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Wednesday, Jul 28, 2004
Fletcher v. Peck
An early supremacist court decision was Fletcher v. Peck, 1810. It found a Georgia state law to be unconstitutional.

As explained here, the Georgia law was really just an act to repeal a crooked law from a year earlier. A Supreme Court justice had personally profited from the earlier crooked law. Furthermore, the 11th Amendment should have prevented the Court from even hearing the issue.

This case gets cited as an earlier precedent for judicial supremacy, but it is a terrible decision.

In another matter, the Supreme Court ruled in Wooley v. Maynard 430 U.S. 705 (1977), that it was unconstitutional for New Hamshire to require the motto "Live Free or Die" on its license plates! We are not free as long as we have a supremacist court.

Monday, Jul 26, 2004
More on court jurisdiction
John writes, in response to Liza's objections below:
Liza, did you read the testimony of Martin Redish, the nation's foremost scholar of this question, at the June 24 hearing? He has a dry academic style, but the bottom line is that Congress does have the power to remove any subject matter from federal court jurisdiction.

Another law professor, Michael Gerhardt, was invited by the Democrats to express an opposing view. (He had previously testified that Congress didn't have power to impeach Bill Clinton.) Gerhardt expressed the instinctive reaction of the law school culture: You can't do that! It was like a small child throwing a tantrum. But he didn't say why. His paper was conspicuously lacking in support in the text of the Constitution, in Supreme Court decisions, or recognized scholarship.

As Hart and Wechsler pointed out over 50 years ago, the decisive point is that the Judiciary Act of 1789, passed by the first Congress which included many men who wrote the Constitution, withheld from the federal courts the power to consider and decide "federal questions." Federal question jurisdiction was first conferred by act of Congress in 1875. It follows that Congress can withdraw that power in whole or in part.

Liza responds:
Yes, I read Redish's testimony, and found it troubling. He states:

"The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner."

He never actually says that a removal of jurisdiction over DOMA cases should work, and he describes the precedents as sparse and confusing.

I'm not saying that limiting jurisdiction to hear DOMA cases is a waste of time, but it's certainly not fail-safe, because the recent tendency of courts to find new rights for gays is based at least partly on equal protection analysis.

I disagree with Liza. Withdrawing jurisdiction is fail-safe, because the US Constitution gives Congress the final say in the matter (Art. IV Sect.1)

Only a judicial supremacist would think that Congress is unable to read the Constitution and act on the powers that it plainly has, just because some activist judges want to push a gay-rights agenda.

John writes:

In addition to Art. IV, Sec. 1, which gives Congress the power to modify the Full Faith and Credit clause, Sec. 5 of the 14th Amendment gives the Congress the power to enforce the Equal Protection clause.

Pursuant to that power, Congress created federal jurisdiction for civil actions in federal court against state and local officials for purported violation of federal rights - 42 U.S.C. Sec. 1983, et al. Hence, Congress can withdraw or modify that power without the court's permission.

Redish's testimony did contain the statement quoted by Liza that Congress may not "employ its power to restrict jurisdiction in an unconstitutionally discriminatory manner."

The only example he gives to illustrate this limit on Congress's power is that the courts would not allow Congress to withdraw federal jurisdiction "in cases brought by African Americans, Jews, or Women." Redish does not give any authority for such a limit; perhaps he thinks the example is so outlandish that no authority is necessary.

It does open the door to the argument made by the Democrat law professor, Michael Gerhardt, that Congress likewise cannot withdraw federal jurisdiction from cases brought by gays seeking a judicial redefinition of marriage.

However I think that would be a classic case of "proving too much": If Congress can't remove gay marriage claims from the federal courts, then Congress can't remove ANYTHING. Indeed, Gerhardt's testimony makes it clear he doesn't think Congress can constitutionally remove ANY jurisdiction. And we know that's not true from the incontestable research of Hart-Weschler and Redish.

