Connect with us

Published

on

[ad_1]

The Warren Court holds a special place of derision within the conservative imagination. The term refers to the 1953-1969 timeframe when Chief Justice Earl Warren held sway over the U.S. Supreme Court. The right has understood this court as inaugurating and modeling the modern iteration of “judicial activism.”

Conservative critics of the Warren Court period hold that, through a series of heavy-handed interventions, it undermined essential elements of American government, including the rule of law, popular sovereignty, and federalism. The right’s evolution toward working-class populism should only increase antipathy toward the Warren Court and its rule by elitist judicial fiat.

This makes the case of Texas v. Pennsylvania all the more strange. Texas’s motion against Pennsylvania, Michigan, Wisconsin, and Georgia sought to enjoin certification of their presidential election results and essentially to require each one’s legislature to choose its slate of electors.

Notably, Texas did not act alone in its petitioning. The litigation became a kind of litmus test within the GOP, with supporting briefs from 17 state attorneys general, 126 members of the U.S. House of Representatives, and the president of the United States.

Yet even Earl Warren himself would have hesitated at so brazen a petition. If the Warren Court engaged in judicial activism, these petitioners asked the current Roberts Court to inaugurate judicial hyper-activism.

Resisting Judicial Hyper-Activism

Texas’s invitation to hyper-activism started with its request that SCOTUS hear the case. Numerous restrictions exist on when, why, and how courts adjudicate litigation. Here, the justices refused to take the case Texas’s “for lack of standing.”

Standing limits who can bring a claim to court. A litigant must assert a concrete, particular wrong done to himself, one directly traceable to the person he sues, and about which a court possesses the tools to address.

White House Press Secretary Kayleigh McEnany attacked the Supreme Court for rejecting Texas on these grounds, saying “they hid behind procedure.” President Trump made the same critique, tweeting that the justices “chickened out” in saying they could not hear the case. The court did no such thing.

For starters, calling standing merely procedural misses an enormous component of judicial overreach. Many who speak of judicial activism think only of what the court decides regarding contested issues like school prayer, abortion, and marriage.

But another side to such activism exists, one regarding whether and when the court takes cases at all. Judges should not decide every point of contention in our social and political life. Nor should the Supreme Court take on all exercise of judicial power, thereby circumventing state and other federal judges.

The doctrines attached to standing seek to restrain judges against these tendencies. The judicial power engages in legal interpretation only to resolve disputes — cases and controversies. Standing helps ensure real disputes exist by requiring litigants to show both their own injury and how the person they sue did the injuring. Judges must do so on matters of law that courts hold the capacity to determine well. Standing guards this area, too, setting aside “political questions” better left to the elected branches.

Instead of punting, the Supreme Court resisted Texas’s temptation to greatly erode these restraints. Texas started with a kernel of truth, namely the Article II requirement that “Each State shall appoint, in such Manner as the Legislature thereof may direct” their allotted electors. While this clause could elicit a valid suit by some persons in some circumstances, this one was not it.

The Threat to Federalism

Texas’s claim to injury by the sued states proved exceptionally weak. In how they conducted their elections, these states allegedly injured Texas as a state regarding who would serve as vice president and thus break the Senate’s tied votes. It moreover hurt its residents by “diluting” or “debasing” their votes by potentially inaccurate results.

But these claims did not come close to fulfilling requirements for standing. Both were too vague as well as too general for Texas to claim particular and concrete injury. Any state could do so. Voters, too, could do so themselves if Texas was correct, undermining further the standing claim.

The implication should be clear. If states could sue on these grounds, then they could sue on any grounds. If so, then the Supreme Court could find grounds to take nearly any suit. Doing so would massively expand its reach, not only over citizens and the political branches but over other courts as well. It could build ever-easier routes to judicial legislating under the guise of legal interpretation.

Advertisement

The temptation on standing greased the wheels for another form of hyper-activism: undermining federalism. Federalism divides delegations of the people’s power between national and state governments. This allocation makes the exercise of governmental power both safer and more effective.

It makes power safer by denying to any entity all governing authority; and thus, provides both states and the federal government the capacity to check each other. Federalism creates more effective government power by properly dividing tasks; states address local concerns to which they are most fitted, and the federal government takes on issues of national scope.

