Tag Archives: courts

The Courts Get Another One Right

Posted on by
Reply

This case involves how much Federal control over land deeded by the Feds to a State the Feds retain when they make the deed.  In the particular case, the Feds, ‘way back in 1949, deeded land to Ohio (in particular, the Muskingum Watershed Conservancy District) subject to the criteria that the land had to be used for flood control, conservation, and recreation.  Lately, Ohio began allowing fracking under the land.

“Environmentalists” objected and sued to try to force the land back into Federal hands.  The relevant Federal district court dismissed the suit, and it wound up in the Sixth Circuit.  The Sixth waived the BS Flag at the suit.  Although much of the Court’s ruling was based on a technicality (the suit was brought as a violation of the False Claims Act perpetrated by Ohio for allowing the fracking; the Court demurred), there is another reason to applaud the outcome.

In ruling that there was no violation of the FCA, the Court also said in part,

neither the relators’ [the “environmentalists”] complaint nor their proposed amended complaint includes facts that show how MWCD would have known that the fracking leases violated the deed restrictions or how MWCD “act[ed] in deliberate ignorance” or in “reckless disregard” of that fact.

Indeed, fracking occurs well underground and so well away from any activities related to flood control, conservation, and recreation, which are surface or near-surface activities.  Thus, since fracking does not interfere with or otherwise impact such activities, it cannot violate deed restrictions that involve strictly those activities.

This was just a naked attempt by these relators to prevent us from getting cheap energy out of the deep earth cheaply.

The Sixth Circuit’s ruling can be seen here.

 

h/t Institute for Justice

Right on the Law

Posted on by
Reply

Great Britain’s High Court has ruled that Prime Minister Theresa May may not and can not trigger, on her own initiative, Article 50 and begin negotiations with the European Union about the mechanisms and details of Great Britain’s going out from the EU.  The Parliament must first vote in favor of invoking the Article.

Great Britain’s Supreme Court likely will hear an appeal of the ruling.  Upholding the High Court’s opinion likely will spell the end of Brexit for the near future and possibly permanently and the end of May’s government.  The former is because a majority of MPs want to stay in the EU and so can be expected to vote against invoking the Article.  The latter is because May (who opposed Brexit, also, but said she’d abide by the people’s vote) would be forced, if she’s a lady of her word, to seek a new set of MPs by dissolving her government and forcing early elections in an effort to get a collection of MPs more favorably disposed.

Likely, the High Court is right on the law.  The EU is a collection of treaties which Great Britain’s Parliament has ratified, and only the Parliament, not a popular referendum, can abrogate the treaties.  But the High Court is not right on law, and it’s not right on justice.

The people have spoken.  The courts may be bound by the letter of the law (though not as tightly so as American courts are, in theory at least), but the Parliament, if it must vote, would do well to remember that they work for the people, and so the MPs should vote accordingly rather than on the basis of their own petty opinions.

A Couple of Litmus Tests

Posted on by
Reply

The two major party Presidential candidates have them.  All Presidents and candidates who wish to nominate Supreme Court Justices have them; some are more or less legitimate than others.

Democratic Party Presidential candidate Hillary Clinton’s wants:

The kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans[.]

Read that again.  Clinton wants Justices who put social agendas ahead of the actual law before them, ahead of the text of the Constitution, ahead of the Justices’ own oaths of office, which swear them to uphold and defend the Constitution, not ignore it, or “reinterpret” it.

Republican Party Presidential candidate Donald Trump’s wants:

[Justices who would] interpret the Constitution the way the founders wanted it interpreted.

Notice that.  Justices who will do the opposite of what Clinton’s choices will do: rule on the basis of what the law and the Constitution actually say, rather than on what the Justices might wish had been said.

There’s just one more litmus test that I would add, one as general and carefully nonspecific as Trump’s: lose deference to the other branches of the Federal government.  The founders also wrote the Judicial branch as the equal of the Legislative and Executive branches.  No deference is owed, no deference is legitimate.  Deference subordinates what is intended to be a coequal branch of the government to the other two.  Besides, a law is Constitutional, or it is not; that does not depend in any way on who says it.   Further, a matter before the Court comports with the law and the Constitution on its merits, or it does not; that does not depend on who is bringing or defending the matter.

One of these two will be nominating Justices in the next term—at least one, likely three, and maybe four or five.  The next President will determine the tenor of the Court and the viability of our legal system for generations.

It’s clear which set of choices are better for the present and long term health of our nation.

She Was Right the First Time

Posted on by
1

Supreme Court Justice Ruth Bader Ginsburg, recall, commented on NFL quarterback Colin Kaepernick’s kneeling when our national anthem was played before the start of San Francisco 49ers games, saying that Kaepernick and his ilk have the right to protest but that it’s “dumb and disrespectful.”

Now she’s apologizing for saying that, even though she’s done nothing here that wants an apology.  She’s doing so, too, just a short time after she expressed her contempt for Republican Party Presidential candidate Donald Trump, thereby irrevocably demonstrating her prejudice and the fact that she’d prejudged any case that might come before the Court from a Trump administration.

This is another Supreme Court vacancy waiting to happen, and not too long into the next administration.

Disparate Impact

Posted on by
Reply

Some folks sued RJ Reynolds Tobacco Co over its hiring policy that

allegedly gave preference to applicants with two to three years of job experience out of college and disfavored those with closer to a decade in the workforce. The company’s guidelines provided to its hiring contractor, according to the ruling, said the greener group of workers “adjusts easily to changes.”

The suit centered on the premise that this policy had a disparate impact on older workers.  In the words of Lee Parks, an employment and civil rights lawyer with Parks, Chesin & Walbert, the policy means that

Those over 40 need not apply[.]

Judge William Pryor, writing for the majority at the 11th Circuit, which heard an appeal from the trial court’s ruling, wrote Indeed.  Disparate impact questions only apply to job holders, not those who’d merely like to hold a job.

Apparently disparate impact as justification for “corrective” action or as a cudgel is good only for some groups of Americans, but those who aren’t currently the favored ones don’t get its use.

This is one more reason to do away with disparate impact as an excuse for anything at all.