An Unimaginative Supreme Court Envisions Novel Argument in J6 Case.

AN IMPORTANT Supreme Court case has finally wound its way through the judicial system to now be before the nation’s highest court—which seems a bit skeptical of the D.O.J. pedigree behind it. 

The case is styled Fischer v. United States, and it argues that the statute the defendant was charged under, 42 U.S.C. Sec. 1512(c)(2), was too broadly expanded and interpreted beyond the original intent to target crimes of alleged evidence-tampering. Specifically, it was interpreted by the D.O.J. so as to charge the defendants, Joseph Fischer and others, of obstructing Congress’ certification of the 2020 presidential election results thought to favor Biden. A concern was that such an interpretation was being used to sweep up a broad swath of others engaging in legitimate protest activity. 

Justice Neil Gorsuch asked some of the most salient questions. “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” he asked Solicitor General Elizabeth Prelogar. “Would a heckler in today’s audience qualify or at the State of the Union address?” Or pulling a fire alarm before a legislative vote, à la Dem, Rep. Jamaal Bowman of NY? These acts, of course, represent things done not only by Jan. 6th defendants, but in some cases, by those lawfully exercising their First Amendment rights, or by elected officials themselves engaged in legitimate of controversial political activity. 

For his part, Justice Samuel Alito seemed a bit unconvinced by the D.O.J.’s position, too. In fact, the way the statute is being creatively applied here could adversely and inappropriately not only impact hundreds of J6 defendants, but even President Trump’s election interference case. (Indeed, two of Special Counsel Jack Smith’s indictments (here) against President Trump rely on such an excessively broad read of the statute.) And the penalties are not inconsequential, resulting in a possible 20 years in prison. And of almost 1,387 J6 defendants, some 353 have been charged under this overly-broad interpretation of the statute. Justice Clarence Thomas, also skeptical, asked when the government had applied this statute to other protests in the past. It was, of course, a rhetorical question. 

The novel application of the statute in an overly broad context certainly has serious ramifications for Joseph Fischer, a former PA cop who entered the Capitol on Jan. 6th for a mere four minutes, and who allegedly had a scuffle with law enforcement in that short period, resulting in him being charged with seven offenses, including a felony count of obstructing an official proceeding. 

Fischer and certain other J6 defendants have a lot riding on the statute’s proper reading, as does President Trump. The SCOTUS decision is expected in late June. The procedural history is here. The writ of certiorari is here.

Let’s Disqualify Use of ‘Disqualification Clause’ as Weapon of Lawfare.

LAST MONTH, A LAWSUIT was filed in state court in Colorado by something called the Citizens for Responsibility and Ethics in Washington on behalf of six G.O.P. and unaffiliated voters in Colorado. The group includes former federal, state, and local officials who believe (erroneously, IMO) that 45th President Donald Trump is disqualified from running for president pursuant to the so-called ‘disqualification clause’ in Sec. 3 of 14th Amendment to the Constitution, due to his alleged actions in the events of 1/6/21 at the Capitol. 

The Amendment’s Sec. 3 is a Civil War-era prohibition of any American holding elected office who has “engaged in insurrection or rebellion against the United States.” Put into historical context, it was devised in response to trouble-making Confederates returning to Congress after Reconstruction with the intent to subvert the new government. It reads in its entirety:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

At different times in history, Congress exercised its discretion to remove disabilities, or issue amnesties, with respect to certain individuals, but in 1872, the disabilities were removed from all persons except a very narrow subset, inapplicable here. Twenty-six years later, Congress removed the disability in its entirety, which explains its non-use in more recent years. 

Trump attorneys and others intervened, seeking a dismissal of the case, which was denied, here. Trump’s arguments in opposition to the application of Sec. 3 appear to be that issues of ballot eligibility are limited to Congress, not courts; and that state election officials cannot invoke Sec. 3 of the 14th Amendment. Judge Sarah Wallace has rejected both arguments. The case was tried this week and testimony concluded Friday. (Closing arguments are set for Nov. 15th.)

If the clause is found applicable by Judge Wallace, as many commentators expect given her highly partisan background, it likely means Trump’s name will not appear on Colorado’s 2024 ballot, unless a higher court overrules her decision. This would take time, longer than Trump has between now and the primaries.

