Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

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No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

What is a Good Judge?

Poise the cause in justice’s equal scales,
Whose beam stands sure, whose rightful cause prevails.
William Shakespeare

The other day, the AP wrote this:

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

Funny thing, maybe the AP doesn’t understand is that judges represent neither the environment, business, employees, the people, or even the government. Their mission is to represent the law, and justice, and to ensure its fair and equitable dispensation upon all parties, notwithstanding any other factors.

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state come from renewable sources.
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But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit.

I like the way John Hinderaker puts it here…

There is no “but” about it. A competent judge will rule for or against a party based on the law and the facts, not the identity of the parties. Only a corrupt judge–we have several such liberals on the current Supreme Court–will ascertain a political narrative and vote to advance it.

Indeed we do!

Then the AP offers very high praise to Judge Gorsuch, although I doubt that they understand that they do.

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favored the plaintiffs — the landowners — not the government or the government contractors.”

If only all our judges did!

And that brings us to something that John and I have both written much about: administrative law. John says this

There is one major contemporary issue on which judicial philosophy bears strongly. That is the legitimacy of the administrative state. As I have said repeatedly, the government we live under does not resemble the one that is described in the Constitution. Today, we are governed mostly by a fourth branch, nowhere mentioned in the Constitution, the permanent federal bureaucracy. These office-holders persist from one administration to another, and in many cases resist any effort to bring them into line with a new administration’s policies. They are unelected, unaccountable, frequently incompetent, and almost always Democrats.

If I were president, the only question I would ask a prospective Supreme Court nominee is whether he or she will be willing to take a hard look at whether the administrative state comports with the Constitution. The AP eventually gets to this central issue:

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a nonprofit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

That’s about as twisted as a corkscrew. The problem with administrative law (and Chevron gives overmuch weight to the agencies) is that legislation is not to be made by the agencies, they are there to execute the law the Congress has passed. That the Congress has abrogated their responsibilities under the law is no excuse. As John says.

The Constitution is not about rule by experts (even real ones, as opposed to bureaucrats) but rule by the sovereign people. Hopefully, Judge Gorsuch understands that.

via A Pro-Environment Judge Is a Bad Judge | Power Line

Jane Rowe, RIP

It has been announced that Norma McCorvey, who we all know as Jane Roe has died. We all know that her lawsuit, pushed all the way to the Supreme Court (mostly by feminist activists who used her) was the case that allowed abortions in the United States. What isn’t so well-known is the rest of her story. Gene Veith wrote the best I’ve found on it, which is far better than I could.

Norma McCorvey, who went by the name of “Jane Roe” in the infamous Roe v. Wade case that legalized abortion nationwide, has died at the age of 69.

After winning the Supreme Court case, McCorvey became active in the pro-abortion movement.  But the kindness of a pro-life demonstrator at an abortion clinic led to her conversion to Christianity.

She then became a pro-life activist, battling the abortions that in another life she made legal. […]

She became involved in a lesbian relationship, but after she became a Christian, they became celibate.  After her conversion, she was an evangelical, but she later become Roman Catholic.

Her life is a remarkable testimony to the grace of God, who redeems sinners and changes them.

via The death and new life of “Jane Roe”

I couldn’t agree more, the grace of God is very strong in her story. Gene also excerpted the AP obituary, which I’ll also copy.

Norma McCorvey, whose legal challenge under the pseudonym “Jane Roe” led to the U.S. Supreme Court’s landmark decision that legalized abortion but who later became an outspoken opponent of the procedure, died Saturday. She was 69.

McCorvey died at an assisted living center in Katy, Texas, said journalist Joshua Prager, who is working on a book about McCorvey and was with her and her family when she died. He said she died of heart failure and had been ill for some time.

McCorvey was 22, unmarried, unemployed and pregnant for the third time in 1969 when she sought to have an abortion in Texas, where the procedure was illegal except to save a woman’s life. The subsequent lawsuit, known as Roe v. Wade, led to the Supreme Court’s 1973 ruling that established abortion rights, though by that time, McCorvey had given birth and given her daughter up for adoption.

