Archive for the ‘Supreme Court’ category

Bake Me A Cake

August 14, 2017

Jack Phillips is a baker from Colorado who denied serving a gay couple who asked him, in his capacity as a bake shop owner, to bake them a wedding cake (as he would for anyone else). Mr. Phillips claimed his deeply held religious views, which see homosexuality as a sin, prevented him from serving the gay couple. Colorado Courts have held against Mr Phillips but never the less, Mr Phillips has (clearly with outside support) appealed his case to the Supreme Court. Hmmm.

In the political world, pandering is a high art form. Some on the Supreme Court have been searching for a case to strengthen the First Amendment’s religious freedom clause and may see Mr Phillip’s case as a way to make a statement. IMO, the Supreme Court is entering very dangerous waters, especially if they should uphold an individuals right to discriminate.

Will the Court decide that in the cases of the LGBT community, discrimination (denial of service based upon sexual orientation) is acceptable?

What about deeply held religious views on race, gender, or white supremacy?

No one is saying Mr Phillips or any other holder of deeply held religious views cannot believe them or cannot lead their own life based upon these views. What should be at stake is that in a secular society, no one, regardless of how strongly held their personal religious views might be, has the right to impose their personal views on anyone else.

Regrettably, with the Hobby Lobby decision, the Court has already erred and may find this case too tempting and will reverse the Colorado Courts decision.

I wonder how the Court would rule if Mr Phillips had denied service to, say a Catholic or Baptist or Muslim for similar reasons?

Deeply Held Religious Freedom

June 26, 2017

Hmmm. The Supreme Court has agreed to hear on appeal a case where a cake maker refused to serve a gay couple who wished to purchase a decorated cake for their wedding.

The baker claimed that his deeply held religious views would be compromised because the bible and his religion instructed him not to recognize homosexuality. The Supreme Court will now weigh in on whether religious rights can justify discrimination.

When I think about religion, the first thought that comes to mind is, ”love your neighbor as yourself”. So it seems to me incomprehensible how a serious religion can say, “hold on a minute, the Bible did not mean all neighbors”.

Regrettably, too many religions find it useful to divide and conquer the masses. By assigning “good” to some and “bad” to others, religious leaders can more easily influence the congregation’s direction, and not to be overlooked, the congregation’s gift giving (to the religious leaders). So one might be justified to suspect to any claim of “deeply held” religious views.

If a black person went into any store and when they requested a service, they were told that store does not serve black people, would there be a question that his behavior was illegal? And the same can be said about a Christian denying service to a Jew, or a Jew denying service to a Muslim. So what is it about homosexuals who want to celebrate their marriage?

Mormons were once upon a time excited about having multiple wives. Federal law prohibits that practice and did that Federal law not go against deeply held religious views?

Jehovah Witnesses do not believe in blood transfusions. Yet courts have ordered blood transfusions when medically necessary to save a life viewing the refusal of a blood transfer to be scientifically unfounded and tantamount to committing suicide.

Arguments before the Supreme Court will not take place until the Court’s new term in October. Between now and then, the public could boycott this religious baker and help this religious person reap the benefits of his deeply held views.

Seems Obvious

May 6, 2017

In the upcoming Philadelphia District Attorney primary, George Soros has announced he will spend $1.4 million to advance the candidacy of one of seven candidates. In Philadelphia terms, that is a lot of money. The obvious question is why?

The simple answer is George Soros is very wealthy and there is nothing to stop him.  Hmmm.

Actually George Soros is and should be free to “prefer” any candidate in any State or National election and even make verbal recommendations. The real question is why should George Soros, or anyone else who is not a resident of the US, a State, or a local election be able to spend money to influence the election’s outcome?

Most people would find it repugnant that a foreign citizen or country could spend money to influence a US election. Why then should someone living in Michigan or Mississippi spend their money to influence an election in Boston or Los Angeles?

Cynically, the answer might be that the more money spent in any elections translates into more revenue spent in the State and local economy than would have been spent otherwise. Spending loosely translates into jobs, and what’s bad about jobs?

The Supreme Court’s Citizens United ruling called corporations the same as people. With that reasoning, rights accruing to people should accrue to corporations, the reasoning goes. And, spending is an expression of free speech. Hmmm.

So, a large multi-location corporation, flush with money, could support local politicians who espouses certain policies viewed favorably by this corporation, to the disadvantage of local citizens and not to mention smaller, local corporations. The notion of “one man – one vote” just went swishing by, out the window.

Not to complicate this issue needlessly, surely corporations operating in a jurisdiction in question must have opinions on many issues, and would routinely express these views directly or through lobbying firms to elected officials. Why not join the conversation before the candidate is elected?

