North Carolina Supreme Court Kicks Leftists In The Teeth; Upholds Private School Voucher Program

Huge Win For School Vouchers In North Carolina – Daily Caller

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Backers of private school vouchers won a huge victory Thursday as the North Carolina Supreme Court narrowly endorsed a program that allows public school money to be spent providing vouchers to attend private schools.

North Carolina’s Opportunity Scholarship program, created in 2013, allows for up to $4,200 per family to help pay for private school tuition. The scholarships are only available to low-income families, with the threshold pegged to 133 percent of the income required to qualify for free and reduced-price school lunches.

Demand for the program has been high, as only 2,400 scholarships are available and more than twice that number have applied, necessitating the use of a lottery system.

Shortly after the program’s creation, a coalition of public school teachers, parents, and school administrators sued, claiming the voucher law unconstitutionally supported religious schools and failed to spend public money on an exclusively public purpose, as required by the Constitution.

Writing for a 4-3 majority, Chief Justice Mark Martin said otherwise, overruling a lower court that had struck down the program.

“Our review is limited to a determination of whether plaintiffs have demonstrated that the program legislation plainly and clearly violates our constitution,” Martin wrote. “Plaintiffs have made no such showing in this case.”

The decision means that students will be able to receive vouchers in the upcoming school year.

National advocates for school choice have been quick to praise the ruling.

“With more than double the applications for scholarships in the first year of the program – approximately 5,500 applications for 2,400 scholarships – parents are making it abundantly clear that they want and demand more power over their children’s education,” said Kara Kerwin, president of the pro-voucher Center for Education Reform, in a statement sent to The Daily Caller News Foundation. “This is a giant step in the right direction for parent empowerment in North Carolina.”

The ruling is a big win for voucher supporters, especially as it helps make up for a ruling in Colorado in June which struck down a major voucher program in that state.

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Wisconsin Supreme Court FINALLY Stops Nazistic John Doe Investigation Against Conservatives

Wisconsin Supreme Court Stops John Doe Investigation Against Conservatives – Legal Insurrection

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The Wisconsin Supreme Court has effectively killed the “John Doe” case which led to home raids and intimidation of a wide range of Wisconsin conservative activists.

The decision is embedded at the bottom of this post.

Here is the key finding, which completely shreds both the legal theories and motives of the prosecutors, completely vindicates the targets, and praises those who fought back legally against prosecutorial misconduct (emphasis added):

¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Andrew Grossman, who filed an amicus brief in the Supreme Court case and who has served as counsel to Eric O’Keefe and the Wisconsin Club for Growth (two of the targets of the investigation) in various federal civil rights litigation against the prosecutors, provided me with the following statement:

Today’s decision puts an end to one of the worst abuses of power ever seen in Wisconsin law enforcement. The next step will be holding those responsible accountable for their actions. The Court’s recognition that the John Doe was a politically motivated “dragnet” of Gov. Walker’s allies provides strong support for Cindy Archer’s civil rights action against the Milwaukee prosecutors and lawsuits by potentially any of the other John Doe targets.

Background on John Doe abuses:

We have been covering the John Doe cases for a year and a half. You can read all out posts in the John Doe (WI) Tag.

Here are some key posts:

* Revealed: Wisconsin John Doe investigation was full-blown anti-conservative fishing expedition
* Exposed: How Prosecutors targeted Scott Walker and conservatives
* Was Prosecutor’s union-operative wife behind “John Doe” investigation of Scott Walker?
* Wisconsin “John Doe” War on Walker wins “Nastiest Political Tactic of the Year”
* Wisconsin Dems used battering rams against Scott Walker supporters – literally
* Former Scott Walker Aide Sues prosecutors for WI John Doe “Home Invasion”

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Analysis:

The court found that Wisconsin statutes did not limit “issue advocacy,” and that any attempt to so limit speech was unconstitutional:

¶7 We can resolve the original action, Two Unnamed Petitioners, by first examining whether the statutory definitions of “committee,” “contributions,” “disbursements,” and “political purposes” in Wis. Stat. §§ 11.01(4), (6), (7), and (16) are limited to express advocacy[4] or whether they encompass the conduct of coordination between a candidate or a campaign committee and an independent organization that engages in issue advocacy. Second, if the definitions extend to issue advocacy coordination, what then constitutes prohibited “coordination?”

