Which Way Goes the Supreme Court?

Which Way Goes the Supreme Court?
by JBS President Emeritus John F. McManus

Perhaps the most important issue for America’s voters in 2016 is the future staffing of the United States Supreme Court. There are long lists of other matters to be considered by whoever becomes the next President and which party dominates both houses of Congress. But whoever gets tapped for the Court and survives the Senate confirmation hearings will, because a place on the Court is a lifetime appointment, be in a position to shape much of what happens for decades.

Would the Constitution survive more leftist Supreme Court appointments like Justice Ruth Bader Ginsburg? She appears above at Northwestern Law. (Image from a video from Northwestern News Vimeo page).

Currently, the Court is divided 4 to 4. Half of the eight justices are solid liberals and the other half lean toward conservative values. Since the death of Antonin Scalia, there have already been 4 to 4 rulings, a standoff that temporarily leaves the matter in favor of the previous ruling rendered by a lower court. If there is no previous ruling, the matter at hand will likely be brought before the Court after the vacancy is filled.

The current liberal-leaning justices include Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Those of a more conservative bent are Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

The age of several justices makes it virtually certain that filling the seat formerly held by Justice Scalia will not be the only vacancy to be filled.

Among the liberals, Justice Ginsburg has lasted much longer on the court than most expected – possibly even herself. At 83 and with a history of pancreatic cancer which she seems to have survived quite well, she almost surely will opt to retire soon. Stephen Breyer is 77 years old and might also retire. Sonia Sotomayor (57 years old) and Elena Kagan (51 years old) can be expected to hold their places for many more years.

On the conservative side, 79-year-old Anthony Kennedy leads in age and it would surprise few if he soon decides to step away. When there were nine justices, Antonin Scalia could regularly be found in the conservative camp and Anthony Kennedy frequently held what has been called the swing vote. The other conservative-leaning justices, each more solid than Kennedy, are John Roberts (age 61), Clarence Thomas (age 68) and Samuel Alito (age 61). None of these three are expected to retire anytime soon.

There is little doubt about the choices Hillary Clinton would make if she becomes the nation’s 45th President. She would choose liberals. Should Donald Trump become the nation’s chief executive, his choices for places on the Supreme Court would likely lean conservative though that lean would not be not as pronounced as would be the liberals Clinton would nominate.

In mid-May, Trump took the unusual step of naming 11 men he would consider for places on the high Court. His list drew sharp criticism from Nan Aron, the president of the liberal Alliance for Justice Action Council, who was particularly upset that Trump’s list contained the names of many she insisted to be “hostile” to “reproductive justice, and environmental, consumer and worker protections.” On the conservative side, Ed Whelan, a former clerk to Justice Scalia, called the Trump choices “a good list of some outstanding judges who give ample sign of being faithful to the Constitution.”

America’s Founders expected the Supreme Court to be the least powerful of the three branches of government. But their attitude has largely been cast aside because the Court now makes law. Because such great power resides in the judgments of the nine seated at the Court, America’s voters should hardly overlook what the future makeup of the Supreme Court will be when they pull a lever or ink a ballot in November.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


Obama Versus Obama on the Use of Executive Orders

Obama Versus Obama on the Use of Executive Orders
by JBS President Emeritus John F. McManus

The fate of approximately five million illegal immigrants rides on a matter now in the hands of the Supreme Court. On April 18, the court entertained hearings on whether these immigrants will be deported or allowed to remain in the United States. A decision is expected in a few months.

President Barack Obama signs an executive order on the Employment of Veterans in the Federal Government, Nov. 9, 2009, in the Oval Office at the White House. (White House Photo by Pete Souza, from the U.S. Army Flickr accountsome rights reserved).

More than a year ago, President Obama sought to use an executive order to cancel congressional action calling for deportation of these illegal entrants. In effect, he wanted to grant them amnesty. Federal Judge Andrew Hanen blocked implementation of the Obama order and a federal district court later upheld his ruling. The Obama administration appealed that court’s ruling all the way to the Supreme Court.

