SCOTUS End-of-Term Review

The typical SCOTUS term ends on June 30 annually. So I’m behind schedule in doing a review. However, there have been additional emergency rulings coming up every few days, so maybe that’s for the best.

The emergency rulings are mostly related to this administration’s immigration policies, those before the end of term and after. So we’ll take a brief look at some other cases first, and then look at some of the immigration-related cases.

US Supreme Court Building, from a visit in 2015

To read the full article, follow this link to my Substack.

Abomination in Our Nation

On Monday a draft opinion was leaked from the Supreme Court. Leaks from the Supreme Court are extremely rare, and in the past have been limited to someone saying what a final ruling outcome was going to be. There has never been a leak of a brief—in the entire history of the Court.

image of the Supreme Court leaked draft opinion
screenshot from Glenn Beck's Wednesday Special

 

The Betrayal of Trust

Justice Roberts verified on Tuesday that the leaked draft was authentic. He pointed out that it was still an early draft—it is from early February—and is part of how the Court works through their opinions; it represents neither the final opinion of any justice nor the final ruling. He also calls the leak a betrayal. There is speculation on what that means to the perpetrator when caught, but is likely to include firing at minimum, probably losing their law license for life, and possibly criminal charges for mishandling private court documents.

Law vlogger Robert Gouveia shared a couple of tweets that indicate the seriousness of this betrayal of trust. One is from SCOUTUSblog. It says,

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

Robert Gouveia shares a SCOTUSblog tweet
screenshot from here

The other tweet Gouveia shares is from @OrinKerr, passed on to him from @isamuel, who had clerked for Justice Scalia, who tells this story (which I found linked to here) of welcome day for new clerks:

But nothing will ever beat Justice Scalia on probably the first day that all four law clerks had started. He summoned us all in and said, “Welcome aboard. I’m really happy to have you. Here’s how I run my chambers. It’s an open door—if you need to talk to me about something, just come and talk to me.” And he said, almost with a hint of regret that he had to do this—obviously he was not that regretful, because he did do it—he said, “I want to just emphasize something, and I only want to say it once. If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Then he just let that hang there for a second, and moved on to other topics. It wasn’t said in a mean way, but it also wasn’t said in a way that admitted the slightest misunderstanding. He certainly did not sound like he was even a little bit kidding. Again, at the time, I’m a twentysomething-year-old lawyer. This is Justice Antonin Scalia. It does not require his power to ruin my career. The amount of power in his pinky finger was quite sufficient. So as a result, I was never tempted to betray his confidences and I doubt I ever will be. He only said it once, and other than that was quite a genial boss. But in that one moment, you really got the sense that he was serious.   

If each justice has about four clerks, the number of people with access to the document was quite limited. It should not be impossible to discover who leaked it. Trust is gone, severely limiting the normal functioning of the Supreme Court, until the leaker if found and removed.

Oddly, the story being talked about in media and by the Biden administration is ignoring this man-bites-dog level of out-of-the-ordinary leak. It is concentrating only on the contents of the leaked document.

 

The Pressure Campaign

The document is the draft majority opinion, authored by Justice Samuel Alito, on the Dobbs case. That’s regarding the Tennessee law prohibiting abortion after 15 weeks. Tennessee asked the Supreme Court to consider reversing Roe and Casey as they determine whether the Tennessee law was constitutional. The opinion is close to a hundred pages long, carefully and accurately detailing the wrongness of Roe and Casey.

This should be no surprise to anyone. First of all, the Court chose to take up the case; that showed a willingness to consider the issue. Second, we all heard the oral arguments in December. Third, we have known Alito to be a reliable conservative on the Court likely to go this direction.

The process of the Court is to circulate and exchange opinions. Then the other justices decide whether they concur in full or in part. They may like an outcome but prefer to emphasize a different line of reasoning. Or they may dissent, and then write their dissenting opinion based on refuting the arguments in the majority opinion. Or they could be persuaded by the arguments another justice makes and actually change their opinion.

What the leak has led to, however, is an opportunity for the pro-abortion crowd to stir up emotion, fear, and pressure—in the hopes of persuading a justice or two to change their positions—more out of fear than persuasive argument or even a sense that the country is against such a ruling. This includes fear for their lives and the lives of their families—which means that people whose goal is to kill as many babies in the womb as they possibly can might also be willing to kill older humans.

By the way, the American people may have some mixed ideas about whether Roe should be overturned, but they are definitely not in step with this pro-abortion-under-all-circumstances-up-until-birth mob that’s doing so much wailing and teeth gnashing. Stu Burguire shows some statistics on his show from polling. 

stats shown on Stu Burguiere's show
screenshot from here

more polling data shown on Stu Burguiere's show
screenshot from here

What If…

If Roe and Casey are overturned, what does that mean? It means that, because the Constitution is silent on abortion, it is a decision to be left to the states. I believe there is—and always has been—an argument on the pro-life side that the life of the pre-born deserves protection under the Constitution. There are places in law where that life is protected, and taking that life is punished as murder; but calling it abortion and pretending that it is a woman’s healthcare choice has muddied the clear understanding. So now it is better to give the decision back to the states than to dictate from Washington.

If states are to be able to make the decision, they will make varied decisions—as do most of the nations in the world, only a few of which (the ugliest regimes, as it happens) allow abortion as freely as the US has.

