Category Archives: Courts

An Expansionist Germany

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Not military expansion, but a more insidious one: legal expansion.

The German government must come up with a new law regulating its secret services, after the country’s highest court [Federal Constitutional Court] ruled that the current practice of monitoring telecommunications of foreign citizens at will violates constitutionally-enshrined press freedoms and the privacy of communications.

And:

The key legal question was whether foreign nationals in other countries were covered by Germany’s constitution….

Why, yes, yes they are. Because German sovereignty reaches deep inside other nations’ borders, other nations’ legal and political jurisdictions, overrides those nations’ own sovereignty. Germany’s laws not only apply outside German borders, they apply inside other nations’ borders.

The Court’s judges’ hearts may have been in the right place, but this sets an ugly precedent regarding the allegedly inherent superiority of German sovereignty.

Finally, Some Recognition

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…of the role of Federal laws in State activities. Recall that two New Jersey officials of then-Governor Chris Christie’s (R) administration were convicted in Federal court for

hav[ing] participated in a 2013 scheme to create traffic backups in Fort Lee, NJ, by limiting motorists’ access to the George Washington Bridge that crosses into New York—in retaliation against Fort Lee’s Democratic mayor, Mark Sokolich, for not supporting the re-election bid of Mr Christie, a Republican.

The Supreme Court, unanimously, tossed those convictions. The unanimity of the throwing out is made the more noteworthy by this money quote, by none other than Justice Elena Kagan, who wroteg for the Court:

not every corrupt act by state or local officials is a federal crime.

Think about that for a bit.

A First Amendment Case

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Oral argument on a 1st Amendment case was heard by the Supreme Court last Wednesday. The case centers on

whether or not a 1991 law that protects people from receiving unwarranted telemarketer calls is a violation of the First Amendment when applied to political organizations.

This strikes me as a no-brainer that never should have gotten out of any District court. The 1st Amendment bars the abridgment of political speech in the public square. It does not take away the right of private citizens to decide for themselves what speech they will hear from within their own, private property.

That private property is entered by telephone as surely as it is by the speaker’s physical presence, and those resident on the property have no more obligation to allow the speaker’s telephonic entry than they do the speaker’s physical entry.

Nor does the 1st Amendment create a right of a political speaker—or any other speaker, or any person in any guise—to use another person’s private property to speak, nor does it create an obligation of the property owner to allow that use.  This applies to land lines terminating in a home or private business, and it applies to a wireless telephone, or a cell phone, or any other communications device wherever its owner might happen to be at the time of the political speech effort.

The Supreme Court should so rule, and it shouldn’t take long or very many pages at all to convey the ruling.

Judicial Abuse

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The Wall Street Journal has laid out the present abuse. DC Circuit nominee Justin Walker is up for confirmation hearings this week.  Now recall how the so-called watchdog of judicial ethics, the Codes of Conduct Committee tried to get potential judges disqualified from their nominations for the apostasy of belonging to the Federalist Society. There was considerable blowback over the Committee’s draft rule that would have affected the bar: 210 appellate and district judges signed a letter to the Committee demurring from the rule.

One of those letter signers was…Justin Walker. Now the Left, including particularly Senator Sheldon Whitehouse (D, RI), who is a member of the Senate Judiciary Committee, wants to use that letter as the reason to disqualify Walker from the DC Circuit confirmation.

Note, now, that the Committee’s draft rule remains in draft; it has not been withdrawn from consideration.  At this point, the WSJ exposed a surprising naivete.

Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge [Codes of Conduct Committee Chairman Ralph] Erickson and tell him to kill this draft forthwith.

Roberts has shown himself too timid and too mindful of his image in the press to make such a call.

On the other hand, his call isn’t strictly necessary: the Codes of Conduct Committee is a committee of the Judicial Conference of the United States. The latter, in turn, is a creation of the Congress.

It would be straightforward for an honest Congress to rein in the Code of Conduct Committee, to disband it altogether, to alter the Judicial Conference, to disband that body altogether, or to otherwise reform the Judicial Conference so as to eliminate abuses like those of its subordinate committees.

On the third hand, reform is especially difficult with the present House.

Look for an especially vitriolic “hearing” by the Judiciary Committee’s Progressive-Democrat members.

Another Clue

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…into the machinations of the “liberal” wing of the Supreme Court.

The Court is going to hear oral arguments on 10 cases that the Wuhan Virus situation had previously forced the Court to postpone. The arguments will be done by teleconference. The structure of the oral arguments will be…structured…during the teleconferances.

The court is also jettisoning its unstructured process for questioning the lawyers before them. Instead of jumping in at will, the justices will speak in order by seniority, beginning with Chief Justice John Roberts, moving on to Justice Clarence Thomas—a moment that may hold some suspense, as he can go years without speaking at oral argument—and so on to the newest justice, Brett Kavanaugh.

Here’s the kicker from that more formalized structure:

The format could pose challenges for Justice Elena Kagan and other junior members who sometimes seek to shape the debate by posing questions early.

Shape the debate.  Because Kagan and her fellows aren’t interested in dispassionately hearing argument on the case before them and then, with equal dispassion, ruling on the matter before them. No, they’re at war with one or the other side and must shape the battlefield in order to achieve their…victory.

What a shameful thing for a Justice, who’s supposed to be objective and unbiased—sworn, in fact, to faithfully and impartially discharge and perform all the duties incumbent—to do.