The Wayward Seven

To the heartbreak of millions of Americans who were hoping that the Supreme Court would give justice a fighting chance in the current fog of electoral war, seven of the nine members of the High Court simply slunk away last Friday without even lending an ear.

Just about a week ago, shortly before midnight, the state of Texas filed a lawsuit directly with the U.S. Supreme Court. In the suit, Texas challenged the election procedures that had taken place in the states of Georgia, Michigan, Pennsylvania, and Wisconsin.

The seven members of the High Court, who took the position that Texas and the other co-plaintiff states would not be allowed to have their case heard, committed a fundamental error.

The justices may have been influenced by a slew of legal prognosticators, some of whom had taken to the Democrat dominated media to ridicule the Texas attorney general for having initiated the action in the first place.

Others spread a message that conveyed an overly simplistic analysis, claiming that the process of selecting electors to send to the Electoral College is a matter that is handled by individual states, and therefore if a federal court, in this case the Supreme Court, were to hear it, the court would be intruding on state sovereignty.

The fact of the matter is the U.S. Constitution uniquely prescribes the manner in which presidential elections are to be implemented, and exactly where the authority for such implementation resides.

The authority is granted exclusively to the state legislatures of each respective state. The High Court has referred to this power to select electors as a “plenary” one, i.e., all encompassing.

The statehouses are given an exclusive grant of authority to determine the manner in which the states’ presidential electors are chosen. This is a distinct and explicit constitutional mandate, a federal matter, appropriately decided in the federal court system and, if necessary, the court of last resort, the Supreme Court.

The textual constitutional language in this regard is specific and unambiguous, setting forth a singular authority that precludes state officials, state executives, and even state courts from altering or contradicting statehouses, when it comes to the selection of electors for the purposes of choosing the President of the United States.

The Constitution also specifies that the Supreme Court will have original jurisdiction over “disputes among the states,” meaning that when Texas needs to adjudicate a matter involving a disagreement with another state (or states), the Supreme Court is the only place to go in order to seek resolution or remedies in law or equity.

Texas and its fellow co-plaintiff states were not questioning the election laws of the defendant states, but rather they were claiming that “non-legislative actors,” i.e., governors, secretaries of state, election officials, and state courts, unconstitutionally altered and overrode the election laws that had been duly passed by state legislatures.

The threshold issue that was before the Supreme Court was whether the constitutional prescription for the selection of electors had been violated by non-legislative actors. This was, and will always remain, central to the functioning of our republic, and it is a premise that is vitally important for all of the justices to recognize.

Seven simply did not. These wayward seven failed to allow the case to move forward.

How were their decisions justified?

They avoided hearing the case on the merits, claiming that the prospective plaintiffs in the case lacked “standing.”

Standing is the principle that limits the hearing of cases to those individuals or entities that demonstrate specific harm has been suffered or that a particular legal interest has been detrimentally affected.

The harm in this case is quite obvious — unconstitutional behavior that results in illegal voting in one state damages legitimate voting in other states.

In this case, electors in Texas were canceled out by electors in states where illegitimate votes were produced by unconstitutional processes.

A huge segment of the American population believes that the 2020 presidential election was illegitimate, due to widespread and multifaceted fraud. This huge segment yearns for, and is entitled to, a judicial review of the mounting evidence.

Thus far, no determination with regard to the merits of the case has been made.

Similar, if not identical claims from other plaintiffs, ones that possess a stronger argument on the issue of standing, will arrive at the Supreme Court soon.

The seven members of the High Court get another shot at justice.

Justice Sotomayor Criticizes Colleagues

2018 Roberts Court

In a recent dissent to a Supreme Court decision, Associate Justice Sonia Sotomayor crossed the bounds of judicial norms by accusing her fellow Supreme Court colleagues of being biased toward the Trump administration in carrying out their judicial work.

The case before the High Court, Wolf v. Cook County, deals with circumstances in which the government could deny visas or green cards to non-citizens who are looking to enter the United States.

In 2019 the Trump administration, via the Department of Homeland Security, issued a new rule to be used for the purposes of determining whether an individual could be granted legal entry into the United States.

The executive branch already had the authority to determine whether an individual who applies to enter the country is likely to become a “public charge,” i.e., a person “primarily dependent on the government for subsistence.”

However, certain non-cash financial aid items, such as food stamps, housing, and health care assistance, were not previously taken into account for such purposes, but were included under the new Trump administration rule.

Prior to hearing this case, the High Court had blocked two nationwide injunctions that were issued by lower courts, resulting in the enforcement of the new rule. However, a third injunction, which was limited only to Illinois, remained in effect, barring the implementation of the new rule in that state.

The Trump administration filed an application with the High Court for an emergency stay, which requested that the Justices block the Illinois injunction that allowed Illinois to continue to exclude non-cash financial aid items from being a part of the dependency assessment.

The High Court’s decision to halt the Illinois injunction and allow the state to consider non-cash financial aid thus enabled federal authorities to enforce the new policy in Illinois.

In her dissent, Justice Sotomayor enlisted a highly unusual comparison to bolster her argument against the majority’s approach to the government’s stay applications. Drawing similarities to arguments brought by those advocating for death row inmates, Justice Sotomayor accused fellow members of the High Court of showing greater concern for President Donald Trump than for convicts facing execution.

In an apparent incrimination of five of her fellow colleagues, Justice Sotomayor alleged that they had politicized their rulings.

Justice Sotomayor had voted in the subject case, Wolf v. Cook County, along with three Democrat-appointed Justices, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

As a Member of the Bar of the Supreme Court, I have had the privilege of having dozens of cases come before the High Court and found it disconcerting to read that Justice Sotomayor had written that the five Republican-appointed Justices were “putting a thumb on the scale in favor” of the Trump administration.