Of enormous significance is Trump hasn’t been charged or convicted of ‘insurrection’ by anyone, including his latest partisan nemesis, Special Counsel Jack Smith. Instead, they conflate his Stop the Steal speech to multiple thousands who appeared at the Capitol that day with ‘insurrection,’ and ignore his calls for  them all to “peacefully and patriotically” march to the Capitol to have their voices heard prior to lawmakers certifying the presidential election in favor of Biden. 

It has been argued that a finding of ‘rebellion or insurrection’ under 18 U.S.C. § 2383 or any other federal criminal statute isn’t necessary because Sec. 3 isn’t a criminal penalty, but rather, a qualification for public office that can be enforced through civil lawsuits in state courts, among other methods. This is nothing short of preposterous. ‘Rebellion or insurrection’ are clearly terms of art that have meaning beyond the biased whims or partisan fantasies of random state officials who could, under such a scenario, just as easily justify their own non-finding of ‘rebellion or insurrection’ when there was one. Without a statutory framework, the scheme makes no sense. 

Sec. 3 obviously doesn’t impose a criminal penalty. It is not a criminal statute, after all. If it was, strict due process rights would attach, which clearly haven’t been here, but it need not be in order to afford protections to an office-seeker. 18 U.S.C. §2383 or other such statutes concerning ‘rebellion or insurrection’ are used by prosecutors as criminal causes of action against anyone—not office-seekers, per se. It reads:

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Furthermore, civil rights remedies under 18 U.S.C. §1983 would have to be available to an office-seeker who has been ‘disabled’ through a civil or other unspecified proceeding, which hasn’t been here, either. Government cannot simply strip away an American’s right to run for public office without at least some  amount of due process which, minimally, would require a showing that the ‘disability’ applies to him in the first instance. Nor can the government deny an office-seeker’s right to run by running out the clock in some feigned process, unless an applicable statute says it can, and if it does, it is a statute that is almost positively unconstitutional on its face. This doesn’t address voters’ rights, either.

There is additionally a school of thought that “…any office under the United States…” in Sec. 3 means appointed positions in the Executive, Judicial, and Legislative Branches, not elected federal positions, i.e., the President, Vice President, and members of Congress.  While there appears to be a historical basis for this conclusion, both in terms of its legislative history and in practice, the first argument above is, IMO, the stronger, however, here is an in-depth and compelling legal discussion about the latter, here. (It was also expertly testified to at trial.)

Also of note are the facts surrounding Dems’ denial of Trump administration requests to deploy the National Guard in advance of that fateful day. Trump administration official, Kash Patel, testified about this on Thursday, just as he did before the Jan. 6th Committee over a year ago, and how that inconvenient fact has been conveniently brushed under the rug repeatedly. Specifically, the request for 10,000-20,000 was denied by then-Speaker of the House Nancy Pelosi (D-Calif.) and D.C. Mayor, Muriel Bowser (D), who were both officially in charge of such security measures at the Capitol. (Eventually, there is likely to be significant findings of Capitol Police and/or F.B.I. incompetence, or in the alternative, use by either or both of agents provocateurs, but I digress…See e.g., here, here, and here.)

*          *          *

Thankfully, one challenge concluded favorably for Trump in New Hampshire last week. Judge Joseph Laplante of the U.S. District Court for the District of New Hampshire denied a similar challenge in the First-in-the-Nation primary state, brought by a John Anthony Castro, a purported attorney from Texas with two law degrees but no bar membership anywhere. He was also an Enrolled Agent, but was suspended by the I.R.S. He ran for political office in Texas—both as a Democrat and Republican. He has, as the Manchester Union Leader put it, “a spotty record.”

When he lost his original case in NH for lack of standing (here), it appears he signed up to run in the G.O.P. primary there himself so he could manufacture standing to sue the secretary of state David Scanlan and Trump in an effort to deny Trump access to the ballot. On Monday, Judge Laplante found the court lacked jurisdiction because Castro lacked standing, but even if this was not an issue, Castro’s was a nonjudiciable political question (i.e., not for the courts to decide) and the case was dismissed once and for a grateful all. 

