Archive for the 'Supreme Court' Category

High priests of law, garbed in black robes according to the liturgy.

Judge Silberman wrote a dissent challenging not only how the majority applied New York Times Co. v. Sullivan to the case before it but also challenging the entirety of the Supreme Court decision. It’s this last aspect that makes Silberman’s dissent noteworthy.

Silberman points out that “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. *** As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”

Although Silberman acknowledges the difficulty inherently in overruling “landmark” cases, he has come to see the 57-year-old New York Times opinion as “a threat to American Democracy. It must go.” And then Silberman goes into overdrive defending the Constitution.

He makes plain his disdain for Justice Kennedy’s contention that “criticism of the Court is tantamount to an attack on the Constitution.” Instead, “I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb.” It’s that kind of dissimulation that is “the real attack on the Constitution.” Indeed, “[t]he notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.”

I have only one correction I would make.  I don’t have “little regard” for such legal antics.  I have no regard for it.

So just to make clear, I consider all such decisions to be illegitimate, judges and justices who do that sort of thing to be usurpers, impostors and tyrants, and all of their decisions illegitimate – even those decisions which benefit me.  I don’t need them or want them.  To me they are all clowns and carnival barkers, pretending authority and wisdom, and when God sits in the heavens and mocks them, I follow suit here on earth.

Is that clear enough for you, Mr. Kennedy?

Forbes.

The 4th Amendment right against warrantless searches of a person’s home is a pillar of Americans’ constitutional liberties. Before a police officer, or any other government official, can enter your home, they must show a judge that they have probable cause that they will discover specific evidence of a crime.

There are some limited exceptions to this right. There is an “exigent circumstances” exception. If a police officer looks through a home’s window and sees a person about to stab another person, the officer can burst through the door to prevent the attack. There is also the “emergency aid” exception. If the officer looked through the same window and saw the resident collapsing from an apparent heart attack, the officer could run into the house to administer aid. Neither of these cases violates the 4th Amendment and few would argue that it should be otherwise.

However, there is a broader cousin to these amendments called the “community caretaking” exception. It originally derives from a case in which the police took a gun out of the trunk of an impounded vehicle without first obtaining a warrant. The Supreme Court held that there is a community caretaking exception to the 4th Amendment’s warrant requirement because police perform “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” The Court held that police activity in furtherance of these functions does not violate the 4th Amendment as long as it is executed in a “reasonable” manner.

Note that, unlike the first two exceptions, this exception is not limited to immediate emergencies. In the Supreme Court case just described there was only a general concern that vandals might eventually break into the impounded car and steal any weapons that were in the trunk. So the community care exception is far broader than the other two.

Also, all three exceptions allow warrantless searches so long as the police officer acted “reasonably”. That is one of the easiest constitutional standards to meet and is a significantly lower standard than “probable cause”, which is required for a warrant. As long as an officer might reasonably think that a warrantless search will alleviate a danger to the community, the search is considered constitutional.

There is a vigorous debate about whether the community care exception can apply to searches of a person’s home as well as of their car. Vehicles have always had less 4th Amendment protection than homes, which are considered a person’s most private sphere. Federal courts have been divided on this question and the Supreme Court has not ruled on it until now.

The Court has just announced that it will hear arguments next month on a case that presents this issue: Caniglia v. Strom. In this case, Mr. Caniglia was arguing with his wife and melodramatically put an unloaded gun on the table and said “shoot me now and get it over with.” His wife called a non-emergency number for the police who arrived shortly thereafter. The police disagreed about whether Mr. Caniglia was acting “normal” or “agitated” but they convinced him to take an ambulance to the local hospital for evaluation. The police did not accompany him.

While he was on his way to the hospital, Mrs. Caniglia told the police that her husband kept two handguns in the home. The police decided to search his home for the guns without obtaining a warrant. (Mrs. Caniglia’s consent to have the police search their home was legally negated because the police untruthfully told her that her husband had consented to the seizure of any guns.) The police located and seized the two guns. Mr. Caniglia sued for the violation of his 4th Amendment right to privacy and his 2nd Amendment right to keep handguns in the home for self-protection.

The 1st Circuit Court of Appeals (which is the federal court just below the Supreme Court in Caniglia’s jurisdiction) sided with the police. The court wrote: “At its core, the community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention. Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways.”

The author ends with this.  “The Supreme Court is going to take a very close look at this case and there is a good chance that they will overrule the lower court’s decision.”

I’m not so sure.  The communists (the leftist wing of the court, including Breyer, Sotomayor, Kagan, and Roberts) will certainly decide to keep the ruling of the circuit.  The law and order statists (Alito and Kavanaugh) will likely decide with the leftists, I’m afraid, even if it’s a concurring ruling disagreeing with the majority but still vote to keep the circuit ruling.

The only ones who will vote to strike down the circuit ruling will be Thomas and Gorsuch (maybe), and Barrett is a wild card, but it won’t matter what she does anyway.  This is one of those cases where you wish the supreme court would decline to take it because the damage they do is worse than the other outcome, where this ruling is only valid in the 1st Circuit.

To say that America has become a Stasi state is a grotesque understatement.

