Still Sharing My Search for Truth

On Tuesday I posted a piece on the election, and I later shared it on Facebook, where a number of friends go to find it easily. I don’t have an overtly political Facebook page. In fact, almost the only political-type pieces I post there are my blog links. I usually say something that hints of what the post is about, but I don’t put the most controversial things there. That link is for those who choose to go read my blog, not to offend the friends who do not.

My husband was not allowed to create a post
with a link to my last blog post.

So, on Tuesday I wrote, “As much as the loud voice keeps shouting, 'Resistance is futile,' I'm going to ignore that and keep doing what I'm still free to do.” And the title of the post was “Be Not Dismayed.” There is nothing there about the election. But the first photo in the piece comes up to illustrate the link, and the photo was of Sidney Powell, giving an interview that I reference in the piece.

I know several friends were able to find the piece and share it. But my husband was not allowed to share it. Facebook said no. So he got the link from my blog to make his own post; Facebook didn’t allow him to post it. They suggestion he explain why he thought my blog post didn't violate their community standards. They did not inform me of any violation. Nor did they mention what standards I was supposedly in violation of. That friend who advises that we shouldn't worry, because our lives are too boring for anyone to check up on or censor, apparently I'm nevertheless a person of interest.

Thursday in the Houston Chronicle we found yet another reason not to subscribe. (We’re down to online only, for the non-news portions of the paper, mainly.) It’s an Associated Press story, purportedly not an opinion piece, titled, “Senate hearing elevates baseless claims of election fraud.” Well. First, the writers and editors are apparently unclear on the concept of news vs. opinion, because the bias is right there in the title. In paragraph two the Democrats are portrayed as heroically pushing back “against the unfounded allegations and a former federal cybersecurity official who oversaw election security said continued attempts to undermine confidence in the process were corrosive to democracy.”

As an editor, I might point out that if Democrats “push back against unfounded allegations” and the writers don’t put a comma before going on, they give us a confusing run-on sentence leading us to believe that those Democrats pushed back against both allegations and the former federal cybersecurity official. But people write quickly these days; I wouldn’t want someone carefully editing my posts (although I try to). However, these “news” reporters don’t name the official. They say “former,” but they don’t say whether he oversaw election security “formerly” or this year. They don’t give us any actual reason to believe that this person knows anything about this particular election, only that he agrees with the “no election fraud” narrative they’re pushing on us. I'm sure Facebook wouldn't find them in violation of their standards.

In a video from last weekend, Patrick Byrne applauds NTD News, an associate of The Epoch Times, who is holding the microphone, and says,

You know, the mainstream media has had this snooty attitude for years, like, “We’re not sure you’re good enough to join us.” Well, they have so disgraced themselves by how they have handled— what they have revealed themselves to be, over recent years, but in particular in regard to this national emergency, that, from now on it ought to be the outside the mainstream, from folks like you to the alternative press. But this is where truth is to be found. And I think it’s time that we start saying to them, they have so humiliated themselves, there’s no point. It’s like a narcissistic relationship; the only way to solve it is to withdraw. And I am withdrawing. I am hereby letting— I don’t care about going on Fox, CNN, any of these things I’ve done before. I want to do the media that is honest and credible but is not with those corporate guys who are bending a knee to what is an obvious slow coup.

I’m still finding a crazy amount of news, just about every day. But it isn’t coming from mainstream sources. Since the “media” continues to see no election fraud, and finds fault only with the majority of the population who want to keep our Constitution, let’s do a bit more educating, right here on this personal opinion blog that may bring you more facts in a day than any one of those MSM propagandists.

 

Bombshells

As I write, I keep getting hit with more big news. Here are two, only tangentially related to the election, that I’ve become aware of just since late last night.

 

Lin Woods Tweet

Yesterday, attorney Lin Woods sent out a series of tweets about Chief Justice Roberts. Key is this one, saying,

In discussing @realDonaldTrump in phone conversation in 8/19, Justice John Roberts stated that he would make sure “the mother f#*ker would never be re-elected.” Roberts engaged in phone conversations with Justice Stephen Breyer discussing how to work to get Trump voted out.