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¶41 We turn first to Two Unnamed Petitioners, the original action filed with the Wisconsin Supreme Court. This case requires us to interpret Wisconsin’s campaign finance law, Wis. Stat. Ch. 11. By its very nature, this task involves fundamental questions regarding the scope of the government’s ability to regulate political speech. To resolve this case, we must engage in statutory interpretation of the phrase “political purposes,” which includes all activities “done for the purpose of influencing [an] election.” Wis. Stat. § 11.01(16). We conclude, consistent with the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, that the plain language of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague if it is not given a limiting construction and applied to only express advocacy and its functional equivalent. This conclusion invalidates the special prosecutor’s theory of the case and ends the John Doe investigation. Therefore, we agree with the Unnamed Movants and grant their requested relief.

The Court ripped into the investigating prosecutors (emphasis added):

¶68 Having reached our conclusion about the scope of conduct regulated by Chapter 11, we now turn to the special prosecutor’s theories of coordination and whether the alleged conduct is regulated under Wisconsin law.[23] The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with “narrow specificity.” Barland II, 751 F.3d at 811 (quotations omitted).

¶69 The limiting construction that we apply makes clear that the special prosecutor’s theories are unsupportable in law given that the theories rely on overbroad and vague statutes. By limiting the definition of “political purposes” to express advocacy and its functional equivalent, political speech continues to be protected as a fundamental First Amendment right.

The court made clear the investigation was stopped cold in its tracks:

¶76 To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

The Court went on in addition to uphold a lower court’s quashing of a subpoenas and search warrants sought by the prosecutors, finding that the John Doe powers did not allow “a fishing expedition”:

¶91 Reasonableness and particularity are not just requirements of search warrants, however. Subpoenas issued by courts, and by extension John Doe judges, must also satisfy these requirements of the Fourth Amendment. In re John Doe Proceeding, 272 Wis. 2d 208, ¶38. A John Doe proceeding, with its broad investigatory powers, must never be allowed to become a fishing expedition.

¶92 It is difficult, if not impossible, to overstate the importance of the role of the John Doe judge. If he does not conduct the investigation fairly, as a neutral and detached magistrate, the risk of harm to innocent targets of the investigation-and we remain mindful that all such targets are presumed innocent-is too great. Through the use of a John Doe proceeding, “law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness.” Washington, 83 Wis. 2d at 822-23. Such powers, if not wielded with care and skill may serve to transform a John Doe proceeding into an implement of harassment and persecution by a vengeful or unethical prosecutor. Thus, John Doe judges must be mindful of this danger and zealously guard the rights of all citizens against over-reach.

The Court then summarized its holdings, just so there was no doubt that it had completely rejected the prosecutors’ legal theory on coordination of issue advocacy (emphasis added):

¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

¶134 In Two Unnamed Petitioners, we hold that the definition of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article I, Section 3 of the Wisconsin Constitution because its language “‘is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.’” Janssen, 219 Wis. 2d at 374 (quoting Bachowski, 139 Wis. 2d at 411). However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, that “political purposes” is limited to express advocacy and its functional equivalent as those terms are defined in Buckley and WRTL II. With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is “beyond the reach of [Ch. 11].” Barland II, 751 F.3d at 815. Accordingly, we invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants.

¶135 To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

Wisconsin Supreme Court – John Doe Decision

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Supreme Court Upholds Texas Voter ID Law

Supreme Court Allows Texas Use Of New Voter ID Law – Wall Street Journal

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The U.S. Supreme Court on Saturday allowed Texas to enforce its voter identification law for the Nov. 4 midterm elections, denying emergency requests from the Obama administration and other challengers who said the law harmed minority voting rights.

The high court’s move, announced in an early morning order, is a setback for civil-rights advocates and marks the court’s fourth recent action on a state’s election procedures just ahead of Election Day.

A federal judge in Texas last week struck down the state law after holding a trial on the issue and concluding lawmakers acted with discriminatory intent when they enacted the law in 2011.

Judge Nelva Gonzales Ramos said the Texas law was the strictest in the country for several reasons, including because it allowed the fewest forms of acceptable photo identification and didn’t make certain accommodations for the poor and the elderly.

The judge said more than half a million registered voters, many of them black or Hispanic, were expected to lack the ID necessary to vote in person at the polls.

This week the Fifth U.S. Circuit Court of Appeals, acting on an emergency appeal by state officials, decided Texas could use the voter ID law for this election. The appeals court said the state already had been training poll workers to apply the voter ID law and said it was too late to change the rules so close to the date when voters were due to begin casting ballots. Early voting in Texas begins Monday.

