Damn Activist Judges Strike Again!

I really don't understand what's going on with these judges in America. Man, they must REALLY hate our country. How else could they justify attacking our Nation's religion so much and so often? Clearly we are at war for our very country's soul!

What's happened to recently that put me in such a snit? Well, I'm glad you asked. I'm sure you've heard of the Country music group Diamond Rio, right? Is there anything more American than Country music? I mean, it's as American as Apple Pie! I'm not just saying that because I got to fly home in the same plane as Lyle Lovett, either (the man looks JUST like his photograph, it's uncanny). Well, this school in Florida has an assembly, and in the assembly, the third graders, all good loyal Americans who have said their Pledge of Allegiance, are given different songs to sing. One of the songs just happens to be a country song by Diamond Rio called In God We Still Trust. This is very American obviously, inasmuch as it's almost the same as what we have written on all our currency.

This is quite the patriotic song, too. The good folks at Americans United for Separation of Church and State have actually posted some of the lyrics, which I will relay here: "There’s no separation…We are one nation under Him…Now there are those among us, Who want to push Him out…From the schoolhouse to the courthouse, They’re silencing His word, Now it’s time for all believers, To make our voices heard."

Of course, some children, or their parents, just aren't good Americans. And they complained, like the whiners those anti-American anti-Christians they are (I know, it's redundant, but sometimes you have to be redundant to make your point). The school district, clearly showing more logic and composure than they had any real reason to, offered the insanely reasonable alternative that these children who didn't love their country could opt to not participate in the assembly at all. Wouldn't you know it - those Socialist God and America-hating people didn't like this completely fair and unbiased alternative at all, and they filed a lawsuit.

This is where the Activist Judges get involved. This guy must have really had his head shoved up his bum when he was learning civics, because he just completely turned the world on its head when he issued his holding. He actually had the gall (I cannot confirm whether he actually had his gall bladder, though) to side with these America-haters!

Using such devious tricks as "precedent," "stare decisis," and "the Constitution" to support his bench-legislation, he proceeded to hold that the school district was in the wrong for attempting to help its student body properly love this Christian nation. He had the nerve to refer to this as "proselytizing." Man, talk about marbles! from the article I just linked to, here's a quote from Judge Schlesinger, "In God We Still Trust [is a] song overtly espousing a specific religious viewpoint and attacking of those who do not share in the same belief."

Well escuse the heck out of me! But, I don't see the problem with people being told the right religion to have to love our country. This activist clearly is telling people that there's no room for God in America. You can tell by the bile (which would indicate that he DOES still have his gall bladder) in his opinion that he's just another America-hating liberal activist judge. I mean, the guy brings up the old canard "wall of separation," as though it's what the author of the First Amendment meant when he wrote "Congress shall make no law respecting an establishment of religion, or prohibitng the free exercise thereof." I mean, it's almost as if he took Lemon, and Santa Fe, Lee v. Weisman, and the other cases clearly establishing the meaning of the First Amendment's religion clause and followed them like they were right, or something.

"But Steve," I hear you asking, "How do we know he's an activist judge?" Well, that's simple - he's gotta be a liberal given his audacity to rule against God, and he's clearly been appointed by - George H.W. Bush?! Well, wait just a moment. You know what, now that I go back and look at this again, with "fresh" eyes, I can see what genius there is in his writing. He makes such a cogent argument! It's as though I'm looking at the First Amendment all over again, only it's with eyes wide open! What brilliance! What loquaciousness! What art! Clearly, this man is a genius!

Good Morning (After)

I certainly believe that people are entitled to their own opinion on the question of Abortion. While I remain officially "pro choice," I mean just that.

I remember a bit of a kerfuffle at the end of the Bush presidency regarding pharmacists who didn't want to provide the morning after pill (or was it all contraception) because it violated their religious beliefs. Perhaps someone with some research skills could link to that for me, as I'm not inclined to go searching for it tonight. My response to that was basically "if you don't want to sell birth control, then don't work in a profession that involves selling birth control." It seems to me akin to a Luddite apprenticing as an Electrical Engineer.

I also remember some discussion on the FDA appointments made by President Bush being premised on this topic (again, links are welcome).

The reason I bring this up is because I was reading this article by Professor Friedman at Religion Clause Blogspot that discusses a Court case (Tummino v. Torti, ED NY Mar, 2009) wherein the Judge ordered the FDA to reconsider its restriction on Plan B ("The Abortion Pill"). The reasoning, as Professor Friedman notes, is that the Judge felt that the FDA's position was premised on political motives, rather than "good faith agency decision making" (from Professor Friedman's article).

