Category Archives: Courts

Radical Reform

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Pennsylvania’s Progressive-Democrat Governor Josh Shapiro wants our judges and Justices to be bound by popular assent instead of being bound by law.

I think we need radical reform that’s actually going to ensure that the voices of the people are heard from, that the voices of the people are represented in the three branches of government. We don’t have that right now.

Shapiro wants to pack the Supreme Court to address that, and Jonathan Turley was properly worried in his piece about Shapiro’s sharp turn to the extreme left with that remark.

I add this to that concern. This is another reason we can’t trust the Progressive-Democratic Party with control of our government. It has nothing to do with patriotism or integrity. It’s that so many Party politicians simply do not understand at all our Federal government or its structure.

Only two of the three branches of our government are intended to represent “the voices of the people,” those are the two political branches, and the granularity of that representation itself varies broadly across their elected roles. The politicians in our Congress’ House of Representatives represent, first, the voices of their district’s constituents, and second the voices of the citizens of our nation, since our Congress has national responsibilities as well as to its members’ districts. The politicians in Congress’ Senate represent, first, the voices of their State’s citizens, and second the voices of the citizens of our nation. The politicians in the White House, the President and Vice President, represent the voices of the citizens of our nation.

The judges and Justices of the third branch, though, represent no citizens’ voices. They represent our Constitution and the statutes that come before them and are bound by oath apply those laws without respect to persons and by the Code of Conduct for United States Judges to do so without fear or favor in order to facilitate the necessary political independence of our Judicial Branch and the judges and Justices within it.

Party politicians demanding that the judiciary represent the voices of the people is their demand for the subordination of judges and Justices to the vagaries of politics at the expense of their binding to law.

An Ability to Hold Two Opposing Thoughts Simultaneously

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The ability to do that while continuing to function effectively is one aspect of intelligence. Two Supreme Court decisions, just released, illustrate that.

It took 91 years, but the Supreme Court on Monday abandoned the fiction of independent agencies (Trump v Slaughter). Yet in a somewhat paradoxical decision (Trump v Cook), the Court enshrined the Federal Reserve’s independence despite its exercise of vast executive powers.

It’s not all that paradoxical, just seemingly contradictory, for the Court to have reached those two decisions. In the one, the Court acknowledged what should have been an obvious truth: agencies within the Executive Branch are creatures of and exclusively respondent to the head of the Executive Branch, the President. From that, it should be—and should have been all along—obvious that employees of those branches, including politically appointed employees, serve at the pleasure of the Executive Branch head, and so they are fireable by that head. Congress’ desire to make the agencies and agency employees independent of their boss is plainly unconstitutional.

With one exception. The Federal Reserve Bank of the United States also is an Executive Branch agency, yet the Court, for good or ill, carved out an exception to the who works for whom rule and said “not yet” regarding President Donald Trump (R) firing a Fed governor without first providing notice and opportunity to respond. This ruling is, for good or ill, a temporary move intended to preserve the central bank’s political independence and leave it to deal with monetary matters without political distraction. (It’s temporary because, contrary to what overwrought pressmen, disagreeing politicians, and Court dissents say, the Supreme Court did not rule that Trump could not fire the governor. It only said not yet; the underlying case must make its way through the courts before a final ruling can be made.)

And the Court continues to function effectively.

“Extreme Emotional Disturbance”

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The lawyers defending Luigi Mangione for his (alleged) murder of UnitedHealthcare CEO Brian Thompson are planning to say that Mangione admits to his murder, and then the lawyers will argue that he can’t be held liable for his murder because he had an angst.

Guilty but insane is a viable defense in some jurisdictions, and New York, where Mangione is supposed to have committed his crime, has something of the sort. Typically, the plea results in confinement in a psychiatric facility for treatment, and on successful treatment (if that occurs), the guilty person is then transferred to a prison wherein he serves the remainder of the sentence he would have received had he been simply convicted of the crime.

That works for me.

In the event, the defense decided not to run that defense by the judge or the jury. Too bad, from my perspective. That would have gotten Mangione locked up sooner, saving the court time and the people tax money.

Naïve Foolishness

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The Wall Street Journal‘s editors did it this time. In their editorial regarding FISA, they had this:

The law lets the intelligence community gather information from foreigners overseas and store it in a database. That database can then be searched for communications on matters of national security. If Hezbollah fighters in Lebanon start texting a New Jersey phone number, the New Jersey number is worth a follow-up.
All information in the database is legally gathered, and in 2024 Congress added safeguards against abuse. All queries for American information need prior bureaucratic approval and receive regular audits.

Safeguards. Queries for Americans’ information need bureaucratic approval? How is this any sort of safeguard? Any administration’s bureaucrats can easily approve searches for bureaucrat/administration disapproved Americans. Those bureaucrats are primarily senior FBI officials. To see how well this will work, it’s only necessary to recall AG Eric Holder’s promise to be then-President Barack Obama’s (D) wingman, rather than keeping DoJ independent. Recall further, those FBI senior officials. The FBI works for the AG. The Holders of the world will be back, and folks already are disdaining acting AG Todd Blanche of being no more than President Donald Trump’s (R) man.

Then there’s the FISA court, a by-design secret Star Chamber court where only administration-approved persons get to know the proceedings. That’s bad enough, but even when the Star Chamber was confronted with falsified search warrant requests, it chose not to take any serious corrective, much less punitive, action.

The Star Chamber needs to be abolished. Article III courts are fully capable of issuing sealed warrants that become public only on their being served. That also would apply enforceable safeguards on warrant issuance—they would be issued only by those Article III courts; there would be no recourse to a secret court.

Irrelevant

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In the ongoing struggle between Progressive-Democrat-run States and the Federal government, the Attorneys General of New York, Connecticut, Maine, Massachusetts, New Jersey, Rhode Island, and Vermont have filed suit in the DC District Court in an attempt to undo an administration deal with TotalEnergies that has the latter ceasing its US-centered offshore wind projects and instead starting work on developing US oil and natural gas projects.

The Progressive-Democrat AGs’ argument centered on this:

We are fighting back to stop this illegal agreement that threatens to erase over a thousand union jobs and cheat millions of New Yorkers out of clean, affordable energy[.]

The “illegal agreement” bit is nakedly conclusory and has no merit in any guise. Stipulate the other factors are accurately presented. They are, though, purely business decisions made within a political and economic framework that is solely within the purview of the political branches—i.e., those two which are elected by We the People—and regarding which, the courts have nothing legitimate to say.

The AGs’ argument is wholly irrelevant and without merit in court. It is worthy of debate in the Congress and the White House only.

The role of judges. and of Justices who are a subset of that group and sit at the group’s top, under our form of government is to check the political branches from excess. Their means of doing so are at once powerful and limited. Judges must apply our Constitution as it is written, and must assess the constitutionality of any statute before them in a particular case. If the judges determine the statute to be constitutional, they must apply it as it is written. If they find the statute unconstitutional, they must strike it.

In particular, judges may not alter or disregard any part of our Constitution in favor of their own view of what it ought to be in order to achieve their own view of societal needs or of justice. Nor are they permitted to alter in any way the statute before them to suit those personal views of societal needs or of justice; they must strike it or apply it.

The deal between the administration and TotalEnergies is entirely legitimate from a legal standpoint, and it should be upheld in the district court, the DC Circuit, and at the Supreme Court.