Led by Texas, a total of 26 state governments have sought relief from the costs incurred by the flood of immigrants, including the five million in question. Their issue dwells on expenses incurred by the immigrants such as the issuance of drivers licenses. But the greater issue here is the use of executive orders by a president in order to circumvent existing law, or even to establish law without it having first been created by Congress.

Interestingly, President Obama has provided totally conflicting views on the topic of executive orders. In January 2014, he threatened to make law via his executive order by declaring:

We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward….

As recounted by David Remnick in New Yorker magazine, Mr. Obama had earlier provided a completely opposite view during a fund-raising appearance at the Betty Ann Ong Chinese Recreation Center in California. Urged by some in his audience to rely on the executive order route, the president objected and stated:

If, in fact, I could solve all these problems without passing laws in Congress, then I would do so, but we’re also a nation of laws. I’m actually going to pause on this issue, because a lot of people have been saying this lately on every problem, which is just, “Sign an executive order and we can pretty much do anything and basically nullify Congress.” [But] that’s not how it works. We’ve got this Constitution; we’ve got this whole thing about separation of powers. So there is no shortcut to politics, and there’s no shortcut to democracy.

Not the first president who has employed executive orders to circumvent the sole power of Congress to make law, Obama might be the first to explain very clearly how wrong such a practice truly is. This nation does indeed have a Constitution that should be obeyed.

Currently, because of the death of Justice Scalia, the Supreme Court has only eight justices. Should there be a 4 to 4 split, the district court’s previous ruling against the president’s use of an executive order will stand. President Obama’s action would, in effect, be deemed an illegal act and deportation action could proceed.

Which Obama position regarding executive orders will prevail? The odds seem to favor rejection of their use. For a change, the president’s grasp for power may be thwarted. Now, do your part and tell Congress to oppose all Executive and Congressional amnesties.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


Don’t “Interpret” the Constitution; Obey It

Don’t “Interpret” the Constitution; Obey It
by JBS President Emeritus John F. McManus

Hardly anyone knows the true assignment given the Supreme Court by the Constitution. Accordingly, it comes as little surprise to find many Americans claiming that job of the justices is to “interpret the Constitution.” But when a committed conservative makes the same claim, one realizes how thoroughly a distorted view of the American system of government has been spread.

The inside of the United States Supreme Court. In the photo are the nine chairs of the Supreme Court Justices. (Photo by Phil Roeder, some rights reserved.)

Simply stated, the job of the Supreme Court is not to interpret the Constitution, or interpret any law properly enacted. It is to see to it that the Constitution is obeyed and that all laws passed by the federal government can honestly trace their legitimacy to what appears in the its text. There has to be a positive grant of power in the document for any federal law to claim legitimacy. No law can be properly enacted under the spurious claim that it’s not prohibited and, therefore, it’s legitimate to enact it. Interpreting the Constitution or any law to have it say beyond what its text contains is completely wrong.

How did the dangerous notion of “interpreting” get started? It began soon after our nation started. It is the legacy of highly revered Chief Justice John Marshall. Appointed by President John Adams during our second President’s last day in office, Marshall served on the high court from 1801 until death claimed him in 1835. In his 1803 Marbury v. Madison decision, he declared, “It is emphatically the province and duty of the judicial department to say what the law is….” In other words, we at the Supreme Court will decide what a law says; we shall not rely on its text. We shall “interpret” both the Constitution and any law that comes before us.

Obviously sensing where Marshall would take the nation, President Thomas Jefferson stated early in his term of office (1801-1809): “On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Jefferson repeated his stand when he stated, “The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption.” His is the correct attitude.

Simply stated, it was never the intent of the Founders of this nation to have the Supreme Court “interpret” the Constitution. If such a power is allowed, there is really no need to have a Constitution. Reliance on the purported wisdom of nine judges is all that would be needed.

