Rule of law or majoritarianism

So we propagandise ourselves all the time. One powerful piece of propaganda is that we live under the rule of law and not the rule of men.* Sometimes, however, that argument becomes somewhat threadbare.  Take the case of Trump v Hawaii:

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

Sounds like the system works precisely as designed.

But no:

The court upheld Mr. Trump’s order 5-4.

That was the US Supreme Court.

Now even for a layperson it was obvious that the POTUS has extraordinary powers and discretion in allowing entry into the US. The executive government of every country has similar discretion. What becomes troubling is that the mechanism that ensures we live under the rule of law (even if we don’t like or agree with those rules) failed so dramatically and was only upheld through partisan majoritarianism.

* “a government of laws and not of men” is the original quote.

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23 Responses to Rule of law or majoritarianism

  1. You mean that it is not the role of the courts to make public policy? Who knew?

    If only SCOTUS had the creativity of the High Court of Australia to come up with implied rights that would have struck down POTUS’s orders.

  2. Sinclair Davidson

    Well four of them and several lower court judges gave it a red hot go.

  3. Speedbox

    Agreed Sparty. It’s always best if the courts work to the vibe of the thing.

    /sarc

  4. Zatara

    Worse yet was Justice Sotomayor’s dissent which raged on for 20 minutes and proved without a doubt that she hadn’t a clue what she was charged with deciding.

    The case had nothing to do with “fairness” or feeling “harrowing” or being “motivated by hostility and animus towards the muslim faith” as she claimed. It was quite simply about whether or not President Trump acted within his authority.

    As is so common these days the progressive members of the legal system wanted it to be about their feelings regarding what was “fair” or not. Judges and Magistrates of the leftist bend seem to think that their responsibility is that of taking sides according to their political leanings rather than conducting impartial trials governed by the law.

    Thank goodness SCOTUS has sent a clear signal to those lower court judges who attempt to govern the country from their benches rather than doing their jobs. We can expect to find such cases fast-tracked onto the SCOTUS schedule in the future and more vigorous slap downs until the message that frivolous interference with the duties of the Executive won’t be tolerated finally sinks in.

  5. Viva

    Worse yet was Justice Sotomayor’s dissent which raged on for 20 minutes and proved without a doubt that she hadn’t a clue what she was charged with deciding.

    According to Sotomayor “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.”

    Some hope!

  6. Tel

    Every law depends on men to create (or discover in some cases) and the legal system depends on the people who adjudicate the law. It’s never a choice between laws or men, it’s a choice between men who are interested in following the law, as opposed to men who want to act arbitrarily.

    Now the first principle of law is consistency, and if FDR had the Constitutional authority to lock up Americans in internment camps based on their Japanese family heritage, then Trump sure has the authority to temporarily block certain countries.

  7. Zatara

    Exactly Visa.

    She is too leftist programed to realize that the “richness of her experiences” has absolutely nothing to do with being a judge, magistrate, or Supreme Court Justice.

    In fact the exact opposite is the case as that describes a willingness to rely on her biases to decide cases.

    Which makes her unfit to judge a flower show much less a trial.

  8. pbw

    Well, Sparty, the creativity of the SCOTUS knows no bounds, as Roe vs Wade, Casey vs Planned Parenthood and Obergefell vs Hodges have demonstrated.

    The essential conservatism which, in addition to a commitment to the pursuit of justice, must bind the “rule of law” for such a rule to even exist, let alone thrive, has been incrementally trashed by the SCOTUS over the same period in which the conditions for a new schism in the republic have been established.

    Scalia’s dissent in Obergefell is essential reading in this context.

    There’s a lot of ruin in a great nation.

  9. dauf

    beggars belief that they could take themselves seriously while inventing excuses to stand in the road of a clear mandate and legal standing. The world we live in where the end (getting ones own way/viewpoint) justifies the means.

    the more i see of the USA, the more i understand how important Trump is to progress…even if there’s lots not to like

  10. Zatara

    Thanks for that link pbw. Scalia makes excellent reading. The following article is on point as well, discussing 3 of the 4 cases the Supremes ruled on yesterday.

    The Difference Justice Gorsuch Has Made

    In particular:

    Trump v. Hawaii. And finally, the so-called “travel ban” case. Somehow the Ninth Circuit had managed to uphold a nationwide injunction against enforcement of President Trump’s executive order without ever citing 8 U.S.C. Section 1182(f) (“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”) Although the executive order under consideration mentioned nothing about religion, and contained restrictions against entry of people from countries that are not majority Muslim (North Korea, Venezuela), the Sotomayor/Ginsburg dissent contains an extensive section of quotations from President Trump’s campaign and pre-election website as sufficient proof of “religious discrimination” to support the lower court’s injunction. In other words, President Trump is disabled from exercising the full powers of the presidency — powers that another president would be (and had been) permitted to exercise, and powers including ones needed to protect the American people against international terrorism — because we disagree with things he said during the campaign.

