Abortion case now with the Supreme Court

Not my favorite topic. The abortion case is highly divisive, entwining legal, religious and political viewpoints. I’ll leave most of the commentary up to the pundits on internet, social media and cable news. who seem able and willing to comment on any topic in a minute. I trust more the printed media, in particular the New York Times and Washington Post. Yes, I am a news snob. I include only two links, one from Wikipedia, and a second from Scotusblog.com . The Supreme Court typically issues their most controversial opinions late in June or July, shortly before adjourning for the summer.

The case before the Supreme Court is Dobbs v. Jackson Women’s Health Organization and at issue is law recently passed in Mississippi which permits abortion up to the first 15 weeks. This is a violation of Roe v. Wade which permits states to outlaw abortions only at the end of the second trimester, approximately 24 weeks.

Roe v. Wade was decided in 1973, with Justice Harry Blackmun, a Republican nominated by Nixon, writing the majority opinion. Prior to this cases, it was hard time getting a case heard in the Supreme Court because by the time because there was no “live” case, as the woman whose rights had been denied, would have already given birth. The Court in 1973 opined that the case could go forward without the requirement of a “live” case.

I have included links on the history of the Roe v. Wade and the oral arguments summary by Amy Howe (Scotusblog). I believe both links provide a neutral stance on the issues.

The liberals on the court, would like to consider Roe v. Wade as settled law, which establishes a precedent for all future cases. It was decided on the Ninth and Fourteenth Amendments to the Constitution.

The conservatives likely consider Roe v. Wade improperly decided on a weak or nonexistent constitutional basis, and so they are merely correcting prior errors of the court. For practical purposes, if Roe v. Wade is overturned, abortion rights will return to the states to decide. What is legal in one state, could result in a felony charges (manslaughter) in another.

Stay tuned,



Wikipedia: Roe v Wade

Scotus Blog on summary of oral arguments in Dobbs

No 6-3 decisions – Update

Perhaps I spoke to soon. Two important cases were just decided with all six conservatives in the majority as follows:

Americans for Prosperity v. Bonta

The Court struck down California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors. (From Scotusblog.com)

Brnovich v. Democratic National Committee

By a vote of 6-3, the justices upheld two Arizona voting provisions that Democrats and civil rights groups challenged as disproportionately burdening minority voters. In an opinion by Justice Samuel Alito, the majority outlined what it described as “guideposts” for future challenges to voting laws under Section 2 of the Voting Rights Act, which bans racial discrimination in election practices. The court’s three liberal justices dissented, with Justice Elena Kagan complaining that Thursday’s decision “undermines Section 2 and the right it provides.” (From Scotusblog.com)

Stay tuned,




No 6-3 Supreme Court Decisions?

Justices Thomas and Breyer

“When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise,” said Roberts before hundreds in attendance at the Temple Emanu-El Streicker Center in Manhattan.

Chief Justice John Roberts, Sept 2019.

There are 3 liberal Supreme Court justices: Sotomayor, Kagan and Breyer. As shown above, Justice Breyer is seated to the right of Justice Thomas. Supreme Court Justice Clarence Thomas is a long standing conservative justice. Other conservatives on the bench are: Alito, Gorsuch, Kavanaugh, Barrett, and Roberts. So, the balance of the court is 6-3, in favor of conservatives.

However, the idea that conservatives now control the court has no legs to stand on in the 2020 term. As the Economist article states, as of June 23, of the 50 cases decided in the current term, there have been only four cases of a 6-3 decisions split over ideological lines. There were 24 unanimous decisions.

The 2020 term is coming to an end. I believe there are just 5 more decisions before the court takes their summer break. The more contentious case often come at the end of the term. The HollyFrontier Cheyenne Refining case was decided on June 26, and it clearly supports what Roberts said, that the justices will decide based on the law and precedent, and not which political party supported their nomination. The case was decided 6-3 but the majority opinion was written by Justice Gorsuch, a conservative, and the dissent was written by Justice Barrett, another conservative. Joining Justice Gorsuch was Justice Breyer, a rock solid liberal on the court. Joining Justice Barrett, were liberal judges, Sotomayor and Kagan.

A New Yorker article entitled, “The Supreme Court surprising term” as published yesterday, states, “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” I’m not so sure that was the motivation. They recognize the immediate impact their decisions have on every court in the country and this supersedes politics.

The conservatives and liberals have different philosophies on interpreting the law. I don’t think any of the justices has really altered their general philosophy. Conservatives adhere more to the Constitution as written, and are less willing to take an expansive interpretation of the constitution. They can still arrive at the outcome, but with different reasoning. Judgement and and dissents of the court are much more powerful, when supported by both conservatives and liberals.

