HAS OUR JUDICIARY FAiLED US?

On May 11, 2022, a panel of the Ninth Circuit Court of Appeals (Jones v Bona) struck down a California statute that barred the purchase of semiautomatic rifles by any person younger than 21 years of age. Prior to that, the California age limit for the purchase of firearms was 18 years for a rifle and 21 years for a handgun. (By the way, the legal drinking age in California was and is 21) .

The court’s rationale for striking down the statute was the preposterous notion that the 21 yr-old age lrequirement was an infringement of the teenager’s Second Amendment rights!  (I guess the 21 age limit on handguns will soon fall by the same “logic.’’)

The ruling made no sense because 

• California has a minimum drinking age of 21, and buying a military-style assault rifle is a lot more dangerous than having a beer, 

• The “home safety” rationale used by Scalia in the revolutionary 5-4 Heller decision involved a handgun. The reasoning certainly does not apply to a military-style assault rifle that can fire 60 bullets a minute.

• The Heller decision was also based on the so-called  "originalist" approach to Constitutional interpretation. The Second  Amendment, the argument goes, applies to weapons that were “in common use at the time the Constitution was ratified,’ and therefore handguns were protected by the Amendment.

So the question is, were today’s semi-automatic rifles in “common use” in 1787. The answer is obviously “NO:.

At the time of our Revolutionary war, the individual weapon “in common use at the time" was a musket. The musket was a smooth bore rifle (that means it was highly inaccurate). It was muzzle-loaded — the shooter put a paper package of gunpowder down the muzzle, followed by a piece of paper wadding, followed by a chunk of lead, all of which he then tamped down with a steel rod that was carried along with the rifle. He then put a touch of gunpowder into the breach, closed the pan, and pulled the trigger which created a spark as the flint on the hammer hit the iron chamber containing the powder, and the resulting explosion expelled the bullet out the front end of the rifle.

This was a one-shot experience and a super expert might be able to get off four or five shots in a minute or so. Whether he could hit anything is a different question. The prevailing theory was that if there were enough lead flying around somebody downrange would likely get hit by something.

The 2022 Jones decision by the Ninth Circuit panel was by a vote of two to one, and both of the majority judges had been appointed by Donald Trump. The dissent was written by a New York District Judge sitting in the Ninth Circuit by designation.

The decision was logically and legally preposterous and the majority’s stated grounds made no sense whatever. They were pure NRA/Trump/right-wing Republican drivel.

After the May 11 Jones decision striking down the California statute raising the age limit for purchasing semiautomatic rifles to 21 years of age, the following events occurred:

On May 21 an 18-year-old using a legally acquired semiautomatic assault rifle killed 10 people at a Buffalo supermarket.

On May 24, an 18-year-old using a legally acquired semiautomatic assault rifle killed 19 second third and fourth graders in Texas and two teachers. He was armed with 12 clips, each containing 30 bullets. 

Two days later at an NRA convention in Houston Texas the speakers, including the former president of the United States Donald Trump, and the current governor of the state of Texas, Greg Abbott, vociferously denied there was anything wrong with the current state of gun laws and the problem was that the country abounded with "evil."

Their solutions to the problem were macabre under the circumstances:

More police at the schools?  The Texas massacre happened while dozens of police were gathered in the corridoroutside the classroom that contained dead and dying children. The cops waited more than an hour for the janitor to come with a key and unlock the classroom door. Even then, the 18-year-old shooter was killed by a Customs and Border Patrol sniper, suggesting that the brave Texas police never charged into the room where the killer, in the company of dead, dying, and blood-covered children, spent the next hour.

Improve mental health facilities? The Texas killer had no encounters, ever, with mental health authorities and there was no way one could discover that he had planned the massacre. The Buffalo killer did have an earlier encounter with mental health authorities. He had earlier posted that he desired to kill people. He was referred to a mental health evaluation where an emergency room technician asked him about that. He simply responded that it was a joke, he was kidding, and they let him go.