Yes, I agree. Redefining marriage is something over which the federal courts have never had any jurisdiction, and there is no good reason why they should have jurisdiction now.

John responds:

It would be more accurate to say that the federal courts have never had jurisdiction over a state's definition of marriage. However, the Supreme Court has reviewed the federal definition of marriage, specifically Congress's prohibition of polygamy in the Utah Territory.

See: Reynolds v. U.S. (1878) (or here)
Davis v. Beason (1890) (or here)

Saturday, Jul 24, 2004
Limiting court jurisdiction
Liza writes:
The Supremacists pins a lot of hope on the strategy of limiting federal court jurisdiction over issues like the Defense Of Marriage Act (DOMA), and I see the House just passed Akin's bill to do the same, although it is expected to die in the Senate.

My question for the enthusiasts of this approach is: How do you answer the critics who say that the federal courts wouldn't allow a loss of jurisdiction for a reason they deem unconstitutionally discriminatory? For example, we can be sure the federal courts would strike down a limitation of their jurisdiction to hear cases on race discrimination. So, how does limiting their jurisdiction to hear challenges to DOMA solve the problem of federal judges' meddling in the definition of marriage? If they consider heterosexual-only marriage unconstitutionally discriminatory, can't we expect them to strike down a limitation of their jurisdiction over that topic as unconstitutional?

Andy replies:
I wouldn't use racial discrimination as a guide to what Congress can limit. No one thinks the Boy Scouts could discriminate based on race, but they can discriminate based on everything else, for example.

If a judge flouts a limitation on jurisdiction passed by Congress, then the next step is to introduce articles of impeachment. That will likely cause the judges to respect the law. I doubt the courts would dare stick their finger in the eye of congressional power. Look at how the Supreme Court recently turned its tail and ran away from the Pledge dispute.

John replies:
Liberals always raise the specter of race discrimination whenever conservatives challenge the power of federal courts.

They raised that bogus warning after each of the so-called state's rights decisions of the current Supreme Court -- for example, two cases in which Eagle Forum filed amicus briefs, the VAWA case (U.S. v. Morrison) and the English language case (Alexander v. Sandoval), as well as the whole series of so-called 11th Amendment cases, such as Alden v. Maine et al.

That overlooks the fact that the original supremacist decision was Dred Scott, on which today's decisions such as Roe v. Wade logically depend. In Dred Scott, the Supreme Court reviewed a civil rights law passed by Congress, declared it unconstitutional, and a Civil War ensued.

After the Civil War, the Reconstruction Congress passed a whole series of civil rights laws (including 3 constitutional amendments), some of which were declared unconstitutional by the Supreme Court in the Civil Rights Cases (1883).

There the matter rested until Congress passed a series of Civil Rights laws in 1957, 1960, 1964, 1967, 1968, 1972, 1973, 1975, 1986, 1987, 1988, 1990, and 1991; and Voting Rights laws in 1965, 1975, 1982, and 1992; as well as two more constitutional amendments (the 23rd and 24th).

So it is a liberal myth that the federal courts, rather than Congress, is the primary protector of civil rights. Even the much-ballyhood Brown decision merely reversed the court's own previous Plessy decision.

But Liza warns that the Supreme Court may not recognize a limitation on federal court jurisdiction if they deem that Congress has acted for a "discriminatory" purpose.

She adds, "we can be sure the courts would strike down a limitation of their jurisdiction to hear cases on race discrimination" and hence they would probably refuse to let go of the power to review other forms of discrimination as well.

To do so, however, the Supreme Court would have to come up with a completely new theory of its jurisdiction that has no precedent in 215 years of its jurisprudence. It would have to overrule dozens if not hundreds of prior decisions that have acknowledged the power of Congress to create, regulate and limit federal jurisdiction.

The supremacist notion that the Supreme Court would (or should) refuse to let Congress regulate its power to review claims of "discrimination" rests on the widely held belief that such power is part of the original constitutional plan of separation of powers, as expressed in Marbury v. Madison.