Any thinking American should never accept the dangerous notion that the Supreme Court has been awarded power to “interpret” either the Constitution or any properly enacted law.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


A New Abortion Case Reaches Supreme Court

A New Abortion Case Reaches Supreme Court
by JBS President Emeritus John F. McManus

Only recently, the Texas legislature succeeded in imposing a brake on the practice of abortion within its boundaries. Pro-abortion partisans sued to overturn the law, but the federal Fifth Circuit Court of Appeals upheld it. Unsurprisingly, the Appeals Court ruling has been challenged and will be decided by the Supreme Court where only eight members remain as a result of Justice Antonin Scalia’s passing. Both sides have already presented their arguments to the high court and a verdict on Whole Women’s Health v. Hellerstadt will be handed down before the summer recess begins.

prolife

As ProLife Wisconsin asks, “What’s wrong with this picture?”

Looking at the current makeup of the Supreme Court, it is safe to assume that four justices (Ginsburg, Breyer, Kagan, and Sotomayor) will favor reversing the Fifth Circuit’s support for the Texas law. It also seems safe to conclude that three justices (Thomas, Alito, and Roberts) will uphold it. That leaves the eighth member, Justice Anthony Kennedy, with the deciding vote. If he sides with the three presumed upholders, the Court will have registered a non-decision and the Fifth Circuit decision will remain in force. If he joins the four and favors reversal of the Texas law, the abortion industry will have been given a new green light to continue its widespread taking of life in the womb.

The Texas law under scrutiny imposes regulations on abortion clinics and the purveyors of the practice. It says that abortionists must have hospital medical staff credentials and admitting privileges within 30 miles of their clinic. And it insists that the abortion providers must be equipped to provide the same medical treatments available as the many hospitals and surgery centers throughout the state.

Almost all of the Texas abortion clinics cannot meet those two requirements. Consequently, more than half of the 40 abortion clinics in the state have already closed their doors. More are expected to shut down because they are either not close enough to a hospital that has awarded their people admitting privileges, or they don’t have medical staff on hand to deal with complications arising from taking a fetus from a woman’s womb.

The Association of American Physicians and Surgeons (AAPS), an anti-abortion association of doctors frequently at odds with the American Medical Association (AMA), claimed in its amicus brief submitted to the Supreme Court that more than 75 percent of abortions throughout the nation lead to a need for a surgical procedure that most abortion clinics are unable to perform. What these facilities aren’t equipped to provide are the ambulatory surgical procedures routinely performed by hospitals. Women seeking abortions at most of the clinics in Texas have heretofore placed themselves in jeopardy of untreatable complications such as uterine perforation, infection, bleeding, and more.

Speaking for the Obama administration, U.S. Solicitor General Donald Verrilli told the high court’s justices on March 2nd that the Texas law “closes most abortion facilities in the state, puts extreme pressure on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortion.” He has thereby correctly yet ruefully summarized the effect of the law. He added that the few remaining Texas clinics still open for abortion were already overloaded and could not meet the demands of women who seek to terminate the life in their wombs.

So the Supreme Court, where laws against abortion were abolished nationwide in the 1973 Roe v. Wade ruling, is facing a severe test. If the court rules 4 to 4, the Texas law will remain in effect and it will apply in all 50 states. Those who believe, as does this writer, that abortion is terribly wrong because it snuffs out an already created life, will be watching for the court’s decision, a ruling that seems to be Justice Anthony Kennedy’s to decide.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


Supreme Court Vacancy

Supreme Court Vacancy
by JBS President Emeritus John F. McManus

The sudden death of Supreme Court Justice Antonin Scalia has forced the nation to think about who might fill the vacancy. Will it be someone holding his conservative/originalist thinking? Or will it be someone of the Obama/Hillary Clinton brand? The decision will shape the court for several years into the future.

Senate Majority Leader Mitch McConnell (R-Ky.) has stated that during the current election year “there will not be any vote on an Obama Supreme Court nominee. Period. End of story.” As Majority Leader, he holds power to decide whether or not the Senate considers any nominee. He wants to wait until after a new President takes the oath of office in January 2017.

