Archive for the ‘Supreme Court’ Category

Varia

Friday, October 22nd, 2010

The following are some of the highlights from the daily email briefing about news and events, which  I send out to some of my friends and contacts:

  • The Daily News editorialized against the discriminatory bill in the New York City Council that targets crisis pregnancy centers by violating their First Amendment rights.
  • The other day, there was a debate among the candidates for New York’s governorship. One of the minor party candidates was a woman who advocated legalizing prostitution. It would be easy to dismiss her as a joke, except for the horrors of the life of prostitution and human sexual slavery. If you have a strong heart, read this account by a psychologist who has worked with prostitutes for years (warning about some strong language). Please pray for all those caught in this terrible life.
  • Another step into the Brave New World — scientists have developed an “artificial ovary”. Fr. Thomas Berg explains the science and the ethics.
  • Fascinating analysis of poll data about Catholics’ belief in — and knowledge about — the doctrine of the Real Presence. What’s remarkable is how many Protestants believe in the Real Presence, too.  As always, the Body of Christ is a source of unity.
  • Dr. Mildred Jefferson, a pro-life stalwart and pioneer, has passed away. May God receive this heroic woman into His arms.
  • Andrew Cuomo showed his true colors once again, trumpeting his support for the legalized killing of unborn children, which appears to be a centerpiece of his agenda.
  • An interesting poll that shows significant shifts in political views among Catholics. There’s a bit too much emphasis on race in the report, and not enough on Church attendance, which I suspect is a more significant factor, but it’s still illuminating.
  • A frightening overview of the grave threat of low birth rates and the aging of the population worldwide.
  • More studies showing the increased risk of breast cancer among women who have had abortions.  You’d never know this by reading the regular media, which ignores this evidence.
  • Last Saturday was the anniversary of the day in 1898 that former fetus William O. Douglas emerged from the emanations and penumbras of his mother’s right to privacy and became a person whose Constitutional rights we are bound to respect. Douglas went on to become one of our worst Black-Robed Platonic Guardian Rulers on the Supreme Court, including writing the abominable Griswold decision (with its infamous “emanations” and “penumbras” and its “right to privacy”) and joining the Roe v. Wade and Doe v.  Bolton majorities, thereby dooming millions of unborn children to un-personhood and death.
  • Erasing the First Amendment

    Thursday, July 8th, 2010

    When we all studied American History and Civics 101 in school, we were taught that the First Amendment to the United States Constitution guarantees religious liberty to all.  It ensures that the government cannot interfere with religious belief or practice, nor canthe state reward or punish religious people or groups for their beliefs.  All religions are to be treated equally, with no favoritism or legal restrictions.  It’s to enjoy this specific freedom that the early settlers, and many of our ancestors, came to this country.  It’s part of what makes America great.

    Too bad that the Supreme Court has been on a path to erase the First Amendment to the Constitution.

    This has nothing to do with the issue of prayer in public schools or copies of the Ten Commandments in public buildings.  It has everything to do with marginalizing and penalizing religious practices that are not popular with the current powers that be.

    The first major instance of this came in 1990, in the case of Employment Division v. Smith.  The case involved the denial of unemployment benefits to several Native Americans, pursuant to a rule that denied benefits to anyone who couldn’t pass a drug test.  But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass.  They challenged the law, claiming that it would force them to violate their religious beliefs.

    The Supreme Court held that they were properly denied the benefits, because the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty.  In essence, the Court held that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

    In one decision, the Court essentially gutted the “free exercise” clause of the First Amendment.  The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — the Catholic Justice Scalia.

    The most recent shredding of religious liberty came last week, in Christian Legal Society v. Martinez.  This case arose at a public university law school — an arm of a state government.  The Christian Legal Society, an interfaith group of law students, adoped rules that required all its officers and members to subscribe to a basic tenet of Christian moral teaching — that sexual relations are properly reserved only to a man and woman joined in a marriage.  The school denied the organization recognition because of this provision “discriminated” against personw who are engaged in homosexual acts and relationships. The effect of this was to deny the Christian students access to funding and activites that were open to all other kinds of groups (including, ironically, a “gay and lesbian” association).