As The Supremacists explains, that notion is totally wrong. Even John Marshall would have agreed that at the time of Marbury v. Madison, the federal courts had no power to review such claims. Since the federal courts did not claim such jurisdiction back then, there was no need for Congress to remove it.

The power of federal courts to entertain such claims is not in the Constitution and did not exist for the first four-score years of the federal judiciary. It is not even in the 14th Amendment. It was created and conferred by the Reconstruction Congress in 1871. See: http://www4.law.cornell.edu/uscode/42/1983.html

Any lawsuit asking a federal court (quoting Liza) to "consider heterosexual-only marriage unconstitutionally discriminatory" would have to be brought under that statute. As every litigator knows, every federal lawsuit must begin by pleading its jurisdictional basis. Without that jurisdictional statute, 42 U.S.C. 1983, no federal court could even hear a case challenging marriage, let alone decide the question.

Since Congress passed the statute in the first case, it clearly has the power to repeal or modify it at any time.

John makes excellent points. If his argument seems to legalistic, then just use common sense. The US Constitution has been amended to directly deal with racial problems, so it seems appropriate for the federal courts to consider those amendment when trying to decide a racial case. But the US Constitution has almost nothing to do with marriage law, and there is no good reason for the federal courts to even look at marriage policy.

Liza writes:

Are there any law professors who really think limiting federal court jurisdiction would stick for an equal-protection-type issue (assuming Congress passes such a bill)?

The testimony by other witnesses before the House committee did not inspire confidence.

All law professors believe in judicial supremacy, and have an erroneous view of the American legal system. They are hopeless. The book was written so that the rest of the population could be educated.

Bob writes:

If Congress removes DOMA from the jurisdiction of the Federal Courts, the Republican party better have a PR campaign ready to deal with the confusion and irritation caused by the definition of marriage differing between states.
Explaining DOMA is easy. DOMA has the overwhelming support of Republicans and Democrats. Bill Clinton signed it into law. It is not even very controversial, except among those in the radical fringe who would never vote Republican anyway.

John Kerry is the one with the PR problem. His current position is that he is against same-sex marriage and also against DOMA. So he thinks that democratically elected legislatures should ban same-sex marriage, but it is okay if supremacist judges force it on us anyway. It confirms that Kerry is a judicial supremacist, and that is reason enough to vote against him.

Bob writes:

DOMA is easy to explain. The problem is that Senator Santorum is is trashing DOMA on TV. Santorum favors the Constitutional amendment which would prevent the States from legislating definitions of marriage as the States always have. An alliance between the likes of Teddy Kennedy and Rick Santorum against DOMA would be ugly.

The more Kerry talks about gay marriage, the better for Bush. The problem for Republicans is that Kerry isn't talking about it. The conventional wisdom is that whoever brings up gay issues loses. I think that is correct. People don't want to hear about it.

You are mixed up here. Santorum voted for DOMA, and he is not on TV trashing DOMA. Santorum will surely vote in favor of withdrawing federal court jurisdiction over DOMA. Santorum apparently prefers a stronger measure, but he certainly supports DOMA.

It is primarily Kerry's home state and Kerry's supporters who are raising the same-sex marriage issue. Kerry has said more about it than Bush has.

Friday, Jul 23, 2004
Supremacist O'Connor complains about jury trials
CNN says:
MONTEREY, California (AP) -- [Supreme Court] Justice Sandra Day O'Connor told dozens of top judges and prosecutors Thursday that she is "disgusted" by a recent 5-4 Supreme Court decision that cast doubt on federal sentencing guidelines and could undermine tens of thousands of cases.
The case involved a man named Blakely who was denied his right to a jury trial, and the judge sentenced him based on his own fact-finding. The curious thing is that O'Connor does not defend Blakely's sentence. Her only complaint is that other criminal defendants might similarly demand their rights to a jury trial.