So, ironically, as our political parties seem to become more polarized, with opposing views on just about every issue, the Supreme Court is finding common ground and this is good. Yes, Republicans nominate conservatives and Democrats nominate liberals. The very good aspect of the approval process, is that we have a Supreme Court, with some of the top legal minds in the country, through their education and experience.

Conservatives and liberal justices joined in the denial of the challenge to Obamacare, probably the case with the greatest immediate impact and highly controversial between Republicans and Democrats. The majority ruled the merits of the case should not be considered, because there was lack of standing, based on no showing of real harm to the States. Justice Alito wrote a strong dissent to the majority.

What keeps the Court out of politics? The Court has nine independent justices, and each gets one vote, including the Chief Justice. In the case of eight justices, the Chief Justice does not break the tie. A tie means the lower court decision holds. So, I believe giving the Chief Justice no special privileges has been one way the court has kept out of partisan politics. The President might call up the Speaker of the House, when the Republicans were in the majority and say he wants certain legislation passed. Doesn’t work at the Supreme Court. Our founding fathers wrote in the Constitution that the Supreme Court judges would have lifetime appointments, so this keeps them out of the political fray.

I think it is also a tribute to John Roberts and other members that has resulted in conservatives agreeing with liberals and vice-versa. Yes, conservatives tend to agree more often with each other than with liberal members. But, this agreement isn’t consistent enough to predict cases.

Which justices cross over and join with the other side? I think this term, the answer is pretty clear. Every single one of them! Breyer joining with Barrett on one case, Sotomayor and Kagan joining with a dissent written by Thomas in another case (TransUnion Credit Case). How nice!


Economist: The 3-3-3 court: America’s Supreme Court is less one-sided than liberals feared

The Supreme Court’s Surprising Term

Scotus Blog

Trump’s tax case

The Supreme Court ruled the President may be issued a subpoena for evidence from Congressional Committees and any Prosecutor in the country.   There is no blanket immunity because Trump is president.   This assertion of absolute immunity from the issuance of subpoena was part of the claim made by Trump.   Most legal experts felt Trump would lose on this point.    Trump attacked both the Supreme Court and the New York prosecutors who issued the subpoena;

“The Supreme Court sends case back to Lower Court, arguments to continue,” Trump wrote. “This is all a political prosecution. … I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration! … Courts in the past have given ‘broad deference’. BUT NOT ME!”

Trump went into this great conspiracy nonsense later on Fox News.   The judicial system is disgraceful when they they investigate his close associates.  Actually, the justice system is doing their job when they prosecuted Manafort, Flynn,  Stone, and Papadopolous.    Trump can rant and rave all he wants on Fox News.   What is so abundantly clear, is that when close associates of Trump don’t cooperate with prosecutors, then they are good people and don’t deserve to go to jail.   But those who rat on him, are the bad people (like Michael Cohen, Trump’s fixer) and deserve their sentences.   Even Roger Stone admitted that his sentence was commuted from 40 months in jail to zero, because he kept his mouth shut.  This stinks to high heaven.

The truth of the matter, is that our judicial system is doing just fine.   The damage done is repairable, which I hope can happen after the November elections.  The court case in practical terms, was a win for Trump, because he doesn’t have to release his taxes prior to the election.  In fact, experts say there the cases could stretch on for a long time perhaps late 2021.  The broad subpoena from Congress will have may never be executed.

The Supreme Court very rarely has to rule on subpoenas from Congress because some accommodation is worked out.  The Supreme Court in their ruling has laid down certain criteria for executing subpoenas against a president, to really protect the president and also to allow appropriate requests from Congress and prosecutors to be executed.   I believe what was particularly important to Chief Justice Roberts was that this ruling included three conservative, Republican nominated justices (Roberts, Kavanaugh and Gorsuch) along with the four liberal justices on the court.

Having the subpoena issue pushed off to next year is likely for the best.  If the Supreme Court has enforced the Congressional subpoena, I believe it would be damaging to Trump just before the election. He could blame his defeat on “political prosecution.”   Oh gee, he’s already claiming this!

It isn’t political prosecution or harassment.   It is equal application of the law for everyone.  No absolute immunity for Donald Trump.

Stay tuned,



I’ve copied a few opinions on the Supreme Court case.   The opinions are on the supremecourt.gov website.

NYT Opinion:  The Supreme Court Lets Trump Run Out the Clock

Politico: Supreme Court splits on Trump tax cases, potentially shielding returns until after election

Washington Post: Supreme Court says Manhattan prosecutor may pursue Trump’s financial records, denies Congress access for now



















Supreme Court Decisions – 3 Down and one biggie to go.