Tweet image found here

According to Joshua Philipp, during his Thursday night livestream, Woods also tweeted that he has documentation placed in the hands of several third parties. The documentation is alleged to be a recorded phone conversation. Philipp points out that Woods is a defamation lawyer; he knows better than to make defamatory statements about people that he can't back up.

 

Strzok Texts

Also news is that another text of Peter Strzok was declassified, dated July 28, 2016. It mentions an open investigation into Trump. Important here is that Operation Crossfire Hurricane was opened July 31, 2016, and Strzok testified under oath that there was no investigation prior to that July 31^st date. This doesn’t say an investigation was opened July 28^th; it says there was an open investigation at that time, before a FISA warrant to spy on a US citizen. We don’t know when that investigation was opened. This was not worded as an investigation into the Trump campaign, but into Trump himself. It shows both that Strzok is guilty of perjury and that the FBI was corrupt.

 

Election-Related Stories

Peter Navarro Report

On Tuesday I referenced a documentary by Joshua Philipp of The Epoch Times. That’s an excellent source for a good list of the various incidences of fraud and the stories behind what happened. If you prefer to see a list in print, there’s a good one out today, offered by the President’s economic advisor Peter Navarro, in an unofficial capacity. His report is called The Immaculate Deception, dated December 15, 2020. You can read the entire pdf here. 

Where did Navarro get all the information that the media seems to think doesn’t exist?

Evidence used to conduct this assessment includes more than 50 lawsuits and judicial rulings, thousands of affidavits and declarations, testimony in a variety of state venues, published analyses by think tanks and legal centers, videos and photos, public comments, and extensive press coverage.

He categorizes the types of fraud into six general categories, and he identifies those in each state. 

Table 2 from the Navarro report, page 6

As Navarro summarizes, not everything happened in every state, and each state seems to have their own combination of the various types of fraud. So, while the particular type of outcome-changing fraud is different from state to state, the overall pattern of all six states is enough to imply coordination:

From the findings of this report, it is possible to infer what may well have been a coordinated strategy to effectively stack the election deck against the Trump-Pence ticket. Indeed, the patterns of election irregularities observed in this report are so consistent across the six battleground states that they suggest a coordinated strategy to, if not steal the election, then to strategically game the election process in such a way as to unfairly tilt the playing field in favor of the Biden-Harris ticket.

 

Director of National Intelligence Report

The President’s Executive Order of 2018 regarding foreign interference in US elections requires a report within 45 days of an election. That date is today. It was announced earlier this week that the report would not be ready on time. “Coordination” was needed. I don’t think we know what that means. But Director John Ratcliffe put out an earlier statement verifying that there was, indeed, foreign interference by China, Russia, and Iran. The Executive Order requires immediate sanctions on any nation or entity found to be interfering. I believe that means sanctions against those countries are now in place and do not wait for the public report.

The report itself was delayed until January. I don’t know how far into January, or how that will affect the Electoral College count on January 6^th. But so far Director Ratcliffe seems to be serious about making sure the intel gets heard and seen.

 

Dueling Electors

We mentioned Tuesday that the swing states all sent alternate electors—plus New Mexico. These may play a role on January 6, if an original slate of electors from a given state is protested. That is not unprecedented, but the widespread fraud in so many states is pretty wild.

Is there a plan underway? I hope so. I think so. People are starting to refer to “insurrection” and “martial law,” and I’m not ready to talk about either one. But I have some links below that try to explain.

I'm not the first to make this connection.
There's even a meme template for it.

 

General Corruption

Of the corruption in Washington, ties to communism, and tentacles everywhere, you might say,

You will never find a more wretched hive of scum and villainy. We must be cautious.

 

Patrick Byrne Video

A video was sent to me this week of entrepreneur and Overstock.com founder Patrick Byrne speaking bluntly about collusion within the government.  The most explosive accusation is that the government knew Hillary Clinton had taken a $20 million bribe from Turkey in late 2015; they knew it but needed more proof. So they asked Byrne to help them with a sting operation, which he did, and she took another $18 million bribe. Then the FBI backed off and refused to act on it. Byrne was told it was because she was going to win the 2016 election and serve out her 8 years, but Obama would keep the bribe proof as leverage to keep her in line. It didn’t work out that way, since she lost. Byrne has been waiting 5 years to talk about it.