The Blakely decision just talks about Blakely's sentence, and that's all. O'Connor is more interested in handing down grand rules that give judges more power in a broad range of cases. She would rather let Blakely serve an extra long sentence in order to serve her suprmacist goals.

Curiously, the two big criminal-defendant-rights cases this year were argued by the same lawyer, and Justice Scalia wrote both majority opinions.

Update: A Wash Post editorial begs the Supreme Court to issue some supremacist dicta to accompany the Blakely decision:

the acting solicitor general, Paul D. Clement, warned the Supreme Court that "the federal sentencing system has fallen into a state of deep uncertainty and disarray" since the court's bombshell decision last month in Blakely v. Washington. He begged it to clarify the law immediately -- though the court is out of session for the summer. The Senate, likewise, passed a unanimous resolution urging the court to "act expeditiously to resolve the current confusion and inconsistency." ... Legislatures -- including Congress -- are unsure what laws they need to rewrite.
I hope the Court stays on vacation. All the Court did was apply this from a 2000 decision:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Wednesday, Jul 21, 2004
Supremacist judge wants to control prisons
A federal judge doesn't like the new California contract with the prison guards, so he wants to personally take control of the state prison system! John writes:
Supremacist Judge Thelton Henderson is remembered as the judge who tried to throw out Prop 209, but was overruled by his own 9th Circuit.

Monday, Jul 19, 2004
The Sun is getting hotter
A London newspaper says:
Global warming has finally been explained: the Earth is getting hotter because the Sun is burning more brightly than at any time during the past 1,000 years, according to new research.
Foreigners want judicial supremacy in the USA
John writes:
Here's a supremacist brief in which Gorbachev asks the Supreme Court to use foreign "norms" to overturn U.S. law.

WASHINGTON (AP) - Jimmy Carter, Mikhail Gorbachev, the American Medical Association and 48 nations are among those lobbying the Supreme Court to end the execution of killers who committed their crimes before age 18.

Most Americans are in favor of executing ruthless murderers like the 17-year-old DC sniper. The US Supreme Court upheld the practice as recently as 2002. The Constitution has several approving references to capital punishment.

But now that the DC sniper is probably not going to be executed anyway, the Court may decide that it can get away with inventing some new doctrine on the matter. In 2002, it cited evolving trends in order to say that a murderer has to pass an IQ test in order to be executed.

Saturday, Jul 17, 2004
DA with a quota
I have heard of cops having to write a quota of tickets, but I never heard of a district attorney with a quota of front page indictments. Andy sends this AP story:
The Sun published documents including [Maryland U.S. Attorney Thomas] DiBiagio's agenda for a May staff meeting, which outlined goals he wants to accomplish by "Nov. 6" to make the Maryland U.S. attorney's office the nation's "premier office." He wrote that he wanted "Three 'Front Page' White Collar/Public Corruption Indictments" by that date.
Is Blakely supremacist?
The Supremacists attacks various US Supreme Court decisions on the criminal justice system like Miranda and other Warren Court decision. After the book went to press, the Court decided Blakely v. Washington by a 5-4 vote on June 24, and a law prof argues:
Blakely is the biggest criminal justice decision not just of this past term, not just of this decade, not just of the Rehnquist Court, but perhaps in the history of the Supreme Court.
Already there are thousands of sentences that have been thrown into doubt, and there is a 4-way circuit split on what to do about it. The appellate courts are begging for Supreme Court guidance.

Blakely may well be the biggest case of the last year, but I just don't think that it is supremacist in the way that the Warren Court (and succeeding) criminal decisions were. Those decisions just invented new rules out of thin air, and commanded policemen and others to obey them. When the other branches of the government tried to tinker with those rules, then the Court rudely reasserted its authority. The Court pronouncements went far beyond any facts in cases that were before the Court.

