Judge Jay Bybee, Circuit Judge of the US Ninth Circuit, has written a brilliant dissent in the now moot travel ban executive order case. The dissent is joined by four other judges of the Ninth Circuit. It is a model of what a judicial opinion should be: a clear look at relevant constitutional law, statutory law, and applicable prior case law. The problem in our society is that the left has succeeded in weaponizing our courts to use political tactics to reach desired ends, rather than a dispassionate search for the law. Such methods win momentary political battles, but they destroy what a court should be: a neutral forum dedicated to applying the law. The last paragraph of the dissent is poignant:
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and
persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all. I dissent, respectfully.
Of course the comments were made because it was clear that the courts were acting as political forums and issuing political, not legal, rulings based upon the personal predilections of the judges involved. When courts get political any concept of the rule of law flies clear out the window and we are left in a world where the law is merely another tool in the arsenal of those with whom the judges political sympathize. In the context of the Trump administration it is clear that many Federal judges share the view of the left that Donald Trump is not a legitimate president and they will prostitute their courts, and ignore applicable legal precedents, in order to hinder him. God help us all.
Here is the text of the dissent: Continue Reading
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.
“The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .” The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
From the dissent of Justice Antonin Scalia in Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Kim Davis, elected Democrat county clerk of Rowan County, Kentucky, goes to jail for defying a Federal court over gay marriage. Details from Allahpundit at Hot Air:
An interesting detail from BuzzFeed: Lawyers for the gay couples who want her to issue the licenses asked the court to fine her, not send her to jail. Since when do gay-rights supporters ask for leniency for a Christian who’s defying them on gay marriage? Since, I think, this case started picking up national media attention. They don’t want to make a martyr out of Davis. Locking her up does that in a visible way that hitting her in the wallet doesn’t.
The judge ordered her locked up anyway. For a reason:
The court assumed, not unreasonably, that sympathizers would shower her with cash to cover the fine, which means there’d be no real pressure on her to comply with the order to begin issuing licenses. The only way to pressure her was jail.
David told Todd Starnes of Fox News that she was prepared for that if it came to it:
“I’ve weighed the cost and I’m prepared to go to jail, I sure am,” Mrs. Davis told me in an exclusive interview. “This has never been a gay or lesbian issue for me. This is about upholding the word of God.”
“This is a heaven or hell issue for me and for every other Christian that believes,” she said. “This is a fight worth fighting.”…
“I would have to either make a decision to stand or I would have to buckle down and leave,” she said, pondering her choices. “And if I left, resigned or chose to retire, I would have no voice for God’s word.
That’s the first time I’ve heard a religious believer suggest that they wouldn’t have a voice for God without their public office, but okay. Meanwhile, Kentucky needs to figure out what to do about marriage licenses while she’s in jail. She can’t be fired; she’s an elected official. She could be impeached by the state legislature, but good luck getting politicians to hold a big public pageant in a red state to boot a devout Christian from office for resisting gay marriage as a matter of conscience.
Well, this is good news. I assume that we can now expect Federal courts to order the jailing of all who defy statutes and court orders. The IRS has blithely stated for years that they simply “are not in compliance” with various Federal court orders and suffered zero consequences. I eagerly await the incarceration of the mayors of hundreds of “sanctuary cities” around the country that have held that somehow the Federal immigration laws of this country do not apply within their communities. Then we have President Obama who has pointedly in the past simply refused to enforce laws that he does not agree with, and has unilaterally ordered what he clearly lacks the power, under the Constitution, to order. Continue Reading