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Gender pronouns and the Supreme Court

Westlake Legal Group TransBathroom Gender pronouns and the Supreme Court transgender pronouns The Blog Supreme Court lawsuit gender

We’ve touched on this subject a few times recently, but there’s another layer to the upcoming Supreme Court case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that’s worth considering. It has to do with the battle over the chosen use of pronouns in court filings. The Associated Press picked up on this yesterday and the story highlights the different approaches being taken by the two sides.

As you may recall, the case revolves around Aimee Stephens, a male funeral director employed at the funeral home who came in one day and announced to the management that he would thereafter be living (and dressing) as a woman. The funeral home said that would constitute a violation of their dress code and they couldn’t allow it. Stephens took the matter to the EEOC, leading to the subsequent lawsuit and where we find ourselves today.

The specific aspect of the case being looked in the AP report is the use of gender pronouns (or lack thereof) in various court filings and briefs related to the case. Those supporting Stephens use female pronouns, while a lengthy filing from the White House refers to the employee only by name.

Dozens of legal briefs supporting fired funeral director Aimee Stephens at the Supreme Court use “she” and “her” to refer to the transgender woman.

So does the appeals court ruling in favor of Stephens that held that workplace discrimination against transgender people is illegal under federal civil rights law.

But in more than 110 pages urging the Supreme Court to reverse that decision, the Trump administration and the Michigan funeral home where Stephens worked avoid gender pronouns, repeatedly using Stephens’ name…

Decisions about gender pronouns may seem minor, but they appear to reflect the larger issues involved in this high-stakes battle.

First of all, I don’t know if anyone is expecting the Supreme Court to issue a ruling on pronoun usage here, but you probably shouldn’t get your hopes up. That’s not what the court is being asked to decide. They will be ruling on whether or not it was legal for the funeral home to fire Stephens and whether that was done because of the dress code or because the funeral director came out as being transgender.

Still, the choices made in the various documents they will be considering are interesting. The circuit court ruling repeatedly refers to Stephens using female pronouns, unsurprisingly, since they found in his favor. The lengthy White House briefing, however, goes the awkward route many people choose, purging all pronouns and simply using the plaintiff’s surname over and over again. You have to wonder how the Supreme Court will handle that issue when they finally issue their ruling. I’m guessing it will depend on who writes the decision(s).

As far as I’m concerned, everyone should be able to make their own choice in the matter. If you support the idea of gender being some sort of gauzy construct, feel free to call transgender individuals by the pronoun of their choice. I wrestled with the concept for a while before finally settling on something of a compromise Unless you are intersex, you were born as one of the two genders inherent to our species and I opt for the medically correct pronoun initially. But if, for example, a man is so bound and determined to prove the point that they have their private parts lopped off, I will toss them a female pronoun. Not because it makes them an actual woman, but just for the sheer bloody-mindedness of their quest.

That’s why I began referring to Chelsea Manning by feminine pronouns following her surgery. I’ve seen no indication that Aimee Stephens has made that “transition” yet, but if it turns out that he has or if he does in the future, I’ll absolutely start referring to him as her.

In any event, the pronouns that show up in the SCOTUS decision next summer shouldn’t impact the outcome of the case in question either way. It will simply provide an interesting footnote in the history of this debate.

The post Gender pronouns and the Supreme Court appeared first on Hot Air.

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Will the Supreme Court affirm the definition of “sex” for us?

Westlake Legal Group SCOTUS2019 Will the Supreme Court affirm the definition of “sex” for us? transgender The Blog Supreme Court SCOTUS gender identity definition

This is a story we touched on a few weeks ago, but it’s back in the news over at National Review raising even more questions. It deals with the lawsuit involving G. R. Harris Funeral Homes, a company that was sued by a male employee who announced that he was going to begin living life (and dressing) as a woman, but was told he could not do so at work.

That case has made it all the way to the Supreme Court, where arguments will be heard in the upcoming term. John Bursch is an employee of Alliance Defending Freedom, the group representing the funeral home in this case. In his essay at National Review, he optimistically predicts that the Supremes will be deciding two critical questions that will impact a great many lawsuits around the country in coming years.