All Blakely did was to reassert the 6A right to a jury trial for a criminal offense. Blakely pled guilty to one crime, but got an extra long sentence based on the judge doing his own fact-finding (over Blakely's objections). The Court did not attempt to rewrite the federal sentencing guidelines, even tho it appears that aspects of those guidelines do violate the 6A right to a jury trial.

The Blakely decision only limits what judges can do. It does not assert power over other branches of government. The upshot is likely to be that judges will have to be more dependent on jury fact-finding for their sentencing. That is the way it ought to be. Perhaps Congress will revise the federal guidelines in order to recognize that fact. Justice Breyer, a strong judicial supremacist himself, was one of the authors and principal proponents of those guidelines, and he'd like to let judges usurp power from juries. He's wrong. The Blakely decision is a good one, and not a supremacist one. We can only hope that the 5-4 majority holds as the Court is being bombarded with related cases.

Thursday, Jul 15, 2004
Illiterate artist
Livermore (Calif) commissioned an artist $40k to make a tile mosaic in front of its new library, but the artist misspelled Shakespeare, Michelangelo, Einstein, and Van Gogh. She refuses to fix it unless she is paid more money. She is a hispanic, and she thinks that she had some sort of right to misspell those names.
Crooked asbestos lawyers
John sends this story about Baron and Budd, and other crooked asbestos lawyers. They have drain billions of dollars out of the economy with bogus lawsuits based on junk science. See the link to the US Senate statement that details how the lawyers coach their witnesses to lie in court. Fred Baron is a close ally of John Edwards and is one of the principle profiteers in this scam. He justifies the way he coaches witnesses by saying that any lawyer in this country that is worth a damn works the same way. I think that Edwards and Baron are thieves who should be put in jail.

Wednesday, Jul 14, 2004
Florida judges trying to meddle with the election
The Florida judges aren't waiting for the presidential election to try to intervene. A court just ordered Florida officials to do more to help felons become eligible to vote.
Leave marriage to the states
Some hypocritical liberal politicians are ducking the same-sex marriage issue by claiming that it should be left to the states. These folks never want abortion or anything else left to the states, except possibly dope-smoking. But if they really want to leave it to the states, then they should support withdrawing federal court jurisdiction from DOMA. That is the most effective proposal on the table for leaving the issue to the states.

Those who support a federal marriage amendment are also trying to leave the matter to the states, as the people and legislatures of all 50 states oppose same-sex marriage. The main purpose of the amendment is to prevent the states from being overruled by the courts.

More lying Bush-haters
Joseph Wilson, who launched the whole attack on Bush that 16 words in his State of the Union address contained a lie, has now been exposed as a liar. It turns out that it was his wife that recommended him for his trip to Africa. Wilson had launched another supposed scandal by claiming that she had nothing to do with it.

This Weekly Standard article exposes some anti-Bush lies in the Knight-Ridder papers.

And the NY Times has been caught a few times as well. A recent article about Kerry choosing a VP ended with a completely gratuitous cheap shot about Pres. Bush taking a fake turkey to Baghdad. It had to publish this correction on July 11:

An article last Sunday about surprises in politics referred incorrectly to the turkey carried by President Bush during his unannounced visit to American troops in Baghdad over Thanksgiving. It was real, not fake.
Update: Wilson got an award for truth-telling, but I am wondering what truths he ever told. I thought that his whole claim to fame was that he went to Niger, proved that a crucial letter was a forgery, wrote a report showing that Iraq was not trying to buy uranium, briefed VP Cheney, and thereby showed that Bush's 2003 State Of The Union speech had a 16-word lie. Now it turns out that Wilson had nothing to do with the forged letter, that there is solid evidence that Iraq really did try to buy uranium, that Wilson's report was ambiguous, and that Cheney never even saw Wilson's report. Wilson now concedes that his recent book, "The Politics of Truth: Inside the Lies That Led to War and Betrayed My Wife's CIA Identity", had "a little literary flair". His central allegations are all false.

The major news media now concede that Wilson was a big liar, but they refuse to admit their own culpability in the matter. Here is the LA Times complaining that all the war bloggers are denouncing Wilson.

