U.S. Supreme Court

Supreme Silliness




Christopher Johnson at Midwest Conservative Journal makes the best argument I have seen yet on behalf of Donald Trump:  to see the look on Justice Ginsburg’s face as President Trump nominates her successor:


Elderly, senile woman publicly humiliates herself:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Even some of Ginsburg’s friends can’t believe that anyone would be that stupid.

I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”

Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn’t have said it.

And that’s really a key reason justices don’t talk like Ginsburg did. Sometimes they have to hear cases involving political issues and people. Having offered their unprompted opinions about such things can lead to questions about prejudice and potential recusal from future cases.

As [Jeff] Greenfield notes, Ginsburg was a part of the court that decided who the president was when the 2000 election was thrown to the Supreme Court, so this isn’t uncharted territory. Had she said something similar about either Bush or Al Gore, would she have been able to hear the case?

Louis Virelli is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled “Disqualifying the High Court.” He said that “public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don’t necessarily think she would be required to do that, and I certainly don’t believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments.”

Hellman said Ginsburg’s comments could muddy the waters when it comes to decisions not just involving Trump but also his policies — something that could come up regularly should he win the presidency.

“It would cast doubt on her impartiality in those decisions,” Hellman said. “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.”

And did I happen to mention that the loopy old broad is a eugenics fan?

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” Continue reading

Fortnight For Freedom: Abraham Lincoln on the Supreme Court






fortnight for freedom 2016


(This is a repeat from last year.  In light of the Supreme Court’s decision yesterday, go here to read about it, in Whole Woman’s Health v. Hellerstedt striking down two key sections in the Texas abortion law, it seemed more relevant than ever.  The Supreme Court is growing ever more high handed in its rulings, and what it is engaged in when it comes to favored made up court created rights like “abortion” and “gay marriage” has nothing to do with the law or the constitution.  In his blistering dissent in Hellerstedt, Justice Clarence Thomas nailed it:


Some quotes from Abraham Lincoln in how to react to illegitimate Supreme Court decisions.  An illegitimate decision is one in which the Court arrogates to itself the power of a legislature under the mendacious guise of merely interpreting the Constitution:

1.  I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government.

2.  Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

3.  We think its (the Supreme Court) decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution.

4.  At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

5.  Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. Continue reading

I Will Not be Cowed into Voting for Trump this November

Roughly eight percent of the Republican delegates have been doled out thus far, but evidently it’s all over but the shouting. We might as well make piece with GOP nominee Donald Trump, we’re told. Whether or not one is ready to so readily concede, I’ve already seen the message pivot on various social media platforms. Despite the fact that a majority of Republican voters do not like or simply loathe the man, the quadrennial ritual is about to take place. Yes folks, it’s time for another lovely round of “Vote Republican in November or else.”

Oh I’m just as guilty as anyone as playing this game before. I almost made it through 2012 myself before regretfully folding and pulling the imaginary lever for Mitt Romney (more on that later), and I did the same for McCain in 2008. I’ve made the same arguments now being put forth by Team Vote GOP or Die, so I understand them. I personally find it rather amusing that the same people who have kvetched the most about this strategy in the past are now the ones wielding it, but so be it.

There are two core arguments being put forward as to why we need to get in line for Trump: the courts, and “OMG! Hillary!” (Yeah, Bernie too, but establishment Democrats are ironically better at putting their thumbs on the scale to thwart grassroots sentiment than the not quite so Machiavellian GOPe, so forget him for the time being).

Normally I’d fall in line with this way of thinking, but not this time. Let’s address the courts first.

Antonin Scalia’s death has made the Supreme Court, and the corresponding presidential appointment power, even more pressing of an issue than it normally is. Assuming Senate Republicans actually hold the line – and to their credit, I think they will – then the next president will not only choose his replacement, he or she might get to fill two other vacancies, if not more. Do we want Hillary to make those appointments? Donald Trump may not be counted on to make suitable choices, but at least with him we have a fighting chance. Sure he hasn’t demonstrated any familiarity with constitutional law, or a deep understanding of originalism, and on several high profile cases (such as Kelo) he took the anti-Constitutional side. But he will surely have the best men and women advising him, and we can trust that he will pick good people to pick good people.