The high court will decide two questions: (1) whether the term “sex” in federal employment nondiscrimination law, Title VII, includes “gender identity,” and (2) whether it is unlawful sex stereotyping to administer a dress code based on biological sex rather than gender identity.

The meaning of “sex” depends on the term’s public meaning in 1964, the year Congress enacted Title VII. Interpreting laws this way ensures that it remains constant and reliable over time. Business owners across the country rely on Title VII when making business policies.

There is little dispute that, in 1964, the term “sex” was publicly understood, as it is now, to mean biological sex: male and female. After all, the term “gender identity” wasn’t even part of the American lexicon at the time.

The reason I used the word “optimistically” above is that my take on this case hasn’t changed much since I wrote the piece I linked to from earlier this month. But with that said, let’s look at the two questions John poses in the order presented.

First, will the court declare whether the term “sex,” either as used in Title VII or more generically in the field of law, should include the concept of “gender identity?” It would be lovely if they did, assuming they stick to the fundamental tenets of science. If they handed down a ruling reaffirming that humanity is comprised of two genders, male and female, both required for reproduction of the species (with the rare exceptions of individuals born with anomalous DNA, having characteristics of both sexes) we could put a lot of these issues to rest. But I wouldn’t bet the ranch on it.

The way the lawsuit against G. R. Harris Funeral Homes is structured, the court doesn’t need such a sweeping declaration to reach a decision. They could issue a very narrowly tailored ruling dealing strictly with employment rights and dress code issues. This court has been notoriously gunshy about taking on big, difficult cases that deal with divisive social questions for some time now and I’d be willing to bet a large coffee that we’ll see the same pattern repeated here.

That brings us to the second question. Whether they manage to sweep the question of whether or not the plaintiff is a “woman” under the rug or not, how the court treats dress code rules is not easily predicted. The benchmark case is often held to be Price Waterhouse v. Hopkins. And if that’s the standard the court adheres to, the funeral home is pretty much doomed. The court ruling there “forbids employers from discriminating against an employee for failing to live up to gender role expectations.” In other words, the employer can’t set the standard for what qualifies as “masculine” or “feminine.”

But the courts have backed down from that in later cases. In Jespersen v. Harrah’s Operating Company, it was held that employers can institute dress codes and that they can vary between men and women provided they don’t place a disproportionate burden on one gender over the other. The courts have also held that dress codes are enforceable when covering more generic terms, such as clean, neat, professional, etc.

Personally, I find it hard to believe that the employer, in this case, could insist that men wear a suit and tie but be allowed to fire a woman who showed up similarly attired if the clothing was clean and professional looking. So the same should apply to a male wearing a professional skirt or pantsuit of some sort. But I wouldn’t say the decision of this particular Supreme Court is a sure thing either way.

The post Will the Supreme Court affirm the definition of “sex” for us? appeared first on Hot Air.

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Dem warns SCOTUS a pro-Second Amendment ruling will lead to court packing

Westlake Legal Group Whitehouse Dem warns SCOTUS a pro-Second Amendment ruling will lead to court packing The Blog Supreme Court Sheldon Whitehouse second amendment SCOTUS court packing

We recently looked at the case of New York State Rifle and Pistol Association v. City of New York. That’s the one where the plaintiffs have sued the city over a recently enacted law making it nearly impossible to legally transport a properly registered firearm in the city unless going to or from an approved shooting range. The Supreme Court agreed to hear the appeal, but now the City has voluntarily dropped the transportation restrictions and is asking SCOTUS to dismiss the appeal since there’s no longer a need for it in their opinion. (The plaintiffs need to learn to take yes for an answer.)

The court has asked both sides to submit briefs on this request and will consider them one week before the start of the next session. Now a new voice has weighed in on the subject. Democratic Senator Sheldon Whitehouse (Rhode Island) has filed his own brief with the court. But he’s doing much more than offering a friendly opinion on the merits. He’s warning the Supreme Court that they need to drop the case because if they don’t and they wind up issuing a ruling favorable to the plaintiffs and dismantling more of New York City’s gun laws, that will trigger an effort to pack the courts. (Daily Caller)

Democratic Sen. Sheldon Whitehouse of Rhode Island filed a legal brief before the Supreme Court in a challenge to New York City’s gun transportation regulations, advancing a broad indictment of the Roberts Court itself as he urged the justices to turn away the NRA-backed case.