Patrick Byrne in interview with JM Brown
screenshot from here

The interview wasn’t the first time he has told the story. I heard parts of it more than a year ago, but not the key parts. Byrne laid out the full story in a very long blog post on October 6, 2020, ending a series titled Deep Capture. (It’s summarized in this October 21 piece.)  

As I tried to track down where the interview video originated, I learned that The Epoch Times had both a different interview with him, which I quoted above, plus an article. In that other Epoch Times interview last weekend, Byrne says this election is what China refers to as the “assassin’s mace,” quoting here in part:

It’s a reference to an old story in China. Two kingdoms were in a fight. But, instead of a war, the king of one got an assassin, just in the right place at the right time, with one stroke kills the other king. Then he’s able to take over the country, the kingdom, without needing—you don’t need a war. For a decade the Chinese have been referring to a coming “assassin’s mace” that takes out the US with one stroke….

It’s what we’re experiencing right now. This is a psy-op. And the hand of China, I believe, is behind it. But this isn’t just some random— This is a highly organized coup. They realized they did not have to steal the whole country to steal the country; they needed to steal six counties. And in those six counties they cheated like crazy. And that flips the states, the Electoral College. So it’s very sophisticated….

So, if we bend the knee to this, there will never again be a free election in America.

 

How do you find out all these things that are being hidden by mainstream sources? I suggest The Epoch Times—and all of their YouTube channels, which are also on their website and their new platform YouMaker.com; also OAN, Newsmax, plus various bloggers, vloggers, and others you might share among friends. You can’t let corporate news to decide what you should be allowed to know. Above all, pray to have the spirit of discernment.

 

Sources to Check Out for Yourselves

·         “Live Q&A: Supreme Court Chief Justice John Roberts Working to Oust Trump?” Crossroads with Joshua Philipp, Dec. 17, 2020. 

·         “Rep Says SCOTUS Staffer Overheard Roberts “Yelling” About TX Case “I Don’t Give a F**k About Bush v Gore…” by Missy Crane for WayneDupree.com, Dec. 17, 2020. 

·         Kyle Becker tweets on why SCOTUS did not take up the Texas case, including C-SPAN video, Dec. 17, 2020. 

·         “BREAKING: More Strzok Texts Revealed” Official ACLJ, Dec. 18, 2020.   

·         “DNI Report on Foreign Interference in Election Expected Next Month” by Bowen Xiao for The Epoch Times, Dec. 17, 2020. 

·         “ODNI Says Report on Foreign Threats During 2020 Election Delayed” by Mimi Nguyen Ly for The Epoch Times, Dec. 16 (updated Dec. 17), 2020. 

·         “Navarro: Six Dimensions of Irregularities” by Miguel Moreno for The Epoch Times, Dec. 18, 2020. 

·         “‘The Emperor, In the Election, Has No Clothes,’ Navarro Says in Report” Tom Ozimek for The Epoch Times, Dec. 17, 2020. 

·         “Lin Wood: At Least 1,000 Americans Involved; Military Crime Judge Is the New Deputy AG” Beyond the Noise with David Zhang, Dec. 16, 2020. 

·         “Explosive Interview with Patrick Byrne” posted by JM Brown on Facebook, Dec. 15, 2020.   

·         “The Hillary Clinton Bribery-&-Blackmail & Maria Butina Intoxicate-Rape-&-Murder Deep State Stings Finale” by Patrick Byrne in Deep Capture, October 6, 2020.  

·         “2020 Election Fraud Is CCP ‘Assassin’s Mace’: Patrick Byrne” by Simon Veazey and Jan Jekielek for The Epoch Times, Dec. 16 (updated Dec. 18), 2020. 

·         “Patrick Byrne: The Story Behind the Clinton Bribe” by Sharon Black for UndercoverDC, Oct. 21, 2020. 

·         “Interview of Patrick Byrne, concerned citizen” NTD News, Dec. 13, 2020. 

