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The Pruitt Report: Jurisprudence In Action

Upcoming Supreme Court Decisions That Will Change America Forever.

While most news agencies continue to report extensively on the emergence of the coronavirus pandemic, the cries against racial inequality, and the upcoming 2020 presidential election, the judicial branch is facing a tidal wave of contentious cases that may alter our constitutional system for decades to come.

For example, on July 22nd, several lobbying groups asked the Supreme Court to halt the construction of a United States-Mexico border wall after a federal appeals court ruled that the Trump administration’s use of military funding for the project is unlawful.

The petitioners (including the Sierra Club) asked the Court to reverse a July 2019 order that allowed the administration to spend billions of reallocated funds to build the wall.

One week later — in a major victory for President Trump — the Supreme Court allowed the construction of the border wall to continue in a July 31st order while legal proceedings materialize.

Dror Ladin, an attorney associated with the ACLU’s National Security Project, recently said:

“The Trump administration has lost in every lower court, but is still rushing to complete the president’s border wall before the Supreme Court can review the merits of this case. If the administration succeeds, there will be no border wall construction left to stop by the time the Supreme Court hears this case.”

In response to the Court’s decision on Friday, Ladin firmly stated that “the fight continues.”

The petitioners’ request comes after several federal courts ruled against the Trump administration. Earlier this year, the 9th Circuit Court of Appeals ruled in a 2-1 decision that President Trump’s maneuver to declare a national emergency in order to reallocate taxpayer funds was unconstitutional, citing the Appropriations Clause found in Article 1 (which enumerates the powers of the legislative branch).

The provision grants Congress a legislative duty to exercise control and assume responsibility over how public funds are spent. The clause explicitly states that “No money shall be drawn from the Treasury but in Consequence of Appropriations made by law…”. In so doing, the court affirmed a lower court’s injunction against the use of Pentagon funds to construct the border wall.

“These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause,’ ” the majority wrote. “Therefore, the transfer of funds here was unlawful.”

As most Americans know, President Trump vigorously campaigned on the promise to build a wall to curb the flow of illegal immigration, drug smuggling, and human trafficking into the United States.

The two judges who ruled against the Trump administration, Chief Judge Sidney R. Thomas and Judge Kim McLane Wardlaw, acknowledged that the law allows for the transfer of military funds for unanticipated military purposes. However, according to Mr. Thomas, a border wall “was not an unforeseen military requirement.”

“Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process — Congress simply chose not to fund this particular solution”, Thomas wrote in the majority opinion.

Judge Daniel Collins, a Trump appointee, argued in his dissent that combatting illegal drug activity was “plainly” in the purview of defense agencies.

In his dissent, Justice Stephen G. Breyer expressed his concern that the court’s July 31st action effectively decided the case before the justices even considered hearing the administration’s appeal.

Yet despite this, sources indicate that attorneys for the Department of Justice plan on asking the Supreme Court to take up the case in early August. If this were to occur, the justices could decide whether or not they will review the case in early Fall.

Either way, it will be very interesting to see what will pan out in the next several months.

Meanwhile, the legality of affirmative action is once again being challenged. Students for Fair Admissions — a nonprofit organization that advocates against weighing race in college admissions — sued the University of Texas at Austin on behalf of two white students who claim they were denied admission based on their race.

Students for Fair Admissions claims that is has more than 20,000 members who believe that racial preferences in college admissions are unconstitutional. According to Edward Blum, who is president of the organization, the UT system did not adhere to its obligations under a 2016 Supreme Court ruling regarding the admission of plaintiff Abigail Fisher.

“The Supreme Court did not give the University of Texas a blank check to use race-based preferences in perpetuity, and the university has failed its obligation to reexamine its policies,” Blum said, according to the American Austin Statesman.

For context, in Fisher v. University of Texas, the Supreme Court ruled in a 4-3 decision that the race-conscious admissions program was legal under the Equal Protection Clause of the Fourteenth Amendment. The Court held that the University of Texas’ use of race as a factor did not violate previous legal precedent which established that fostering educational diversity is perfectly legal as long as the system does not impose a quota of minority students or an amorphous concept of diversity. This legal precedent is traced back to the Regents of the University of California v. Bakke decision, in which the Court ruled that the Equal Protection Clause does not prohibit affirmative action policies from being implemented.

J.B. Bird, a spokesman for the UT system, told the newspaper that the collegiate institution is confident it will win out again in court.

