Category Archives: The Courts

UPDATE II (12/21/021): NEW COLUMN: Centralize Liberty: The Solution To Wicked, Woke Tech (Part 3)

Free Speech, Individual Rights, Justice, Labor, Law, Left-Liberalism And Progressivisim, libertarianism, Natural Law, Political Philosophy, Private Property, Republicans, Technology, The Courts, THE ELITES

NEW COLUMN: “Centralize Liberty: The Solution To Wicked, Woke Tech,” is now on WND.COM, The Unz Review, CNSNews, and The New American.

This column is Part 3 of a 3-part series. Read Part 1, “Big Tech’s Financial Terrorism And Social Excommunication” and Part 2, “Justice Thomas’ Solution to Big Tech’s Social And Financial Excommunication.”

An excerpt:

It is inarguable that by financially crippling and socially segregating, and banishing politically irksome people and enterprises—the Big Tech cartel is flouting the spirit, if not the strict letter, of the Civil Rights Act.

For how do you make a living if your banking options are increasingly curtailed and constantly threatened, and your ability to electronically communicate with clients is likewise circumscribed?

Do you go back to a barter economy (a book for some bread)? Do you go underground? Cultivate home-based industries? Do you keep afloat by word of mouth? Go door-to-door? Return to stamping envelopes? How can you, when your client base is purely electronic?

Telling an individual he can’t open a bank account on account of the beliefs and opinions swirling in his head teeters on informing your innocent victim he might not be able to make a living, as do other, politically more polite Americans, and despite his innocence: Our only “offenses” as dissidents are thought crimes, namely, speaking, or typing or wafting into the air unpopular, impolite words.

“[I]n assessing whether a company exercises substantial market power,” Justice Clarence Thomas has argued, “what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.”

To paraphrase this Supreme Court jurist: Sure, there are alternatives to The Big Tech, but these make a mockery of the outcast. It would hardly be hyperbole, in driving home Justice Thomas’s point about comparability, to put it thus:

With respect to financial de-platforming, barring someone from PayPal is like prohibiting a passenger from crossing the English Channel by high-speed train, via ferry and by means of 90 percent of airplanes. “Have at it sucker.”

By Deep Tech decree, some Americans are worth more than others, based not on their actions, but on the voiced thoughts in their heads. This cannot stand.

The letter of the law needs changing. Do it.

Civil Rights Act

Thus, the preferred remedy to Deep Tech depredations would build upon existing Civil Rights Act jurisprudence.

As a reality-oriented conservative libertarian, I inhabit and theorize in the real world. From the conservative-libertarian’s perspective, Barry Goldwater got it right. Civil Rights law is an ass, for it infringes on property rights. But the onus is on flaccid Republican lawmakers to ensure that that ass can be ridden by all equally (with apologies to adorable, much-abused donkeys for the cruel metaphor).

These are existing laws that are already enforced. I see no reason to reject the application of civil rights solutions to wicked, woke bullies because existing laws that’ll never be repealed go against my core beliefs. What is libertarianism? The art of losing in life because of a slavish devotion to theoretical purity? …

NEW COLUMN, “Centralize Liberty: The Solution To Wicked, Woke Tech,” can be read now on WND.COM, The Unz Review, CNSNews, and The New American.

UPDATED (10/26/021) I:

UPDATE II (12/21/021) II: “Berenson v. Twitter“:

Twitter is indisputably a messenger service. A longstanding California law regulates messenger services as “common carriers.” This means that they must accept all messages they receive. Twitter thus must accept all tweets it receives. It has no First Amendment rights to refuse them on the basis that it does not agree with them.
A federal law commonly called Section 230 “preempts” the California law, giving Twitter the right to reject tweets or ban users. (Whether that right is universal or whether Twitter must act in “good faith” in restricting service is a separate question; whether Twitter acted in “good faith” in this case is still another question. But put those issues aside for the moment.)
Section 230 is what enables Twitter to claim a First Amendment privilege that supersedes the California law and restrict my own First Amendment right to speak; thus federal courts have the right to review 230 on First Amendment grounds.

MORE.

UPDATED (10/14): No Notes, No Nonsense: The Genius Of Amy Coney Barrett

Argument, Constitution, Democracy, Federalism, Intelligence, Law, Reason, The Courts

After hysterical preludes, Amy Klobuchar, the senator from Minnesota, questioned Amy Coney Barrett. I feared Barret’s tart tones—the American woman’s gravelly, vocal fry of a voice—would drive one to distraction, but she’s brilliant. Barrett looks disarmingly sweet and girly, but her replies are gloriously pointed and cerebral.

Advisory opinions are prohibited on the Court, Judge Coney Barrett teaches, as she explains a “concrete” as opposed to a “procedural” or “abstract” injury to the plaintiff. Her duty, as she sees it, is to address “concrete” wrongs, only, and in accordance with democratically-enacted law.

