Category Archives: Courts

The First Monday in October

The first Monday in October does not get a special note on most calendars, unless you are in the government or parts of the legal profession. This is the day the Supreme Court of the United States usually begins its term. And this term is expected to be more notable than most for the government’s least visible branch.

The expectations are probably the reason several of the usually reticent judges who sit on the court have been unusually public in their comments and complaints in recent weeks following a three month “recess” which was also unusual for the amount of news it made.

The Griping Justices

Nearly a year ago Justice Samuel Alito gave a speech to the right wing Federalist Society, the one which has been picking court nominees for Senator Republican leader Mitch McConnell and Republican presidents for years. Bemoaning what he characterized as growing threats to free speech and religious liberty, Alito took aim at the Supreme Court’s historic decision that same-sex couples have a right to marry, along with recent cases on abortion rights and restrictions imposed to prevent the spread of Covid-19. The speech drew widespread criticism from legal scholarsadvocacy groupssenators, and others, who suggested that Alito exercised poor judgment and may have crossed ethical lines.

During the recess Alito complained about criticism the court’s conservative majority had hidden behind it’s “shadow docket” in allowing a new Texas law to take effect before its constitutionality made been reviewed.

Earlier this month, the newest justice, Amy Coney Barrett, gave a speech lamenting how the Court is
viewed as partisan and warning that her fellow justices must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions.”

Barrett spoke at the University of Louisville at, of all places, the celebration of the 30th anniversary of the opening of the McConnell Center. That’s as in Senator Mitch McConnell. The irony is so thick you need a knife to cut through it. It was the Republican’s unseemly rush job which successfully installed the right wing Trump campaigner Barrett into the still warm seat that had been occupied by the champion of women’s causes Rugh Bader Ginsberg.

That rush job, after McConnell denied President Obama the right to fill the seat of Justice Antonin Scalia, triggered the latest group of public criticism as people rightfully fear the new 6-3 right wing majority on the court will impose its own ideology. That ideology is increasingly out of step according to the latest polls, with trust in the court its lowest since it placed George W. Bush into the White House even though he had lost the popular vote for president.

That same week Justice Clarence Thomas spoke at Catholic Notre Dame University, blaming the media for the Court’s declining image, “I think the media makes it sound as though you are just always going right to your personal preference,” he said. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.”

Thomas is probably the most predictable of the “politicians” on the court. He is also a walking, talking conflict of interest. We have no way to tell how many times he has ruled on a case involving clients of his Republican lobbyist wife. That’s because the Supreme Court justices are the only judges in the entire country who do not have to adhere to a code of ethics. Congress imposes one on other federal judges, but it is believed the Constitution allows only the Supreme Court to impose such a code on itself.

To be fair Justice Stephen Breyer, of the left wing, has also been out and about. Breyer is pushing his new book and complaining that the growing image of the Court “could undermine both the Court and the constitutional system of checks and balances that depends on it.” Breyer, the oldest sitting judge at 83 years, has been under increasing pressure to retire and allow President Biden and the very slim Democratic majority in the Senate to replace him with a young progressive before Democrats lose their Senate control. He’s made it clear he’s not going to do so. And progressive Justice Sonya Sotomayor, who has written some harsh dissents from the opinions of the right wing majority, is warning that there will be more in the months ahead.

By the time the last term ended in June it had become clear that the Roberts court, with Chief Justice John Roberts providing the swing vote, is over. The age of right wing justice has begun. Now it begins in earnest.

The New Term

The new term, dominated by six Republican appointees, promises to bring more of the last tumultuous year. On abortion, still the hottest legal issue in the nation fifty years after 1973 the decision in Roe v. Wade, the Court seems ready to overturn its ruling that states could not ban the procedure before viability defined as the end of the second trimester. On December 1 it will hear a challenge, Dobbs v. Jackson Women’s Health Organization, to a Mississippi law that bars most abortions after 15 weeks. The law is a direct challenge to the precedent set in Roe and specifically asks that that decision be overturned.

This summer, acting under the cover of the “shadow docket” and made public at 11:58pm, the Court refused to delay the implementation date of a Texas law that effectively bars abortions in that state after the first six weeks. Justice Alito complained that the media had depicted the conservative court as a “cabal” deciding cases in secret and in the “middle of the night.” That is exactly what they did. It is absurd to believe that the Court would let the Texas law go into effect without the expectation that Roe will have been overturned by the time challenges to it make it to the top court.

Also this summer, using the shadow docket and with Roberts dissenting, the court’s conservative majority rejected the Biden administration’s policies on asylum and evictions.

The Court having already eviscerated voting rights, can be expected to refuse to block Republican gerrymandering during the upcoming redistricting season, or to block attempts to challenge legislation enacted in dozens of states designed to restrict access to the polls by people of color.