·         “Rep. Anthony Kern: Dual Electors Could Lead to Victory” Crossroads with Joshua Philipp, Dec. 17, 2020. 

·         “FBI, Texas Rangers, and US Marshals united in action; Lin Wood: Georgia officials to be jailed?” Front Page with Scott Goulet, Dec. 17, 2020. 

·         “#2350B Impossible To Clean, Military Support Ending, [C]los[I]ng [A]ct” PINKAudioX removed from YouTube, available on Rumble (All source links to the report can be found on the x22report.com site.)

·         “Historical Moment for Trump! Will Trump Declare Martial Law?” Clear Perspective with Serene Lee, Dec. 16, 2020. 

·         “Trump's Martial Law: A New Hope For America; Barr's Special Mission From Trump To Expose The DOJ” Beyond the Noise with David Zhang, Dec. 15, 2020. 

·         “BREAKING: Georgia Absentee Ballot Cases in Federal Court Today” Official ACLJ, Dec. 17, 2020. 

·         “Endgame” Damani Bryant Felder, recorded live on Facebook around Dec. 17, 2020. 

·         “The FTC is investigating data collection at YouTube, Facebook, and seven other companies" by Makena Kelly for The Verge, Dec. 14, 2020. 

·         “The Plot to Steal America” Man in America, Dec. 3, 2020. 

·         Patriot Room Facebook group post by Laurie Fisher, Dec. 16, 2020. 

Another Bad Abortion Ruling

Everything the Supreme Court has not yet ruled on comes out today or tomorrow, since their end of term is the end of June.

It’s the divisive cases that get the attention. Today’s is an abortion case: June Medical Services v. Russo. Russo is the Interim Secretary of the Louisiana Department of Health, so we could call it June Medical Services v. Louisiana Dept. of Health.

The case is very similar, according to the plurality (not majority) opinion, to the case from Texas in Whole Woman’s Health v. Hellerstedt. The essence is that each state legislated a law requiring doctors at abortion services to have admitting privileges at a nearby hospital, for the sake of women’s health.

That part of the Texas law was overturned in 2016, based on the possibility that too many abortion facilities would close, which, using the Casey standard (Planned Parenthood v. Casey in 1992), was deemed to have placed an undue burden on women seeking abortions.

Justice Roberts dissented in that case. But, now that it has been precedent for a whole four years, he concurs with the plurality (winning) opinion because of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

Chief Justice John Roberts
image: Leah Millis/Associated Press, found here

The dissents explain his error, but it’s notable that, of the most controversial cases this session, he as sided with the conservatives only once—on the Seila Law decision, splitting with constitutional textualism on Bostock, DACA, and now June Medical Services. Because of personal interest? 

I wrote several times on the Whole Woman’s Health case, since it was pertinent here in Texas.

·         Texas Abortion Ruling (November 1, 2013)

·         Angels of Death (November 4, 2013)

·         Admitting Bias, Part I (August 7, 2014)

·         Admitting Bias, Part II (August 11, 2014)

·         About That Wrong Abortion Ruling (June 30, 2016)

Here’s some background on the Texas case, from my 2016 piece, which applies also to the Louisiana case:

It was a reaction to the Gosnell case, in which an abortion clinic was filthy, grisly, and engaged in late-term and post-birth abortions (i.e., murder of newborns). There were two basic requirements to make sure Gosnell-like conditions wouldn’t risk the lives of the women receiving abortions. One was that clinics would be required to have doctors with admitting privileges at a relatively nearby hospital (the miles were far enough to offer flexibility in all cases). The other was that the facilities would have to meet the same standards as other ambulatory surgical centers.

So let’s be clear: the abortion industry fought all the way to the Supreme Court to avoid securing basic health care for women.

