Category Archives: Courts

A Thought on a Judicial Shutdown

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Somewhat moot, with a bill to reopen the government having been passed and signed into law Wednesday night, but the subject is useful in its own right.  During the shutdown, the courts were at a real risk of running out of funds and having to shut down.

Fed up with the shutdown and sequester budget cuts, judges are mounting a “work-in.”

More than two dozen federal courts have avoided furloughs by designating all of their staff essential….

Those two dozen include the Appellate Court of the 2nd Circuit.

As the WSJ‘s Law Blog asks, what are the ethics of this?  Legally, a judge who participates in this decision or its development must recuse himself from related cases—for instance, should a recalled furloughee, or a declared essential staff member, object and sue.

But what if all the Federal courts designated their entire staffs essential?  After all, the work of the courts must go on, and they’re at minimum staffing in the best of times.  To whom could that “work-in” staffer appeal for redress, should he feel the need for redress?

Even more important, it seems to me, though, are the ethics of allowing the courts to be shut down against the backdrop of the other two branches of the Federal government—of which the Judicial Branch is most definitely the equal—remaining fully open for business, if on slightly reduced staffing.

Moreover, if the Executive Branch is going to continue one of its central duties—enforcing the law—a fully functioning judiciary is an absolute necessity to adjudicate those enforcement actions.  The obligation to enforce and the enforcee’s right to a speedy trial are not subject to shutdown.

Affirmative Action, Again

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Michigan’s Proposition 2 is in front of the Supreme Court, with oral arguments having occurred last Tuesday.  Prop 2 is an amendment to Michigan’s constitution which the citizens of that state very solidly approved ‘way back in 2006, with 58% voting for it.  The amendment banned racial discrimination affirmative action in public education and in state employment and contracting.

Why is this even a question for the Supremes?  Because the 6th Circuit Court struck down the people’s voice on the odd pseudo-logic that banning racial preference was somehow harmful to minorities.  It would, as The Wall Street Journal put it, “bar a black student from seeking preferential admission to the University of Michigan while allowing applicants with alumni connections or other attributes to try to gain an edge.”

The 6th‘s argument is curious especially because the Michigan citizens’ amendment doesn’t discriminate on the basis of race; it bans exactly that.  Minorities can, for instance, go on about seeking special preferences based on family—just as anyone can at nearly any college or university in the country.  Minorities can go on about seeking special preferences for funding for sickle-cell anemia, which particularly afflicts blacks (oh, wait, there’s that disparate impact thing) or on and on.  No one can seek special preferences on the basis of race, though.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary attorney, George B Washington, says with no trace of irony,

We don’t believe in the colorblind Constitution.  We’re making what we think is a straightforward defense of the rights of black and Latino young people” to seek admissions preferences from university officials….

It doesn’t get any starker than this: eliminating discrimination on the basis of race is to discriminate on the basis of race because discrimination on the basis of race is a race right.

What should be a slam dunk in the Supreme Court, though, isn’t.  Justice Ruth Bader Ginsburg said the 14th Amendment had been applied to protect politically weak “minorities against hostile, disadvantageous legislation” imposed by the majority.  True enough: the 14th demands “equal protection of the laws” for all, regardless of race (or any other non-meritorious characteristic).  By banning racial preferences, the citizens of Michigan did exactly than, and so those good citizens protected Michigan’s politically weak “minorities against hostile, disadvantageous legislation.”  Ginsburg chooses not to see that, however.

Additionally, Justice Sonia Sotomayor had this:

It’s always wonderful for minorities that they finally get in, they finally have children, and now you’re going to do away [with] that preference for them.  It seems that the game post keeps changing every few years for minorities.

No.  The problem is the constant insistence on racial preference—on judgment not by the content of a man’s character, but by the color of his skin.  The so far denied change is to eliminate that pernicious discrimination.

Finally, many have argued that Prop 2 actually has hurt minorities: their enrollment in Michigan’s colleges and universities, has fallen since the amendment was adopted.  A look at actual facts presents a different picture, though.  The graph below, from the University of Michigan and The Wall Street Journal, illustrates.

Plainly, there has been no effect at all on one minority group (which has been carefully ignored throughout the pro-affirmative action types—no discrimination here, though).  Americans of Asian descent has been constant since 2000, six years before passage of the amendment.

Black enrollment has fallen off.  But that downward trend was well established long before passage; their enrollment has been dropping steadily since 2001.  Since passage, the drop-off has continued, unchanged.

