE J ACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE J ACKSON is that the average white household has more wealth than the average black household. Post, at 11.
This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, JUSTICE J ACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long concurring odds.
Nor do JUSTICE JACKSON’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victim- hood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person. Accordingly, JUSTICE J ACKSON’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post, at 26; see also post, at 5–7. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post, at 26.

What Justice Thomas said.

The Court’s ruling, including Thomas’ concurrence and Brown’s dissent, can be read here.