Monday, Jul 12, 2004
California malpractice law
John sends this AP story:
California's medical malpractice (search) law, cited as a model by President Bush, has reduced awards in malpractice trials by an average 30 percent, according to a study released Monday.

But because the landmark law capped attorney fees as well as jury awards, the net recovery by injured patients and their families fell only 15 percent, the study said. Payments to plaintiffs' lawyers dropped 60 percent.

The law limits non-economic damages. It has been a big win for everyone except the ambulance-chasing lawyers.

Sunday, Jul 11, 2004
Bogus european claim to invention
Here is a European claim:
The Europeans have invented the internet, but the Americans have come up with all business ideas for it. ...

The Internet is by and large considered an American invention, a myth that is even kept alive in the US. A short look back into the history of this technological revolution corrects this mistake. The qualitative leap, which first lifted the Internet from the sphere of universities, computerfreaks and the military, took place in Europe. The British Tim Berners-Lee invented the html-standard, which turned the net into the world wide web and rendered it practicable and usable for millions of users. The MP3-standard, which reduces music files to a twelfth of their original size and brought the music industry to the brink of ruin, was developed by a few scientists at the Fraunhofer-Institut für Integrierte Schaltungen (the Fraunhofer Institute for Integrated Circuits) in Erlangen, Germany. And finally the net in its current format could not exist if it wasn't for the Finnish Linus Thorvald who invented the Open Source-software Linux.

Most of this is nonsense. The internet was invented in the USA back around 1970. I don't think that anyone in Europe was even connected to it until about 10 years later. Linux would be nowhere without the American GNU project, or without being heavily promoted by IBM. Everything good about it was copied from ATT Unix. If Linux didn't exist, then those people would just be using BSD instead. Some people today prefer BSD to Linux, and BSD is totally free.

The HTML and MP3 formats were significant advances, but minor compared to what was done at Netscape, Microsoft, Apple, Sun, Real Networks, and elsewhere in the USA.

Saturday, Jul 10, 2004
Sen. Hatch needs to read the book
Sen. Orrin Hatch says that a constitutional amendment is the marriage amendment is the democratic way to save marriage. He needs to read The Supremacists. Congress can just withdraw federal court jurisdiction from DOMA.

Pres. Bush also supports an amendment, and doesn't mention withdrawing jurisdiction. John Kerry's spokesman says, "I think most people are going to see that as absolutely over the line and egregious. You don't amend the Constitution to roll back rights." Hmmm. I guess Kerry thinks that same-sex couples have a right to marry, and the homosexual-sympathizing judicial supremacists are unstoppable.

Wednesday, Jul 07, 2004
Racist and Supremacist Boston judges
John sends this NRO article about how 2 federal judges named Garrity abused their powers and made racist decisions that drove people out of their homes. It says:
Between them, the two judges Garrity (a fawning Times reporter observed) had taken control of Boston's public schools, jails, public-housing system, and even its sewer system. When asked by the reporter about the secret of his and the better-known Arthur Garrity's success in seizing direction of the policymaking process, Paul Garrity explained, "The easiest way to achieve control is to have people realize that if they get out of line, you'll nuke them. I suspect that [Arthur] Garrity would nuke them. I know that I'll nuke them."
Nearly everyone agrees that the Boston public school busing order was a big mistake. Judicial supremacy is the core of the problem.

Sunday, Jul 04, 2004
Jackpot Justice,The Wal-Mart Case
This article explains some of the problems with class action lawsuits. The Wal-Mart lawsuit will just be a big waste of money, except for a few greedy lawyers.

Thursday, Jul 01, 2004
Not a conservative court
Ben Shapiro rights points out that we do not have a conservative Supreme Court.

Justice Scalia said:

This court seems incapable of admitting that some matters - any matters - are none of its business.
The case was Sosa v. Alvarez-Machain, decided June 29, 2004.