The brief, which follows back-to-back mass shootings in El Paso, Texas and Dayton, Ohio, accuses the justices of delivering partisan decisions for monied Republican interests while warning of lasting damage to the Supreme Court’s legitimacy.

“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics,’” Whitehouse wrote, alluding to court-packing measures that have gained traction in progressive circles. “Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

I should first repeat for the umpteenth time that I’m not a lawyer, nor do I play one on television. But does it strike anyone else rather odd that this legal brief doesn’t actually have much to do with the merits of the case? And if you’re trying to curry the court’s favor and get them to see things your way, do you usually open up your missive by insulting the justices?

Whitehouse comes out of the gate implying that the Supreme Court is currently sick or “not well,” as he put it. He follows up the insult with a threat, saying that America would need to “restructure” the court in order to heal it. Perhaps most laughable of all is the way he frames the threat as a need to “reduce the influence of politics.” What he’s actually threatening to do is the most politically driven and drastic action imaginable in this scenario. He might as well have said, decide the case the way liberals and Democrats want or we’ll come back and stack a bunch of blatantly liberal justices on your bench to overrule you.

As to the threatened court-packing scheme, Whitehouse’s mouth might be writing checks that his caucus can’t cash. Even if they manage to take back the Oval Office next year (still not a sure bet by any means), it’s going to take one heck of a lot of support to force through a plan to expand the number of justices on the Supreme Court. And even if they manage it, the GOP will just do the same thing back to them the next time they are in power until we eventually have more justices than senators. (Won’t that be lovely?)

Dick Durbin, Kirsten Gillibrand, Richard Blumenthal, and Mazie Hirono all signed on to the letter that Whitehouse submitted, so we’ve got some presidential primary action going on here as well. It would be interesting to see if this backfires on Whitehouse entirely. As I mentioned in the previous article (linked above), we’ve seen how often this Supreme Court has taken every opportunity presented to dodge divisive, complex cases, particularly when it comes to Second Amendment issues. This motion by the defendants offers them the perfect opportunity to do that once again. But after getting a nasty poison pen letter like this from Whitehouse, I wonder if the conservatives on the court will stiffen their backs and insist on hearing the appeal anyway.

The post Dem warns SCOTUS a pro-Second Amendment ruling will lead to court packing appeared first on Hot Air.

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New York City surrenders on gun control law to avoid SCOTUS review

Westlake Legal Group AndrewCuomo New York City surrenders on gun control law to avoid SCOTUS review The Blog surrender Supreme Court second amendment New York State gun control

New York City has voluntarily withdrawn one aspect of its gun control laws. This was done in an effort to stop the Supreme Court from hearing the case of New York State Rifle and Pistol Association v. City of New York. The law in question forbids residents with valid gun permits from transporting their firearms virtually anywhere outside their home. The sole exception is if they are traveling to or from an approved shooting range inside the city, and even then the weapon must be unloaded and locked in an approved container, rendering the firearm completely useless in an emergency situation. (You can read a good review of the law at Reason.)

That law had previously been challenged in both district court and a federal court of appeals and it was upheld both times. So why throw in the towel now? The simple answer is that they’re frightened of what might happen if the new conservative majority on the Supreme Court gets hold of it. (Washington Post)

Gun-control groups operate under a no-news-is-good-news approach to the Supreme Court, leery of giving what they view as a strengthened conservative majority the chance to expand gun rights and weaken restrictive laws.

In New York State Rifle & Pistol Association v. City of New York, which the court accepted in January, the city and state of New York appear to agree. They have essentially surrendered, changing the restrictions at issue even though the city successfully defended them before a district judge and a federal appeals court.

New York says it has given those who hold licenses to have guns on their premises exactly what they asked for — a greater ability to transport their weapons through and outside the city — and there no longer is a controversy for the Supreme Court to settle.

If this case goes before the Supremes, they might not only throw out the provision regarding the transportation of firearms but instead ditch the entire thing. That would set a precedent that could affect gun control laws across the entire nation, not to mention endangering some aspects of the New York State SAFE Act as well. It appears that the city is willing to go home and lick their wounds rather than risking another decision on par with Heller that could overturn the entire gun control apple cart.

