Tag Archives: supreme court

Gonzales v. Carhart alone justifies the Second GW Bush Administration

Thank God for Justice Alito.
Thank God for Justice Roberts.

The best-of highlights from the ruling, courtesy of Justice Ginsburg:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey,between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (“Congress could … conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U. S., at 850)).

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.

Thank God for the Re-Election of President George Walker Bush.

PS: Remember my mock report of the imposition of Curia on the Untied States? Well, the Kos Kids aren’t joking.

The United States, the united States, and 300 Million Americans

In two posts, “Nine and Ten” and “MA v. EPA: To Be or Not to Be Soveriegn,” Curtis tackles the question of state sovereignty.

For background: in a recent case, the the Supreme Court (happily but obviously politically) rediscovered the sovereign state right of Parens Patriae. In the case, the Supreme Court acknowledged that States have sovereign rights but that they do not have the power to pursue those rights. Therefore, the federal bench must be especially sensitive to state concerns.

The points that Curtis ,makes on his blog echo those of ,Alexander Chisholm, Executors v. Georgia (1793), a SCOTUS case from when Washington was President. (Indeed, it is so old that there was not even “majority opinions” yet!) The controversy has been irrelevent since Amendment XI was ratified in 1798, but it is important in this discussion for what the Justices thought of the sovereignty of states.

Selected quotations are below the fold, but if I may summarize the justices

  • Chief Justice Jay: State sovereignty exists regardless of whether a state may be sued or not
  • Justice Blair: State sovereignty is forfeited to the extent that the Federal government gained sovereignty
  • Justice Wilson: Individual bind their sovereignty to the government, as states bind their sovereignty to the federal government
  • Justice Cushing: Questions of sovereignty are philosophical and irrelevant.
  • Justice Irdell: States are sovereign to the respect that the United States is not.

In other words, I think Curtis sums it up well when he writes:

Individuals are sovereign + States are sovereign + the Federal Government is sovereign… Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign

Well said!

Chief Justice John Jay:

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former…

It is plain then that a State may be sued, and hence it plainly follows that suability and State sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court.

Concurring, Justice Blair:

And if a State may be brought before this Court as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed, there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court, and if sovereignty be an exemption from suit in any other than the sovereign’s own courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

Concurring, Justice Wilson:

The only reason, I believe, why a free man is bound by human laws is that he binds himself. Upon the same principles upon which he becomes bound by the laws, he becomes amenable to the courts of justice which are formed and authorised by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise?

Concurring, Justice Cushing:

But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?

Dissenting, Justice Irdell:

Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them. Of course, the part not surrendered must remain as it did before.

Parens Patriae

I’m more sanguine about Massachusetts v. EPA (the “global warming case”) than Ed Whelan. While the court’s four liberal justices got the result they wanted (pushing the EPA closer to regulating CO2 emissions), they had to dig pretty deep into paleoconservatism for a justification how to do it. To get states-righters Anthony Kennedy’s fifth and decisive vote, the court resurrected a rather hard-edged “Father of the People” interpretation of Amendment X.

In the case, the Court decided that because States are the Fathers of their People, but are unable to resort to armed invasion to protect their people, their pleas must be listened to more readily by the Court than if the States were just land-owning persons or societies.

Amendment X, the states rights amendment, maintains the United States as an open society. It allows the sort of local experimentation and resilient networking that makes the United States an exceptionally agile country.

Amendment X is also despised by tyrants of all stripes. Both Leftist and Rightist factions happily trample on the freedom of states and citizens in order to push their through own agendas . That the court’s liberals are now retreating to Amendment X to defend their agendas is a good sign for freedom, liberty, and decentralized government.

Justice Ginsburg and the Supreme Court of the World

Sounds like the Big cheese admires Weeramanty,” by Mark Safranski, tdaxp, 26 September 2005, http://www.tdaxp.com/archive/2005/09/23/use-of-force.html.

Ginsburg discusses court integrity, Congress on campus visit,” by Meredith Grunke, Daily Nebraskan, 10 April 2006, http://www.dailynebraskan.com/media/storage/paper857/news/2006/04/10/News/Ginsburg.Discusses.Court.Integrity.Congress.On.Campus.Visit-1803033.shtml?norewrite200604101541&sourcedomain=www.dailynebraskan.com.

