Tag Archives: Dobbs

An Now for Something Positive

General, Politics,
Supreme Count of the United States
Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing…Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. .Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson…Credit: Fred Schilling, Collection of the Supreme Court of the United States.

With all the liberal commentators running around with their hair on fire over with SCOTUS granting certiorari on the immunity case I thought I’d give into my contrariness and try to look on the bright side. First though let’s as acknowledge the win Donald Trump has gotten, it now looks very very doubtful that the trial of Donald Trump on his actions of Jan 6 2020 will take place before the Presidential election. Time is just getting two short. That said, here are a couple of positive things to look for when the court finally renders their decision.

The first thing I’m going to be looking for if they rule that Trump does have some kind of immunity for his actions on Jan 6th 2020 is just how much immunity does he, and all current and future presidents have. If they rule he has total immunity I want to see how they do not grant the same immunity to Joe Biden and all other future Presidents. If Donald Trump has total Immunity then it follows that Joe Biden does too. If not, why not. It is not good enough for the court to say that the ruling only applies to this one specific case with out an explanation of why it only apples to Donald Trump. To do otherwise would be an anathema to all MAGAs out there.

I can just see it now, SCOTUS rules that Donald John Trump, and only Donald John Trump has total and complete immunity for his actions as President. SCOTUS’ reputation with the American public took a bad hit with the Dobbs decision last year and to rule that Trump, and only Trump is immune would be so totally raw that it would totally throw the election against MAGA. So I would look for some very fine hair splitting on just why this case is totally unique. For the life of me I can not come up with any reasoning that would work. So let us wait and see just what happens.

I, personally expect SCOTUS to rule that Trump is not immune but the ruling will come down the last week in June. This will be done in the hope that the delay is enough to keep the trial from starting before the election and that the trial court or the DOJ will decide that it is too close to the election to be held so a trial date will be set sometime in November after the election. This leads us right to the fun part of having the President elect going on trial for Insurrection. Which leads us right to if he is convicted, who if anyone, keeps Trump from being sworn in? Again I’m sure SCOTUS is very aware of this and they are aware just how much blame the public will assign to them for all the trouble that will happen. I can see the security at the Capitol if it happens. Boggles the mind.

An just how is this last thing positive? Just this; No mater how the Court rules, they have just stepped in it. They have managed to get both moderates and liberals aware of the fact that SCOTUS maters to them. Personally! That means they are going to be paying attention to who is on the court and how they are ruling. This is something conservatives in general and MAGA in particular will despise. I look forward to the next SCOTUS vacancy and the hearings for the replacement. An since we can expect any nominee to decline to answer questions on how they might rule in the future we can look forward to an even closer scrutiny of their writings and if they were/are judges how they ruled in cases that could apply. Again something conservatives in general and MAGA in particular will not like. Personally I’d like to see the rejection of any candidate who does not have a track record on the expected issues to come before the court. I’d even like to see that anyone who is on the Heritage Foundation list of acceptable candidates to be subject to very close scrutiny.

Finally I look for the US Senate to change it’s rules so that there is a time limit only how long a nomination for the Court can be held up when the Senate is in session so we no long have what happed back in 2016. But those thoughts are for another posting.

The Forgotten IX

Law, Philosophy, , ,
IX Amendment
US Constitution Bill of Rights

One of the first things I notice about Justice Alito’s option in Dobbs v Jackson was it was very careful about all of the texts in the Constitution it thought would apply or be affected by the decision. Except one. The IX Amendment (see above). Years ago when I first started to really started to study the Constitution one of my Professors called the IXth the forgotten amendment. We spent quite some time on just why it was forgotten and why it is so important.

Take a moment to look at it carefully. Now think about just what it is saying. It is just one sentence but it says something very important to all of us. In more modern language it says that the enumeration of specific rights, does not mean and should not be taken to mean, that the people do not still retain those rights. What Justice Alito’s ignoring of the Amendment seems to be implying is that the Federal Courts, and the Supreme Court in particular, has no role in protecting these unenumerated rights.

This idea is just one of many issues I have with both the ”Originalist” and/or ”Textualist” doctrines on interpreting the Constitution. I will not go into all of my issues with these two doctrines for they are legion. In stead I will concentrate on just one issue bought to light here. This is the idea that Enumerated Rights take president over unEnumerated rights to the extent that the IX Amendment is meaningless.

Before I start I’d like to point out one fundamental principle I have in reading the Constitution. There is nothing in it just for ”show”. Every word, every phrase, everything is there for a reason and therefor can not be ignored. Too many modern scholars of the Constitution seem to be unaware of this principle. They read the Constitution like “ Elmer Gantry“ read scripture. Quote what supports your view and ignore what contradicts you. We have seen this before in the “Great 2nd Amendment Debate” where the entire first clause is totally ignored. The same thing is being done with the IX Amendment, except it is the entire text being relegated to the trash bin.

What is truly fascinating about Dobbs is that in many many cases it takes head on the many of the clauses they wish to overturn in the reasoning of Roe vs Wade. Justice Alito does this in with the 15th Amendment. He does not with the IX. I think this is because, like himself, Roe vs Wade also ignores the IX. It also could be that he thought that the IX Amendment had no bearing on the case before the Court. (By the way, I accept this is a perfectly acceptable thing to do.) This seems to be stretching things just a might as Dobb’s deals with rights not enumerated in the Constitution (ie Privacy) and the IX Amendment is all about unenumerated rights.

In closing all we can really say is the Dobbs totally ignores the IX Amendment and we don’t know why.