By now you’ve seen that the case of Texas versus the four states has been docketed and a response has been obtained from Pennsylvania.  In it, Pennsylvania Attorney General Josh Shapiro pulled his pants to his ankles and mooned Texas, the Supreme Court, and indeed every honest citizen in America.

Using strong language rarely seen in Supreme Court filings, Pennsylvania Attorney General Josh Shapiro told the justices that they should “not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated.”

Seditious, he says.  Pennsylvania’s corruption and theft isn’t seditious, one must conclude.  Because reasons, so shut up.

Via WRSA, here is a list of pointers about the lawsuit that makes it unique.  As I’ve said before, anyone who believes that Biden legitimately won the vote is as dumb as a bag of rocks.

Here is a prediction: None of this will matter.  The Supreme Court is more likely to recognize that there are important issues, but point out that the state legislatures are tasked to supervise the electoral process, and they will be loath to step in because they’re cowards.  Of course, the state legislatures are all filled with cowards too, hence the necessity of the lawsuit to begin with.  America is a nation of cowards.

Thus ends the last attempt at an honest and fair election in America in your lifetime.  The electoral college meets soon, and after that, prepare at first for president Biden, and then soon after that, president Harris.

And after that, massive trouble.

This seems accurate.

I don’t think Trump’s record on Supreme Court justices is stellar.  Kavanaugh is a squish, and Gorsuch is just plain odd.  One of my sons sends this tweet.

THREAD: #Barrett sided with the government on almost every civil rights case, every big employer case, every criminal case, while also siding with the government on the lockdowns, on uncompensated takings, on excusing First Amendment infringements & Fourth Amendment violations.

— Robert Barnes (@Barnes_Law) September 22, 2020

On the other hand, there is this article at CNN.

Via WRSA.

pic.twitter.com/54wIuf7YrZ

— CHIZ (@CHIZMAGA) September 19, 2020

News.

Ruth Bader Ginsburg, whose 27-year tenure as the second female justice on the U.S. Supreme Court culminated a legal career dedicated to advancing the rights of women, has died. She was 87.

Her death less than two months before the election gives President Donald Trump a chance to try to shift the already conservative court further to the right.

By their fruits you shall know them.

Q: “Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid abortions for poor women?”

Justice Ginsburg: “Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] 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. So that Roe was going to be then set up for Medicaid funding for abortion.”

And more.

But, Justice Ginsburg explains, “When we no longer need people to keep muskets in their home, then the Second Amendment has no function, its function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own. So I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So…the Second Amendment is outdated in the sense that its function has become obsolete.”

As for the Heller case, decided by the Court in 2008, Justice Ginsburg says, “If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation.”

Battle axe.

This makes things doubly interesting in the next two months.

UPDATE:

David Codrea weighs in.

NRO.

The conservative wing of the Supreme Court reportedly declined to take up a case dealing with Second Amendment rights after Chief Justice John Roberts indicated that he would vote with the court’s liberal justices.

In June, the justices rejected petitions from 10 challenges relating to state restrictions on firearms after Roberts signaled he would not vote with them, depriving the court’s conservatives of the fifth vote needed to overturn gun regulations, CNN reported Monday.

[ … ]

The four most reliably conservative justices were not confident that they would get a fifth vote from Roberts on the case or similar cases addressing the Second Amendment, according to unidentified sources cited by CNN.

Justice Brett Kavanaugh penned an unsigned opinion that was overseen by Roberts for that case in which six justices agreed that the case should be relegated to the lower court. In a separate statement that Kavanaugh signed, he said that the Supreme Court should address “soon” the issue of varying interpretations of the Second Amendment.

Somebody surely has something on Roberts.

So if this report is to be taken as true and accurate, the four justices stopped what could have been a defeat for the observation of gun rights in America by simply refusing to take cases.

Roberts is the stated reason.  If this report is accurate, it’s probably best that nothing was done.

David Codrea.

… here are questions gun owner rights advocates should expect the representatives they enable and support to ask that any qualified candidate shouldn’t have any trouble answering:

• What did the Founders mean by “A well regulated militia”?
• What did the Founder mean by “being necessary to the security of a free State”?
• What did the Founders mean by “the right of the people to keep and bear arms”?
• What did the Founders mean by “shall not be infringed”?
• How can past Supreme Court opinion specifying protected arms as those being “in common use at the time” not apply to the types of firearms needed for militia service?

Hell, correctly answering these should be required to graduate high school. But it won’t happen even with Republicans nominally in control of things, let alone if there’s a blue wave in November. So what “legal” recourse is available?

You can’t hoist them on their own petard. Judicial immunity means you can’t take them to court for the subversion of Founding intent. And good luck getting the current crop of interested/compromised/beholden Deep State Swamp denizens to even suggest impeachment, although allow a Democrat supermajority and don’t be surprised to see Clarence Thomas targeted anew.

There is one other legal alternative. Per the Hoover Institute:

“Congress should exercise its power to limit the jurisdiction of the courts. The Constitution provides that Congress is authorized to establish those federal courts subordinate to the Supreme Court and set forth their jurisdiction. Congress also has the power to limit the jurisdiction of the Supreme Court and regulate its activities. Accordingly, Congress should exercise this authority to restrain an activist judiciary.”

I’ve known about this power for a long time.  So have the senators.  They will never use it, especially because they see the black robed tyrants as high priests.