Note: My source for this post is the Daily Nebraskan, the occasionally incoherent student publication of the University of Nebraska – Lincoln. Most of their time, such as with their publication of my dialog with Dr. Frances Kaye over ROTC, they get things right. Occasionally they don’t. I am assuming that their reporting of a recent speech by a Supreme Court justice on our fair campus is accurate.


Ruth Bader Ginsburg wants to take over the world!

Ginsburg’s use of foreign laws in her decision has become unpopular. Attorney General has criticized the use of foreign laws, while the Washington Post criticized Ginsburg’s reasoning. Given the emphasis on American laws shown by her colleagues Justice and Chief Justice , you would imagine Justice Ginsburg would give in and do her job. Nope.

This past Friday, Ginsburg came up with a new reason to use foreign laws in our Courts:

In both her talks, Ginsburg mentioned the Supreme Court’s reference to international law, the exercise of executive power in times of war and recent confirmations to the court.

The justice also fielded questions and spoke in her lecture about the court’s references to foreign law when making decisions – a practice she believes is widely misunderstood. Congress has been looking into measures to curb the court’s references to decisions made by foreign countries.

If we aren’t willing to read and consider what our counterparts abroad are writing, … they will be discouraged from listening to us,” she said, pointing out that court decisions made in other countries are not binding to the U.S.

It appears that Ginsburg is saying that if the US Supreme Court does not use laws from other countries, those countries will not rely on the US Supreme Court.

This statement makes no interest if Justice Ginsburg is interested in interpretating the Law of the Land, or if her primary loyalties are to US Law and the US Constitution. However, it makes perfect sense if one sees her as part of an international league of justices primarily interested in see their words run the world.

In the words of Mark Safranski, these people

would like to establish as a legitimate authority is effectively a ” Transnational Progressive Ulema” where IL scholars and certain NGO and international bodies collectively float above nation-state sovereigns and hand down rulings much they way Ayatollah Sistani or Sunni scholars issue fatwas

This approach is undemocratic, because it removes the legislative (much less the diplomatic!) function from the Congress and gives it to the Courts. It’s non-modular, because it places its face in one, best, international solution whether than evolving local ones. It’s philosophy of experts-know-best has more in common with the theories of the French and the Soviets than with the experience of Americans.

I would stop here, except taking a shot at Ginsburg’s victimology is too easy:

“In some political circles, it is fashionable to criticize and even threaten, federal judges who decide cases without regard to what the `home crowd’ wants,” she said.


John Roberts and the Supreme Court Disparage "International Law." Good.

Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit,” by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.

While not quite as succinct as Justice Antonin Scalia’s criticism of international law, Chief Justice has officially put “” in its place

John Roberts: Lord of International Law

The case, which struck down a federal drug law, was well decided. That is good. The government gave an incompetent and lackluster defense. That is typical. But what’s wonderful is this paragraph

The fact that hoasca is covered by the [U. N. Commentary on the Convention on Psycho­tropic Substances], however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under [the ] invocation of such general interests, standing alone, is not enough.

In other words, the Court has affirmed two principles

  • First, treaties have to meet a “compelling interest” before they trump certain domestic laws, such as the
  • and Second, international law is only valid in the context of “international consequences,” not as laws unto themselves

Those who support America’s submission to “international law” often cite the second paragraph of Article VI of the US Constitution

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Constitution lists three sources of the “supreme law of the land”

  • the Constitution itself
  • the laws of the United States
  • all treaties made

However, in the same sentence, the Constitution instructs all judges to be bound by that, notwithstanding

  • “anything in the Constitution,” or
  • “the laws of any State”

In other words, the Constitution identifies three sources of Supreme Law (the Constitution, Laws, and Treaties), and then identifies the Constitution and the Laws as the most important of these. The Supreme Court may listen to government pleas that it has an interest in some treaty, or that some treaty beneficial consequence to the United States.

