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Posts Tagged ‘supreme court’

Supporting financial jihad

Posted by Richard on May 20, 2010

In Supreme Court nominee Elena Kagan's thin resume, Frank Gaffney found evidence of something troubling (emphasis added):

It turns out that, at the very moment Ms. Kagan was pushing aggressively to remove military recruiters from the Harvard Law School campus during her tenure as its dean, she was very supportive of having what amounted to Saudi recruiters ensconced there for the purpose of enlisting some of the nation’s finest young lawyers to work for the industry known as Shariah-Compliant Finance (SCF).

The first insight this record suggests is that Ms. Kagan’s true motivation in barring the armed forces was, indeed, an animus towards the military, rather than concern about its supposed mistreatment of homosexuals.  After all, the theo-political-military-legal code that authoritative Islam calls “Shariah” and that is the law of the land in Saudi Arabia is infinitely more homophobic than the Pentagon’s efforts to enforce the U.S. statute that prohibits avowed gays and lesbians from serving in uniform.  The former requires the murder of homosexuals; the latter simply kept them out of the ranks.

Ms. Kagan’s troubling tolerance of Shariah would, of course, have vastly more far-reaching implications should she reach the Supreme Court.

The promoters of Sharia-Compliant Finance and their dupes in the media explain it with some hand-wavy blather about not charging interest and not investing in "impure" things like alcohol and pork. But it's much more than that, and it's a 20th-century invention.

Sharia-Compliant Finance was created by the Muslim Brotherhood in the 1940s as another tool to promote its goal of imposing radical Islam throughout the world. To be Sharia-compliant, you have to pay the zakat — a "charitable" donation that, more often than not, ends up in the hands of organizations promoting jihad or trying to rid the world of Jews. The Holy Land Foundation, a Muslim Brotherhood front group convicted in 2008 of conspiring to fund terrorist organizations, was an example. 

To be Sharia-compliant, you also have to get the approval of a "Sharia authority": 

Unfortunately, every one of such individuals embraces not only the supremacy of authoritative Islam’s Shariah.  Without exception, they aspire to its ultimate objective: a global theocracy in which a ruler (the “Caliph”) governs in accordance with Shariah.

Thus, the coterie of Shariah authorities now employed by most of the Western world’s financial institutions – including many in the United States – unfailingly champion a seditious program that has at its core the overthrow of the alternative legal systems like the U.S. Constitution and the government it empowers.

One of the most prominent of these authorities is Sheikh Yusef al-Qaradawi who sits on numerous SCF advisory boards and those of Persian Gulf sovereign wealth funds.  He also has his own television program on Al Jazeera, which he uses week after week to inveigh about and call for violence against infidels, the United States, Israel, apostates and, yes, homosexuals. Interestingly, Qaradawi has called zakat, the Muslim charitable donation required by SCF, a form of “financial jihad.”

According to Gaffney, Kagan's promotion of a Sharia-compliance project at Harvard helped the proponents of financial jihad gain significant power and influence in the finance industry and in government regulatory agencies.

Government involvement in promoting Sharia is the subject of a pending federal lawsuit. The Supreme Court may one day be asked to rule on whether such government promotion of Islamic law violates the Establishment Clause. Care to speculate on how a Justice Kagan, who helped make Harvard University "a major beachhead of Shariah in America," would vote in that case?

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Good news and bad news on McDonald

Posted by Richard on March 2, 2010

The Supreme Court heard oral arguments today in McDonald v. Chicago. The good news is it looks like incorporation of the Second Amendment, extending its reach to the states, is just about a done deal. The bad news is that it's likely to be done by means of the nebulous and endlessly-interpretable-by-judges "substantive due process" concept instead of via the "privileges or immunities" clause of the 14th Amendment.

In the Wall Street Journal, Randy Barnett has an excellent column in which he explains why the latter would be far preferable to the former, points out that the 14th Amendment's "privileges and immunities" clause was clearly intended to address (among other things) specifically the right to bear arms, and argues that the 1873 Slaughter-House ruling trashing that clause (right up there with Dred Scott as one of the worst Supreme Court rulings ever) ought to be reversed. 

The "wandering discussion" Barnett cited illustrates the vast gulf that separates Scalia, Alito, and Roberts from Clarence Thomas, even though they're often lumped together as "conservative" or "originalist" justices and often vote together.