To the question of, “Why fight the Affordable Care Act, Amy Coney Barrett answered: “Ask the litigants. I don’t know.” Genius, because her replies are meta: They nail down the role of the SCOTUS in the federal scheme.

No doubt, Amy Coney Barrett will be the best mind on the SCOTUS! Her analytical reasoning—construction of an argument, the way she seals it logically, her preference for higher-order, principle- and process-oriented thinking, makes Kagan, Gorsuch, Kavanaugh, Roberts, Alito and Breyer pale by comparison. (Roberts is oriented toward administrative thinking; he has the mind of a functionary of the managerial State. As I pointed out in 2005, “Roberts is flummoxed by first-principle quandaries,” whereas first principles is Coney Barrett’s thing.)

For obvious reasons, Sonia Sotomayor was left off my just-cited list of SCOTUS justices whom Amy Coney Barrett easily usurps. An affirmative action baby (her term for herself), Sotomayor was advised to read children’s classics and basic grammar books during her summers, to get up to speed on her English skills at Princeton University. READ.

UPDATE (10/14):

Lots of cringe-worthy cliches and schmaltz came with the “quizzing” by Joni Ernst of Amy Coney Barrett. On being a mom, advice to young girls, exercise, role models. There is not daylight between Republican and liberal women, when it comes to this mushy drivel.

American Justices Should Be Less Notorious, Even Anonymous

America, Celebrity, Federalism, Justice, Law, Pop-Culture, The Courts

About the stardom Ruth Bader Ginsburg, a quiet, reclusive and rather thoughtful jurist, achieved, the Economist writes:

AT THE TIME of her death, Ruth Bader Ginsburg featured on more than 3,000 pieces of memorabilia which were for sale on Amazon.com. Fans of “Notorious RBG” could buy earrings, mugs, babygrows, fitness manuals and Christmas decorations (“Merry Resistmas!”), all bearing her face.
something has gone wrong with America’s system of checks and balances. The United States is the only democracy in the world where judges enjoy such celebrity, or where their medical updates are a topic of national importance. This fascination is not healthy.

The Supreme Court is not elected. Yet its power is ultimately founded on the trust and consent of Americans who believe that its decisions are impartial and grounded in law, not party. The more brazenly parties attempt to capture it as the choicest political prize, the less legitimate it will be. Imagine that a court judgment determines who wins November’s election. …

There is a better way. America is the only democracy where judges on the highest court have unlimited terms. In Germany constitutional-court judges sit for 12 years. If America had 18-year non-renewable terms, each four-year presidency would yield two new justices. It would end the spectacle of judges trying to game the ideology of their successor by choosing when they retire. And it would help make the court a bit less central to American politics—and thus more central to American law. Justice Ginsburg was a great jurist. A fitting tribute to this notorious judge would be to make her the court’s last superstar. ?

The problem is that the entire federal system is broken, in tatters. It’s now down to brute-force tactics, to winning. Bader Ginburg knew it. “In her dissents she sometimes appealed to Congress to correct the law.” She didn’t necessarily think it was SCOTUS’ role.  (See: Obituary.)

At heart she was still what she had always been, a judicial minimalist. She was stunned by the lack of caution in the Roe v Wade ruling of 1973 that legalised abortion; though she certainly approved of the outcome, reform should have come through state legislatures, where it was slowly starting to appear. She was shocked too when the court, while upholding Obamacare, found it illegal under the commerce clause of the constitution; that had been Congress’s domain since the 1930s. In her dissents she sometimes appealed to Congress to correct the law and occasionally, to her delight, it did.

SEE: “How to make American judges less notorious: Supreme Court judges should be term-limited

UPDATE (9/29): Amy Coney Barrett And Life On Earth

Abortion, Conservatism, Constitution, Justice, Law, The Courts

“The restoration of law and order and the reverence for private property rights are the most powerful principles with which to unite main-street America, left and right, in the ramp-up to the November election.” (“Law and Order Unites Main Street America.“)

This is what Republicans must remember, before they scamper down the judicial rabbit hole of abortion.” The kind of “reasoning” that could unseat Trump is if the credentialed conservative elites press the abortion issue. That would be political suicide.

And it may be upon us with the nomination of “Amy Coney Barrett, a judge on the U.S. Court of Appeals of the 7th Circuit, as President Trump’s nomination to the seat vacated by the death of late Supreme Court Justice Ruth Bader Ginsburg.” (Fox News)

Via Revolver News (which has replaced Drudge):

According to this think piece in Revolver:

Amy Coney Barrett may appear to promise the shock we all know the system deserves, but her nomination risks reframing the precarious Trump reelection effort from a winning battle over law and order, immigration, and left-wing political violence to a messy and poorly timed slog through well-worn battles that would be better and more effectively fought after Trump wins re-election.

It’s too late, but READ “The Case for Judge Bridget Bade.”

UPDATED (9/29):