Nobody, nobody has ever supplied a rational basis for civilians owning a military-style assault rifle. Hunters acknowledge that the bullet from an AR15 is too small to bring down a deer. The rifle is not used for hunting. Its only purpose is to shoot at paper targets and give males, most of them young, the thrill of seeing how many bullets they can fire in one minute. (The Bushmaster company advertises 45, though somebody with a fast trigger finger can reach 60.)

At least a dozen and a half states joined CA in its unsuccessful litigation to keep its “age 21” statute.

Will the 100% political Jones case go to the Supremes? Of course it will. Will they reverse? This court?

I have earlier reported that legal training has led me to seek solutions by asking hypothetical questions.  Sometimes the Socratic method works, sometimes not so much.  Here’s today’s effort;

Assume a minority of the population sides with the gun lobby that continues. to sell more and more military-style weapons to our teenagers. 

And assume our Supreme Court, that seems to care more for zygotes than for second graders, affirms the Jones decision and. continues to side with the NRA,

And assume some two-dozen states nevertheless continue to arrest those who sell semi-automatic weapons to teenagers and to arrest the teenagers who buy them?  And assume  the Supreme Court tells those states that they can’t do that, and those states respond,, a la President Andrew Jackson, “You made your decision, now try to enforce it?”

What happens then?

A bientot.

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WILL SAMUEL ALITO SEND CLARENCE THOMAS TO PRISON?

I know there was a dreadful racist-inspired massacre in Buffalo, and there is a horrific war going on in Ukraine, but I am obsessed with the Alito draft opinion reversing Roe v Wade. I have no doubt that it, perhaps with minor changes, will become the decision of this awful Supreme Court. I believe that will produce severe adverse consequences both for the court and for our citizenry. The Court will be seen for what is it--a body of religious zealots and politically dishonest extremists, and the citizens will suffer for it. Mothers, lock up your daughters!

I start my parade of horrors by referring to a Washington Post article that reported on a recent legislative hearing in Ohio in which a Republican state legislator sponsored a bill imposing an absolute ban on abortion, except if the mother's life was at risk. When asked in a legislative hearing what she thought about the consequences of her bill for a 13-year-old girl who had been raped, the proponent of the legislation responded, "This was an opportunity for this mother bring up a healthy child." 

My apologies to lawyers reading the rest of this piece who may find it an unnecessary repetition of some things they already know, even though they perhaps have not imagined the consequences of what they know.

Let's start with basics. The 14th Amendment of the United States Constitution reads, in part:

"No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

In 1973, in Roe v Wade, the US Supreme Court struck down a Texas statute that criminalized abortion. The Texas sentence for abortion providers, or anyone who assisted them, was up to five years in prison.

The legal reasoning adopted by the Roe court involved  language in the 14th Amendment precluding state action that would “deprive any person of… liberty… without due process of law… ."

Before deciding Roe, the court considered the reaches of that language. What did it mean to deprive a citizen of liberty without due process of law.? The court had earlier concluded that "liberty" meant more than just not being in jail. Lots more. Liberty meant the right to use contraceptive devices without interference from the state. Liberty meant marrying any person you wanted whether that person's skin was the same color as yours. Liberty meant that there was an area of privacy enjoyed by all individuals -- a zone that was free from state intrusion. And the boundaries of this zone clearly protected  "freedom of personal choices in matters of marriage and family life."

The decision in Roe was not unanimous. Justice Rehnquist dissented. He reasoned that in order to reach its result about that zone of privacy, "the court necessarily had to find within the scope of the 14th amendment a right that was completely unknown to drafters of the amendment"  And, he wrote,

"Since so many states had (in 1868) [some] restrictions on abortion, {restriction of abortion] is not so rooted in the tradition and conscience of our people as to be ranked as fundamental."

Justice Alito has adopted the language of the Rehnquist dissent almost word for word.  Applying the Rehnquist test, Alito rejects Roe because it was not an enumerated right in the Amendment, and in 1868 there were a number of state laws regulating abortion. Therefore, there was no 14th Amendment "liberty right" regarding abortion because when the Amendment was passed, a woman's freedom of choice was not ''deeply rooted in this Nation's history and tradition." (Duh, women's freedom to choose deeply rooted in our history and tradition? The men who drafted the Constitution and the 14th Amendment didn't even give women the right to vote until 1920!)