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”    Trump’s tweets, June 18, 2020.   (Referencing the court’s decision in favor of the DREAMers, see last link)

The reference to Second Amendment rights is really pretty weird, because the Supreme Court refused to hear 10 petitions regarding gun rights, letting these issues be resolved in the lower courts. In the current term, due to expire very soon, there are no gun rights cases.

Trump has lost 3 cases in a row.  He loves to brag on how he’s backed the courts with conservative judges,  but in these cases, at least one has sided with the liberals on  the court.   The cases that were decided against Trump were:  (1) The Louisiana abortion restrictions case (2)  DACA legality case and (3) LGBQT discrimination case.   You can’t win a case in the Supreme Court unless a Supreme Court Justice nominated by a Republican president joins with the liberals.  If Biden wins,  I suspect Ginsburg will retire, so we will still be 5 conservatives and 4 liberals.

The most recent decision, the Louisiana abortion limitations case,  was decided in favor of the liberal minority, because John Roberts, normally a conservative, decided to join them.   Roberts concurred with the decision, but wrote a separate opinion, defending the decision based on the “Texas Case.”     Simply put, like cases should have like outcomes.   It is called “stare decisis.”

The Supreme Court made its interpretation of the Second Amendment in the District of Columbia v. Heller case.   Based on Heller, any  town, city or state  which passes a rule or law, which renders a gun not readily usable for the owners protection in their home has violated the Second Amendment, and judges must declare these rules to be unconstitutional.   For those who own guns and want to keep them in their homes for protection,  the Supreme Court ruled on this more than a decade ago and the doctrine of “stare decisis” will ensure that these rights are preserved.    Voting for Biden or Trump won’t change a thing.   The liberals on the court  believe strongly in stare decisis, because without this, the conservative majority could undo many decisions, including gay marriage, the right to an abortion and desegregation of schools, to name a few.

The big ones, coming any day now, are 3 lawsuits aimed at release of Trump’s taxes (Trump v. Deutsche Bank,  Trump v. Mazars, USA,  Trump v. Vance).    I think at least one of these, is going to succeed.  From what I understand it, the DOJ has opined that a sitting president can not be indicted,  and the extension of this, is that a sitting president may not be investigated for criminal actions.   Sort of blanket immunity.   We will see soon enough how far this blanket will stretch,

So in advance, let me re-tweet Donald:

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of me.”

If he’s got to give up his taxes, he will not exactly go gently into the night.

Stay tuned,


Wikipedia:  2019 to 2020:  Supreme Court Pending Cases

NPR:  Supreme Court Hands Abortion-Rights Advocates A Victory In Louisiana Case

NPR: Supreme Court Delivers Major Victory To LGBTQ Employees

NPR:  Supreme Court Rules For DREAMers, Against Trump

CNBC:  Supreme Court decides not to hear big gun-rights cases, dealing blow to Second Amendment activists

Confirmation on Judge Brett Kavanaugh

Sorry folks, I’m on the side of Republicans.  I think  all the last minute scrambling to discredit Judge Kavanaugh is dumb.  The assault claim seems to  lack supporting evidence.   The incident occurred 35 years ago.  I believe it is likely that his accuser, Dr. Christine Ford, was sexually assaulted while she was in High School.   She has submitted notes from a therapist,  in a couples counseling session in 2012,  which supported her claim of assault.  The notes do not name Brett Kavanaugh as the attacker.   Now, 35 years later, she may have the wrong student. Nobody else seems to back up her story.

Yale Professor Akhil Amar’s made some excellent points when he was asked to testify in the Senate Committee.  He told the Committee the best way to evaluate a candidate is by their written opinions as a judge and not from emails and other communications.   Opinions must be reviewed by legal scholars who have real understanding of the issues.  Amar considers Kavanaugh to be the best qualified of the 25 judges on the list of candidates.   He told the Senate Judiciary Committee that the confirmation process is badly flawed, and should be fixed.  I agree.   He told Democrats, “be careful what you wish for.”   Rejecting Kavanaugh will likely result in a less qualified candidate.

I am hoping some of the Democrats break free of the politics, and vote for Brett Kavanaugh.   What goes around, comes around, and there will be Democrat nominations to the Supreme Court.   Would Democrats like it if their nominee got the same treatment?

How would I change the system?  Getting rid of partisan politics is hard.   The FBI must conduct a background check.   I would not allow each senator on the committee to ask questions.  I would have one counsel  representing the Republicans and one counsel representing the Democrats  ask their questions of the nominee in an open session.   The questioning would be limited to one day.  They would be able to present questions in written format.  One day with a panel of experts testifying for and against the nominee would be held.   Individual senators would not be able to make speeches.  I found it most disturbing when senators would cut off Kavanaugh as he was answering a question.   I found it very disrespectful.

