Category Archives: Courts

Still Another Reason

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This time, another reason to eliminate the Federal government’s Star Chamber that is its FISA Court. The reason is in the lede:

The nation’s spy court has quietly approved a Justice Department request to review information tied to the Foreign Intelligence Surveillance Act (FISA) warrants that targeted former Trump campaign associate Carter Page as FBI Director Kash Patel seeks to hand over more Russiagate evidence to Congress.

The timeline of this…approval:

  • 6 June: DoJ filed its request with the FISA court
  • 17 June: FISA approved the request
  • 7 July: FISA made its approval public

That’s entirely too slow. DoJ—and the FBI—had their own copies of what they’d filed with FISA (didn’t they?); they had their own approval authority for the documents they owned. Aside from that, FISA has had its own copies of those filings, along with records of its deliberations of the related matters being considered with those filings for all these years. The judges on that court must have known that this day would come; of course, responsible and rational persons that they are, they’d already worked out at least the outlines of how they would respond. Taking 11 days to review that outline and to act on it is sloth. Taking an additional three weeks to make public their decision is irresponsible secrecy for the sake of secrecy.

That’s secondary, though. Coming ahead of that, and so obviating any need to consider any of that, is this: this court, as long as it’s going to operate entirely in secret, should have no say about the progress of an FBI or a DoJ investigation or about those agencies’ dispositions of materials associated with those investigations. To the extent our courts should be involved in such decisions, that should be the role, solely, of our public Article III courts, each of which is fully capable of handling classified information.

Arrogance of an Activist Justice

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The Supreme Court recently lifted a district court judge’s injunction that blocked President Donald Trump’s (R) Executive Order requiring heads of agencies to work with the Department of Government Efficiency on hiring decisions and developing plans for layoffs. The Court also ruled that it had based its decision on the legality of Trump’s Executive Order, and didn’t rule on whether any reorganization plans broke the law. And

The Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful[.]

Justice Ketanji Brown Jackson piped up in her lone dissent.

This was the wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground[.]

This is her Preciousness, and the arrogance of her activism. The Court knows little of what’s actually happening on the ground? But Jackson does know? Or in her shared Court ignorance, she would leave intact an injunction that’s blocking no known ill effects? Of course, highly talented and educated woman that she is, she knows full well that “don’t know” means…”don’t know.”

What she does know, though, as do all of the Justices on the Court (the other eight of whom voted to lift the injunction), is that no hiring decisions or layoff plans have been developed yet, much less begun execution. There is, then, no reason for the injunction, the EO itself being entirely legal.

This is the sort of activism—ignorant, not just ideological—that we can expect to deprecate the Supreme Court under a Progressive-Democrat President and Progressive-Democratic Party-dominated Senate.

Judicial Inconvenience

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A prison inmate went without his heart medication for a week, had a heart attack, and died. The 6th Circuit ruled no Qualified Immunity for the nurse who didn’t, per the Institute for Justice‘s 27 June newsletter, call his pharmacy to verify his prescriptions or take 10 minutes to get the necessary release form filled out for getting his prescription filled out.

The dissenting judge in the panel beefed (IJ paraphrase),

Now everyone in CA6 who dies in jail because they were briefly without their medication has a constitutional claim.

Sorry, Judge, the convenience of you or your court is no excuse for denying even a prisoner his due, and it’s no excuse for not holding materially accountable those prison officials who deny a prisoner his due.

The Circuit opinion and dissent can be read here.

Artificial Hysteria

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The Supreme Court earlier this week stayed a district court’s order blocking the Trump administration from deporting illegal aliens to countries that are not the home countries of those illegal aliens. The activist Justices on the Court demurred. The Court’s stay does not address the underlying case; it merely allows the administration to proceed while that case makes its way through our court system. It’s the nature of their demurral that’s instructive here, though.

Justice Sonia Sotomayor wrote for the dissenters,

Apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled[.]

This over-the-top manufactured hysteria by the activist Justices does the Court no good at all. In an environment where many begin to question the legitimacy of the Court, Sotomayor’s excessive hype is the sort of thing fueling that question.

Judge Shopping

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A Wall Street Journal editorial correctly decried this, and a letter writer to the news outlet’s Letters section correctly included the Northern District of Texas as a particular judge shopping target for bringing suits convenient to the Trump administration. The letter writer also pointed out that, as an attempt to mitigate, if not eliminate judge shopping, the Judicial Conference of the United States, strongly discourag[ed] the practice, and some Federal districts changed their rules to enhance random assignments of their judges—but those rules are District by District.

Lost in this kerfuffle (cynically so, say I given that judges as a group surely know better) is a nation-wide requirement of centuries-long standing [emphasis added]:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….

And

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….

For those of you following along at home, those are from our Constitution’s 6th and 7th Amendments, respectively.

For the quibblers of the lawyer class, the latter is easily extensible by statute to explicitly require the civil suit to occur in the State and district wherein the [cause of the tort] shall have [first occurred].

The ability of Congress to make such a thing explicit is in this nation-wide requirement of equally centuries-long standing:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The District courts, as creatures of Congress, have their jurisdictional authorities set by Congress. This Congressional power over jurisdictional authority extends to the Supreme Court [emphasis added]:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Again, for those of you following along at home, those are from our Constitution’s Art III, Sect 1, and Art III, Sect 2, respectively.

All that’s required to eliminate judge-shopping is a renewed respect for and enforcement of our Constitution.