Decades later, McCorvey underwent a conversion, becoming an evangelical Christian and joining the anti-abortion movement. A short time later, she underwent another religious conversion and became a Roman Catholic.

“I don’t believe in abortion even in an extreme situation. If the woman is impregnated by a rapist, it’s still a child. You’re not to act as your own God,” she told The Associated Press in 1998.

[Keep reading. . .] 

Rest in Peace.

The Hysterical Left, and Neil Gorsuch

I seem to have developed some form of flu. It’s rather distracting, so a short one today.

In any case, I think Melanie is on to quite a lot here. It was an instructive year, as I watched (and participated in) as Britain discovered the words of the American founders to urge on the Brexit forces, and then, in turn, support us as we elected Trump. It was indeed an Anglosphere effort.

 

I too was moved when Mrs. May said in Philadelphia what is so often said here. Britain (and especially England) and America have built the modern world in all its freedom. And what we are hearing now is what can only be described in Hollywood terms, “To crush your enemies — See them driven before you, and to hear the lamentation of their women!”

It’s not over, not by a long shot, but I think, on both sides of the pond, we have turned a corner, and at last conservatives are fighting back, not merely better managing the decline.

And yes, there is something about that English accent. At least for this American guy. 🙂

[Added] And speaking of Mrs. May, question time in the House was quite a scene. She increasingly reminds me of Maggie Thatcher (and that is the highest praise I can offer a British Prime Minister).

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Then there is the news we have been waiting, Trumps first pick for the Supreme Court. Well, one problem with Trump is overuse of superlatives, but Gorsuch is simply awesome. Probably as good as Scalia, and in some areas perhaps even better. As near as I can tell (not my field) there simply is no downside to him, heck he even looks the part. I can’t see the hook the Democrats can use to derail this, other than hysteria, of course. But I think America has had just about enough of that nonsense, and 2018 is coming. Here’s a sample from Judge Gorsuch.

…judges should instead strive (if humanly and so imperfect- ly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the con- clusions you reach. If you like them all the time, you’re probably doing something wrong.”

For a lot of us, the Supreme Court had a lot to do with who we voted for, for President. I think our trust has been repaid. And since he’s only about 50, he may well be there for almost a generation. If so, he’ll do much to secure our legacy.

 

Marching for Life, Trump, and May

What’s this, I hear, more videos? Well, yeah, they do something that my words about something can’t. And right now, things are moving so fast, I can’t keep up anyway. And that’s a very good thing! 🙂

We talked a bit about Mrs. May’s speech yesterday, here it is.

 

Here’s President Trump at the same event.

 

Pretty good speech, I think, and considerably more thoughtful than you’d expect.

In something more important than politics, yesterday was the 44th March for Life, and if nobody told you, we are winning. Abortions are now lower than they were in 1973 when Roe v Wade came down. I noticed that Trump was again effective, and the March got more coverage from the media than it usually does (none, even with half a million, or more people in the streets)!

Maybe someday, we will actually win, it begins to seem so. Here’s Kellyanne Conway

 

Catholic, Lutheran, Orthodox, Anglican, Evangelical, and even none, marching together to return to respecting the very first of our liberties: Life, itself.

And here’s VP Mike Pence.

It is time soon to end this desecration, killing the next generation. The Culture of Death must end.

Requiescat in pace

Justice Scalia’s clerks lined up as an honor guard at the Supreme Court

And so Saturday, I watched the funeral of Antonin Scalia.* It was a most moving service, from the processional

Which is, of course, one of the great old English hymns, based on the 90th Psalm, written by Isaac Watts, a nonconformist, and the father of English hymnody and the tune (St Anne) by William Croft. At his death, Watts’ papers were given to Yale Univesity in the Connecticut Colony, which the nonconformists had founded. Watts is on the Calender of Saints of the CofE and the Lutheran Church 25 November, and the Episcopal Church the following day. Knowing some of that is why it struck me, both because it was a Catholic Mass, and its connections with early America, as so very appropriate.

I’m no expert on Catholic Masses, funeral or regular, although I note that Justice Scalia preferred the Latin Mass, while this was in English, a great gift to those of us not Catholic. My friend Cultural Limits is something of an expert, though and she had some thoughts yesterday on the Mass. Let’s let her guide us.