To which I reply: The infinitesimal chance that Donald Trump will astutely nominate jurists whose philosophies echo Antonin Scalia, Samuel Alito, or – dare a girl dream – Clarence Thomas, does not counter all of the other negatives associated with Donald Trump. When speaking of constitutional issues Trump seems barely more coherent than a high school kid who has not done his social studies homework. It’s easy to make too much of his comment that his radically pro-abortion sister would make a “phenomenal” Supreme Court justice, but it underlines his fundamental lack of seriousness on the courts and constitutional issues. He may mouth platitudes about appointing “pro life, conservative” justices, but even when he’s trying to say things he knows his supporters want to hear, he still betrays his complete lack of understanding of what the courts are about. I don’t want “pro life, conservative” justices, I want constitutionalists who will adhere to the document as written and originally understood by its framers. Such justices would naturally decide in a manner that would overturn the social justice engineering wrought by the courts, but would also consistently vote so as to keep the courts out of other areas that are not their concern.

It’s also folly to count on Trump picking excellent advisers to assist him with these picks. We’re left hoping that he picks the right person to pick the right people. Hey, I have an idea – let’s cut out the middleman. Maybe instead of Trump we could have a president who, say, has argued (and consistently won) before the Supreme Court and thus might actually know a little but about constitutional law. Oh, I know, that’s crazy talk. Better to roll the dice, cross our fingers and pray that Trump picks the right person to pick the right person.

Even assuming Trump hits the jackpot and chooses a suitable replacement for Scalia, guess what – he’s likely gonna have to repeat that process multiple times. I would be surprised if Clarence Thomas and Anthony Kennedy don’t resign during the next Republican administration. Ruth Bader Ginsburg might try to hang on for another four years in case Trump wins, but even she might walk away. So not only are we relying on Trump getting it right to simply hold the line, we might need him to make the right call when it comes to appointing someone who could switch the court’s basic composition.

Wait. There’s more. While we focus obsessively on the Supreme Court we forget to scores of lower court appointments that will be made. As Danel Horowtiz details, less than one percent of cases make it to the Supreme Court, meaning that most cases are decided on the appellate level. And as Horowitz shows, President Obama has completely remade the lower courts.

While most people focus exclusively on the Supreme Court and how that institution has reached rock bottom with some of the decisions of the past term, the situation in the lower courts is even worse.  And remember, only 1% of this country’s cases ever make it to the land’s highest court.  Obama has now appointed 54 active appeals court judges, which represents 30% of the appeals court benches.

As of 2016, nine of the 13 circuits are comprised of majorities of Democrat-appointees.  In totality, there are 92 Democrat circuit judges, 77 GOP judges, and 10 vacant seats.  The all-important D.C. Court of Appeals—the second most important court in the land on constitutional issues—is now 7-4 majority Democrat-appointees, with four judges appointed by Obama alone.

On the district level, Obama has now appointed 260 judges, 39% of the federal district bench.

Even if we trusted to Trump to somehow have a better batting average of appointing constitutionalists to the bench than Ronald Reagan and the Bushes, it probably won’t matter. The courts are so fundamentally broken that even appointing the right people – which we can’t even trust Trump will do – won’t solve anything.

Which brings us to the final point. The judiciary has usurped the legislature’s role in deciding social issues. It has become a super legislature, far beyond anything imagined by the framers of the Constitution. Even if the courts decided rightly on these major social issues, we should question why they are even deciding so many of these issues in the first place. Major judicial reform is necessary, including such ideas as jurisdiction stripping. While I wouldn’t expect even a President Cruz to succeed in this arena, at least not as thoroughly as one would hope, there is no chance in Hades than a President Trump will get behind any initiatives to reform the judiciary. In the end, the courts are simply too far gone to think that electing Donald Trump can make any difference whatsoever.

Which brings us to the “but Hillary” argument. Yes, Hillary Clinton is a sociopathic, charisma vacuum who would almost literally (maybe not almost) kill someone who stood in her way of obtaining office. She has no scruples, would say anything to get elected, lies as easily as any of us breathe, and is a doctrinaire leftist.

But I also kind of just described Donald Trump (except for the charisma thing – I’ll give him that).