The right attacks the courts, especially the Warren one, for subverting federalism by imposing its will on the states. Therein, the local becomes national as the popular becomes judicial.

On this point, Texas’s motion spoke fluent Warrenism. Ironically, this undermining of federalism would occur with states’s help. Under Texas’s motion, states could sue each other for any perceived shortcomings in the conduct of other states’s elections. Therefore, in asking to de-certify, Texas petitioned the court to exercise an unprecedented level of supervision over the states. This supervision could only bring dictated uniformity.

In going directly to the Supreme Court, moreover, Texas sought circumvention of state courts regarding the interpretation of state laws. The court would grab power from its judges, too. SCOTUS already acts too much as a body of legislators. They need not add election supervisors to the resume.

Finally, this judicial hyper-activism asks the Supreme Court to undercut popular will. When the court voids a law the right thinks constitutional, conservatives rail against “unelected judges” ruling over and against the people’s representatives. These efforts were a core sin of the Warren period. Here, Texas asked the court to go a step farther, negating the certified action of the people themselves.

Affirming ‘We, the People’

When asked for similar relief in other 2020 lawsuits, courts have noted just how extraordinary this request is. To un-certify state results and throw the choice back on state legislatures has no parallel in a past presidential election. To request doing so by judicial act only heightens its astonishing quality.

Judicial action so unprecedented, if ever legitimate, must stem from proof equally so. We need smoking guns of magnitude and certitude that would follow an artillery barrage. No such proof has emerged. We cannot rule out all voter fraud. Yet the expansive claims regarding electronic voting systems or reporting errors have been dispelled. Many smaller assertions regarding Sharpies or dead persons voting have not played out as accused, either.

Perhaps most telling, however, is that when actually in court instead of at a press conference or in a tweet, lawyers for the president have generally refused to claim fraud. This refusal includes the recent Wisconsin case that got past standing to the actual merits, although still did not yield a result in the president’s favor. Judges overturning the official, certified results on such evidence would not affirm rule by “We, the People.” Instead, it would pave the ground for judicial oligarchy.

In rejecting Texas’s petition, the Supreme Court wisely refused these temptations. It thereby denied taking yet another step toward a judiciary capable of reaching all, conforming all, ruling all. We certainly must assess our election system in the aftermath of 2020. We must be open to reform where needed. But, after Texas v. Pennsylvania, conservatives need to rediscover their justified antagonism towards judicial overreach. A Warren Court of the right is no answer.

Adam Carrington is Assistant Professor of Politics at Hillsdale College.



[ad_2]

Advertisement
Comments

Politics

Convicted fundraiser who tried to work his way into Biden’s inner circle sentenced to prison

Published

on

Amajor Democratic bundler, who raised large sums for Barack Obama and Hillary Clinton and consorted with Joe Biden, was sentenced to 12 years in prison for what prosecutors said was a “mercenary” political influence scheme.

Imaad Zuberi, a Californian businessman was sentenced Thursday for schemes to funnel foreign money into U.S. political campaigns, then take millions of dollars for himself.

The Los Angeles Times reported that U.S. Assistant Attorney Daniel J. O’Brien said Zuberi was “purely a mercenary, funneling money to whomever he believed would do his bidding.”

Among the many unsealed court records, Zuberi was seen photographed with Joe Biden and Barack Obama when they were Vice President and President. He was also pictured with former President Bill Clinton and former presidential nominee, Hillary Clinton. He took pictures with former Republican Rep. Paul Ryan when he was speaker of the House as well as the late Sen. John McCain of Arizona.

Also included in the Times report was a hacked email chain released on WikiLeaks. Hillary Clinton’s campaign manager Robby Mook messaged colleagues saying, “I’m OK taking the money and dealing with any attacks.” Jennifer Palmieri responded saying, “Take the money!”

He also attended Hillary Clinton’s election night party in New York City in 2016 as well as serving as a co-chair of The Trump Presidential Inauguration Committee.

Advertisement

Zuberi made more than $950,000 in unlawful donations to the political committees of Obama, Clinton, McCain and others. Zuberi’s activities extended as far as a recent attempt to work his way into the Biden circle, according to Politico.  

In addition to the money he made, Zuberi also raised $270,000 for Hillary Clinton and $1.3 million for President Obama.

