Category Archives: Courts

Suicide Pact

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The Thomas More Society has filed suit in Federal court against Michigan Governor Gretchen Whitmer’s (D) edict barring gatherings of more than 10 people indoors and more than 100 people outdoors.

[T]he nonprofits Election Integrity Fund and One Nation Michigan [plaintiffs in the Thomas More case] argue that Whitmer’s order functions as an abridgment of their right to free speech and assembly under the US Constitution.
Whitmer’s orders “constitute direct restrictions on [the groups’] right to engage in protected speech and assembly and therefore violate the First Amendment,” the suit argues, stating that any restrictions on constitutional rights “must be narrowly tailored to achieve a compelling government interest.”

Lower (State) courts have ruled that the Wuhan Virus situation is sufficiently important and dangerous that Government restrictions on Constitutional freedoms and rights must be overruled.

However, there is no clause in our Constitution that allows the Government to restrict individual liberties whenever it thinks something is more important than those liberties. In particular, the 1st Amendment says this in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…or the right of the people peaceably to assemble….

Hence the need for narrow tailoring of any intended restriction and the need even then—especially then—for that restriction to achieve a compelling government interest, not just one convenient to it. The Government has no interest, compelling or otherwise, in restricting these basic freedoms because of the virus, especially since it’s increasingly apparent that such restrictions cause more medical and economic harm than the virus itself.

Along these lines, Supreme Court Justices Robert Jackson (Terminiello v City of Chicago) and Arthur Goldberg (Kennedy v Mendoza-Martinez) have argued that our Constitution “is not a suicide pact.” Indeed, it is not. However, deviation from our Constitution would lead quickly to national suicide.

The Thomas More case would be a slam-dunk were it not for a collection of self-serving politicians and a similar collection of activist judges.

Not Averted

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The US Judicial Conference’s Committee on Codes of Conduct says it has decided to drop its attempt at a rule banning from consideration as judges anyone who ever was a member of The Federalist Society.

Some are touting this as a victory and “judicial mischief averted.”

Not a bit of it; nothing has been averted. The Codes of Conduct committee has just taken its attempt to politicize our courts underground.

Flynn, Mandamus, and the DC Circuit

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The DC Circuit has decided to rehear General Michael Flynn’s request for a mandamus ruling ordering the DC District Court to accept Flynn’s motion—agreed and proffered by DoJ—to drop entirely the case against Flynn. The Circuit plainly does not trust the original Circuit ruling to issue the mandamus and so to order the lower court.

The Wall Street Journal has opined on the matter. While I disagree with the DC Circuit’s decision to retry the Flynn mandamus appeal en banc, I more strongly disagree with the WSJ‘s rationale for not rehearing it.

It will stoke more public cynicism about the politicization of the judiciary. This alone ought to have persuaded the DC Circuit not to rehear its panel’s decision.

No court should hear or not hear a case, or rule in a particular direction, based on public perception of the court. Every court—if it’s to preserve the legitimacy of the court and of the judiciary as a whole—must make those hear/rule decisions based only on the merits of the case at hand.

That is the subject and purpose of the judges’ oaths of office and the subject and purpose of the Judicial Branch.

More Disingenuosity

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The Supreme Court has ruled—7-2—in favor of the Little Sisters of the Poor and other organizations. The Court upheld the Trump administration’s rule exempting these employers from an Obamacare requirement to provide insurance coverage that includes contraception.

Justice Clarence Thomas wrote for the Court:

We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.

Justice Ruth Bader Ginsburg dissented.

…this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.

Ginsburg is being disingenuous in this. Contraceptives are dirt cheap in Walmart and drug stores. It’s no great burden for “women workers” to pay for contraception “out of their own pockets.” If it’s a burden to seek “contraceptive coverage” from other sources, that’s the direct result of Obamacare driving up the cost of all coverage.

Ginsburg is being sexist in this. Condoms are nearly as cheap and even more widely available. But Ginsburg is blithely assuming that contraception is solely the responsibility of the woman.

Support for the 10th Amendment

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From an unexpected quarter. The Supreme Court has ruled against Washington State in its suit regarding faithless electors. The decision was unanimous, and the opinion held in part

Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does[.]

And

The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for president[.]

That’s a reflection of our Constitution’s 10th Amendment and an affirmation of textualism, and that’s what makes it surprising, coming as it does from the ruling’s author, Justice Elena Kagan.