Archive for the ‘Judicial Activism’ Category

Do Conservatives Wish to Repair the Supreme Court?

Sunday, July 1st, 2012

We Can Fix This, YES WE CAN!

One of the things I love about the United States Constitution is that it is a living document, but its life is breathed into it not by some magic power to change its meaning, or change the meaning of the words in its text, as leftists do, but by the rules laid down within it, we have the ability to amend it, or replace it altogether, through the amendment and convention processes, respectively.  These are quite difficult and potentially dangerous processes, but this is why progressives have used dishonest means to change the impact of the Constitution on law.  They figure that the best way to get what they want is to place justices on the court who will undo the meaning of the Constitution.  The recent Supreme Court decision has left strict constructionists in a bit of a quandary: Here we have a wayward element within the court, the Chief Justice, no less, and it seems we’re to be stuck with him, probably for a long, long time.  What most people don’t realize about the Court, however, is that its size and most of the rules determining its power are set by Congress, and that the Constitution gives Congress said power.  There is a way to fix the court, but it would require a Congress with guts.  Imagine that such a creature were to exist.  What could Congress do to repair the Court?

Most people don’t study the Constitution, never mind history, so they’re unaware that Congress has the power to set the number of justices on the Supreme Court.  There is nothing locking us into the number nine, and there is nothing sacred about it.  As a cost-saving measure, since we now have another mindless entitlement program for which to pay, Congress could reduce that number to seven.  The Congress could apply the LIFO(Last In-First Out) rule to determine who stays.  This would lop off Kagan and Sotomayor, they having most recently joined the court.  In a punitive mood?  Want further cost savings?  We could make that number three, and by applying the LIFO rule, this would leave us with Justices Scalia, Kennedy, and Thomas.  I would like to know which of you conservatives wouldn’t favor that?

In 1937, the New Deal was getting hammered in the Court.  President Roosevelt’s agenda was running into resistance much as Obama’s has encountered conservative resistance these days, but with a two differences:  He owned both houses of Congress, but the Supreme Court at the time was busily overturning vast portions of the New Deal.  FDR’s plan was to push his agenda through by increasing the number of justices on the court until he had a liberal ruling majority.  The Senate cried foul, and momentarily, and FDR’s plan was halted.  He naturally found another manner to accomplish his ends, and it was to sweeten the retirement pot for Supreme Court justices, inducing some of the older members to retire, and after the passage of the Supreme Court Retirement Act.  This ultimately led to the rapid retirements of several members, FDR made his appointments, and then the New Deal began to be upheld. (The Retirement Act permitted Supreme Court Justices to retire with 100% of their last salary.)

The Supreme Court was not always composed of nine members. For the record, and thanks to Wikipedia for having it condensed into this form:

Congress organized the Court that year with the passage of the Judiciary Act of 1789. It specified the Court’s original and appellate jurisdiction, created thirteen judicial districts, and fixed the number of justices at six (one Chief Justice and five Associate Justices).

Since the passage of the Judiciary Act, Congress has occasionally altered the size of the Supreme Court, historically in response to the country’s own expansion in size. Membership was decreased in 1801 to five, then increased to seven members in 1807, to nine in 1837, and to ten in 1863. It was then reduced to seven in 1866. In 1869, Congress set the Court’s size to nine members, where it has remained since.

As you can see, there were quite a number of modifications, but the salient point is that there is nothing sacred about the number nine(9).  It could just as easily be three(3), or even one(1).

This may seem a radical solution, but as you can see from the history, it’s only because we’ve become accustomed to there being nine justices.  If we reduced the number to three, it is true that we would lose Samuel Alito, but that could be repaired by a conservative president upon the retirement of one of the others.  My point to readers is that there is a solution available to us, but the question is: How badly do we want it, and can we live with the dangers?  Given the ruling of John Roberts, I am of a mind to pursue this.  I’d like to send him packing.  I’d like to send his leftist friends with him.

