Tag: Supreme Court

Supreme Court Commission Comes Through

 

On April 9, President Biden issued an executive order to form a bipartisan presidential commission to examine possible reforms to the United States Supreme Court. The call came at the same time as a strong progressive push to expand the size of the court in order to allow the Democrats—with their wafer-thin control of the Senate—to add perhaps as many as four justices to the court. The plan was to convert a six-three Republican majority into a seven-six Democratic majority—assuming that the president could fill four seats with the midyear elections looming.

No more. After the issuance of the commission’s preliminary draft report, it seems that the push to “pack the court” is over. In general, the commission is to be highly commended for its preliminary work. Its exhaustive draft report has none of the signs of a political screed. Its long, thorough discussions are largely free of the inflammatory rhetoric that mars so much of the partisan debate on the role of the court. The report is well-written, scrupulously documented, and filled with arguments that start with “on the one hand,” only to move adroitly to address the issues “on the other hand.” Just that stylistic choice offers a strong sign that no controversial reform will occur. Meddling with Supreme Court tradition and practice requires a solid consensus about what is broken and an equally solid conviction of what counts as an appropriate cure.

On the court-packing issue, it is quite clear that the consensus is against the move. Indeed, I was both somewhat surprised and highly pleased with the carefulness of many of the major institutional submissions. The American Civil Liberties Union has, to say the least, taken positions that are different from mine on a wide number of issues, such as (in alphabetical order) affirmative action, abortion rights, campaign finance, and voting rights, to name a few. But the thoughtful submission by its national legal director, David Cole, sounded more like the ACLU of old, insisting that the dominant role of the courts is to protect those “unable to protect themselves through the political process,” which promptly led it to be “skeptical of proposals for court reform that would risk further politicizing the court or the processes for the selection of justices, such as proposal to increase the court’s size.”

QOTD: Three Generations of Retcons is Enough

 

Jacobson v. Massachusetts has become the catchall decision for justifying all kinds of pandemic countermeasures. I had not looked into the matter in detail, as I am not a lawyer (thank God). However, I ran across an article on SSRN from Josh Blackman (one of the writers at The Volokh Conspiracy) that dismantles how a decision to allow a jurisdiction to levy a fine equivalent to a parking ticket for the refusal to receive a vaccination against one of the most deadly diseases known to man (smallpox is a Risk Group 4 select agent, alongside Ebola and its relatives; by comparison, anthrax and the Black Death are merely Risk Group 3) mutated like a virus into allowing all kinds of measures under the rubric of public health.

It is perhaps unsurprising that the most disturbing U.S. Supreme Court decision to remain on the books as good case law plays a role here. Buck v. Bell is the infamous decision that allowed for the state to forcibly perform medical procedures on people without their consent to uphold the good of the gene pool, giving us the infamous line that “three generations of imbeciles are enough.” As if forcing a person to be fixed like a stray dog is not bad enough, there is evidence that Carrie Buck was not even mentally handicapped, nor was her honor student child, and she was likely set up by her lawyer, who was either horrendously incompetent or actually in favor of negative eugenics. You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.

Join Jim and Greg as the welcome an actual good martini in addition to their evaluation of ever-worsening conditions in Afghanistan. First, they cheer the U.S. Supreme Court for ruling that the Biden administration must reinstate the “remain in Mexico” policy which requires asylum seekers to stay outside the U.S. while their claims are investigated. They also document a long list of mainstream media reports chronicling just how bad conditions are getting for people desperately trying to get to the Kabul airport and how the Biden administration’s narrative doesn’t match reality at all. And they’re getting suspicious that the Biden administration’s vow to evacuate every American who wants to get out may be setting up an ugly talking point after August 31st.

