Category Archives: Courts

The Supreme Court is Considering the Limits of Partisan Gerrymandering

Posted on by
Reply

The case stems from a Wisconsin state districting case

where a three-judge lower court last year invalidated a redistricting plan enacted by the Republican-controlled Wisconsin legislature in 2011.

That court insisted that, following the 2010 census, the Republican State legislature redrew its legislative districts to favor Republicans and disfavor Democrats.

Election results since then have shown the redistricting had its intended effect, with the GOP winning a larger majority in the state assembly, even as the statewide tally of votes was nearly even between Republicans and Democrats, the lower court said.

This smacks entirely too much of disparate impact sewage.  The ruling would be legitimately reversed on that ground alone.  That one party won a collection of close-run elections proves nothing.  Close-run means no more than that the two parties were evenly matched.  Apparently, an even election is too partisan, not favoring Democrats sufficiently, to suit the court.

The Supremes and lower courts have long held, though, that

gerrymandering that discriminates against minority voters [is] unconstitutional….

There aren’t any minority voters, only American citizen voters, though. Not any more.  As a Chief Justice John Roberts said only a few years ago in Parents Involved in Community Schools v Seattle School District No.1, the way to end discrimination is to stop discriminating.  Mandating districts explicitly to benefit minorities is exactly that cynical discrimination.

Woodrow Wilson once said about segregation that blacks should be grateful for the protection it affords them.  Is that really what today’s Progressive-Liberals, including the Liberal Justices on the Supreme Court, want?  We should return to that despicable era of racial racist discrimination?

Regardless of any of the foregoing, the question is easily enough settled, if there’s enough collective courage to do so.  I’ve said it before, and I’ll say it again: draw equal-sized district squares, regardless of demographics, deviating from the square shape only at State borders and only along the side that is the border.

Foolish

Posted on by
Reply

The Justice Department is clashing with career site Glassdoor Inc over the company’s refusal to identify users who posted anonymous employee reviews of a veterans health-care company under federal investigation.

That’s been fought over in civil courts, but this is a first for a potentially criminal matter.  The Federal government is the one making the demand this time because the Feds want witnesses for a grand jury investigation into Glassdoor.

Whatever the parameters of any possible criminal case involved here, there are some questions that need careful consideration.  Leave aside 1st Amendment questions regarding a right, especially but not necessarily limited to political discourse, to discourse anonymously.

Forcing a potential witness to come forward and testify in open court seems counterproductive.  How credible, indeed, how objectively accurate, would a witness be who’s forced to testify?  Might such a witness say what his government forcer wants him to say?  Might such a witness’ memory become faulty?  Might such a witness’ testimony, however well he tries for accuracy, be slanted by…fear of consequences, frustration at being forced, other factors, factors that wouldn’t be present with voluntary testimony?

How would a court tell whether impacts from these factors are large or small in a particular case?  How would a court even recognize the presence of these factors?  Given presence, how would a court control for that presence?

A First Amendment Beef

Posted on by
Reply

This one, I think, is a bad beef.  A Columbia University club known as the Knight First Amendment Institute, styling themselves a First Amendment advocate organization, has taken notice of the fact that President Donald Trump has blocked some folks from his personal twitter account, @realDonaldTrump, an account he’s had since well before the campaign and his election.  The Director of the Institute, Jameel Jaffer, wrote a letter to “the Trump administration” claiming that the Constitution “requires” those accounts to be unblocked.

Users who have been blocked cannot follow you on Twitter, and they are limited in their ability to view your tweets, find your tweets using Twitter’s search function, and learn which accounts follow you….  Blocking users from your Twitter account violates the First Amendment. When the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum from which it may not constitutionally exclude individuals on the basis of viewpoint. This is true even if the space in question is “metaphysical” rather than physical.

What Jaffer is ignoring, among other things, is that the government did not create the @realDOnaldTrump account; private citizen Donald Trump did.  The government created the @POTUS and @WhiteHouse accounts.

The President’s personal twitter account is not the same thing as @POTUS or @WhiteHouse, which are public forums created by the White House some administrations ago specifically for the purpose of passing out White House announcements and, perhaps, exchanging views.

So what do we have?  This is what the 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

None of that applies here.  Trump’s blocking some folks from his personal twitter feed has nothing at all to do with religion, nor does it restrict the press—NLMSM or legitimate—at all.  Even the use of social media as press—this blog, for instance, or established press’ and pressmen’s own Facebook pages, twitter feeds, Instagram setups, etc are not restricted in the slightest.

That leaves the question of free speech, peaceful assembly, and petitioning of the Government.