Stay tuned,






Replacing Justice Kennedy

There’s battle lines being drawn
Nobody’s right if everybody’s wrong
Young people speaking their minds
Getting so much resistance from behind

Buffalo Springfield,  1966

They were talking about civil rights marches, and protests against the Vietnam war.   It wasn’t about the changes in the Supreme Court.  This might be a bit harsh, but voters in 2016, who did not want a Supreme Court run be conservatives, should have voted for Hillary Clinton.  Trump gets to chose who he wants and they will be highly regarded judges, according to most sources.   The Democrats will have no wiggle room to suggest that his nominee is not qualified to be a Supreme Court judge.

The four top names are,  Amy Coney Barrett,  Thomas Hardiman,  Brett Kavanaugh and Amul Thapar,  all of whom have the stamp of approval of conservative legal organizations, like the Federalists.   Kennedy sided with the progressive judges in Planned Parenthood v. Casey (1992), upholding Roe v.  Wade, the famous case which legalized abortion.   Kennedy wrote the majority opinion, legalizing same sex marriages (Obergefell v. Hodges, 2015).   But,  Kennedy also sided with the conservatives when he wrote Citizens United v. FEC (2010) which through the free speech rights of corporations, allowed for massive campaign spending by corporations in the 2016 election.

Justice Kennedy was often a key vote.   In this last term,  on the close votes, he seemed more incline to agree with conservatives, including the most recent case which decided that Trump’s travel ban (note Travel Ban III) was within his authority and legal.

Judge Kennedy was 81 years old.  Could more retirements be announced?  The oldest judges, Ruth Ginsburg, 85 years old,  and Stephen Breyer, 79 years old,  still seem pretty spry.    They are the more liberal judges.

Trump wants a young Judge, who is espouses a conservative philosophy, suitable to the Republicans and likely will not change once he is on the court.   For this reason,  I believe the next Supreme Court nominee will be Brett Kavanaugh.

Stay tuned,





Supreme Court: Ideological Differences

The Supreme Court is not split Republicans verses Democrats.   There is however an ideological split, which influences their decisions.   This is all highly simplistic, as I don’t want a blog about textualism, or judicial activism ideas.      I consider Ginsburg, Breyer, Sotomayor, and Kagan to be in the liberal camp and Thomas, Alito, Roberts, Kennedy and Gorsuch to be in the conservative camp.    So, in theory, every decision will be decided by the group of 5 in the conservative camp.  Wrong, wrong and wrong!

I’ll start with  my conclusion.  Liberals tend to stick together more than conservatives, at least in the current term in the Supreme Court, so if the liberals can attract one or more conservatives, then they will prevail.   Sometimes, liberals join with conservatives.   There are unanimous decisions, where ideological differences are unimportant.   The most recent case,  the New Jersey State Gambling case,  was a 6 to 3 vote, with Kagan, normally on the liberal side, voted with the conservatives.

This is different from politics, where a Republican who supports a Democratic bill, in a close vote, is likely be pressured to change his vote.

I use Scotusblog.com  in the current term for my statistics.  Here is the agreement of votes from the liberal block, in the range of 96 to 100% agreement.

Ginsburg and Breyer   100%,  Ginsberg and Kagan  96%,  Ginsberg and Sotomayor 100%,  Breyer and Kagan 96%,  Breyer and Sotomayor 100%,  Sotomayor and Kagan  96%. 

The conservatives block of 5 justices, range from 68% to 100% as follows:

Thomas and Alito:  100%,  Thomas and Roberts 68%,  Thomas and Gorsuch 81%,  Alito and Roberts: 75%,  Alito and Gorsuch 81%,  Alito and Kennedy 86%,  Roberts and Gorsuch 85%,  Roberts and Kennedy: 89%,  Kennedy and Gorsuch 81%.  

There was a lot of talk about Kennedy being the swing justice.   But, a very good argument can be made that Roberts is also a swing justice.  In fact,   Roberts has agreed with Ginsburg and Sotomayor the same percentage of the time (68%) as with Thomas.  Gorsuch is the new justice, and statistics show he sides with the liberals at times.

There are some important caveats to this.  First, this is all cases, and not broken down in ones where there was an ideological difference.  I don’t know how many cases were involved in calculating these statistics; it may be quite a small set.  Finally,  in a number of cases, justices concur in part, but not in all of the decision.  The statistics don’t distinguish between partial or full agreement.  Both cases are considered agreement.

The Supreme Court has to make judgement on the most difficult cases.  It decides each case on its merits, and in relationship to the law.   It has been noted that the Supreme Court is producing less opinions in the current term.  It may be that Roberts has tried to obtain more of a consensus among the justices, by keeping the opinions more narrowly focused in some of the cases.