    There can be no doubt that each of these cases would have come out the other way had Merrick Garland made it onto the Supreme Court instead of Neil Gorsuch.

    Think about the three cases, and you will realize the unifying theme. Each of the three represented use of the legal system by the progressive left to implement its preferred policies and keep its people in office, and to make it as difficult as possible for objectors or dissenters ever to change the system or have their voices heard.

    The Travel Ban case in particular should have been open and shut, and at the lowest level.

  11. H B Bear

    While the Hilldebeast is out walking the streets I’d say there is a very big question mark hanging over The Rule of Law in the USA. It is barely hanging on by a thread.

  12. Roger W

    The dissenting opinions seem all to have largely ignored the legal arguments regarding the case and to have relied on an emotional appeal to a political opinion.
    Is it a coincidence that 3 of the 4 dissenting judges are not only leftists but also the 3 female judges?

  13. Dr Fred Lenin

    Just shows you. Judges are supposed to be impartial fair interpreters of the written law ,as made by the representatives of the people voted into office to make these laws . The findings of some of these “judges” proves that communism infests the minds of people who are supposed to be impartial . Proves communism is an invasive disease like cancer ,and just as intrusive and foul.

  14. stackja

    James Madison created the argumentative three branches. Presidency created for GW. GW was trusted to behave. Most Prez have. Marshall created judicial review. Other two argue with the third and each other. Never meant to work properly. Disruption is the result. Mostly works. DT is having fun upsetting the left.

  15. BorisG

    But the rule of law is always the rule of men on the bench, isn’t it?

  16. Paul

    That’s why Trump was voted in, to close the borders. The people spoke.
    The Supreme Court are supposed to interpret the law, not carry out their unelected opinions.

  17. Stimpson J. Cat

    Borders, walls, doors, locks, laws,
    what need have men of such petty things?

  18. mh

    Sotomayor appointed by Barry, naturally.

  19. Roger W
    #2749383, posted on June 28, 2018 at 4:29 pm

    The dissenting opinions seem all to have largely ignored the legal arguments regarding the case and to have relied on an emotional appeal to a political opinion.
    Is it a coincidence that 3 of the 4 dissenting judges are not only leftists but also the 3 female judges?

    I’ve said this before and I’ll say it again.
    Having women in positions of power is comparatively new and highly experimental. We don’t know how it will work out. Perhaps it’ll be OK but evidence thus far says it’s been a disaster.

    There are always exceptions and outliers, but by and large women operate on feelings (just look at the minority decision reasons by the SCOTUS women…….the SCOTUS ffs) and whenever you decide by feels, it ain’t gonna end well.

  20. John Constantine

    Is it possible that Justice Kennedy has timed his retirement as a response to Hussein Obama’s Captain’s pick?.

    Given the experience of being lectured by a revolutionary freedom fighter in the robes of Justice, he seems to have chosen Trump to have the next.pick on purpose.

  21. Mr Black

    John, it could be as simple as Kennedy seeing that Trump genuinely intends to select the right kinds of legal minds for the job and feeling comfortable about whoever might come after. After meeting Obamas picks he may well have felt considerable unease regarding his seat and the inevitable packing of the court with leftist intellectual light-weights should he retire.

  22. polpak

    History suggests whichever political elites succeed to being elected, to lead, to run, the nations government soon enough many of them attempt to abuse their positions within their Constitutional legal system less to obey the law, than to manipulate, to adjust, to change the law, so as to assist them into implementing their preferred policies, by riding roughshod over the nations Constitution, when-ever it suits them.

    Most our legal professionals appear so busy acquiring and protecting their status, applying their particular filters, while not prepared to accept then present legal challenges which question the meaning of our Constitution.

    We all need defend our Constitution, this best done by constantly challenge meaning of our Constitution’s words, quoted as they are so easily by governments to manipulate entire populations.

    Yet so many in legal practices contribute little to this challenge, as when legal issues presented to them, by objectors, dissenters, those who think differently, they are dismissed, explaining the matter’s considered “not right for them” thus contribute to rejecting them from being considered.

    When-ever legal issues presented which challenge our system, is legal practitioners duty to ensure such difficult legal issues presented as challenge for our courts High, or Supreme, or other, to test our Justices to resolve them.

    We may all then need less encouragement to considering their judgments.

  23. BorisG

    Yet he disagreed with the conservatives on a number of key decisions.

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