The NH Decision is a well-reasoned digest of relevant law on this matter that one would hope other jurisdictions will use as a model. Takeaways include the conclusion that “the vast weight of authority has held that the Constitution commits to Congress and the electors the responsibility of determining matters of candidates’ qualifications,” and as such, “…Trump’s eligibility as a presidential candidate under Section 3 of the Fourteenth Amendment—raises a nonjudiciable political question.”

Castro has been aggressively engaging in a personal crusade of lawfare against Trump in multiple courts, including U.S. District Court for the District of Columbia (dismissed), U.S. District Court for the Southern District of Florida (dismissed), the Court of Appeals for the 11th Circuit, and United States Supreme Court (writ of certiorari denied) among many others, including contested, swing, or early primary states such as Arizona, Georgia, Utah, Nevada, Pennsylvania, Wisconsin, South Carolina. All in all, Castro has filed at least 27 lawsuits seeking to keep Trump’s name off the ballot in multiple states in what he has admitted in testimony is ‘guerrilla lawfare.’ And just in case he gets a case to the Supreme Court, he’s already drafted a demand that Justice Clarence Thomas recuse himself, for some reason or no reason at all, who knows?

Still, other states have similar cases docketed for trial. As the Colorado case was concluding on Friday, Minnesota’s commenced. Michigan has a case coming up soon, too. These might be considered what was once called ‘nuisance suits,’ but Castro seeks no pecuniary damages from Trump or the states. It is, indeed, extremely hostile and political lawfare. Castro files his Complaints pro se, and he makes the same argument which can be cut and pasted to the standard federal court format, but there are travel expenses and opportunity costs which add up. 

One has to wonder who is truly funding it all, given Castro himself is reportedly being sued by Amex for nonpayment of about $54,000.

SCOTUS Refuses to Discuss Censorship in Murthy v. Missouri.

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IT WAS A MIXED BAG on Friday for free speech advocates. The Supreme Court agreed to review a Biden censorship scheme and determine whether it passes constitutional muster in Murthy v. Missouri. The Court also blocked a lower court’s temporary stay on the scheme by federal agencies until the case is decided, sometime before the end of June of 2024. The bottom line is that the Biden regime can resume its censorship through directing Big Tech companies to limit Americans’ speech and debate with impunity for at least that long. 

The genesis of the case were groups concerned over the proscriptions on debate surrounding “the COVID-19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.” They particularly objected to officials who “coerced, threatened, and pressured” social media platforms. The District Court for the Western District of Louisiana believed the plaintiffs had a case likely to prevail on the merits. As such, it issued an injunction on the Fourth of July against offending federal agencies and officials that make up what has become known as the “Censorship Industrial Complex.” In his 155-page memorandum (here), the District Court judge, Terry Doughty, found: “In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.”

The case was appealed to the Fifth Circuit Court of Appeals, where the court agreed with the lower court’s findings and ruling, writing: “[T]he district court was correct in its assessment — ‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’” (Ruling here.)

Unfortunately, but predictably, the regime again appealed, and even more unfortunately, and less predictably, SCOTUS overruled the decisions.  The justices, including Chief Justice John Roberts, did not provide a rationale. But Justice Samuel Alito penned a scathing dissent that was joined by Justices Clarence Thomas and Neil Gorsuch (here), writing: “[W]hat the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.” Indeed, it is, but maybe SCOTUS will get it right—eventually.

Affirmative Action Is Affirmatively Discriminatory (But Sometimes Okay)

ON THURSDAY, THE U.S. SUPREME COURT issued its opinion in two cases, Students for Fair Admissions, Inc. v. University of North Carolina (from the Federal District Court for the Middle District of N.C.), and Students for Fair Admissions Inc. v. President & Fellows of Harvard College (from the Court of Appeals for the First Circuit), holding, in both cases, that the admissions departments at both schools violate the Equal Protection Clause of the 14th Amendment because of its affirmative action programs. A link to the U.N.C. decision is here and writ of cert here; Harvard, here and here. The cases were consolidated for judicial economy but argued separately. Justice Jackson participated only in the UNC case due to a conflict from having been on Harvard’s board of overseers.

