Clarence Thomas Made My Day

We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for selfdefense.

NY State Rifle & Pistol Asso. v. Bruen, 20-843, Slip Op., 62, 63 (S. Ct.).

Team Kimberlin Post of the Day

Brett Kimberlin has carried through on his statement that he would appeal his recent loss in the Seventh Circuit to the Supreme Court. His counsel has asked for an extension of time to file a petition for a writ of certiorari, and that request has been granted.

Here the application that was filed—

Stay tuned.

 

What’s There and What’s Not

I’ve skimmed the document which Politico alleges to be a draft decision by Justice Alito striking down Roe v. Wade and Planned Parenthood v. Casey. It seems to me the gist of his argument is that the Supreme Court exceeded its authority by inventing a right that had no foundation in either the Constitution or American common law or our civil traditions. Therefore, regulation of abortion is a matter for each state.

I’m not surprised by that reasoning. I hope the Court’s final ruling goes that way.

This leads me wonder what the reasoning in the pending New York State Rifle & Pistol Association case will be. That case deals with a state’s regulation of a right explicitly protected in the Bill of Rights, a right the Court has previously ruled is bound on the states via the Fourteenth Amendment. Will the justices find some new extra-Constitutional doctrine that will allow states to continue to suppress an enumerated right? Or will they tell the states that Second Amendment is fully applicable nationwide?

Team Kimberlin Post of the Day

The TKPOTD for six years ago today dealt with my ability to foreseen upcoming events.

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popcorn4bkOK. Some of the Gentle Readers are wondering, “Did Hoge really foresee that LOLsuit The Dread Pro-Se Kimberlin filed against Senators McConnell and Grassley?” The truthful answer is yes and no. Yes, I foresaw that Kimberlin was likely to do something amazingly bold but mind-bogglingly stupid. No, I didn’t foresee Congress as his target. OTOH, he’s sued Senator Orin Hatch several years ago and Madeleine Albright when she was Secretary of State, so I’m not surprised by the grandiosity of his really futile and stupid gesture.

Some days, all one has to do is sit back, watch, and wait for the mistake to be made.

* * * * *

Some days, things proceed better than I have foreseen.

Today at The Supremes

I listened to the oral argument in the OSHA mandate cases today. I’m in a bit of a quandary about how to comment. (Before I go any further, let me remind the Gentle Reader that I am not a lawyer; I’m an engineer, and I’m not your engineer.) As multiple commentators have pointed out, Justices Breyer, Sotomayor, and Kagan made several factual statement that were simply wrong. It is possible for vaccinated individuals to catch and spread covid. There aren’t now—nor has there be across the entire pandemic—100,000 acute pediatric cases. The omicron variant is not deadlier than the delta.

I suppose it is possible that being kept in a bubble by handler/clerks could explain a certain level of ignorance, but when the cat’s so far out of the bag even outlets such as NPR are having to begin truthful reporting, it’s hared to imagine those justice really believe what they were saying.

If they do believe what they said, that’s kinda scary.

If they don’t believe it and said it anyway, that’s even scarier.

UPDATE—Typo corrected.

A Civil Rights Case Appealed to the Supreme Court

Maryland has a patently unconstitutional ban of certain firearms. A panel of the Fourth Circuit struck down the Maryland ban, but a en banc decision reversed the panel, so the law is still on the books.

A petition for a writ of certiorari has been filed with the Supreme Court.

That’s Gonna Leave a Mark

Bench slaps are fairly rare in Supreme Court decisions, and it’s almost unheard of for one to be directed at a fellow justice. Justice Gorsuch wrote this in the majority opinion in Whole Women’s Health v. Texas.He was joined by Justices Kavanaugh, Barrett, and (for this part of the opinion) Thomas.

The Left’s Terrible, Horrible, No Good, Very Bad Week

Monday was a bit of a rocky start with the Supreme Court hearing oral arguments about challenges to the Texas law that allows citizens to bring lawsuits against persons who perform abortions. Based on the justices’ questions, the case isn’t a slam dunk for either side. A win for the Left isn’t a gimme.

Tuesday was election day. The Democrats lost bigly in Virginia, and were reduced to referring to the first black woman to win state-wide office as a “white supremacist.” They lost a special election in Texas in a heavily Latino legislative district. Most stunning, they barely able to keep the vote within the margin of theft in New Jersey.

Wednesday, oral arguments in the challenge to the New York handgun permitting system were heard by the Supreme Court. Most commentators are projecting a 6 to 3 decision vindicating the petitioners’ Second Amendment rights. (I’m betting on 5 to 4.)

Thursday, the first actual arrest was made in the Russia Collusion Hoax case. The supporting indictment filed by Special Prosecutor John Durham paints a picture of collusion by the Clinton campaign with Russians.

