Category Archives: Courts

A Misbehaving Judge

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PG&E is in a world of hurt, still, over the California fires that its shoddy power line maintenance contributed so heavily to starting.  However, the Federal district judge overseeing a related court case has overstepped his own bounds.

William Alsup, a US district judge in Northern California, ordered PG&E to respond “on a paragraph-by-paragraph basis” to the Journal article published July 10.

This is just plain wrong.  Leaving aside the fact that newspaper articles, no matter how seemingly well-documented, are not evidence of anything—they’re only allegations, and they were not brought to Alsup by any parties to that case; he went and got them all by himself.

Beyond that, the cited article didn’t even contain identifiable evidence.  “Documents obtained by The Wall Street Journal” was the paper’s primary source, and not a single citation or link was provided to any of those…documents…so even their existence could not be independently verified, much less the newspaper’s interpretation of them checked.

Alsup is not a feudal-era English judge; he doesn’t get to do his own investigation into a case before him.  Especially should he not bring newspaper articles, which don’t even remotely approach evidence, into the matter.

A Misunderstanding

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In a house editorial concerning the Supreme Court’s ruling upholding President Donald Trump’s authority to reallocate some DoD funds toward building a border wall, The Wall Street Journal expressed the hope that the ruling—which lifted a nation-wide injunction issued by a Federal district [sic] judge—would send an appropriate signal to district judges regarding nation-wide injunctions.  The editors also had this remark regarding such injunctions.

The proliferation of national injunctions has inserted judges into policy debates in ways they should avoid….

This is a misapprehension of the situation and a mischaracterization of what the judges are doing.

The proliferation has inserted no one; it is a result of judges choosing to insert themselves into policy debates.

Judges must avoid this, but they consciously have chosen to go outside their Constitutional authority and make policy—make law.  These judges have ignored the simple Constitutional fact that policy discussions and debates are solely within the purview of the political branches of our government and that legislation is solely within the purview of Congress. Article I, Section 1, of our Constitution makes this abundantly clear even to an eighth-grade Civics student.

With their carefully considered decision to act extra-Constitutionally, these judges have equally carefully decided to violate their oath of office, which enjoins them to defend and to uphold our Constitution, not to depart from it.

In Which the Court Gets One Right

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The Supreme Court ruled 7-2 that the Bladensburg Peace Cross is not an unconstitutional favoring by government of a particular religion, reversing the 4th Circuit. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

This is the privately done monument that was

built in 1925 and paid for by local families, businesses, and the American Legion to honor 49 World War I veterans from Prince George’s County [in Maryland]. But the 40-foot cross sits on a now-busy highway median owned since 1961 by a state commission that pays for its maintenance and upkeep.

The American Humanist Association, an anti-religion gadfly with many such attacks, particularly against what it considers Christian devices, had sued for the monument’s removal (these five decades and more after the commission assumed responsibility for the monument).  The appellate court had agreed with the AHA, ruling that the monument is an aggrandizement of Latin Crosses and nothing else.  That court also had displayed its contempt for the intelligence of ordinary Americans, ruling that the “display”

says to any reasonable observer that the commission either places Christianity above other faiths, views being American and Christian as one in the same, or both[.]

However, Justice Samuel Alito, writing for the Court, had the right of it [emphasis added].

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent.  For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.

It doesn’t get much clearer than that.

As an aside, Ginsburg in her dissent, which she emphasized by reading it from the bench, echoed the 4th Circuit’s contempt for us ordinary Americans:

As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content.  The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity.

Further to the aside, here is F Scott Fitzgerald’s test of genius:

The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.

The Court’s ruling, including Ginsburg’s dissent, can be read here.

“Radical-Right” and the Left

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The Washington Post ran a panic-mongering op-ed about the Supreme Court last week.

Last month, the new conservative majority—being driven by Justices Neil M Gorsuch and Brett M Kavanaugh—signaled that this change is coming. In overruling a 40-year-old precedent governing how state governments can be sued, the new court majority, all of whom pledged reverence for precedent during their Senate confirmation hearings—sang a different song: “stare decisis is ‘not an inexorable command,’ … and is ‘at its weakest’ when interpreting the Constitution.” This was the second time in less than a year that the conservative majority has tossed aside decades-old precedent.

Thus screamed the WaPo in its terror.  Never mind that reverence for precedent is not blind adherence to it, no matter how wrong the precedent.  The Brown example the paper so piously cited elsewhere in its op-ed was itself an overturning of an 80-year-old precedent, that of Plessy.  Never mind, more importantly, that as Justice Clarence Thomas has said on many occasions, the primary precedent in all of American jurisprudence is the text of our Constitution.

And this “fear:”

….race-conscious programs in employment and admissions that are now pervasive could be forbidden.

The op-ed’s author wrote that with no trace of irony.

“Race-conscious” programs are by definition racist; that they’re pervasive just means that the evil is far too ubiquitous.  They should be forbidden, and the sooner and louder the better.

And this:

The past decade has seen a conservative court slow further social progress….

That’s entirely appropriate, it’s regrettable that this was even necessary, and it’s further regrettable that court-imposed “social progress” was only slowed and not halted altogether.  Social progress—whatever that is—is a political matter, to be furthered or opposed only by the political arms of our government.  Courts have no legitimate role in political matters; this is made clear in that primary precedent’s Article I, Section 1.

The paper headlined its op-ed thusly:

We need to prepare for a complete reversal of the role the Supreme Court plays in our lives

I certainly hope the Court reverses course; I certainly hope the Court goes back to applying the Constitution and the laws as they’re written, instead of in accordance with the “philosophies” of the likes of Thurgood Marshall—”I make my ruling and expect the law to catch up”—and Ruth Bader Ginsburg of living Constitution, amend it from the bench according to a judge’s personal view of society, ideology.  I certainly hope the Court reverses its role in our political lives and absents itself from it.

It’s illustrative of how dangerously far left the Left has gone when simple adherence to the Constitution is radical-right.

Appeals to Courts Vice Voters Vice….

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Wisconsin’s Progressive-Democrats failed at the polls, for all that they won the Governor’s and Attorney General’s chairs in 2018, so they tried to get the courts to impose their policies by judicial fiat.  That failed, too, so now what?  How can these Know Betters get their plans imposed on the unwashed citizenry?

It seems that the duly elected State legislature and duly elected State governor had passed a number of laws that limited the power of the Governor and the State Attorney General.  The fact that these laws were enacted after those 2018 elections and before the new Governor and Attorney General took office was somehow supposed to delegitimize those laws.  Or so the Progressive-Democrat Governor and AG insisted.  The people were still speaking, but they should not be listened to.

Therefore, these Progressive-Democrats went into court to get the people’s will, as expressed through their elected representatives, tossed out.  The people’s will, after all, is only and precisely what their Know Betters tell them it is.

The Wisconsin Supreme Court said, no, duly enacted law is still law, no matter how inconvenient that might be for this or that political party.

Here’s Ben Wikler, Progressive-Democratic Party of Wisconsin’s chairman, on that outcome:

Power grabs set a dangerous precedent, and anyone concerned about the health of a democracy should be working to fight against it[.]

No trace of irony there.

Wisconsin’s Democratic leaders are pondering their next steps…. Here’s a thought: accept the politically expressed will of your employers, even though you think yourselves better than they.  Leave the courts out of political matters.