From my perspective, this seemingly obvious question boils down to what is “reasonable”, and in line with the voice others who will cast a vote (corporations despite being people do not vote) will have. What should be at the heart of this issue is protecting the integrity of the vote. A citizen’s vote should not be drowned out by a voice greatly amplified by money coming from any source, particularly sources outside the jurisdiction whether corporations or by individuals.

The current lack of campaign funding regulations represent cynical attempts to utilize vast sums of money to twist the electoral process to favor certain parties, ideologies, and policies in contempt of the one man – one vote tradition.

George Soros should have no role to play in Philadelphia.

Religious Freedom

April 22, 2017

In a recent issue of the New Yorker, there is an article on Leonard Leo. Mr Leo is not a household name although maybe he should be. Mr Leo’s most recent claim to fame is his successful “shepherding” of Judge Neil Gorsuch through the Senate approval process. Mr. Leo, however, is not one to thirst for the spot light, preferring instead to operate at the periphery of public discussion.

And operate Mr. Leo does.

As the Executive Director of the Federalist Society, Mr Leo has spearheaded conservative interests in most matters of government but with a clear focus upon the courts, especially the Supreme Court. As an “originalist”, Mr Leo supports Constitutional interpretations which purport to represent the “founding fathers” views. Hmmm.

The Federalists speak, not for wild and crazy people, but for reasoned, conservative, traditionalists. Within these ranks, however, hide moneyed interests who see “originalist” views as conducive to their personal business and financial well being. Nothing like the braggadocio associated with a high minded principle which conveniently puts money in your pocket too.

From the New Yorker article, Mr Leo’s hands appear clean although someone must be paying his lawyering bills. Rather Mr. Leo is presented as a congenial, non-confrontational person who seeks and befriends up and coming conservative legal minds. The article claim Mr. Leo was a close friend of the late Justice Antonin Scalia.

So where is this post going?

Mr. Leo is also a conservative Catholic who is strongly pro-life. Mr. Leo was an early supporter of Chief Justice Roberts and Justice Alito, both pro-life advocates. The prospect of over turning Roe v Wade (long established law) suddenly does not seem that impossible.

Mr. Leo says that the Constitution was silent over specific rights to abortion and therefore to his reasoning, the US Supreme Court has no rightful place making a woman’s right to an abortion the law of the land.

At this point, one could argue contrarily that in fact the freedoms expressed in the Constitution as well as the Amendments recognize the rights of a woman to make her own reproductive decisions.

Within the thought, why not point out what seems even more obvious. The first Amendment speaks to “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, and that should be enough.

Mr. Leo, Chief Justice Roberts, and Justice Alito are more than free to hold sincere “pro-life” religious beliefs. They are all free to practice such views in their own lives but the Constitution does not provide them the right to foist their personal religious views on anyone else. (Admittedly, someone who is against all forms of life ending acts, including the death penalty, wars, and suicides has a moral argument which rises above religion dogma but in the end, addresses only their own behavior.

Justice Kennedy is thought to be the deciding Justice should the current John Roberts Court consider another Roe v Wade challenge. If Justice Kennedy should decide to retire while a Republican President is in office, another Gorsuch/Alito/Roberts Justice is almost assured. In such a situation, the true color of these jurists will be seen.

Will these Jurists over turn Roe v Wade in favor of States self determination, or will they become religious zealots and side with some future Congressional law which outlaws all abortions and denies States the right to decide?

The irony of this Roe v Wade debate is that the real “federalists” were extremely concerned about the excesses of organized religion. The closest most of the founding fathers came to religion was some recognition of a higher spirit. Consequently, if the Supreme Court should overturn Roe v Wade, we should recognize the “originalist” principle is purely a crutch designed to deny some Americans individual freedom.

GOP Goes Nuclear

April 4, 2017

The GOP Senate leadership appears poised to take a dangerous and unwise step this week. Senate Leader Mitch McConnell has promised to change the 100 year old Senate procedural rule governing filibusters and Supreme Court nominees. If Democrats insist upon 60 votes to confirm, McConnell promises to change the rules to a simple majority.

Since Republicans have already a Senate majority, why shouldn’t they change the rules?

The Supreme Court is a life time appointment and is already divided along ideological lines. Democrats argue that Judge Gorsuch, while well qualified in every way, has a judicial perspective which is out of the mainstream. Democrats feel a Justice Gorsuch would approach each case with a preconceived ultra conservative perspective.