Will they get away with it? It looks like they just might. The court has agreed to accept briefs and hear arguments asking for the case to be dismissed on October 1st, one week before the next session begins. The city is relying on the precedent established by Chief Justice John Roberts in the dismissal of an unrelated case when he invoked the phrase suggesting that sometimes the plaintiff has to be able “to take yes for an answer.”

While Clarence Thomas, Neil Gorsuch and Brett Kavanaugh have suggested the court needs to take on more Second Amendment cases, the rest of the judges have been far more gunshy (if you’ll pardon the phrase). Sadly, I won’t be shocked if they take this opportunity to duck yet another touchy gun rights case, rather than being forced to make a tough call. Perhaps they’ll prove me wrong, but it would be surprising to see them insist on pushing the case through anyway.

The post New York City surrenders on gun control law to avoid SCOTUS review appeared first on Hot Air.

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In Australia, government workers can now be fired for tweeting

Westlake Legal Group Twitter In Australia, government workers can now be fired for tweeting twitter The Blog Supreme Court Free Speech First Amendment Australia

If you’re an Australian and you happen to be thinking of applying for a government job, here’s a hot tip for you. Delete your Twitter and Facebook accounts immediately. Otherwise, you might fall victim to the temptation to tweet and that can get you fired according to that nation’s highest court. That’s what happened to a woman named Michaela Banerji.

So what was she tweeting that was so horrible? Child pornography? Threats of violence? Hate speech? Nope. She was expressing opinions about government immigration policy on an anonymous account. She was fired for that and the Australian Supreme Court has upheld the decision to terminate her. (The Guardian)

The high court has unanimously upheld a decision to sack public servant Michaela Banerji for anonymous social media posts that criticised the government’s immigration policy.

The court delivered its judgment in the landmark freedom of speech test case on Wednesday, upholding an appeal from the workers’ compensation agency Comcare which argued it was reasonable for the immigration department to sack Banerji.

The case has implications for two million federal, state and local public servants, as the court declined to use the constitutional implied freedom of communication to rule the sacking was unreasonable.

So Banerji was tweeting about government policy under a pseudonym, but someone unmasked her and it was brought to the attention of her superiors. There’s a rule for government workers which says that “public servants must be apolitical at all times” and she was sacked under that rule.

Banerji appealed her dismissal and initially won a worker’s compensation case when the administrative appeals tribunal found her firing to be unreasonable under the “implied freedom of communication” in the Australian constitution. But the Supreme Court obviously disagreed and overturned that finding.

The problem for Banerji and other public servants is that there is no specific freedom of speech in their constitution. The closest they come is the “implied freedom of communication” I mentioned above. (You can read an explanation of how that’s derived at the Australian Parliament’s website.) But since that right is only “implied,” it’s not a secure thing and the court has just demonstrated how tenuous that freedom actually is.

This should serve as a cautionary tale for all of you Americans. Be grateful that you have the First Amendment and guard those freedoms with all your might. Not everyone has them, and without such protections, the government can do pretty much anything it wants to you.

The post In Australia, government workers can now be fired for tweeting appeared first on Hot Air.

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The definitions of “sex” and “gender identity” are heading to SCOTUS… sort of

Westlake Legal Group TransBathroom The definitions of “sex” and “gender identity” are heading to SCOTUS… sort of transgender rights transgender The Blog Supreme Court lawsuit Equality

For some time now, we’ve been waiting for a court case that could clear up some of the rather daunting questions arising from issues of transgender rights and how they intersect with traditional views on privacy and the segregation of the genders. A variety of these cases have produced a mixed bag of results in the lower courts and the Supreme Court has seemed reluctant to do more than nibble around the edges of the underlying questions. That may be about to change, though perhaps not for the better.

The Daily Signal has a good summary of such a case where oral arguments will be presented before the Supremes on October 8th. The case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (EEOC). The case centers on Tom and Nancy Rost, who operate a family-owned funeral home in the Detroit area.

Six years ago, one of their male employees announced that he was transgender and planned to begin dressing as a woman at work. Tom reportedly agonized over the decision and the impact it might have on his female employees and, even more so, their grieving clients. In the end, he decided he couldn’t allow the employee to do that and declined the request. In short order, he was sued by the EEOC. And as the Daily Signal points out, it’s a decision that could have a dramatic impact on small businesses around the country.