Friday, was the day that Nancy Pelosi was going give Joe Xiden a win by passing his more-than-a-trillion dollar “infrastructure” bill. She failed to do so, and also failed to move the legislation for the Build Back Better scam either.

And that’s just some of what went right this week.

UPDATE—Well, well, well … Mrs. Pelosi did move some legislation. She did get the Senate’s version of the infrastructure bill through 228 to 206 (7 not voting). 13 Republicans voted for the bill: Katko, Bacon, Van Drew, Young, Upton, Kinzinger, Gonzalez, Fitzpatrick, Reed, Gabarino, Malliotakis, McKinley, and Smith of New Jersey. Pelosi couldn’t have pulled this off without that Republican support. It will be interesting to see how many of these congresscritters are reelected.

An Interesting Question

During the oral argument in New York State Rifle & Pistol Association v. Bruen this morning, Chief Justice Roberts asked the Solicitor General of New York, “Well how many muggings take place in the forest?”

He asked the question as part of an exchange with the Solicitor General in which she was trying to justify the suppression of Second Amendment rights in populated areas.

Not Just Clueless But Lawless Too

In a 6-3 ruling, the Supreme Court has granted the application to vacate the stay in enforcing the lower court’s order terminating the CDC’s eviction moratorium. (Alabama Assn. of Realtors v. Department of Health and Human Servs.)

In a per curium order the Court states:

It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government’s belief that its action “was necessary to avert a national catastrophe” could not overcome a lack of congressional authorization). It is up to Congress, not the CDC, to decide whether the public interest merits further action here.

***

If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. The application to vacate stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted.

So ordered.

The three dissenters were Breyer, Sotomayor, and Kagan.

Not Just Clueless But Lawless Too

The Supreme Court has denied a request for a stay pending appeal of the injunction requiring the Xiden Administration to reimplement the remain-in-Mexico requirement for asylum seekers entering the country at the southern border. A U.S. District Court found that the Xiden Administration broke law in promulgating its preferred policy. The Fifth Circuit Court of Appeals upheld the lower court’s finding.

A Supreme Bench Slap

The Supreme Court has struck down California’s covid regulations limiting home Bible studies and prayer meetings. The per curium opinion closes with these words—

This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. … And historically, strict scrutiny requires the State to further “interests of the highest order” by means “narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quotation marks omitted). That standard “is not watered down”; it “really means what it says.”

The decision was 5-4, with Roberts in the minority.

Texas Replies

Texas has filed a reply to the oppositions filed by Pennsylvania, Michigan, Wisconsin, and Georgia.

UPDATE—The Texas reply concludes—

Although Defendant States dispute that the Court should hear this action in its discretion and dispute the laws and facts, Defendant States offer no reason against deciding this action summarily if the Court rules for Texas on the facts and law.

UPDATE 2—Texas has also filed a reply in support of its motion for a preliminary injunction.

UPDATE 3—126 Congresscritters file in support of the Texas motion for a preliminary injunction.

Ohio Asks the Supremes to Rule

Ohio has asked for leave to file a brief in support of neither party in the Texas v. Pennsylvania, et al. suit. While Ohio does not support the remedies sought by Texas, it asks the court to take the case and settle the meaning of the Electors Clause so that future elections will not be plagued with similar issues.

Who’s On First

I told you that it would be interesting to see who files amicus briefs in support of which side of the Texas v. Pennsylvania, et al. lawsuit in the Supreme Court. The following states have filed a joint brief in support of the Texas motion for leave to file a Bill of Complaint: Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. In addition, Arizona has filed a motion for leave to file a brief asking the court to hear the case and to hear it quickly “to give the Nation certainty.” While Arizona argues that the court does not have discretion as to whether to hear the case or not, it does not necessarily support Texas’ position in the case.

A group of law professors along with Roy Moore (yes, that Roy Moore) have filed a motion to file an amicus brief in support of Texas.

Donald Trump, in his personal capacity, has filed a motion to intervene in the case.

A group of individuals (including “Carter Phillips, former Acting Attorney General Stuart Gerson, former Senator John Danforth, former Governor Christine Todd Whitman, former Senator and Governor Lowell Weicker, conservative legal scholars, and others who have worked in Republican federal administrations”) have filed a motion for leave to file an amicus brief is support of the defendant states. They argue that the Texas case violates the principle of federalism and the separation of powers between the states and the federal government, a states’ rights argument.

Stay tuned.

Texas, et al.

Thus far, it’s reported that the Attorneys General of Alabama, Arkansas, Florida, Louisiana, Mississippi, Missouri, South Carolina, South Dakota, and Tennessee have announced support for Texas either as amici or possibly co-plaintiffs in the Texas v. Pennsylvania, et al. lawsuit.

I am unaware of any state signing on in support of the defendant states in the case.

Stay tuned.

UPDATE—Missouri and 16 other states have filed an amicus brief in support of Texas.