We know much more about the growing fetus than was known at the time of Roe. That it is a life, well before viability. Viability is getting ever earlier. And, in fact, there’s already a heartbeat as early as six weeks. Logically, biologically, there is a growing person with their own identifiable DNA from conception on. Growth is a sign of life. And the DNA shows it is not only human life, but a unique individual person.

Casey set aside the 3-trimester/3-rules system invented in the Roe decision, giving a nod to the viability standard but mostly ignoring the “when does the life of a baby become important?” question and switched to the “undue burden” standard. States could regulate abortion—as long as they didn’t create an undue burden on that woman who was planning to kill her pre-born child.

Without Roe and Casey, states where people value life will become free to limit or eliminate abortion. States where people want to keep killing the pre-born will be able to do that. California has already volunteered itself as an abortion destination, with free flights to their state to kill your baby. New York is likely to continue killing more babies than are born. No one will be more than a two-hour plane trip from an abortion clinic. And you can assume there will be nonprofits willing to pay for those trips. So, all those cries of desperation and deprivation for women are unfounded.

It's hard to say whether this change will prevent any abortions. It certainly won’t prevent any of the determined ones. But maybe it will prevent some of the hesitating ones—the ones where a young woman is scared and uncertain and asks for help and relief, and instead of getting good information and encouragement to seek alternatives, she is pushed into having an abortion. Those might be prevented.

When the mobbing crowds show up with their coat hangers and printed posters to protest in front of the Supreme Court, they’re hyperbolic and emotional—on purpose. For what a Disinformation Governance Board ought to see clearly as disinformation, but of course won’t.

Elizabeth Warren, in a raging rant about Roe,
made the rounds, but I go this screenshot
from Glenn Beck's Wednesday special

What was Elizabeth Warren so suddenly upset about in her major meltdown? She has known since early December that something like the Alito draft would be circulating within the Court, and that a ruling could go that way. She’s not shocked. The outrage is dialed up on purpose.

There’s a larger goal. Use this issue. Use it to try to push forth legislation to “codify Roe.” That’s the claim, although they’re throwing out that “viability” standard entirely and planning to enforce abortion up to the moment of first breath outside the womb—or maybe beyond. They’ll push that through by claiming it’s about a woman’s body—ignoring the little person whose life they’re snuffing out. And they will need to eliminate the filibuster in order to push through something so at odds with what most of the American people want. And, since they’re eliminating the filibuster, then they can push through other things, like court packing; i.e., adding more partisan justices to the Supreme Court.

They already have the legislation ready for a vote next week. That doesn’t mean they’ll get it. But it does mean they had this planned for a while and were waiting for the right moment.

Yesterday the ACLJ mentioned on their podcast that Politico, the outlet that leaked the memo, had given the administration a heads up about their plan days ahead of Monday. Probably they were asking for comment for their article. But that advanced notice is why you could see printed signs and large crowds appearing outside the Court building almost immediately after the news came out.

 

The Ruling Is Just the Beginning

If the SCOTUS ruling goes through as we hope, then the battle—or rather many more local battles—will begin in the states. In some states that means outlawing most or all abortions. Here in Texas we have a trigger law, saying that, if Roe is reversed, abortion is illegal in Texas except to save the life of the mother. This trigger law wasn’t actually necessary, because Texas law prior to Roe is still on the books, and that outlawed abortion in the state.

Some other states may limit abortions and regulate clinics. Other states, unfortunately, will allow them under all the conditions they have been doing them for some time—or maybe worse.

But it would take the condemnation for this abomination off the American people as a whole. Some states would remain condemned by God. But some states—and the people in them—could fight successfully for the life of the not-yet-born. And we could fight for the souls of women in crisis, who don’t want to be Moloch worshippers, but are led to that path with the lie that it’s easy and there’s no other choice.

Glenn Beck shared this tweet and image of Moloch on his
Wednesday special. Moloch worship meant they could
engage in any debauchery they wanted, and all they had
to do was sacrifice their children. Sounds familiar.

Pro-abortion people are not pro-choice. They do not want any state to make a different choice. They do not want any woman to get the information that might cause her to make a different choice. Pro-abortion people want to force their depravity on all of society—and coerce society to pay for the abomination with their taxes. This is an all-out war of evil against good. Spoiler alert: Good wins. But in the meantime there’s going to be a crazy amount of evil thrashing around in desperation. That’s what we’re seeing.

Maybe This Will Be the Year

This past weekend was the annual March for Life in Washington, DC. There’s a different air this year. There’s hope, almost anticipation, that this might be the last year that the March goes on with Roe v. Wade as the law of the land.

March for Life 2022
Getty image found here

Marjorie Jackson, at the beginning of the prolifecon.org broadcast of the Family Research Council, done parallel to the March for Life, gave this introduction:

Today is the 17th Annual ProLifeCon Digital Action Summit here at Family Research Council. As well as the somber anniversary of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion on demand through nine months of pregnancy. Thank you for joining us as we fight for the unborn. This year the March for Life feels a little different. This could possibly be our last year under Roe v. Wade legalized. Hope is in the air.

Kirk Cameron, actor and Christian, was at the March for Life and gave an interview to Fox News,which was passed along by The Daily Wire.  He said, “I think that we’re at a tipping point. I think that the tide is turning, science is making it more and more difficult for us to pretend like it’s not a baby in the womb. We know that it is.” Cameron's wife was adopted. Their first four children were adopted. They’ve been on the side of life a long time. As he put it, his wife—and each of those first four children—were “one doctor appointment away from not existing.” He adds, about his wife, “She was not a mistake; she was a miracle.” His whole family exists because mothers chose life.