All we need to accomplish this is bullet-proof conservative majorities in both houses of Congress, but therein lies the problem.  If we are to have any chance to repair this, we must own both the House and the Senate.  This makes taking the Senate our most important priority in the Fall elections, but it also means that we must be sure to place conservatives in office.  Of course, one could argue(and some will) that if we capture both houses of Congress, and the Presidency, we would have no need of this ‘solution’ to our problem, but I must thoroughly disagree. Our Supreme Court is damaged, and in subsequent rulings, it will be worse if we don’t repair the court.  Can you imagine the lawsuits liberals will bring even if we do overturn Obama-care as a matter of statute?  What would this Supreme Court do with that?  With the mindless and idiotic ruling of John Roberts, inventing law out of whole cloth, I can imagine him finding some way to overturn a Repeal Act.  Statists don’t care about logical consistency, after all, or they wouldn’t be statists.

I realize my proposal will fall on deaf ears, and I know too that we have far too few staunch conservatives in either house of Congress to actually carry this out, but I’m merely telling you what could be done, legally, under our Constitution.  After all, the worst part of this Supreme Court ruling isn’t merely that Obama-care has been upheld, but the sinking realization that liberals effectively have a ruling majority with which we will be stuck for a long, long time.  Nothing is more dangerous to the country than a court that will not act as a brake on tyranny.  Let’s call it the Three-LIFO plan and be done with it.

The Sovietization of America: It’s Over

Thursday, June 28th, 2012

Let's Adopt a Flag That Fits

In what can only be termed the greatest abandonment of our Constitution by a sitting Supreme Court, the Affordable Care Act was upheld.  This decision heralds the end of the Constitutional Republic, the rule of law, and the American way of life.  This decision is a treason against the Constitution, the American people, and the entire notion of liberty that had enabled our national development and prosperity.  No American is safe from government, under any conceivable circumstance, and none should falsely believe that they might find relief at the bar of justice in the United States any longer.  This decision announces a new form of anarchy, whereby the officials of government have become participants in lawless behavior, ruling in contravention of the founding supreme law of the land, while carrying on a grotesque charade by which they pretend to have followed a law that does not and has never existed.  The Supreme Court has upheld the mandate as a tax.

Chief Justice John Roberts has betrayed the Constitution.  At least he’ll be popular on the cocktail party circuit.

To understand what has happened, the individual mandate has been defeated as a command to individuals, but not as a tax on individuals.  In other words, the court has held that the mandate is a tax that can be levied on individuals, but individuals cannot be forced to buy health insurance.  Put another way, the Supreme Court has said that while you cannot be forced to purchase health insurance, but that you can be forced to pay more (extra) taxes if you do not.

The entire healthcare bill has otherwise been upheld.

In short, the country is dead.  They can force you to pay a tax for failing to purchase bubble-gum.  They can do anything they like.  Congress and the President can enact any law they please. You are now slaves, completely.  It’s time to become accustomed to it, and I am hearing conservatives who are surrendering even on the concept of repeal.

Rampage, or whimper? I suspect most will choose the latter.

I reject this opinion.  I reject this court.  I reject the entirety of this anarchical government.

 

 

 

Will the Patient Live?

Wednesday, June 27th, 2012

Will our Republic Endure?

The Republic that is our constitutional, representative form of government stands upon a precipice.  We have a President who has undertaken to set aside the constitution at every turn.  We have a Congress divided, split between a Senate controlled by a maniacal shill for the President, and a House of Representatives led(and I use that verb very loosely) by a Speaker who is unwilling to do battle with the President, unwilling to attempt even the most basic defense of our Constitution, and incapable even of holding an outrageous Attorney General to account  without much hand-wringing and waffling.  We have a United State Supreme Court that has most recently ruled that States have no sovereignty to speak of, and not even the authority to protect its own citizenry.  We are told by the presumptive Republican nominee that he will repeal Obamacare, despite implementing a similar program in the state he governed, while his various mouthpieces talk about “replacement.”

Do you think we face long odds?  Do you believe our Republic can survive or recover?  The decision expected from the Supreme Court on Thursday will either re-shape our country forevermore, or allow us one more opportunity to restore it.  Make no mistake about it:  If the court upholds the Affordable Car Act, the Republic is dead.