The appeals court said it was guided in part by recent Supreme Court emergency actions on election rules in Ohio, North Carolina and Wisconsin. The results in those cases pointed in different directions, but in each case the justices blocked late changes to state election procedures, seemingly out of concern for voter confusion. The high court didn’t offer an explanation for its course of action in those cases.

The same held true Saturday when a majority of the court issued a brief written order that allowed Texas to use its voter ID law. But three justices – Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – dissented, saying the court should have intervened.

“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Justice Ginsburg wrote for the dissenters.

The Justice Department and civil rights groups had filed emergency appeals with the Supreme Court, saying there was no justification for allowing Texas to use the voter ID law after a judge found it to be discriminatory.

Texas said in court papers that its law wasn’t discriminatory and was approved to deter and detect voter fraud. The state also disputed the trial judge’s finding that large numbers of voters could be disenfranchised, saying it had taken extensive steps to mitigate “the already minor inconveniences associated with securing photo identification.”

The Supreme Court action Saturday wasn’t a ruling on the legality of the Texas law. The court was considering only whether the law could be applied while Texas appealed the trial judge’s ruling.

With the high court’s action in favor of Texas, three of the court’s four recent emergency actions in election matters have favored the states. The court also allowed Ohio to cut back on early voting and let North Carolina prohibit same-day voter registration and out-of-precinct voting. In a win for civil rights advocates, the court blocked Wisconsin from enforcing its voter ID law for the midterms.

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Supreme Court Rules In Favor Of Hobby Lobby In Obamacare Contraception Case

Supreme Court Pares Back Obamacare’s Contraception Mandate – The Blaze

The Supreme Court ruled Monday that Obamacare cannot force companies to pay for emergency contraceptive coverage for their employees that could lead to abortions, in violation of their religious beliefs.

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The 5-4 ruling delivered a huge victory to conservatives who have worked for years to scale back the various mandates of the controversial healthcare law.

The Court decided that Obamacare cannot be used to require for-profit, closely held companies to provide certain birth control drugs and devices – such as morning after pills – that could cause abortion.

The case was brought by Hobby Lobby, a Oklahoma-based retail chain owned by the Green family. The Greens said they are willing to cover 16 of the 20 birth control methods mandated by Obamacare to its employees, but not four others because the risk of abortion goes against their religious beliefs.

The company argued before the Court that the Obamacare mandate violates the Religious Freedom Restoration Act of 1993, which says the government cannot place burdens on the exercise of freedom of religion.

“Providing these objectionable drugs and devices violates the deeply held religious convictions of the Greens – the sole owners of their family businesses – that life begins at conception,” the company’s website says. “Yet refusing to comply with the federal mandate would subject them to an untenable choice of paying substantial fines or discontinuing the outstanding and affordable health insurance plan currently provided to their valued employees.”

The majority opinion written by Justice Samuel Alito agreed with that argument. According to SCOTUS Blog, the Obama administration failed to show that the broad contraception mandate is the least restrictive way of advancing its interest in ensuring access to birth control. The Court also ruled that the decision applies only to the contraception mandate, not other insurance mandates, such as those involving vaccinations.

Justice Anthony Kennedy noted that the government could pay for this coverage if it wants to make it available, but cannot compel a company to do so.

The decision deals a big hit to the Obama administration, which defended its interpretation of the law as something that forces companies to provide all manner of birth control methods to workers.

Republicans in Congress welcomed the high court’s ruling.

“Religious liberty will remain intact and all Americans can stay true to their faith without fear of big government intervention or punishment,” said Sen. Rand Paul (R-Ky.). “Our nation was founded on the principle of freedom, and with this decision, America will continue to serve as a safe haven for those looking to exercise religious liberty.”

House Speaker John Boehner (R-Ohio) called the ruling a victory for religious freedom and a defeat for the Obama administration’s “Big Government objectives.”

“The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors,” he said.

“The president’s health care law remains an unworkable mess and a drag on our economy,” he added. “We must repeal it and enact better solutions that start with lowering Americans’ health care costs.”

The case is Burwell vs. Hobby Lobby, referring to Secretary of Health and Human Services Sylvia Burwell. She replaced Kathleen Sebelius earlier this year – prior to that, the case was Sebelius vs. Hobby Lobby.

The case is second big blow to Obama from the Supreme Court in as many weeks. Last week, the Supreme Court ruled unanimously that President Obama’s 2012 “recess” appointments were not legal, because Obama made them when the Senate was not in recess.