He also thinks there’s a sea change happening in the culture. He says, “Even in Hollywood, there are more and more people who are embracing the idea that life is a gift from God.”

Some of the optimism this particular year stems from the oral arguments before the Supreme Court in early December. We went through some of the details then. But as Mary Zach, co-host on the ProLifeCon broadcast, summed it up: “It is about changing hearts and minds as well.” Maybe the law is ready to change now, because the people are ready to change. Not all people, but a growing majority.

Katherine Beck Johnson, Fellow for Legal and Policy Studies at FRC, was given time on that broadcast to offer an overview of what Dobbs v. Jackson was all about.

Katherine Beck Johnson, ProLifeCon broadcast
screenshot from here

KBJ: Dobbs is an incredibly consequential case. It is the biggest abortion case of our generation, the biggest abortion case since Casey in 1992.

Mississippi passed a 15-week abortion ban. This is by no means a radical pro-life law. But it was struck down as it is unconstitutional under Roe, which prevents any sort of pre-viability ban on abortion. And this was struck down at the district court and the 5^th Circuit as unconstitutional. Mississippi then petitioned the Supreme Court to take the case.

Now, the Supreme Court could have just issued a statement saying, "This is clearly unconstitutional under Roe. We agree with the 5^th Circuit.” But they took the case, signaling they might be willing to do something to alter abortion jurisprudence in America.

It was then taken up another notch when Mississippi filed their briefs, and they didn’t just simply ask the Court to uphold their 15-week ban. They went after Roe. They called Roe out for what it is, a disgrace to our nation and to our constitutional law. And they requested that the Court overturn Roe. So, therefore, the case now really before the Supreme Court is whether or not Roe should be overturned and abortion should return to the states. So, like I said, this is a hugely consequential case, and we look forward to the decision that comes down in, hopefully, June.

Later in the discussion, she covered more details of the justices’ questions, and why we have reason to be so hopeful:

KBJ: While it’s hard to always read the tea leaves of what the justices will do from oral arguments, we took a lot of encouragement from the questions being asked, especially from Justice Roberts, who has become quite the swing vote. He really talked about and probed, well, isn’t America an outlier in our abortion jurisprudence? Why are we just in the camp of North Korea and China in our protections of the unborn?

Justice Kavanaugh, who’s also become another swing vote, said himself, "Well, shouldn’t this just be left up to the states?" He said that in response to a growing movement within the pro-life movement that the unborn are actually protected under the 14th Amendment, and that the Constitution forbids abortion, and this should not be left up to the states…. So, we really particularly look to the swing voters on the Court and what they were saying.

And then Justice Alito, who basically closed it out, talking to the United States Solicitor General, Elizabeth [Prelogar], who is of course advocating that the Mississippi law be struck down, and as she was continuously talking about the rights of the woman, he said boldly, “Well, doesn’t the fetus have an interest in living?” And I thought that was just so profound, that here we had a justice willing to say, “What about the rights of the unborn child?”

Another guest on that broadcast was pro-life activist Alyson Centofonte, who had MC-ed the event in front of the Supreme Court during oral arguments. She described some differences in the crowds:

Alyson Centofonte, ProLifeCon
broadcast, screenshot from here

No one [on the pro-abortion side] actually had a very empowering message of supporting women and moms and families. There were no children there that I saw. There were no dads that I saw.

On our rally we had female legislators with their husbands and babies in tow. It’s very empowering to see.

So, I think the shift that is taking place is that the pro-life movement has been so successful at having a consistent message that women and families should be supported in law and society. And that’s really refreshing to a young woman who’s in an unplanned pregnancy and scared. Because, we need to hear, we all need to hear that, “You can do this; we will be with you; we’ll stand with you.” That’s what the pro-life movement says: “We will stand with you.” The other side says, “You’re on your own. Take care of this, and get back to work, or get back to whatever you’re doing.” We want to walk women through pregnancy and motherhood. And you saw that. You saw that at the Court, and you’re seeing it in the pro-life movement now.

If Roe gets reversed, it doesn’t abolish abortion; it returns the jurisprudence surrounding abortion to the states. During the intervening years, the rationale for recognizing the fetus as a living human being has only grown. So in many states that will mean real progress for life.

In South Dakota on Friday, in concert with people gathering in Washington, DC, for the March for Life, Governor Kristi Noem announced two pro-life bills. One would ban abortions after the detection of a heartbeat (similar to the Texas law). The other would prohibit telemedicine abortions in the state. She said, 

We hope that this year’s March for Life will be the last and that the Supreme Court will finally protect every unborn life. But until that comes to pass, these bills will ensure that both unborn children and their mothers are protected in South Dakota.

Governor Kristi Noem's tweet on January 21, 2022
image found here

Family Research Council President Tony Perkins, in a letter attached to their fundraising, describes much of the progress: 

FRC’s influence with state legislators this past year has been unprecedented. During the week of the Dobbs case hearing in early December, FRC leaders and experts hosted more than 120 state legislators from 39 states at our largest-ever summit designed to advance pro-life protections to the states.

Such mobilization is essential right now. In the event Mississippi’s pro-life law is upheld, it likely means states will have greater flexibility to set policies to protect pre-born lives.

Our experts are equipping frontline conservative legislators with scientific facts regarding life in the womb—along with moral and ethical reasoning that can inform every policy battle.