I have given this a good deal of thought, busy as I have been these last two months, and as we’ve all waited to see what tomorrow will bring, I’ve decided that if the Supreme Court of the United States upholds this legislative abomination, a de facto state of war exists between the United States Federal Government and the people whose rights it had been constituted to defend.  Those who will perceive this as true will be branded enemies of the state, in one fashion or another, and the decline of this Republic will accelerate at a breathtaking pace. There can be no recovery of the Republic if this law is allowed to stand, and the urgings to repeal it from we citizens, with platforms large and small, will fall on the same deaf ears that have ignored our pleas for more than two years.  If this law stands, there is no constitutional, representative republic.

If the law is overturned, even then, our jeopardy will only have begun, because this President will ignore the ruling of the court, as he has done repeatedly, and as he has done remorselessly.  He will attempt to impose his program anyway, and even should our  milquetoast House of Representatives act to impede him, he will turn to incitement, outright.  He will attempt to raise a mob, and force his will by virtue of threats and violence.  He will do everything in his power, and many, many things beyond their legitimate exercise in order to create chaos.  Barack Obama will not rest, and none of the looters or moochers who ride upon his coattails will allow this to be overturned. We may see what can only be termed a civil war, and it will be bloody.

This is the direction in which this nation has been lurching for generations, since the so-called “progressives” took over both parties.  We have been led into a box canyon, from which none may escape unscathed.  Today, idiotic former Democrat Congressman from Rhode Island, and latest family ne’er-do-well, Patrick Kennedy warned:

“If the Court upholds the law, dangerous Tea Party extremists will go on a rampage.”

We should be so lucky.  The truth is that if the court upholds this law, Tea Party types will not go on a rampage, because they are not dangerous, although they probably should have been.

Rampage or not, civil war or not, this piece of legislation and all that has followed in its wake serve to demonstrate how fragile our Republic has become after a century of unceasing statist agitation.  In the 1930s, we could have sustained this condition had our court exhibited such staying power as to have overturned all of the New Deal legislation, because the American people were still a moral people by a vastly overwhelming majority.  By “moral,” I mean specifically in the sense that they respected the notion of property rights, the idea of self-sufficiency, and the concepts that once buttressed our constitutional foundation.  Who now can claim this description would apply?

I spent most of the first decade of my adult life serving under an oath by which I swore to uphold and defend the United States Constitution against all enemies, foreign and domestic.  I have never yielded on my oath, neither for comfort nor for ease; neither for the sake of a false unity nor for the sake of familial peace.  Sadly, many of my countrymen no longer even understand what principles that oath had been constructed to honor, and to protect, but still, I observe it, while our Supreme Court ignores it, our President demolishes it, and our Congress abandons its defense.  No branch of government seems interested in upholding it any longer, and by this procedure, they have slowly stolen our Constitution from us.  Thursday, we will learn if we shall have even one more chance to resurrect our Republic, but if we are given that chance, we must neither squander it nor revel too long in our temporary reprieve.  “Rampage?”  Indeed, we of Tea Party orientation must rampage at the polls, where we must not permit even the most thuggish brigands of the President to deter us from our electoral duties.  We must now walk back the entire statist menu, or watch our Republic perish.  If the Supreme Court does not present a sentence of death, we must make the most of any temporary stay. We must undo it all, or be undone by it.

Kennedy and Roberts Join Jihad on States’ Sovereignty

Wednesday, June 27th, 2012

The Last Sane Men?

Reading through the tortured legal arguments of the majority of the Supreme Court, in the case of Arizona v. United States, it’s clear to me that the court is now stacked to a majority with dullards.  This ruling is unconscionable, and makes no constitutional sense whatever.  This is the inevitable result of our cultural rejection of the rule of law.  The absolutely dictatorial claim of prosecutorial discretion on the part of the Obama administration in enforcing the immigration laws of the United States is just the beginning.  Now enters a Supreme Court to weigh in on the issue in such a manner as to confound the will of the people, subvert the rule of law, and turn aside long standing precedents, or to misapply them in a manner that defies all logic.  With this as our backdrop, we must wonder why we bother with a constitution at all.