Both states faced similar infractions in their states. Louisiana, however, wrote the legislation carefully considering the requirements the Court decided to make law following the Texas case. While the evidence below was dismissed by the plurality, Justice Gorsuch, in pointing out why legislatures are better suited to deciding these things, shares with us some of what the Louisiana legislature heard:

The legislature heard, too, from affected women and emergency room physicians about clinic doctors’ record of abandoning their patients. One woman testified that, while she was hemorrhaging, her abortion provider told her, “‘You’re on your own. Get out.’” Eventually, the woman went to a hospital where an emergency room physician removed fetal body parts that the abortion provider had left in her body. Another patient who complained of severe pain following her abortion was told simply to go home and lie down. When she decided for herself to go to the emergency room, physicians discovered a tear in her uterus and a large hematoma containing a fetal head. The woman required an emergency hysterectomy. In another case, a clinic physician allowed a patient to bleed for three hours, yet a clinic employee testified that the physician would not let her call 911 because of possible media involvement. In the end, the employee called anyway and emergency room personnel discovered that the woman had a perforated uterus and a needed a hysterectomy. A different physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In her experience, that situation “puts a woman’s health at an unnecessary, unacceptable risk that results from a delay of care… and a lack of continuity of care.”

The dissents agree on this: the plaintiffs lack standing. (The dissents, by the way, are all written singularly, although Justice Kavanaugh concurs with most of Justice Alito’s dissent.) The law is in place to protect the health of women who seek abortions—that is the state’s interest. If there is an undue burden placed on women in order to accomplish that interest, then those women are the damaged party and entitled to be plaintiffs against the state. But there are no such women. Nor were there, I might add, in Texas.

This is a third-party complaint—from abortion providers, whose interest is in avoiding regulation on them that could cost them money or inconvenience.

Justice Gorsuch, in his dissent, points out,

The plaintiffs before us are abortion providers. They do not claim a constitutional right to perform that procedure, and no one on the Court contends they hold such a right. Instead, the abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.

The Court’s granting of standing in these circumstances is extraordinary in its wrongness. Justice Alito, in his dissent, does not mince words about the political reason:

And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

There are three Louisiana abortion providers in the suit, claiming to be the only providers available, comprising six doctors. And yet, even as the suit was underway before the Court, two additional providers made themselves known—but their existence was ignored in the plurality’s ruling on the case.

The doctors at these clinics were required to get admitting privileges at nearby hospitals. They claimed they made an effort but couldn’t.

Figure 1 from the SCOTUS ruling, page 32.
The numbers in parentheses are the estimation of abortions
done by that abortion doctor annually. 

As Justice Alito points out in his dissent, the plurality depended on the testimony of people who had an interest in not getting privileges:

[T]he factual finding on which the plurality and THE CHIEF JUSTICE rely—that the Louisiana law would drastically reduce access to abortion in the State—depends on the District Court’s finding that the doctors in question exercised “good faith” in their quest for privileges, but that test is woefully deficient….

[I]t primarily rests on the anecdotal testimony of June Medical’s administrator. Neither the plurality nor THE CHIEF JUSTICE explains why it should be accepted….

[T]he doctors had everything to lose and nothing to gain by obtaining privileges….

If these doctors had secured privileges, that would have tended to defeat the lawsuit….

[T]hey had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

I notice in the Texas case as well, the determination wasn’t on whether the law placed an undue burden on women, but on whether it placed a burden on abortion providers, who would then of their own volition stop providing services. The law didn’t shut down the clinics; it required an improved standard, which the providers could choose to meet or not. It they chose not to, then was it incumbent on the state to go out and help recruit providers who would meet the standard? That seems ludicrous. And yet, here we are.

The Whole Woman’s Health case added a burden on states to do some kind of balancing act that was not required in Casey. Justice Alito suggests,

The Court should remand this case for a new trial under the correct legal standards. The District Court should apply Casey’s “substantial obstacle” test, not the Whole Woman’s Health balancing test. And it should require those challenging Act 620 to demonstrate that the doctors who lack admitting privileges attempted to obtain them with the same zeal they would have exhibited if the Act were in effect and they stood to lose by failing in those efforts.

To summarize,

·         The case should never have come forward, because the plaintiffs lack standing.

·         The dependence on the anomalous Whole Women’s Health balancing standard was incorrect, as it overrode the longer-standing Casey test.

·         The case overlooked the benefits of the law for women’s health, a state interest.