In recent months, our team launched an interactive tracking website titled “America’s Direct Deposit to Planned Parenthood,” revealing the outrageous amount of US Taxpayer dollars the abortion industry giant receives every year.

From our detailed policy research to our “friend of the court briefs”—including one we filed in support of Mississippi in the Dobbs case—these resources are informing policymakers at all levels.

He adds a request for prayer,

As this new year begins, I hope and trust you will commit to pray for our leaders—particularly those making life-or-death decisions on the Supreme Court….

God calls us to be intercessors in this hour. Intercession means to intervene on behalf of another, or to put it another way, to stand in the gap.

Will you commit to stand in the gap for our nation?

Let us never neglect to start and end the day on our knees, crying out to God for truth to prevail, for innocent lives to be saved, and for the Kingdom of God to advance.

Being an intercessor starts with prayer…but, in my experience, it doesn’t end there. That’s why our effective strategies including mobilizing Americans like you and informing policymakers—to shape the future of America and save lives in the womb.

That’s their organization’s goal. And it’s a good one. The call for the rest of us, besides prayer, is to inform, teach, help, support, and make it easier for individual women in distress to choose life in a world that has been trying to convince them not to.

I listened to a podcast the other night [Y Religion, episode 48, “The Complementary Nature of Mothers and Fathers” with Dr. Jenet Erickson], about research surrounding motherhood. Worth a listen. One detail was that, biologically, the growing baby and mother interact in ways we never knew. They share health support for one another. They exchange cells. They are forever part of one another. Once the baby is born he seeks his mother; he knows her voice and recognizes her. She is his preferred human for probably the first eighteen months, when he’s ready to turn outward toward father and others. It’s a profound honor to be so significant to another human being. If a woman truly knows that child within her, knows he is alive and interacting with her already, would she ever choose anything but life? The more we learn, the more life makes sense.

This year just might be the year we can more freely help all women choose life.

Big Week for News

In preparation for what I would write about today, I started collecting some of the big stories. I don’t know when there has been so much big news happening day after day. So I had a good start. And then, early this morning, I got a similar list passed along to me, including all I had, plus a few. Some I can’t verify yet. I and people like me just want to know, Do we get to keep our country and our freedoms? We’re interested, so we keep searching for true news, wherever we can find it. And right now the news is coming at us like a firehose.

 

The Texas Lawsuit

meme found on Facebook

The biggest story, especially living here in Texas, is about the Texas lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin, filed late near midnight Monday.

Texas Attorney General Ken Paxton’s Office put out this statement: 

“Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together. Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections,” said Attorney General Paxton. “Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct this egregious error.”  

Back in September we had a series on the Constitution. When we covered Article 3, the Judicial Branch, we noted that in Section 2, the Supreme Court is not just the ultimate appeals court. In certain circumstances it is the court of original jurisdiction. One such situation is when one or more of the states is a party in the suit.

So this Texas case goes directly to the Supreme Court. No stops along the way for a lower court to hear it or reject it. This case is “outcome determinative,” meaning that this one case could determine effect on the outcome of the election, since enough electors are involved. Whereas cases involving individual states would not, by themselves, determine outcome, because their electors alone would not make enough difference.

However, the Supreme Court is not being asked to determine the winner of the election. If it determines that the states indeed broke the law in ways that affected Texas and other states, the Constitution outlines possible alternatives. The first is for those state legislatures to meet and select a slate of electors. They would be free to select either candidate, although all of the states in question (plus AZ and NV, who are also swing states with voter fraud issues) have Republican-majority state legislatures.

If states fail to send electors and neither candidate thus gets 270 electoral votes, then the alternative approach is for the US House to vote—with a single vote from each state, based on its majority delegation. Timing changes the exact numbers, because Republicans have gained in the November election. If such a vote happens after seating the new Congress, then Republicans have 27 to Democrats’ 22, or something similar. If done with the existing Congress, Republicans still lead by a couple.

As of yesterday, 17 states had signed on to the Texas case. Today I have heard the numbers 18, 19, and 25, but I haven't been able to verify more than 17. Also, President Trump is joining in this lawsuit as a direct interested party. There are various ways to join the suit—to become additional equal plaintiffs, or to offer amicus briefs, and probably other ways. I don’t know which states have done what. Arizona has also offered an amicus brief stating that they believe the Supreme Court must take the case, since there is no lower court to remand it to. Justices Alito and Thomas seem to agree, based on what they've said previously.

The rather beautifully written first couple of pages
of the Bill of Complaint section of the Texas lawsuit

SCOTUS has asked for responses by this afternoon (Thursday), so we should know what those contain by Friday.

Here is the lawsuit for you to read. 

There’s plenty more for you to read or view. Let's start with this one:

·         “Texas is Suing 4 States for VOTER IRREGULARITIES and the Suit is AWESOME!”  Viva Frei Vlawg, Dec. 8, 2020.   

Frei starts with this:

And let me tell you something: This is a well-drafted lawsuit. It is an election lawsuit, and the next time someone tells you that there were no voter irregularities anywhere in this election, tell them to read this lawsuit or watch this vlog, because they simply don’t know what they’re talking about or they work for CNN.

He adds that it is “challenging the Supreme Court to take action on the issue.” And he points out that the lawsuit focuses on these states’ breaking the law—both their own state laws and the US Constitution. Then it lists the damage done to faith in the outcome, using the most provable of claims that require only known data, not speculation.

