Category Archives: Courts

A Thought on Brann’s Decision

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Recall that Federal District Judge Matthew Brann dismissed the Trump campaign lawsuit that sought to reject hundreds of thousands of votes in Progressive-Democratic-run Pennsylvania counties because, the suit alleged, changes to State voting rules violated our Constitution’s equal protection requirement.

Brann ruled in part that he

has no authority to take away the right to vote of even a single person, let alone millions of citizens.

What Brann chose not to consider is that he also has no authority to see the vote of even a single person, let alone millions of citizens (more accurately, hundreds of thousands; “millions” is his cynical exaggeration), be diluted to the point of meaninglessness by illegally cast or illegally counted ballots.

The Third Circuit has agreed to hear, promptly, the campaign’s appeal. Hopefully, the appellate court will consider both sides of the matter rather than just the convenient side.

Some Editors Don’t Get It

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The Wall Street Journal‘s Editorial Board, in its Friday edition, ran a piece strongly decrying the Left’s and their Progressive-Democratic Party’s shrill attacks on Justice Sam Alito for his effrontery in decrying their attacks on freedom of speech and freedom of religion. In those personages’ eyes, Alito behaved despicably in two ways: defending those two freedoms, and any others, is far too political a thing for any mere Justice to do. And he did it in front of that dastardly bastion of individual liberty, the Federalist Society.

Then the editors deprecated their otherwise excellent piece with this, near the end of their editorial:

The American judiciary, in its best tradition, balances majoritarian demands with the constitutional rights of weaker and less politically powerful groups, whether they are socialist or conservative.

This is a very large misunderstanding. The American judiciary, in its best tradition—if only rarely honored—doesn’t balance anything. It acts on the text of the Constitution and the statute(s) before it in a case.

Any balancing is a political action legitimately carried out only by the political branches of our American government, the members of which are elected—and replaced—by our nation’s sovereign political aggregation, We the People.

Misunderstanding the Court’s Role

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Here, the misunderstanding is of the role our court system, including our Supreme Court, plays in our elections.

Recall that President Donald Trump’s campaign lawyers have filed a number of lawsuits challenging various States’ vote counting procedures. In particular, the lawyers have filed, in Federal court, alleging that

some of the state’s [Pennsylvania’s] actions, and particularly the exclusion of Republican poll-watchers during the counting of hundreds of thousands of mail-in ballots, violated federal constitutional requirements.

The complaint can be read here. (Aside: this is a separate complaint from one also filed that Pennsylvania’s Executive Branch officials altered the State’s vote handling procedures in violation of our Constitution’s Article I, Section 4, and, from that, in violation of established Pennsylvania election law (including an explicit decision last summer by Pennsylvania’s legislature to make no changes to the State’s election law).)

American Thinker‘s James DeLong, at the link, provided a sound analysis of the legal strategy underlying the lawyers’ move. But DeLong went off the rails at the end of his piece.

Everyone in the legal world assumes that the justices, bruised by the excoriation the Court has received over Bush v Gore (even though the result was right), would never put itself in the position of reversing the apparent results of a presidential election.  This assumption is the reason for the Democrats’ efforts to create an irresistible bandwagon effect, but the president’s lawyers may have out-maneuvered them.  The justices may have no choice except to decide the election, one way or the other, and to be put to the choice of reversing the media-claimed results or ratifying massive fraud.

No, the Bush Court most assuredly did not revers[e] the apparent results of the Bush-Gore election contest. That Court merely upheld the choice of the citizens of Florida, which citizens decided for themselves and joined with the decision of the aggregated citizens of the nation, who our President would be.

Similarly, our courts, including most likely our Supreme Court, will not be deciding the current election with their rulings on the Pennsylvania case or any other cases that come before them.

On the contrary, our courts—including our Supreme Court—will only be upholding and enforcing the decision of us American citizens.

A Misapprehension

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John Yoo, Senate Majority Leader Mitch McConnell (R, KY), and others, are suggesting that, given the apparent irregularities (because I’m being polite) in several States’ ballot acceptance and counting procedures, “the courts may decide the election.”

McConnell, et al., misunderstand the situation. The courts won’t decide anything. This election has been decided by American voters. It may take the courts to enforce our decision, though.

There would seem to be strong cases, too, for reversing those…irregularities. Our Constitution’s Article I, Section 4 says pretty explicitly that State legislatures set the Times, Places and Manner of holding Elections… and that Congress may at any time by Law make or alter such Regulations. There’s no wiggle room there.

