Category Archives: Courts

An Out of Control Supreme Court Justice

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I received this email from the Democratic Senatorial Campaign Committee last Thursday [emphasis added].

E —
Justice Ruth Bader Ginsburg has a powerful message about reproductive rights that every grassroots Democrat needs to hear:
“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
E, if you agree with Justice Ginsburg that women should be able to make their own health care choices, add your name now >>
Republican legislatures nationwide have spent the last few weeks passing extreme abortion laws, with the goal of getting the Supreme Court to reconsider Roe v. Wade.
But people are speaking out, fighting back, and holding rallies across the country with a clear message for Republicans: We won’t tolerate these attacks on women’s reproductive rights. As Justice Ginsburg says, women should be able to make their own decisions about their reproductive care.
Add your name now to stand with Ruth Bader Ginsburg if you agree that women should be able to make their own health care choices:
http://www.dscc.org/Stand-With-RBG
Thanks,
Team DSCC

The emphasized quote is what then-Supreme Court Justice nominee Ruth Bader Ginsburg said at her confirmation hearing.

There are a couple of things terribly wrong here. One is the plain pre-judging Ginsburg revealed then, her decision to announce what her ruling would be on any future abortion-related case that might come before the Court.  (Never mind that her pre-determined opinion entirely writes off the human right of a baby to its well-being and dignity, its right to live.)

But the other, even worse, if that’s possible, thing is a sitting Supreme Court Justice actively participating in politics—not in her personal role as citizen, but in her judicial role as Supreme Court Justice (of course, Ginsburg has a history of this with her disparaging statements about then-Presidential candidate Donald Trump).

Ginsburg has permitted a political campaign facility to use her statement in today’s political environment without that quote being noted as from that confirmation hearing.  Ginsburg has permitted the DSCC to imply that this is a current statement and that a sitting Justice has taken sides in a political contest.

That behavior is despicable.

Charging Assange

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Julian Assange, of Manning and Wikileaks infamy, has been indicted on violations of the Espionage Act in addition to the existing charges pending against him.

Naturally, the NLMSM is in an uproar over this putative attack on a free press.

…reignited debate over whether pursuing Mr. Assange for publishing classified information could lead to other cases against journalists who receive government secrets.

There are a couple of things on the NLMSM’s artificial dudgeon, though.  One is that a free press also has to be a responsible press—which includes respect for the law and acceptance of the consequences where the press engages in civil disobedience.  We’re all big boys and girls, though, the press’ and the Left’s contempt for us notwithstanding.  We’re fully capable of recognizing irresponsibility when we see it and disdaining pseudo-journalism when it’s presented.

The larger thing, though, is the role of law in our nation.  We’re either a nation of laws, or we are not.  We’re all equal under law, or some of us get special treatment—descending us into rule by law instead of rule of law.

The laws regarding receiving stolen goods are quite clear: that’s a crime, and the recipient(s) on conviction go to jail.  Except when it’s a journalist who receives the stolen property.  See, for instance, the news outlet that received and published the stolen Ellsberg papers, along with the hue and cry over holding Julian Assange—who’s not even a journalist, for all that he pretends to be—to the consequences from his having received the documents Manning had stolen and sent to him.

A free press requires journalists be allowed to break the same laws the rest of us must obey?  What’s the value of a press that cannot be trusted, that demonstrates its lawlessness by freely receiving stolen goods and profiting from the receipt by publishing the stolen material?

Here’s an alternative—a bare minimum of movement of the NLMSM back within the reach of the same laws the rest of us must obey.

Upon receipt of the stolen material, the news outlet and the receiving journalist must immediately return the originals of the material to the robbed entity and identify to law enforcement the person(s) and/or entity from which the material was received.  Upon return, the news outlet would be free to publish based on its copies of the stolen material.

Should the journalist or news outlet refuse, the journalist (or the news outlet’s chief editor, if the receiving journalist cannot be clearly identified) should be jailed until the originals are returned and the delivering person/entity identified.