 

This week on “The Learning Curve,” co-hosts Cara Candal and Gerard Robinson talk with Michael Bindas, a senior attorney with the Institute for Justice (IJ). They discuss IJ’s 2020 landmark U.S. Supreme Court win in Espinoza v. Montana Department of Revenue, and its implications for state Blaine Amendments, bigoted legal barriers that have blocked religious liberty and school choice for over a century. They delve into the current legal and political status of school choice in America, at a time of unprecedented support for education savings account, education tax credit, and voucher programs. As lead counsel for the plaintiffs in the Maine school tuitioning case, Carson v. Makin, recently granted certiorari by the U.S. Supreme Court, he explains the central issues, and what another major victory could mean for religious school parents. They then turn to higher education, and Michael offers thoughts on why access to religiously-affiliated primary and secondary schooling is still viewed so differently than students attending religiously-affiliated colleges and universities through state and federal grant and loan programs.

Stories of the Week: EdWeek reports that school board meetings across the country have become increasingly rancorous as a result of growing partisanship, the lack of local news coverage, and social media – to the detriment of students’ academic success. The U.S. Department of Education announced the expansion of the Second Chance Pell program, allowing up to 200 colleges to provide prison education programs for those who have previously been unable to access federal need-based financial aid.

Byron York is in for Jim Geraghty today.  Byron and Greg cheer Mississippi’s attorney general for telling the Supreme Court there is no constitutional right to an abortion. They also react to House Speaker Nancy Pelosi rejecting certain Republicans from the January 6th commission by pointing out the radical lefties she has named to the panel. And they have some choice words for the Biden administration after learning that Hunter Biden will be meeting prospective buyers of his ridiculously overpriced art when the transactions are supposed to be anonymous.

Hubwonk Host Joe Selvaggi talks with CATO research fellow and constitutional scholar Trevor Burrus about the recent Supreme Court ruling, Americans For Prosperity Foundation v. Bonta, reaffirming the right to privacy by denying the state of California the right to compel non-profits to disclose their list of donors.

Guest:
Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and in the Center for the Study of Science, as well as editor-in-chief of the Cato Supreme Court Review. His research interests include constitutional law, civil and criminal law, legal and political philosophy, legal history, and the interface between science and public policy. His academic work has appeared in journals such as the Harvard Journal of Law and Public Policy, the New York University Journal of Law and Liberty, the New York University Annual Survey of American Law, the Syracuse Law Review, and many others. His popular writing has appeared in the Washington Post, the New York TimesUSA TodayForbes, the Huffington Post, the New York Daily News, and others.

No Fate: Supreme Court Edition

 

The Supreme Court as composed October 27, 2020 to presentThere is no arc of history towards socialism, and there is no demographic destiny leading to Democrat permanent rule. Today I sing the praises of Associate Justice Elena Kagen and all her colleagues. Justice Kagen, a 2010 Obama appointment, wrote for a unanimous court in rejecting a husband and wife team of illegal aliens’ claim that they should be eligible for green cards, permanent legal residence, because he was given temporary permission to stay here for many years. This result was all the more noteworthy as it involves a man who leveraged his temporary status here into a marriage with children, presumably given U.S. citizenship at birth.

Oral arguments were this April, with the government brief of Alejandro N. Mayorkas, Secretary of Homeland Security, et al. filed March 24. The leftist Democrat DOJ continued the Trump position on this case, signaling a slight braking on generating attractive nuisances to draw undocumented Democrat voters north. Perhaps this had something to do with actual voter’s behavior, shocking the Democrats who presumed they owned the votes of blacks and Latino/Hispanics. The Democrats presumably already had the news we are all now reading about working-class minorities shifting towards President Trump and Republicans who agreed with his economic, law enforcement, and public safety policies.

In this instance, the court members acted faithfully to their oath. They simply applied the law. Justice Kagan patiently walked through the facts and the law and made clear it was not even close. This was a case of statutory interpretation, rather than a fight over the Constitution. The government’s position is summarized in their brief’s table of contents [emphasis added]:

