Month: July 2024

One of the character attributes most of us try to instill in our children is to accept loss gracefully…effectively, not to be sore losers.  We try and explain that while we might lose today, there is always hope that a more favorable outcome is in the offing if we persevere and work hard whether it be in sports or other endeavors. We also make sure they know that it is important that they adhere to the rules and stay within the guidelines that have been set as they strive for any result they might desire and that, despite their doing so, outcomes are not always guaranteed to be in their favor. Regardless, those outcomes should be respected as long as those making the determination of who wins or loses have done so based on their honest and objective assessment.

Unfortunately what we are witnessing today are attempts to impugn the referees charged with making judicial decisions by casting unproven, subjective aspersions upon their integrity and objectivity and using those aspersions as justification to impose new rules…simply because some of us do not like the decisions that have been reached.

President Biden’s proposal to enact term limits for Supreme Court justices in direct contradiction to the “good behavior” standard as set forth in our Constitution is an attempt to manipulate a long standing constitutional principle in order to hopefully favor more liberal and progressive views.  In effect, he wants justices who legislate from the bench as opposed to adjudicating whether laws passed by the legislature are constitutional…the principle of judicial review. This is not the first attempt to prevent justices from exercising their independence and judicial responsibility. Witness the failure of Biden’s DOJ to provide protection to the justices at their homes following the Dobbs decision…in direct violation of federal laws that explicitly outlaw the demonstrations and harassment of the justices that occurred.

The proposed introduction of term limits is being justified, in part, because term limits were imposed on the President in 1951. But the President is a political position while Supreme Court justices are, by design in the Constitution, apolitical…not swayed by fear or favoritism but by their informed understanding of the Constitution.

By introducing term limits the expectation is that some of the recent rulings on abortion and presidential immunity would not have come down as they have.  The fact is that the decision regarding presidential immunity is relatively neutral and, despite alarming assertions by Democrats, does not provide broad presidential immunity, except for official acts taken in office and then only presumptive immunity, which can be challenged in court. The specious example of a President ordering the assassination of a political rival being offered up by Biden as well as Justice Sotomayor is designed to gin up the base and has no basis in reality. And as for the Dobbs decision, even Ruth Bader Ginsburg ( a liberal hero) questioned the basis on which Roe vs Wade was decided and thought it stood a good chance of being overturned. She actually thought it was a decision best left to the states…which is exactly the decision rendered in Dobbs.

The bottom line test of judicial objectivity, apart from these lightening rod decisions, is what the result of the appointment process to date has been on the broad array of decisions by the court.

Over the course of the past 60 years, 28 Justices of the Supreme Court have been appointed…21 by Republican Presidents and 7 by Democratic Presidents. Five of the Justices appointed by Republican Presidents are considered swing votes (someone who does not necessarily vote along ideological lines), which leaves 16 presumed solid conservatives. Three of the Justices appointed by Democratic Presidents are considered swing voters leaving four (4) presumed solid liberals or progressives. What has been the affect on the decisions rendered?

Over the same 60 year period, the Court has handed down some 9,000 decisions. 

– Approximately 3,150 of those decisions were unanimous (9-0).

– Approximately 2,700 decisions were decided by the presumed Conservative majority. 

– Approximately 1,350 decisions were decided by the presumed Liberal majority.

– Approximately 1,800 decisions were decided by a Mixed majority. 

In summary, 55% of the cases handed down were not decided based on ideological lines, notwithstanding the fact that most Justices were appointed by Republican Presidents. Thirty percent (30%) were decided by a conservative majority. Fifteen percent (15%) were decided by a liberal majority.  Expressed another way…70% of the cases decided were to one degree or the next in alignment with liberal/progressive legal views versus 85% being in alignment with conservative legal views. That relatively small 15% point difference certainly speaks to the overall objectivity of the Justices regardless of who appointed them or their presumed personal political leanings.

Based on the above, Biden’s reactionary proposal to implement term limits based on two recent decisions will do nothing to make the Court more equitable. It will, however, make it more political and undermine the independence of the justices.

I know one thing for certain…if forced to choose between the wisdom of our Founding Fathers and the “sore loser“ mentality of our current Democratic political leaders in determining how the Supreme Court should operate I am all in for our Founding Fathers.

The other day a Facebook friend shared a meme that generally accused the Supreme Court of being corrupt.  When I challenged that accusation it resulted in that same friend responding by throwing out a list of more specific accusations including levying a charge that Thomas’ and Alito’s wives are insurrectionists, Gorsuch and Kavanaugh and Barrett lied during their confirmation hearings regarding their stance on abortion, Thomas is guilty of taking bribes, and the Court’s recent opinion on Presidential immunity is unconstitutional.

No doubt there are many in our country who share these sentiments so before I respond to each charge let me start off generally by saying that making blanket across the board statements asserting that the Court is corrupt does it a disservice which is not deserved. The same applies to the language or terms used to characterize the actions of the individuals referenced above. It offers nothing to the conversation other than being incendiary with no basis in fact.  As the saying goes “you are entitled to your opinion but not to your own facts.”

