Daily Archives: 2 September 2016

The Courts’ Role in Law

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The New York Court of Appeals, the State’s Supreme Court, has inserted itself into the political debate concerning who is a parent.  It’s entered the moral debate, too, but its ruling is a legal and political one:

New York’s highest court Tuesday upended how the state legally defines parenthood, reversing course on a 25-year-old ruling that had blocked many same-sex couples from seeking the court’s help in custody disputes.

Until now, New York only recognized as parents those with a clear adoptive or biological tie to a child, shutting out those who otherwise may have played a key role in a child’s upbringing.
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The court ruled that going forward, a partner can seek visitation and custody if it is shown “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” The court recognized that some people could even deserve custody if they came into a child’s life after the birth, but said now isn’t the time to set a rule for such situations.

The Court justified its ruling in this way:

Tuesday’s decision by the New York Court of Appeals said society has changed in recent decades and that families formed by gay couples need to be protected.

And there’s this by Susan Sommer, an attorney at Lambda Legal:

Finally, New York is bringing its law in line with the reality of thousands of children who need protection for their relationships[.]

No, even if society has changed, this is a political decision that legitimately can be made only by that society—the citizens of New York, themselves or through their elected representatives.  The courts have no proper role to play in the political arena; they have only in a judicial one—which is to apply the law as it’s written (or strike it altogether if they can make the case that the law in question is unconstitutional).  The courts’ role does not include making law from the bench.

Our Dishonest Department of Justice

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The Obama Department of Justice has been caught again.  This time, it advised the Supreme Court—13 years after the DoJ’s misbehavior—that it had lied made “several significant errors” in the 2003 case Demore v Kim, a case concerning excessive detention times for aliens with criminal records who were being held without bail.  DoJ had “mistakenly” argued at the time—and convinced the Supremes with the argument—that the detention periods involved were four months or less and so not excessive.  From this, the Supremes upheld a blanket policy of bail denial to immigrants jailed while appealing deportation orders.

DoJ’s lately confession admits that the detention periods actually were longer than 12 months.

And this incident:

In 2012, the Justice Department told the court that it had inaccurately asserted in a 2009 case, Nken v Holder, that officials routinely “facilitate” the return to the US of deported aliens who later win their immigration appeals.

It turns out that DoJ hardly lifts a finger to speed such returns.

Unfortunately,

In both instances, more accurate information emerged through Freedom of Information Act requests filed by immigrant advocates who were skeptical of the government’s claims.

Clearly, DoJ knew these things and have been trying to hide the fact of their “mistakes.”  They knew they were lying “providing inaccurate information” at the time; they deliberately withheld accurate information from the Supreme Court.  That’s why it took FOIA requests to expose these facts.

Recall, too, the DoJ having been caught out overtly and deliberately lying in another immigration case in 2015, and that judge ordered DoJ’s lawyers to undergo ethics training.  President Barack Obama’s (D) Attorney General Loretta Lynch has refused to have her lawyers undergo that training.

Of course she has.  Lying is too deeply embedded in the culture of the DoJ.

This is a mess, spanning administrations, and it can be cleaned up only with a wholesale removal of DoJ leadership down to middle management and the discharge of the lawyers ordered to undergo ethics training and who have not yet done so.  But that won’t happen in a potential Clinton administration led by a candidate who has promised to continue and extend Obama’s policies.