Category Archives: Courts

Weak of Moral Character

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Monday, the Supreme Court upheld the idea of public prayer at the opening of (Greece, NY) town board meetings (and by extension at the opening of government meetings generally). The ruling, Town of Greece v Galloway, can be read here.

Justice Anthony Kennedy, writing for the 5-4 majority, wrote in part

From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.

Justice Elena Kagan demurred from that view of the fundamental adulthood of American citizens. She wrote in dissent

…Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. … So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Because in the Progressive view of Americans, we don’t have the strength of character, the firmness of moral belief of an adult human being. Like children, we need continual instruction by government in what to believe, we need continual stiffening by government to hew to the correct line. We can’t do these things on our own.

Once again, Progressives are projecting their own failings onto others. (And that bit about “distribut[ing] government benefits:” another Progressivism—that’s the purpose of government.)

Another Thought on Privacy

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David Kravets, writing in ars technica had one concerning a couple of cases coming before the Supreme Court dealing with the legitimacy of warrantless searches of cell phones and other digital devices pursuant to an otherwise legitimate arrest.

President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?

Indeed. It’s also necessary to keep such ancillary searches in context. The courts long have held that when a man is arrested, the police can pat him down, even do cursory inspections of his car if that’s where he was arrested—look in the trunk, for instance—to be sure he has no weapons that would enable him to harm the arresting officer(s) or devices that would facilitate him attempting to escape from them.

It’s clear, though, or it should be clear, that the electronic contents of a cell phone or of a laptop or…can present no danger of either of those possibilities.

It’s also apparent that the two characters in the cases before the Supreme Court are unsavory at best. It’s also clear that the cursory search of the car David Riley was driving at the time of his arrest was both legitimate and fruitful—the police found weapons secreted in it. However, the persons’ unsavoriness is not an excuse for proceeding with the illegitimate, in my view, searches of their cell phones—there were no dangers to be found in those electrons; a search warrant should have been obtained before the searches conducted.

If such warrantless searches are allowed, what’s to stop government from expanding the scope to the less unsavory among us? To the entirely savory, other than those of whom government disapproves (IRS, anyone)?

There wasn’t even any danger of evidence contained in the phones being destroyed before the warrants could be issued; the cells were safely in police custody.

In one of the two cases, Solicitor General Donald Verrilli Jr made explicit a part of the Federal government’s rationale for such warrantless searches:

[J]ustices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’…’appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.'” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)

Yet in making this argument, Verrilli has shown his utter lack of understanding of our social compact. Our Declaration of Independence and our Constitution are designed to carry out exactly that prior restraint, because ultimately government cannot be trusted to restrain itself. This is what John Adams was talking about when he wrote to his wife

Liberty, once lost, is lost forever.

Bigotry in the Supreme Court

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…not of the Supreme Court. I writing now about the Court’s ruling in the Michigan affirmative action case (Schuette v BAMN) concerning the state’s “decision to end affirmative action at its public universities.”

The Court ruled 6-2 to uphold Michigan’s decision, holding essentially, that such a choice should be left to the States’ citizenry and not determined by the court system.

Justice Anthony Kennedy, writing for the Court (mostly—there were a number of separate concurring opinions), expanded on that:

The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it.

Justice Elena Kagan recused, Justice Sonia Sotomayor dissented, and Justice Ruth Bader Ginsberg joined the dissent.

Sadly, Sotomayor’s dissent was fundamentally racist.[1] She insisted that “race matters.” And

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

Indeed. But the Constitution, which must be applied “with eyes open to the unfortunate effects of centuries of racial discrimination,” must be applied as it is written—especially because, in the present context, the Constitution is color—and gender, come to that—blind, and explicitly so under the 14th Amendment. That means that there cannot be anything other than equal treatment under law; in particular, there cannot be special treatment for some groups, and there cannot be special treatment for some groups at the expense of other groups.

Applying special treatment, as Sotomayor demands because of those centuries of racial discrimination, is only to maintain that racial discrimination for centuries more.

She attempted to offer alternatives to citizens speaking their voice:

In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through gen­eral public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.

This, of course, is just what the voters of Michigan did—only they did it state-wide, rather than piecemeal. There is no difference between the two, except in the mind of Sotomayor.

She buried this in a footnote:

Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.”

Which is nothing but the racism of preferential treatment based on race. Made blatant by her preferred term of reference.

Sotomayor concluded her dissent with this:

For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.

Because, of course, we cannot demarginalize those groups by treating them like adults and equals, we can only demarginalize them by perpetuating their status as…dependents…through continuing to single them out for special treatment.

I respectfully dissent from Sotomayor’s dissent.