Zuberi, 50, pleaded guilty to a “three-count information charging with violating the Foreign Agents Registration Act (FARA)” for making false statements on a FARA filing as well as tax evasion and illegal contributions to political campaigns. He also pleaded guilty in a separate case earlier in June 2020 to a count of obstruction of justice.

“Zuberi turned acting as an unregistered foreign agent into a business enterprise,” Assistant Attorney General for National Secretary John C. Demers said in a Department of Justice news release.

Continue Reading

Politics

Cruz responds to pictures of him on Mexico flight, with Texas struggling from deadly winter storm

Published

on

Texas GOP Sen. Ted Cruz confirmed Thursday that he flew earlier this week to Mexico with family members, following the emergence of pictures appearing to show him in an airplane cabin and at a check-in counter, as fellow residents to recover from a deadly winter storm.

Cruz said in a statement that he accompanied his daughters on a flight Wednesday night to Mexico because they had the week off with school canceled.

“Wanting to be a good dad,” said Cruz, who also stated he is returning to Texas on Thursday afternoon.

The storms has been connected to at least seven deaths in Texas and knocked out power to as many as 2.5 million residents. The number of residents without electricity as of Thursday morning was down to less than 1 million, officials said.  

Advertisement

“My staff and I are in constant communication with state and local leaders to get to the bottom of what happened in Texas,” Cruz also said. “We want our power back, our water on, and our homes warm.”

Continue Reading

Politics

South Carolina House passes bill that would prohibit most abortions if a fetal heartbeat is detected

Published

on

The South Carolina House of Representatives on Wednesday voted 79-35 to pass legislation that would prohibit most abortions. 

The bill must pass through a procedural vote in the House on Thursday prior to heading to GOP Gov. Henry McMaster who has indicated that he will sign it, according to the Associated Press. Two Republicans voted against the legislation while two Democrats voted for it. The state Senate passed the measure last month. 

The bill requires doctors to carry out an ultrasound to check for a fetal heartbeat and if a heartbeat is identified an abortion can only be performed in certain circumstances.

The legislation would not penalize a woman for obtaining an unlawful abortion, though the individual responsible for performing the abortion could face consequences.

Advertisement

The outlet reported that other states have approved similar or even more stringent abortion prohibitions which could be implemented if the Supreme Court throws out the landmark 1973 Roe v. Wade decision. All of the other states’ abortion bans are currently entangled by court challenges and if the South Carolina bill is approved it will likely face litigation that prevents it from going into effect, according to the AP.

Continue Reading
Advertisement
Politics5 hours ago

Convicted fundraiser who tried to work his way into Biden’s inner circle sentenced to prison

Politics15 hours ago

Cruz responds to pictures of him on Mexico flight, with Texas struggling from deadly winter storm

Fox news21 hours ago

‘A lot of people don’t know the severity of what’s going on’

Politics1 day ago

South Carolina House passes bill that would prohibit most abortions if a fetal heartbeat is detected

Politics1 day ago

Son of prominent conservative leader Bozell arrested in connection with Capitol siege

News2 days ago

Seven shot in Philadelphia near SEPTA station, according to police

Politics2 days ago

Trump calls Limbaugh ‘legend,’ in first TV interview since Senate trial

News3 days ago

CNN’s Stelter,’ ‘Saturday Night Live’ this weekend didn’t mention Cuomo’s nursing home COVID story

Politics3 days ago

Rep. Bennie Thompson targets Trump, Giuliani, Proud Boys and Oath Keepers in Capitol riot lawsuit

Donald Trump3 days ago

Trump unleashes scathing statement blasting Sen. Mitch McConnell

Politics3 days ago

Judicial Watch sues U.S. Capitol Police in pursuit of emails and videos pertaining to Jan. 6 riots

Bannon3 days ago

Bannon — ‘Trump may run for Congress in 2022 and lead impeachment against Biden’…

Donald Trump6 days ago

Trump acquitted in impeachment trial; 7 GOP Senators vote with Democrats to convict

Candace Owens6 days ago

Candace Owens post photo of her son with a message to all young feminist.

COVID-!96 days ago

Biden administration to allow 25,000 asylum-seekers to cross US-Mexico border while cases are pending

Facebook

Facebook

Trending

Copyright © 2021 By TSD