    The Supreme Court upheld the denial of recognition to the group, holding that the school could require that all student organizations accept anyone who applies, both as members and as leaders.  In essence, the Court decided that the state government has the power to regulate the identity and message of religious organizations, and can force them to accept people who deny or undermine the integrity of their beliefs.  And, by implication, the Court’s decision means that a religious group cannot be a full participant in the “marketplace of ideas” unless its beliefs conform to current standards of political correctness.  In other words, the government can play favorites among religious groups — granting “equal” access to those it approves, and denying it to those it disapproves.

    So much for the “free exercise” and “free association” rights that are supposedly guaranteed under the First Amendment.

    This decision was written by Justice Ginsburg, but was joined by two Catholic Justices, Kennedy and Sotomayor.  Since this was Justice Sotomayor’s first foray into religious liberty jurisprudence, it does not bode well for how she will rule in future cases.

    There is a movement afoot in America to stigmatize religious people who uphold traditional moral teaching (particularly about homosexuality and other sexual subjects) as bigots who do not have to be tolerated in the public square.  Whether they knew so or not, the Justices of the Supreme Court have advanced that agenda and, in doing so, have reduced the liberties of all.

    Here Comes Another Anti-Life Judicial Ruler, Thanks to Our President.

    Tuesday, May 11th, 2010

    So, the President has nominated yet another Ivy League college/law school product to be one of our Black-Robed Platonic Guardian Rulers on the Supreme Court.  Another person who is committed to a legal regime that has no regard for the protection of unborn human beings.

    Is anyone surprised?

    Remember, this is the same President whose spokesman said, last year:

    Q: Looking back to November of 2007, when he was a candidate, he said that he would not appoint somebody who doesn’t believe in a right to privacy [i.e., the right to abortion]. Does he stand by that now that he’s President?

    MR. GIBBS: Absolutely…. I think he believes that the right to privacy in the case of Roe v. Wade… was settled and was in his mind settled correctly.

    And the same President who said just two weeks ago that he was looking for:

    “somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights. And that’s going to be something that is very important to me…. somebody who believes that women should have the ability to make often very difficult decisions about their own bodies and issues of reproduction.”

    The President, of course, mouths all the usual pieties about not having a “litmus test” for judges, particularly when it comes to abortion.  But try a thought experiment for a second.  Can anyone imagine this President considering the nomination of a Supreme Court Justice who might overturn Roe v. Wade?

    To ask the question is to answer it.  Of course he wouldn’t.  The President is so deeply immersed in anti-life attitudes and beliefs that it would never even occur to him to appoint such a person.  Remember, this is the man who is so incoherent in his legal thinking that he can be 100% pro-abortion in all of his policies and positions, and still say this:

    “I want my Justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.”

    Above the main entrance to the Supreme Court building,  where this new nominee will likely rule us for decades, there is an inscription: “Equal Justice Under Law”.

    That statement is a lie, and as long as this President makes appointments to the bench, it will continue to be a lie.

    Misguided “Personhood” Initiatives

    Thursday, May 6th, 2010

    In a number of states, pro-lifers are sponsoring what they call “personhood” initiatives — either legislation or state constitutional amendments that they claim will overturn Roe v. Wade and grant legal protection to the unborn. Unfortunately, this is a well-intentioned but legally and tactically misguided strategy.

    We need to recall the state of the law. The Supreme Court held in Roe v. Wade, and has upheld in every subsequent abortion decision, that an unborn child is not a “person” who is entitled to protection by the Fourteenth Amendment to the United States Constitution, and that a woman’s right to an abortion is protected by that same Fourteenth Amendment. Obviously, I believe that this is an awful miscarriage of justice, but that’s the law as it stands.

    Because the federal constitution is the supreme law of the land (see Article VI of the Constitution), the Supreme Court’s rulings on abortion override all state laws or constitutions.  Congress cannot overrule a Supreme Court decision interpreting the Constitution. Nor can a Supreme Court decision interpreting the federal constitution be overruled by state constitutional amendments or legislation. Only a federal constitutional amendment (e.g., the Human Life Amendment) or a subsequent Supreme Court decision can overrule the holding in Roe that an unborn child is not a “person” within the meaning of the Fourteenth Amendment.

    As a result, “personhood” bills like the federal “Sanctity of Human Life Act” or the “Life at Conception Act” simply cannot accomplish what their sponsors desire — they cannot overturn Roe v. Wade by simply defining an unborn child as a “person” under the Fourteenth Amendment.  The same holds true for similar state constitutional amendments that are being proposed around the nation.  I wish it were otherwise, but there it is.