Of course, overriding the above is whether the stolen material is classified (the Manning theft, for instance).  In this instance, the material and the receiving news outlet and its personnel would be subject to laws pertaining to (mis)handling classified material.

Yewbetcha

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Justice Clarence Thomas, on the matter of judicial precedent, as quoted by Myron Magnet in Thursday’s Wall Street Journal:

“Stare decisis is not an inexorable command,” Justice Thomas observes in [Franchise Tax Board v] Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.”

What he said.

A Textualist Justice Makes Folks Uncomfortable

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Apple v Pepper is an antitrust case in which the plaintiffs argue that Apple’s requirement that all iPhone apps must be sold through Apple’s app store is a monopoly that Apple abuses by charging excessive commissions on app sales.

The Wall Street Journal has its editorial knickers in a twist because Justice Brett Kavanaugh, writing for the majority, rejected Apple’s plaint that the case be dismissed. The result is that the case continues in trial court.  Yet the editors are upset that Kavanaugh’s ruling “gutted four decades of precedent,” as though precedent cannot be erroneous and so must be unchanging for the ages.

Justice Kavanaugh [opined] based on the text of the Clayton Act, but the Court has long interpreted antitrust statutes alongside common law principles of proximate causation.

How shocking that a textualist ruled on the basis of the text and disagreed with judges imposing personal views of “common law principles” on what a law actually says.

Contrary to the editors’ thrust, all that has happened at this point is that the suit is allowed to proceed in a lower court. This actually represents a golden opportunity to apply the text of antitrust law to the likes of Alphabet, Facebook, Twitter, Apple, et al., which have capabilities of which Clayton could not conceive. In what ways might tech giants exercise monopoly power (legal) or abuse it (illegal)?

At bottom, as the case itself makes it way to the Supremes, it would be a golden opportunity for that Court to tell the Congress to do its political job. Bleatings about “common law” and judges’ perceived principles inhering in “common law” notwithstanding, everything that Clayton means is contained in the text of that law.  Everything that that century-old Congress intended when it enacted that law is contained in the text of that law and nowhere else.  If the law needs updating to address today’s digitally-oriented monopolies, that’s the political task of today’s Congress, not the judicial task of any era’s Justices.

Censorship Continued

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The Poynter Institute, an organization that masquerades itself as a…watchdog…built a list of what it claimed to be unreliable news outlets and then urged censorship through boycotting these offending outlets. “Unreliable,” mind you, was determined by Poynter personnel.  Then they got caught, and they’re claiming to have withdrawn their list.

Here are two critical clues to the nature of their list. One is [emphasis added]:

…initially released a list of more than 500 “unreliable” news outlets purportedly “built from pre-existing databases compiled by journalists, fact-checkers, and researchers around the country.”

Even those purported researchers were carefully unnamed.

And this one:

The index was created with the help of an employee for the Southern Poverty Law Center.

That’s by itself is a fatal condemnation.

From those two clues, it’s clear that the Poynter Institute got exactly what it was looking for.  It just got caught, like the Ezra Klein’s JournoList of a few short years ago.

Do we have, though, any reason to believe the list actually has been scrapped? Or is it merely being better hidden? Like that JournoList. This is, after all, a long-established member of the NLMSM.  The Managing Editor of Poynter, Barbara Allen, had this about that in her statement:

[W]e are removing this unreliable sites list until we are able to provide our audience a more consistent and rigorous set of criteria. The list was intended to be a starting place for readers and journalists to learn more about the veracity of websites that purported to offer news; it was not intended to be definitive or all encompassing

In other words, they’ll be back with a more effectively disguised version of their attempt at censorship, a censorship goal made plain by her next sentence. A starting place for readers and journalists to learn more about the veracity of websites, indeed. A “starting place” written by journalists and JournoList members who will define for us “veracity,” because we’re too stupid to recognize it on our own.

And not intended to be definitive….  Yewbetcha.