I realized that I never posted about oral arguments in the Wayne County case, nor the Supreme Court decision which was handed down while we were driving home. On Tuesday, oral arguments were held, for around an hour, which seemed to me to go very well. I honestly was surprised to find out that they had ruled against us. Here’s the debrief video I made that evening, which includes an excerpt of my rebuttal arguments during the oral arguments hearing:
If I had to guess, I would speculate that they found a procedural means to rule against us, such as standing, or perhaps the existence of the so-called “second signature,” where my client unknowingly signed the letter presented to the Governor by the State GOP. At least I hope so, because otherwise the Court will have modified legislation from the bench – because the law was very clearly on our side.
Here are some of the media reports from the day:
For about an hour earlier this afternoon, lawyers for Governor Justice and the West Virginia Republican Party presented arguments against a lawyer for the chairman of the Wayne County Republican Executive Committee.
A few weeks ago, the governor picked Booth, whose family runs a highway safety contracting business, to fill the vacancy. But Booth’s name had not appeared on a list originally submitted by Wayne County political leaders.
The argument before justices focused on who has the authority to submit names to fill such vacancies and the proper procedure for doing so.
“This is one political party committee that is elected by Wayne County voters engaged in a power grab or attempted control by the state executive committee that has no direct connection to the local Wayne County voters,” said John Bryan, counsel for the Wayne County GOP chairman.
“That is the whole point: that they ended up with somebody they voted for or necessarily even knew but they ended up with somebody that, according to the records, donated to Governor Justice when he ran for office in 2016 as a Democrat.”
He was referring to records showing Booth as a $1,000 maximum-amount donor to Justice’s first run, when he won as a Democrat before changing parties after a few months.
I was obviously freshly perturbed when I gave this interview:
Attorney John Bryan, who is representing Maynard, was disappointed by the ruling.
“The governor has been able to get around the law whenever he pleases for the past year now,” Bryan told The West Virginia Record. “When the full opinion is issued, I suppose we’ll find out how he did it this time. … State laws throughout the country were not followed in the 2020 election, and not a court in the land seems to care.”
There is a vigorous debate about whether the community care exception can apply to searches of a person’s home as well as of their car. Vehicles have always had less 4th Amendment protection than homes, which are considered a person’s most private sphere. Federal courts have been divided on this question and the Supreme Court has not ruled on it until now.
This is actually the same “doctrine” Putnam County is asserting in the Michael Walker open carry case, which is being heard at the 4th Circuit in early March. Violate the 4th Amendment? No biggie, just claim you were looking out for the community…..
Joe Biden won’t answer the question about whether he’ll attempt to pack the U.S. Supreme Court, until the day after the election – so he’s claimed. What is “packing the Court,” and why is it such a terrible idea that even Ruth Bader Ginsburg warned against it?
The Constitution did not specify the number of justices to sit on the Supreme Court. That’s up to Congress. For the past 150 years or so, Congress has maintained that number at 9. An odd number is required, so as to avoid the rather-anti-climactic tie vote. With a 9 member Court, a 5-4 decision, or better, wins the case. With the loss of RBG, the American left loses a crucial vote on the Court, which is why they are threatening to increase the number of justices on the Court, so as to counteract her replacement with Judge Amy Coney Barrett. Thus, if Biden wins, and if Congress is able to increase the number, they could create a left-wing majority on the Court by increasing the number of Democrat-nominated justices.
But the problem with any such plan is, that eventually the other side will return to power and retaliate accordingly. What we then end up with has now become a super-legislature, rather than a Supreme Court, as the Founders intended. Even RBG herself was against Democrats’ 2019 threats to pack the Court:
Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.
Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court.
“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
To pull it off, the Democrats would really need to add 4 new liberal members to the Court, which would create a 7-6 majority. Setting long-term retaliation and consequences to the Court aside, the results would be disastrous to the Second Amendment:
A 7-6 progressive majority on the court would very likely overturn decades of precedent that have protected gun owners from both state and federal attempts to deny them their Second Amendment rights. Millions of American gun owners would be subject to these changes and the laws, which Democrats, some of whom are committed to confiscating guns, would impose.
The most obvious change to free speech laws that would come with a progressive majority on the Supreme Court would be the overturning of the 2010 5-4 Citizens United decision….. More broadly, speech laws such as those that exist in New York City requiring people to use preferred pronouns even if they do not believe that gender is mutable, would find a much kinder hearing in the new court.
The progressive reading of Roe v. Wade is almost limitless in its scope and perhaps the only question mark would regard the ability to kill babies even after they are outside of the mother. Beyond that, it is very likely that almost any state restrictions would be shot down.
Several religious liberty cases such as Hobby Lobby and Little Sisters of the Poorhave been closely decided of late. It is safe to assume these decisions would be reversed. Practicing Christians and members of other faiths would face far greater restriction in living their faith in their public life. Our understanding of how we may practice our religions would undergo a major change, abandoning the American tradition of public faith, and limiting religious expression to the church and the home.