What I find interesting about this is the Family Research Council's response - "This ruling jeopardizes girls' health and the ability of parents to care for their daughters' physical and emotional well-being." I'm not entirely sure I follow that logic, as, if the child finds herself in a situation where she needs the medication, then isn't it entirely possible that she found herself in that situation particularly because of her parent's inability or unwillingness to care for her physical and emotional well-being? I leave the answer to you.

Weakening America

A Federal Judge today demonstrated once again that the Left hates America. Judge Ann Aiken, of Oregon, ruled 2 provisions of the USA PATRIOT Act unconstitutional. Apparently, she believes that the Fourth Amendment (Wait until you hear this) applies to American people. You see, Congress, knowing how important our security is, saw fit to, what's the best word here, "streamline" our Constitutional rights and liberties. President Bush needed this streamlined approach to freedom in order to protect us from Iraq, you see, and Congress did what it could to help him.

One of the things they did was make it possible for the Executive Branch to protect us by searching our properties, possessions, and conversations without securing a warrant, using the Foreign Intelligence Surveillance Act. As the Executive Branch said some years ago - if you've done nothing wrong, then what do you have to be concerned about?

Well, then the problem came. The problem was that one of those people who did something wrong got caught. And rather than admit he did something wrong, he decided to challenge The Decider's law. Who was this rapscallion, and what did he do, you might be asking yourself. Well, I'll answer. His name is Brandon Mayfield, and what he did was he was held as a material witness by the FBI because a fingerprint that was not his was found on the site of the Madrid train bombings from 2004. Brandon had the gall to be offended that the FBI recorded his phone calls, searched his house and law offices (really, Attorney-client privilege is not affected when they don't KNOW they're being listened in on), and put him under 24-hour surveillance.

Now, I hate to beat a dead horse, but come on. He had to know this was going to happen. He was a Muslim, and we're at war on Terror. If he didn't want to be detained, then he shouldn't have had fingers.

At any rate, he gets the case to the Activist judge, whose opinion cannot be relied upon, because she's a liberal. And we all know those activist judges. They read the Constitution and twist the words around to mean whatever they want it to mean. In this case, the judge read the Fourth Amendment, which protects against unreasonable searches and seizures and requires warrants, and then she read the Supremacy Clause, which states that the Constitution and all laws and treaties passed pursuant to it shall be The Supreme Law of the Land, and then she read precedent which shows that First in Time applies to laws and treaties, but the Constitution trumps all. And then she made the stereotypical Activist Decision - that the Fourth Amendment trumps the USA PATRIOT Act. What a sad day for America.

But, Steve, how do you know she's an activist judge? Well, that's simple - she was appointed by President Clinton (the first one). Which means she's a Democrat appointee, which means she's a liberal, which means she's an activist judge. Very simple. And unfortunate. I'm sure the ACLU had something to do with the choice of venue.

The Gay Agenda

For the past several years, I've had my opinion on homosexuality and gay marriage and whatnot. Basically, my view is if you are gay, then be gay, just don't make a big deal out of it. And if you want to get married, then go get married. Of course, my view seems to be the minority view out there.

So imagine my surprise when I read about the lastest activist decision regarding gay marriage. Apparently, the Maryland Supreme Court granted the petition and heard the plaintiff's case for the right to marry. Their conclusions were little short of an activist decision/judiciary legislation from the bench, which those on the right disdain with such ferocity.

The court actually wrote that plaintiffs "point to several Maryland precedents that, if viewed literally, appear to support the proposition that a statute receives strict scrutiny analysis under Article 46 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review." (quote was pointed out on The Debate Link article hyperlinked above - David Schraub is a brilliant undergrad) The Court then stated that reading such precedents literally is "beguiling."

Let's edit that to make it a little easier to understand. The Court says that by reading what the courts have said in the past regarding Maryland's Equal Protection Act literally, then it looks like the government would have to prove that banning gay marriage is necessary to further a compelling government interest, and that no less restrictive alternative means are available. The law is presumptively invalid. However, applying such a "literal" interpretation of what has been said before is misleading, or delusional. And therefore, it cannot be right, so it's perfectly legitimate to craft a decision WE (the Court) want to have - namely, a ban on gay marriage.

Rather than try to explain the many things that are wrong with this decision, I would point you to The Debate Link and David Schraub, who has done an outstanding job writing on the topic.