Later, following the commission’s urging, a federal court of appeals effectively redefined the word “sex” in federal law to mean “gender identity.”

Enacted by Congress in 1964, Title VII of the Civil Rights Act has long protected women, along with racial and religious minorities, from unjust discrimination in the workplace.

Redefining the term “sex” in that law to mean “gender identity” would create chaotic, unworkable situations and unjustly punish business owners like Tom while destroying important gains women and girls have made over the past 50 years.

Indeed, Tom Rost’s case, in which Alliance Defending Freedom represents the funeral home, is just the tip of the iceberg.

Speaking as someone who has been digging into the broader aspects of this subject for some time now, I regret to say that this is probably just about the worst case you could pick to send to the Supreme Court, and not just because it looks likely to go against the defendants. The problems here are many, but the biggest one is the type of action that the employer is trying to engage in.

We’ve covered more transgender lawsuits here than I can count, but the big ones that have been of interest almost uniformly revolve around either issues of privacy or fairness, particularly in competitive sports. The former generally deal with public access to bathrooms, lockers, and showers while the latter focus on males identifying as females competing against actual women in sporting events. In all these cases, natural women and girls frequently come out on the losing end when they go before a judge.

In Harris Funeral Homes, while the issue of bathroom access comes up (and could be easily resolved) this primarily comes down to an employment opportunity question. What the owners have done is basically informed their employee that they can’t keep their job if they dress as the opposite sex. We shouldn’t be in the business of denying jobs to transgender workers, to begin with, and the court will probably read the case that way and find for the plaintiff.

Even worse, this case gives the Supremes an open invitation to ignore the larger, underlying questions we need answered and duck out of a sticky situation with a very narrow, tailored ruling. This case does nothing to address the question of whether or not “identifying” as the opposite gender actually makes you that other gender in the eyes of the law. It doesn’t force the justices to demand answers in terms of the “science” behind transgender claims. It doesn’t take into account the issues surrounding the natural physical advantages males have over females in competitive environments.

No, this case ignores all of that and allows the plaintiff to basically frame this as a question of whether or not the funeral home can force him to dress a certain way for work and fire him if he fails to comply. And of course, the answer to that question is no. It’s not a question of sloppy or inappropriate clothing. It’s gender-specific clothing. And as longs as the clothes are clean and professional-looking, you could no more fire a woman dressed in a suit, tie and trousers than you could a man wearing a gown. Nor should you.

What we need to see is one of these cases of men competing in women’s sports make it to the Supreme Court and attempt to force them to answer these question of whether or not these are actually women and how fair or unfair such competitions are. Don’t be shocked if the Supremes duck away from Harris Funeral Homes on those larger issues and treat this as an equal employment opportunity case. It’s what they love to do in the trickier social conflict cases (as well as with the Second Amendment) and they will almost certainly take that escape hatch here if it’s available.

The post The definitions of “sex” and “gender identity” are heading to SCOTUS… sort of appeared first on Hot Air.

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“He Counts Judges”: Conan O’Brien Asks How Cocaine Mitch Sleeps at Night, Gets Brilliant Response

Westlake Legal Group CocaineMitch “He Counts Judges”: Conan O’Brien Asks How Cocaine Mitch Sleeps at Night, Gets Brilliant Response washington D.C. Supreme Court Social Media SCOTUS republicans Politics North Carolina Mitch McConnell Media Kentucky judicial nominees Judicial Hollywood Front Page Stories Front Page Featured Story Featured Post Entertainment democrats Culture Courts Congress Cocaine Mitch Campaigns Allow Media Exception 2020

“Cocaine Mitch” graphic. Image via Team Mitch.

As the self-appointed “Grim Reaper” of the Senate, Majority Leader Mitch McConnell (R-KY) has made it crystal clear that one of his top priorities is getting President Donald Trump’s judicial nominees confirmed.

The Politico reported last week on how the longtime Kentucky Senator was keeping his promises:

Senate Majority Leader Mitch McConnell on Thursday set up votes on lifetime appointments for 19 judicial nominees next week, setting up a busy pre-recess work session on a top GOP priority.

