“They Don’t Have Our Backs”

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That’s the whine of some judges who are criticizing—carefully anonymously, mind you—the Supreme Court for the Court’s emergency rulings overturning lower court rulings as the Justices agree with the Trump administration arguments.

A group of anonymous federal judges is criticizing the Supreme Court for overturning lower court rulings and siding with President Donald Trump’s administration with little to no explanation, NBC News reported Thursday.

And

…judges argued the Supreme Court should offer more explanation when overturning such decisions, saying emergency rulings in such cases imply poor work on the part of lower court judges.

It implies no such thing, of course. This is just an example of the pseudo-logic of these judges, judges who misapply the statutes before them, choosing to rule based on what they wished the statutes said rather than what they actually say. Overturning decisions without explanation in an emergency ruling plainly means nothing more or less than that the Court chose not to explain within the time constraints of an emergency ruling. It certainly applies, or even implies, nothing regarding any motive for the ruling,nor does it even come close to siding with President Donald Trump’s administration, just that the Court agreed with the administration’s arguments. These judges also are carefully ignoring the fact that the Supreme Court’s emergency rulings are merely temporary, overruling lower court temporary restraining orders and temporary injunctions as the underlying cases make their way through the courts.

“It is inexcusable,” one judge said of the Supreme Court. “They don’t have our backs.”

This is a judge who doesn’t even understand his oath of office. It’s not the Supreme Court’s job to backstop lower court judges. It’s the Supreme Court’s job—it’s the job of all of those lower court judges, also—to apply the law as it is written. It’s the job of appellate court judges, especially of Supreme Court Justices, to correct lower court mistakes in the application of the law—statute and Constitution—at least as much as it is to uphold a lower court’s ruling when that ruling applies the law as written.

Separately, “carefully anonymous:” these judges don’t even have the courage of their convictions. They just want to yap from the safety of their respective private porches.

A Misunderstanding

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This one, a Wall Street Journal editorial centered on a coerced unionization of ride share companies Uber and Lyft. The editors got their misunderstanding in early, via their lede:

California Governor Gavin Newsom on Friday announced a “deal” with ride-share companies Uber and Lyft that they couldn’t refuse. Democrats in Sacramento will reduce auto insurance coverage mandates that are driving runaway litigation in return for the companies letting drivers collectively bargain.

Yes, they could have refused the deal. The California government foisted onto them a supremely ugly choice, but it was no less a freely taken choice for all its ugliness. The companies’ managers were just too timid to resist, too timid to leave the State altogether, as their own powerful alternative to Sacramento’s demand.

There’s no reason for any business, not just Uber and Lyft, to suffer the politically imposed costs of operating in California. Nothing is stopping businesses from leaving other than the timidity of their managers.

I alluded to it just above: the cost of doing business in California isn’t just fiscal. It’s political, too, reducing as that cost does, a company’s ability to manage its own business affairs in accordance with its own free market imperatives.

Regulation vs Regulation

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In an article centered on a so-called balancing act by Big Oil in an environment in which the Trump Administration is rolling back a broad swath of climate regulations, the news writers had this:

The industry’s biggest trade groups have said they support effective and reasonable regulations. Nixing the programs, the lobbyists said, would create an impossible choice for the industry—ask the administration to reinstate some rules, or walk back its previous support for some regulations.

This is timidity writ large. If the trade groups and the managers of the groups’ constituent companies really think this, that, or those rules are good ideas, then they should self-regulate along those lines. There’s nothing to stop them; there’s nothing forcing them to render themselves dependent on government diktats.

Lobbyists have signaled to the EPA that creating a regulatory vacuum could invite new lawsuits.

The proper response to those lawsuits is to stop being so desperate to settle and to stop hiding behind Government apron strings. With the climate regulation roll back, there are fewer grounds on which to base a lawsuit, and the proper response to those remaining that are brought is to refuse to settle, push the pace on the trials, and burn the suers to the ground in open court. That’ll be expensive in the early stages, especially as they’re forced by activist district judges to go through the appeals process, but it will reduce long-term legal costs far more by obviating a large number of lawsuits in the aftermath of those early ones.

It’s past time for business managers, especially including those running energy producing businesses, to recall the nature of their management roles.

The central imperative of a management position in the United States is to manage a company in a way that satisfies the company’s owners. There is nothing in that imperative that requires a manager to manage his company in a way that satisfies the demands of Government beyond simply following law. Those managers who are that timid that they need to be told what to do by Government need to be replaced; they’re unfit for their management positions.

This is America. Business managers are free to act on their own initiative; they are not required to wait on Government.

Abandoning Proportional Retaliation

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Israel hit a Houthi leadership conference and succeeded in killing a dozen or more of the Houthis’ top leaders, including their “prime minister” and “foreign minister” while injuring several other attendees. In the Wall Street Journal article describing the attack and its implications, the news writers noted that

Until Thursday’s strike, Israeli retaliation for Houthi attacks had largely been limited to infrastructure like ports and power stations.

Then they quoted Oded Ailam, ex-Mossad official and currently of the Jerusalem Center for Security and Foreign Affairs:

Israel has abandoned the old formulas of proportional retaliation[.]

As it should. The old formulas had nothing to do with proportionality, for all that their users insisted so. Those old formulas centered on tit-for-tat responses, which did nothing to deter future attacks, but did succeed, very effectively, at running up casualties, especially civilian, on both sides as a result of repeated and escalating tit-for-tat exchanges of retaliations.

There’s nothing at all proportional in a strategy that increases casualty rates rather than reduces them.

True proportionality is much more than retaliating in the moment after an in-the-moment attack. Proportionality done correctly, which includes serious consideration of the morality of the response, takes a longer view and considers how a current retaliation would impact future attacks by an enemy and so impact the civilian casualties associated with those future attacks as aggregated to the damage done—civilian as well as military—by a proximate retaliation. A truly proportional retaliation would mitigate, if not preempt, those future attacks by being sufficiently heavy and not immorally tit-for-tat.

Oil Producers in a Difficult Spot?

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That’s the central thrust of a couple of news writers in Wednesday’s Wall Street Journal. Their lede:

Big Oil has a tough balancing act: help further President Trump’s “energy dominance” agenda and stick to its climate goals at the same time.

And

The escalating assault on climate initiatives puts large drillers such as Exxon Mobil, Chevron, and Occidental Petroleum in an awkward posture. They have pledged to curb their emissions—and unveiled plans to spend billions of dollars on low-carbon technologies such as carbon capture and storage, hydrogen and biofuels.

This whole idea of a “tough balancing act” is utter nonsense. The Trump administration simply is moving to take the shackles off American energy production.

Nor is there anything at all in the Trump administration’s assault rolling back of climate initiatives that make no economic or climate sense that prevents those and other businesses from continuing those pledges. On the contrary, in the present and improving environment, “Big Oil,” natural gas producers, coal miners, wind and solar energy producers—all of them—are better able to make their production decisions, including those concerning their emissions, based on sound business decision-making and not in response to government pressures to produce only certain types of energy.