Category Archives: Courts

An Inappropriate Judicial Question

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The Apple-Epic trial has gone to the jury (in this case, the judge, the matter being a bench trial). This case centers on the level of commissions Apple charges app developers for marketing their apps in Apple’s App Store and whether those app developers can, under Apple’s rules, market their products/collect revenue for their products through other venues as well as the App Store—vis., in-app advertising.

In the course of the trial, the presiding judge—the “bench”—US District Judge Yvonne Gonzalez Rogers, has asked an inappropriate question.

…confronted Mr Cook [Apple CEO] with survey data that, she said, indicated that 39% of developers were either very dissatisfied or somewhat dissatisfied with Apple’s distribution services. “How is that acceptable?” she asked.

There is much to decry about Apple’s business practices, particularly with its App Store.

In particular, one would think those survey results to be unacceptable, to developers, users, even to Apple.

However.

The question is a business matter, solely among Apple, its customer/developers, and the market in general. It is not at all a judicial matter, and it is completely out of place and inappropriate for a judge to ask in a courtroom.

“Out of Balance Scales”

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Juan Williams has joined the Left’s baying at Supreme Court Justice Stephen Breyer over the latter’s rudeness in staying on the job, rather than politely retiring and getting out of their way. He began his own howl with a question that opened his recent op-ed at The Hill.

How political is today’s Supreme Court?

He continued, citing the well-known statistics journal The Washington Post:

The current 6-3 conservative majority on the court makes it “more conservative than the elected branches [House, Senate and presidency—all controlled by Democrats] to a degree not seen in 70 years.”
The out-of-balance scales of Supreme Court justice can be traced to the heavy hand of Senate Republicans.

Only a Progressive-Democrat like Juan Williams could say with a straight face that a Supreme Court that adheres to the plain, obvious, and rational meaning of the text of our Constitution and statutes is “out of balance.”

And only a Progressive-Democrat could decry his political opponents for insisting on a Court whose Justices adhere to their oaths of office and defend our Constitution rather than blithely “reinterpreting” convenient clauses according to their personal views of the day—or making it up as they go along (expecting the law to catch up) as one of Williams’ favorites, Justice Thurgood Marshall, so famously (or infamously) bragged—or insisting that Justices extend that concept to adhering to the statutes as written and then enacted by our political branches of government rather than rewriting them to suit their personal views of societal wishes.

And then the baying:

The realistic fight is to keep the current imbalance on the court from getting worse.
That begins with nudging Justice Stephen Breyer, one of the three remaining Democratic nominees on the court, to retire now.
Breyer is 82 years old. If he leaves the court now, he will be replaced by a Biden nominee….

How rude of Justice Breyer. How utterly political he is, to stay on a job for which he’s fully capable and well qualified still to do.

Definitions

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The Supreme Court has agreed to take up Dobbs v Jackson Women’s Health Organization, which is about a Mississippi law that substantially bars abortion after 15 weeks of pregnancy. The Court’s ruling, whatever they decide, however united or split they decide to be, will substantially impact their 1992 Planned Parenthood v Casey ruling that created a bar against “substantial burdens” on a putative right to abortion and their Roe v Wade ruling of 20 years earlier that manufactured out of the umbras a “right” to abortion.

The Court, though, in keeping with Chief Justice John Roberts’ timidity, is unlikely to decide the matter broadly, possibly even avoiding Constitutional matters altogether. It has taken up, from the several questions in front of the lower courts, only the narrow one of whether all pre-viability bans on elective abortions violate the Constitution.

It occurs to me that even that much hinges on the definition of “viability.”

Here’s the Merriam-Webster Online definition of viability as it pertains to babies:

the capability of a fetus to survive outside the uterus

Roe‘s creation set an implicitly technology-based threshold of the third trimester for its viability standard. There’s nothing in the definition of viability about requiring medical support—or medical intervention of any sort—for the fetus to survive outside the uterus. Medical technology has advanced considerably in the 40 years since Roe; the 15 weeks of Dobbs is within the capability of today’s medical technology.

Texas just enacted a similar ban, but that State’s threshold was set at 6 weeks. That does stretch the bounds of today’s medical technology, but maybe doesn’t exceed them. The Court’s Dobbs ruling will, of course, impact the Texas law if it goes one way. Or, the Court could uphold Dobbs, but say 6 weeks goes too far.

In any event, while the technology basis of Roe‘s threshold is strongly implied, it would be good if the Court in its ruling explicitly stated that the threshold depends on medical technology and can be moved toward conception as medicine increases its ability to sustain fetuses and bring them to term outside the uterus.

This is Why…

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…we can’t afford any more Progressive-Democrat-appointed judges or any more judges appointed by anyone who want to argue politics rather than confine themselves to the law. Especially when the politics they argue are so blatantly biased and un-American.

The Sixth Circuit ruled, in a case in which Imelda Lopez-Soto, a Mexican citizen who came to the US illegally in 2000 at age 19, was contesting a removal order, that the immigration court had not erred, and Ms Lopez-Soto had not been denied due process. (The immigration court’s removal order was upheld.) The two Liberal judges, Martha Daughtrey and Karen Moore, ruled that

[i]n an era in which it is difficult to find any issue upon which a large percentage of Americans agree, few people would dispute that our nation’s immigration system is broken and is need of a structural overhaul. Admittedly, a not-insignificant number of Americans believe that any change to our immigration statutes should result in shutting our borders to almost all individuals, or at least to all potential immigrants who are not blond-haired and blue-eyed.

Judge Amul Thapar, a son of immigrants, had a different take, even though he agreed with the basic ruling:

I have my doubts about the wisdom of courts opining on hot-button political issues or the motives of citizens who hold one position or another in those debates. And as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes. Thus, I respectfully concur only in the judgment.

Daughtrey and Moore, with Thapar sitting right next to them, acted like he was invisible to them and they couldn’t hear him speaking.

Did the two women not see or hear him because he is a member of the male patriarchy, or did they not see or hear him because he’s an immigrant who defeated their seeming accusation of racism on the part of those not-insignificant number of Americans?

Wow.

The appellate court’s ruling can be read here.

Kancel Kulture and Racism

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Here’s a textbook example of the intersectionality of kanceling and racism.

Supreme Court Justice Stephen Breyer spoke last week against the idea of tampering with the Supreme Court’s makeup or structure.

To make those whose initial instincts may favor important structural change, or other similar institutional changes, such as forms of court packing, think long and hard before they embody those changes in law.
If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law can only diminish, diminishing the court’s power, including its power to act as a check on other branches.

Cue the Left’s kancel outrage.

MSNBC commentator Mehdi Hasan:

Where on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping?

And the intersection with the Left’s racism: Demand Justice immediately began an online petition campaign entitled “Retire, Breyer” that urged the justice to step down so an [sic] black woman could be appointed.

Demand Justice‘s naked racism—and sexism—is blatant in their petition:

We have waited long enough for a Black woman Supreme Court justice.

The crowd made it even more publicly and explicitly racist, with that large dollop of sexism intersected in.

We need to start the process of confirming a Black woman justice now. Sign the petition to tell Justice Breyer: Put the country first. Don’t risk your legacy to an uncertain political future. Retire now.

Because the primary criteria for a Supreme Court Justice is his race and sex. His knowledge and experience with American law and our Constitution, his commitment to adhere faithfully to the text of our Constitution and the laws that are brought before him…just don’t matter.