That ruling prompted Sen. Chuck Grassley (R-Iowa) to say the decision was the biggest rebuke to a sitting president since 1974, when the Court decided unanimously that President Nixon must release the Watergate tapes.

Also related to abortion, the Court last week struck down a Massachusetts law that said people can’t stand on a public road or sidewalk within 35 feet of an abortion clinic.

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The Supreme Court Deals Blow To Public-Sector Unions – Business Insider

The Supreme Court on Monday limited the power of public-sector unions to compel employees to pay contributions, dealing a setback to public-sector unions.

But the 5-4 decision, written by conservative Justice Samuel Alito, wasn’t as sweeping as some union advocates had feared.

“This is a substantial obstacle to expanding public employee unions, but it does not gut them,” SCOTUSblog’s Tom Goldstein wrote.

Unions had been concerned that the court would strike down laws in 26 states requiring teachers, police officers, firefighters, and other public-sector employees to pay dues to the unions that negotiate contracts on their behalf, even if the workers don’t want to become union members.

The court hedged somewhat, but the decision is still a setback for public-sector unions. In a 5-4 decision written by conservative Justice Samuel Alito, the court “recognized a category of ‘partial public employees’ who could not be required to contribute to union fees,” according to SCOTUSblog. Unions worried the court would rule all public employees could not be forced to pay, which would dry up their ranks and their coffers.

“It remains possible that in a later case the Court will overturn its prior precedent and forbid requiring public employees to contribute to union bargaining. But today it has refused to go that far. The unions have lost a tool to expand their reach. But they have dodged a major challenge to their very existence,” Goldstein wrote.

The case, Harris v. Quinn, stemmed from a challenge in Illinois involving in-home care providers. Illinois uses Medicaid funds to pay in-home care workers, but turnover was high at the low-paying jobs. In response, more than 20,000 in-home car workers organized and joined the Service Employees International Union (SEIU), after executive orders from Govs. Rod Blagojevich and Pat Quinn, both Democrats, classified them as “public employees.”

The National Right to Work Foundation brought a challenge to Quinn in 2010, arguing workers who didn’t want to participate in the union shouldn’t have to pay the dues.

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Arkansas Supreme Court Overrules Leftist Judge’s Anti-Voter ID Decision

Arkansas Court Voids Judge’s Decision Against Voter ID Law – New York Post

The Arkansas Supreme Court has tossed out a judge’s ruling striking down the state’s voter ID law, but stopped short of ruling on the constitutionality of the measure.

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Justices on Wednesday vacated a Pulaski County judge’s decision that the law violates Arkansas’ constitution. Pulaski County Circuit Judge Tim Fox had struck down the law in a case that had focused on how absentee ballots are handled under the law, but justices stayed his ruling while they considered an appeal.

Justices said Fox didn’t have the authority to strike down the law in the case focusing on absentee ballots.

Fox has also ruled the law unconstitutional in a separate case, but said he wouldn’t block its enforcement during this month’s primary. That ruling is also being appealed to the high court.

Arkansas is amid early voting ahead of next Tuesday’s primary.

The ruling comes as voter ID laws are being challenged throughout the nation. Though 31 states have laws in effect requiring voters to show some form of identification, Arkansas’ in one of the strictest in the nation. Seven other states have photo ID requirements in effect similar to Arkansas.

A federal judge in Wisconsin struck down that state’s voter ID law last month, and Pennsylvania’s governor has said he wouldn’t appeal a judge’s recent ruling striking down his state’s voter ID law. President Barack Obama last month waded into the voter ID debate, accusing Republicans of using restrictions to keep voters from the polls and jeopardizing 50 years of expanded voting access for millions of black Americans and other minorities.

Republicans backing voter ID laws in Arkansas and elsewhere have said the efforts are aimed at preventing voter fraud and protecting the integrity of the election process.

Under previous law in Arkansas, election workers were required to ask for photo ID but voters didn’t have to show it to cast a ballot. Under the new law, voters who don’t show photo identification can cast provisional ballots. Those ballots are counted only if voters provide ID to county election officials before noon on the Monday after an election, sign an affidavit stating they are indigent or have a religious objection to being photographed.

Arkansas’ law took effect Jan. 1 and had been used in some local elections this year. This month’s primary is the first statewide test of the new law.

The case had initially focused on rules for absentee ballots under the voter ID law. The Pulaski County Election Commission sued the state Board of Election Commissioners for adopting a rule that gives absentee voters additional time to show proof of ID. The rule allows voters who did not submit required identification with their absentee ballot to turn in the documents for their vote to be counted by noon Monday following an election. It mirrors an identical “cure period” the law gives to voters who fail to show identification at the polls.