In all likelihood, a new progressive majority would be open to efforts to abolish the electoral college, to allow statehood for the District of Columbia and Puerto Rico, and to allow voting by people in the country illegally. All of these changes would skew towards the Democrats and could very well result in one-party federal rule of the United States.
So what stopped FDR from packing the Supreme Court back in the 1930s? It happened during the Great Depression, when FDR was pushing his socialist New Deal programs, only to have them struck down by the conservative-majority Supreme Court of the early 1930s. President Roosevelt sought to solve the problem sooner, rather than later, so he introduced the “Judicial Procedures Reform Bill of 1937,” commonly referred to as the “court packing plan.” This would have allowed him to appoint up to 6 additional justices to the Court for every justice older than 70.5 years, or who had already served 10 years or more. In reality, a conservative majority had developed on the Court, and like Biden, he was willing to add justices to create his own new majority, consequences be damned:
From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.
FDR indirectly attacked the Court, claiming publicly he was concerned about their age, rather than the ideological point of view of its majority:
FDR recognized, though, that a direct assault on the court must be avoided; he could not simply assert that he wanted judges who would do his bidding. The most promising approach, it seemed, would be to capitalize on the public’s concern about the ages of the justices. At the time of his reelection, it was the most elderly court in the nation’s history, averaging 71 years. Six of the justices were 70 or older; a scurrilous book on the court, The Nine Old Men, by Drew Pearson and Robert Allen, was rapidly moving up the bestseller lists.
FDR basically lied about his motivations. Rather than admit to the American people that he was playing politics, and attempting to enact his progressive legislation without interference by the conservative court, he feigned concern over the age of the justices:
“A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves,” the president observed. “This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.” He acknowledged that “in exceptional cases,” some judges “retain to an advanced age full mental and physical vigor,” but quickly added, “Those not so fortunate are often unable to perceive their own infirmities.” Life tenure, he asserted, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”
Similar to what would happen in 2020, the result was all-out war between the branches of government, and between the political parties:
While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.
“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”
“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”
The battle lasted 168 days. It’s difficult to imagine how it would play out in the era of social media and biased news. But even then, it was ugly:
Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the PacificCoast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond…..
At the time, the FDR liberals showed little concern for the Supreme Court as an independent and important branch of government. If other countries could enact these programs, then so should we be able to do so….
If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages……
The Bill was ultimately defeated, but FDR still got what he wanted in the end. The historians’ lesson of the affair, as relayed to us in 2005, is perhaps more credible than any we would receive today, in the era of over-politicization of all fields of academia. So pay attention to the parts in bold:
The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends. On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.
The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.
As RGB knew, even the mighty FDR was wrong to attempt to destroy the SCOTUS by increasing the number of justices as a means to an end for temporary political goals. However enticing it might appear, it’s going to hurt everyone in the end.
My thoughts on the Ruth Bader Ginsburg drama. There are 3 currently living retired Supreme Court justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Each of these still-living former justices chose to retire, rather than to remain on the bench until death. RGB was perhaps the most left-wing partisan justice ever to serve on the Court, so understandably, she made the purposeful choice to stay on as long as possible. Therefore, it was her choice to politicize the vacancy which would be created by her death. In fact, her last words, as relayed by her granddaughter, were purportedly, “My most fervent wish is that I will not be replaced until a new president is installed.”
First of all, presidents are elected – not installed – and secondly, the seat belongs to the American people. It never belonged to her. It’s not her seat; it’s not the Democrats’ seat; it’s not the left’s seat; it’s not the right’s seat; it’s the people’s seat. Assuming that RBG actually said that, she didn’t just say wait until after the election, but rather, she wants to wait until Donald Trump’s successor takes office. She’s therefore expressing her desire that Trump notreplace her. If she said that, it wouldn’t be the first time that she’s knocked Trump, and it’s frankly sad to think that a man she disliked was the last thing on her mind in her final moments, rather than the granddaughter she was purportedly speaking to.
There can be no doubt that the Constitution provides the that the President is tasked with nominating someone new to fill the vacancy, subject to the advice and consent of the U.S. Senate. The only issue is the timing.The Constitution doesn’t necessarily provide, or require, that federal judgeships last until “death,” per se. What does the Constitution say about this? Article III is the part of the Constitution which lays out the constitutional foundation of the judicial branch, which leaves the logistics to Congress:
Article 3, Section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Thus, a justice serves “during good behavior.” So for life in general, but not necessarily. And it gives Congress the responsibility of organizing the federal judiciary. In fact, one of the first things Congress did in 1789 when it set up shop, is to set up the federal judiciary – including a Supreme Court, with then-6 justices. Of course, we now have 9, though Democrats have been threatening to increase the number (which RBG has gone on the record as opposing, even if done by Democrats).
The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.
Let’s look at the science behind it. There was a study done in 2010 on retirement vs. death-in-office of Supreme Court justices, noting that it was a “small but extremely important social group” which had not been previously studied in this way.
