Tag Archives: courts

Justice Thomas Demurs

Posted on by
Reply

Last week, the Supreme Court issued its ruling in Students for Fair Admissions, Inc v

President and Fellows of Harvard College, in which the Court ruled that the use of race in college admissions was unconstitutional.

This post is centered entirely on Justice Clarence Thomas’ concurring opinion, and that part of it in which he took issue with Justice Ketanji Brown Jackson’s dissent, a dissent that, IMNSHO, is steeped in racism. Thomas noted that

With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race.

Then he proceeded [external citations omitted, references to Brown’s dissent retained].

Yet, JUSTICE J ACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE J ACKSON is that the average white household has more wealth than the average black household. Post, at 11.
This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, JUSTICE J ACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long concurring odds.
Nor do JUSTICE JACKSON’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victim- hood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person. Accordingly, JUSTICE J ACKSON’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post, at 26; see also post, at 5–7. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post, at 26.

What Justice Thomas said.

The Court’s ruling, including Thomas’ concurrence and Brown’s dissent, can be read here.

Then Do a Better Job in Education and Training

Posted on by
Reply

The Supreme Court has ruled that considering race in university admissions is unconstitutional and must stop.

What interests me in this is the intrinsically racist rationalization in some of the “briefs” submitted to the Court in support of racist admissions criteria.

Leaders of American business and public institutions warned in friend-of-the-court briefs that a ruling against affirmative action would deprive the nation of leaders who reflect the population’s racial diversity.

No, affirmative action selects on the basis of race and sex and so selects on merit only tertiarily. Its elimination does not at all deprive the nation of leaders who reflect the population’s racial diversity.

If those…objectors…were serious about wanting leaders reflective of our underlying population, they’d push for better education from pre-school on up, better training—internships, apprenticeships, and the like—in high school and work places, and stronger family cohesion. This is how folks get prepared for leadership roles. Dumping folks into roles for which they’re unprepared only sets them up for failure.

And this from the Liberal claque of the Supreme Court:

Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan, and Ketanji Brown Jackson.

And it will continue to be exceedingly difficult to become so as long as Leftists and activist judges like Sotomayor and her ilk insist on keeping us divided by race.

Such persons plainly know better, hence my frequent assertion that these persons are themselves racist at core.

The Supreme Court’s ruling can be read here.

A Thought on Moore v US

Posted on by
Reply

Moore v US is a tax case that the Supreme Court has agreed to hear in its next term, beginning 2 October. The case asks whether mere asset value increases—wealth increases—can be taxed as income, just because of that increase, but before it has been realized—before the asset actually has been disposed of for more than the cost of its acquisition, with that value increase turned into actual dollars on the barrelhead.

The proximate subject concerns a provision in the 2017 tax reform that levied a one-time mandatory repatriation tax on foreign companies.

But the tax applied to American shareholders, even passive investors like Charles and Kathleen Moore of Washington state. They were hit by a surprise $14,729 tax bill, though they had never seen a dime of income from their investment in a friend’s company in rural India. They were taxed instead on the unrealized income of the foreign company.

The Moores sued for a refund—because with this IRS, of course they had to—but

the Ninth Circuit ruled that “realization of income is not a constitutional requirement.”

The Wall Street Journal‘s editors argue that

This defies the traditional understanding in US tax law, and in Supreme Court doctrine, that income must be realized before it can be taxed.

I go the editors one further. A homeowner can’t take an increase in his home value (for instance) down to the corner grocer and buy food, or even pay off credit card debt. That last, in particular, requires floating a new loan, even if in the form of refinancing the old. Neither can the Moores take any increase in their investment value on down to their auto dealership and buy an automobile: they must first convert the increase into a loan or into hard cash: they must realize that value increase.

If an increase in value is unrealized—if it hasn’t been converted to actual spendable value—it isn’t income in the first place; it doesn’t exist in any form except as wisps in the æther.

There’s nothing in the æther that’s taxable.

Reforming FISA

Posted on by
Reply

One outcome of Special Counsel John Durham’s testimony in front of the House Judiciary Committee is an apparently re-energized, at least by many in the Republican caucus and a few Progressive-Democrats, to reform The Foreign Intelligence Surveillance Act. That’s all to the good, to the extent any serious reform actually occurs.

The most important reform of this Act, though, is the complete elimination of the secret Star Chamber that is the FISA Court. Federal Judges have long known how to seal records that legitimately don’t belong in the public’s eye, at least in the moment. The court’s proceedings, though, are, and should be, public.

So it must be for any sort of FISA-related court. Relevant records can be sealed—primarily the warrants FBI agents are seeking, which process is old hat for any legitimate Article III court, as well as State courts—until the warrants are executed. But this FBI has demonstrated that it will openly lie to the FISA court and that it will fabricate evidence in order to get their warrants. That’s on the FBI. What’s on the FISA court judges is their blithe acceptance of further FBI blandishments after the FBI had been caught out in its dishonesty. That makes the FISA court complicit in the dishonesty.

That badly wants the elimination of the secret court. There is no alternative; there must be no secret courts in the United States.

Full stop.

Politely

Posted on by
Reply

DHS Secretary Alejandro Mayorkas lost his appeal from a Federal district court’s injunction blocking DHS from implementing a policy that allows for the release of migrants into the US without court dates. The Appellate Court summarized (within my own summary) Mayorkas’ plaint [italics added]:

As to irreparable injury, [DHS argued among other things]…”The most immediate consequence of the [District Court’s] orders,” according to DHS, “will likely be [the] overcrowding [of] CBP facilities during increases in border encounters,” which would threaten the “health, safety, and security” of USBP officers and aliens.

The Appellate Court wrote in part:

To start, DHS’s claims of irreparable injury ring somewhat hollow on this record, considering the department’s track record of overstating similar threats in the underlying proceedings. For instance, on January 12, 2023, DHS represented to the district court that any vacatur of the Parole+ATD policy would result in “disastrous consequences” for the management of the border starting the very next day. DHS made the same representation again on February 16, 2023. But, in truth, CBP had stopped using the Parole+ATD practices as of January 2, 2023, and DHS now admits that it was able to “manage[] its detention capacity [since January] using many other tools at its disposal.” The department’s ability to ascertain future harm is uncertain at best. Given this record, we take DHS’s latest claims of impending disaster if it is not allowed to use either of the challenged policies with some skepticism.

And

Recent data from the border casts further doubt on DHS’s irreparable-injury argument. Contrary to DHS’s catastrophic predictions, the number of daily encounters with aliens did not surge in the days following the expiration of the Title 42 order on May 11, 2023, but instead fell significantly. Compare Doc. 13-1 ¶ 11 in No. 23-cv-09962 (predicting a daily average of 12,000–14,000 encounters), with Doc. 28 at 4 in No. 23-cv-09962 (showing that the number of encounters dropped from 9,649 on May 11, 2023, to 4,193 on May 14). DHS has neither explained how that data is consistent with its representations nor provided any more recent data demonstrating a surge in illegal crossings at the border. This Court will not find irreparable harm based on mere conjecture.

This is the court calling Mayorkas—politely, mind you, and with the circumlocutions for which courts are well-known—a liar. Which he is. Now the case, State of Florida v United States of America, et al., will finish its wending through our courts with the block on blanket release without any requirement to show up in court remaining in place.

The 11th Circuit’s ruling (nearly unanimous; one judge concurred in part and dissented in part) can be read here. It’s a breathtakingly terse dismissal of Mayorkas’ dishonesty.