Fox’s ruling had been stayed by the state Supreme Court, but the high court declined to stay Fox’s decision to strike down the state board’s rule giving absentee voters additional time.

Click HERE For Rest Of Story

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First Among Equals: An Orwellian Dissent From A Muddled Ruling (James Taranto)

First Among Equals: An Orwellian Dissent From A Muddled Ruling – James Taranto

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You might have heard that the Supreme Court ruled 6-2 today that states have the right to ban racial preferences, euphemistically known as “affirmative action,” in public-university admission, but that’s not quite right. On that point the justices (save for Elena Kagan, who sat the case out) were unanimous. “When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy,” wrote Justice Sonia Sotomayor in a dissent joined by Justice Ruth Bader Ginsburg.

But in the case styled Schuette v. BAMN, Sotomayor endeavored to make nothing into something. She and Ginsburg would have upheld a decision by the Sixth U.S. Circuit Court of Appeals that held illicit the method by which Michigan’s voters accomplished that end: a ballot initiative, approved in 2006, that amended the state constitution to bar racial discrimination.

We noted the case, and offered a lengthy analysis, back in 2011, when a three-judge Sixth Circuit panel first ruled in favor of the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. We pegged the case then as a likely one for the high court to take up, and we didn’t expect the Sixth Circuit’s ruling to stand. But we’re disappointed the court didn’t repudiate BAMN’s arguments more clearly.

The background, in brief: As there was no colorable argument that the substance of the Michigan amendment was unconstitutional, BAMN invoked what the appellate court called the “political process doctrine.” It rested on two prior cases, Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982), in each of which the high court struck down a ballot measure repealing and banning a policy that, as Justice Harry Blackmun put it in Seattle, “inures primarily to the benefit of the minority.” In Hunter, the policy in question was a fair-housing ordinance enacted by the city council; in Seattle, a forced-busing program instituted by an elected school board.

The six justices who voted to reverse the Sixth Circuit and let the Michigan amendment stand split 3-2-1 on the grounds for doing so. The result is a clear outcome but a doctrinal muddle. We thought it would be amusing and enlightening to go through the four main opinions in descending order of clarity.

Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

Scalia and Thomas’s view, thus far joined by no other sitting justice, is that racial discrimination in public-university admissions is flatly unconstitutional. The prevailing view on the court is that such discrimination is permissible, but only for the purpose of realizing “the educational benefits” of a “diverse student body,” as Justice Sandra Day O’Connor put it in Grutter v. Bollinger (2003).

As Scalia notes: “Were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” The Sixth Circuit had to reach just that conclusion in order to fit the Michigan amendment into the political-process doctrine.

Thus, as we noted in 2011, Grutter and BAMN were on a collision course. Either the racial preferences the court upheld in Grutter were unconstitutional or the political-process doctrine didn’t apply. Scalia and Thomas recognized this contradiction squarely and would have dealt with it by both holding the preferences unconstitutional and overturning Hunter and Seattle.

Justice Stephen Breyer concurred in the judgment on much narrower grounds. He was part of the Grutter majority in 2003 and still thinks racial preferences are constitutionally permissible. He ducked the question of whether the political-process doctrine applied to the substance of the Michigan amendment by saying it didn’t apply to the process. Because racial preferences were imposed by unelected university administrators, he argued, the process change isn’t a “political” one at all. It appears to be a way of evading the central questions of the case, but it does have the virtue of being relatively simple.

Then there’s the Sotomayor dissent, which begins as follows: “We are fortunate to live in a democratic society. But…” An empty piety, followed by an equivocation, followed by a total of 58 pages – you know this is going to be a tough slog.

The most quoted part of Sotomayor’s opinion is this: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This is a rejoinder to Chief Justice John Roberts’s assertion, in Parents Involved v. Seattle School Dist. No. 1 (2007), that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts in turn rebutted Sotomayor in a separate concurrence to today’s decision, which we’re leaving out of our ranking by clarity.)

Roberts’s statement was trivially true, which means that Sotomayor’s defies logic. Her argument amounts to an assertion that a ban on racial discrimination is a form of racial discrimination–that everyone is equal, but some are more equal than others. Also Orwellian is her claim that she wants “to speak openly and candidly on the subject of race.” Such an assertion is almost always disingenuous. After all, the way to speak openly and candidly is to speak openly and candidly. Declaring one’s intention to do so is at best superfluous throat clearing.