Another Activist Decision

Once upon a time, in 2004, the FBI sent a letter to an Internet Service Provider (ISP). This letter, a National Security Letter, was, essentially a subpoena, which said that the provider had to turn over certain customer information to the Government. The letter authorized the FBI (an executive branch entity) to demand the ISP (or whomever) turn over the information that the FBI determined relevant. The NSL was used because it was preferable to a warrant, which required the Government to go through the court system and show probable cause. The letter, however, did not require the Judicial review. The letter said, in essence, that the ISP's manager was to collect the information, deliver them himself, not challenge the government's authority, and was not authorized to refuse or tell the individuals whose information was demanded by the FBI. The ISP sued on First and Fourth Amendment grounds, and the court ruled that this provision of the USA PATRIOT Act was unconstitutional, inasmuch as the letter looked like a threat and a reasonable person would not know (due to the language on the letter) that they could have a hearing to challenge it. The court was troubled by the concept of plenary executive power to determine when and what is necessary/relevant in terms of individual's information.

In response to this court's striking down of this provision in Doe v. Ashcroft, the Republican majority Congress renewed the USA PATRIOT Act in 2005, and revised said provision. The new provision was subsequently challenged, and the damn activist judge, clearly ignoring what the President insisted we have in order to effectively fight the terrorists, ruled the revised provision unconstitutional as well, because (and get this) the provision allows the Executive Branch to demand information on individuals (a search/seizure) without first procuring a warrant. This is a travesty. If the American People and the Founders were so concerned about searches and seizures by the Government, they would have required warrants in the Constitution, or the Bill of Rights - oh wait...

You see, we're supposed to support this provision, and not challenge this intrusion into our civil liberties or our Constitutional rights because we are engaged in a war against Terrorism, a non-entity, an idea, and thus we have to be extra vigilant and not ask questions when the Government asks for information on us, or on other Americans. If we've done nothing wrong, then we have nothing to fear, right?

Or, perhaps we should listen to the words of a Great President: "Once a government is committed to silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." Harry S Truman

Or, if that doesn't work for you, how about a former Supreme Court Justice: "As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness." - William O. Douglas

Price Wars and Judicial Activism, Conservative Style

I've been reluctant to really jump on the Court-bashing bandwagon, because I think a lot of the time, people are more prone to calling a decision bad based on what they want the law to be, not because they disagree with the rationale behind the law.

However, I think that when you have two recently appointed members to the Supreme Court who, during confirmation hearings insisted they respected stare decisis (precedent), and they make up 40% of the majority decision in a case that overturns a 96 year old precedent, then there is evidence of a problem.

The case decided was Leegin Creative Leather Products v. PSKS Inc. In the decision, the Court overruled the "Dr. Miles Rule," which held that minimum price standards established by manufacturers were per se violations of the Sherman Antitrust Act. The decision was written by Justice Kennedy, who determined that the per se rule was of "slight relevance," and that "Vertical price restraints are to be judged according to a rule of reason."

What this decision essentially does is place the burden on the consumer (i.e. you) to show collusion on the part of the manufacturers (i.e. business). It allows the manufacturers to set the minimum price for a product, and to sell the product at that price, until that price is proven in a court of law to be unreasonable. The burden of proving that it's unreasonable is on the person buying the product, who, probably doesn't have the means to try a case on the price of a shirt, or vase. This thought process is voiced by the lead dissenter, Justice Breyer, who said "The only safe predictions to make about today's decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence." Who's going to pay for that legal turbulence? Not the manufacturers, who will pass the price on to you.

Of course, there are those who say that this decision is all well and good. For example, Quentin Riegel, the National Association of Manufacturers vice president for litigation said "[T]his ruling does not legalize resale price maintenance. ... Resale price maintenance will be illegal, and subject to triple damages and attorneys' fees, if the manufacturer can provide no reasonable, pro-competitive justification for it." (emphsasis mine) That is not a tough standard to meet, and it's shameful that the Court would make such an activist decision in the absence of Congressional action on the matter. This is exactly what Justice Scalia complains about time and again, that if the people are unhappy with a decision, they need to seek remedy through the legislature, yet, when the people clearly are not unhappy with a decision, and legislature has had ample time to reverse through legislation what the Court did in interpreting prior legislation, what does he do? He throws the decision out the door, whimsically, hypocritically. It weakens his arguments in past Court decisions, where he's dissented on the point that the People have a legislative remedy, and it hurts his credibility in my eyes, just a little bit. (I single Scalia out because he's opined on this precise issue time and again over the past 20 years, yet apparently determined that he needn't practice what he preaches when he has the majority vote.)

I will still look at each decision independently, and won't skewer the Court as a whole, but this one was bad, in my opinion.