One of the first rules of comedy is to read the room and understand your audience,
I'm going to break that rule this morning and just hope that if I talk below your level of knowledge that you will help to educate me and that if I talk above your level that you will look up the answers and try to prove me wrong while bettering your own knowledge base, instead of just blowing me off because you don't agree with me or just repeating a political talking point.
Today's post is not about who is right and who is wrong, nor is it about your political persuasions and whom you support in your vision of what our society should look like in the future. All I am attempting to do today is to talk about facts as they exist and talk about reality, that is how the facts are seen in relation to what actually happens. I'm not going to address what should occur, nor am I going to get into what I think has occurred when that reasoning is filtered through the lens of politics. Sometimes it is impossible to talk about a subject without some context and that context may be a political filter, however, I only use that filter when it is the only way to explain something.
In my humble opinion, I do not think most people (Joe Average and Josephina Average American) understand the role of the Supreme Court of the United States of America, nor do I think they have a clear understanding of how it works or why it is that way. I see and hear commentary all the time indicating that the commenter thinks the court should have "Just Follow the Law", or "They should not make law" or "They are too Conservative or too Liberal" and other such concepts. I'm sure you have heard these too and/or may have had such feelings in the past on many of these same subjects.
My opinion is that these concepts are cut cleanly and clearly from different cloth with regard to the way most people define those terms. When it comes to higher-level courts these concepts have different meanings and a Justice's roles are much different than you may think it is, whether you agree or like them or not. Nothing in our society or in how we are exposed to a court proceeding prepares us for how an appeals court such as the Supreme Court operates or in how it decides cases. I am of the opinion that most people don't understand how the court operates.
Click this Link --->How the Supreme Court Operates
First and foremost is the process of accepting a case to review by the court. When an appellant is unsatisfied with rulings of the courts once a case has been appealed, they make an appeal to the next level of the court asking for a review. At various levels, those reviews are asking the next appellant court to decide a case judgment based on the facts of the case and asking the Appeals court to decide in favor of or overturn the trial judge or a previous appeal court based upon a mistake the court may have made in reviewing the facts of the case or may have misapplied the law in deciding the outcome. The reasons for accepting and deciding a case can be very narrowly construed at this level and even when decided favorably their decision may not overturn an entire case and may not decide the case at all, they may just point out the error and send the case back to the originating court for a decision with better instructions to that court.
This happens all the time.
In submitting a case for review to the Supreme Court, the appellant submits a Writ of Certiorari, which is a filing asking the court to hear the case, to hear their objections to the decisions of the Appeals court. Usually, the Supreme court only hears cases where there may be appellant review from the Federal appeals court system or the highest case in a state or territory such as a case decided by a state Supreme Court, under the courts' jurisdiction. The Supreme Court has both Original and Appellant jurisdiction. It is limited in Original Jurisdiction (case decisions at case level) to cases involving disputes between the States or other high ranking ministers. Remember the case of the elections in the year 2000 (Bush v Gore) That was an original jurisdiction case that went to the court and bypassed many of the usual court proceedings, especially at the Appeals court level.
In appellant review cases they have the responsibility and jurisdiction to review decisions made by the lower courts. Once a brief and response have been filed, discussed, and accepted then a case is set for oral arguments before the entire court. These arguments are usually blocks of time reserved by the court to answer questions that the Justices may have and are not a period of time to re-hash the facts of the case. By now the facts of the case are well known and what the discussion is about is how to decide the case on what set of merits or not. Once a case has been argued and responded to it is set for Judicial conference.
At each conference the justices talk about the cases they have heard arguments from either side about and they vote and decide how they are going to rule on each case, At this point, a Justice is assigned the case to write the opinion for the majority and one is assigned to write a dissenting opinion for the minority. Other Justices may write their own opinions or concurring opinions where they agree with their colleagues but for differing reasons.
To say the court should just "Follow the law" for example is a narrow and fairly naive point of view as laws are found to be and frequently are outside the bounds of Precedent (Stare Decisis), or it may be in conflict with the US Constitution or it may be in violation of another superseding Federal Law.
Recently for example (which is a great example of this concept in action), the court made a decision concerning the DACA case, the so-called Dreamers Act, the court decided that the Trump administration had acted arbitrarily and capriciously in ending the program, and without good and sufficient reason in Unilaterally ending the Dreamer program. They did not decide the merits of the case, that is, the court did not decide whether the program was legal as that was not the question put before the court. That is how many non-legal scholars described the action the court took, by saying that the court ruled against the President personally.