I wish this time Thomas had abandoned his habit of listening without questions or comments. I wish Janice Rogers Brown were sitting on that bench instead of Roberts or Alito (or better yet, instead of Breyer, Stevens, Ginsburg, or Sotomayor).

And I wish we had five justices with the courage, principles, and good sense to overturn Slaughter-House.

Sigh. But getting the Second Amendment incorporated is progress. And not insignificant, even though doing it through substantive due process will certainly temper the victory and leave lots of wiggle room for "sensible" regulations.

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Two cheers for the Supreme Court

Posted by Richard on January 21, 2010

I haven't read the 180+ pages of opinion, concurring opinion and dissenting-in-part of the Supreme Court's monumental decision in Citizens United v. FEC. But I've been reading the many posts about it at The Volokh Conspiracy and SCOTUSblog (links to main pages; just keep scrolling). The decision is not perfect (it upheld disclosure requirements, with only Thomas dissenting). But it strikes me as a huge gain for First Amendment rights and a very welcome repudiation of both McCain-Feingold and Austin v. Michigan Chamber of Commerce, along with the anti-free-speech mentality that drives such legislation and such court rulings.

Those anti-free-speech advocates are expressing outrage that corporations, which "aren't people," are granted Constitutional rights (as are unions, BTW). But as Ilya Somin observed, the owners and employees of corporations are people (as are the members of unions), and these individuals don't lose their rights by joining together to act in concert.

And the (mostly leftist) critics of free political speech conveniently forget that virtually all significant news media organizations are incorporated. If, as the critics claim, the government can restrict the free speech rights of (people joined together as) corporations, then government can restrict the free press rights of (people joined together as) corporations. Do they really want to go there? Of course not — because entities like CNN, NBC, CBS, and the New York Times are on their side. So they concoct some ridiculous argument of "special rights" for "the press." As if rights aren't universal.

The first amendment protects my right to speak and to print or publish (including modern equivalents like broadcasting, cable-casting, and online posting). It doesn't require me to meet some arbitrary standard of what constitutes a "journalist" in order to exercise those rights. And I don't lose those rights by joining with others to exercise them in concert. 

Citizens United is a significant and welcome ruling. And it's yet another ominous indication of the President's authoritarian mindset of that he reacted by essentially calling on Congress to enact legislation to restrict our Constitutional rights (as recognized by the Supreme Court). Hey, this guy taught Constitutional Law, didn't he? And he thinks Congress can, by legislation, abrogate Constitutional rights?

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Gun rights leaders oppose Sotomayor

Posted by Richard on July 8, 2009

Leaders of several gun rights groups and activists supporting the Second Amendment have jointly informed the Senate of their strong opposition to the appointment of Sonia Sotomayor to the Supreme Court (emphasis added):

“It is extremely important that a Supreme Court justice understand and appreciate the origin and meaning of the Second Amendment, a constitutional guarantee permanently enshrined in the Bill of Rights, ” said a letter from the group, which was hand-delivered to every member of the U.S. Senate. “Judge Sotomayor’s record on the Second Amendment causes us grave concern about her treatment of this enumerated Constitutional right.”

Included among the signators were Sandra S. Froman, former president of the National Rifle Association; Alan M. Gottlieb, CCRKBA chairman; Joseph Tartaro, SAF president; Gene Hoffman, chairman of the CalGUNS Foundation; several current or former NRA directors; Robert Corbin, former Arizona attorney general and past NRA president; former Congressman Bob Barr; Jim Wallace, executive director of the Gun Owners’ Action League in Massachusetts; John T. lee, president of the Pennsylvania Rifle and Pistol Association; Tom King, president of the New York State Rifle and Pistol Association; Robert E. Sanders, former assistant director of law enforcement for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, and several others, 25 in all.

“The Supreme Court is almost certain to decide next year whether the Second Amendment applies to states and local governments, as it does to the federal government,” they wrote. “While on the Second Circuit, Judge Sotomayor revealed her views on the right to keep and bear arms in Maloney v. Cuomo, a case decided after Heller, yet holding that the Second Amendment is not a fundamental right, that it does not apply to the states, and that if an object is “designed primarily as a weapon” that is a sufficient basis for total prohibition even within the home. Earlier in a 2004 case, United States v. Sanchez-Villar, Sotomayor and two colleagues perfunctorily dismissed a Second Amendment claim holding that "the right to possess a gun is clearly not a fundamental right." Imagine if such a view were expressed about other fundamental rights guaranteed by the Bill of Rights, such as the First, Fourth and Fifth Amendments.”

