Two Wins For Law And Ethics Over Ideology

DC RULES_blind justice

Judges are proving less partisan and ideologically driven than the increasingly totalitarian Left had hoped.

1. In Vitolo v. Guzman, the 6th U.S. Circuit Court of Appeals at Cincinnati ruled last week that the federal government violates the equal protection clause when it considers race or sex in in allocating Wuhan virus relief funds. Following the same track as the earlier case discussed here, the Court agreed that the U.S. Small Business Administration violated the Constitution by giving preference to minority- and women-owned restaurants.

Antonio Vitolo and his wife own a restaurant called Jake’s Bar and Grill. Vitolo is white, his wife is Hispanic, and they each own 50% of the restaurant. Of course, Jake could have gamed the easily manipuated SBA system by just handing his wife the extra 1%. The government requires small businesses to be at least 51% owned by women, veterans or “socially and economically disadvantaged” people to jump to the head of the line, because someone is presumed to be socially disadvantaged if they are a member of a designated racial or ethnic group. A person is considered economically disadvantaged if they are socially disadvantaged, and they face diminished capital and credit opportunities. In such a system, whether the business owner being given preference has actually been disadvantaged doesn’t matter. He or she is presumed to be disadvantaged. This nicely follows the circular logic of Critical Race Theory.

The group preferences are taken into consideration during the first 21 days in which the Small Business Administration awards the pandemic grants to restaurants. After priority applications submitted during that period are processed, the Small Business Administration processes grant requests in the order that they were received. That is, white men come last.

The 6th Circuit majority said Vitolo and his wife are entitled to an injunction forcing the government to grant their application, if approved, before all later-filed applications, and that their color and gender should be irrelevant. The government did not demonstrate a “compelling interest” justifying preferences based on race or sex.

2. In the cases of Garland v. Dai and Garland v. Alcaraz-Enriquez, the U.S. Supreme Court emphatically rejected the ever-progressive and frequently reversed Ninth Circuit’s absurd holding that a potentially illegal immigrant’s testimony alleging legitimate refugee status should be presumed to be credible even when a lower court did not specifically address that person’s credibility. Justice Neil Gorsuch, in his majority opinion, chided the U.S. Court of Appeals for the Ninth Circuit for its practice of taking immigrants at their word when they are not entitled to such deference.

To be granted asylum, immigrants must file a petition claiming their “life or freedom would be threatened” on account of “the alien’s race, religion, nationality, membership in particular social group, or political opinion.” When such a petition satisfies the fact-finding immigration court, then U.S. law mandates that the person cannot be removed from American soil. When the immigration judge specifically deems an immigrant’s testimony credible, both the Board of Immigration Appeals (BIA) and federal circuit courts will generally defer to that finding. The problem is that many alleged refugees have no documentation, so these bodies are depending on their word. Bias, therefore, is rife. Judges in sympathy with the progressive objective of open borders will find almost any story credible. The Ninth Circuit has had a longstanding practice of assuming immigrants are being truthful, even when the immigration judge has made no such finding.

Gorsuch wrote that the Ninth Circuit’s approach has “no proper place in a reviewing court’s analysis…Nothing in [immigration law] contemplates anything like the embellishment the Ninth Circuit has adopted….It is long since settled that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.”

The SCOTUS opinion was unanimous: 9-0.

10 thoughts on “Two Wins For Law And Ethics Over Ideology

  1. Hijacking topic #2 –

    Unanimous verdicts are common, closely called cases are rare at the supreme court.

    https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/

    The article cites that in 2016, 57% were unanimous, and only 14% were decided by one vote. Where my hijack enters: I think the legislative branch should respond to Maybury v. Madison by placing a tighter rein on rulings of legal unconstitutionality. All Senators and Representatives also take an oath to follow the constitution (I know….yes, they have a habit of not following it). It seems a bit anti-representative government when 5 people can over-ride the other 536 people constitutionally empowered with the authority to create law. If it really was unconstitutional, it wouldn’t be 5-4. 5-4 is evidence that judges are playing politics. Now I’ll admit – the 4 may be the ones playing politics sometimes. But if we’re going to disregard the legislature granted the power by the people, it seems like there should be a bit more check on it. Perhaps 2/3, or 3/4. If you have a 7-2 ruling on a law being unconstitutional, it smells less of a political ruling.

      • I believe the the term you’re looking for is cloture, which is the (larger) size of majority required to end debate and make a filibuster impossible.

        I suppose a judicial filibuster would be to have a SCOTUS Justice talk endlessly as a way of preventing the Court from rendering a verdict . . . ?

        –Dwayne

    • You are making an assumption that a significant number of the cases that are decided 5-4 directly address the constitutionality of a law. Indeed, it might be concerning if such laws were routinely struck down by such narrow margins. However, there are any number of cases that the court night consider, such as whether particular actions were lawful, or particular court decisions were properly rendered. I would imagine there is considerable room for respectful disagreement on marginal cases, where narrow magorities do not reasonably appear to be an abuse of the Court’s power. I would think the vast majority of 5-4 and similar cases fall into the latter, rather than the former, thus not indicating a dire need to reform the Court.

      • Pride, (placing one’s own wants, desires, and urges ahead of the well-being of others), is the most reviled of the “seven deadly sins”. Perhaps that is why there will never be a reading of Dante’s “Purgatorio”, or Chaucer’s “The Parson’s Tale” at Drag Queen Story Hour.

        • There is a pride which is the opposite of humility, also called vanity or hubris.

          There is a pride which is the opposite of shame, which could mean either shamelessness and disgrace (feeling no shame) or self-respect and dignity (having nothing to be ashamed of).

          And there is pride in one’s accomplishments which can become vanity if not kept in check.

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