And while Sotomayor may be open, she isn’t candid. She presents a potted history of race in America in which there is a straight line from Jim Crow segregation through literacy tests to the Michigan amendment, which “involves this last chapter of discrimination” – even though it bans discrimination, and even though Sotomayor acknowledges that its substance is perfectly constitutional.

Yet for all the faults of the Sotomayor opinion, she does score some points against the plurality opinion, written by Justice Anthony Kennedy and joined by Roberts and Justice Samuel Alito. Kennedy refrained from either reversing the Hunter and Seattle precedents or distinguishing the Michigan amendment from those cases by noting the contradiction between the Sixth Circuit’s finding and the high court’s rationale for upholding racial preferences in Grutter.

Instead, he essentially rewrites Hunter and Seattle, as Sotomayor notes (citation omitted):

Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” And the plurality recasts Seattle “as a case in which the state action in question… had the serious risk, if not purpose, of causing specific injuries on account of race.” According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.

Although Sotomayor is right about this, she goes on to make an error that is the mirror image of Kennedy’s, in citing the 1996 case of Romer v. Evans (omitting another citation):

Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption of similar ordinances in the future without another amendment to the State Constitution. Although the Court did not apply the political-process doctrine in Romer, the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decision-making authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effectively).

Actually in Romer the high court, with Justice Kennedy writing for the majority, rejected the Colorado Supreme Court’s application of the political-process doctrine. Instead, Kennedy held that the amendment itself violated equal protection–something even Sotomayor concedes is not true of the Michigan measure.

The plurality opinion is frustratingly muddled, but it’s likely to be seen as the controlling one, since it reflects the farthest position in either direction that a majority of justices are willing to go. In effect it means that it will be difficult if not impossible to challenge state ballot initiatives banning racial preferences at public universities. And while the court did not overturn the Hunter and Seattle precedents, they do not look like especially robust law, now that they’ve been rewritten by Justice Kennedy.

As for the Roberts-Sotomayor kibitzing, it’s actually a continuation of a conversation that started many years earlier, when the late Justice Harry Blackmun, in an opinion in University of California v. Bakke, wrote: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”

Blackmun wrote those words in 1978, when Sonia Sotomayor was a law student. Thirty-six years later, Justice Sotomayor wrote these words:

Race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

Are Sotomayor’s lamentations evidence that Blackmun was right, or that he was wrong?

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Four Points From Scalia’s Scathing Dissent In Supreme Court Ruling To Allow Searches Based On Anonymous Tips – The Blaze

“A freedom-destroying cocktail.”

That’s how Justice Antonin Scalia characterized Tuesday’s Supreme Court ruling that law enforcement officers may pull over and search drivers based solely on an anonymous tip.

The justices ruled 5-4 Tuesday to uphold a traffic stop in northern California in which officers subsequently found marijuana in the vehicle. The officers themselves did not see any evidence of the tipped reckless driving, which was interpreted as drunkenness, even after following the truck for several minutes.

Justice Clarence Thomas said the tip phoned in to 911 that a Ford pickup truck had run the caller off the road was sufficiently reliable to allow for the traffic stop without violating the driver’s constitutional rights.

But Justice Antonin Scalia, who wrote the dissent in Prado Navarette v. California, had strong words about the decision’s implications for the future.

Here are some of Scalia’s points, in which he was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor (emphasis added):

* Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.

* Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?

* The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

* Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of hav­ing our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

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If I could just correct Justice Sotomayor

Via The Right Scoop

CBS DC – On the Supreme Court since 2009, Sotomayor said it was tough at first as justices made references that went over her head. She said joining the high court amounted to joining an ongoing conversation among justices who had served for years.

“I figure I may not be the smartest judge on the court but I’m going to be a competent justice,” she said. “I’m going to try to be the best I can and each year I think my opinions have been getting better. And I’m working at finding my voice a little bit.”

Sotomayor was asked at a talk at Yale Law School later in the day about her use of the term “undocumented immigrants” rather than the traditional illegal alien. Sotomayor characterized the issue as a regulatory problem and said labeling immigrants criminals seemed insulting to her.

“I think people then paint those individuals as something less than worthy human beings and it changes the conversation,” Sotomayor said.

No, people who are for LEGAL immigration do not paint illegal immigrants as lesser people. But what I really need to correct here is what is “insulting”. What is truly insulting is having a race-obsessed, Left Wing hack on the Supreme Court