It has been more than 10 years since the Court considered a Second Amendment case. On November 3, it will hear a challenge to the constitutionality of a New York law, New York State Rifle & Pistol Association v. Bruen, that limits the carrying of guns outside the home.

There is also a religion and government case to be considered before the end of the year. On December 8, the Court will hear Carson v. Makin, a challenge to a law in Maine which excludes religious schools that offer religious education from participating in a state tuition program.

We Can Listen

Due to the Covid restrictions the Court hasn’t actually sat together in its courtroom for some eighteen months. It could easily have allowed us to watch its Zoom sessions. but no such luck. We were allowed to listen to the audio as it actually occurred, something of a major breakthrough for the camera shy justices who seem to forget they are employees of the people and are doing the people’s business.

Some day there may be some light at the end of the Court’s tunnel, the Senate Judiciary Committee has approved legislation expanding the use of cameras in federal courts, which may put the judges, including the Supremes, on television. The Court, of course, opposes it. But the Congress pays the bills.

As for now, Covid restrictions will still keep the public out of the courtroom. But the audio of the hearings will be transmitted as they are happening.

Watch. It’s a start. And remember, the president and senators choose the judges. But we elect them. The ultimate responsibility for the decisions they hand down lies with us.

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No Bill. Just No.

This tweet was posted by Bill Cosby shortly after he left prison and returned to his home. IMHO, never has a bigger piece of BS been posted on the Internet. For those in the audience who are even older than I am, IMHO means, In My Humble Opinion. These acronyms abound in the world of social media but it is becoming more and more important that I remind readers that this blog represents my opinion. This is because now that Chief Justice John Roberts has achieve his lifelong goal of nullifying the Voting Rights Act and eviscerating the Fifteenth Amendment along with it, Justices Neil Gorsuch and Clarence Thomas are taking aim at the First and the Sullivan exemption for critics of public figures may not be long for this world. That’s a subject for another day.

Today we have Bill Cosby. I have managed to avoid writing about Cosby for years. But this tweet, posted just hours after the comedian who was put on trial for sexual assault, convicted by a jury, and sentenced to spend 3-10 years in jail was released from prison, was the last straw.

No, William Henry Cosby, Jr., your release has nothing to do with innocence. It does not make you innocent. And your victory dance is both unseemly and unsightly for a man who remains, in my opinion, both a disgrace and a profound disappointment.

A disappointment, because I still remember my first serious date. The year was 1968. I had my new driver’s license. I had convinced my mother to let me borrow her car. I had convinced a very nice high school classmate to join me on this expedition. And she had convinced her father to trust me with his daughter on a Saturday night trip to downtown Chicago for a grownup dinner and then a show.

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Ban the Damn Guns

America today is suffering a plague of gun violence.

It wasn’t always this way. Americans used to own guns without engaging in daily massacres. As a Chicago native, I learned as a child about the infamous St. Valentine’s Day Massacre of 1929, when members of one Chicago gang set up and killed seven members of a rival gang. It was so shocking it led to legislation that prohibited automatic weapons in the U.S.

That ban was extended with restrictions on “semiautomatic assault weapons,” as well as magazines that met the criteria for what it defined as a “large capacity ammunition feeding device,” in 1989 after 34 children and a teacher were shot and five children killed in Stockton, California with a semi-automatic Kalashnikov rifle. A pull of the trigger is required for each shot of a semi-automatic. An automatic fires continuously.

The Federal Assault Weapons ban went into effect in 1994 after a 52-48 vote in the Senate. President Bill Clinton signed it into law the same day. But times have changed. The ban expired after ten years and attempts to renew it have repeatedly failed. In 2018, another Valentine’s Day shooting, this one at Marjory Stoneman Douglas High School in Parkland, Florida, killed 17 children and wounded 17 others. This time, then-President Donald Trump called for arming teachers, and the Republican-dominated Florida legislature rejected a bill that would have limited some high-capacity guns.

Fast forward to today. Our acceptance of violence npw stands in striking contrast to Americans’ horror at the 1929 Valentine’s Day Massacre. I’ve done the legal arguments before, most notably here in a column which includes Chief Justice Warren Berger’s declaration that the conservative reading of the Second Amendment is a “fraud.”

I won’t repeat those arguments. What I do want to do is call your attention to the latest judicial idiocy, California has had its own ban in assault weapons for thirty years. Six other states plus the District of Columbia have similar bans. You would think even if the Second Amendment restricts the Federal government on gun control, language putting the right to bear arms in the context of a “well-regulated militia” would allow the states, which at the time the Bill of Rights was written controlled the militia, to pass reasonable legislation to regulate firearms.