By a vote of 6-3, the Court found the Equal Protection Clause was violated in these schools’ use of affirmative action programs in their admissions decisions that denied highly qualified Asian students while accepting lesser qualified black or other minority students. 

Writing for the majority, Chief Justice John Roberts effectively, but not explicitly overruled a 2003 decision in Grutter v. Bollinger (read here), clarifying that admissions departments can consider race only as to permit an applicant to explain how race may have affected their character in a fashion that would have a concrete effect on the school, but “a student “must be treated based on his or her experiences as an individual — not on the basis of race.” Roberts notably emphasized the important fact that admissions are zero-sum propositions, and affirmative action could use race in a “negative” manner. “[D]oing away with all governmentally imposed discrimination based on race,” he wrote, reflects the Clause’s “core purpose.” Grutter had held race could be considered “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” 

Justice Clarence Thomas wrote a concurrence, emphasizing that the 14th Amendment imposes “a blanket ban on race-conscious policies.”  He added that by placing less qualified students in more competitive programs, it can have an undesired effect of making those students less likely to succeed. And finally, he observed that they may be harmed by the stigma that they obtained their degree because of race rather than merit, something he said he experienced in his memoir. Justice Brett Kavanaugh also wrote a concurrence where he stressed the role of federal and state civil rights laws going forward. 

Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor, a graduate of Princeton and Yale Law School, had once described herself as “the perfect affirmative action baby.”

Immediately after the decision was announced, so-called progressives were fit to be tied. Race-baiting is, for many of them, their stock and trade. A state of perpetual victimhood is good for business for some, too. (Try being a straight, white male in 2023 and you’ll see why there is, at this late date, sympathy fatigue.

In fact, today’s decision is hardly radical. Roberts expressly stated race could be considered on a case-by-case basis (as when an applicant discussed ‘how race affected his or her life, be it through discrimination, inspiration, or otherwise’.” , and in any event, there will surely be covert preferences by some admissions departments because they are governed by a hierarchy which likely reached its levels through affirmative action themselves. 

Furthermore, the colleges and universities will be watched closely and their admission decisions scrutinized to ensure there is no bias against minority students. If there is, or perceived to be discrimination, bet your life it will be litigated (and judged under the rather un-elucidating standard enunciated on Thursday. There were nearly 100 amici filing briefs in these cases.

Indeed, is is quite possible, especially in our ‘woke’ world, that, in an ongoing effort to outdo one another, the opposite will happen. The schools will be wanting to signal their virtue to be ‘celebrated’ for their commitment to ‘diversity, equity, and inclusion.’   (See, e.g., here.) In fact, schools now offer degrees in the soft pseudo-science of socialist-inspired DEI, where students applying will surely be able to thrust race into the forefront of their applications under Roberts’ latest edict.

Of note, the decisions only apply to higher level educational institutions, not to workplaces. Nor does the decision affect service academies such as West Point or the U.S. Naval Academy.

Roberts’ Constitutional Can of Worms

THE U.S. SUPREME COURT handed down an anxiously awaited decision (by some) on Tuesday concerning the Elections Clause of the U.S. Constitution and its application in state legislatures’ roles in federal elections, or the so-called ‘independent state legislature theory.’ In Moore v. Harper, the Court, in a 6-3 decision, held that the Elections Clause “does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.” There is, in other words, a limit to the power of state courts to interpret election law.  (Slip opinion here.) Chief Justice John Roberts wrote the opinion in which Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. Roberts wrote, “[S]tate courts do not have free rein,” even though legislatures are not exempt from ‘ordinary constraints imposed by state law’,” adding:

“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.” 

Moore originated in North Carolina where its state Supreme Court dismissed a congressional map drawn by a Republican-controlled legislature following the 2020 census. The then-Democrat-majority Supreme Court ruled in 2022 that the map represented “an egregious and intentional partisan gerrymander.” Tossing the congressional map was followed by a rejection of the argument that the U.S. Elections Clause gives sole authority to state legislatures to draw such maps. An emergency application was then filed with SCOTUS asking for a stay of the decision. SCOTUS granted certiorari, but denied the request for the emergency relief of a stay. AFter the 2022 midterms, which gave the G.O.P. a majority on the N.C. Supreme Court, the state’s high court agreed to rehear the case and overturned the earlier decision in April, finding, inter alia, that the gerrymandering claims were justiciable under the state’s constitution. It did not, however, reinstate the 2021 congressional plans that had then been struck down, but rather, provided its General Assembly the authority to enact new congressional redistricting plans. However, under the U.S. Constitution, only state legislatures, not state courts, have the legitimate power to draw political district maps. The judiciary should thereby oversee how the state legislature is allowed to exercise its constitutional duty to draw election maps. 