Like many people who like only what they like, they were dead wrong. Not only did they not decide its legality, but they also didn't decide the presidents authority to act and didn't decide the constitutionality of the act that created the Dreamers in the first place. You wouldn't know that by listening to anything said by most political pundits and virtually everyone on Television. Not only were they wrong, but once again they lied and were dead wrong.
They (the court) did however decide that the way the President acted was unilateral and unprecedented and without sufficient and good cause. They also decided that his actions and the actions of his advisor, Steven Miller, violated a long-standing Federal Law and did not meet the guidelines of that law and that the work presented to the court in support of the administrations' actions were "sloppy and ineffective". This is important as it did not as President Trump has stated "rule against him", rather the court ruled against the sloppy work of his attorneys and the filing of his advisor and the way the case was framed in total by Steven Miller.
Mr. Miller and the attorneys filed their brief in support of the action of the President took that essentially stated the reasons given for ending the program were pretty much the verbatim argument of the President that "It's over because as President, I say it's over." That's good enough in Russia and in Cuba but not in the US, and I really don't get how an educated attorney missed that most important point of their appeal.
The US Federal law that this filing violated with their sloppy policy-making process (their words, not mine) is called the Administrative Procedures Act, a GW Bush-era law that was put into place to prevent the changing of US Policy-based upon the personal whims of the incoming (DEMOCRATIC PRESIDENT), Barack Obama and his incoming staff.
The court did not rule on the question of whether or not the President had the authority under US Law to end the program because clearly, he does, however, it does mean he has to follow the law like everybody else, that this is not a dictatorship and things don't get done just because he says they do. That is not how the rule of law works in America. They said he must provide good, sufficient reasons and that the reason he uses must follow generally accepted precedent, as all actions taken by a US president must. They said actions he takes may not be contrived using a negative action based upon a prohibited method, (for example, asking an applicant for a position if they are a woman, and then using the affirmative answer to exclude her from the job), and the actions taken must be lawful. They did leave open the possibility the President may choose to end the act in a wholly separate way, that his administration has the right to a do-over and can act in such a legal and lawful way as to get it right the next time.
If this is what you mean when you say the court must follow the law, then I agree with you.
Things are heating up, I think that the next few months are going to be a wild ride.
- In Atlanta, Fulton County mostly, they are on the 4th day of a blu-flu epidemic. It started when the mayor undermined the police force by not following due process and firing an Atlanta Police Officer and was exacerbated by the corrupt district attorney filing false charges against that same officer. That officer is plainly not guilty following even the harshest reading of current law.
I really hope the DA gets his ass handed to him. I hope he goes to jail too. I also hope he isn't caught speeding in Fulton county any time soon. What an idiot. - The USAF has named a female to be its highest NCO. JoAnn Bass has been named as the Chief Master Sargeant of the US Air Force. It's a great day in America!
- Colorado has ended qualified immunity for police officers and has banned the use of chokeholds too. Their bill also requires all police officers to wear body cameras in all departments to allow public access to the video. They have also banned shooting fleeing suspects or suing deadly force unless a life is in immediate danger.
No word on whether or not the budget has been increased for the now foreseen incredible rise in retirements and the tenfold cost in new recruiting. - John Bolton's new book alleges (about Trump) - (A) The Ukraine allegation was implicit quid pro quo. (B) Similar incidents occurred in Turkey and China (C) He explicitly (Trump) asked China to help him in his re-election bid (D) He did not know that Britain was a Nuclear superpower (E) He thought Finland was a part of Russia (F) Mike Pompeo thought that Trump's overtures to the North Koreans were useless and it was a joke (G) Bolton reported all of this and more to Bill Barr and more and that Trump approved of China's use of concentration camps.
Wow. - Now that Robert Mueller's report has been released mostly unredacted in an FOIA request by BuzzFeed we can plainly see that the Investigators believed that Trump and his team directly lied to investigators. You can also see that the President discussed his answers with Roger Stone in advance. Also, new revelations that Trump knew all about Wikileaks from the beginning.
But yeah, No Collusion, yeah. Keep the faith.
Jesus Christ, we just keep steaming right along, don't we?
BigMike
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