Category Archives: Courts

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.

Free Speech

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…especially, the aim of those clauses of the First Amendment, free political speech.  Chief Justice John Roberts, writing for the Court, had this to say in striking down aggregate limits to political contributions:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

And

Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.

And [bold added, italics in the original]

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance.  We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley.  They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.”

What he said.  The Supremes’ ruling can be seen here.

A Judge to be Impeached

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US District Court Judge Jesse Furman said the censorship itself was protected free speech.

This is a man who has violated his oath of office and so is unfit to continue in office.

Baidu, the People’s Republic of China’s Google wannabe, has a free speech right, according to this “judge,” to block searches for things related to the PRC citizenry’s pro-democracy movement.  After all,

The First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects plaintiffs’ rights to advocate for democracy.

Advocating for one’s own position by actively preventing those with differing opinions from speaking their differing opinions, or from seeking out differing opinions, is “free speech.”  Because suppressing the free speech of dissenters, suppressing dissenters’ access to others’ free speech, or to anything related to the subject(s) of their own interests, is just “editorial judgment.”  Because isolating dissenters each into a separate, individual island, and preventing contact with any other island is entirely legitimate free speech.

In fact, in dismissing a free speech suit against Baidu, this judge ruled in part

…to allow Plaintiffs’ suit to proceed, let alone to hold Baidu liable for its editorial judgments, would contravene the principle upon which “[o]ur political system and cultural life rest”: “that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”

And therein lies a fatal contradiction of this judge’s pseudo-logic.  Each person cannot decide ideas and beliefs for himself if he’s actively denied access to those ideas and beliefs.  If each person is allowed only to decide from among a carefully limited set of ideas and beliefs which others permit him to view, he has no decision to make.

The failure of the judge’s logic goes further.  The only liability to which a publisher is subject in the editorial judgments it makes is from its decision to suppress speech, not its decision to present it.

And further, and far more fundamentally: each person’s right to decide for himself “the ideas and beliefs deserving of expression, consideration, and adherence” extends to presentation and consideration to him alone; it does not include any right to prevent presentation to or consideration by others.  Each person’s right to decide questions of adherence extends to himself alone; there is right to prevent such consideration by others.

What this judge appears to have (carefully?) ignored is that there is nothing at all in a right to free speech that requires any person to listen to another, nor is there any right to determine for another person what that person will be permitted to listen to.

Furman’s opinion can be read here.

Another Thought on the Contraceptive Mandate Case

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Justice Stephen Breyer asked why the government couldn’t provide the companies the same accommodation it offered nonprofit religious organizations.  In those instances, the government effectively picks up the cost of the challenged methods.

“You’re talking about a very open-ended increase in the cost to the government,” [Solicitor General Donald] Verrilli said.

Related to that is Justice Elena Kagan’s worry that “everything would be piecemeal.  Nothing would be uniform.”

There’s a hint there, folks.  If a thing is too expensive, or too confusing or hard, for government to do right, maybe government shouldn’t be doing it.