In his dissent, Justice Thomas argued the majority was essentially issuing a unconstitutional advisory opinion noting the case was moot and should have been dismissed.  He said succinctly, “By its own lights, the majority ‘is acting not as an Article III court’ … but as an ad hoc branch of a state legislature. That is emphatically not our job.” He was also critical of the majority’s failure to set a standard for state courts so as to not overstep legal authority:

“What are ‘the bounds of ordinary judicial review’? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion?” Thomas writes. “The majority’s framework would seem to require answers to all of these questions and more.”

Commentators quick on the draw on Tuesday saw the decision as anti-conservative and antithetical to Republicans. They also viewed it as a radical decision, though a few did not. To the contrary, I see the majority opinion as a reasonable reading of the Constitution, albeit one that is, as Justice Thomas opined, was probably moot and devoid of limiting principles beyond the vague standard of not ‘transgressing ordinary judicial review.’  (The ‘probably’ qualifier for ‘moot’ meaning I didn’t—and don’t intend to— read the Tar Heel State’s own high court decision.)

The U.S. Constitution isn’t exactly a bastion of clarity on Art. I, Sec. 4 where it states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” It seems to mean historically that the Elections Clause allows but does not mandate that states create districts to elect members of the House of Representatives. And Congress requires (mandates) states to draw such districts, but could even, arguably, impose its own districts under its power to “make or alter” state laws governing federal elections (though not without some loud squeals.) None of this can be interpreted without acknowledgement of the Supremacy Clause of the U.S. Constitution, although there is precedent for deference to state courts on issues of state law. Gerrymandering is, unfortunately perhaps, almost inevitable. A brief history of the clause’s interpretation is outlined here. Just as there is more than one way to skin a proverbial cat, with apologies to felines everywhere, so, too, is there more than one way to steal an election than by gerrymandering. Sadly,  we’ve lived it.

RealClearInvestigations Links Biden to Ukraine Since His Senate Days.

THE BIDEN INTRIGUE with Ukraine cannot be overestimated. Paul Sperry of RealClearInvestigations reports Ukrainian President Volodymyr Zelensky isn’t the only crook demanding unending U.S. assistance from the illegitimate occupant of the White House, Joey Biden.

Ol’ Joey has a long-time Ukrainian-American pal in Delaware, John Hynansky, who owns a number of luxury auto dealerships around Kiev. Over the decades, he contributed over $100,000 to Biden’s political coffers and floated hundreds of thousands in loans to the Biden family. Other favors included a loan of the son’s Lear jet to Biden as a senator. No wonder Biden referred to him as “my very good friend, John Hynansky” when he was Veep in 2009. No wonder only months later. Hynansky scored his first international development loan from the U.S. Overseas Private Investment Corporation (with a board appointed by then-President Barack Obama) which garnered him a 25% share of the luxury European car market in Kiev. The next year, Joey and Hunter became active in the Ukrainian government and energy industry. Then in 2015, Hynansky helped the Biden clan pay off almost $700,000 in tax liens on a Florida beach house. After, Hynansky secured another OPIC loan for his Kiev business. He is also pals with Zelensky. Sordid details here.

Government integrity watchdog groups see a potential conflict of interest that demands an examination of how all the massive foreign aid from the U.S. has been used, and who, specifically, has benefited from it. Given the lack of specificity in accounting practices that the U.S. has tolerated, some of the money earmarked for “security,” “intelligence,” and “training” could have been used to buy vehicles from Hynansky as a form of payback for the generosity Hynansky has shown Biden over the years. The Gateway Pundit described the situation thusly: 

“The Biden administration helped Hynansky’s team in Ukraine prepare for the invasion, including placing calls to his top executive in Kiev 13 days in advance of Russian tanks crossing the border. It has sent billions of dollars to help rebuild war-torn cities where Hynansky operates the largest share of the country’s car showrooms and service centers specializing in Porsches, Jaguars, Land Rovers, and Bentleys, among other non-American brands he imports.”