So assuming, as has been reported, the Alito draft prevails and is adopted by the court, we will have a clear declaration of what the new test is for whether a state prohibition violates a person's "liberty right" under the 14th Amendment: unless the challenged state law interferes with or intrudes upon conduct that was "deeply rooted in this nation's history and tradition" or as Rehnquist put it "so rooted in the traditions and conscience of our people as to be ranked as fundamental", then the conduct at question is not a "liberty right" protected by the Due Process Clause, and the state is free to prohibit and penalize it.

So here is Clarence Thomas' problem:: if the court expects the populace to respect its decisions, those decisions have to be based on law and consistency. Its called the "Rule of Law". It's what separates us from authoritarian dictatorships. For the Court to start rendering decisions that are not based on law and consistency, its rulings are political trash, and the court comes to be so disrespected that its decisions become meaningless drivel.

The Roe decision that personal matters affecting marriage and family life were within a zone of privacy protected by the Due Process Clause of the 14th Amendment – a zone into which the state could not intrude – was based on a number of important legal precedents, Including cases called Griswold and Loving.

In Griswold, the court struck down a Connecticut statute that criminalized the prescription of contraceptive devices for married couples. The use of contraceptive devices was clearly in the protected zone of privacy.

In Loving, the court struck down a Virginia anti-miscegenation statute that criminalized the marriage of a white person to a person of color. When that statute was attacked in the state courts, the Virginia Supreme Court held that the law was constitutional. The United States Supreme Court reversed and held that the anti-miscegenation statute intruded upon the zone of privacy provided by the Due Process Clause i.e. it was an infringement of a person's liberty without due process of law. Obviously, the court did not apply the Alito test that in order to be a violation of the due process clause, the conduct in question had to be "deeply rooted in this nation's history and tradition" or the Rehnquist test that the conduct had to be "so rooted in the traditions and conscience of our people as to be ranked as fundamental." I suggest there can be no argument that in 1868, interracial marriage was not "deeply rooted in this nation's history and tradition."

So, following the new Alito test, it is clear that Loving, Roe, Griswold (and others) were wrongly decided and should be reversed by this court. If the court does not reverse Loving, then I suggest it demonstrates conclusively that the Alito decision is not based on law, and consistency, but is based on religious and political zealotry. In other words, a disgrace, and a threat to our ordered Constitutional scheme.

I conclude with some hypothetical questions I put to a right-wing correspondent. He is an accomplished Ivy-League educated lawyer and well-versed in the legal tradition of finding and testing answers to legal problems via the process of asking hypothetical questions. Here were the ones I put to him: I await his answer:

Assuming this Supreme Court concludes that it is necessary for the maintenance of its integrity and respect to take up the Loving case, (as it took up the Roe case), and apply the new Rehnquist/Alito test, and therefore the court, as it must,reverses, its 1967 decision that reversed the Virginia Supreme Court decision that sustained Virginia's anti-miscegenation statute:

1. Does that automatically renew the vitality and effectiveness of the heretofore reversed Virginia Supreme Court decision?

2. If the answer to number one is yes, does that renew the vitality and effectiveness of the Virginia anti-miscegenation statute struck down by the now-defunct 1967 Supreme Court decision?

3. If the answer to number two is yes, will the Thomases, and the new justice-to-be Jackson, need to avoid traveling to Virginia, or any one of the other15 states with anti-miscegenation laws on the books, in order to avoid being charged with a felony?

4. If the Court does not take up Loving, or Griswold, or the other 14th Amendment due process "personal liberty" cases decided over the last 60+ years, (involving gay marriage, gay sex, etc,) does it not prove that when justices say they are not swayed by public opinion, they lie?

5. Because it is clear that several of the Alito-wing justices lied to get their court confirmations, do the current court lies surprise any objective person?

A bientot!

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ALITO v MADISON

In 1832, President Andrew Jackson told the Supreme Court to stuff it.

The facts are uncomplicated. When gold was discovered in a section of Georgia that was within the lands owned by the Cherokee Nation, Jackson's government passed a bill to evict all Cherokees from the state, so that white settlers could move in.