McConnell’s move means likely confirmation of 19 District Court judges; the GOP leader had focused on higher-level Circuit Court judges for the first 30 months of Donald Trump’s presidency, filling all but four vacancies on the appeals courts.

Now McConnell is beginning to work his way through the 111 District Court vacancies even as the House heads home for the summer this week.

[…]

“Not bad for a week’s work and that’s what the Senate will accomplish before we adjourn for August,” McConnell said on the floor.

Naturally, this makes McConnell an enemy in Democratic circles, which might explain why late night TV talk show host Conan O’Brien took a swipe at McConnell’s looks on Monday, asking how the Majority Leader managed to sleep at night:

Twitter user “Vixen Rogue” had a brilliant response:

Even New York Times alums see McConnell’s laser-like focus on filling court vacancies and begrudgingly praise him:

‘Nuff said.

(Hat tip: Twitchy)

—————-
— Based in North Carolina, Sister Toldjah is a former liberal and a 15+ year veteran of blogging with an emphasis on media bias, social issues, and the culture wars. Read her Red State archives here. Connect with her on Twitter. –

The post “He Counts Judges”: Conan O’Brien Asks How Cocaine Mitch Sleeps at Night, Gets Brilliant Response appeared first on RedState.

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Supreme Court Hands Trump Administration A Decisive Victory Over A Rogue Judge and the Lawless Ninth Circuit

Westlake Legal Group hogarth-judges-620x512 Supreme Court Hands Trump Administration A Decisive Victory Over A Rogue Judge and the Lawless Ninth Circuit Supreme Court Sierra Club SCOTUS Politics Ninth Circuit Court of Appeals ninth circuit immigration haywood s. gilliam haywood gilliam Front Page Stories Featured Story donald trump democrats Courts California Allow Media Exception

As part of President Trump’s executive action to jumpstart the construction of new miles of a border wall with Mexico, he tapped into several existing pots of money. This is the listing of sources and authorities.

Some quick notes on early coverage of President Trump’s announcement today that pretty much all reporters are missing 1/

The WH did not make one executive action today. In reality they made three, only one of which involved an emergency declaration. 2/

First the WH announced they would be funding $601 million in wall construction from the Treasury Forfeiture Fund, relying on 31 U.S.C. § 9705. This does not require an emergency declaration. 3/

Second, the WH announced they would be funding $2.5 billion in wall construction under 10 U.S.C. § 284 (this is MilCon $ for combating drug trafficking). This does not require an emergency declaration. 4/

Finally, the WH announced they would be funding $3.6 billion under 10 U.S.C. § 2808. This money does require an emergency declaration. 5/

According to the WH this money will be spent sequentially so the § 9705 money will be spent first then the § 284 money then the § 2808 money. 6/

So depending on how fast they can begin construction, they will have to spend over $5 billion (including the $1.3 billion in fencing appropriations) before any of the emergency money is ever tapped 7/

But under the legal regime which now governs the land, Lex Trumpitis, anything Trump wants to do is presumed to illegal and illegitimate, law and precedent be damned. In May, Sierra Club and the Southern Border Communities Coalition, represented by the ACLU, went to court claiming that the money Trump was using from the drug interdiction fund was illegally diverted to the wall. Never mind that the wall clearly served the purpose of drug interdiction. Never mind that under no circumstance did anyone have standing to go into court on behalf of the Congress of the United States and presume to express their will. District Judge Haywood S. Gilliam, an Obama judge–yes, Chief Justice Roberts, there are Obama judges on the court–issued a permanent injunction agreeing that the President and Secretary of Defense did not have the authority to use money appropriated for drug interdiction to interdict drugs. (No word if Haywood Gilliam is related to the distinguished scholar Dr. Haywood Jablowme of Morehead University who has signed many, many progressive petitions over the years.) Let me digress for a moment. This is a classic case of forum shopping for a tame or bent judge. The wall is not being constructed in Gilliam’s district. The contracting office for the project is not in his district. In fact, the wall construction was not even programmed for the Ninth Circuit’s jurisdiction. An yet a lone rogue judge declared the construction project illegal.

The Trump administration appealed to the Ninth Circuit and (shocked face) lost.