·         The case assumed, without question, as fact that the doctors in question could not meet the requirements, and therefore no doctor could be found who could.

There are more. But what fascinated me was Justice Thomas’s dissent, which was very frank:

The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

And,

But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

He’s not finished. He lays out a pertinent history lesson for us—and for his apparently ignorant colleagues in the plurality:

The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless….

Just eight years later, the Court utilized its newfound power in Roe v. Wade (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”…

In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.

You go, Justice Thomas!

Justice Clarence Thomas
image: J. Scott Applewhite/AP Photo, found here

In the Texas platform this year, our district is proposing a plank to simply outlaw abortion, in one single bill. No skirting around limits that, on their face, concede the “right” to murder some innocent life under some circumstances. We’ll see how that goes at the convention. But it’s time to stop compromising with evil and boldly go where we should have gone all along.

I’ve already written too much. But I want to add with this opening statement from Justice Gorsuch’s dissent:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade (1973), is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.

Getting It Wrong

What happens when the Supreme Court gets it wrong? Because that happens.

Earlier this week was the 10^th anniversary of the notorious Kelo v. City of New London decision. That was the one that defined imminent domain requirement of “only for public use” to the endlessly broad possible future “public benefit.” So, if a city decides it would rather get the tax money from a mall, it could seize the property (compensating at current market rate) and sell it to a preferred developer who might provide more tax revenue.

All of us regular thinkers could see clearly that the purpose of imminent domain should be something necessary, such as a road. It should be used carefully and sparingly, not extending beyond necessity, and always with the value of the land at its highest (if the road would make the property more valuable, then taking it before the value is added and depriving the owner of that increased value would be wrong).

Taking property from one owner to confer it to a preferred owner is theft. Pure and simple. It wasn’t just misconstruing the term “public use”; it was also a matter of disregarding all the Court’s precedent on property rights. It so thoroughly threw out the long-held understanding of property rights, as Sandra Day O’Connor said in her dissent, only a really “stupid staffer” could fail to come up with some “public benefit” from any government taking. (There’s a good review here.)

There was public outcry—across party boundaries. And some states have amended their constitutions to address the matter, to avoid such public seizures. But the Court has not done anything to reverse itself.

January 22 of this year was the 42^nd anniversary of Roe v. Wade, which found in the “umbras and penumbras” of the Constitution a right to privacy that is construed to guarantee a woman a right to kill her unborn child. It acknowledged that a state could have an interest in its citizens, including persons-in-being, which can be at odds with the between-the-lines right to abortion. So that led to the clarification referred to as the undue burden rule. 

Following that debate-ending SCOTUS ruling, no state has been able to outlaw abortion. But there have been some movements toward progress. Pro-abortionists are revealing themselves to be callous and cruel when they oppose each and every measure. As science becomes better able to show details of a growing fetus, laws in several states—still meeting the undue burden requirement—have managed to curtail partial-birth abortion, and even third-trimester abortions, or abortions after 20 weeks, the point at which pain is proven to be felt by the unborn. Eventually this abomination will be seen for what it is—no thanks to the Supreme Court.

Today we add to the list of SCOTUS errors. The King v. Burwell decision came down, a 6-3 decision claiming that a state exchange is equivalent to an exchange through the secretary of Health and Human Services. The law doesn’t say it. The law clearly says otherwise. But Justice Roberts, in his opinion, even though he could see that the law didn’t say what it needed to say, wrote that we should keep the law from failing.

Here is Justice Roberts’ explanation[i] of the situation (section C):

The Act requires the creation of an “Exchange” in each State where people can shop for insurance, usually online. 42 U. S. C. §18031(b)(1). An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Ibid. Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.” §18041(c)(1).

The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added).

So, there are two types of exchanges, a state exchange and an exchange set up by the secretary of Health and Human Services. The law is clear that those who qualify for a subsidy must fit the requirement of income between 100-400% of poverty level and sign up through a state exchange. The law was written that way to pressure states into setting up the exchanges. No state exchange, no subsidy for citizens in need. It was assumed very few if any states would refuse to set up the exchanges. But they were wrong. Many states refused—34.  In addition to those refusing, some tried and failed. Several more are still trying but are on the verge of total collapse. So the secretary of HHS ended up providing exchanges for far more than expected.

