Tag Archives: courts

Supreme Court Leaks

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The Wall Street Journal excerpted an article by Joan Biskupic for CNN regarding Supreme Court discussions among the Justices [emphasis added].

Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.

Wow. Not only was a Supreme Court draft opinion leaked to the press, the Court’s private discussions about that opinion are leaked to the public.

Two things: one is that the Court has a serious problem with confidentiality, and the only way to fix it may be a complete removal and replacement of all of the Justices’ current clerks and of all of the Court’s current administrative personal. Even though the clerks are replaced annually as a matter of course, it’s clear that this crop needs to go now.

The other thing is that it’s instructive about press integrity that the press makes nearly as big a deal about the leak of the draft as it did about the draft, but it accepts this leak with utter equanimity.

“Misquote”

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US District Judge Charles Atchley, Jr, issued a preliminary injunction barring the Federal government from enforcing President Joe Biden’s (D) Executive Order and his Department of Education’s “guidance” equating sex and gender identity that

unilaterally redefin[ed] federal law to not only prohibit male-female distinctions in school sports, restrooms, and locker rooms, but also compel employers to use employees’ preferred pronouns

The Biden administration, further, is threatening to withhold “substantial federal funding” if institutions did not comply.

In his ruling, Atchley

…chided the feds for ignoring the explicit text of the Bostock decision [Bostock v Clayton County, decided in 2020] even while citing it for support, noting the majority “explicitly refused to decide” the issue of bathrooms, locker rooms, and dress codes under Title VII. The guidance documents “advance new interpretations” of two federal laws and “impose new legal obligations on regulated entities.”

The judge was being generous in stopping there regarding ignoring the Supreme Court’s actual ruling. Biden and Miguel Cardona, Secretary of the DoEd, knew what they were doing, and they did it anyway. They easily could have been held in contempt of court for their deliberate distortion of the ruling and sanctioned accordingly.

A Lawless DA

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Los Angeles District Attorney George Gascon doesn’t like California’s Three Strikes law, which requires prosecutors to include in their charging documents prior felony convictions—which on conviction for the current crime can seriously extend the penalty for that crime. Pursuant to his dislike, Gascon has refused to charge those prior felonies, and he’s ordered the prosecutors in his office to refuse, also.

Subsequent to implementing that practice, Gascon was ordered by the relevant California State district court to cut that out and to charge in accordance to the Three Strikes law. He appealed and lost at the appellate level. He’s still refusing to charge under the law, and now under two court orders, and he’s appealing the whole thing to the State’s Supreme Court.

Gascon’s rationale?

Gascon on Thursday called the appellate court’s decision “a dangerous precedent” and argued that it amounted to “taking the charging decision out of a prosecutor’s hands.”
“The Three Strikes law imposes Draconian penalties on defendants who were previously convicted of certain prior felonies[.]”

Say Gascon is right on both of those—the charging decision has been taken from the prosecutor, and the Three Strikes law leads to draconian penalties. That’s what the law requires, for good or ill. Gascon’s beef is with the political arms of California’s government; he doesn’t get to simply ignore laws of which he personally disapproves. His role as a District Attorney is to prosecute defendants within the bounds, and according to the requirements, of the law.

The recall of George Gascon must proceed to a successful end, so the good citizens of California can be rid of a prosecutor who doesn’t believe in law or in rule of law.

“Technical Expertise”

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In The Wall Street Journal‘s editorial regarding the Supreme Court’s ruling in West Virginia v EPA, in which the Court ruled that the EPA had badly overstepped its bounds, the Editors pointed out that

[t]he dissenters bemoan that Congress lacks the expertise to regulate technical subjects such as climate change.

This is a cynically offered sophistry by those activist Justices. There’s nothing preventing an inexpert Congress from consulting experts. Congress does, after all, hold the occasional hearing on matters related to legislation under consideration.

“Rights” and Precedent

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There is considerable discussion concerning whether a constitutional right to an abortion existed and was taken away by the Supreme Court’s just released ruling on Dobbs or whether, as Justice Alito emphasized in his Dobbs opinion for the Court that such a right never existed, it was merely the creation of Roe and then claimed again in Casey.

And therein lies the point of this post.

There is no right to an abortion contained in our Constitution, whether couched in the 14th Amendment or in any other part of the document—not literally, not figuratively, not encompassed in any penumbra.

Nevertheless, the claimed right has been, and rightly so, the law of the land since the 1973 Roe ruling, as are all Supreme Court rulings the law of the land from the moment of publication of the ruling. But it’s not a very durable law.

That’s a problem with Court rulings, a problem closely analogous with Presidential executive actions: Executive Orders and the like. Any “right” created by a Court ruling can be withdrawn by a subsequent Court ruling, just as any Presidential executive action can be withdrawn by a subsequent President.

The rights acknowledged in our Constitution, in contrast, can only be undone by a supermajority of us American citizens, through a supermajority of our States.

A Supreme Court precedent should be deeply respected. However, as Justice Clarence noted in his Gamble v United States concurrence,

In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions [whosever view of erroneous, I add]…over the text of the Constitution and other duly enacted federal law.

And [emphasis added]

This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents.

By their nature, no precedent can be the final word, else we’d have neither Brown nor Citizens United nor Janus, and we’d have only war to which to resort regarding rulings like Dred Scott and the war organizations like Ruth Sent Us and Jane’s Revenge currently threaten over Dobbs, that politicians like Chuck Schumer threatened if Court rulings didn’t go his way, that Cori Bush and Maxine Waters currently threaten, and that Federal government officials like Merrick Garland and Joe Biden indirectly threaten with their refusal to enforce Court rulings of which they personally disapprove.