Category Archives: Courts

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.

In Which the Court Got It Right

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…and the 9th Circuit Court messed it up again. This case (Ritesh Tandon, et al. v. Gavin Newsom, Governor of California, et al.) involves California Governor Gavin Newsom’s (D) restrictions on church gatherings against his more permissive approval of bar, salon, etc gatherings [emphasis added].

This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise.  See Harvest Rock Church v. Newsom, 592 U. S. ___ (2020); South Bay, 592 U. S. ___; Gish v. Newsom, 592 U. S. ___ (2021); Gateway City, 592 U. S. ___. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further “interests of the highest order” by means “narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye,Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quotation marks omitted). That standard “is not watered down”; it “really means what it says.” Ibid. (quotation altered).

Hear, hear.

The Tandon group will be able to hold their religious gatherings unfettered by Newsom or his government while the basic case wends its way on through the 9th Circuit. And likely through the Supreme Court for final adjudication.

The ruling can be seen here.

Slander

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Our slander laws are convoluted, and as part of that convolution, they put certain Americans—celebrities and politicians, for instance—out of effective reach of their protection, and they put other Americans—journalists, for instance, functionally immune to their restrictions. Glenn Harlan Reynolds, a University of Tennessee law professor, in his Thursday Wall Street Journal op-ed, wants to niggle around their edges to improve them.

No. It’s time, to coin a phrase, to go big. Libel law, in fact, is simple enough to simplify: if someone lies about or otherwise slanders another, the liar/slanderer is liable. If someone mistakenly mischaracterizes another and doesn’t correct the mischaracterization when advised of the error, mischaracterizer is liable, if to a lesser degree.

That’s pretty simple and straightforward. The only grey area—and this is where juries earn their pay—is in that area between lie and mistaken mischaracterization.

That straightforward correction of slander laws can be made simpler, yet. The new law should apply to the press—it’s really not that hard for a pressman to tell the truth, except, apparently, in the minds of those of the journalist guild—and it should apply equally to the politician or celebrity who’s the victim.

But, but—according to Reynolds, New York Times Co v Sullivan, the Supreme Court ruling that created the imbalances involving the press and celebrities and politicians,

grew out of a concerted effort by Southern states to use libel lawsuits as a weapon in a sort of asymmetric warfare. Civil-rights organizers had powerful support from national media organizations, but local judges and juries were sympathetic to segregation.

No, it didn’t. Those judges’ rulings and their influences on juries via judicial instructions to those juries had nothing to do with slander, per se, and everything to do with those judges acting in accordance with their personal agendas rather than in accordance with the text of the laws before them.

Sullivan needs to be reversed.