“We joined in this effort,” Gottlieb said, “because our nation stands at point in history where we either defend all civil rights, or begin to surrender them one by one until none are left. It would be unconscionable to stand silently as the Senate deliberates confirmation of a new associate justice with such evident disregard for a key tenet, if not the critical element, of the Bill of Rights.”

“The Second Amendment survives today by a single vote in the Supreme Court,” the letter notes. “Judge Sotomayor has already revealed her views on the right to keep and bear arms and we believe they are contrary to the intent and purposes of the Second Amendment and Bill of Rights.”  

Considering what we already know about Sotomayor's racist ideas, I can't help but wonder (tongue in cheek) whether her opposition to gun rights is absolutist or relative. Does she, perhaps, think that a Hispanic woman in possession of a handgun is likely to use it more wisely than a white male, and thus should be given a pass?  

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Chrysler deal lives, Rule of Law is dead

Posted by Richard on June 10, 2009

This is terrible news. The Supreme Court has turned its back on Chrysler's secured creditors:

In a victory for the Obama administration driving the restructuring of bankrupt Chrysler, the court denied a request from Indiana pension funds to delay the sale to a group led by Fiat, a union-aligned trust and the U.S. and Canadian governments.

The White House welcomed the high court's action.

The Supreme Court decision followed a one-day stay issued by Justice Ruth Bader Ginsburg that prevented the Chrysler/Fiat deal from closing on Monday as planned. The Fiat option was the only one pursued to save Chrysler from collapse.

The pension funds said the bankruptcy and appeals courts are moving too fast and contended that Chrysler's sale would unlawfully reward unsecured creditors ahead of secured lenders.

They also said that the plan amounted to an illegal reorganization and that the Treasury Department overstepped its legal authority by using financial bailout funds for Chrysler when Congress had intended the money for banks.

The Treasury has dedicated more than $12 billion for Chrysler and roughly $50 billion for GM as part of the government's bailout of stricken U.S. automakers.

From now on, whenever Tim Geithner and Barack Obama shout "It's a crisis! We have to act right now!" they're free to shred existing contracts, stiff secured creditors, and redistribute to their friends what's rightfully owed those creditors. So long, Rule of Law; hello, Peronism. 

So tell me, are you more or less likely to invest in corporate bonds knowing that Washington can wipe you out or give you pennies on the dollar with a wave of the hand?

What about Treasuries? This administration has now demonstrated that it has no respect for the contractual obligations entered into by others — and the Supremes have decided that it's expedient not to stand in their way. Does that make you more or less confident that the government will stand behind its own debt obligations? How do you think it makes the Chinese and Europeans feel about that?

This is a very sad day. Our president is a lean, cool, charismatic version of Hugo Chavez, and he's turning this country into a banana republic. And no one dares to stand in his way. 

I'm disgusted. 

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Empathy vs. the rule of law

Posted by Richard on May 28, 2009

At, William Warren succinctly summarized the problem with Sonia Sontomayor in this cartoon:

"What About the Constitution?" by William Warren

Dr. Thomas Sowell addressed the issue in greater depth in his latest column

Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril — and at the peril of our children and grandchildren.

“Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

… Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge “may and will make a difference in our judging.”

Moreover, this was not something she lamented. On the contrary, she added, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.

That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees “equal protection of the laws” to all Americans.

The Sotomayor nomination, the railroading of bondholders, the massive expansions of wealth redistribution, and countless other actions and pronouncements have made it crystal clear that Barack Obama doesn't value the Constitution or "equal justice under law" very much. He gladly tosses them out when they interfere with his desire to expand the power of government and forcibly impose greater equality of outcomes. As Friedrich A. Hayek observed, the latter is incompatible with the former: 

From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either one or the other, but not both at the same time.

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Heller win

Posted by Richard on June 27, 2008

The Heller ruling is in:

WASHINGTON (AFP) — The US Supreme Court ruled Thursday that Americans have a constitutional right to bear arms, ending a ban on owning handguns in the capital city in its first ruling on gun rights in 70 years.

The court's 5-4 landmark decision — on whether the right to keep and bear arms is fundamentally an individual or collective right — said the city's law violated the second amendment of the US constitution which the justices said guaranteed citizens the right to keep guns at home for self-defense.

"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms," wrote Justice Antonin Scalia in the court's decision.