One main point is that each of these states changed voting laws without the legislature; election law is required by the US Constitution to be set by state legislatures. I think in one case a state had a legislative change, but the change went directly against that state’s own constitution.

 The ACLJ podcast has updated info on the case at least daily. Here are those since Tuesday:

·         “Breaking: Texas Sues PA, GA, MI, & WI at Supreme Court” Official ACLJ, Dec. 8, 2020. 

·         “Breaking: SCOTUS Orders Response to Texas Lawsuit” Official ACLJ, Dec. 9, 2020. 

·         “These Are the Legal Arguments - PA, WI, MI, & GA Ordered to Respond at the Supreme Court” Official ACLJ, Dec. 9, 2020. 

·         “BREAKING: President Trump and 18 States File at Supreme Court” Official ACLJ, Dec. 10, 2020. 

Joshua Philipp of Crossroads has been covering the Texas case in his daily Q&A livestreams. Here’s the one from Tuesday, when the story was breaking, and then several print stories:

·         “Live Q&A: Could Texas Break Election Deadlock?” Crossroads with Joshua Philipp, Dec. 8, 2020. 

·         “Supreme Court Puts Texas Election Lawsuit on the Docket” by Jacob Palmieri for The Palmieri Report, Dec. 8, 2020. 

·         “Texas Case Challenges Election Directly at Supreme Court” by Kris W. Kobach for Breitbart, Dec. 7, 2020. 

·         “Multiple States Throw Support Behind Texas’ Election Lawsuit Against GA, WI, MI, PA” by Ryan Saavedra for The Daily Wire, Dec. 9, 2020. 

·         “Sen. Cruz, Colleagues Submit Amicus Brief To Supreme Court in Brnovich v. DNC” Senator Ted Cruz press release, Dec. 7, 2020. 

 

YouTube Censorship

The next big story, coincidentally, is that YouTube announced a new censorship policy.

·         “YouTube to Delete Content Alleging Presidential Election Fraud” by Jack Phillips for The Epoch Times, Dec. 9, 2020. 

As of yesterday, any video that makes the claim that the election is not settled will be taken down for being false. They claim that, because December 8^th was the “safe harbor” day, a week before the scheduled Electoral College vote, when electors are appointed and given time to be prepared for their vote, that all is settled. Note that nothing in law mentions a “safe harbor” date. The date of the Electoral College vote is in statute but goes unmentioned in the Constitution. Only the January 20 inauguration date is mentioned (and that isn’t original either; it has been as late as April).

YouTube ignores all the cases that are making the electors in as many as six swing states unsettled. But if you argue with them, you will be silenced.

In essence, because their censorship policy coincides with the very substantial Texas case, they may be silencing news about an active, pressing, even historic Supreme Court case. 

There is quibbling, however. Joshua Philipp described it in his December 9 Q&A. He says, by his reading, it looks like you can say that Trump won the election. And you can say that there were voting irregularities. But if you tie those ideas together to say that voting irregularities mean that Trump really won the election, you will be censored.

On the R&R Law Group vlog  Wednesday, Robert F. Gruler tried to describe YouTube’s EDSA rules (educational, documentary, scientific, or artistic). YouTube’s example was that of a documentary that included speech by Nazi Germans; taken in context, that could be allowed, because it is used to show history, not to promote Nazism. Gruler, in applying that to the current election f-word (fraud), believes he can present information from original sources and offer some analysis of that, but would not be allowed to offer conclusions based on that analysis that go against YouTube’s assertion that the election outcome is settled.

That means you can still find videos on YouTube, ones where content producers are being very careful. But just in case, they’ll probably all tell you they’re pursuing other platforms, such as Rumble, Twitch, Facebook, Twitter, and probably others. I’ve been trying to navigate YouTube alternatives, but not yet successfully. I think that is going to be inevitable, though. I’ve been trying to learn to navigate MeWe and Parler as well, as alternatives to Facebook (see the story below), but I find them difficult and unsatisfying so far. Maybe it’s an age thing. I’m also aware that Blogger is a Google app, and that means I may eventually face scrutiny even here.

 

Facebook Monopoly

Meanwhile, Facebook is being forced to divest some of the companies it has acquired. By buying up any small competitor, it has essentially made itself a monopoly. The FTC lawsuit is asking that Facebook sell off Instagram and WhatsApp, and possibly others. The pressure for this case has been building for a decade, but only recently has scrutiny been paid to the control social media is exerting on the information people can get and share.

·         “Federal Trade Commission Calls for Breakup of Facebook” by David Ingram for NBC News, Dec. 9, 2020. 

·         “Facebook Looking at Fresh Antitrust Lawsuit from 40 States” by M. Corey Goldman for TheStreet, Dec. 3, 2020. 

 

Some Surprising News Stories

tweet image found on Facebook

Hunter Biden—Taxes and China Ties

·         “Hunter Biden tax probe examining Chinese business dealings” by Eric Tucker, Michael Balsamo, and Jonathan Lemire for Yahoo News, Dec. 9, 2020. 

·         “CNN Reporting About Confirmation of Investigation of Hunter Biden Is Laughable in Many Respects” The Spectator commentary, Dec. 10, 2020. 

·         Tweet by Kyle Becker (see right) Dec. 9, 2020

Eric Swalwell—China Ties

·         “House Intel Republicans Not Told about Eric Swalwell’s Relationship with Chinese Spy” by Steven Nelson and Ebony Bowden for The New York Post, Dec. 9, 2020. 

