Supreme Court Update

A Lot of Big Decisions

I’ve been away and not posting lately, so I’m hoping to get through some major topics over the next few days. As a preview of the Iran affair, the ceasefire has been going on longer than the actual military action, although neither side has actually ceased firing. It’s complicated.

I’ll give short account of some of the major cases decided recently.

Trump v. Barbara (Birthright Citizenship)

This case was brought in response to an Executive Order by Pres. Trump. The President ordered that children born to non-resident visitors, legal or illegal, would not be recognized as American citizens.

When this case was first brought to the Court, everyone assumed the EO would be struck down 9-0. Birthright citizenship had been a fact of American politics for almost 150 years. Amazingly, the case was decided only 5-4 against the President. Four justices think that the Constitution (specifically, the 14th Amendment) does not mandate birthright citizenship.

You might see some reports that the decision was reached in a 6-3 vote. That is partly true. Justice Kavanaugh voted that the executive order under consideration violated a statute passed by Congress. He dissented, however, about the constitutionality of birthright citizenship. So the vote is 6-3 against the executive order and 5-4 in favor of birthright citizenship.

West Virginia v. B.P.J. and Little v. Hecox

In what shouldn’t even have been necessary, the Court ruled 6-3 that men pretending to be women cannot play in women’s sports. The three liberal justices (Kagan, Sotomayor, and Jackson) dissented.

I don’t have much more to say about this except that sanity prevailed. That three justices could vote otherwise, however, is very discouraging. But it means that states can make laws that separate males and females in sports, although it does not mandate it. Some states will still allow boys in makeup to crush girls on the field.

Watson v. Republican National Committee (Campaign Finance Law)

The financing of political campaigns is very complicated because of a series of rules imposed soon after the Watergate scandal. In brief, individuals can donate to political campaigns, but only up to a specific amount. And there are a number of different parts of the campaigns that can receive donations.

Individual candidates can receive $3,500 per election (primary and general elections are counted as two different elections). National parties can receive just over $44,000 per year, while state and local parties can receive only $10,000. Political Action Committees can receive $5,000 per year. (These are organizations promoting a specific cause that can help a candidate.)

So where does all the money in campaigns come from? Super PACs. The advantage is that there is no limit to the amount of money someone can donate. But they are legally forbidden from coordinating with candidates or their campaigns.

If you hear an add that ends with the candidate saying “I’m So-And-So, and I approve this message,” the ad was paid by that first group of donations (sort of, we’ll get to this). If you hear one that says “Tell your representative to get off his…” it was a Super PAC. They have come to specialize in negative ads that give their preferred candidate some distance from nasty comments.

The case in this instance is about that $44,000 you could donate to a national political party (or to Dad News Network). There are legal limits to the amount parties can spend in coordination with their candidates, and it was this limitation that was challenged.

The court ruled 5-4 that these limitations violated free speech. The argument is that the 1st Amendment was designed to prevent laws forbidding people from promoting some political effort. The great British statesman, Edmund Burke, defined a political party as “a body of men united, for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.” That they would need to pool their money to do so is irrelevant.

The possible practical results from this ruling are interesting. One of the results of the previous laws limiting party expenditures has been the weakening of the major political parties. For instance, no one in the Republican establishment wanted Donald Trump to win the primary in 2015, but there was nothing they could do about it. Likewise, this primary cycle is seeing radical leftists getting nominated for the Democrats in places like New York City. These are people with such crazy paper trails (and video evidence) that the Republicans are jumping with joy. But the establishment Democrats can’t do anything because outside Super PAC money overwhelms their meager limits, which are already functionally limited by law.

No more. The political parties will have real control for the first time in fifty years. No one knows what kind of difference it will make.

Trump v. Slaughter (Executive Power)

In a 6-3 decision, the Court ruled that the Executive branch has the right to remove officials in federal agencies, in this case the Federal Trade Commission. This overturned Humphrey’s Executor (1935), which held that presidents cannot remove officials without cause. The argument is that without this power in the Executive, these agencies become something like the 3.5th branch of government. They make regulations like the Legislative branch but they part of the Executive, even though the president can’t exercise control over their personnel.

The problem is that this same court issued on the same day its decision in Trump v Cooke. In that case they ruled 5-4 that the president cannot fire a member of the Federal Reserve without much more of a procedure. The majority held that the statutes establishing the Fed require more of a procedure for removal than the Trump Administration followed.

These two decisions are in some tension, which the votes reveal. Dissenting in Slaughter were Kagan, Sotomayor, and Jackson, the three liberals. But in Cooke, they formed the majority with Chief Justice Roberts and Brett Kavanaugh. The three liberals were consistent across both cases. Roberts and Kavanaugh have some explaining to do (which I won’t get into here.)

Republican National Committee v. Mississippi State Conference of the NAACP (another election case)

This case had to do with mail-in ballots. The Trump administration argued that ballots received after election day should not be counted because the election was over. The court ruled 5-4 that Mississippi’s five-day grace period was reasonable, so long as the ballots were postmarked by election day. In this case, Amy Coney Barrett joined the three liberals and Chief Justice Roberts.

Mail-in ballots are used in many places. The state of Oregon only uses them. It has no polling stations on election day. With a highly mobile population and work hours that often make getting to your station difficult, they make a lot of sense. The problem is that they are very easy to manipulate.

If you were going to steal an election through paying people to vote for your preferred candidate, the old way involved paying someone at a polling station to bring out a blank ballot. You pay the guy $20. Then you fill out that ballot and pay the next guy $20 to drop in the box and bring out another blank. This is better than just giving a guy $20 and hoping he votes the way you want him to. (Don’t ask how I know all this.)

The potential with mail-in ballots is that you could gather a whole lot of them from a whole lot of people, pay for them to sign a blank ballot, and fill it in however you want. This is obviously a much more efficient method of stealing an election.

What about the grace period? What difference does that make? Any part of a good, old-fashioned, stolen election is to steal it by just a few votes. You don’t want to raise suspicions by winning 1000-1. Everyone would suspect fraud if that happened.

The grace period allows the person or persons involved to see how many votes they need to put their candidate over the top. You want to have the opportunity to add just a few more to your total at the last minute. It can be very exciting, if you’re that kind of a person. (My uncle Jim is not available for comment.)

People have been trying to rig elections from the very earliest times, so don’t be scandalized. Cicero uncovered an effort to keep him out of office in 54 BC by spending lavishly on bribes. In the early 20th century, archaeologists discovered in Athens a collection of clay ballots from 472 BC. Analysis showed that the 190 ballots voting all for the same man were written by only 14 people. Hmm.