And that’s why they (the IRS, directed by the administration) decided, even though the law doesn’t provide for it, to subsidize any low-income users of any exchange.

Roberts had a misguided purpose—again. He thinks it might subject the Court to disrepute to throw down a law that Congress duly passed—even though, if the Court has a purpose beyond being the final court of appeal, it’s purpose is to throw down as unconstitutional any law Congress passed that doesn’t meet the limited government standards clearly laid out in the Constitution. He knows it’s bad law. He says,

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).

So, knowing the law is faulty, he says, “But that does not allow this Court to rewrite the Act to fix that problem.” And yet “fix” it (i.e., put in “the fix,” meaning “to influence the outcome or actions of (something) by improper or unlawful means: fix a prizefight; fix a jury)[ii] is what he does.

If there is a bright lining to this dark historical cloud, it is Justice Scalia’s scathing dissent, joined in its entirety by Justices Alito and Thomas. Scalia pulls no punches, and he doesn’t beat around the bush. This is his first paragraph:

Justice Antonin Scalia
(photo by Pete Marovich,/ZUMAPRESS/Newscom)
found here 

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

This exasperated explanation is on his second page:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.

If the subsidy would be given for any exchange, then would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.

Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Whatever else follows this decision, this is the precedent that was set: words in law no longer have meaning.

It used to be that a court would look at the clear understanding of the text—what the words mean to reasonably educated people. And if that left something ambiguous, then the court would look at context, to see if the ambiguity can be cleared up elsewhere in the law. And sometimes a law would define a term in a specific way—that would be designated in the law. (Example: for the purposes of this law, the term “duck” shall be referred to as “goat.” And then, for that law only, even if nowhere else, a waterfowl we normally refer to as a duck would be referred to as a goat.)

Roberts actually claims that he is viewing the term “state exchange” in the larger context, but Scalia schools him on that. Chief Justice Roberts just got told, “You keep using that word—state exchanges. I do not think it means what you think it means.”

One difference between Roberts and Scalia is that Roberts thinks he should “help” the lawmakers by ruling, “let’s pretend you wrote it better.” Scalia does the more natural thing: the law says what it says, and that’s all it can do. If you don’t like it, the legislature is free to change the law. As Scalia so aptly puts it:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And,

They made Congress, not this Court, responsible for both making laws and mending them.

Scalia may be writing the dissent, but his lines will be most memorable. Maybe especially this one:

We should start calling this law SCOTUScare.

Son Political Sphere suggests it could aptly be called RobertsCare, since it is his two bad Obamacare rulings that leave us wondering what this administration is blackmailing him with.

Scalia adds,

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

If the Chief Justice had as his purpose retaining respect for the Court, this decision was a big FAIL. His legacy will be that any time there’s a dispute over the meaning of words in law, the Roberts precedent will be cited: if it doesn’t mean what it says, we will say it means what we want it to mean.

That may be many ridiculous things, but it is not blind justice.

No good comes from a bad Supreme Court decision. Much bad can come from it. Hold onto your hats; we’ll have more to face Friday and Monday, the final days of this Court session.

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[i] http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

[ii] The Free Dictionary by Farlex, definition 2c:  http://www.thefreedictionary.com/fix

On the Court

During last week’s look at the Best of the Spherical Model (Part I, Part II, and Part III), I left out one piece that is actually among the most re-read: Supreme Court Voting Patterns. My son Political Sphere had collected data to look at the Supreme Court’s voting record up to the point just before the Obamacare vote. It was topical, which is why I didn’t include it last week. But enough has come up about the Court this week that I’m thinking it would be good to update the voting record chart in the near future.

In the meantime, a couple of recent rulings are worth looking at.