After what is a typical 24 minute procession for such an occasion, Cardinal Wuerl, Archbishop of Washington gave remarks of welcome, and apologizing for the seating and scaffolding as the Basilica is currently being renovated.  The principle celebrant for this Funeral Mass was Rev. Paul Scalia, son of the judge, of the Archdiocese of Arlington, where the Scalias live.   (He has a lovely singing voice and chanted the prayers, and led the congregation in the Our Father chant that every Catholic knows.)

As the Mass proceeded, the First Reading was from the Book of Wisdom* from the Third Chapter read by the Executive Vice President of Federalist Society Leonard Leo.

But the souls of the just are in the hand of God, and the torment of death shall not touch them. In the sight of the unwise they seemed to die: and their departure was taken for misery: And their going away from us, for utter destruction: but they are in peace.  And though in the sight of men they suffered torments, their hope is full of immortality.  Afflicted in few things, in many they shall be well rewarded: because God hath tried them, and found them worthy of himself.

The Responsorial Psalm was a modern setting if the now fairly traditional or a Funeral The Lord is My Shepherd.  The Second Reading, Hope Does Not Disappoint from St. Paul’s letter to the Romans, was read by Supreme Court Justice Clarence Thomas.  The Gospel from St. Matthew, Praise to You, Father, Lord of Heaven and Earth…Come to Me all who are labored and burdened and you will find rest, was proclaimed by a Deacon from the Archdiocese of Arlington.

“We are gathered here because of one man. A man known personally to many of us. Known only by reputation to even more. A man loved by many. Scorned by others. A man known for great controversy. And for great compassion. That man, of course, is Jesus of Nazareth.” (Fr. Paul Scalia, Homily at his father’s funeral)

Father Paul gave a moving homily relating the connection of the Funeral Mass to Christ, the past, the present and the future, and told a charming story of his father finding himself in Fr. Paul’s line for confession once.  Justice Scalia promptly removed himself from the line and later told his son that he’d be darned if he confessed his sins to HIM.  Father Paul readily agreed with his Dad. […]

Writer’s note: no, this was NOT overdone for a simple, parish Mass as the Scalias requested.  We do this music all the time in my parish.  The incense and the bells weren’t even too much. [I don’t doubt anything she says here, but it looked to this liturgical Lutheran, as the next best thing to a state funeral, which would have been earned by his service. Neo]

As is actually liturgically correct at a Catholic Funeral Mass – or because, as Father Paul told us, Justice Scalia HATED eulogies – there was not one.  In attendance of note: Vice President Joseph Biden and his wife, Jill,  Former Vice President Dick Cheney, Former Speaker of the House Newt Gingrich whose wife, Calista, is a member of the professional choir at the Basilica, the full Supreme Court, and countless mourners who were not recognized formally.

Do read it all, it’s very interesting, link here.

CL reminds us that:

The Funeral Mass of Justice Antonin Scalia ended with “O God Beyond All Praising,” a hymn set to THAXTED and one of the themes from the Jupiter movement of Gustav Holst’s “The Planets.”  In great keeping of the idea of vocation, Justice Scalia was led to his rest to one of the great hymns imploring the people of doing the job God put you on earth to do.  Justice Antonin Scalia was put on this earth to defend the Constitution of the United States, raise a family of good citizens and faith, and give us all an example of courage in the face of adversity.  He accomplished that in spades.

Indeed, he was, and he did.

The rightscoop shared a story last week from a US Marine about Justice Scalia:

My cousin is a U.S. Marine. He shared this on Facebook tonight about Justice Scalia:

I once had the pleasure of hearing Justice Scalia speak. He told a story about a small dinner he attended in England. His hosts raised their classes and said “God save the queen.” 

He asked his hosts what the equivalent statement would be in the United States. They responded, “God save the President.”

Justice Scalia said, “no, God save the Constitution.”

I’m quite certain that as he crossed over, he was welcomed with the words,

“Well done, thou good and faithful servant.”

And now it is up to us.

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If you missed the funeral, or just want to see it again, here is the video

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