Pro-Obama senators have been crying foul, insisting that any sitting president has the right to nominate someone for the open seat, and the Senate has a duty to consider him or her. They’re correct as far as they go. But the Senate leader also has power; he can sit on such a nomination without scheduling any hearings and without any vote to approve or disapprove.

New York Democratic Senator Chuck Schumer is the likely leader of Democrat senators starting in 2017 because current Minority Leader, Nevada Senator Harry Reid, is retiring. And Schumer is adamantly insisting that any Obama nominee should be given due consideration by the current Senate.

However, in July of 2007, Schumer backed the McConnell-style delay plan until an election has passed and the nation had a new president. With the 2008 election in mind, he stated: “I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.” He clearly wanted confirmation of any new addition to the court to wait until after a Democrat was elected in 2008. (The 2008 election did result in Democrat Obama’s win over Republican McCain.)

Now, Schumer is insisting that his 2007 attitude does not apply. His argument is weak to say the least.

Additionally, researchers have gone back to 1992 when then-Senator Joe Biden of Delaware proposed this very same argument. Now the nation’s Vice President, Biden doesn’t want to be reminded of what he said when George H.W. Bush occupied the White House. What he would like everyone to forget is his stand proclaiming, “It is my view that if the president goes the way of Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination.”

But today, we have Democrat Senator Chuck Schumer and Democrat Vice President Joe Biden turning on their previous attitudes and calling for any Obama nominee for the high court to be considered promptly. Their hypocrisy could hardly be greater.

They, of course, know that any Obama nominee would shift the balance of power in the Supreme Court to their liberal way of thinking. They would have no difficulty supporting a newly named Democrat to sit alongside liberal Justices Ginsburg, Kagan, Sotomayor, and Breyer. Before Scalia’s demise, the court’s 5 to 4 majority rested with him and Justices Thomas, Kennedy, Roberts, and Alito.

Filling the seat left vacant by the passing of Antonin Scalia is almost as big an issue as who will win the presidency in 2016. If the winner happens to be Donald Trump, conservative Americans ought to be nervous because he has already suggested nominating either U.S. Appeals Court Justices Diane Sykes or Bill Pryor. Sykes has ruled that Indiana cannot fully defund Planned Parenthood. And Pryor, serving as an Alabama judge in the past, helped lead the effort to oust the state’s Chief Justice because he wouldn’t remove a monument containing the Ten Commandments from state property.

It is unlikely that an Obama nominee will be approved in 2016. As to who will win the 2016 election for President and who that new occupant of the White House will nominate to fill the open seat, no one knows at this point.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


Scalia: The Passing of the Supreme Court’s “Originalist”

Scalia: The Passing of the Supreme Court’s “Originalist”
by JBS President Emeritus John F. McManus

The sudden passing of Supreme Court Justice Antonin Scalia evoked praise for his work from conservatives and, after perfunctory condolences directed to his family, dark words for his “originalism” from liberals. Many Americans who are unfamiliar with that term can be helped to understand its meaning by understanding Scalia’s disdain for considering the U.S. Constitution a “living” document subject to current whims and trends. He always believed that it was a hard and fast contract to be considered inviolate by all who had solemnly sworn to abide by it.

U.S. Supreme Court Justice Antonin Scalia, served as an Associate Justice from 1986 until his death February 13, 2016. Cropped image from Collection of the Supreme Court, Photographer: Steve Petteway, public domain.

Advocates of the “living” document thesis claim that modern trends and attitudes should be considered part of the Constitution even if there is no portion of its language supporting their position. Those who insist that the Constitution cannot be altered or ignored at whim, or have new thinking added to it without an amendment, have become fewer in number. The lack of understanding among many Americans about the Constitution has allowed liberals to get away with what they claim because of their insistence that the Constitution lives. And like any other entity that lives, they say it grows naturally.