Monday, June 16, the Court ruled on an Arizona Voter ID case, about whether a state can require verification of citizenship for voter registration when federal law does not require such verification. The short answer you’re hearing in the news is that the Court favored the federal government’s view, and limiting states. But the more complicated, actual ruling is that on one of five issues (the least relevant), the Court sided with the federal government, but on the other four issues, the Court verified states’ rights—which is a good thing. J.Christian Adams, former DOJ attorney and author of Injustice, has been working with voter integrity issues for a long time. His assessment is an excellent summary.  The Heritage Foundation also covers the ruling.

Back on June 3^rd, the Court ruled on the collection of DNA evidence. Justice Scalia dissented from the majority—along with three of the liberals on the Court. Nevertheless, I think as usual Scalia is right.

Here’s the scenario from the case: a man was taken into custody for assault in Maryland in 2009.  DNA taken during his arrest for the assault became evidence in new charges against him from a 2003 rape, because his DNA matched a rape kit kept from that earlier case. An evildoer is caught; that should be a good thing.

Here’s the problem: the Court ruled that DNA could be taken at the time of arrest, because it is essentially an identifier, like fingerprints. What they could foresee was that, if a prisoner needed to be moved, the DNA would prove that the correct person was being transported. But that isn’t actually how ID-ing a prisoner would work. His fingerprints would indeed be a quick and accurate identifier. Taking a fresh fingerprint and using a fingerprint database would take no more than half an hour. But taking a DNA sample for that purpose would never be done. The sample would need to go to a lab, where it could take, at best, hours (and more likely weeks) to compare to the existing record of that prisoner’s DNA. In the case in question, the DNA wasn’t looked at until four months after arraignment.

And even then it wouldn’t be infallible. DNA results show whether there’s a high likelihood that two DNA samples match. It’s a matter of probabilities, not certainty. We can’t say no two humans have the same DNA. Identical twins occur in about 11 births per thousand, and they share identical genetics. But even identical twins have different fingerprints.

So, for greater expense, longer time, and less accuracy, why use DNA instead of fingerprinting?

The Court seemed to agree that collecting the DNA for the purpose of using it as a fishing expedition to tie the suspect to other crimes was not right. The DNA, when collected for use in the case where the person is a suspect is a reasonable gathering of evidence. But what if the suspect is exonerated of that crime? Should his DNA be kept, and used to compare to other crimes? Is he required to provide evidence against himself for unknown, unsuspected crimes, on the off chance that something might be found someday? The Court halfway said that couldn’t be the reason. But, if you think of the DNA not as evidence, but as just an ID, like a fingerprint, then it was OK. (And then, if it happened to be used in some other way, that wasn’t the Court’s concern.)

If one were to assume a corrupt government (just hypothetically speaking), it would be difficult and improbable for some official to place a political enemy’s fingerprints at a crime scene in order to frame the person. But placing DNA at the scene could be in the form of a hair, a fingernail, a bit of saliva left on a drinking glass. The person kind of has to be there to leave his fingerprints, but he doesn’t necessarily have to be there to have his DNA placed there.

Even without a corrupt government, we do have a fourth amendment protection that is at issue. As Scalia summed it up: "Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail." Yes, those amendments—they keep coming up.

Meanwhile, in a slightly related issue, Senator Mike Lee (R-UT) has just come out with a book, Why JohnRoberts Was Wrong on Obamacare.  He lays out the case that the Chief Justice changed his opinion midstream concerning Obamacare, coming up with the tortured ruling that it was OK if it was a tax, which it was declared not to be by federal government lawyers on days it was convenient to say that, but declared as a tax—by the same lawyers on other days when that was convenient.

available here

I haven’t read the book yet. From what I’ve seen covered, I think it implies there may have been pressure on Roberts to change his opinion. Most of us who were looking on at the time thought that was the case. There was quite a lot of evidence, just in the way the dissent was written, as if it had been the majority opinion, that he had changed his mind. So the question we all had was why. I think we’d all still like to know: was Justice Roberts coerced? Were there threats to his reputation or his person or his family? Was he more subject than we thought to political pressure or the desire to be liked in Washington? We’d like to know, because his vulnerability to pressure, for whatever reason, coupled with the power to determine binding law, has consequences for all of us.

Even when our justices are wrong, we want their opinions to come from their best understanding of the Constitution, not some tortured effort to reach a pre-desired outcome.