This week on “The Learning Curve,” Gerard and Cara talk with Melvin Urofsky, Professor of Law & Public Policy and Professor Emeritus of History at Virginia Commonwealth University, and the author of several books, including Louis D. Brandeis: A Life and Dissent and the Supreme Court. Professor Urofsky shares insights on Justice Brandeis’s jurisprudence, and why he consistently ranks among the three most influential Supreme Court justices in American history. They discuss his understanding of American constitutionalism, and how he interpreted the law to diminish consolidated financial and federal power, what he called the “curse of bigness” – big banks and business monopolies, as well as big government. They also explore Brandeis’s dissenting opinion in the U.S. Supreme Court case New State Ice Co. v. Liebmann, perhaps the best-known 20th-century articulation of the role of the states as “laboratories of democracy” under our federal constitutional system. They delve into some of the most influential dissenting opinions in U.S. Supreme Court history. For example, Justice John Marshall Harlan, the lone dissenter in the Court’s infamous 1896 Plessy v. Ferguson case, offered legal views that would later lead to the landmark 1954 Brown v. Board of Education decision overturning “separate but equal.” Professor Urofsky also offers thoughts from his 2020 book, The Affirmative Action Puzzle: A Living History from Reconstruction to Today, on one of the thorniest political and legal topics of our era. He concludes the interview with a reading from Justice Brandeis’s concurring opinion in defense of free speech in Whitney v. California.

Stories of the Week: Cara and Gerard discuss National Charter Schools Week, and this education sector’s success in improving opportunity for underserved students. In Florida, nearly 95 percent of seniors enrolled in the state’s Tax Credit Scholarship program graduated from high school during the 2019-20 school year, the second highest graduation rate since they began tracking it in 2015. A new study of admissions at 99 colleges shows that despite adopting test-optional policies to increase diversity, the share of low-income students or students of color at these colleges has risen by only a percentage point.

Hubwonk Host Joe Selvaggi talks with constitutional scholar and CATO Institute Research Fellow Thomas Berry about the recently heard U.S. Supreme Court case, Mahanoy Public School District v. B.L., and its implications for free speech, school control, and the integration of social media into the rubric of first amendment protections.

Guest:

One Vote Republic: America in the Balance

 

In 2020, Senator Ted Cruz wrote One Vote Away: How a Single Supreme Court Seat Can Change History, and in 2021 we see the United States Supreme Court again making his case. On 9 April 2021, amidst the continuing media smoke screen of one crisis or another, the U.S. Supreme Court issued a 5-4 decision holding at Americans who want or believe they need to physically assemble together in bible study will likely prevail against the Christian-hating communists running California. The razor thin majority made explicit that they were slapping down the 9th Circuit againThe left wing disagreed, regurgitating the lab-coat left’s long-rehearsed lies, and G.W. Bush’s man on the bench, John Roberts, Jr., sided with the left while taking the dodge of not adding his name to their rationale for standing our First Freedom on its head. Personnel is policy and this latest disgraceful episode again affirms the danger of letting RepubliCAN’Ts nominate justices without careful scrutiny across all areas of supposed conservative concern, from national security, to economic, to religious/ cultural conservativism. A read of the slim majority’s written opinion and a perusal of the current and retired living justices’ official biographies is instructive.

Personnel is policy, especially with Supreme Court justices:

The Left Wing:

Join Jim and Greg as they welcome an appeals court decision upholding an Ohio ban on abortions because the unborn baby has Down Syndrome. They also fume as the intel community admits there is only low to moderate confidence in last year’s reports that Russia was offering bounties to the Taliban and its allies for killing coalition forces in Afghanistan. And they shake their heads at the obvious court-packing hypocrisy of Massachusetts Sen. Ed Markey.

Join Jim and Greg as they serve up three crazy martinis. First, they look at Michigan’s terrible COVID numbers and discuss why Gov. Whitmer is asking but not mandating that high schools suspend sports and in-person classes. They also groan as President Biden sets up his special commission to consider changes to the Supreme Court, including the number of justices and how long they should be able to serve. And they’re glad to see all the real problems in the world must be solved since CNN is busy declaring Asian font to be racist.

Why Conservative Justices Aren’t True to the Constitution

 

Remember when we were all celebrating Trump’s election because he would have the opportunity to nominate people who were supporters of the traditional understanding of the Constitution? How we were relieved that at least the Court would be dedicated to maintaining the rule of law and the foundations of this country?

As often happens when conservatives are nominated, the results historically have been a mixed bag.

Host Joe Selvaggi talks with legal scholar and George Mason University Law Professor Ilya Somin about the details, the merits, and the likely implications of the Supreme Court case, New Hampshire v. Massachusetts, on state taxation power, federalism, and the power to vote with one’s feet.