The Supreme Court, in a decision written by Chief Justice John Marshall, ruled that Jackson's Indian Removal Act was a violation of a treaty with the Cherokee Nation, and decreed that the federal government had no right to regulate the comings and goings of white settlers on Cherokee land. Jackson famously responded to the decree:

"John Marshall has made his decision. Now let him enforce it."

The results were catastrophic. The United States marched all the Cherokees out of the state in a procession that became known as "The Trail of Tears."  An estimated 4,000 Cherokees died in the process.

It was, of course, all politics. 

Jackson hated Marshall. 

And Marshall had earlier invented out of whole cloth the notion that the Supreme Court of the United States could invalidate laws passed by Congress and signed by the president. Federalist John Marshall created that myth i) to enhance his own power and ii) because he hated Republican Thomas Jefferson, the third president of the United States, who had denied Federalist Adams a second term. (Marshall had been Adams' Secretary of State but failed to recuse himself in the litigation that prompted his power-grab decision.)

The first case studied by every law student in the United States is Marbury v Madison. It was all politics. In the last hours of his presidency, Adams appointed Marbury to a judgeship (as one of the "midnight judges") but the succeeding president, Jefferson, failed to give Marbury a document confirming that appointment. 

Following the rules set out in the Judiciary Act, Marbury brought suit in the Supreme Court against James Madison, Jefferson's Secretary of State, seeking a writ requiring delivery of the document proving his appointment. 

Marshall took the opportunity to hold that i) Adams' appointment of Marbury was altogether legal and proper, and his opinion ii) castigated  President Jefferson for his clear violation of the law in failing to give Marbury the document evidencing his appointment. 

But Marshall then arrogated to himself and the Court a "super power." He dismissed Marbury's claim on the ground that the statute granting the Supreme Court original jurisdiction to hear Marbury's claim was unconstitutional, and therefore the Court had the power to strike down the statute. Mind you, no so-called “originalist" or "textualist" could, then or now, find any clause in the Constitution giving an Article III court the power to strike down laws validly passed by the Article I and Article II "coequal" branches of the government. Despite the lack of Constitutional language explicitly authorizing the power grab, Marshall "reasoned" his way to that conclusion and 190 years later, federal judges still follow that dubious precedent. (Who would give up that kind of power? )

The Jackson comment cited above comes to mind because the forthcoming reversal of Roe may be just the beginning of a legislative fight over abortion. Some right-wing supporters of the Alito decision have regarded it not as the conclusion of the abortion battle, but the opening salvo in a possible legislative battle for a federal law banning abortion throughout the country. That possibility made headlines recently when minority leader Mitch McConnell, who engineered the appointment of the Court's right-wing majority, was reported to have said that a federal legislative abortion ban was certainly "possible."

Skeptics suggest that even a 2024 Republican sweep would be unlikely successfully to support a Republican push for a nationwide abortion ban because it is unlikely the R's could get 60 votes in the Senate. But keep in mind, please, that it was McConnell who brought about the dissolution of the 60-vote filibuster rule when it came to the appointment of Justices of the Supreme Court, and it was McConnell who lied, and thereby manipulated the appointment and confirmation of the current right-wing court, and it was McConnell who lied about all things from court appointments to Trump's responsibility for January 6, and it is McConnell who would certainly be the Leader in any Republican Senate in the near future.

Recently, the Governor of Michigan (she is a Democrat and the legislature is solidly Republican) petitioned the Michigan Supreme Court for a ruling that a woman's freedom of choice is a right guaranteed by the state constitution. 

Now suppose the Republicans succeed in banning abortion nationwide, and a new Ms. Roe makes a legal challenge to the law. And suppose, using Alito's current reasoning, the Supreme Court rejects the challenge and holds the nationwide legislative ban is entirely within the federal government's power to prohibit the "murder" of a zygote. Will Michigan, or New York, or California, or Rhode Island, Vermont, Massachusetts, New Jersey, Connecticut, California, etc. tell the court to "stuff it?"

And assuming a federal ban on abortion, would President Trump (or DeSantis, or Abbot, or Hawley, or Marjorie Taylor Greene) send in federal troops to enforce the ban? Would NY state troopers oppose them?