Among the eight justices ruling(Kagan having recused from the case due to her participation in it while serving as  Solicitor General,) only three seemed to have even the vaguest idea what is at stake in the case, or to bear in mind any context of what our constitution actually provides.  If it were not for the minority opinion of Antonin Scalia, Clarence Thomas and Samuel Alito joining him in dissent, there would be no indication whatever that this had been the ruling of an American court.  If this is any indication of the nature of our court as currently comprised, I suggest we get rid of the lot, keeping the three dissenters in this ruling, but otherwise starting from scratch.

Anthony Kennedy has always been a quirky, flaky, and vacuous, but to see Chief Justice John Roberts rule in a fashion befitting a leftist ideologue is incomprehensible, and signifies the worst decision since the abomination that was the Kelo decision. Ruth Bader-Ginsburg, Stephen Breyer, and Sonia Sotomayor are incompetent leftist hacks, and they ruled precisely as one would expect.  At stake in the case had been whether the State of Arizona could act to enforce federal immigration law, even when the Federal Government fails in that duty, or determines not to do its duty.  Apparently, according to these five justices, there is no distinction among the fifty states, and there is no sovereignty among them.  According to these five justices, the individual states are merely servants of the Federal Government, whomever may run it at any particular time.  Justice Scalia’s dissenting opinion nails every issue, and we should take a moment to consider what it is that Scalia has said.  His arguments are clear-headed and succinct, if lengthy and thoroughly considered.  You can read the decision in its entirety here.  Scalia’s opinion begins on page 30 of the PDF.

He begins this way:

The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

There is no way around this basic issue Scalia raises, and yet five of his colleagues on the court seem to have been oblivious to reason.

As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases,or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).

Here, Scalia points back to the philosophical principles under-girding not only immigration law, but indeed all law insofar as it is to be implemented and enforced by a sovereign.  Here, a sovereign is defined, and it is clear that Scalia recognizes the assault on the very concept underlying the majority opinion.  He immediately delved into the constitutional justifications for siding with the Arizona statute, and he pointed out the distinctions one must consider in ruling on such a matter.  Clearly, Scalia lives and breathes the Constitution, while the majority in this opinion are shallow, tinkering fools.  As usual, Scalia offers tremendous logic to the matter, explaining that the Federal jurisdiction over the matter does not exclude the States’ jurisdiction, except perhaps in such case as there is a conflict between the two. Fortunately, as Scalia notes, there is no conflict between the Federal statute and the Arizona statute:

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration — and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted).Implicit “field preemption” will not do.

Scalia makes it plain that Arizona also should have the right to make their law more restrictive in certain respects:

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

Perhaps the most scathing portion of his dissent arrives in this paragraph:

Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B);and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.(emphasis added)

This should serve as a rebuke to the other justices, if any of them gave a damn, but it’s clear that Chief Justice Roberts isn’t interested in logic.  Has he too become a DC  cocktail party gadfly, or has he simply slipped a mental gear?  Is he seeking favor with the “in” crowd?  I’ve lost all hope that Justice Kennedy will ever be a philosophically consistent jurist, and in fact, I don’t believe he observes any particular philosophy apart from whatever may suit him at the moment, but I hadn’t expected the Chief Justice Roberts would ever join that crowd.

It’s clear to me that a narrow third of the court fully understands the implications of the questions of State sovereignty, and the divisions of power constructed within our federal system.  Justice Scalia properly frames this as a matter of Arizona’s sovereign power, and rightly calls into question the woeful lack of observance of that characteristic by the ruling majority in this case.  He also recognizes it might be proper for Arizona to repeatedly detain and arrest people who have not been given appropriate privilege to remain in the United States, and punish them accordingly:

The Court raises concerns about “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that  Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)

This should have been the majority opinion, and it punctuates the reasons why I have no confidence in Mitt Romney, should he become president.  There is little doubt that he will continue the work of his predecessors in appointing justices who will further undermine individual liberty and States’ sovereignty.  The majority opinion that will now hold forth as precedent is an act of nearly criminal absurdity.  If only we could clone Justices Scalia, Alito, and Thomas, we might have a chance to save the Republic, but it seems instead that the only thing to be duplicated in Washington is grotesque Federal government operating in absolute disregard and open contempt of the Constitution, a founding document that now seems on the verge of irrelevance.  If the best we can manage is a Supreme Court that will not stand in firm majority for the founding principles on which our constitution rests, what good is it anyway?  This cannot end well.  When you combine the effects of the ruling in this case with the Obama administration actions on immigration policy, it’s clear that we will not maintain our country much longer.  Thank Chief Justice Roberts and associate Justice Kennedy.  These are two who ought to have known better, as Justice Scalia’s dissent should make clear.

