THE DECLINE OF OUR JUDICIARY

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The proof of the decline lies in the "victories." 

With a divided legislature, the only check on executive overreach is the judiciary. The combination of an out-of-control president and a sickeningly compliant Senate is leading us to a non-judicial judiciary. When the courts become a rubber stamp for the for the political party in power, the Constitution is trashed.

I suggest the recent 5 to 4 decision by the Supreme Court on the census case is an example of our decline. Though the result ultimately frustrated the president, the details leading up to that result are downright depressing.

Let's start with some preliminary legal principles;

1. Administrative agencies of the federal government are not a law unto themselves. They are required to have reasons for decisions they make, and they must be real reasons. Agencies cannot promulgate rules that any reasonable person would consider to be arbitrary and capricious.

2. The federal judiciary has a role to play in reviewing those administrative decisions. When presented with a justiciable controversy, the courts must use available processes to determine whether the agency has, as required by statute, provided a sound reason for its action. While it is certainly not a court's role to substitute its own view of whether a decision is the best one in the circumstances, the court is nevertheless obliged to determine that, at the least, there does exist a competent reason for the agency's decision.

3. There is an established procedure for courts to make these and other decisions. In the first instance, fact finding is done by a district judge. If losing parties disagree with that court's conclusion, an appeal is available to the Circuit Court, and if the Supremes choose to take the case, to that court as well. In the appellate process, tribunals apply the law to the facts found in the lower court. That is, they defer to the facts found by the district courts unless "clearly erroneous."

Now l let's take a look how the courts handled the census case:

A decennial census of the entire population of United States is a Constitutional requirement. Congress has assigned the duty to accomplish that task to the Commerce Department, and in the late stages of preparation for the 2020 census, Secretary Wilbur Ross announced that the Department was adding a citizenship question to the census form. Many states and organizations objected, asserting that in the current environment, that question would result in lower participation in those geographical areas containing a large proportion of undocumented immigrants. The Census Bureau reached the same conclusion and strongly objected to the question from the git-go. Congressional representation (and consequent electoral college constituency), various forms of federal funding, and other benefits are premised upon population count. And there was a little doubt that most of the locales containing a high concentration of undocumented immigrants were urban areas that regularly voted Democratic. The resulting inaccuracy in the count would substantially benefit Republicans in the coming decade, and urban areas would suffer from a decline in federal funding and other benefits.

In the litigation in the Southern District of New York before Judge Jesse Furman, the Commerce Department asserted that its reason for adopting the citizenship question was a letter from Attorney General Jeff Sessions asking the Commerce Department to add the question for the purpose of helping the DOJ enforce the Voting Rights Act.

But in the course of the proceedings it was revealed that the DOJ request was a contrivance, and in fact the decision to add the question was made by Secretary Ross within a week after his appointment and had nothing whatever to do with the Voting Rights Act. After his appointment, Ross tried to create a false record by seeking to get another agency of the government to request him to add the question. He sought help from Homeland security, and the Immigration section of the Justice Department, but neither department would comply with his request. Ultimately Ross got Attorney General Sessions to write the "Voting Rights Act" letter. Moreover it appears that much of the text of the letter was actually written by functionaries in the Commerce Department!

To repeat, the documentary record established in the District Court proceedings made clear that Secretary Ross's assertion that he added the question at the request of the Justice Department was a flat out lie.

In a detailed opinion, Judge Furman laid out those facts and effectively struck the citizenship question from the census form on the ground that the Commerce Department's decision was arbitrary and capricious, and that it's purported rationale for the rule was "pretextual" [legalese for "liar, liar, pants on fire."]

The government appealed his ruling, and based on its representation that it must have a final decision by June 30 in order to prepare for the 2020 census, it sought and obtained a direct appeal to the Supreme Court of United States.

In a 5-4 before decision, the court affirmed the Furman ruling.

So why is that depressing?

Because the evidence was so overwhelming that the asserted justification for adding the question was  "contrived" and" pretextual," it should have been inconceivable that four justices of the Supreme Court of United States could have nevertheless voted to reverse the Furman decision. The reasoning of Justices Thomas, Gorsuch, Kavanaugh, and Alito cannot be defended on any grounds other than raw politics. Justice Alito even went so far as to say that it was none of the court's business whether the reason asserted by Ross was "the real reason." In other words, "If the United States Secretary of Commerce chooses to lie to the District Court and to the American Public about why he is monkeying with our political process, that's okay with me."

And even Justice Roberts, who in his losing war to protect the legitimacy of this Court, affirmed the Furman decision, did so by the thinnest of margins. He disagreed with much of the Furman's findings, and sent the case back to him with instructions to give the Commerce Department another chance to come up with a better story, i.e., a better lie!  But even the unscrupulous lawyer/client team of William Barr and Wilbur Ross found that impossible -- if for no other reason than producing yet another reason for adding the citizenship question would be a confession the first reason they submitted was false.

In all, the Supreme Court's response was an embarrassment to its reputation, and a severe dilution of the importance of Article III of our Constitution.

Post Script: The President made matters worse for his legal team who had promised the Supremes that June 30 was the deadline for the decision. But after losing the 5-4 decision, Trump nevertheless refused to give in and said he was working on a new approach to get the question into the 2020 census. In a July statement, he said he would reveal the details "when they were worked out later." So DOJ lawyers, suffering their client to have pulled the rug out from under them, tried to withdraw from the case. But the rules require the request to be based on a "satisfactory reason" and they could submit none! How humiliating. Two District Courts refused the request and the lawyers only got off the hook when Trump reversed himself again and admitted defeat.

Stay tuned. This ain't over. It turns out there is now positive evidence suggesting the citizenship question was part of a Republican operative's scheme to enhance Republican gerrymandering efforts, and sanctions are being sought against Commerce Department officials who lied to Judge Furman.

And that ain't all. The House has now held Messrs. Barr and Ross in criminal contempt for their failure to obey subpoenas seeking information about the census scandal. The House will doubtless seek court orders directing compliance. In what should be an easy case involving Congressional fact-finding regarding the Congressional census responsibility, it's likely we will eventually hear more from the shameless Justices Thomas, Gorsuch, Kavanaugh, Alito, and perhaps Roberts.

I am not optimistic.

Bottom line:  I have come around to the only fix: If and when the Dems capture the White House and both houses of Congress, pack the Court. Add four more seats, and put real judges in them.

A bientot.

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