Treaties are the least democratic source of “law,” because they are enacted by the joint action of the President (who is indirectly elected through the Electoral College) and the Senate (which represents the States, and thus has equal representation for states regardless of the population). Under our democratic system of government, treaties are rightfully deprived of much power and influence.

As the historian Mark Safranski wrote:

Most of what passes for ” International Law ” are simply arguable moral claims advanced by interested parties. The most solidly ” legal ” core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won’t even have that much.

International law is best taken with a healthy dose of common sense.

The recognizes this.


Abortion and Global Roadsterism

This is an important post. I hope I do it justice.

Is this a conservative statement?

Actions taken according to the Way are more productive than actions against the Way.

Translate the Way (tao) as “nature”, and you get:

Actions taken according to Nature are more productive than actions taken against Nature.

Of course it’s conservative. The Revolution and the Constitution were actions taken according to Nature (and Nature’s God), and they are the heart of Americanism.

Now, translate the original word of “Nature” (tao) literally according to John 14:6

Jesus answered, “I am the way and the truth and the life. No one comes to the Father except through me.

and you get

Actions taken according to Christ are more productive than actions taken against Christ

and you get a Cosmic and Biblical truism. So where’s this going? Now translate “tao” as Forces of History

Actions taken according to the Forces of History are more productive than actions taken against Forces of History.

Suddenly (for me, a slow-on-the-uptake blogger) the capitulation of the post-War British Conservative Party and the Supreme Court’s recent actions make a lot more sense

Lao Tzu, Founder of Chinese Taoism

Retreating from untenable positions and “going with the flow” is a valid Conservative philosophy. Evolutionary shifting positiosn keeps a culture’s vertical and horizontal controls appropriate to the situation. A king that has eyes but does not see will not make appropriate laws — government and policies cannot be blind to reality.

This is why Conservatives embraced the post-War consensus. It appeared to be a new reality. The unique combination of rapid economic development, the colossal genius of Karl Marx, and the facile specious logic of Lord Keynes was a once in a millennium tragedy. The Conservative approach should have worked, as it did in most other times and places.

And finally, the point. The Conservative approach that ends abortion will be a Supreme Court decision invoking international law.

Mark at Zen Pundit alerted me to the Court’s International Law-yering. My original response, while technically accurate, missed the point. The Court’s actions should be viewed as Conservative. The youth execution case follows a similar logic. This is Global Roadsterism, which attempts to steer American law on a global path.

Was this conservative impulse behind with votes of the liberal justices — Stevens, Souter, Ginsburg, and Breyer? Probably not, and I don’t care. Conservatives control the Court. The liberal justices are merely tools of different Conservative factions.

The Supreme Court of the United States
Global Roadsters Against Deviationism?

And the upshot: this is how most abortions will be stopped in the United States. It is unlike the Neoconservative branch of the court will expand. Men like Scalia, Thomas, and Rehnquist are rare and they are opposed when their intentions are clear. Bush may get away with “saving” these three votes by appointing carbon-copy replacements, but he will not be able to repalce any of the other six like that. The replacement for a Stevens, a Souter, a Ginsburg, or a Breyer will be a Conservative, like O’Conner or Kennedy. A Global Roadster.

Death Punishers are losing the Supreme Court battles because they tide of years is against them. Ever fewer nations and states have capital punishment. The “life” faction appears too strong, too universal, too overwhelming to resist.

Happily, the same universality works against abortion. America has shockingly lose infanticide laws. Even the Europeans don’t kill their children as we do. America stands alone as a butcher of innocents.

In both cases, there is a rights-absolutist faction (“A state has the right to kill because of … “, “A woman has the right to abort because of…”) that faces off against world legal opinoin. In the end, for most cases, both acts will be forbidden.

And the secular hagiography. This is why George Walker Bush is a pivotal world figure. If the United States supported abortion worldwide, as it did under Clinton and would have under Kerry, the pro-life movement would be terribly undermined. The United States has the ability to set the tone for the world. We can affect changes in other countries that change the global legal environment, and so under Global Roadsters will change our legal environment. From the January 22, 2001, when President Bush restored the Mexico City Policy, he was paving the road for a pro-life America.