Category Archives: Courts

Well-Established Constitutional Rights

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In a Wednesday Letter, University of Maryland School of Law Professor Robert Percival wrote in defense of Supreme Court Justice Elena Kagan’s move to politicize the Supreme Court—a move which he denies.

But what drew my attention was this statement regarding Roe v Wade and his concept of constitutional rights:

Justice White opposed creating new constitutional rights, but he didn’t think the court should take back rights once they were well-established.

What Percival has chosen to ignore here is the distinction between “well-established” and “long extant.”

The decision of Roe lasted a long time, but the equally long fight against abortion at various stages of pregnancy, in parallel with the equally long fight to reverse Roe, demonstrates that the “constitutional right” was not at all well established.

A Tacit Admission?

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Attorney General Merrick Garland (D) has filed his appeal (to the 11th Circuit) of the Federal district judge’s order blocking the DoJ from using certain documents seized in the DoJ’s Mar-a-Lago raid in its criminal investigation. That order parallels the judge’s appointment of a Special Master to oversee and sort through all of the seized documents. Garland’s appeal reads, in pertinent part,

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process[.]

[R]estricting the government’s review and use of records bearing classification markings.

Garland no longer is willy-nilly calling the documents classified. Might this be his tacit admission that the documents aren’t actually classified?

Why does Garland not want them “disclosed” to the Special Master? The judge’s order here was for more than mere disclosure, too; she ordered the documents delivered to the Special Master for the explicit purpose of the Master’s assessment of whether they are classified. Why is Garland so terrified of an independent review, instead of his “trust me” position?

A tacit switch: the judge ordered the documents turned over to the Master, but Garland’s appeal refers only to disclosing the docs to the Master. Is Garland planning on continuing to refuse to turn them over if the Circuit court rejects his appeal of disclosure?

Special Master

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The Federal judge, Aileen Cannon—an actual Article III judge, not the magistrate judge who issued the suspect search warrant—overseeing the outcome of the FBI’s raid on Mar-a-Lago has granted the Trump team’s request that Special Master be appointed to sort through the seized documents and determine which should be returned to former President Donald Trump’s possession, and which can be retained by the DoJ.

I have questions.

What deadline was set for DoJ to deliver all of the documents (subject to DoJ’s inevitable appeals, which will only further the slowdown in DoJ’s “investigation,” a slowdown that DoJ claimed would result just from the Special Master’s appointment) following the appointment?

What sanction will be applied when DoJ misses that deadline?

What proof is being required of DoJ that all of the documents its FBI confiscated have been turned over to the Special Master?

What proof is being required of DoJ that it has retained no copies at all of the documents it confiscated?

Cannon also ordered DoJ to stop reviewing and using the seized documents as part of its criminal investigation until the special master can complete a review. What proof is being required of DoJ that it has stopped reviewing and using? Will the documents have to be (provably) held by a third party pending completion of the Special Master’s review?

It also would be illuminating to force DoJ to release its own “filter team” sorting outcome so the rest of us could compare that outcome with the actually unbiased Special Master’s outcome.

More Government Overreach

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This time by President Joe Biden’s (D) Attorney General, Merrick Garland (D). Garland has decided to sue Idaho over that State’s abortion law because, Garland claims, that law might put doctors at hospitals that accept Medicare, and those hospitals, at risk of Federal law violation if they follow Idaho’s law.

That Federal law

requires hospitals accepting Medicare to provide emergency treatments, which can sometimes include abortion.

Idaho’s law, on the other hand,

has exceptions allowing doctors to perform abortions to save the life of a pregnant woman or in cases of rape or incest that have been reported to law enforcement.

That satisfies the Fed’s Medicare law, and the administration’s suit demonstrates the overreach—and demonstrates the Biden administration’s utter disregard for the Supreme Court.

Supreme Court Leaks

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The Wall Street Journal excerpted an article by Joan Biskupic for CNN regarding Supreme Court discussions among the Justices [emphasis added].

Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.

Wow. Not only was a Supreme Court draft opinion leaked to the press, the Court’s private discussions about that opinion are leaked to the public.

Two things: one is that the Court has a serious problem with confidentiality, and the only way to fix it may be a complete removal and replacement of all of the Justices’ current clerks and of all of the Court’s current administrative personal. Even though the clerks are replaced annually as a matter of course, it’s clear that this crop needs to go now.

The other thing is that it’s instructive about press integrity that the press makes nearly as big a deal about the leak of the draft as it did about the draft, but it accepts this leak with utter equanimity.