Republicans respond that Gorsuch is in the mainstream and more importantly views the Constitution (as originally conceived).  It is not clear how or with whom Judge Gorsuch verifies or confirms his interpretation of original intent.

So again, why shouldn’t Republicans change the rules?

Democrats argue a Supreme Court nominee ought to get more than a simple majority given the importance of the position. Competency, good character, and an impartial mind would seem to be the desired requisites. With Judge Gorsuch, the disagreement seems to be hanging upon whether Goruch can be impartial. Hmmm.

The Gorsuch vote will underline the extreme positions of the two major parties. Conservatives who now dominate the Republican Party seek to reduce the size of government, eliminate (or at least vastly reduce) entitlements, and reverse all sorts of social changes made over the past 50 years.

Democrats largely under progressive influence seek to interpret the Constitution in modern terms reflecting over two hundred years of advancements in science, medicine, and experience. There was no internet, no antibiotics, or no airplanes/automobiles/trains in the lives of our founding fathers. The hand delivered letter, death from common illnesses, and foot or horse transportation were the norms of our founding fathers’ time. As a consequence, Democrats prefer a Justice who sees the world as they do.

The Gorsuch vote is the next step in a series of regrettable failure in Senate leadership. Conservative groups had sought during former President Obama’s term to limit how many Judges Obama could appoint. The GOP reasoning was that with fewer appointments, there would be fewer progressive leaning members of the judiciary when it came time to nominate higher court judges and ultimately Justices. To this end, Republicans filibustered Obama nominees and blocked consideration. In frustration, then Senate Leader Harry Reid changed the Senate filibuster rules on most Presidential appointees to a simple majority to end the filibuster… except for the Supreme Court where Reid left in place the 60 vote threshold.

Republicans were furious and took the next step of not even considering Judge Merritt Garland following Justice Scalia’s death. As previously done filibustering former President Obama’s nominee, Republicans upped the anti and did not even hold hearings for Judge Garland.

It is possible that Republicans think they are taking prudent action. Republicans may be so focused on what they feel is the proper ideological direction that “the ends justify the means”. Republicans, if so, could not be more wrong. History has shown that the party in power changes like the leaves on a tree. Regardless of which party is in power, voters tend to tire of that party and vote them out. Does it take much effort to think what the next Democrat controlled Senate might be like?

There is an even more serious consequence on the table if Senator McConnell changes the rules. There is no reason for either party to feel it necessary to nominate a “competent, good character, and impartial” person in the future. With the confirmation assured, why not nominate Sheldon Adelson or any other wildly rich donor, or why not Jeff Sessions if all that’s needed is a straight party vote?

Democracy has been tried by many countries around the world. In far too many, democracy has a given way to authoritarian regimes of some form or another. America’s secret has been a robust balance of powers held together by functioning checks and balances.

Merritt Garland should never have been passed over and Neil Gorsuch deserves an up or down vote (with no filibuster).  Unfortunately Garland was denied a fair vote and now it is Gorsuch’s role to take the blow back.

A wise GOP leadership would accept the blow back from their overt blocking of President Obama’s nominations and move on to their next nominee.

Instead it appears US politics are headed tribal.

Supreme Decision

February 1, 2017

With the nomination of Federal Appeals Court Judge, Neil Gorsuch, a difficult decision lies in front of Democrat Senators. Do they oppose his confirmation at all costs or do they object but in the end allow him to be confirmed? And more to the point, why in either case?

Judge Gorsuch claims to be someone who interprets the Constitution as the framers intended and reads laws in the context of how they were created, not how they would impact the future. Judge Gorsuch as been described as “Scalia-esq” without the bombastic-ness Antonin Scalia employed. So does Judge Gorsuch deserve a hearing?

It should be very understandable if Democrats chose a “tit for tat” response reflecting Mitch McConnell’s decision to not even give hearings to Merritt Garland. On this basis alone, a logical refusal to confirm could be based.

Over time, however, political sentiment shifts back and forth from conservative to progressive and back. It should therefore not be overlooked that in the future as the recent past, progressives have been nominated. (Judge Garland’s treatment, unfortunately, hurts this argument).  Never the less, a complete stonewall of Gorsuch would only serve to dignify McConnell’s dysfunctional behavior.

Assuming there is a hearing, what questions should be asked? And what type of answers will indicate Judge Gorsuch is not “out of the mainstream”?

Judge Gorsuch calls himself an “originalist” in the Antonin Scalia mold.  Questions around social issues and religious rights represent places where (IMO) “originalists” are the furtherest out on the limb and may be seen as out of the mainstream.

