There’s little doubt that Antoine Jones, a Washington nightclub owner was actually trafficking cocaine when a joint FBI-Washington D.C. police team attached a GPS tracking device to his Jeep. They knew that he had stashed his ill-gotten goods somewhere other than his home. Sure enough, after following Jones to another home, cops discovered nearly 100 kilograms of the illegal narcotic, along with about $850,000 in cash. Jones was later convicted of cocaine trafficking and sentenced to no less than life in prison.

Strangely, a search warrant to attach the device had been granted by a Judge, but the device was not attached within the 10 days authorized and the car traveled outside of Washington DC, which was beyond the scope of the warrant. Jones was then monitored for nearly a month until he was finally arrested at a Maryland drug den.

Few will likely cheer a convicted drug dealer’s High Court victory, especially in light of its being based in a “technicality”, but all Americans should applaud this decision. GPS monitoring has become a critically important law enforcement tool in dealing with everyone from child molesters to drug traffickers. Countless violent criminals have been arrested, tried and convicted with evidence gained from the high-tech device. But the message sent by the Supreme Court is clear: When it comes to automobiles, attaching a GPS device is a constitutional search and seizure. The Court ruled: “The government physically occupied private property for the purpose of obtaining information,” “We have no doubt that such a physical intrusion would have been considered a ’search’ within the meaning of the Fourth Amendment when it was adopted.”

4th Amendment, US Constitution“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Justice Antonin Scalia, speaking for the five justice majority, wrote that a person’s property is “legally sacred, and the government had to justify placing a GPS device on the vehicle.” Scalia further explained electronic age does not change a centuries-old concept. That begs the question: How far reaching will the impact of this decision be?

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This week the United States Supreme Court made a landmark unanimous decision that protected the Free Exercise Clause of the First Amendment. The decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, rejected an argument made by the Obama Justice Department, which sought to eliminate the “ministerial exception” in employment discrimination law.

The ministerial exception allows religious organizations to terminate employees who perform religious responsibilities. The Hosanna-Tabor decision reinforces the First Amendment principle that religious organizations can continue to choose their own leaders.

The majority opinion, authored by Chief Justice Roberts stated that although protecting employee rights against discrimination are important, the First Amendment dictates that the right to exercise ones religion freely is more important.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Roberts opined.

“But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” When those principles are in conflict, the First Amendment has struck the balance for us.”

The case involved Cheryl Perich, a Redford, Michigan teacher at the Hosanna-Tabor Evangelical Lutheran Church and School who was fired in 2005 after she was diagnosed with narcolepsy, which would typically be considered a violation of the American Disabilities Act.

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This recent decision has been in the making since 1990 when the class action Coleman v. Brown was filed in District Court that found that California “prisoners with serious mental illness do not receive minimal, adequate care.” Then in 2001 Plata v. Brown said “the State (California) conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction.”

In 2005 when California did not comply with the “remedial injunction” a three-judge court was empowered “to order reductions in the prison population.” All of this is further explained in the recent ninety-one-page U. S. Supreme Court decision that can be found under “Recent Decisions” here and selecting Brown v. Plata.

Reading the text of the decision the court “concluded that it would be possible to reduce the prison population ‘in a manner that preserves public safety and the operation of the criminal justice system.’”

The decision says the state has created “a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer.” Further that, “The constitution does not permit this wrong.”

The court used a statement from the former heads of correctional systems in Washington, Maine, and Pennsylvania, to justify that California prisons are “criminogenic” and a statement from a chief probation officer who testified that “it seems like (the prisons) produce additional criminal behavior”. In that same passage California’s Little Hoover Commission stated, “California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.”

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“Never before has such a low bar been set for certifying such a gargantuan class”
Judge Sandra Ikuta writing in her dissent against class certification of the Walmart lawsuit in the 9th Circuit Court of Appeals.

Walmart is getting sued by 6 women for sex discrimination; this despite the fact that most of the employees are women. The ambulance-chasing shysters fomenting this case succeeded in getting “class” status for their few plaintiffs from the notorious 9th Circuit Court of Appeals. One of the primary tests for certifying a lawsuit as a “class” is for the court to determine whether the named plaintiffs are sufficiently representative of the class. Additionally, the court must determine if actual discrimination occurred and that this discrimination was likely to be widespread and effect a large class; in this case, a half of million female employees.

This sad case began with a few hapless women who couldn’t qualify as managers, but wishing they were managers. These people are rolling the dice with their litigation lottery scam. These women ended up telling sad stories of how they didn’t get their promotions to manager due to discrimination (yes, it’s true, Walmart has a strict policy against promoting morons). This is not a tort, unless those people can show, with evidence, that they were passed over because they were a woman. In the Walmart case, the attorneys for the plaintiffs used a combination of sob stories, anecdotal evidence and statistics. The statistics showed nothing.

The Walmart case, filed in 2001, against the Bentonville, Ark.-based retailer by six female workers who claimed the company paid women less than men and gave them fewer promotions. Their evidence? They said that 65 percent of Wal-Mart’s hourly employees were women, while just 33 percent of the company’s management team is female. So what? These statistics are not proof of wrongdoing. They’re the same sort of phony statistics that feminists and their media echo have used for years saying that women only make 70 cents of the dollar compared to men. That’s baloney.