None of these are impacted by blocking some twitterers from a private account, either.  Those folks still have unfettered access to the government via the @POTUS and @WhiteHouse accounts: they still can engage in free speech activities with the administration and with Trump; they still can peacefully assemble, even if that assembly is “metaphysical,” and they still can fully petition the Government.  And that’s just through the government’s twitter feeds.  These folks also have access via the White House’s Facebook page, email even via old-fashioned snail mail.

This is just some folks with more time on their hands than productive activities along with their rent-seeking lawyers manufacturing another excuse to whine.

Constituents

Posted on by
Reply

Who are a Federal judge’s—at any level of the judicial hierarchy—constituents?  I asked this question of a number of folks, and the most cogent answer I got was this: “in order, the law and justice.”  Even that answer, though, is only about one-third right IMNSHO.

Here is the first oath of office Federal judge and Justice must take; it’s the same as any Congressman must take.

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Here is the additional oath of office that a Federal judge or Justice must take.  Notice that his prior oath does not expire (no oath can); this oath adds to it.

I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judicial position] under the Constitution and laws of the United States. So help me God.

Here is what Article I, Section 1 of our Constitution says about legislative authority.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Thus, a Federal judge’s constituency begins and ends with the Constitution.  Full stop.  His constituency does not extend to “the law,” only to the supreme Law of the Land.  All other law, which can be enacted only by the people’s elected representatives in the legislative and executive branches under our system of governance, must be subordinate to and compatible with the Constitution.  A judge’s duty here is to reject a law that is not compatible, that is unconstitutional.  Or on its constitutionality, to apply it as it’s written.  His oaths of office demand he defend the Constitution, and that defense enjoins him to not write law, not modify law, only to apply it.  To this end, a judge’s interpretation of a law is only for the purpose of applying it as written, not to “interpret” it to his convenient end.

Not “justice,” either.  What is justice, what is just, are social and political determinations, and those determinations, too, can be made only by We the People, directly or through those elected representatives of ours.  A judge can only apply the law before him as it is written (or strike it); he cannot judge a case according to his own sense of justice or social mores.  He certainly can rail against the injustice (from his sense of it) of a ruling to which the law before him drives him—and he should—but he can rule in no other way but what the law itself requires.

This makes especially reprehensible the 4th Circuit’s ruling on President Donald Trump’s immigration Executive Order.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No 78.

Mandatory Minimum Sentencing

Posted on by
Reply

Heather Mac Donald, in an opinion piece in a recent Wall Street Journal argued that Attorney General Jeff Sessions is getting a bad rap over his decision to reinstate emphasis on mandatory minimum sentencing and that those minimum sentencing requirements themselves get a bad rap.  She’s right on both counts.

Sessions is being smeared as being a racist over his decision because most of the criminals impacted are black—never minding that most of the crimes involved are committed by blacks, and against blacks to boot (another part that’s carefully elided by the smearers).  The sentencing guidelines (for that’s all that they are; they are not mandatory, for all that timid trial and appellate judges make them so out of their loathe to sentence based on the actual circumstances out of rank fear that they might get overruled by a higher court) also get a bad rap because Sessions’ decision is aimed at serious and violent crime commissions, not the small fry.  The ones aimed at with Sessions’ ruling are the drug dealers, murderers (acknowledging the considerable overlap between the two), assaulters, home invaders, and the like.  Not at risk from minimum sentencing “requirements” are the non-violent, the petty, the drug users, and so one.

As Mac Donald put it in defense of minimum sentence requirements,

Mandatory minimum sentences are a valuable tool for inducing drug dealers to cooperate with prosecutors in identifying fellow members of large drug-trafficking networks.

One small aside on that: mandatory minimum sentences also are valuable tools by prosecutors for intimidating an unconvicted defendant into plea-bargaining independently of his guilt or innocence.  Both sides of this question are supported only by extensive anecdotes, though, not demonstrated trends.

For all that, say Mac Donald is right on her main point.

But her point is irrelevant.  Mandatory minimum sentences are wrong on their face.  Sentences should be handed up by juries, not by judges or by sentencing checklists in a computer.  If I beat my wife and sell drugs to a friend a few blocks away, I’m committing crimes against our two neighborhoods—mine and my wife’s and that of my friend’s—not against New York City or Washington State, or even my home State of Texas.

My crimes are against the local communities in which my friend and my wife and I live, and I should be sentenced like I’m tried: by a jury of my peers drawn from my community and my friend’s, the communities against which my crimes were committed, i.e., the district wherein the crime shall have been committed.

Sentencing requirements, whether mandatory or guideline, destroy that capacity, they destroy the local community’s ability to decide for itself what is the appropriate punishment to be meted out for any crimes committed against it.