The US Judicial Conference’s Committee on Codes of Conduct says it has decided to drop its attempt at a rule banning from consideration as judges anyone who ever was a member of The Federalist Society.
Some are touting this as a victory and “judicial mischief averted.”
Not a bit of it; nothing has been averted. The Codes of Conduct committee has just taken its attempt to politicize our courts underground.
The DC Circuit has decided to rehear General Michael Flynn’s request for a mandamus ruling ordering the DC District Court to accept Flynn’s motion—agreed and proffered by DoJ—to drop entirely the case against Flynn. The Circuit plainly does not trust the original Circuit ruling to issue the mandamus and so to order the lower court.
The Wall Street Journal has opined on the matter. While I disagree with the DC Circuit’s decision to retry the Flynn mandamus appeal en banc, I more strongly disagree with the WSJ‘s rationale for not rehearing it.
It will stoke more public cynicism about the politicization of the judiciary. This alone ought to have persuaded the DC Circuit not to rehear its panel’s decision.
No court should hear or not hear a case, or rule in a particular direction, based on public perception of the court. Every court—if it’s to preserve the legitimacy of the court and of the judiciary as a whole—must make those hear/rule decisions based only on the merits of the case at hand.
That is the subject and purpose of the judges’ oaths of office and the subject and purpose of the Judicial Branch.
The Supreme Court has ruled—7-2—in favor of the Little Sisters of the Poor and other organizations. The Court upheld the Trump administration’s rule exempting these employers from an Obamacare requirement to provide insurance coverage that includes contraception.
Justice Clarence Thomas wrote for the Court:
We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.
Justice Ruth Bader Ginsburg dissented.
…this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.
Ginsburg is being disingenuous in this. Contraceptives are dirt cheap in Walmart and drug stores. It’s no great burden for “women workers” to pay for contraception “out of their own pockets.” If it’s a burden to seek “contraceptive coverage” from other sources, that’s the direct result of Obamacare driving up the cost of all coverage.
Ginsburg is being sexist in this. Condoms are nearly as cheap and even more widely available. But Ginsburg is blithely assuming that contraception is solely the responsibility of the woman.
From an unexpected quarter. The Supreme Court has ruled against Washington State in its suit regarding faithless electors. The decision was unanimous, and the opinion held in part
Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does[.]
The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for president[.]
That’s a reflection of our Constitution’s 10th Amendment and an affirmation of textualism, and that’s what makes it surprising, coming as it does from the ruling’s author, Justice Elena Kagan.
The Supreme Court has ordered a restructuring of the Consumer Financial Protection Bureau: its single director, removable only for inefficiency, neglect of duty, or malfeasance in office, among other things, was an unconstitutional abridgment of Executive Branch authority.
Chief Justice John Roberts, writing for the Court, said that the
setup meant the CFPB’s director was unaccountable to the executive branch, creating an unconstitutional diminishment of presidential power.
“The CFPB’s single-director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one[.]”
And then,
To address the problem, the court changed the CFPB removal provision to make the director subject to presidential removal for any reason.
That’s the error. The Court’s position of the unconstitutionality of the CFPB’s structure is entirely correct. The Court’s remedy is entirely wrong.
With this ruling, the Court has unconstitutionally legislated from the bench, a thing it does far too often for far too long.
The correct remedy would have been to strike the CFPB entirely as unconstitutional and return this inherently political matter to where it belongs: the political branches of the Federal government, Congress and the Executive Branch for new legislation. And to We the People, the owner-boss of our Government, both the two political and the judicial branches.