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One year ago today, on January 21, the Supreme Court released its landmark decision in Citizens United v. FEC. The decision corrected an anomaly in campaign finance law, and in doing so was a tremendous victory for the First Amendment and Americans who wish to participate in our political process.

The case found its origins in 2007 when my group, Citizens United, a membership organization, sought to promote, distribute, and broadcast via video-on-demand a film critical of then-presidential candidate Hillary Clinton. If Citizens United would have done so, we were told by the FEC that it would have been a willful violation of the provisions of the Bipartisan Campaign Finance Reform Act of 2002 (better known as “McCain-Feingold”) which prohibited corporations from making independent expenditures and electioneering communications. This violation was not merely subject to a civil fine, but rather a criminal penalty – I personally would have been sent to jail for promoting the film. Citizens United filed a lawsuit against the Federal Election Commission to defend our right to promote and broadcast the film. It took more than two years, but the First Amendment protection of political speech was restored by the Supreme Court in this landmark ruling.

In the year since Citizens United was decided, it has been the subject of countless unwarranted attacks and harsh rhetoric. Senator Al Franken (D-MN) claimed, “Citizens United was an incredible act of judicial activism. It turned back a century of federal law, and it nullified Minnesota’s twenty-year-old ban on corporate spending in elections.” Senator Arlen Specter (D-PA), in his farewell addressed, alleged that Citizens United “effectively undermin[ed] the basic democratic principle of the power of one person/one vote.” Senator Charles Schumer (D-NY) argued that “if we don’t act quickly to confront this ruling, we will have let the Supreme Court predetermine the outcome of next November’s elections. It won’t be Republicans or Democrats; it will be Corporate America and other special interests.” All twisted the decision beyond recognition in an attempt to demonize the ruling and further their own political agenda.

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Karen Sampson and her Colorado neighbors just won a serious victory for liberty.

In a unanimous decision on Tuesday, the 10th U.S. Circuit Court of Appeals struck down Colorado’s disclosure laws for grassroots political groups.  This is a big deal.  As the Associated Press put it, “The issue is ripe for an appeal to the U.S. Supreme Court.”

The federal appellate court held that Karen and her neighbors in the tiny subdivision of Parker North, Colo., should not have been forced to register with the government and comply with burdensome campaign finance laws simply for opposing a ballot issue involving the annexation of their neighborhood.

I wrote previously at Big Government that Karen and her neighbors opposed an effort to annex their town into a neighboring city because it would raise their taxes without providing them benefits.  So they printed up fliers and yard signs.  And then they got sued.

Under what basis?  Colorado’s campaign finance laws, which state that any group of individuals that spends over $200 magically becomes an “issue committee” that is forced to register with the state.  Further, they had to track and report all their “contributions” and “expenditures” and disclose the identities of anyone who gave them money.

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Today the Institute for Justice filed opening briefs in our fourth case to appear before the U.S. Supreme Court.

IJ’s first trip to the high court came in 2002 and resulted in a landmark victory for school choice.  We also won our second U.S. Supreme Court case, defending the American ideals of economic liberty and unfettered interstate commerce by striking down a ban on the direct shipment of wine.

Our third case changed America forever.  A local government in Connecticut decided to bulldoze an entire neighborhood and hand the land over to a politically connected private developer.  The law was stacked against the property owners in favor of the powerful special interests.  IJ, defending the property owners, lost in a controversial 5-4 ruling.

This was the infamous Kelo case, and it resulted in an explosion of outrage and grassroots activism all across the country.  Ed Morrissey recently wrote at Hot Air that it arguably set “the stage for the all-out eruption of Tea Party activism a few years later.” This epic battle to protect private property rights, ultimately vindicated by grassroots activists just like you, is one that will never be forgotten:

And now, as children nationwide get ready to begin a new school year, the Institute for Justice is defending Arizona’s innovative scholarship tax-credit program before the highest court in the land.

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I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination.  I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007.  “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions.  Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials.  Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters.  Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist.  So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land? (more…)

Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas.  This is bad news.  Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time.  Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.”  Goodwin Liu was one of the authors, and the focus of another contributor on this topic.  It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.”  Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society.  It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.”  It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.”  But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete.  One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way.  This is not law. (more…)

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives. (more…)

Today, the U.S. Supreme Court will hear McDonald v. Chicago, in which the Court will decide whether the City of Chicago can disarm its citizens by forbidding them from owning handguns, or whether gun ownership is a “privilege” of citizenship protected by the U.S. Constitution.  In doing so, it will reconsider whether courts should play a more robust role in the protection of the basic liberties of the people.

Such a statement may seem counterintuitive.  Of course courts protect rights; it’s their job to interpret the Constitution to do just that.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text.  That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.  Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.  It seems crazy that we would let legislatures determine when laws they themselves create violate the Constitution.  But that is exactly what has happened.  We’ve let the fox guard the henhouse.

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.  And judicial abdication is every bit as dangerous as judicial activism, and arguably even more so because it allows politicians to disregard whatever constitutional limits they find inconvenient, which leads to unchecked expansion of government power.

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