Category Archives: Courts

Another Reason This Election Matters

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I wrote earlier about what a Clinton Supreme Court would look like.  President Barack Obama (D) already has largely succeeded in fundamentally altering our judicial system, an outcome obscured by the high profile battles fought over Supreme Court and DC Circuit Court nominations.

Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction. He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general. He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do.

That’s borne fruit, too.

His appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations.

Democratic Party Presidential candidate Hillary Clinton says she intends to go even further.

Elections have consequences.  And the last two at the Presidential level already have had.

Cynical

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The DC Circuit, in a mixed ruling, has said the trial court judge had erred in dismissing a collection of Tea Party suits he said had become “moot” because the IRS had apologized for its misbehavior and had said it had stopped such practices.

Of course, the IRS had said it had stopped—sort of—only conditionally.  DC Circuit Judge David Sentelle, writing for the majority (the ruling can be seen here), noted that the IRS only had suspended the screening “until further notice.”

A violation of right that is “suspended until further notice” has not become the subject of voluntary cessation, with no reasonable expectation of resumption, so as to moot litigation against the violation of rights. Rather, it has at most advised the victim of the violation—”you’re alright for now, but there may be another shoe falling.”

Sentelle took issue with “suspended,” understanding that suspension is not cessation.  He took separate issue with that “until further notice” bit, as noted above.

In fact, too, the IRS had not stopped at all.  As Sentelle noted,

…it is absurd to suggest that the effect of the IRS’s unlawful conduct, which delayed the processing of appellant-plaintiffs’ applications, has been eradicated when two of the appellant-plaintiffs’ applications remain pending.

After how many years are these applications still pending? It’s been two years since the trial court made its erroneous dismissal.

Of course, the trial judge knew these things. Based on his logic, too (even if he had been as ignorant as he seemed to be claiming he was), it would seem he would have dismissed charges against Willie Sutton had that worthy only apologized and averred he’s stopped. No consequence should ensue, this judge would seem to insist, for the banks Sutton had already robbed.

How cynical is that?

These are the trial courts and the IRS that will be heavily impacted by the Presidential elections.

The Hillary Clinton Supreme Court

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I’ll leave aside specifics of Democratic Party Presidential candidate Hillary Clinton’s goals in appointing Supreme Court Justices.  The overriding goal of Clinton is to appoint Justices who meet a series of litmus tests, none having to do with the Justice candidate’s view of the Constitution.  A potential appointee must explicitly agree that Citizens United must be reversed.  A potential appointee must explicitly agree that limits to individual Americans’ right to keep and bear Arms must be subject to further government restrictions—including Government determining what weapons are fit for Americans to have (no “assault” weapons—defined by her Government—for instance).  A potential appointee must explicitly agree that voter ID laws, which protect the sanctity of an American’s vote, are anathema.  A potential appointee must explicitly agree that religious freedom is a matter of government determination with nothing to do with individual conscience.

Clinton’s goal, then, is to turn the Supreme Court away from an impartial judicial institution into one that is explicitly political, and one that will serve Progressive goals.  Regardless of what the Constitution actually says.

It won’t take many Clinton appointments, either, to turn the Court into her completely political institution.  Four of the existing Justices already are political judges rather than judges who uphold the Constitution.  Justices Stephen Breyer and Ruth Bader Ginsburg have said they consider the Constitution to be a living document that lives through “updating” reinterpretations to fit their views of the times—Article V and We the People be damned.  Ginsburg has gone even farther, deliberately entering the political fray and publicly stating her views of the unfitness of one of the current Presidential candidates, thereby prejudicing in advance her decisions on any case in which that President’s administration might become involved.  Justice Sonya Sotomayor has said the Court benefits from her “wise Latina” and empathetic talents—again, a political position and not a legal one.  Justice Elena Kagan has said that a judge’s personal values must guide the judge’s development of her opinion, not solely what the Constitution says—still another political, rather than legal, position.

Elections have consequences, and this one’s will last far longer than just the term of one administration.

A Court Gets One Right

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In a sexual orientation case involving an adjunct professor who claimed she was denied “full time employment and promotions based on sexual orientation,” the 7th Circuit ruled unanimously that her employer can, indeed, do exactly that.  In particular, Title VII, under which the case was brought, does not apply to sexual discrimination in the workplace.

The reason the Court got this one right has little to do with discrimination—and everything to do with it—rather, it’s centered on what the law actually says, and what the judges said about what the law actually says.

…a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry an ‐ other person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  …  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.

Because the law, Title VII as it’s written, doesn’t address that question.

There’s more [emphasis added]:

…the distinction between gender nonconformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act…. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.

Yet, this [emphasis added]:

[T]he paradox is not our concern. Our task is to interpret Title VII as drafted by Congress, and as we concluded in Ulane, Title VII prohibits discrimination only on the basis of gender.

Regardless of what we might think of the particular ruling—concerning a woman who was denied advancement on the basis of her sexual orientation (assuming, arguendo, that her claim was accurate)—or of other rulings involving actual firings over sexual orientation, this court got this ruling right.  The court is right because it applied the law as it was written, and not as it might have preferred it to have been written or as a government agency (EEOC had sided with the professor) wanted it to have been written.

The court also was right because it didn’t stop there.  The court went on to point out that while the law in question, as it was written, conflicted with other laws—one driving the Supreme Court’s ruling on gay marriages, for instance—the court was powerless to resolve the conflict.  Such a resolution is a political decision, not a judicial one; it’s for the people and their elected representatives to alter the law(s) in directions they see fit; no court can do that.

The court’s ruling can be read here.

A Free Speech Ruling

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The Federal trial judge got this one right, even though the Arkansas law had been on the books for 35 years.  The question concerned whether the State could restrict political speech by robocall with the mechanism of banning political robocalls.  The same statute did not ban other political calls, only robocalls, and the judge called them on that logical conflict.

The statute is underinclusive. Banning calls made through an automated telephone system in connection with a political campaign cannot be justified by saying that the ban is needed to residential privacy and public safety when no limit is placed on other types of political calls that also may intrude on residential privacy or seize telephone lines.

There’s a larger question here, too, though.  Once we begin limiting political speech, where does it stop?  What’s the limiting principle?  What naturally limits the thing, without relying on government forbearance?  One such limit mentioned in the ruling concerns signs containing political speech.  The signs cannot be banned, but their placement can be restricted based on safety concerns (for instance, visually blocking views of crossing traffic at intersections).  Robocalls, irritating as they are, don’t present themselves as usefully limitable, given the importance of free political speech and (incumbent) government attempts to restrict it, other than an Arkansas averred

prevent[ion of] the seizure of phone lines, which could interfere with emergency calls being placed or received.

However, as the judge noted,

The Attorney General fails to explain why automated calls other than commercial calls and those made in connection with political campaigns—for example, calls encouraging individuals to contact a member of Congress regarding a bill or to attend a townhall meeting regarding a public issue—using automated dialing systems do not trample upon the state’s interests in residential privacy and public safety.

The State’s safety claim doesn’t hold water.

And so, again I ask, when it comes to government limiting speech, particularly political speech, where does it stop?  What’s the limiting principle?  Safety certainly can be one such limit, but Arkansas’ law doesn’t—didn’t—apply it.

The judge’s opinion can be seen here.