Category Archives: Courts

A Simpler Solution

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As Conservatives grow increasingly concerned over activist Federal district judges overstep their authorities, even seemingly overruling Supreme Court decisions regarding nation-wide injunctions, many are proposing corrective action.

One proposed solution lies within the judiciary itself. Under the Judicial Conduct and Disability Act, the Judicial Conference of the United States may refer a judge to Congress if it determines that the judge’s conduct could warrant impeachment.

And

Another avenue for reform lies with Congress, which has clear constitutional authority to define the jurisdiction and powers of lower federal courts. Lawmakers could, for example, require cases with national implications to be heard by three-judge panels, or mandate expedited Supreme Court review of injunctions blocking federal laws or regulations.

I’m loathe to see JCUS get more active in referring to Congress for impeachment. That’s a slippery slope. What happens via an (over)active JCUS when the Progressives get activist Justices appointed to the Court?

The Supreme Court’s involvement here should begin as follows. If a district judge oversteps his bounds in the form of issuing a ruling not in conformance with a Supreme Court ruling a second time, the Court in overruling that judge’s second overstep should also rule that all future opinions which that judge issues are automatically stayed pending appellate court review.

The solution to judge-shopping is more straightforward than many think, as is the business of district judge issued national injunctions, if they might be politically difficult. Congress needs to pass and the President sign (or have his veto overridden) a law with two paragraphs. One paragraph would clarify and state explicitly that all cases, including civil, must be brought in the Federal district in which the first instance of the beef arose. If the other side of the litigation can demonstrate that the beef to which the plaintiff’s case refers actually had its first instance arise in a different district, then the plaintiff’s case would be dismissed.

The other paragraph would explicitly limit a district judge’s reach to the limits of his district boundary. District judges would be explicitly barred from issuing nationwide injunctions or any other injunction reaching beyond his district boundary. There’s no need for a three-judge panel here, nor is there any need for “expedited” review.

An Activist Judge Gets It Wrong

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DC District Senior Judge Amy Berman Jackson has ruled that

the Trump administration is legally required to secure funding for the US Consumer Financial Protection Bureau (CFPB), and that failing to do so would violate a prior court order barring the government from dismantling or shutting down the agency[.]

However.

Leave aside the fact that the question of the Trump administration funding of the Consumer Financial Protection Bureau and the question of the Trump administration dismantling or shutting down the agency are distinctly separate questions.

The fact of interest here is Jackson’s mistaken ruling that Trump must fund the CFPB. He cannot. By the statute that created the CFPB, that agency is funded solely by the penalties it exacts via its enforcement actions (pay no attention to the conflict of interest behind the curtain) and from the Federal Reserve Bank, the latter which the CFPB draws from according to CFPB-determined needs (pay no attention to the doings behind this curtain, either).

The Trump administration has no control over and no capacity to produce CFPB funding. This is the sort of shenanigan in which activist judges engage, causing increased cost and delay in cleaning up prior messes.

Activist Investor Lawsuits

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Comerica, a regional commercial bank, has agreed to be acquired by Fifth Third Bank, a bank holding company, and HoldCo Asset Management, a serial “agitator” and a minority shareholder of Comerica, doesn’t like that decision and has gone into court to stop it.

It turns out HoldCo Asset Management didn’t like that particular deal [Comerica being acquired by Fifth Third Bancorp], arguing it undervalued Comerica. Its battle with the bank has since turned into an all-out war. The firm urged shareholders to vote against Fifth Third Bancorp’s acquisition of Comerica and sued the banks, saying it wasn’t the best option for shareholders.

The lawsuit strikes me as being entirely frivolous and motivated even more by HoldCo’s arrogance than by its greed. The value of any good or service, here the value of Comerica, is not for any third party to dictate to the participants of any exchange, here the acquisition of Comerica by Fifth Third Bank. The value of the exchange is solely what the participants, the shareholders of each of the two banks, say it is.

The two banks’ boards have agreed the deal and are recommending it to their respective shareholders (read: owners and bosses); although, the haven’t yet voted on it. It’s true enough that HoldCo is one of those shareholders, but the shareholders in their aggregate will assign with their votes the value they deem appropriate.

Minority shareholders should not be allowed to impose their minority position on the majority of a company’s shareholders. If they lose the debate over a company’s acquisition or over any other move made or proposed by the company—if the majority of shareholders at each of the two banks vote for the deal—then HoldCo’s only two legitimate recourses are to accept the outcome or sell their shares.

It’s a matter of property rights, here the rights of shareholders in their property of the shares they own of a company.

Lawsuits centered on a minority’s dislike of a company decision or proposed decision should be dismissed for lack of standing or lack of concrete harm.

Full stop.

Tension?

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The Supreme Court has taken up the question of whether Louisiana’s redistricting effort for its Federal Congressional representation is legitimate, or not. The Just the News‘ news writer, the unusually (for JtN) anonymous “Just the News Contributor,” posed the central question before the Supreme Court:

In Louisiana v Callais, the Supreme Court is confronted with a direct tension between two legal commands: the VRA’s mandate to protect minority voting rights and the Constitution’s limits on race-based decision-making by the state.

There is—or should be—no tension here. Our Constitution says this in Art VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….

In Marbury v Madison, the Supreme Court made clear that conflicts between statute and Constitution must be resolved strictly and solely in favor of what our Constitution says, and every Supreme Court decision since has hewed to the ultimate supremacy of our Constitution. Any tension can exist only in the minds of activists and activist judges and Justices.

Nor can there be any half-measure wherein some level of race-based discrimination is OK. Any race-based discrimination or “preference” in political gerrymandering is too much and a violation of our Constitution. Here’s the 14th Amendment on the matter:

No State shall…deny to any person within its jurisdiction the equal protection of the laws.

The clause does not say No State shall…deny to any person within its jurisdiction the equal protection of the laws, except when it’s convenient to do otherwise.

Full stop.

The Judge Erred Badly

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A Minnesota jury convicted a man and his wife of stealing $7.2 million from the state’s Medicaid program. After the jury rendered its verdict, Minnesota State District Judge (4th District) Sarah West overturned it in its entirety.

In her decision, West wrote that prosecutors “relied heavily on circumstantial evidence,” adding that the state didn’t rule out other potential “reasonable inferences.”

If West really thought that, why did she let the case go to the jury and then let the jury reach its verdict and then read out that verdict?

If West really thought that, why didn’t she, when both sides had rested their cases—or even just when the prosecutor had rested—simply issue a directed verdict of not guilty instead of wasting so much time? Those jurors were private citizens with day jobs, after all. Her claim of other “reasonable inferences” that could have been drawn seem to me would approach reasonable doubt.

Sarah West seems to be a State district judge who does not understand her role as judge or her oath of office.