Stay tuned,



Ideological leanings of U.S. Supreme Court justices (Wikipedia)

Judicial activism



US Supreme Court Opinions  (Recent slip opinions)

The Supreme Court always provides their legal  reasoning for their opinions, and dissents, soon after a decision is rendered.

Supreme Court Immigration Case

Messy.  Immigration policy is always messy.  This case is messy.  Obama’s order did not legalize anyone, but deferred deportation for a small fraction of immigrants here illegally.  It is estimated that it applied to 400,000 of the 11 million illegal immigrants.  The question is whether President Obama has this authority.  The Obama administration is on the defensive because the Texas court says he doesn’t have this authority and this caused a temporary halt to the program.   A future president could rescind this order.

Illegal immigrants who qualify get the all important green card, with alien registration numbers,  just like permanent residents.   So, opponents of the order argue that this simply promotes illegal immigration to this country.  However, new arrivals or anyone coming after 2010 are excluded from this order.   Many will not qualify because of a lack of documentation showing that they were here in 2010.

The outcome could go 4-4,  5-3 or even 6-2,  with Roberts and Kennedy joining with the liberals.  But, many observers seem to go for the 4-4 verdict, which is a win for the states suing the government and an  end Obama’s executive action.

The case will be decided in June.   The best analysis of the issues comes from scotusblog.com as follows:


Obama’s executive order included the words “lawfully present”  for people here illegally.   It was argued by the Solicitor General  the executive order might work equally well without these 2 words.   But, attorneys supporting Texas, insisted the order allowed people to be lawfully present, whether it was explicitly stated or by the rights created by the order.

I guess the SC has  the option of striking down the entire order because it is simple contradiction of the legal status of these immigrants, and beyond the authority of the President to change.

But, the executive branch has the obligation to carry out the laws passed by Congress- not enact laws to their own liking.  So, this is the basis for Justice Kennedy’s comment that the executive order turns  policy making upside-down. This comment coming from Justice Kennedy gives experts the feeling of a 4-4 decision with Justice Kennedy siding with conservatives.  Thus, the argument that Obama’s executive order runs counter to the wishes of Congress is strong.

Another problem is whether Texas can show grounds for bringing the lawsuit, based on the financial harm of having to provide driver licences to all the “legally present”  immigrants.  There was extensive discussion on this point.  Texas has a law in place permitting driver licences to those in the  “deferred status” category, so they would be financially burden unless they changed their laws in which case they could not sue the government.   Chief Justice Roberts aptly called this a Catch-22.

Transcript of Oral Arguments

Liberals seemed more receptive to the argument that the realities of the immigration policy,  11 million illegal immigrants, and funds  be sufficient to deport a fraction  of these immigrants, so prioritization is within the right of the executive branch.  The Solicitor General Donald Verrilli opened with this observation, but Justice Sotomayor brought it up again during questioning.

The case will likely be a critical one, as this order is seen as an expansion of the authority of the president particularly among Republicans.  It is seen as a pragmatic solution to a Congress deadlocked on immigration reform among Democrats.   An Executive Order is not a law, but a temporary measure- but once immigrants get their deferred status, I honestly can’t see any future president wanting to rescind this order.

Stay tuned,




Zubik v. Burswell- Another Supreme Court Challenge to Obamacare

” Clowns to left of me, jokers to the right, Here I am, stuck in the middle with you.”  Lyrics-  Steve  Healy  band.

The “you” in Steve Healy song, are the plain facts about the latest case to come before the Supreme Court. Most people are not interested in facts.  The clowns and jokers are far more entertaining for their 90 seconds of fame.   I dedicate this blog to my favorite clown/joker Graham Ledger, truly outstanding for his total certainty on topics of which he has no real knowledge.  One day it will be Iran, the next Obamacare or the deficit.  He is a truly non-stop Obama basher.  When lesser minds prevail, God save us all!

Oral arguments were held on   March 24,  in Zubrik v Burswell in the Obamacare case.


We think of religious freedom as guaranteed under the First Amendment.  In fact, our rights are further extended and defined by many other laws and rulings by the courts.  Religious freedoms, as with every right in the Bill of Rights, are limited.   You may not refuse to pay your taxes, because that is a violation of your religious principles.   If your religious principles says that you can not hire blacks or Muslims in your business, the laws related to race and religious discrimination will likely supersede these religious beliefs.

I will examine religious freedoms in a separate blog.  It isn’t as Ted Cruz or Graham Ledger portray it.  They extract from many cases,  a  select few concerning Catholics and ignore many other cases from lesser religions.

But the Zubrik case involves  the extend of religious accommodations based on  the Religious Freedom Restoration Act (RFRA which the justices refer to  as “ree fra).  It is not a constitutional case. This is the mistake made by conservative commentators on Fox News and One American News.