It makes Justice Clarence Thomas’ ethics issue look paltry in comparison.

But Are The Crows Black or White?

JUSTICE CLARENCE THOMAS is loathed by the woke. For one thing, he’s black and conservative which is, I suppose, sort of like being a wolf and a vegan to them. The combination isn’t supposed to exist. Yet somehow, it does. This is because black people, remarkably, don’t like being treated like helpless, unproductive, and unintelligent people who must rely on a beneficent government simply to survive. The woke are also ‘triggered’ by the fact that Thomas has not recused himself on cases involving political questions )think abortion) or that his conservative wife, Ginni, may have taken a position on in her personal capacity. Dem Rep. Alexandria Ocasio-Cortez (N.Y.) has called for Thomas’ impeachment.

The radical left has managed to push through an astonishing number of the Biden regime’s initiatives, albeit, at a huge cost to the nation’s highly mortgaged future. A big item that remains, however, is a nice Supreme Court nomination to push through more woke agenda items well into the future. Towards that end, a story not-so-mysteriously broke that Thomas has an ethics problem. Specifically, on Thursday, it was alleged he illegally received lavish gifts from a G.O.P. donor. Who is/are the donor(s)? Harlan and Kathy Crow. They happen to be “among our dearest friends…for over 25 years,” said Thomas in a statement released by the Court,” adding, “As friends do, we have joined them on a number of family trips during the more than a quarter century we have known them.” Crow is a conservative businessman. The trips involved flights on his private jet, trips on his yacht, or stays at his properties, according to ProPublica, which reported the story. 

Thomas did not report these trips as gifts. According to Thomas, he sought guidance early on about whether there was any reporting requirement and was told that “this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” adding that he has “always sought to comply with the disclosure guidelines.” Given justices have to file disclosure forms annually concerning gifts, this seems likely. He also said that the disclosure guidelines were going to be changed by the Judicial Conference of the United States and will then include a requirement to disclose some, but not all free travel. He added, obviously, he intended to comply with the guidelines. 

Obviously, Thomas has an affirmative duty to comply with ethics rules. Ignorance isn’t an excuse for anyone, especially a judge, but assuming he sought guidance, as he maintains, Dems should be estopped from politically interfering in the judiciary. 

Waiting with Bated Breath for Over a Century in NY Pays Off.

AMERICA WAITS WITH BATED BREATH for a number of important Supreme Court cases. One decision was announced on Thursday on the Second Amendment, and arises from a century-old law in New York that restricts the right to carry concealed weapons. The Opinion can be read in full here.

The majority decision was penned by Justice Clarence Thomas and joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. New York required New Yorkers seeking a permit to carry a handgun in public to show “proper cause” that it is specifically needed for self-defense. The majority found that the law violated the Fourteenth Amendment because it prevented law-abiding New Yorkers from exercising their Second Amendment right to keep and bear arms in public and to ordinary self-defense. 

A concurring opinion by Justice Kavanaugh and Chief Justice Roberts acknowledged the ruling would not preclude state or local governments from placing restrictions on felons or the mentally ill. Further, it did not prevent bans on carrying in “sensitive locations” such as schools or government buildings. Finally, they noted that firearm licenses could properly require, for example, fingerprinting, background checks, or firearms training. Concurring, Justice Alito wondered if anyone intent on committing a gun crime would be deterred by the law, anyway.

In other words, the burden is on the government to articulate a rationale for disallowing a person from exercising his Second Amendment right, not the other way around. A person need not prove to the state he deserves the privilege to carry, unless he falls into very limited categories, like a felon.

Retiring Justice Stephen Breyer dissented, citing the 277 reported mass shootings in 2022 alone. This, he believes, allows the state to balance the lawful use of firearms and the serious problem of gun violence. New York Gov. Kathy Hochul claimed the decision was “not just reckless,” but “reprehensible” and “frightful in scope.” New York City Mayor Eric Adams said the decision “will put New Yorkers at further risk of gun violence.” Presumably, there are some New Yorkers, however, that feel a lot safer now. New York will nonetheless have to modify the challenged law to comport with the Court’s decision. Other states with similar laws, such as California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island, will also be affected by the very rational and reasonable decision. 

