The Washington Post ran a panic-mongering op-ed about the Supreme Court last week.
Last month, the new conservative majority—being driven by Justices Neil M Gorsuch and Brett M Kavanaugh—signaled that this change is coming. In overruling a 40-year-old precedent governing how state governments can be sued, the new court majority, all of whom pledged reverence for precedent during their Senate confirmation hearings—sang a different song: “stare decisis is ‘not an inexorable command,’ … and is ‘at its weakest’ when interpreting the Constitution.” This was the second time in less than a year that the conservative majority has tossed aside decades-old precedent.
Wisconsin’s Progressive-Democrats failed at the polls, for all that they won the Governor’s and Attorney General’s chairs in 2018, so they tried to get the courts to impose their policies by judicial fiat. That failed, too, so now what? How can these Know Betters get their plans imposed on the unwashed citizenry?
It seems that the duly elected State legislature and duly elected State governor had passed a number of laws that limited the power of the Governor and the State Attorney General. The fact that these laws were enacted after those 2018 elections and before the new Governor and Attorney General took office was somehow supposed to delegitimize those laws. Or so the Progressive-Democrat Governor and AG insisted. The people were still speaking, but they should not be listened to.
Justice Clarence Thomas, on the matter of judicial precedent, as quoted by Myron Magnet in Thursday’s Wall Street Journal:
“Stare decisis is not an inexorable command,” Justice Thomas observes in [Franchise Tax Board v] Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.”
Apple v Pepper is an antitrust case in which the plaintiffs argue that Apple’s requirement that all iPhone apps must be sold through Apple’s app store is a monopoly that Apple abuses by charging excessive commissions on app sales.
The Wall Street Journal has its editorial knickers in a twist because Justice Brett Kavanaugh, writing for the majority, rejected Apple’s plaint that the case be dismissed. The result is that the case continues in trial court. Yet the editors are upset that Kavanaugh’s ruling “gutted four decades of precedent,” as though precedent cannot be erroneous and so must be unchanging for the ages.
The Supreme Court has heard the oral arguments for Iancu v Brunetti, a case I wrote about a bit ago. Hadley Arkes’ op-ed in The Wall Street Journal shed additional light on the matter, which centers on whether Iancu’s business can trademark the name of his business, Friends U Can’t Trust, with its acronym stand-in.
Certain words are fixed in the language with the moral functions of “commending” and “condemning,” and some of them have a special edge….
John Yoo, who was a Deputy Assistant Attorney General in the Department of Justice Office of Legal Counsel, has reminded us of the authority of the AG vis-à-vis immigration judges.
He [the AG] has the power to overrule immigration judges. Immigration judges have been making mistakes….
Aside from the immigration judges’ error rate, it’s really quite clear that the AG can overrule them. Not only are immigration judges not Article III judges, they’re employees of the Department of Justice—they work for the AG. Beyond that, they’re not even judges; they’re Special Inquiry Officers.
The Supreme Court has taken up the case of Iancu v Brunetti and heard oral arguments Monday. Erik Brunetti wanted a copyright on the label for a clothing line of his that he’d named FUCT, an acronym for Friends U Can’t Trust. Iancu is Andrei Iancu, who is duel-hatted as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Wearing that second hat, Iancu and his fellow USPTO bureaucrats said they were scandalized and morally offended, and they denied Brunetti’s copyright application. The Wall Street Journal, at the link, said
For a long time—nearly a century, according to Senator Dianne Feinstein (D, CA)—the Senate had a tradition (not a rule) that Senators from the home State of a judicial nominee had to approve that nominee—send forward a “blue slip” before that nominee could be considered, or even sent to the Senate Judiciary Committee.
The administration of President Donald Trump has tended to disregard that tradition. In fact, he’s sent seven—according to Feinstein, again—appellate court nominees to the Senate over “the objection of home-state Democrats” and—the horror—gotten them confirmed, including a number to the California-based 9th Circuit.