It is about whether  accommodations made in the ACA (aka Obamacare) for those seeking exceptions to the contraceptive program are adequate.  Or do these accommodations in fact become  burdensome as the plaintiffs claim.    In attempting to enforce the RFRA, could the court go as far as say anybody could opt out of any part of Obamacare, because in their minds, it conflicts with their religious beliefs? In doing so, what is slowly eroded is this notion of a standard set of benefits,  independent of the provider of the insurance.  Of course, this is exactly what those opposed to Obamacare want.

A lot of Supreme Court observers expect the court will divide 4-4 in which case, the lower court cases stand.  I believe it will be a 5-3 decision, with Justice Anthony Kennedy siding with the liberal group. It is possible that the decision will be 6-2, with both Roberts and Kennedy joining the liberal side. There is a final option to hold over the case,  in hopes that the Congress will approve a new justice.

We shall find out in June, 2016.

In the next few blogs, I hope to go a bit deeper into religious freedom.  It is crazier than you think!

Stay tuned,









Garland- Just going with the best

Ok- I got it wrong.  I looked over the 3 nominations on Obama’s Supreme Court short list- and thought it would be Sri Srinvassen, because he was young and outstanding in every respect.  Obama liked the oldest on the list- Merrick Garland, who edged out the competition based on years of experience.    Obama just went with the best.  And this is exactly what myriad of court watchers are saying.

The judicial system has a kind of ladder, and it’s tough to get to the top rung of the Chief Justice of the Appellate Court for the DC circuit.   To get there, you have to get the approval of both Republicans and Democrats.  Our system of congressional approval really supports more practical centralist type of judges.

But,  the Republicans have made this their holy war,  against a “liberal” judge, so Obama selected someone,  who in the past was acceptable to many of the Republicans’ top leadership, including John McCain, when he was appointed to the DC Appellate Court.

Garland is regarded by court watchers as a centralist.     Judge Andrew Napolitano who appears regularly on Fox News, stated this is the most conservative nominee the Democrats have put forward in the modern era.   It is also been stated that some Democrats in the Senate, may feel disappointed by Obama’s nomination because he did not nominate someone with more  liberal credentials.

Garland could  side with Chief Justice Roberts or Kennedy on court decisions, both of whom were nominated by Republicans.   He is likely to be a strong defender of 1st (freedom of speech and religion) and 5th amendment (prohibiting unreasonable searches) rights, as was Justice Scalia.

What is totally absurd is the notion, that by refusing to go ahead with a hearing on the nomination, that this allows “the people of the US” to decide on the nomination.  Somehow,  to obstruct the normal process of filling a vacancy on the Supreme Court, through refusing to hold hearings,  has been lauded by conservative republicans, as in consistent with our democratic ideals of our country.

Pragmatism is not a quality you hear often- but it is vital to the functioning of the Supreme Court.  The principle of stare decisis, means justices respect prior decisions as final.   This is why decisions are not overturned when new justices are appointed.

The people of the US can vote on many issues- but not Supreme Court judges.  And thank God for this.  We elect our representatives and leaders to make decisions for us.   The makes us a republic.  On choosing a Supreme Court justice, it should never come down to a popular judge- or we are all in serious trouble.

In fact, it was the late Justice Scalia, who said the public does not have a sufficient understanding of the law, to be able to follow the logic behind their decisions, which must follow the interpretation of laws and prior decisions.  So, the public can not make an inform decision on who would be best for the Supreme Court.  This is why we have a Senate Judiciary Committee.


The Congress can reduce the power of the Presidency, by obstructing the normal process of government, but in the end,  it makes government less able to function.  The #1 obstructionist, is Mitch McConnell, the Senator from Kentucky, and Majority Leader of the Senate.

Stay tuned,




Obama’s Supreme Court Nominee

Suppose they held a Miss America contest, and the plan was, just after crowning the winner, they were either going to push her off the stage or mug her as she was leaving the pageant.   That’s exactly what’s going to happen to Obama’s nomination.

Well,  I stated on Feb 18  that I thought Judge Jacqueline Nguyen was likely going to be Obama’s choice, but I thought it could go to Sri Srinivasan.  Based on recent leaks,   I now think Obama will nominate  Sri  Srinivasan.   I rule out Merrick Garland because he is 63 years old, and Paul Watford, because of prior Republican opposition in the Court of Appeals for the Ninth Circuit.  He was confirmed 61 to 34.

I also believe no hearing will take place.  If a hearing does take place, Republicans  will attempt to show the nominee is unqualified.  Ted Cruz would like the chance to tell the country that Obama has nominated the worst possible Supreme Court candidate ever.