 

[1] I of course do not mean to suggest that Justice Sotomayor wrote with anything like invidious intent. But the dissent at issue in this case seeks to change the rules of the political process and of the 14th Amendment to the disadvantage of members of our society disfavored by government.

Update: Added Justice Sonia Sotomayor’s first name to the first time she’s mentioned in the post.  It’s my usual habit; I missed it this time.

Which is More Important?

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A Federal judge’s oath of office, or adherence to superior court precedent?  To be sure, both hierarchy in our judiciary and the precedence of rulings are critical to rule of law and to the US remaining a nation of laws and not of men.  But so is a judge’s adherence to his oath of office, and so is the Constitution.

Here’s the oath:

I, _________, 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 _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.  So help me God.

This oath is tightly bound to the Constitution of the United States in Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….

Moreover, the Constitution is the supreme Law of the Land.

Hence my question: in a conflict between a judge’s (subordinate, in particular, but all judges in general) oath and rulings of a superior court, how must a judge resolve this?

The principles statement of our social compact shows one way:

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…when a long train of abuses and usurpations…evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off….

While keeping in mind that such a thing is not to be done lightly or for triflings:

Governments long established should not be changed for light and transient causes….

Had subordinate judges been willing to rule contrary to the Taney Court on a matter of runaway slaves, a war might have been averted.  Had subordinate judges been willing to rule contrary to a superior court’s ruling, the 80 years of injustice flowing from Plessy might have been cut short.  Had subordinate judges been willing to contradict superior courts, property rights might still be intact.  The list goes on and on.  Notice that plural, though.  A single judge acting contrary is likely to act wrongly, and a court of law is not the proper venue for a lone act of civil disobedience.

Still, the question demands a care: is the precedent contrary to the Constitution, or is the judge’s opinion on the matter the thing that is wrong?  This answer can be sought out only after we recognize that neither a law nor the supreme Law is what a judge thinks it is; the law, the Constitution, is what the law, the Constitution, says it is.

Given this, is it possible for a judge to adhere to precedent and, as a result, violate his oath of office?  You bet.  Must he rule against precedent, then?  That’s harder in a practical sense.

The judge certainly can discuss matters with his fellows and develop a unified position to rule, all of them, against superior courts when they believe the superior ruling at hand is wrong—a morally necessary act of throwing off.  Notice though that this is a throwing off of the superior ruling, not of the superior court itself.

But when a single judge embarks on such a course, is it legitimate revolution, or is it insubordination?  A revolution requires more than just a single actor acting in disobedience; it requires a significant fraction of the men and women available to join the action.  Hence, that collection of like-minded judges, if such a collection can be assembled.  If a collection cannot, this does not, of necessity, demonstrate that he’s the one who’s wrong; however, the failure must give the single judge pause.  If that man still believes he cannot rule in accordance with his superiors, his proper course becomes to resign his office.

To return to the question, it’s clear that adhering to the oath is far more important than adhering to precedent.  The former never is wrong; the latter often is, because the precedent itself often is.  However, the response to such a conflict must be influenced by how widespread the error can be demonstrated to be.

Standards and Government Mendacity

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Some of you are familiar with EEOC v Kaplan, a case in which the EEOC sued Kaplan Higher Education Corporation for the crime of using background checks to screen job applicants prior to hiring them.  EEOC’s case centered on the nonsense of disparate impact: in the present case, since blacks have more bad debts than whites—for reasons wholly unrelated to the questions at issue in Kaplan—they were more often disqualified from hiring by Kaplan than were whites.

The EEOC’s case was further centered on something called multicultural, multiracial, treatment outcome research.  I can’t tell you what this thing is; it exists solely within the mind of EEOC’s “expert” witness, a person who has constructed this thing, whatever it is, out of the æther.  Interestingly, the EEOC was unable to tell the district judge what that was, either; they elided a definition altogether.

The 6th Circuit, in upholding the district court’s dismissal of the EEOC’s case, had this to say, among other things:

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.  The district court did not abuse its discretion in excluding Murphy’s [the “expert’s”] testimony.

This is the pseudoscience that our Progressive administration routinely brings to bear in its many wars—on religion, on women, on climate, on….

Demonstrating, perhaps accidentally, another aspect of this administration’s level of integrity, the 6th Circuit opened its opinion with this statement:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.

Going on,

The EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.”  Because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions.  The defendants (collectively, “Kaplan”) have the same concern; and thus Kaplan runs credit checks on applicants for positions that provide access to students’ financial-loan information, among other positions.  For that practice, the EEOC sued Kaplan.

The Circuit ruling can be read here.