    We also have to consider the state of the judiciary. Some people are proposing these “personhood” initiatives as a way of starting a case that will challenge the Supreme Court to overturn Roe. The problem with this approach is two-fold.

    First, no justice who has ever sat on the Supreme Court has ever given any indication that he or she would hold that an unborn child is a “person” under the Fourteenth Amendment. In fact, only two justices currently on the Court have ever said that they would overrule Roe on any grounds (Justices Scalia and Thomas). Even if we assume (without any factual foundation) that Chief Justice Roberts and Justice Alito would also vote to overrule Roe, there’s no indication that they would support the “personhood” theory.  In any event it would still not be enough — you need five votes, and there just isn’t another Justice on the Court who would vote to overrule Roe. Second, the result of this strategy will almost certainly make things even worse.  Instead of overturning Roe, a case involving a “personhood” law would likely produce an even stronger Supreme Court decision upholding the right to abortion, either by affirming Roe on the non-personhood of the unborn, or (God forbid!) by holding that abortion rights are necessary to ensure women’s equal status in society, based on the Equal Protection Clause of the Fourteenth Amendment (Justice Ginsburg’s favorite rationale for abortion rights).

    On the whole, I believe that these “personhood” initiatives are a distraction from practical, achievable ways that we can reduce abortions and increase legal protection for the unborn. Parental notification, limits on public funding, and fetal homicide/assault bills are far more profitable ways for the pro-life movement to spend our time. We have to use these kinds of bills to build an authentic pro-life culture, so that a real Human Life Amendment, or a pro-life Supreme Court, becomes politically possible.

    So, while I fully respect the intentions of those who promote “personhood” bills or amendments, I would not endorse or support them, or encourage anyone else to do so.

    Nominees and Code Words

    Tuesday, April 27th, 2010

    The President will soon be announcing his nominee to serve as the next Associate Justice on the Supreme Court, to replace Justice John Paul Stevens, who is retiring at the end of this term.

    Over the past half-century, the Supreme Court has developed into an institution that bears no resemblance to the role originally envisioned by the framers and ratifiers of the United States Constitution.  Rather than being a neutral arbiter of disputes under federal law, it has evolved into board of Platonic Guardians Rulers who undemocratically settle significant policy disputes, all under the guise of interpreting the Constitution.  For a demonstration of this, just take a look at any of the Court’s decisions on “social issues” like abortion or “gay rights”.  In fact, this development has gone so far that some have speculated that we no longer live in a democracy, but in a system where ultimate authority rests not in the people or in their elected representatives, but in unelected, life-tenured judges.

    Given this situation, it is clear that the policy preferences of prospective Supreme Court Justices becomes an appropriate area for inquiry and discussion. After all, if they are going to act as our de facto rulers, perhaps we should get to know them better.

    To that end, I thought it would be useful to look at some of the code words that will be used during the discussion of the new nominee, and especially during the confirmation hearings in the Senate.

  • “Precedent” and “Settled Law” — I have written before about these phrases, which are used by nominees to suggest that they are careful to respect existing law.   In reality, they mean that the nominee can be expected to overturn previous decisions that they don’t agree with, and sustain those they favor.  Or, to be more specific, these phrases mean that the nominee will support the Court’s abominable abortion decisions.
  • “Empathy” — This phrase was used by the President to describe what he was looking for in a nominee — somebody who would be sensitive to how law affects the lives of regular people.  This is a troublesome phrase, since to apply that standard in decision-making would violate a judge’s oath of office, which says: “I, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.” (28 U.S.C. section 453)
  • “Women’s Rights” — This phrase has nothing whatsoever to do with the Nineteenth Amendment (which guarantees women’s suffrage) or Title VII of the Civil Rights Act (which bans discrimination based on sex).  All it means is that the nominee can be counted on to support the right to destroy unborn human beings in the womb.
  • “Right to Privacy” — This has nothing to do with the Fourth Amendment (which guarantees the security of your person, home and papers from intrusion by the government).  It means that the nominee will support abortion rights.
  • “Right to Choose” — Nobody even pretends anymore that this means anything other than the right to abort unborn children.
  • “Judicial Activist” — As used by those who actually care about what the Constitution says and means, this phrase refers to judges who make up new rights and dress them up in Constitutional language — or those who invent new rights, like the right to abortion, and hide them in nonsense like the “penumbras” and “emanations” from the Bill of Rights (Griswold v. Connecticut), or “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Casey v. Planned Parenthood).  For those who don’t care about what the Constitution says and means, but instead adhere to the more flexible concept of the “living constitution” (i.e., it means whatever the current “wisdom” desires), the phrase is used to attack anyone who might overrule Supreme Court rulings on abortion rights or other social issues, or who might strike down statutes for exceeding the authority granted to Congress in the actual Constitution.
  • The public debate over nominees to the Supreme Court offer us an opportunity to re-assess where we are as a constitutional republic.  The use of code words deflects from that important consideration.  In the upcoming months, as the Senate deliberates over the new nominee, we should be very careful to pierce through the fog to the truth about what the nominee believes, and what the consequences will be if that person becomes our newest Black-Robed Platonic Guardian Ruler on the Supreme Court.