Ruth Bader-Ginsburg Goes to Egypt, Criticizes Constitution

Saturday, February 4th, 2012

Justice Ginsburg in Egypt

Conservatives have known ever since this leftist was shoved onto the Court by Bill Clinton that she would be a thorn in our sides until she departs that body.  On a trip to Egypt, Associate Justice Bader-Ginsburg was interviewed and asked her opinion about the process by which Egypt was creating its own constitution, and this Supreme Court justice used the opportunity to talk about the US Constitution and its history, but saying ultimately that it was not an example for others to follow, and that Egyptians should look to the South African Constitution, the Canadian Constitution, and the European Conventions on Human Rights. She did at times speak positively about the US Constitution, but she did  so while slinging a little mud at the founders for slavery and the rights of women, among others.

I must say that if I’m a Supreme Court justice, and I am asked such a question by people who are about to write a Constitution, I am going to say some things she didn’t, and omit a few she did, and I am going to point to the superiority of the US Constitution as distinct from those others she named.  She may not have said anything terrible, but  one gets the sense that she has a different sort of reverence for our constitution, not in what it is, but for what she’d like to make of it.

Elections Matter: Judicial Appointments

Sunday, January 22nd, 2012

Breyer, Scalia on Law in South Carolina (Associated Press)

Justices Stephen Breyer and Antonin Scalia appeared at South Carolina Bar Association debate on Saturday.  Both avoided details on pending cases, but one case that did see some discussion was the decision in  the Citizens United case that has led to the rise of the SuperPACs.  The two men had very different takes on the case, and it’s clear that Scalia had the better of the arguments.  Breyer’s argument was outcome-based, while Scalia’s was based on the constitution.  This distinct difference in judicial orientation explains the current problem in American legal battles: Some justices will abide by the constitution, but there’s a wider group that ignores it, using their personal policy preferences as the yardstick by which the constitutionality of law will be decided.

You can learn a good deal about their judicial philosophies simply by examining what they say in even the most generic terms.  Scalia was asked about the influence of money that will presumptively reign supreme in the wake of the Citizens United decision, but in answer, he said something important that reveals his underlying temperament:

“I don’t care who is doing the speech – the more the merrier, People are not stupid. If they don’t like it, they’ll shut it off.”

It is clear from this that Scalia does not view the American people with contempt and derision.  He clearly leaves it to us to decide, and that’s what free, independent people are able to do.  This explicitly tells us that Scalia’s tendency is toward liberty.

Contrast this with the remarks of Justice Breyer, who was in the  minority on the Citizens United decision:

“There are real problems when people want to spend lots of money on a candidate … they’ll drown out the people who don’t have a lot of money,”

Do you see the difference? Breyer assumes that Americans will not be able to discern among candidates if there is too much money spent on one side of a contest.  He assumes this will freeze out those candidates with fewer resources, and his decision in the case was based not on what the Constitution implies about liberty, but instead in pursuit of implementing a specific policy goal. Also notice what this implies about Breyer’s view of the American people: You have not the sophistication to discern for yourselves among candidates if too great a disparity exists in the amount of money spent by candidates.  You should note that as Breyer offered this explanation, Gingrich, who had only a fraction of the resources of Romney, was running away with a landslide victory over his well-funded rival in the very state in which this judicial discussion was simultaneously in progress.

Point: Scalia.

This difference describes not only the underlying dissent in the Citizens United decision, but also the entire scope of rulings the court hands down.  The “judicial activists” on the court are those who use the occasion of cases not merely to gauge the constitutionality of law, but imagine what they would prefer to see in law, and implement it through their rulings.  This also describes a contempt for the American people, their discernment, and their ability to filter through nonsense.  The view of the judicial activists like Breyer is that they know better what is in the interests of the American people, while the strict constructionists like Scalia stand by the notion that it is the role of the courts is to interpret law, but not to write it out of whole cloth.