For example, supporting the Little Sisters of the Poor’s or Hobby’s decision not to provide all of Obamacare’s benefits to women for religious reasons runs dead smack into the 14th Amendment (equal protection). The Affordable Care Act required no one to use any birth control method, ACA simply made it available to any woman who so chose. Does Judge Gorsuch believe exercising religious liberty can over ride the 14th Amendment?

Another social issue involves individual gay rights such as employment discrimination and same sex marriage. Does freedom of religion allow someone with “deeply held religious beliefs” to fire or refuse to hire someone, or to withhold services to a customer on the basis of sexual orientation?

And of course, does any government have the right to interfere with a women’s choices on her reproductive health, and by extension, does a person with deeply held religious views or any religious institution have standing in denying any women such rights?

Judge Gorsuch’s beliefs in other areas such as tort, tax, and corporate law, while important, are less relevant since the Judge’s opinions are well known to be the conservative side.

It is instead the social issues which are dividing the country and are not to be found in thoughts of our founding fathers.

A simple principle might be, “believe what you want, live personally your beliefs, do not require others to follow your beliefs”.

Tyrannos To Tyrant?

January 13, 2017

Greece is usually given the credit for introducing the world to “democracy” as a method of governing. Of course, early Greek democracy does not resemble what we know to be Democracy in the 21st century, but in comparison to kings and pharaohs lead organizations, Greek Democracy was a radical departure. Hmmm.

President-elect Trump is poised to become President Trump and a fair question to ask is will the Trump Presidency begin with Tyrannos Trump and proceed to Tyrant Trump, or is the US democracy strong enough to overcome partisan attacks?

Democracies are difficult forms of government to maintain. Citizens are required to participate in law making as well as seeing that laws are followed. Citizens normally perform these tasks by thoughtfully choosing representatives who in turn propose, debate and create the laws upon which the greater population will be governed.  Citizens also select a chief executive who commands military resources  which will protect the country as a whole.  The Chief Executive, through various agencies ensures the laws are observed.

What happens when citizens do not take the task of picking representatives and the chief executive seriously enough.  What happens when citizens think disproportionately about themselves and their own perceived needs and place little or no importance on the country as a whole?

Long ago the Greeks encountered just such a situation. Their answer was to willingly ceed ever greater amounts of power to their selected ruler.  In time that ruler held ultimate power. The Greeks called these persons Tyrannos, or in modern English, Tyrants. Is the US on a similar path with the election of Donald Trump?

Tyrannos is a priori neither good nor evil, wise or misguided, nor effective or tragically ineffective. A “Tyrannos” is someone a democratic society has given more and more authority, without appropriate limits, normally to solve some great problem facing the country.

History has shown, however, that Tyrannos are never satisfied until they have achieved absolute power, and usually attempt to discard inconveniences of democratic governance in favor of authoritarian measures.  Today we liken dictators to Tyrants.

I wonder whether we are seeing the early signs of this phenomena with President-elect Trump?

One can argue that Republicans won by combining two large groups. Conservative Republicans looked the other way with respect to decency, experience, and integrity, voting for someone who they thought could solve societal problems.  Another group was composed of middle of the road citizens who had been hurt by globalization and lower wage immigrant labor. This group were willing to cast aside “the traditional American way” if there was a chance to regain their vision of the “American Dream”.

Candidate Donald Trump promised these voters (both groups) what they wanted.

In return, Trump asserted new powers by ignoring past practices, speaking mistruths and spreading misinformation, and marginalizing the press. Trump’s refusal to release his tax returns, his refusal to insulate himself ethically from his business holdings, and his vindictive, crude, personal attacks on individuals are clearly designed to intimidate.  These are also all signs of a Tyrant’s MO.

America’s democracy is still robust given world standards. Trump’s victory in November appears by all current information to have been fare and square. Donald J Trump will become the 45th US President. But it doesn’t stop there.

All Americans, supporters of Trump or not, still need to stay involved with our democracy. Congress, even one under Republican control, and the Supreme Court, even one soon to be Conservative in majority have important roles to play in ensuring the Trump Administration respects the Constitutions and the Rule of Law.

Should Congress members trade balance of power responsibilities for Trump’s support of their favorite legislation, in essence allowing Congress to look the other way, voters must take note.

As citizens, if we care about democracy, we must not look the other way and remember in two years which legislators did not show up for duty. The 2016 election was very close. The 115th Congress has been selected and will do what it deems best. The 116th, however, is just months away.

If President Trump fails to deliver on his promises, attempts to continue flaunting laws and precedents, or openly tries to claim more power, the ballot box can assist voters in taking back their democracy.