Category Archives: Courts

Courts and (Public) Opinion

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In a letter in Thursday’s Letters section of The Wall Street Journal, Walter Smith claims to have argu[ed] several cases personally before the Supreme Court (“claims,” because unlike many Letter writers, his signature block makes no mention of his status as a lawyer, past or present), and he expressed considerable dismay over the basis of Court decisions and subsequent Court “legitimacy.”

The court’s majority has made clear that it doesn’t care about public opinion or many of the harmful consequences of its decisions.

I have to wonder how many cases Smith won before the Supreme Court, with such a breathtaking lack of understanding of the Supreme Court’s—of any American court’s—role, an understanding any first year law student gains.

The Court’s role is not to wave to and fro with the winds of public opinion, but to rule on what the Constitution and the statute(s) before the Court say.

Full stop.

That’s why judges and Justices have lifetime appointments—deliberately to insulate them from public opinion, and from politics altogether.

But Smith wasn’t done.

As Abraham Lincoln said: “Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed.”

Indeed. But that was Politician Lincoln, not Judge Lincoln. If Smith doesn’t like the Court’s rulings, his beef is with the political branches of our republican government, the men and women of which wrote the laws the Court must apply.

I suggest he begin his remedial training on the American legal system by writing our Constitution’s Article I, Section 1, 100 times on his blackboard.

In Which a Judge Gets It Right

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The Wisconsin Election Commission had issued guidance that voters who cast primary election ballots and who had voted for candidates subsequently dropped from the election campaign, but too late for them to be removed from the ballots, could “spoil” their ballots, get a replacement ballot, and vote again.

This guidance is illegal: under Wisconsin law, a voter can do that only before he’s cast his ballot—casting it is final and irrevocable. A Wisconsin judge recognized that, and said, “No.”

It may be useful for a voter, having cast his ballot, to be able to “spoil” that ballot and vote again—after all, corporations, with their mailed-out shareholder ballots know how to handle that as a matter of routine. However, Wisconsin law does not allow for that.

Further, Article I, Section 4, of our Constitution makes crystalline who is allowed to change a State’s election law. It’s a short list, consisting of one entity, and that list does not include election commissions.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

Nor does that short list include judges. The judge absolutely was correct to overrule the WEC, which was violating the law. The judge applied Wisconsin’s law as it exists rather than rewriting it and applying the rewrite.

Redrawing Districts

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The Supreme Court is hearing a case, Merrill v Milligan, that concerns whether Congressional districts will be drawn in accordance with census outcomes concerning the distribution of American citizens in a State, or whether they will (continue to) be drawn to favor race in a State.

Alabama, the State in question in Merrill, redrew its Congressional districts as a result of the 2020 census outcome and kept substantially the same districts with substantially the same population distributions as the prior district map, making tweaks at district boundaries to account for minor population moves. The plaintiffs in the case, though,

argue the map should be redrawn so that Alabama has two majority-Black districts instead of just one….

Alabama, on the other hand, is arguing

that should the lawsuit prevail, the state will be forced into an unconstitutional practice of prioritizing race in creating election rules….

Alabama also would be forced to violate Section 2 of the Voting Rights Act, which explicitly bars (re)districting on the basis of race. There is only one legitimately correct outcome to this case, and it favors Alabama. Supreme Court Justice Clarence Thomas has the right of it, having written in other venues that Section 2 of the VRA, the center of the present case, has

involved the federal courts, and indeed the Nation, in the enterprise of systematically dividing the country into electoral districts along racial lines—an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of political apartheid.

Absolutely. Under law, all American citizens are equal. All American voters are the same: we’re Americans. There are no white Americans and black Americans and Hispanic Americans and Asian Americans—under law there are only American Americans.

Requiring us to be set apart by race in our interactions with our government is nothing but racism written into our laws. And that’s contrary to our Constitution, which is supreme over Congressional statutes like the VRA and its Section 2. Here’s the relevant clause of our 1st Amendment:

Congress shall make no law respecting…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Voting is at the core of assembly, and it’s at the center of redressing our grievances with Government: it’s where we come together to fire those Government persons with whom we are most dissatisfied and to hire replacements for them.

It’s time for the Court to rule, decisively, in favor of drawing Congressional district boundaries according to the distribution of American voters, and to stop drawing them to favor one group of Americans while disfavoring other groups of Americans.

Well-Established Constitutional Rights

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In a Wednesday Letter, University of Maryland School of Law Professor Robert Percival wrote in defense of Supreme Court Justice Elena Kagan’s move to politicize the Supreme Court—a move which he denies.

But what drew my attention was this statement regarding Roe v Wade and his concept of constitutional rights:

Justice White opposed creating new constitutional rights, but he didn’t think the court should take back rights once they were well-established.

What Percival has chosen to ignore here is the distinction between “well-established” and “long extant.”

The decision of Roe lasted a long time, but the equally long fight against abortion at various stages of pregnancy, in parallel with the equally long fight to reverse Roe, demonstrates that the “constitutional right” was not at all well established.

A Tacit Admission?

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Attorney General Merrick Garland (D) has filed his appeal (to the 11th Circuit) of the Federal district judge’s order blocking the DoJ from using certain documents seized in the DoJ’s Mar-a-Lago raid in its criminal investigation. That order parallels the judge’s appointment of a Special Master to oversee and sort through all of the seized documents. Garland’s appeal reads, in pertinent part,

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process[.]

[R]estricting the government’s review and use of records bearing classification markings.

Garland no longer is willy-nilly calling the documents classified. Might this be his tacit admission that the documents aren’t actually classified?

Why does Garland not want them “disclosed” to the Special Master? The judge’s order here was for more than mere disclosure, too; she ordered the documents delivered to the Special Master for the explicit purpose of the Master’s assessment of whether they are classified. Why is Garland so terrified of an independent review, instead of his “trust me” position?

A tacit switch: the judge ordered the documents turned over to the Master, but Garland’s appeal refers only to disclosing the docs to the Master. Is Garland planning on continuing to refuse to turn them over if the Circuit court rejects his appeal of disclosure?