Category Archives: Courts

In Which the Court Got It Right

Posted on by
Reply

…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

Posted on by
Reply

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.

What’s Important in a Jury

Posted on by
Reply

The jury in the Derek Chauvin case, concerning the cop who’s accused of murdering George Floyd, is seated, and much is being made of its “diversity.”

…settled on [the first] 13 jurors, including five men and eight women in the trial against Derek Chauvin. Of those, seven identified themselves as white, four as Black, and two as multiracial.

And

The seated jurors include a chemist, an auditor, a nurse, a nonprofit executive, and a retiree. At least four of the 13 are married, and one is engaged. Two identified themselves as single parents, including one woman who said she is a widow.

And

The jury is significantly more racially and ethnically diverse than the general population in both Minnesota as a whole and in Hennepin County….

Never mind that what our legal system promises—it’s carved in stone above the entrance to our Supreme Court building—equal justice under law. Nothing about specially identified subgroups in that promise.

Never mind that our Constitution promises—requires—the equal protection of the laws for all Americans:

nor shall any State…deny to any person within its jurisdiction the equal protection of the laws

Nothing in there, either, about specially identified subgroups of Americans.

Never mind that our Constitution further promises—requires—that jurors comprise an impartial jury of the State and district wherein the crime shall have been committed. Nothing in here about specially identified subgroups of Americans.

Never mind that the only diversity actually required—or necessary—is that the jurors be US citizens. There’s nothing about skin color, business role, sex, marital status, or anything else in any of that.

The identity politics—in our courts, yet—that is being so enthusiastically touted is nothing more than the racist segregation of identity politics, dividing by design particular subsets of American citizens from each other.

As a Supreme Court Chief Justice once said, the way to end discrimination is to stop discriminating. Until that happens, neither the people nor the defendant can have any expectation of a truly fair and impartial trial, with a believable outcome.

The Pace of Court Cases

Posted on by
Reply

And the reasons for rejecting or dismissing cases.

Recall the kerfuffle over the mechanisms by which the 2020 elections, particularly for President were carried out. Recall, also, the plethora of election fraud-related cases that were brought in State and Federal courts. Recall, further, that the vast majority of those cases—all but one or two—were rejected by those same courts over standing, or “ripeness,” or other procedural and technical grounds and not on the merits of the cases. Even our Supreme Court ducked—twice—hearing cases strictly on a technical matter and not on any merit.

Now, we’re getting different court outcomes.

  • Michigan, where the State Court of Claims concluded that Democratic Secretary of State Jocelyn Benson’s instructions on signature verification for absentee ballots violated state law.
  • Wisconsin, the state Supreme Court handed down a significant ruling in December when the justices concluded that state and local election officials erred when they gave blanket permission allowing voters to declare themselves homebound and skip voter ID requirements in the 2020 elections.
  • Virginia, a judge in January approved a consent decree permanently banning the acceptance of ballots without postmarks after Election Day, concluding that instructions from the Virginia Department of Elections to the contrary in 2020 had violated state law.

This sort of delay—three to five months—isn’t actually all that unusual; litigation often takes considerable time, especially on matters where data collection, witness identification and testimony, evidence collection generally are the occupants of that time.

However.

An election, particularly a national election, has functional deadlines for certification and Electoral College voting, counting, and certification that are very much nearby on the calendar. Such deadlines require much more timely handling of litigation related to the election at hand.

Elections, too, have the evidence ready to hand—an Arizona county’s stalling efforts not withstanding. Witnesses are known and ready to testify, the data are clear and present in the form of post office mailing records, election officials’ collected paper and electronic ballots, computerized voting machine data. All of these have only to be collected and audited, witnesses deposed. That needn’t take three to five months to get started, and the cases in court needn’t take three to five months to adjudicate and get to verdicts.

We need legislation—the States need legislation, not the Federal government—that pushes the pace of election-related litigation. Procedural rules regarding this sort of litigation need to be adjusted to provide a preference for hearing the cases and for reducing opportunities for stalling delay by either the plaintiffs or the defendants.

We do, also, need a modicum of legislation at the Federal level—to adjust procedural rules to provide a preference for hearing election-related cases rather than (apparently) being spring-loaded to reject on this or that technical ground.

Such Federal legislation would violate our Constitution’s separation of powers? If the Federal courts, including the Supremes, want to get sticky about that, here’s what our Article III, Section 1 Constitution actually has to say on this matter:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III, Section 2 provides a more targeted alternative, and one that can be used to circle back to Section 1:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The several States can take similar responsive measures under their own constitutions.

Opposition

Posted on by
Reply

Republicans in the Senate put Progressive-Democrats on the record on a number of amendments to Party’s budget reconciliation move—itself a deliberate act to sideline any dissent—which Republicans offered during a Thursday afternoon through Friday morning vote-a-rama. Party’s budget reconciliation then was voted up strictly along party lines.

Here’s some of what the Senate’s Progressive-Democrats oppose. Notice that every one of these would have enhanced Americans’ national security, economy, and individual liberty had they had the support of even a single Progressive-Democrat.

  • 50-50 on a failed amendment to support the border wall
  • 50-50 on a failed amendment supporting the free exercise of religion
  • 50-50 on a failed amendment to oppose packing the Supreme Court
  • 50-50 on a failed amendment opposing stimulus checks for people in prison
  • 50-50 on a failed amendment opposing the Biden administration’s move to restrict oil and gas leasing on federal lands
  • 50-50 on a failed amendment opposing a federal carbon tax