Are Thomas’ and Alito’s wives “insurrectionists”? Thomas’ wife went to the January 6th rally but took no part in the assault on the Capitol. Nor has anybody who has been charged with a crime on that day been alleged to have committed insurrection.   More specifically, while many have been convicted of other crimes related to the riots, none have been charged under 18 U.S.C. 2383. The majority of charges filed against the “rioters were for disorderly conduct and unlawful entry. Other charges include assault on law enforcement officers; trespassing; disrupting Congress; theft or other property crimes; weapons offenses; making threats; and conspiracy, including seditious conspiracy.” Up until the assault those who participated in the rally were exercising their free speech rights.  Were their views valid? No. Did they have a right to express them? Yes.  Should Thomas have stopped his wife from attending the rally? I can only imagine how the public would view any woman’s actions being controlled by a man. Did Thomas’ wife exercise bad judgment in choosing to attend given her husband’s position? Yes. As for Alito’s wife, does displaying the American flag in an upside down manner make her an insurrectionist? If it does, then those who displayed the flag in this manner when the Dobbs decision on abortion was announced by the Court are also insurrectionists.

Did Gorsuch, Kavanaugh, and Barrett “lie” during their confirmation hearings about their view of the abortion issue? I watched and read the transcript of the hearings at the time they took place. While each of these justices observed that Roe was considered a precedent none characterized it as a super precedent and none stated their explicit view on or made a promise to rule in the affirmative on a case brought before them on this issue. In fact all specifically stated that nothing they said in response to questions on this issue should be viewed as anything but an acknowledgement of how the court has ruled in the past.  They also stated that as a judge they do not prejudge any issue until the facts of a particular case are brought before them. So liars? I think not.

Is Thomas guilty of taking “bribes”? As far as I am aware there has been no proof provided that any of the gifts Thomas or any other justice received has influenced their decision on any given case. Are these justices guilty of bad judgement in accepting gifts? Yes. Were the gifts provided conditioned on their ruling one way or another on a case before the court? Nothing has been proved or alleged in this regard.   It is more about the appearance of a conflict of interest than proof positive that there was a quid pro quo or anything that could be characterized as a “bribe.” I do believe that legislation, The High Court Gift Ban Act, recently introduced by Raskin and Ocasio Cortez should be passed so that their are explicit guard rails to prevent the appearance of a conflict of interest in the future.

Is the recent decision by the Court regarding Presidential immunity unconstitutional as you assert? I am not sure how you came to that conclusion. The Court was fairly explicit that the President is only immune from criminal prosecution with respect to his carrying out the official responsibilities of the office.  No such immunity applies for unofficial acts. And, in fact, the Court did remand to the lower courts the decision as to whether certain of his acts fall into the unofficial and official categories.

“Where Congress won’t act, I will.”

In consideration of the upcoming election, this statement is pretty chilling…it smacks of authoritarianism. It reflects the attitude of someone who would be a dictator rather than a President who is elected to implement the will of the people through legislation passed by their elected representatives. It portends someone who will ignore the role of Congress thereby threatening the separation of powers provisions that are set forth in the Constitution. It engenders an attitude that “I know better than others.” It assumes that “my will” is the will of the people.

I for one hesitate to vote for someone who has the hubris to make such a statement. Yet the American electorate voted overwhelmingly for the person who made this statement.

No, it was not Donald Trump. In fact, it was Barack Obama. He went on to weaponize the IRS to target religious and grass root political groups. He issued two executive orders on immigration policies (DACA and DAPA ) with no Congressional involvement …only stopped in the latter case by the Supreme Court. He unilaterally directed federal agencies to ignore deadlines specified in legislation ( the ACA) that Congress passed. He entered into a treaty with a foreign government ( the Iran Nuclear Agreement) ignoring that entering into treaties are within the sole purview of Congress.

In each of these cases, the president unilaterally expanded his power while ignoring the Constitution.

And what about Joe Biden?

With his approval, in the context of the COVID pandemic, the CDC issued a moratorium on tenant evictions. A district court subsequently found and the Sixth Circuit affirmed that the CDC overstepped its rule making authority and was not authorized by explicit language in the statute to issue an eviction moratorium order. He also sought to mandate Covid vaccinations for private businesses with 100 or more employees. This was also determined by the courts to have exceeded his authority. And more recently, he determined, incorrectly, that it was within his authority to forgive student loan debt. But no matter. Since he was stopped by the courts, he has sought different ways to achieve that goal through various questionable devices.

The fact is that Presidents throughout history have exceeded their constitutional powers in a way that could be characterized as authoritarian. The problem is that as individuals we tend to be more tolerant of and/or support their actions if we like that person or agree with the action…notwithstanding its constitutionality or legality. The end result of this acquiescence is that Presidents are emboldened to do whatever they like.

That is why I hesitate to take seriously the hyperbole surrounding the charge that Trump is a threat to democracy. I will however take it seriously when everyone, regardless of political party, is equally critical of all such actions.

In the end the rule of law will only prevail if we apply it uniformly and without prejudice. In the meantime every President who seeks to expand his or her power beyond the confines outlined in the Constitution is an authoritarian in my book.