    On “Precedents”, “Settled Law”, and True Justice

    Thursday, July 16th, 2009

    Some of the more illuminating testimony in the current Senate hearings over the new Supreme Court nominee has centered on the word “precedent”.

    That’s a legal term for a previous judicial decision that a court will consider to be binding authority in all cases to which it is applicable. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”. Lawyers will typically refer to such issues as “settled law”.

    Of course, not all previous judicial decisions are worthy of respect. A decision that was plainly erroneous should not be followed. Nor should a decision that directly contradicts a fundamental value of our Constitutional system, or basic justice. Courts frequently overrule prior decisions when it becomes clear that they were erroneous, or that circumstances have sufficiently changed that they are no longer applicable. (Or, to be cynical, when the composition of the Supreme Court has changed.)

    So, for example, we have the infamous Dred Scott v. Sandford decision of 1857. There, the Supreme Court decided that that African slaves, even after they are freed, could never be citizens and that they “had no rights which the white man was bound to respect”. Abraham Lincoln saw clearly that this exercise of judicial power was illegitimate, in violation of natural justice and the principle of universal equality in the Declaration of Independence. He gave it no respect, nor did it deserve any, despite the principle of stare decisis, and no American court has ever considered it to be “settled”. Instead, the decision is universally repudiated as a gross injustice.

    Or take the case of Buck v. Bell, the iniquitous Supreme Court decision of 1927, which upheld the involuntary sterilization of mentally handicapped persons. This is the case in which Justice Oliver Wendell Holmes (who is, inexplicably to me, one of the heroes of the legal profession) ended his majority opinion with the horrendous sentence, “Three generations of imbeciles are enough”. That case legitimized eugenics in the United States and constituted an egregious violation of fundamental human rights. It’s hard to believe, but this decision has never been explicitly overruled by the Supreme Court. But nobody would consider it to be “settled law”, and it is rightly viewed with the contempt that it deserves.

    Now we come to the modern age, and we have the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. These injustices have excluded unborn children from virtually any legal protection, have deemed them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence.

    Nevertheless, the new Supreme Court nominee has called these decisions “precedent”, and considers the law they establish to be “settled”. Make sure that you understand the significance of that terminology — “settled law” must be followed and applied to future cases, and “precedents” must be respected and not overturned. This means that the nominee is committed to upholding Roe and Casey, and applying their evil rules to abortion cases that come before the Supreme Court.

    I attended the same great high school as the Supreme Court nominee, Cardinal Spellman High School. I also went to an Ivy League college and law school, as did the nominee. But I learned something different along the way.

    I learned that when a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, then that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

    It’s tragic that this is not being made clear before the Senate this week. But the real tragedy will come if the nominee is seated on the Court and decides to applies the evil “settled law” of Roe and Casey.

    Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life.

    Justice and Justices

    Monday, July 13th, 2009

    As the United States Senate begins its deliberations on the nomination of a new Supreme Court Justice, it’s worth reflecting on what “justice” appears to mean to the members of the Supreme Court.

    It has long been clear that the Court no longer considers itself to be a neutral arbiter of individual legal disputes. Instead, it has constituted itself as a board of Platonic Guardians who undemocratically settle significant policy disputes under the guise of interpreting the Constitution. To see this, all you have to do is read the Court’s decisions on “social issues”.