·         “FBI: Communist China Spy Infiltrated California Politicians, Including Russia Hoaxer Eric Swalwell” by Jordan Davidson for The Federalist, Dec. 8, 2020. 

Michigan State Rep Cynthia Johnson—Threats

·         “Michigan State Rep. Cynthia Johnson Disciplined by GOP for Facebook Video” by Emily Jacobs for The New York Post, Dec. 10, 2020. 

FBI Has Seth Rich Laptop

·         “FBI FINALLY Admits to Having Laptop of Murdered DNC Staffer Seth Rich, 1000s of Pages in Material” by Ben Sellers for Headline USA, Dec. 10, 2020. 

·         “HUGE: After 4 Years of Stonewalling Corrupt FBIFinally Admits They’re Holding Seth Rich’s Laptop” by Jim Hoft for The Gateway Pundit, Dec. 10, 2020.

China Influences Wall Street

·         “Beijing Manipulated Wall Street to Steer USPolicy, Until Trump Became President: Chinese Professor” by Cathy He and Linh Yun for The Epoch Times, Dec. 8 (updated Dec. 9), 2020.” 

·         “Revealed: How Trump Broke China's Control of America” Crossroads with Joshua Philipp, Dec. 6, 2020. 

 

Some More Election Sources

·         “Infographic: What Happened in Atlanta on Election Night” by Petr Svab for The Epoch Times, Dec. 9, 2020. 

·         “Election Supervisor Shows on Video How Dominion Software Allows Changing, Adding Votes” by Petr Svab for The Epoch Times, Dec. 10, 2020. 

·         Here Is The Evidence, a crowdsource data site for election info. 

·         “Richard Baris: Evidence of Voter Fraud Disappears from State Networks” Crossroads with Joshua Philipp, Dec. 8, 2020. 

Wars and Rumors of Wars

Some of the info in this section is certain, such as the transfer of power to Central Command.

Here’s an announcement:

·         “TRANSFER OF AUTHORITY OF MARFORNORTH FROMCOMMARFORRES TO COMMARFORCOM” Dec. 8, 2020.  

And here’s video of the ceremony

·         “U.S. Marine Corps Forces Northern Command Transfer of Authority to U.S. Marine Corps Forces Command” 

What I don’t know is whether that is significant in the ways people are hinting. The chatter added that there’s a lot of military air traffic, causing people to speculate all kinds of things. I’m guessing they think marshal law is about to break out, maybe. But you can read this and see what you think.

·         “ALERT! 82nd Airborne Division: ‘A STORM IS COMING’–That’s General Flynn’s Division” by IWB Investment Watch, Dec. 9, 2020. 

Another odd story came in a text passed along from a friend, but she could not identify the originator. Here are the main parts, copied as is:

The Kraken is SOF directed against domestic enemies who committed the election theft of 2020. This Kraken is needed because the CIA was running a rogue ELECTION THEFT!!!! operation out of our US Consulate office in Frankfurt Germany starting Tuesday, November 3rd, 2020. This is similar to the dozens of other election theft ops that the CIA has conducted in other countries around the world, very illegal then and now. Americans got a taste of what its like to be fraked by the CIA. Something many countries around the world already know. The US Army command was ordered by DoD and Trump to go in to Frankfurt and seize the CIA's own servers as evidence of the theft. The US Army did NOT raid Scytl's Frankfurt operation, that story is a ruse. The US Army seized American servers. We own them. We retrieved our own servers from a rogue CIA Election Theft Operation (similar to Hammer/Scorecard). Now President Trump has the servers….

This news will bring down the CIA, FBI, all of the major news organizations Washington Post, New York Times, Wall Street Journal, all of the television media, ABC, CBS, NBC, CNN, FOX, all of the tech titans Facebook, Twitter and especially Google. Foreign governments in Canada (PM Justin Trudeau), in United Kingdom (PM Boris Johnson), in France (President Emmanual Macron), in Germany (Chancellor Angela Merkel) and even the entire European Parliament will collapse. Trump has encrypted calls of John Brennan and Chris Way [sic] commiting sedition. Trump has encrypted communications between Speaker of the House Nancy Pelosi and Senator Chuck Schumer commiting sedition. Trump has information proving that dozens of Congress people, Senators and Governors all around America have committed election fraud and sedition. Trump has all the information and evidence needed to prove that CNN, FOX, Facebook, Twitter have all conspired to steal this election from the American people. President Trump has all of this information. How? Trump controls the NSA and the NSA has everything. Trump has everything because the NSA has everything. BOMBSHELL INDEED!

I’ve heard enough elsewhere that I believe the CIA servers were seized in Frankfurt. And quite possibly Kraken is the name of a military intelligence unit; I’m uncertain how to verify that, but I've heard it from multiple places. I don’t know about any of the rest of it. Is it wishful thinking that we could take down all the anti-America conspirators? Probably. But then, who knows? It’s the year 2020, after all.

Anyway, it has been a rather heavy news week. It’s still a challenge to wade through to find truth. But, until the censors become completely successful, at least we can still try to do that.

Try Reading the Constitution, Part IV

This is the fourth, and probably final, part in our series celebrating the US Constitution. We started this on Constitution Day, our intro celebration in Part I. Then we’re going through the first three articles of the Constitution, covering Article I, the legislative branch, in Part II; and Article II, the executive branch, in Part III.