Hispanic enrollment paints a somewhat different picture.  This group’s enrollment has been flat since passage, halting a slight downward trend from a 2002 peak.

At worst, the citizens’ amendment has had no effect on minority enrollment.

Again, I ask: why is this even a question for the Supremes?  Except that it’s necessary in order to reverse a racially ignorant ruling by the 6th.

School Choice

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The Arizona State Court of Appeals (a level junior only to the State’s Supreme Court), Division One, ruled on a suit against that state’s creation of an education savings account (officially, Empowerment Scholarship Account) for grades K-12.  The Arizona ESA is designed to provide state funds to help parents send their children to schools of the parents’ choice (and away from failing schools), which might have included church schools.  The state had been sued on that last basis—the potential for state funds to be used in a religious environment.

The Appeals Court, politely, waved the BS flag at the suit:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion.  Any aid to religious schools would be a result of the genuine and independent private choices of the parents.  The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.  Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.

The ESA is neutral in all respects toward religion and directs aid to a broad class of individuals defined without reference to religion.  The ESA is a system of private choice that does not have the effect of advancing religion.  Where ESA funds are spent depends solely upon how parents choose to educate their children.  Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.  They may also use the funds for educational therapies, tutoring services, online learning programs and other curricula, or even at a postsecondary institution.  We therefore concur with the trial court that the ESA does not violate the Religion Clause.

Attorney General Eric Holder might want to keep this in mind as he sues Louisiana over that State’s use of state funds to subsidize parent choice.  The Louisiana case isn’t about separate of church and state, but it is, as was the Arizona case, very much about parents’ choice of schools for their children.

“Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.”  They can’t do that much when their children are trapped in failed schools.  Holder needs to get out of the way; the only serious outcome of his winning his suit is to keep Louisiana’s children trapped in that state’s failed public schools and so trapped in poverty.

Failed education is the first, and most important, link in the cycle of poverty.  By functionally denying children an education, Holder will be making it extremely likely that his victims grow up into either of two adult cycles of poverty: poverty and crime, or poverty and government dependence.

 

h/t AEIdeas

A State Supreme Court

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…gets it right.

A Mississippi judge had held up the state’s recently passed firearm open carry law, insisting that it was unconstitutionally vague.  The law, in a burst of logic unusual for politicians [/snark], says in essence that “adults don’t need a permit to carry a gun that’s not concealed.”  The Mississippi Supreme Court overruled the state judge—by unanimous opinion—and allowed the law to take effect.  Justice Randy Pierce, writing for the Court, had this in part:

This court now finds that the circuit judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional.  He also erred when he stated that a “reasonable person reading the bill could not discern what the law allows and what it prohibits[.]”

Indeed, that judge seems to have simply rubber-stamped the artificial and disingenuous argument that

it has caused confusion about where people may carry guns that aren’t concealed.  They also say it could put law enforcement officers in danger if people with no training are carrying guns.

This, of course, cynically conflates two separate arguments.  The first is deliberately obtuse.  There is no confusion: existing Mississippi laws clearly describe locations where guns are proscribed.  Not requiring a permit to carry a gun openly in no way permits carrying a gun where it’s banned.

The second argument is relevant to the open carry matter only to the extent that the cop who’s “in danger” knows it because the gun is in plain sight.  It’s the cop who’s dealing with a man with a concealed weapon who’s in danger—no matter the training of that man.

As an aside, the state circuit judge seems, himself, to have been willfully obtuse.  That’s dangerous to the rule of law, allowing a judge to overlay his whim on a law.  It’s good that wiser heads prevailed, this time.

A Victory for Labor

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…if not necessarily for organized labor or, more particularly, for organized labor leaders.

Michigan’s right-to-work law applies to 35,000 state employees, a divided state appeals court ruled Thursday in the first major legal decision on the much-debated measure eight months after it passed.

Judges voted 2-1 to reject a lawsuit filed by unionized workers who make up more than two-thirds of all state employees.

In ruling that unions cannot force workers to pay union dues, when they’re not union members as a condition of employment, the majority ruled, in part:

In light of the First Amendment rights at stake, the Michigan Legislature has made the policy decision to settle the matter by giving all employees the right to choose…[and to] remove politics from public employment and to end all inquiry or debate about how public sector union fees are spent.

It’s in fits and starts, but individual liberty is beginning to survive.