In a now familiar pattern, the administration appealed to the US Supreme Court and earlier this afternoon they ruled. In a 5-4 ruling, the court handed the Trump administration a signal victory. It lifted the injunction and said that the plaintiffs in the case most likely did not have any standing to bring the case in the first place. The stay anticipates the Ninth Circuit will rule against the Trump administration and orders the stay to be lifted until the Supreme Court rules on the case should that be necessary.

Hopefully, this is a sign that the Supreme Court is getting impatient with the #Resistance antics that are taking place in the Ninth Circuit and other places. Chief Justice Roberts is an institutionalist and he has to realize the immense damage this flouting of the law by the federal judiciary for the sole purpose of scoring cheap political points on a president the detest is doing to the public perception of the courts. The question is does he have the huevos to make the clown car on the West Coast behave.

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The post Supreme Court Hands Trump Administration A Decisive Victory Over A Rogue Judge and the Lawless Ninth Circuit appeared first on RedState.

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Supreme Court sides with Trump on border wall in 5-4 decision

Westlake Legal Group border-wall Supreme Court sides with Trump on border wall in 5-4 decision The Blog Supreme Court Sierra Club Border wall

It’s being called a “major victory” for President Trump by both the LA Times and Politico. The Supreme Court voted 5-4 to hand Trump a win on border wall spending.

President Donald Trump scored a major victory at the Supreme Court on Friday, as the justices lifted a lower court order blocking a key part of his plan to expand the border wall with Mexico.

The Justice Department had asked the justices to stay a pair of rulings an Oakland-based federal judge issued in May and June blocking Trump’s plan to use about $2.5 billion in military construction funds for wall projects in California, Arizona and New Mexico.

All the Republican-appointed justices voted in favor of allowing Trump to proceed with that aspect of his plan while litigation over the issue continues. All the Democratic-appointed justices dissented, except for Justice Stephen Breyer who said he would have allowed the contracting process to move forward but blocked actual construction.

Trump himself celebrated the win on Twitter:

The $2.5 billion in question is excess from the military budget which Trump claimed on the grounds of seeking to prevent cross-border drug trafficking. The Sierra Club and other groups sued the administration arguing the wall construction would interfere with wildlife and natural habitats and injunctions were issued preventing use of the funds while the lawsuit was ongoing.

Solicitor General Noel Francisco appealed to the Supreme Court arguing a quick decision was needed because unless the $2.5 billion was spent by Sep. 30, it would no longer be available. From CNN:

[Francisco] said that the funds are necessary to permit the construction of more than 100 miles of fencing in areas the government has identified as “drug-smuggling corridors” where it has seized “thousands of pounds of heroin, cocaine and methamphetamine” in recent years.

“Respondents’ interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border,” Francisco argued in the papers, regarding the challenge from environmental groups.

The ACLU which represented the other groups in court is vowing to fight on:

“This is not over. We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall. Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied,” said Dror Ladin, a staff attorney with the ACLU’s National Security Project.

I’m not sure the lower courts can work through the cases faster than Trump can spend the money now that the stay is gone, but I guess we’ll find out.

The post Supreme Court sides with Trump on border wall in 5-4 decision appeared first on Hot Air.

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Richard Ekins: What the most recent nominations mean for the future of the Supreme Court

Professor Richard Ekins is Associate Professor of Law at the University of Oxford, and Head of Policy Exchange’s Judicial Power Project.

While all eyes have been on the formation of the new Government, some other important appointments have been made and are at risk of being overlooked.

From January through June next year, three new Justices will join the Supreme Court.  Two are serving Lord Justices of Appeal; the third, unusually, is a distinguished academic lawyer (with considerable part-time judicial experience).

All three are men, and so with Lady Hale’s retirement on 10 January, the number of women on the Court will drop from three (of twelve) to two. Lord Reed has been appointed President of the Supreme Court and will replace Lady Hale in this important role, with effect from 11 January.

Lord Reed’s appointment is no surprise: he is an experienced and very able judge. He has served on the Supreme Court since February 2012 and as Deputy President since June 2018. Only three of the current Justices have served for longer, two of whom, Lady Hale and Lord Wilson, retire early next year. The third, Lord Kerr, will continue in office until February 2023 (retiring at age 75, which was the retirement age when he was first appointed a judge).