Pull our your pocket Constitution and join us today, when we’re covering Article III, pertaining to the judicial branch, laying out the powers vested in the Supreme Court and lower federal courts. It’s a brief three sections. Afterward we’ll cover some of what’s not in there that maybe you thought was there. And we’ll talk about the current Supreme Court nomination, providing us a live history lesson.

Article III, on the Judicial Branch

Article III

Section 1 covers judicial service. It says judges serve “during good Behaviour,” meaning they can be removed if they do illegal or unethical acts. It also says they get paid for their service—an amount that won’t be diminished during their service. That is, they can base their decision on whether to accept an appointment to be a judge knowing what the pay will be, and not worry that they’ll have to later adjust to a lower amount—a worry that might influence judgment.

Section 2 covers which cases are handled by the federal judiciary. It says these will include cases relating to laws under the Constitution, which includes US laws and treaties. Also, they handle cases related to maritime law, and cases in which the United States is one of the parties. They’ll handle disputes between two or more states, disputes between a state and a citizen of another state, disputes between citizens of different states, disputes between citizens of the same state who claim lands under grants of different states, and disputes between a state or its citizens and foreign nations or their citizens.

For ambassador cases (including public ministers and consuls) and also cases in which a state is one of the parties, the Supreme Court is the court of original jurisdiction. For all other cases, it is considered an appellate court. And it is the highest court of appeal. Once they rule, that case is over.

Criminal trials require a jury, and they will be held in the state in which the crime was committed. In cases where the crime wasn’t committed within any state (e.g., in another country, on the seas), the trial takes place where Congress directs by law.

Section 3 defines treason against the United States. It “shall consist only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” This is the only definition of a particular crime given in the Constitution. That phrase “giving them Aid and Comfort” means it doesn’t have to require actually picking up a weapon of war to use against the US; it can include passing along secret information or supplying weapons, or in some other way helping the enemy in its goal of overpowering the United States. It doesn’t include speaking out in opposition to US policies, however, even when speaking that opinion helps the enemy; that is a freedom of speech right.

There’s a high bar for convicting a person of treason, requiring two witnesses to the same overt act, or an open confession in Court.

Congress gets to determine punishment. But, unlike tyrannies of the past, it cannot allow punishment of family or friends who weren’t involved in the crime; only the actual traitor can be punished.

 

What Else

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say the courts get to determine policy surrounding abortion—or policy surrounding any other issue for that matter. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to re-write a badly written law to make it better, or better able to accomplish a desired outcome.

What else doesn’t it say? Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison.

It is emphatically the province and duty of the Judicial Department to say what the law is.— Marbury, 5 U.S. at 177.

This happened even though Thomas Jefferson warned against it:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.—Thomas Jefferson

The Marbury case was good in that it declared that the Constitution had the force of law, not just a nice set of principles to set on a shelf and refer to as desired. But, the downside was that it gave the Supreme Court powers beyond just settling judicial cases; it empowered the Supreme Court to essentially judge the work of the legislature. As the saying goes, with great power comes great responsibility. The founders (was it Hamilton? Yes, in Federalist #78) assured us that the judicial branch was the weakest branch, and we should not worry about it becoming too powerful.

And what else doesn’t Article III say? How many justices there should be. We’ve traditionally had nine. It started in 1789 with 6. The court can function with fewer; for example, when a judge must recuse him/herself, or when one has died or stepped down and has yet to be replaced. When the court ends up with an even number, that does make it feel less settled, although in practice such an even split decision would sustain the lower court’s ruling, going against whichever side appealed.

Back in FDR’s day, he wanted the Supreme Court to rule a certain way on an issue, which they had pointed out was not something the Constitution gave the president the right to do. So he threatened to “pack the court,” which meant to add to its numbers, putting multiple people on the Court that he could count on to rule his way. It would have undermined the separation of powers and made the Court seem illegitimate. In order to prevent that, the Court cowed and ruled his way, favoring big government power (this included upholding the internment of Japanese citizens in Korematsu v. United States). I always think it’s unfortunate when decisions are made out of expediency, rather than truth and law (heads up to Chief Justice Roberts). I wonder what would have happened if everyone had acted with integrity.

What if the Court had ruled according to the Constitution? Then FDR follows through on his threat, but the Senate does its actual job of not consenting to any appointment determined to rule against the Constitution? Then FDR does not get to continue his social experiments, which kept the US in the Great Depression an unnecessary extra decade. Plus, we would have had a pattern for standing up to tyranny within the government, rather than acquiescing to it. Wouldn’t that have been better all along?

We’ve had a court packing threat come up again recently. Again by Democrats.

We have a current vacancy. The timing is unfortunate. Eighty-seven-year-old Justice Ruth Bader Ginsburg passed away September 18, within a couple of months of the presidential election. The Democrats insist that it’s wrong, and against the law, and disrespectful of the justice’s dying wish, to appoint a replacement to the Court before the election. And they threaten that, if the Republicans go ahead and do that, they will grant statehood to Washington, DC, and to Guam and Puerto Rico, with the intention of adding Democrat senators, and then they will add numbers to the Supreme Court, and they will prevent Republicans from ever gaining power again. In other words, they are threatening tyranny—because they say the Republicans are wielding their power in a less than courteous way. Hmm.

Is it wrong for a president to make an appointment to the Supreme Court in an election year? What has been done historically?

The SCOTUS Blog identifies all appointments arising in presidential election years since 1900. Each time the president made an appointment to fill the opening. 