He added that while the court took seriously the problem of handgun violence: "The constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.

"The enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."

It was a victory for gun rights advocates and could have a far reaching impact on gun control legislation across the country. Opponents may now challenge other laws in cities such as New York that restrict the ownership of handguns in the name of public safety.

Scalia wrote the 63-page majority opinion, which was joined by Roberts, Kennedy, Alito, and Thomas. This seems to be a qualified victory, but a victory nonetheless. I've just skimmed the syllabus and the last couple of pages of Scalia's opinion, and this paragraph in the latter jumped out at me:

JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

So, stay tuned. 

And don't forget, the next President will probably name two or three Supreme Court justices. One more Ginsberg or Breyer and this decision would have gone the other way. In other words, if Bush had not been re-elected, a SCOTUS with two Kerry nominees in place of Scalia and Roberts would have declared that the Second Amendment did not confer an individual right and was essentially null and void. 

If gun rights matter to you, you may want to think about that. And maybe get one of these.  

UPDATE: FreedomSight has a plethora of links, quotes, and biting commentary (and Jed's promising an "in-depth" look at the ruling itself later). At the end of the post, he also has great Kalashnikitty news. Don't miss it. And I'm not just saying that because he quoted and linked to me. 🙂

UPDATE 2: Billll singled out for attention a couple of quotes from the dissenting opinions, one from Stevens and one from Breyer. Go read. If you're like me, you'll involuntarily laugh, then you'll shudder and work to suppress your gag reflex, and then you'll shake your head in disbelief that such men were considered to be among the best jurists in the country and tasked with protecting the Constitution.

Billll's reaction is perfect: "We really don’t need any more like these." Maybe he should get one of these.  

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Obama on judges

Posted by Richard on May 9, 2008

Maybe if I read the following CNN transcript excerpt every day until the election, it will motivate me to vote for McCain: 

BLITZER: You used to teach constitutional law.


BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court.

BLITZER: Are there members, justices right now upon who you would model, you would look at? Who do you like?

OBAMA: Well, you know, I think actually Justice Breyer, Justice Ginsburg are very sensible judges.

I think that Justice Souter, who was a Republican appointee, is a sensible judge. What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.

And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.

Yes, we can have more justices like Ginsberg and Souter, who'll ignore the Constitution and turn the courts into "a refuge for judges." Excuse me, I have to go throw up.

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Reading Hamdan: now, that’s torture

Posted by Richard on July 1, 2006

I intended to write quite a bit about the Hamdan decision — really, I did. But getting ready for my visit to Knoxville took much longer than I planned. Plus there’s a lot to go through. The entire document (PDF here) is 185 pages, and about half of that’s the opinion of the Court — what Thomas refers to as the "plurality opinion" of Justice Stevens (only three other justices concurred with all of it; Kennedy joined in part). I’ll just make four quick points.

First, after going through a good portion of the 185 pages, I agree with Ann Coulter — making somebody read the whole thing would violate the Geneva Conventions.

Second, Stevens concluded that Congress would have to authorize a trial before a military tribunal, but strongly suggested that Hamdan could be held without trial "for the duration of active hostilities." Which led me wonder why the administration is going through all this tribunal and war crimes trials business anyway.

My guess is that they came up with this scheme to try to assuage the war critics embracing the law-enforcement paradigm and demanding that we "charge them or release them." Typical: Republicans always want to prove to their opponents that they’re not really such bad guys, fail miserably (and predictably), and shoot themselves in the foot in the process. They should have said, "Buzz off. No civilian courts, no military courts, no tribunals — we’re not charging these guys with any crimes, we’re holding them as enemy combatants until the War Against Islamofascism is over."

Third, Stevens’ arguments for disregarding the Detainee Treatment Act (which explicitly and unambiguously stripped the courts of jurisdiction over the Guantanamo detainees) are so at odds with a plain reading of the act, the Congressional record, and historical precedent that it’s breathtaking. Scalia destroyed every point of Stevens’ argument six ways from sundown. After a detailed examination of the case record involving jurisdiction stripping, Scalia pointed out how completely at odds this opinion is with all precedents:

Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion,

Scalia went on to cite over a dozen cases to prove his point.

Finally, Justice Thomas’ dissent provided a crash course on the "common law of war" and a series of stinging rebukes that included this gem:

Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying that there is much more at stake here than storm drains.

Bravo. Excellent point.

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