The Republicans  will  not allow the nomination to go forward.   So, pushed off the stage, or mugged on the way out-  the Supreme Court will have 8 justices for at least a year, maybe longer.

It’s a terrible precedent.  It is not politics as usual- as it has never been done before.

Stay tuned,






Apple v. FBI

Skeleton Keys.

This is today’s hot story.  Let me summarize the problem.  A married couple in San Bernadino killed 14 people, seriously injured 22, and were subsequently killed by police in a shoot out, and their cell phone was captured. The FBI wants Apple to modify the operating system (iOS 8) on the phone to bypass security features, and  Apple refused.  The FBI is currently attempting to force Apple to comply through a court order.  Apple filed a motion to suppress the order.  Just about everyone thinks this case will end up in the Supreme Court maybe in 2017.  Nobody knows how important the contents of the phone might be, but the central issue is whether the government has the power, with a search warrant, to force Apple to create the bypass.

If an  older version Apple cellphone is stolen,  hackers can break in  using computer equipment  which will try millions of passwords. Brute force hacking has been around for decades.  The only thing that has really changed is how fast these programs can make  trial and error iterations because this information is electronically fed into the device.

In developing security protection, what Apple did not want, is to have a security system which would completely lockout the user who accidentally  enters a wrong password, multiple times.   So, the smart detection system must not inconvenience users in thwarting hackers.  So, here is how Apple implemented the security system based on their court filing:

“Cyber-attackers intent on gaining unauthorized access to a device could break a
user-created passcode, if given enough chances to guess and the ability to test
passwords rapidly by automated means. To prevent such “brute-force” attempts to
determine the passcode, iPhones running iOS 8 and higher include a variety of
safeguards. Id. ¶ 10. For one, Apple uses a “large iteration count” to slow attempts to
access an iPhone, ensuring that it would take years to try all combinations of a six character
alphanumeric passcode. Id. ¶ 11. In addition, Apple imposes escalating time
delays after the entry of each invalid passcode. Id. ¶ 12. Finally, Apple also includes a
setting that—if activated—automatically deletes encrypted data after ten consecutive
incorrect attempts to enter the passcode. Id. This combination of security features
protects users from attackers or if, for example, the user loses the device. ”

So, the FBI wants Apple to create up to 3 bypasses into the iOS 8 system. The optional automatic deletion of encrypted data is the most interesting,  as there must be some safeguards so users don’t accidentally  trigger this feature.  But, this feature allows the user to access a “sanitized” phone after forgetting a password.

Apple claims that these bypasses are significant code modifications.  From their description, I have my doubts. The “if activated” option of automatic sanitizing  the phone, is triggered after 10 failed attempts.  Suppose this is altered to a billion or 100 billion attempts, then the code remains but a parameter is changed.  Similarly,  embedded in the slowdown feature is a delay factor,  which could be set to zero to negate its effect. Or the large iteration count, could be reset to some huge number like a trillion, before it would be triggered.   Thus, it isn’t code changes per se, but values or parameters  within the code which would be changed.

All this is interesting, even to people like me, who are decades behind technology.  The appropriate analogy is the Apple phone includes a smart lock, which recognizes someone trying to pick the lock  and takes defensive measures.

The government’s case rests on the premise that Apple is the owner of all cell phones it sells,  as it is sold under a lease contract to its customer.   So, just as an apartment owner must open up a door when police come with a search warrant,  Apple has the same responsibilities.

If it takes additional tools to open up the door of an apartment, such as a crowbar, the owner still has responsibility to pry the door open.  Apple’s reply is  that any bypass code that it  created,  would not only allow access to the captured phone, but to any other Apple phone.  However,  it is likely that this part of the cellphone operating system which the FBI wants modified, is very well protected, so others outside of Apple can not access it.

Before iOS 8 deterrents, law enforcement agents were benefiting from the ability to open cellphones through brute force methods. This can occurs today only under when a search warrant has been.

The FBI could lose the case in the Supreme Court, because the “crow bar” analogy, doesn’t hold true.  The FBI  is telling Apple what it wants, but doesn’t really know what Apple by-pass procedures they have to write.   So, they aren’t saying “break in with a crow bar” but invent a crow bar so you can break in.” And amazingly, this is where First Amendment rights come in, as the government is demanding that Apple writes software.

The security features in the iPhone are like the Volkswagen software which detected when their cars were undergoing emissions testing and took (illegal) defensive measures.  Volkswagen got caught when university students were measuring emissions while driving.

If the FBI loses the case, it seems possible that  laws could be passed that would force  any company selling phones under a lease contract,  to make the contents of the phone accessible to law enforcement if a search warrant is issued.  I know this is likely to raise the ire of civil libertarians, but I think there are ways to ensure privacy and let law enforcement agencies do their job at capturing criminals.