Senator Ted Cruz on his podcast
screenshot from here

Senator Ted Cruz, on his podcast, says out of 27 times (or 29—he says 29 in a recording Ben Shapiro uses, and the math adds up to 29, so he may have misspoken in his podcast) that it has happened, each and every time the president has made an appointment. Here’s what he says: 

Ted Cruz: What does the Senate typically do? What does the President typically do? It turns out there’s an answer. This is not the first time this has happened. In our nation’s history… 27 times there has been a Supreme Court vacancy that has occurred during a presidential year. And presidents have nominated a justice to fill that vacancy 27 times. It’s what presidents do. It’s actually an easy decision for President Trump’s decision.

By the way, a total of 44 people have been presidents of the United States; half of them have faced this decision. Twenty-two. Half of the people who have served as President have faced this decision, and every single one has nominated.

Now, what has the Senate done? And this is where it’s important to understand why 2016 and 2020 are very different. What the Senate has done is very very different, depending on whether the Senate is of the same party as the President or a different party from the President. Those are radically different. So, of the 27 times there have been vacancies, 19 of them have occurred when the Senate is the same party as the President. Of those 19, the Senate has confirmed 17…. When the President and the Senate are of the same party, the Senate confirms them. On the other hand, what about when they’re different parties? That has happened 10 times in our nation’s history. That happened with Merrick Garland. Barack Obama was a Democrat. There was a Republican Senate. Of the 10 times that has happened, the Senate has confirmed the nominee only twice. 

So there’s a pattern that goes back two centuries.

So, the parties were different in 2016, when Barack Obama appointed Merrick Garland to replace Antonin Scalia after his death, about half a year ahead of the presidential election. In that year, there were two significant differences from this year’s situation: 1) Obama was not running; it was the end of his second term, so he was a “lame-duck” president at that point. 2) The Senate had a Republican majority; Obama did not have the votes to push through that appointment.

So, since it has been traditional and common, even expected that the President will appoint a replacement Supreme Court Justice, why are the Democrats this time claiming the Republicans are breaking the rules? Because they’re partisan, is the short answer. Add to that the rationale given by Senate Majority Leader Mitch McConnell at that time, saying it ought to be up to the voters to decide, by way of the election, since neither candidate was the one making the appointment. He may have meant it was because the parties were different, but it was interpreted as some new rule—a rule proposed, incidentally, by Joe Biden some decades earlier.

I thought that line of rationale was unfortunate in 2016. I was glad they didn’t actually confirm Garland; that would have added tragedy to the loss of Antonin Scalia. But Republicans should have been more honest about it. I would even have been OK with holding hearings and rejecting the nominee, although that wasn’t realistic, considering Kagan and Sotomayor had been accepted almost without opposition.

I believe a justice should only be allowed onto the Court if he/she understands the Constitution and abides by the actual law. We don’t live in an ideal world, however, so we have to use whatever power we have in order to preserve our Constitution and our constitutional republic form of government.

It would make absolutely no sense for a President who has a Senate in his favor to fail in his required duty to appoint just because the opposition says he’s disrespectful to do so. That’s ridiculous. It would be equally ridiculous for a Senate of the same party as the President to hobble themselves because the other side is calling them names—including hypocrite, because of the Garland situation and what was said then.

Can you imagine for a moment that a Democrat president, in his first term’s presidential election year, with a Democrat-led Senate, faces a SCOTUS opening and holds off on making an appointment because he/she might not be reelected? I can’t either. That would never happen. So they’re being disingenuous, at best. Remember, these are the people who called Kavenaugh a serial rapist, not to mention the pain they put Clarence Thomas through, and Robert Bork. These people have no right to determine etiquette among actual civilized people.

Funny thing about the threats to pack the court and expand the Senate: they made those threats months ago. They’re not the result of President Trump's appointing a justice at this time. That is their plan if they win the election, regardless of any action by Trump or other Republicans.

I don’t know much about the actual appointment, Amy Coney Barrett. Almost everything I’ve heard by conservatives is that she’s exceptional, bright, and a textualist (one who reads the actual meaning of the text of the law, rather than making up or construing its meaning), which was Scalia’s philosophy. One exception to that is Robert Barnes, who does a joint livestream with law vlogger Viva Frei on Sunday evenings; he sees her as less exceptional and more attached to stare decisis than constitutional conservatives would hope for. He thinks she’s a plant by the status quo types. I hope he’s wrong. Many people whose judgment I trust (Ted Cruz, Mike Lee, Ben Shapiro) say she is an excellent pick. I think she’s worth praying for, since she does appear to be religious and intending to live a life guided by God.

The Supreme Court should not be this crucial to our freedoms. A particular appointment to the Court should not feel like a matter of life and death for our constitutional republic. Something has gone very wrong that things are the way they are. But it’s one of those messes you just have to go through; keep appointing better judges who actually read and abide by the law, so that they will by definition limit their power.

 

May We Long Celebrate Our Constitution

There’s more to the Constitution. There are four more Articles. But they are brief and procedural. Then there are the Amendments; there are 27. The first 10 are considered the Bill of Rights—not rights granted by the Constitution, but rights spelled out so that, if the people ever forget what is self-evident, they are written in law. (Hint: You can take away our right to self-defense by “repealing” the Second Amendment.) We may talk about those things another day. Our four-part series has been a good celebration of our Constitution for now.

As other nations may say, “Long live the king!” we should be saying, “Long live our constitutional republic!” If we just keep reading our Constitution, to make sure at least some of us understand it, it may yet survive.