Betrayal: A Two-Edged Sword

THERE HAVE SUPPOSEDLY BEEN TWO MORE LEAKS this past week that essentially corroborate the first leak two weeks ago of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case expected to overturn the seminal case, Roe v. Wade (and progeny). Many have begrudged the original leak, not the least of whom sit on the Court. Freedom of the Press, however, begs to differ in its article (here) penned by Parker Higgins, “The Supreme Court leaks keep coming — and that’s good.”

The gist of Higgins’ position is that reporters who use leaks from reliable sources are performing “a critical public service,” as presumably, are the leakers themselves. He then quotes MSM accounts of how this leaker committed, among other nefarious things, “the gravest, most unforgivable sin.”  Others he quotes take a different stance, viewing any absence of leaks the “veil of secrecy.” He also observes leaks at the Court aren’t unprecedented, as has been inaccurately reported.

Higgins also notes this isn’t a whodunnit, and the leaker’s identity shouldn’t detract from the larger story which is, of course, the uncommon occurrence of the Court overruling an important precedent, and one that is emotionally charged at that. He concludes, “Ultimately, the story has informed the public of a consequential government decision of historic importance. That is what journalism is supposed to do.” Of course he’s correct — as far as he goes.

What Higgins is missing is the story from the Court’s perspective. Most justices care deeply and sincerely about the legacy of the judiciary and understand their solemn duties within their institution. To these people, the leak was a betrayal. They do not know who to trust in what is perceived by most to be the most trustworthy and honorable branch of government. Justice Clarence Thomas appears to be the most distraught over this breach of trust. Who the leaker is is important to him and his brethren so they can resume the collegiality that is paramount to the justices fulfilling their responsibilities to the Court and the American people.

While I wholeheartedly agree with Higgins that leakers and reporters are simply doing their jobs in ensuring an informed public, so too do I agree with the Court’s sense of betrayal. I’m American. And I know about betrayal and the Supreme Court: Chief Justice John Roberts appoints judges to the FISA Court that usurps my and my fellow citizens’ rights or reasonable expectations of privacy since before 2013.

Seeking Justices

AFTER THE DRAFT OPINION overruling Roe v. Wade (and progeny Doe) referred to as the “Dobbs Decision,” the ‘woke’ mobs became enraged and crazed. Protests erupted shortly after the leak last week and escalated over the weekend.

Dozens of them descended on the homes of Supreme Court justices over the weekend in an attempt to threaten and intimidate them into changing their votes. About 100 held home-made signs (like “F^CK YOUR GOD!) and chanted pro-abortion slogans (like “No Uterus, No Opinion!”) at Chief Justice John Robert’s and Justice Brett Kavanaugh’s homes in Maryland. One of the organizers appears to be a teacher named Lacie Wooten-Holway, a neighbor of Kavanaugh’s.

The Draft Opinion’s author, Justice Samuel Alito and family, had to be moved out of their own home to an undisclosed location for their safety. Like the others, Alito had been doxxed online. A group who disclosed the justices’ home addresses is called “Ruth Sent Us,” an apparent reference to the deceased Justice Ruth Bader Ginsburg, the liberal justice who died in 2020. (Google has since deleted the maps saying they violated TOS.) Remarkably, the White House carelessly glossed over the situation.

Last week, Justice Clarence Thomas said at a speaking appearance that the Court would not be bullied,” but Alito had to cancel an appearance at an event out of fear for his safety. And on Sunday, a Wisconsin pro-life ministry was firebombed. Catholic Churches have had to increase security after threats of violence. Seemingly unbeknownst to these thugs, most of America doesn’t agree with them and polling shows it.

Whether all this gives to rise to any violations of federal law (intimidating a judge, criminal threatening, etc.) remains to possibly be adjudicated, but one can expect the situation will only get worse in Woke America of 2022. When Roe was being argued in the 1970s, it was hotly and emotionally debated, but generations since have become much more radicalized, which should concern any patriot regardless of how they fall on this divisive issue. (A brief history of abortion law is here.)