Category Archives: Courts

False Premise

Posted on by
Reply

The Biden administration had argued, in the course of its participation in a lawsuit against Tennessee’s law barring transgender-based treatments for children, that

A teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.

The Supreme Court last week issued its ruling that the Tennessee law was, in fact, perfectly fine; the ruling was 6-3, with the three activist Justices voting in dissent. Chief Justice John Roberts wrote the Court’s opinion, and Justice Amy Coney Barrett wrote a concurrence centered on answering one of the objections in the dissent. Justice Clarence Thomas wrote a separate concurrence in which he took to task all the plaintiffs’ demand that the Court knee-jerk accede to so-called experts in the Executive Branch regarding transgenderism.

However, it would have been good if the Court had addressed one more item—the Biden administration’s false premise underlying its argument.

That erroneous premise is this: that sex is assigned at birth. This is blatantly false. Sex is assigned at the moment of conception, when the male sperm, carrying either an X chromosome or a Y, joins with the egg and its X chromosome. The subsequent union, the zygote, is then deterministically a male with an XY combination or a female with an XX combination. That male or female—boy or girl—result is carried on through subsequent development all the way through fetus development and birth. The sex determination is immutably fixed at that first moment of union; it is not “assigned” later.

Had the Court put that underlying false premise to bed, also, would have obviated a myriad arguments (legal, anyway) about the origins of an individual’s transgender situation.

I’d Go One Step Further

Posted on by
Reply

In a Friday letter to the WSJ‘s Letters section, Samuel Estreicher and Rudra Reddy, of the New York University School of Law, reminded us of a suggestion for curbing Federal district judge arrogance in issuing nationwide—universal—injunctions:

Aside from raising the legal standard for issuing such injunctions, the Supreme Court should also consider procedural steps that could be taken to challenge a nationwide injunction once issued, such as an expedited appeal to the regional circuit or to the high court itself.

My one further step is this: automatically stay each universal injunction until its final review by the relevant appellate court and Supreme Court, or by the Supreme Court directly. In conjunction with this, require the appellate court or Supreme Court to take up the case within an explicitly defined number of days (not many) of the injunction having been issued, with that takeup done either by appeal or by the appellate court on its own initiative, whichever is necessary to meet the deadline. Apply the same time-constraint to the Supreme Court in the event of a direct appeal.

I’d give serious consideration, given the serious nature and wide scope of a universal injunction issued at the district level, to having the injunction’s appeal go directly to the Supreme Court. That Court is, after all, the only one with universal jurisdiction, and it’s the only Constitutionally mandated Court in the US.

And an incentive step: in the event the universal injunction is struck down, even if it’s allowed to stand as it applies solely to the litigants, the appellate/Supreme Court should overtly chastise the issuing district court judge for his overreach.

Government Funding of Speech

Posted on by
Reply

PBS has filed a lawsuit against the Trump administration over the latter’s moves to defund the service.

The system is centering its beef on two things: free speech and the potential to upend public television.

Last thing first. The risk of upending public television is wholly irrelevant. What’s relevant here is what our Constitution and the statutes cited in their suit say. What our Constitution says about PBS‘ business model or about any public business model is…nothing. There is no Constitutional right to a particular business model, and disruptions to models occur all the time, ranging from competitors to changing consumers to governments’ decisions to donate money or not.

PBS‘ crying about its business model is just cynical fear mongering.

PBS‘ free speech argument might have some force, but that one is centered on President Donald Trump’s (R) commentary regarding how little he likes PBS‘ own commentary and editorial decisions. However, Trump’s comments are irrelevant, also; what is relevant here, too, is what our Constitution and the cited statutes and Trump’s defunding EO say.

What our Constitution says about funding PBS is…nothing. There is no Constitutional obligation for our government to donate any money to it or to any public enterprise. The cited statutes create no such obligation. What Trump’s Executive Order says is this:

Government funding of news media in this environment [today’s, vs mid-last century when Corporation for Public Broadcasting was created] is not only outdated and unnecessary but corrosive to the appearance of journalistic independence.
…
No media outlet has a constitutional right to taxpayer subsidies, and the Government is entitled to determine which categories of activities to subsidize.  The CPB’s governing statute reflects principles of impartiality:  the CPB may not “contribute to or otherwise support any political party.”

And this [emphasis added]:

The CPB fails to abide by these principles to the extent it subsidizes NPR and PBS.  Which viewpoints NPR and PBS promote does not matter.  What does matter is that neither entity presents a fair, accurate, or unbiased portrayal of current events to taxpaying citizens.

In the end, whatever Government, or Trump, say about others’ speech, neither Government in general, nor the Trump administration in particular, are obligated to fund it; the only obligation is to not block it except under a few tightly circumscribed situations: lying under oath, false advertising, making threats or otherwise inciting violence, and the like. This is supported by PBS‘ own words:

After careful deliberation, PBS reached the conclusion that it was necessary to take legal action to safeguard public television’s editorial independence, and to protect the autonomy of PBS member stations[.]

What better way to safeguard public television’s independence and protect the autonomy of PBS member stations than to stop receiving corrosive government money, a point Trump made in the opening of his EO?

It Doesn’t Matter

Posted on by
Reply

The Supreme Court has said that the Trump administration can go ahead with its plans to deport 500,000 “migrants” from Cuba, Nicaragua, and Venezuela, ruling that the administration can cancel, as a preparatory step, the Temporary Protected Status the Biden administration had granted those illegal aliens. It’s only a partial victory, though, as the Court merely stayed a lower court ruling that barred the TPS cancelation while the matter works through the courts on its merits.

Two activist Justices dissented. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, centered her dissent on the premise of the

devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.

I’ll omit comment on the cynicism of the “noncitizen” characterization. Whether cancelation and potential subsequent deportation are good or bad policy, whether the removal is disruptive of the lives of those 500,000, these are political and social considerations, and so they are wholly irrelevant here. What does matter, all that is relevant, is whether the Trump administration is acting within the law. That is all that an American court can adjudicate; political and social considerations are the province of the political branches of our government and are explicitly outside the scope of our judicial branch. The judicial branch has no jurisdiction whatsoever on purely political/social matters.

All that matters to the judges, all that should matter, is what the stature before them and the relevant clauses of our Constitution say, not what judges think they should say.

Mischaracterization

Posted on by
Reply

The Vera Institutes of Justice’s Santiago Mueckay has one in his letter in the WSJ‘s Letters section.

[T]he Supreme Court has consistently affirmed that immigrants are entitled to due process under the US Constitution.

This is a cynically offered strawman argument. No one is arguing that immigrants are not entitled to our Constitution’s due process protections.

Illegal aliens, though—the ones targeted by rapid deportation efforts—hold themselves outside our social compact, outside our government’s jurisdiction, by breaking into our country in violation of our laws and then hiding from our government. From that, illegal aliens have no claim to, and no right for, any of the protections of our Constitution.

Mueckay will have to play with his dolly without me.