Lord Reed will remain in office until September 2026 (retiring at age 70, which is now the mandatory retirement age).  He is thus likely to be the longest serving President the Supreme Court has yet had. This is a significant appointment.

It is also an excellent appointment. Lord Reed is a careful, impressive judge, keenly aware of his responsibility to do justice according to law and, conversely, to avoid the temptation to subvert law in an attempt to do justice. In a series of important judgments, Lord Reed has acted on a traditional understanding of the judicial function, recognising the limits of judicial power and hewing close to settled law, rather than taking himself to be free to remake it in the course of adjudication.

In Bank Mellat, the Supreme Court considered a challenge to the Treasury’s use of counter-terrorism powers to freeze the assets of an Iranian bank in order to hinder the pursuit of nuclear weapons by Iran. The majority, led by Lord Sumption, quashed the order as an irrational and disproportionate interference with the bank’s convention right to enjoyment of its possessions.

Lord Reed, in dissent, took a more restrained view of the Court’s competence, especially in this domain, to conclude that government action was irrational and disproportionate, and thus unlawful.

In Tigere, he joined Lord Sumption in a fierce dissent from the majority’s decision to go beyond Strasbourg – that is, to require more of UK authorities than the European Court of Human Rights would require – and effectively to introduce into UK law a novel right to taxpayer support for tertiary education for non-citizens. In Nicklinson, he strongly resisted those of his colleagues who were intent on cajoling Parliament to change the law on assisted suicide. (The next round of litigation is about to begin.)

And in June last year, he was, to his credit, in a minority of the Supreme Court that refused to depart from the case law of the European Court of Human Rights and to denounce Northern Ireland’s abortion law as incompatible with human rights law.

Lord Reed’s unwillingness to go beyond Strasbourg is a principled limitation on the authority of UK courts, a limitation which is required by the scheme of the Human Rights Act. It makes for a striking contrast with Lady Hale, who has always seemed willing to go beyond Strasbourg.

In Miller, the Article 50 litigation, Lord Reed was one of three of eleven judges in dissent. His dissenting judgment was masterful, navigating the questions of statutory interpretation and constitutional practice with painstaking care. Likewise, in the recent judgment of Privacy International, Lord Reed dissented from the majority’s misinterpretation, in my view, of the ouster clause protecting the jurisdiction of the Investigatory Powers Tribunal.

More importantly, he also rejected dicta by three judges – Lord Carnwath, Lady Hale and Lord Kerr – to the effect that parliamentary sovereignty is not fundamental and that in a future case it would be lawful for courts openly to defy Parliament and to quash a crystal clear ouster clause.

Lord Reed’s refusal to countenance judicial challenge to parliamentary sovereignty is good news. Less happily, in Evans v Attorney General, he joined Lord Neuberger’s judgment, misinterpreting the Freedom of Information Act 2000 and effectively quashing the ministerial override for which it made provision. Lord Reed seems to have wrongly taken the override to be an unconstitutional transgression on the jurisdiction of the courts. But even if this analysis had been sound, it would still have been wrong for the court to foist a clearly unintended meaning on the Act.

In another important case, UNISON, Lord Reed led a unanimous court in quashing the Lord Chancellor’s decision to raise tribunal fees. Lord Reed reasoned that the level at which the fees had been set limited access to justice and thus lay outside the power Parliament had conferred. This case has been widely hailed as a victory for the rule of law (contrast Evans).

But the problem, as Sir Stephen Laws has argued, is that the judgment is grounded on an implausible inference about Parliament’s intention and involves the courts in second-guessing policy choices, the merits of which should be for the minister, for which he or she is accountable to Parliament.

While I do not agree with all his judgments, and think in some types of case he may be more likely to go wrong, I welcome Lord Reed’s appointment as President of the Supreme Court, and admire his judicial record and philosophy. The future for the rule of law turns in part on how willing Justices of the Supreme Court – including the three incoming Justices – are to expand their jurisdiction, to challenge the authority of Parliament and to undercut the freedom that government otherwise has within legal bounds to make policy and to act for the common good.

Lord Reed’s appointment to succeed Lady Hale seems to me to be good news for the rule of law, reducing the risk that the Supreme Court will abuse its mighty jurisdiction.

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