Phillip Klein laid out a pretty exhaustive list of Trump’s political failings. It’s hard to see in this list precisely where he’s markedly better than Hillary Clinton. In fact both are political chameleons who seem to thirst after power, and will do and say anything to attain that power. In the end, President Clinton or President Trump will do nothing to repeal Obamacare, and both seem to be fine with ideas to further socialize health care. Neither is going to reign in the judiciary, nor are they going to halt the expansion of executive powers. And on and on.

As mentioned above I held out for much of 2012 before finally succumbing to the “he’s better than Obama” argument as applied to Mitt Romney. The thing is, Mitt Romney is Edmund Burke, Barry Goldwater, and Ronald Reagan rolled into one compared to Donald Trump, not to mention his clearly superior moral character. Mitt Romney, for all his faults, truly was a superior alternative to Barack Obama. I cannot say the same about Donald Trump as compared to Hillary Clinton.

So that is why no amount of pleading will ever get me to vote for Donald Trump. If it makes you feel better I live in a state that has zero chance of going Republican in a general election, so it also won’t matter. As I said in my previous post, Donald Trump actually could and maybe even likely will defeat Hillary Clinton. God help our nation that this is our choice.

NB: If Tuesday goes as poorly as I fear it might, this will be my final post on presidential politics until election day in November. I don’t think I can stomach eight months of coverage of these two fundamentally loathsome human beings.

Massachusetts Abortion Clinic Bubble Zone Law Struck Down



Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors  35 feet away from abortion clinics, as a violation of the First Amendment.  That is a good thing.  The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.


JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.

I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV). Continue reading

Defending the Indefensible


Harry Blackmun



My old legal ethics (Yeah, I know, attorneys are taught ethics?) professor, Ron Rotunda, has a fascinating opinion piece in the Chicago Tribune recalling a time in 1994 when he was in a small group that heard the late Justice Harry Blackmun defend his decision in Roe v. Wade:



Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.”  With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”  When White announced his dissent, “White was emotional.”  Blackmun asked rhetorically: “Why was White so strong against my view?  His upbringing in modest circumstances?  Or his wife’s influence?” 

It did not occur to Blackmun that White based his dissent on the court’s precedent.  Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.”  Blackmun did not give that presumption to White.

Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive”  and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.  In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.”  Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization. Continue reading

The Right to Kill Your Kid

Right you are Klavan on the Culture!  Abortion is a perfect example of the tranformation of a fairly low level debate state by state into a national issue that haunts the nation year after year.  As the Supreme Court succeeded so well in resolving the slavery question by the Dred Scott decision, so it has succeeded in resolving the abortion issue by the Roe v. Wade decsion.  Of course that is if “resolve” means “transform an issue into a nation wide fierce controversy that will never go away until it is resolved through other means than the courts”.

Justice Scalia put it well in his dissent in Planned Parenthood v. Casey (1992): Continue reading

Al Franken Takes a Nap During Elena Kagan Testimony

Senator Al Franken’s visits to Dave Letterman’s Late Show is taking a toll on him.

As far as Miss Kagan’s assertion on the monopoly of truth or wisdom, it’s apparent that God has no role in her life whatsoever.

Elena Kagan Says It Is Fine If The Law Bans Books

SCOTUS nominee Elena Kagan has argued before the Supreme Court that it’s fine if the Law bans books.

Her rationale?

Because the government won’t really enforce it.

I’m no legal scholar but this sounds like a 3rd grade argument.

Aren’t our nominees suppose to have better reasoning skills and a solid grasp of the U.S. Constitution?  As well as a fundamental understanding  of such concepts like Freedom of Speech?

Continue reading

Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

Back in 1979 I was one of the founding members of the Christian Legal Society at the University of Illinois.  Yesterday, the Supreme Court ruled 5-4 that the Hastings College of Law at the University of California was within its rights to deny recognition to the Christian Legal Society because the group requires that members agree, among other principles, that sexual activity outside of marriage between a man and a woman is sinful, and that members must be Christians.  Hastings contended that these principles violated the open membership policy of the university, in that it would discriminate against prospective members on the grounds of religion and sexual orientation.  Go here to read the decision.

Justice Alito, joined by Chief Justice Roberts, Scalia and Thomas, wrote a thought provoking dissent.