State non-legislative officials—elections board commissioners, Secretaries of State, governors, et al.—do not have the legal capacity to alter States’ laws, for instance, deadlines for receiving ballots, requirements regarding signature comparison and witness signatures on absentee ballots and mail-in ballots. They do not have that capacity even under the guise of emergencies like the Wuhan Virus situation.

In particular, the virus situation was in full bore by last spring, and both Congress and the States’ legislatures have had months in which to adjust election laws to account for the virus’ impact—and they universally chose to make no adjustments.

Those non-legislative officials’ adjustments are not merely illegal, they’re unconstitutional.

Full stop.

Our Courts

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Throughout this latest Supreme Court Justice nomination and confirmation process, which culminated in Monday night’s swearing-in of Judge, now Justice, Amy Comey Barrett, one of the refrains of the Left has been that the Court has gone too far right and no longer reflects “the population of the United States;” the Court and the courts are “out of touch with the preferences of today’s American population.” The Left demands that our courts “better represent the values of the American people.”

Even, the Supreme Court must act within those values and preferences alone because our Constitution itself has gone out of touch with the people.

One of the threats of the Progressive-Democrats is that they’ll stack the Court—add seats to it—to achieve that “balance.”

The Left misunderstands the role our Constitution has for American judges, and they misunderstand our Constitution’s design for our judiciary system within the Federal government which that same Constitution creates.

On the other hand, Progressive-Democrats use that misunderstanding in their cynical effort to redesign, without the will of We the People—the opening phrase of our Constitution that acknowledges that us American citizens are sovereign, not the Federal government or any part of it—our Constitution, that structure, and the role and operation of our judiciary system, intending to achieve this first by altering the purpose of our Supreme Court better to suit their ends in particular.

Contrary to the foregoing, our Constitution specifies a Federal government consisting of three coequal branches. Two of these are political: Congress and President who are elected by us citizens. These persons are elected for 2-, 4-, and 6-year terms, with elections every 2 years.

The third coequal branch—neither above nor below the political branches—is the judicial branch, whose judges and Justices are unelected and serve life terms, and who thereby deliberately are insulated from the vagaries of day to day, year on year politics—and as deliberately are independent of the political branches other than at the touchstone of (elected) Presidents nominating and the (elected) Senate confirming or withholding confirmation (with each of those answerable to us for their decisions).

From that, it should be clear that it is not the role of judges or Justices, in our system of governance, to reflect the changing values in society, even as those judges and Justices come from the society extant at the time of their nomination and confirmation. Judges’ and Justices’ role, rather, is to apply the Constitution and the relevant statutes in the cases that come before them, and no more or less than that. The courts represent the values of the people by applying the Constitution—ratified by the people and modified by us 27 times—as it is written and applying the statutes enacted by those whom we elect every 2 or 4 (for Presidents) years to represent us as those statutes are written.

It also should be clear from this that the deliberate separation of judicial behavior from political behavior requires judges and Justices to be originalists and textualists. Any move to reinterpret the text of this or that clause of our Constitution, this or that sentence or paragraph of a statute to reflect an individual judge’s or Justice’s understanding of the people’s current values is necessarily a political move, a usurpation of the role and purpose of the political branches. It’s a deprecation of, if not an outright attack on, that separation of the three branches from each other, that separation of powers of each from others.

Amy Coney Barrett at her swearing-in made this plain:

It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people.

Nor can they attempt to reflect the preferences of the people any more than they can reflect their own. The preferences of a judge or a Justice is what the text of our Constitution and our statutes say they are. No more or less than that.

It is exclusively the role of the political branches of our Federal government to reflect the mores, the desires of society, to reflect our values for those are political in their reach and are effected in the statutes enacted.

It is the role of We the People—us citizens—to adjust our Constitution as we see fit to reflect our values. And we do that slowly because our Constitution is our plan for governing well into the future, it’s not just a document codifying what’s happening today.

This will, of course produce rulings uncomfortable for Conservatives as well as liberals, especially given the respect for precedent an originalist/textualist judge or Justice must have. Nevertheless, the first and prior precedent, the precedent that governs all else—including the foolishness of the “super-precedents” to which even Barrett succumbs—is our Constitution.

The Left, as a whole, misunderstands. The Progressive-Democrats don’t care; the misunderstanding is just a tool for accruing political power through politicizing what is, by design, an agnostic judiciary.