Category Archives: Courts

Redrawing Districts

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The Supreme Court is hearing a case, Merrill v Milligan, that concerns whether Congressional districts will be drawn in accordance with census outcomes concerning the distribution of American citizens in a State, or whether they will (continue to) be drawn to favor race in a State.

Alabama, the State in question in Merrill, redrew its Congressional districts as a result of the 2020 census outcome and kept substantially the same districts with substantially the same population distributions as the prior district map, making tweaks at district boundaries to account for minor population moves. The plaintiffs in the case, though,

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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.”

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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[.]

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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?

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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.

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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.

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“Misquote”

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US District Judge Charles Atchley, Jr, issued a preliminary injunction barring the Federal government from enforcing President Joe Biden’s (D) Executive Order and his Department of Education’s “guidance” equating sex and gender identity that

unilaterally redefin[ed] federal law to not only prohibit male-female distinctions in school sports, restrooms, and locker rooms, but also compel employers to use employees’ preferred pronouns

The Biden administration, further, is threatening to withhold “substantial federal funding” if institutions did not comply.

In his ruling, Atchley

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A Lawless DA

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Los Angeles District Attorney George Gascon doesn’t like California’s Three Strikes law, which requires prosecutors to include in their charging documents prior felony convictions—which on conviction for the current crime can seriously extend the penalty for that crime. Pursuant to his dislike, Gascon has refused to charge those prior felonies, and he’s ordered the prosecutors in his office to refuse, also.

Subsequent to implementing that practice, Gascon was ordered by the relevant California State district court to cut that out and to charge in accordance to the Three Strikes law. He appealed and lost at the appellate level. He’s still refusing to charge under the law, and now under two court orders, and he’s appealing the whole thing to the State’s Supreme Court.

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“Technical Expertise”

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In The Wall Street Journal‘s editorial regarding the Supreme Court’s ruling in West Virginia v EPA, in which the Court ruled that the EPA had badly overstepped its bounds, the Editors pointed out that

[t]he dissenters bemoan that Congress lacks the expertise to regulate technical subjects such as climate change.

This is a cynically offered sophistry by those activist Justices. There’s nothing preventing an inexpert Congress from consulting experts. Congress does, after all, hold the occasional hearing on matters related to legislation under consideration.

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“Rights” and Precedent

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There is considerable discussion concerning whether a constitutional right to an abortion existed and was taken away by the Supreme Court’s just released ruling on Dobbs or whether, as Justice Alito emphasized in his Dobbs opinion for the Court that such a right never existed, it was merely the creation of Roe and then claimed again in Casey.

And therein lies the point of this post.

There is no right to an abortion contained in our Constitution, whether couched in the 14th Amendment or in any other part of the document—not literally, not figuratively, not encompassed in any penumbra.

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