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

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Supreme Court Holds That the Second Amendment Applies to the States

In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

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SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

I read a comment[1] a few weeks ago on GetReligion.org attempting to explain why John Paul Stevens was the last Protestant in the U.S. Supreme Court which simply said that Catholics and Jews have a tradition of being immersed in law (Canon Law and Halakha respectively for Catholics and Jews as an example).

This struck me as interesting because at first glance it kind of makes sense.

Of course there is much more to why the current make-up of the U.S. Supreme Court, 6 Catholics, 2 Jews, and an Episcopalian, is as it is.[2]

But I thought it was an interesting enough topic to dive into.

Lisa Wangsness of the Boston Globe chimes in with her two cents worth [emphases mine]:

Evangelical Protestants have been slow to embrace, or to feel welcomed by, the elite law schools like Harvard and Yale that have become a veritable requirement for Supreme Court nominees. One reason for this, some scholars say, is because of an anti-intellectual strain within evangelicalism.

As Ronald Reagan would say, there you go again, pushing the liberal theory that Christians are stupid (at least Evangelical Protestants).

Lets get beyond these stereotypes done by liberals to Christians.

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Elena Kagan and the state of Democracy

I’m not sure I ever expected to wake up to read the New York Times coverage of a new nominee to the Supreme Court and find myself in agreement.

Of course, they think she’ll be a fine justice and I think she’s a pro-abort and could do without her. I also think she looks like Ursula from “A Little Mermaid,” which is less a comment on her than it is a comment on how many Disney movies I watch with my wife (curse you, Disney movie club!). That’s not what we agree on.

What we agree on is that she is a stealth candidate and that just by itself makes us uncomfortable. The official editorial reads:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing.

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Supremes: Mojave Desert Cross Can Stay

In a tribute to common sense, the U.S. Supreme Court has ruled that a Cross raised in 1934 as a tribute to U.S. soldiers who died in World War I may stay at the Mojave National Preserve.  The depressing part of this news was that the vote was 5-4.  Stevens, who is retiring, voted with the four justices who viewed the Cross as a threat to our constitutional order.

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Christian Legal Society v. Martinez

As I’m a week and a half from law school exams, I don’t have the time to do this justice but there’s an important case involving a group I’m involved in at law school that was argued in front of the Supreme Court today. In sum, the school banned the CLS (Christian Legal Society) because it wanted the Christian Legal Society members to be…well, Christians. The school defends itself on the idea that allowing any discrimination is intolerable and would open a slippery slope to racist groups (no, seriously-read the article and the questions of Sotomayor & Stevens. Glad that Obama appointment is doing well for Christians).

So pray for a just result that will protect the rights of Christians to assemble.

Looking Back on Justice Stevens: Kelo

From a Catholic point of view, retiring Supreme Court Justice Stevens’ extreme commitment to supporting unlimited abortion in our country is clearly one of his worst legacies as a justice, and one most likely to be mirrored by whoever is chosen to replace him by President Obama.

There are other reasons to look back with a critical eye on Stevens’ tenure on the court, however, and blogger Lexington at The Economist highlights what he regards as the worst opinion that Stevens’ authored: the majority opinion in Kelo v New London, in which Stevens and the liberal majority of the court held that the constitutional powers of “eminent domain” can be used by local government not only to secure land for true “public use” such as building roads or public buildings, but to secure land for private development. In simply terms: Kelo means your city can force you to sell your home to make room for a new shopping center.

Kelo is certainly one of the worst decisions of recent years (giving far more real room for abuse of power by large corporations than the Citizens United decision, which Obama demagogued in his state of the union address) and underscores in an important way how the “progressives protect the little guy while conservative protect big business” narrative fundamentally misses the real and more complicated dynamics at play in our polity.

Stevens to Retire

Get ready for Obama appointment, Round 2.

Supreme Court Justice Stevens announces he will retire in the summer.

Not sure how the timing will work on this, especially as Obama and the Democrats try to avoid being too contentious right before the November elections. That might play in our favor as far as getting a more moderate nominee. It will also be interesting to see if the GOP can or will delay the nominee as they have the 41 votes to filibuster.

The names being thrown around are the same ones being thrown around before; we’ll see where he goes with this pick. Time to start praying again.

Supreme Court Justices and Religion

To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:

But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…

…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

Continue reading

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