Interview Guest:

Are we really in the middle of a second Civil War, and is Martial Law right around the corner?

Were the elections really “free and fair”? Why aren’t there any real consequences for election fraud?  The real difference between retail and wholesale election fraud, what it will require for the Supreme Court to hear a case, and which parts of the Constitution might apply.

Join Jim and Greg for a very lively Friday podcast! First, they cheer the Supreme Court for telling the 9th Circuit to reconsider a case where churches face tighter restrictions than non-religious gatherings. They also hammer Los Angeles and California as their COVID restrictions even forbid “unnecessary walking” and effectively make people prisoners in their own homes. And they react to Joe Biden’s confusing comments about what would happen if he and Kamala Harris ever have a major disagreement over principle.

As the shock of Election 2020 wears off and multiple challenges to count legitimate votes across several states kick into high gear, how will President Trump‘s legal fight end? One of the country’s most respected legal minds, John Hinderaker, President at the Center for the American Experiment and Powerline Founder returns to Whiskey Politics to discuss the rapidly evolving efforts to ensure the integrity of the vote. Find John at https://www.americanexperiment.org/ and http://PowerlineBlog.com.

They are who we thought they were; will we let them win anyway?: Part 2

 

Ballot boxDemocrats are not trying to hide their totalitarian intentions anymore. We are without excuse if we let them win what will be the last free and roughly fair election in any of our lifetimes. The Supreme Court will either swing back to preserving our constitutional republic, led by Justice Thomas and the Courageous ACB, or it will be the implement of our destruction, with at least 6 leftists plus the craven fool Roberts gutting the Constitution and affirming socialist tyranny not by bullets, at first, but by rigging our electoral system. Between imposing voting laws that favor Democrat ballot box stuffing and stuffing the Senate with two to four new permanent Democrat members, from the new states of Puerto Rico and the District of Columbia, the Democrats said the quiet things out loud. There is not next time, not really. There is no “when Republicans get back in power.” Consider the Democrats’ response to a Republican president actually taking his campaign promises seriously and doing what every Republican since Reagan has promised.

Democrats did not make the mistake of assaulting Judge Amy Coney Barrett a second time as they did when she was nominated for an appeals court seat. They did not repeat the Kavanaugh fiasco. Instead, they laid the predicate, established the public narrative, that the process was illegitimate, that it was “packing the court.” This is so they can engage in real court-packing, adding as many seats as they deem necessary to make the court a rubber stamp for a Harris-Schumer-AOC agenda.

Like the Senate filibuster, the nine-seat court is gone forever if we let Biden win. The left will not accept not controlling the Supreme Court. Ever. Only if the court votes their way on every issue that matters to the socialist wing of the Democrat Party is the court legitimate.

Join Jim and Greg as they see plenty of votes lined up to confirm Judge Amy Coney Barrett to the Supreme Court. They also dig further into Joe Biden’s energy plan and see just how quickly he wants to wipe out fossil fuels. And they wince as Biden literally forgets who he’s running against.

Former Reagan Speechwriter, and Ricochet Co-Founder, Peter Robinson sits down with Dave Carter to discuss everything related to the 2020 Presidential Election. From the state of the voting public to journalistic subterfuge, from the strengths and weakness of both candidates to the reliability of various polls and polling methods, Peter and Dave take on practically every aspect of Campaign 2020. The dynamics of this engaging and enjoyable conversation travel from serious political analysis, to two guys sitting on the front porch, wondering why more people don’t understand history, and beseeching the kids to get off the lawn. Along the way, Peter offers a compelling list of what could happen in the event of a Biden victory (it’s safe to say that you need to hear this).

Then Dave welcomes Ricochet Member Brady Kiel (Herrforce1) to the program.  Brady, an Air Force Reservist, spent some time in Dave’s old line of work as an active duty military historian.  As you might imagine, the guys have a great time comparing notes and trading stories, experiences and reflecting on their military service.  From start to finish, this episode is loaded with compelling conversation and even a few laughs.  We’re sure you’ll enjoy your time with Dave and his guests.