U.S. District Judge Roger Benitez of the United States District Court for the Southern District of California now says he knows better than Berger and the state of California. He must figure the words “well-regulated” and “militia” were just thrown in because the Framers had some extra ink they wanted to use up. In a 94-page opinion Benitez declared unconstitutional the California statute. Benitez, appointed to the bench by President George W. Bush, comes out swinging with his opening paragraph:

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Miller v Bonta, 19-cv-1537-BEN (JLB)

The Law and Crime blog has a detailed set of quotes from the decision. I’ll dwell on just a few. Judge Benitez writes, “The assault weapons ban has had no effect. California’s experiment is a failure.” This conclusion follows an analysis that claims the rate at which assault weapons were used in mass killings in California during the years the weapons ban has been in effect has not changed. Benitez also writes that mass killings are “rare events.” He also states, “A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.”

The New York Times ran a partial list of recent mass shootings in the United States.

Politifact earlier this year found that 10 of 11 mass shootings were done with AR-15 weapons. Newsweek says they were used in 26 of the last 80 mass shootings. As to his other conclusion, I have to wonder if he’d like to stand up for a duel. He gets the Swiss Army knife while his challenger gets the AR-15.

The hypocrisy of the conservatives is clearly on display here. If it is the place of judges only to “say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803), Judge Benitez’s judgments on failure and the frequency of events is way out of the base path. If you believe in a state’s right to regulate its own militia, Benitez is also out of bounds.

Voters generally support an assault weapons ban. They support a large magazine ban. They support enhanced background checks. They support closing the gun show loophole. They might support amending the Second Amendment itself to clear up the poor punctuation that the gun lobby and their supporters in Congress and on the bench have used in the last few decades to prevent reasonable regulation. The United States has many more deaths by guns than other western developed countries. The United States has the weakest gun control laws in that group.

Do the math.

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The Handmaid already has blood on her hands

The Daily Mail produced the wonderful graphic above to go with a story published October 3, 2020. The photo was taken on September 26 and shows the crowd gathered in the White House Rose Garden as Donald Trump introduced Amy Coney Barrett as his nominee to be an associate justice of the Supreme Court of the United States, filling the seat which became vacant upon the death on September 18 of Justice Ruth Bader Ginsburg.

In its October 3 story the Mail reported that nine of the people who attended this event had, at that point, tested positive for the Covid-19 virus. As the picture demonstrates, few of the 100 or so people who attended wore face masks, and all were sitting close together. On October 9, Dr. Anthony Fauci, America’s top infectious disease expert, labeled this as a “Superspreader event.”

An October 5 poll report said more than 9 out of 10 Americans wear a face mask when they leave home. But that clearly does not include Donald Trump, our Covid denying superspreader-in-chief. Nor apparently does it include Amy Coney Barrett, whose nomination was rammed through the Senate on a strict partisan vote and who took her seat on October 27. America’s newest associate justice wants to be sure you can attend superspreader events too.

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the notorious supreme court

Ruth Bader Ginsburg

Before we get to the travesty that is the Republican’s 30 day sprint to ram a right-wing ideologue judge down our throats, let us take a minute to take note of the last occupant of the seat she is filling.

I can’t get over the picture above. At least 1000 people, maybe more, gathered in front of the Supreme Court building in the evening of September 18th to mourn the passing of Justice Ruth Bader Ginsburg. They were peaceful, quiet, many cried, some carried candles, all in their own way feeling a great sense of loss. They continued to come through the weekend, bringing flowers, newspaper front pages and pictures of Ginsburg.

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Trump’s gestapo comes to portland

Hard to believe but the fears I raised in my last column have now been realized and the situation is far worse.

The headlines exploded around the world on the morning of July 15th, summed up best by this Oregon PBS report, “Federal Law Enforcement Use Unmarked Vehicles to Grab Protestors Off Portland Streets.”

It is positively frightening. And it can happen to you. It can happen to me. It can happen to any one of us.

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A Clear and Present Danger

I’ve been avoiding this issue for months. I just got tired about writing about Donald J. Trump. Somewhere in the back of my mind was the thought that he simply could not keep up the pace. He could not commit, every single day of his administration, a bigger travesty than the one he had committed the day before.

I was wrong.

So here is the first of what will be a long stretch of blogs on Trump and the nation. The Trump reaction to a week of protests is just the latest manifestation. The groundwork had already been laid and was in the open for everyone to see. Take a look at April 17, 2020, the day a sitting President of these United States incited violent revolution. Here were Trump’s tweets:

Three calls to arms, to “LIBERATE,” one invoking the 2nd Amendment on gun ownership, all directed at states with popularly elected Democratic governors, who just happened to offend Trump in one way or another.

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