Is all of this beginning to sound a little bit like our democracy has degraded to 1861 levels? A minority religious right vs. a majority "freedom" caucus, with the minority holding fast to principles that are anathema to the majority -- except that unforeseeable consequences of centuries-old  Constitutional compromises have given the religious minority a power position in the selection of all three branches of government. How long will the majority tolerate that?

Okay, what's the non-violent solution? Put aside. please, for a moment, the possible results of a major Republican victory in 2024. Let's get down to basics. The method and means to prevent this from happening is a major, and I mean major,  Democratic victory in 2022--a Democratic Senate majority that prevails into 2024.  

I confess. I am hardly objective when it comes to this subject because it is difficult for me to see how any woman, or any man with a daughter, could tolerate Alito's deprivation of a woman's right to choose how to manage her personal reproductive choices,-- a right that women have enjoyed for 50 years. And let there be no mistake, the rationale of the Alito opinion, despite its dishonest denials, (how many of the Court's right-wing members are proven liars?) directly threatens other rights such as contraception, gay marriage, private sexual conduct, inter-racial marriage, and much more. (Btw, in a few months, two of the nine Justices will be parties to interracial marriages that have become legal recently only because of 14th Amendment language that supports Roe!)

And let there be no mistake. The Alito-squad's blatant dishonesty and substantive deprivation of human rights have destroyed respect not only for the Supreme Court, but for thousands of hard-working, honest state and federal lower court judges who now live in the shadow of this judicial disgrace.

What hath Donald Trump and Samuel Alito wrought and what are Democrats and Independents going to do about it?

A passing thought: Remember the Willie Horton advertisements? That revolving door ad buried Dukakis. Can't we get one of those for our side?

A bientot.

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I TOLD YA SO!

On November 16, 2020, I wrote:

"In my blog of July 15, 2018, I had this to say about Justice Samuel Alito:

'When George Bush nominated Circuit Judge Alito to replace Sandra Day O'Connor, Alito's former clerks sprang into action. Two themes were pervasive: i) the clerks said they were "politically diverse, Democrats and Republicans," and ii) the clerks assured the Senate that their judge had "always applied precedent faithfully," "never pre-judged a case or ruled based on political ideology,'' "always applied "controlling legal authority to the facts of each case after full consideration of all relevant legal arguments,"  and "where Congress has spoken, he rejected efforts to advance policy goals not adopted by Congress.

So what did Supreme Court Justice Alito do once he was confirmed? A small sample: He ignored precedent and voted to place restrictions on abortion, he voted to overturn a Supreme Court precedent that protected the finances of municipal unions, he voted to strike down Congress's clear provisions providing employees with contraception coverage under the Affordable Care Act, and he voted in favor of effectively repealing sections of the Voting Rights Act passed by Congress because he did not think they were any longer necessary.'

I described a particularly outrageous one on the above list: a case called Gonzales v Carhardt:

'In the year 2000, the Court, by a 5-4 vote, struck down a Nebraska statute that banned an abortion procedure in late stages of pregnancy. The bill's sponsors had given it the provocative title "The "Partial Birth Abortion Act." The statute's terms were absolute, and made no exceptions, even for instances where physicians determined the procedure was necessary to protect the mother's health.

In the year 2003, Congress passed, and Bush II signed, a federal statute that was identical to the unconstitutional Nebraska statute. The federal statute was thereafter ruled unconstitutional by three circuit courts, but when it reached the Supremes, there was a new player on the Court: Justice Sandra Day O'Connor, who voted with the majority six years earlier, had been replaced by Samuel Alito, who, with his four new buddies, employed post-truth sophistry and ruled that the federal statute was constitutional! The Court's reasoning was so blatantly dishonest that Justices Scalia and Thomas, (who nevertheless joined in the result) openly criticized their conservative colleagues for their failure to admit they were upending the six-yr-old precedent.'

