Category Archives: Courts

A Thought on Judges Retiring

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Article III Judges are appointed to their office for life. This is by entirely correct design and mandated in our Constitution: it’s to maximize the political independence of the judges in our court system.

Engraved above the west entrance to the Supreme Court Building is the promise Equal Justice Under Law. Not equal justice on the law, not equal justice under any particular law. Equal justice under law: equal justice under our system of laws. That’s not a binding promise, it’s an aspiration. Binding, though, is our Constitution, which aside from Order[ing] to form a more perfect Union, provides for that equal justice throughout the first 10 Amendments and makes that requirement for equality under law explicit in the 14th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All of that requires judges to be independent of politics.  We the People go further: all Article III judges must take an oath of office:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Support and defend our Constitution. Judges must bear true faith and allegiance to our Constitution, not to any political consideration or entity.

Supreme Court Justices take this additional oath:

I, AB, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.

There’s that equal justice under law bit, again, this time made binding. Again: it isn’t possible for a Justice to faithfully and impartially discharge or perform his duties if politics enter into his considerations.

Against that backdrop was a shocking degree of Leftist pressure on the late Justice Ruth Bader Ginsburg to retire while a Progressive-Democrat President was in office along with a Progressive-Democrat-controlled Senate so that a politically suitable replacement could be appointed to the Supreme Court. Now there is equally shocking Leftist pressure on Justice Stephen Breyer to retire right damn now so a sitting Progressive-Democrat President and a Progressive-Democrat-controlled Senate can appoint a politically acceptable replacement.

Politically acceptable. Not legally adept. Not judicially talented and skilled. Not qualified by extensive experience in law. Politically acceptable.

If our court systems are to maintain even a pretense of independence, if our legal system is to maintain even a pretense of determining justice in an even-handed way, rather than making politically acceptable decisions, judges at all levels must serve as long as they’re of sound mind and sound enough body, and they must retire only when they see fit rather than when it’s politically convenient to one party or another.

Sadly, Progressive-Democrats and their Leftist supporters insist on elevating their politics above justice.

I Dissent

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…from the dissenter.

The Supreme Court ruled that Arizona’s voter law is entirely legitimate. That law, you’ll remember, among other things limited who is allowed to return early voting ballots for another person—banned ballot harvesting—and barred counting ballots cast in the wrong precinct.

Among the reasons for upholding Arizona’s law is this:

The court rejected the idea that showing that a state law disproportionately affects minority voters is enough to prove a violation of the law.

Writing in dissent (it was a 6-3 majority), Justice Elena Kagan claimed in part

What is tragic is that the Court has damaged a statute [the 56-yr-old Voting Rights Act] designed to bring about “the end of discrimination in voting.” I respectfully dissent[.]

The irony in Kagan’s dissent is breathtaking in its depth. She complains of damaging the “end of discrimination in voting” even as the Arizona law treats all voters equally rather than giving special treatment to some. Reducing special treatment somehow increases discrimination.

The rejection of the concept that disproportionality is by itself, regardless of whether it’s a mere side effect, discriminatory also represents a great reduction in special treatment for particular groups—but this, too, is somehow an increase in discrimination in Kagan’s world view.

An Inappropriate Judicial Question

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The Apple-Epic trial has gone to the jury (in this case, the judge, the matter being a bench trial). This case centers on the level of commissions Apple charges app developers for marketing their apps in Apple’s App Store and whether those app developers can, under Apple’s rules, market their products/collect revenue for their products through other venues as well as the App Store—vis., in-app advertising.

In the course of the trial, the presiding judge—the “bench”—US District Judge Yvonne Gonzalez Rogers, has asked an inappropriate question.

…confronted Mr Cook [Apple CEO] with survey data that, she said, indicated that 39% of developers were either very dissatisfied or somewhat dissatisfied with Apple’s distribution services. “How is that acceptable?” she asked.

There is much to decry about Apple’s business practices, particularly with its App Store.

In particular, one would think those survey results to be unacceptable, to developers, users, even to Apple.

However.

The question is a business matter, solely among Apple, its customer/developers, and the market in general. It is not at all a judicial matter, and it is completely out of place and inappropriate for a judge to ask in a courtroom.

“Out of Balance Scales”

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Juan Williams has joined the Left’s baying at Supreme Court Justice Stephen Breyer over the latter’s rudeness in staying on the job, rather than politely retiring and getting out of their way. He began his own howl with a question that opened his recent op-ed at The Hill.

How political is today’s Supreme Court?

He continued, citing the well-known statistics journal The Washington Post:

The current 6-3 conservative majority on the court makes it “more conservative than the elected branches [House, Senate and presidency—all controlled by Democrats] to a degree not seen in 70 years.”
The out-of-balance scales of Supreme Court justice can be traced to the heavy hand of Senate Republicans.

Only a Progressive-Democrat like Juan Williams could say with a straight face that a Supreme Court that adheres to the plain, obvious, and rational meaning of the text of our Constitution and statutes is “out of balance.”

And only a Progressive-Democrat could decry his political opponents for insisting on a Court whose Justices adhere to their oaths of office and defend our Constitution rather than blithely “reinterpreting” convenient clauses according to their personal views of the day—or making it up as they go along (expecting the law to catch up) as one of Williams’ favorites, Justice Thurgood Marshall, so famously (or infamously) bragged—or insisting that Justices extend that concept to adhering to the statutes as written and then enacted by our political branches of government rather than rewriting them to suit their personal views of societal wishes.

And then the baying:

The realistic fight is to keep the current imbalance on the court from getting worse.
That begins with nudging Justice Stephen Breyer, one of the three remaining Democratic nominees on the court, to retire now.
Breyer is 82 years old. If he leaves the court now, he will be replaced by a Biden nominee….

How rude of Justice Breyer. How utterly political he is, to stay on a job for which he’s fully capable and well qualified still to do.

Definitions

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The Supreme Court has agreed to take up Dobbs v Jackson Women’s Health Organization, which is about a Mississippi law that substantially bars abortion after 15 weeks of pregnancy. The Court’s ruling, whatever they decide, however united or split they decide to be, will substantially impact their 1992 Planned Parenthood v Casey ruling that created a bar against “substantial burdens” on a putative right to abortion and their Roe v Wade ruling of 20 years earlier that manufactured out of the umbras a “right” to abortion.

The Court, though, in keeping with Chief Justice John Roberts’ timidity, is unlikely to decide the matter broadly, possibly even avoiding Constitutional matters altogether. It has taken up, from the several questions in front of the lower courts, only the narrow one of whether all pre-viability bans on elective abortions violate the Constitution.

It occurs to me that even that much hinges on the definition of “viability.”

Here’s the Merriam-Webster Online definition of viability as it pertains to babies:

the capability of a fetus to survive outside the uterus

Roe‘s creation set an implicitly technology-based threshold of the third trimester for its viability standard. There’s nothing in the definition of viability about requiring medical support—or medical intervention of any sort—for the fetus to survive outside the uterus. Medical technology has advanced considerably in the 40 years since Roe; the 15 weeks of Dobbs is within the capability of today’s medical technology.

Texas just enacted a similar ban, but that State’s threshold was set at 6 weeks. That does stretch the bounds of today’s medical technology, but maybe doesn’t exceed them. The Court’s Dobbs ruling will, of course, impact the Texas law if it goes one way. Or, the Court could uphold Dobbs, but say 6 weeks goes too far.

In any event, while the technology basis of Roe‘s threshold is strongly implied, it would be good if the Court in its ruling explicitly stated that the threshold depends on medical technology and can be moved toward conception as medicine increases its ability to sustain fetuses and bring them to term outside the uterus.