In reality, however, the Constitution is very much like a contract between the people and their government. Neither side has the authority to unilaterally change its terms. Change is permitted when both sides – in this case the government and the people – formally use the amendment process. But if a carpenter and a homeowner agree about a porch being added to the rear of the home, the carpenter cannot decide to omit building the agreed-upon steps to the backyard. Nor can the homeowner change the agreed-upon fee for the man’s work.

Justice Scalia always held that the terms of a contract (the Constitution in this case) must be honored by government officials. He found no permission for government to sanction abortion, or forbid private ownership of guns, or change the definition of marriage, or a great deal more. He frequently stated that lawmakers and judges should honor the wording of the document as it was understood when created or amended. He was an “originalist.” As such, he could point to the attitude of Thomas Jefferson who stated in 1801:

The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption, a meaning found in the explanations of those who advocated it, not those who opposed it….

When a later need arose to restate his attitude, Jefferson stated:

On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.

Though the term wasn’t in use during Jefferson’s time, he was an originalist. The steps to the backyard that were part of his mythical porch were noted in the agreement he and the carpenter had signed. There was no power for the carpenter to omit the steps or for Jefferson to alter the agreed-upon payment for the man’s work.

In like manner, the government and the people should similarly honor the contract known as the U.S. Constitution. This was the thinking employed by Antonin Scalia. We can only hope that whoever takes his place on the high court will, as he did, delight in being labeled an “originalist.”

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.


Compulsory Union Funding Threatened

Compulsory Union Funding Threatened
by JBS President Emeritus John F. McManus

In 26 states, individuals employed in what are termed “public sector” jobs (teachers, firefighters, etc.) are compelled to pay the equivalent of union membership fees even if they decline to join the union. This arrangement is now being challenged in Friedrichs v. California Teachers Association. The Supreme Court has accepted the case and is expected to deliver a ruling before its mid-2016 break.

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Plantiff Rebecca Friedrichs, a veteran teacher in a California public school, speaks at a supporting rally. Image from Center for Individual Rights Facebook page.

The plaintiff in this case is Rebecca Friedrichs, a veteran teacher in a California public school. She is joined in the suit by nine others who also believe they are being treated unjustly when forced to pay for something they don’t want. Ms. Friedrichs argues, “I never asked the union to represent me.” Speaking for herself and the other plaintiffs who resent the taking by their union of approximately $1,000 per year, she adds, “We’re asking that teachers be able to decide for ourselves, without fear or coercion, whether or not to join a union. It’s that simple.” The amounts obtained by a union from these non-union workers totals hundreds of millions in revenue.

Union representatives claim that their negotiation skills for salary, benefits, and working conditions help all workers (union member or not) and, therefore, all should pay for such a service. Terming the non-union workers “free riders,” they point to a check-off box on the union membership form given to all employees where each can indicate an unwillingness to join the union. Doing so, however, lowers the amount of salary taken by the union each year by a mere $20, the amount the union says is devoted to its political agenda. Estimates place the number of so-called “free riding” teachers who decline to join the union at 34 percent.

Part of the complaint claimed by Ms. Friedrichs and others points to union political activity that favors candidates and issues with which they disagree. The power possessed by well-funded labor unions in the political arena is no secret. It enables unions to flex their muscles with the war chests they obtain from members and non-members alike. In this particular case, the union is even using funds taken in member dues to fund their court battle. Ms. Friedrichs and her fellow plaintiffs are receiving help from the Center for Individual Rights, a private libertarian-minded group that obtains funding from non-government sources.

The very matter in question came before the high court nearly four decades ago. In 1977, the Supreme Court ruled in Abood v. Detroit Board of Education that states could indeed require employees to pay dues to a public-sector union even if the employee doesn’t join. Should the Friedrichs challenge prevail, the Abood decision would be overturned.

Approximately two centuries ago, Thomas Jefferson offered his opinion about a similar matter. He stated: “To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.” Substitute the word “dues” for taxes in his statement and the decision the Supreme Court should reach seems obvious.

One of our nation’s highly touted fundamental freedoms, guaranteed to all, is being tested in this case. The verdict should favor Ms. Friedrichs and her colleagues.

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McManus_2Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.