Nothing has changed since I wrote that criticism of Justice Alito ... . He has continued consistently to vote against freedom of choice, be it concerning reproductive rights or same-sex companionship.  He has voted against contraceptive rights and he has voted to strip some 21 million people of their medical insurance by striking down the Affordable Care Act. He is a prime example of a Justice who, as Professor Fried put it, threatens to “take a wrecking ball to generations of Supreme Court doctrine—and not just in matters of reproductive choice.”

But Mr. Alito is apparently not happy with the power he exercises as a member of the highest court in the land. He has taken to the hustings and vented his spleen there. In a shocking departure from judicial ethics and practice, Mr. Alito gave a speech to the Federalist Society in which he complained about “unimaginable restrictions on individual liberty.”:

He was outraged the Court refused to strike down state limits on the size of crowds that could gather in houses of worship during the pandemic crisis. In the face of hundreds of thousands of deaths from Covid, he railed against “scientific expertise“ that influenced governors and other executives to impose limits on the size of crowds in shuls and churches. 

And,

He charged that supporters of same-sex marriage are guilty of “censorship” when they criticize arguments to the effect that “marriage is a union between one man and one woman.” 

And,

He railed against a court decision that sustained a  law requiring pharmacies to carry “morning after” pills. He argued they were “abortifacients”. He was wrong.

And,

He sarcastically described New York City’s withdrawal of an ordinance barring interstate transport of licensed handguns and sharply criticized Senator Whitehouse for saying the matter before the court was so clear in favor of the City that a different result would encourage restructuring of the Court. (The court did vote in favor of the City, and Alito dissented.) 

The New York Times headline was understated:

“In Unusually Political Speech, Alito Says Liberals Pose Threat to Liberties“

So what is to be done? Alito can’t be fired, impeachment is out of the question, and the only realistic remedy is to dilute his influence and counter the current 6-3 conservative majority.

We need to add four or five Justices. ..." 

 .........

So guess who wrote the newly disclosed draft Talinbanic opinion striking down Roe v Wade? Yup, it's Sam Alito. And who joins him in that dishonest appraisal of appropriate respect for judicial precedent and the rights of women? Chief Justice Roberts has said he wants a criminal investigation into the leak of the draft opinion. How about a criminal investigation of Justices Kavanagh and Gorsuch for lying their way onto the Court by deceiving the Senate and the public re their views on Roe?

The logic employed by the anti-abortion wing of this Supreme Court is hardly original. At bottom, It is borrowed directly from the "reasoning" of the court that struck down the Social Security Act, aid to farmers, labor laws, -- the heart of FDR's New Deal,-- in the 1930's.

If applied consistently, the Alito "logic" would require reversal of decisions that struck down laws that criminalized the use of contraception, engaging in gay sex, marrying someone of a different race, etc. 

In fact, though he goes out of his way to deny it, Alito's logic would justify the reversal of Brown v Board of Education, the decision that barred racial segregation in public schools. His test for rights not specifically addressed in the Constitution is to preserve only those "deeply rooted in the Nation's history and traditions." Of course, racial segregation is hardly barred by the text of the Constitution. Indeed, the reverse is true. And desegregation is certainly not "deeply rooted in the Nation's history." 

The Alito draft opinion has nothing to do with law, and everything to do with religion and politics. 

And to top it off, he couldn't resist using language that he knew was insulting, calling abortion providers "abortionists." (Permit, please, a relevant aside: In Planned Parenthood v. American Coalition of Life Activists, -- a case in which I had the privilege of being a member of the plaintiffs' legal team -- we sought an injunction and damages against the defendants who had encouraged the murder of physicians who supplied legal abortion services to women seeking that procedure. 
When, during trial, defendants' counsel referred to plaintiff physicians as "abortionists," a member of the jury sent a note to the judge saying she was offended by the name-calling, and the judge put a stop to it. In my mind's eye, I can see lawyer Alito  uttering the invective.)

So what's the next step? Upholding any state law banning the education of females? Requiring women to wear long skirts and/or head scarves?

There is only one solution: the Dems must use this outrage to i) keep the House, ii) take effective control of the Senate, and iii) add four Justices to the Supreme Court. Otherwise, Sam, Ginni, Clarence, et al, will legislate us back to the Stone Age.

A bientot.

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