    In its infamous Planned Parenthood v. Casey decision, the Court was so determined to uphold the “right” to destroy unborn children that it gave Constitutional significance to the amorphous notion that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It also had the gall to demand that pro-lifers stop advocating for the protection of unborn human beings, saying that all should fall into line when the Court “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    This role of the Supreme Court is far from the vision of the Founders of our nation, but it is well-settled now. In such an atmosphere, it is clear that the policy preferences of prospective Supreme Court Justices becomes an appropriate area for inquiry and discussion. If they are going to act as our unelected life-time rulers, perhaps we should get to know them better.

    Usually, Supreme Court Justices try to maintain the pretense that they are merely judges, and that their personal policy preferences are not a factor in decision-making. However, occasionally they get comfortable enough to let their guard down and the truth that they usually conceal manages to slip out.

    So, we have Associate Justice of the United States Supreme Court Ruth Bader Ginsburg, in an interview with the New York Times, offering the most appalling ideas about abortion. We find no sense of reserve in her discussion of the merits of issues, and even see her telegraph to future litigants what she would consider the best legal argument to sustain Roe v. Wade:

    Q: Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality?

    JUSTICE GINSBURG: Oh, yes. I think it will be.

    We also see her gladly commenting on abortion in a way that focused entirely on the mother, and completely ignoring the interests of the unborn child. Here’s a taste:

    Q: When you say that reproductive rights need to be straightened out, what do you mean?

    JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

    And even worse, we find Justice Ginsburg commenting with unusual frankness on how she was surprised that the Court had upheld limits on Medicaid funding for abortions for poor women:

    I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.

    An amazing statement — one wonders what parts of the population Justice Ginsburg would consider to be among those “we don’t want to have to many of”?

    Now, in fairness, there are some who suggest that in making these last comments Justice Ginsburg was not endorsing the eugenicist view. But it’s clear that she supported Roe at a time when she understood its purpose to be population control, so doesn’t that mean that she either supported or at least accepted (and certainly never protested) that purpose as well?

    Not that it matters much. The entire interview — and her judicial opinions — reveal an appallingly callous and inhumane indifference to unborn human beings. Her acquiescence in eugenics would be just another reason to find her legal and policy positions to be morally repellent.

    All of this is a prelude to some important questions that we all need to ask. Is this the way that we should be ruled — by people of the like of Justice Ginsburg? Does anyone still think that elections don’t matter?

    If anyone isn’t sure about the significance of these questions, just look at Capitol Hill today, where the latest of our Platonic Guardian is being selected to rule us.

    Appointing Real Justice

    Sunday, May 3rd, 2009

    There is an inscription over the entrance to the majestic Courthouse of the United States Supreme Court: “Equal Justice Under Law”.

    That statement is a lie.

    Since 1973, an entire class of human beings have been excluded from “equal justice” because, in what one jurist called “a raw exercise of judicial power”, the Supreme Court defined unborn human beings as non-persons. As such, they are not given “equal justice”, and in fact they are given no justice at all.

    I write about this because of the announced retirement of Justice David Souter from the Supreme Court. Justice Souter will forever be known for being on the wrong side of all the abortion decisions during his tenure. He utterly failed in his sacred duty to give “equal justice under law” to his fellow human beings.

    The President now has an opportunity to appoint a Justice of the Supreme Court. Anyone who thinks that elections don’t matter should pay close attention to what the Administration’s spokesman said the other day:

    Q: Looking back to November of 2007, when he was a candidate, he said that he would not appoint somebody who doesn’t believe in a right to privacy [i.e., the right to abortion]. Does he stand by that now that he’s President?

    MR. GIBBS: Absolutely…. I think he believes that the right to privacy in the case of Roe v. Wade… was settled and was in his mind settled correctly.

    In other words, the President is firmly committed to the lie.

    As I’ve said in previous blog postings, I just wish the President would listen to himself. During the campaign, he said:

    “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criterion by which I’m going to be selecting my judges.”

    And on another occasion:

    “I want my justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.”

    Sadly, the President fails to include the unborn among those entitled to “equal justice under law”. He doesn’t see them as being among those for whom we are to feel empathy. He doesn’t understand that they are precisely those “who don’t have political power… who are on the outside… who aren’t represented… who don’t have a lot of money; who don’t have connections”.

    (A parenthetical note — I don’t believe that the President’s statements reflect a legitimate approach to defining the task of a judge, but I quote them to make the point that if he really believed those things, he should include the unborn as well)

    The President, with the advice and consent of the Senate, now has a chance to appoint real justice.

    Or he could continue the lie.