Stepping away from widely discussed legal concepts such as affirmative action and separation of powers, there is an obscure Supreme Court case that may jeopardize the impartiality of future judges: Carney v. Adams.

James R. Adams, a Delaware lawyer, considered applying for a judicial position but ultimately decided not to because the state required the candidate to be a member of the Republican Party.

Adams — who registers as an independent — sued Governor John Carney, arguing that Section Three of Article IV of the Delaware Constitution violates the First Amendment’s protection of freedom of speech and association. The section says that judges associated with any one political party can make up no more than a “bare majority” on the state’s highest courts, with the remaining positions reserved for judges affiliated with the “other major political party.”

“If Delaware had a Constitution that said, you know, a certain race or religion or gender was eliminated from being judges, everyone would say that’s obviously discrimination,” said Adams in a disposition. His attorney, David L. Finger, argued that the balancing requirement was an insult to fair jurisprudence. “It assumes,” he said, “that judges cannot put aside their political philosophies to decide the cases before them.”

The federal district court ruled in favor of Adams. In its decision, the district court cited Elrod v. Burns and Branti v. Finkel, two Supreme Court cases which established that a government employer may not make employment decisions based on party affiliation except in the case of policymakers. The court found that the role of judge is to apply, not create, the law. Thus, judges do not fall within the policymaking exception established by the Elord and Burns rulings.

The decision was affirmed in part and reserved in part by the U.S. Court of Appeals for the Third Circuit. The Supreme Court agreed to hear this case on December 6, 2019.

You may be wondering, “Why does this matter? Don’t we have bigger issues we need to address?” If you are one of those people, I suggest you continue reading this article.

The outcome of this decision will produce profound consequences that will test the endurance of our constitutional republic. The role of judge in our society is pivotal for the fair application of our laws. If Section Three of Article IV of the Delaware Constitution is upheld, judges will continue to be swayed by surrounding political forces.

Associate Justice Neil Gorsuch, in his book A Republic If You Can Keep It, once said:

“When it comes to the business of judging, our separation of powers makes clear that a judge’s task is not to pursue his own policy vision for the country, whether in the name of some political creed, social science theory, or any other consideration extrinsic to the law. Nor is it to pretend to represent (or bend to) popular will… As Alexander Hamilton put it, a judge’s job is to exercise ‘merely judgement,’ not ‘FORCE [or] WILL.’ A judge should apply the Constitution or a congressional statute as it is, not as he thinks it should be.”

Mr. Gorsuch’s words are as relevant as ever (considering the fact that his book was published in 2019). The Court cannot allow the work of a judge to be dependent upon political interests. While elected officials may take politics into account when weighing judicial appointments, such qualifications are not and should not be enshrined in American law.

There are several instances in which the judicial integrity of a person was scrutinized because of his or her partisanship. For example, Samuel Chase, one of the first justices to serve on the Supreme Court, was impeached by the House of Representatives on grounds of letting his partisan leanings affect his court decisions. Chase, an ardent Federalist, was later acquitted by the Senate.

In more contemporary times, Brett Kavanaugh (who then was a White House aide under George W. Bush) fought for three years to be confirmed as a judge for the United States Circuit Court of Appeals for the District of Columbia. Facing major criticism over his supposed loyalty to President Bush, Senator Edward Kennedy once called Kavanaugh a “political operative.” In 2006, he was quoted as saying: “I can say with confidence that Mr. Kavanaugh would be the youngest, least experienced and most partisan appointee to the court in decades.”

Prior to his nomination in 2003, Kavanaugh was an assistant to independent counsel Ken Starr during the impeachment probe of President Bill Clinton in the late 1990’s. Furthermore, he argued before the Supreme Court in Swidler & Berlin v. United States, a case scrutinizing the attorney-client confidentiality doctrine in respect to the Travelgate Probe of 1993 (mind you, he accomplished this before the age of 35). Yet despite this impressive record, Kavanaugh almost did not become a federal judge because of his close connections with the Bush administration. Even after the contentious Supreme Court nomination of Mr. Kavanaugh, many people on the left are advocating for his impeachment.

Coming back to the main topic, Carney v. Adams has the potential to erase hundreds of years’ worth of judicial precedence.

A state law that effectively limits judicial service to members of the Republican and Democratic parties does indeed violate the First Amendment.

Let’s see if the Court concurs.

Article Written by Jett James Pruitt

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