[S]ome observers have long asserted—and others have long denied—that the timing of justices’ resignations from the Court, and even the probability that they die in office, reflect a highly politicized process that, like their nominations, revolves around political compatibility between the individual jurist and the incumbent president of the United States as well as personal circumstances of justices, such as vitality (i.e., health, wellness), age, personal finances, and job tenure (i.e., length of service on the Court; see, e.g., French 2005). We call this assertion the politicized departure hypothesis.
The politicized departure hypothesis is based on (1) the observation that a justice’s retirement—particularly if it occurs early in a president’s term of office—allows the incumbent president to nominate the replacement for that justice, (2) the belief that justices tend to be loyal to the party of the president who appointed them to the Court, and (3) the conjecture that justices tend to display this loyalty by timing their resignations to give a president of that party the opportunity to appoint their judicial successor. Thus, the politicized departure hypothesis is as follows: (1) Other things equal, if the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice is more likely to resign from the Court than at times when these two conditions are not met.
The study found that history has shown that, despite the ability to generally stay until death, as end-of-life nears, with the existence of a pension, justices have tended to retire, rather than die in office. Those who have chosen to stay until death are dedicated politicos, as one of my college professors (Dr. Lanier) used to call them, acting not in their own personal best interests, but rather for pure politics. I think he used to say, “Don’t kid yourselves, these people are seasoned politicos.” Turning to the study at hand, the average service period of a SCOTUS justice over the course of the last 230 years of American jurisprudence has been about 25 years. According to the science, as the age of a justice advances, the expected annual odds of their retirement are about a 6% chance per additional year of life. Then comes the politics, which skews the numbers according to the political party of the president vs. the justice:
If the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.
In addition, political climate effects on death in office are consistent with the politicized departure hypothesis. When the incumbent president is of a different party than the president who appointed the justice, then the justice’s death-in-office odds are about tripled, compared with when the appointing president and the incumbent president are members of the same party.
That’s the category RBG fits into. The likelihood of RGB dying in office based purely on the politics of replacing her, was about 3 times higher than the likelihood of her having retired had Trump not won in 2016. That seems about right to me. She’s had cancer for some period of time. Had Hillary won in 2016, it seems rational to believe she would have voluntarily retired sometime after November of 2016. Still though, RGB’s choice bucks the trend. Looking at history, the trend seems to have been towards increasing voluntary retirement of Supreme Court justices, rather than through death, which was more pervasive in the 19th century:
The evidence shows that RGB was a diehard politico. She went against the grain in choosing not to retire, and instead to attempt to outlive a Trump presidency. Her anti-Trump politics were well-known.
Washington (CNN) Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.”He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Ginsburg had told a Times reporter, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
Mind you, she made these comments about Trump before he was elected. They were made during the 2016 election – only months away from election day. Wisely, she publicly apologized:
Supreme Court Justice Ruth Bader Ginsburg apologized Thursday for comments she made about Donald Trump in The New York Times over the weekend. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” she said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
I can agree with that sentiment. Particularly inappropriate was the fact that she said this not while Trump was President, but during the campaign. So she’s not criticizing the Executive Branch, she ‘s criticizing a candidate. That seems dangerous to me. By all accounts she was extremely smart, and was an effective proponent of her point of view. She certainly wasn’t afraid of having her own opinions. You may not know this, because the media probably hasn’t spoken of it much, but RBG also criticized Colin Kaepernick, calling his national anthem kneeling/protest “dumb” – though she later apologized for that too.
You may have seem memes about RBG in reference to advising Egypt away from copying the U.S. Constitution…. In a 2012 interview with an Arabic television station, RBG publicly reccomended that the Egyptians, after overthrowing their old government, NOT look to the U.S. Constitution as a model for their new government. This wasn’t taken out of context, either. Don’t just read the meme, or a biased “fact-check” article. Go ahead and read her full quote:
Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?
In her own words, as a sitting Supreme Court justice, she prefers the South African constitution, or the Canadian “Charter of Rights and Freedoms,” neither of which include any real right of the people to bear arms. South Africa itself is a hot-mess, and has a constitution which is full of problems, including the fact that it created a socialistic system of government control of over 700 businesses, as well as a disaster as far as racial relations goes. Canada’s ultra-leftwing charter is like taking the radical left’s social justice platform and turning it into constitutional law. It may be good from the left’s political perspective, but it would be antithetical to the governmental constraint and limited government required from the U.S. Constitution.
Clearly RGB knew it would be much easier for the left to impose their agenda on a populace without a constitution such as ours in place. That’s her opinion, which is likely the reason she chose to play politics until the very end. The beauty and the genius of the U.S. Constitution is that its can be amended at any time. Bad stuff can come out. Good stuff can go in. You just have to follow the process – which requires broad support by the people. It’s not something done by swamp creatures alone.
Therefore the question is not whether the President should nominate a new justice – it’s whether the President should delay doing so, just in case he loses the election, because political pressure from the opposition is demanding it. There is no constitutional basis for such a request – only politics. This, mind you, is coming from the same political opposition who impeached the President, in an election year. The President needs only to ask himself one question. What would the Democrats do? There’s his answer.