There is an unspoken yet palpable expectation that political opinion as it may potentially relate to a judicial ruling would be conspicuously left behind at the courthouse steps.

In addition, Justice Sotomayor was highly critical of the frequency of the relief from the High Court, in the form of stays against injunctions, which had been sought by the Trump administration.

“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each,” Justice Sotomayor wrote. She went on to assert that the High Court is biased in favor of the Trump administration when it comes to these stay applications.

The notion asserted by Justice Sotomayor that the Republican-appointed justices on the High Court are politically biased does not appear to square with the records of Chief Justice John Roberts and Justices Brett Kavanaugh and Neil Gorsuch.

In 2012, Chief Justice Roberts, who was appointed by President George W. Bush, wrote the majority decision in favor of the Affordable Care Act, which was a clear departure from conservative ideology. And Justices Kavanaugh and Gorsuch, both of whom were appointed by President Trump, have sided at times with the four Democrat-appointed justices in relation to several cases.

In her recent writing, Justice Sotomayor appears not to have taken into account the reason for the larger number of stay applications. The increase is due to the unprecedented use of the federal courts by opponents of the president.

In 2019, during a speech to the American Law Institute, Attorney General William Barr cited the widespread use during President Trump’s term of nationwide injunctions that affect presidential policies.

The numbers correspond with the misuse of the judiciary in an unparalleled way. During the entire 20th century, courts issued just 27 nationwide injunctions of this type; however, in the three short years that President Trump has occupied the Oval Office, activist judges have attempted to hamper his administration with 40 nationwide injunctions.

“When a nationwide injunction constrains a significant executive policy, the Justice Department has little choice but to seek emergency relief,” Attorney General Barr noted. “… the alternative is for the government to wait months or years for appeals to run their course before the executive may implement its policy at all.”

High Court Lets Anti-Christian Ruling Stand

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The U.S. Supreme Court recently ruled on a profoundly significant case involving the religious rights of all Americans, and more specifically, the rights of our nation’s schoolchildren, which are safeguarded and secured by the all-important words contained in the First Amendment of the U.S. Constitution.

The High Court declined to review an appeal submitted on behalf of a public high school student and a Christian, Caleigh Wood, who refused to compromise her religious beliefs by participating in a class assignment that was overtly anti-Christian in nature.

What conflicted with young Caleigh’s deeply held tenets of faith was a Muslim conversion prayer, which was part and parcel of the curricular assignment of a required course.

“There is no god but Allah and Muhammad is the messenger of Allah.” This statement happens to be the Islamic conversion creed, i.e., the declaration that an individual professes when converting to the Islam faith. It is also the prayer that a practicing Muslim recites during the Muslim “call to prayer” practice.

Caleigh had enrolled in the above described course because it was a mandatory requirement that had to be completed before she would be allowed to graduate from high school.

In an attempt to abide by the school’s conditions with regard to the academic coursework and still not violate her own personal religious conscience, Caleigh offered to complete an alternative assignment.

However, the school refused to provide her any options that were non-violative of her Christian beliefs, despite the fact that the educational institution could have easily done so. Instead Caleigh was informed that if she did not participate in the Islamic conversion prayer she would be given a failing grade.

The eleventh-grade student was additionally compelled to view pro-Islamic material in the form of PowerPoint slides. One of the slides contained the following caption: “Most Muslim’s [sic] faith is stronger than the average Christian.” The lesson also included the following description regarding gender roles within the faith context: “Men are the managers of the affairs of women” and consequently “righteous women are therefore obedient.”

The approach taken within the class to the Christian faith stood in stark contrast with the one taken with regard to the Islamic faith. Islamic principles were presented under the auspices of “fact”; however, Christian principles were not afforded the same designation.

Regarding the comparison statement on strength of faith, Jack Tuttle, content specialist for the public schools in the county, testified that in his assessment the comparison reference was “inappropriate,” adding that he would have advised that it not be used in schools.

After Caleigh filed a lawsuit that pinpointed the violations of her Christian convictions, the Fourth Circuit Court of Appeals judge in the case proceeded to ignore legal precedent, essentially sanctioning the promotion of the religion of Islam in public schools.

However, requiring a student to say a prayer, whether contrary or not to a student’s personally held beliefs, is a blatant violation of constitutional principles and precedents.

The U.S. Supreme Court should have weighed in on the Fourth Circuit’s decision. In failing to do so, the High Court permitted a lower court to ignore precedent as well as a citizen’s concerns about having to recite a prayer of a different faith, and additionally having to write such, which was a clear violation of religious conscience. The presence of government coercion in this case is patently clear, since the religious activities in question were part of a required course and no alternative accommodations were provided.

The Fourth Circuit’s opinion flies in the face of the legal mandate that public schools must not disparage a student’s faith and/or require students to engage in prayer or religious exercises contrary to personally held religious convictions. Public schools are constitutionally bound to remain neutral in their approach to faith-related subjects.

The Supreme Court has historically provided greater constitutional protection with regard to freedom of conscience as it pertains to the nation’s younger demographic. This is partially due to the fact that public school attendance is statutorily compelled, and the school administration wields considerable power.

To this end, the U.S. Supreme Court has upheld the opening of legislative sessions with prayer, yet declared unconstitutional the opening of school sessions with prayer. Similarly, the High Court has upheld the legality of creche and menorah displays, while noting that it would be a different result if the displays arose in a school setting.

The High Court precedent requires lower courts to apply a heightened standard for coercion in the public school context. Unfortunately, the Fourth Circuit egregiously cast this heightened standard aside.

The refusal by the U.S. Supreme Court to take up Caleigh’s case not only allows the lower court ruling to stand, but it leaves the existing double standard in place, which is likely to wreak further havoc on our cherished First Amendment.