But, this could end up a “cat and mouse” game, where only the amateurs get caught with incriminating cellphone  information.  The San Bernadino case will put other criminals  on high alert that their cellphone can and will be used against them or their cohorts in a court of law.  Drug dealers are probably very keen on improving their cellphone security.   Ways to quickly sanitize phones in case of arrest and  to avoid iCloud backups, are likely to be the next “security” precautions.

I don’t know how all this will eventually play out in the Supreme Court. I am kind of hoping that something can be worked out so the FBI can complete its investigation.

Apple’s Court Filing 

Stay tuned,






Love thy Enemy

This isn’t about Trump and Univision.  It is about Ted Cruz and the nagging Canadian birth question.

Before anybody starts to pick up stones,  let me say (I’m already ducking) that Ted Cruz was an American fom  the moment  he was conceived.   Let’s  at least get that out of the way.

Some very prominent lawyers and professors of law aren’t so convinced that someone born outside of the US meets the conditions to run for the president.  A case has never come before the Supreme Court, for their interpretation of “natural born” citizens.

As Laurence Tribe, a professor at law at Harvard, has written,  if this question ever comes before the Supreme Court,   the judges which are most likely to side with Cruz, are the liberals, which of course Ted Cruz hates.

The court isn’t divided politically- it is divided philosophically.   Those in the conservative camp,  tends to interpret the constitution   based on the text of the constitution (textualism) and what the founding fathers intent was (originalism). when the constitution was written.  They would apply these standard to interpreting the law.

The conservatives with their narrow focus, would ironically be Cruz’s worst nightmare, because there is  historical support for the contention, that what “natural born” means,  the person must be born within the territory of the US

If the case makes it to the Supreme Court,  it’s the liberals that will support Cruz because they tend to include more into the interpretation of what is written. They see the constitution as a “living document”  providing guidance but also factoring other considerations.  I also think Cruz should win, as a practical matter, because he been a citizen from the day he was born, just as all other citizens.  His situation is not uncommon,  as many American  families work abroad, and have children.   I think he would be a terrible president, but that’s up to voters, not the courts.

Laurence Tribe’s Comments

Stay tuned,



Who would want to be a SC nominee?

I think everybody has got this issue wrong.  They are either focused on who Obama will nominate or how Congress will make sure, the nominee isn’t confirmed. Nobody is thinking about the poor individual who will certainly either (a) Take a beating during the confirmation hearing, before the committee declares the nominee obviously unacceptable or (b) Prepare for a confirmation hearing that wouldn’t take place.

This is a nomination that is dead on arrival.  So,  I can’t imagine anyone wanting this job.  I mean  if you’re going through hell, there should be some reward at the end.  I don’t see it.

But, it’s not like you can draft someone to be a SC nominee.  “Hey you,  get dressed, you’re going to the confirmation hearings,  and we  have bandages ready and an ambulance on stand-by.”  Response, “You can’t make me go!”

I guess it is nice to be get called by President Obama, and hear, “You’re my man!” for one of the country’s top position.   At least, it used to be an honor.

Of course, we need a highly intelligent and  respected judge, who has served on the  Federal Appeals Court and is a  constitutional expert.   The nominee is likely to have argued cases in front of the Supreme Court.

The candidate will immediately be pillared by all Republican candidates.  “This nominee will continue to destroy the Constitution, just as the liberals have done in the past”, will be the charge leveled against the justice.   The scrutiny of the candidate will go far beyond legal opinions, and  include his family, his acquaintances,  his financial records and anything else that can be dredged up.

On top of that,  any nominee will, if hearings are conducted,  be asked questions about cases pending in the courts, which they can’t answer.   Any nominee will be accused of stonewalling the committee.

I really love the candor of Robert Gates confirmation hearing.  He writes, in his book Duty,

I remember sitting at the witness table listening to this litany of woe and thinking, What the hell am I doing here? I have walked right into the middle of a category-five shitstorm.  I was the first of many, many times I would sit at the witness table thinking something very different from what I was saying.

Robert Gates paid $40,000 to a legal form to fill out financial disclose form.   Even the slightest error could be blown out of proportion by someone who did not want to vote for him.  But, Gates got confirmed.  Obama’s nominee won’t.  It’s going to be pure  theater.


So, who does Obama want to feed to the wolves?  Jacqueline Nguyen will be the nominee.  She’s just too perfect!  She was confirmed to be on the ninth  appeals court judge, 91-3.

Jacqueline Nguyen

My second guess, is Sri Srinivasan. Another incredibly smart judge on the DC Court of Appeals.

Sri Srinivasan

Sri has really got a bit stronger credentials- as if this mattered.   If either accept the nomination,  I will still be wondering- why????

Stay tuned,