Today’s decisions by the Supreme Court were a major defeat for certain Democrat politicians and liberal activists. Yes, Obamacare was preserved in a 7-2 decision and in another 9-0 decision religious liberty was preserved. But liberal court packing activists lost today. As the Committee for Justice wrote:
Consider the contrast between reality and Democrats' exaggerated predictions and fear mongering. Last fall, during the Senate Judiciary Committee hearing for Amy Coney Barrett, Democratic senator after Democratic senator told stories of constituents who would suffer, if not die, were Barrett confirmed. She would provide the fifth "far right" vote for striking down the Affordable Care Act, they said, some of them implying that Barrett had promised President Trump to strike down the ACA in return for her nomination. . . .
Amy Coney Barrett was confirmed, but so much for closely divided far right decisions and constituents robbed of health insurance by a nefarious deal between Barrett and Trump. Instead, what we got today was a 7-2 rejection of the challenge to the ACA with Barrett in the majority, a unanimous and narrow decision protecting religious objections to same-sex marriage, and an overall picture of a moderate Court which will sometimes disappoint liberals, sometimes disappoint conservatives, and often the split the baby.
On Tuesday, the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights held a hearing entitled, "Supreme Court Fact-Finding and the Distortion of American Democracy." The two witnesses called by the Republican members of the Committee were Indiana Solicitor General Thomas Fisher and the Cato Institute's Ilya Shapiro. As Shapiro pointed out during the hearing and in his prepared remarks, the title of the hearing itself is overblown:
I actually think that the hearing title is a bit loaded: first, because the Supreme Court doesn’t generally engage in fact-finding in the way trial courts do, but rather applies the law to novel facts, as any appellate court is supposed to; and second, because however much one thinks American democracy is “distorted,” the Supreme Court, a reactive institution, is hardly at fault. Indeed, the court is the most respected government institution other than police and the military, so hand-wringing over its role in governance—or broader questioning of its legitimacy—principally arises when the justices rule in ways that disagree with progressive orthodoxy or, more broadly, when progressives are frustrated that there’s a major institution they don’t control. The chairman himself filed a brief in last year’s Second Amendment case admonishing the Court to “heal itself before the public demands it be restructured in order to reduce the influence of politics.”Read more
Senator Sheldon Whitehouse has donned his "dark money" tinfoil hat yet again. Unsurprisingly, Senator Whitehouse dubbed his first hearing as chairman of Senate Judiciary Committee's Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights: "What's Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary."Read more
Democrats continued their healthcare forum during today's confirmation hearing for Judge Amy Coney Barrett. This came despite:
Judge Barrett correctly says that Obamacare case currently before the Supreme Court turns on the issue of severability, which was not an issue in the previous ACA cases. Someone should tell the Democrats.— RNLA ⚖️ (@TheRepLawyer) October 13, 2020
Barrett asks, “What sane person person would go through [this] process without a clear benefit on the other side?” The benefit she says, is the rule of law and an opportunity to serve her country.— Gabby Orr (@GabbyOrr_) October 13, 2020
Apparently both the left and the right are outraged at aspects of Judge Sullivan's decision to delay granting the Department of Justice’s motion to drop the case against Michael Flynn. But while one side respects the separation of powers and the rule of law, the other side is acting like a schoolyard bully making threats.
To our minds, Judge Sullivan blurs separation of powers when he appointed a retired judge who publicly expressed opinions against Flynn to review the case and accept amicus curiae briefs. Judge Sullivan seems to be acting like a prosecutor, not an “umpire” judge. While we consider Judge Sullivan’s decision extremely troubling, we think Flynn’s lawyers took the appropriate course of action in this case by requesting a writ of mandamus.Read more
RNLA Betty Murphy Award Winner Mike Davis and the Article III Project released a letter signed by conservative leaders in response to Senate Democrat Minority Leader Chuck Schumer’s threats on Justices Gorsuch and Kavanaugh last week:
In a better world, this episode would mark the end of Chuck Schumer’s political career. But even in America in 2020, it should be a permanent blot on Schumer’s record. We therefore strongly support a resolution to censure Schumer on the Senate floor.Read more
Yesterday, during the Senate impeachment trial's questions phase, 2020 Democratic presidential candidate and Senator Elizabeth Warren submitted a question that attacked Chief Justice John Roberts who is presiding over the Senate impeachment trial as required by the Constitution:
Roberts read the question aloud: “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”Read more
The Democrats of the 2010s have become the Party that refuses to respect results or the rule of law. While the most obvious example is their continuing efforts to undermine elections, the most recent example, and most troubling to those who practice law, may be the recent threats of Senate Democrats to the courts. As we wrote last week, Senator Whitehouse threatened the Supreme Court in an unprecedented amicus brief. Today, Senate Republicans responded.Read more
Today, at the end of a long executive business meeting, the Senate Judiciary Committee voted to report favorably the nominations of William Barr to be Attorney General and 44 judicial nominees, including circuit court nominees Bridget S. Bade (Ninth Circuit), Paul B. Matey (Third Circuit), Eric D. Miller (Ninth Circuit), Eric E. Murphy (Sixth Circuit), Chad A. Readler (Sixth Circuit), and Allison Jones Rushing (Fourth Circuit). The judicial nominees had previously had hearings in the Senate Judiciary Committee but were held up by Democrats' delays and obstructions, so they had to be re-nominated by President Trump in this Congress.Read more
Yesterday, the Senate Judiciary Committee held a confirmation hearing for current Office of Information and Regulatory Affairs (OIRA) Administrator and Scalia Law Professor Neomi Rao's nomination to the D.C. Circuit. RNLA Executive Director Michael Thielen described in the Daily Caller how Senate Judiciary Democrats attempted to trip her up and ended up only looking foolish themselves:Read more