Waning Monday Ethics Shadows, 5/16/2022: SCOTUS, Senate Candidate Gibberish, And A Yale Law Professor Shows Integrity

Valkygrrl tipped me off to the Supreme Court case of Patel v. Garland, a 5-4 decision involving both ethics and law. It’s almost too complicated to describe, so I recommend you read it, including Justice Gorsuch’s dissent, here.

It’s a terrific example of where the role of the Court diverges from what the average citizen thinks it is. The majority held that federal law bars courts from reviewing a judge’s alleged factual error in an immigration matter: Patel was held to have forfeited his chance at getting back on a path to citizenship because he had—mistakenly, he claims—stated falsely that he was a citizen on a key document. The trial judge ruled that this was intentional; Gorsuch states that this was an obvious error on the judge’s part, and that justice demands a judicial reversal. The conservative majority held that the decision could not be reviewed one way or the other.

“Today, the court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it,” Gorsuch wrote. “No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants.” But the majority, in opinion by Justice Barrett, said federal law bans judicial review of decisions by immigration judges that deny discretionary relief from deportation, and the ban also prevents judicial review of factual findings underlying the denial of relief.

As the Waco Kid (“Blazing Saddles”) would say, “Boy, is she strict!”

I don’t understand why Gorsuch is so convinced Patel is being honest when he says he checked the wrong box by accident. Nor was he exactly a “lawful immigrant”: he came to the U.S. illegally to begin with.

1. From the “Quotes that would instantly make up my mind about who to vote for” Dept.: Kathy Burnett, one of the Republicans on the ballot in the GOP primary to determine who runs for the open U.S. Senate seat in Pennsylvania (Dr. Oz is among her competition, and the Trump endorsed candidate), was asked if she would support whoever got the nomination if she didn’t, and said,

“I have no intentions of supporting globalists. I believe we have ran out of room on this runway for this spaceship. I believe we have very little rope left to just roll the dice and we’ll see how it all works out on the other end. I believe our country is in trouble. I don’t believe we have much longer and I believe what I have done is I have made it possible where Pennsylvanians do not have to hold their nose and vote for the lesser of two evils this time. I don’t think we have room to just vote for any old warm body with an R next to their name. I think we can do better than that.”

The fact that someone who talks and thinks like that can even be this close to a seat in the Senate is sufficient reason to start looking for a real spaceship.

2. New York, New York!

  • In this increasingly incompetent state, Happy the Elephant will soon have her day in New York’s highest court after her lawyers  filed a writ of habeas corpus arguing that the 8.500 lb. creature (you know, like Donald Trump) is a legal person, thus making her detention at the Bronx Zoo unlawful.
  • New York Mayor Eric Adams, attending the obligatory (for Democrats) post-Dobbs leak freakout rally, declared that there should be “no limits” on abortions. That means he believes this individual…

..is fair game for any reason whatsoever. One way the reversal of Roe might tilt the societal consensus toward the lives at stake is that officials like Adams will make such demands, and casual supporters of “choice” will finally focus on what the issue is.

  • Gov. Hochul, not to be outdone in grandstanding, reacted to the Buffalo shooting by demanding more censorship on social media, because censorship is the current progressive solution to everything, especially the Democratic Party’s failures.

3. And since we’re talking about that…here’s the way the Associated Press reported on the supply chain breakdown that has supermarkets running out of infant formula: “GOP’s new midterm attack: Blaming Biden for formula shortage” One of the tell-tale signs of the news media’s unprofessional and shameless pro-Democratic bias is that when the Republicans botch something, the botch is the story, but when Democrats botch something, the story is that Republicans are “pouncing”—you know, like a creature.

4. That damn Constitution thingy again... Dropbox’s Senior Director of Product Design Jasmin Friedl said on Twitter that she was “prioritizing” people of color in hiring:

First up, I care deeply about building teams that represent the communities we work in and the people we serveI also deeply care about equity in hiring. Therefore, I choose to prioritize folks in our BIPOC [“Black and Indigenous People of Color”] and URM [“underrepresented minorities]”communities.

That’s really considerate of her. When Drop Box is sued for violating the equal opportunity employment requirements required by the Civil Rights Act of 1964, the plaintiff’s lawyers won’t have to do much research at all.

5. It’s about time I had something good to write about Yale Law School: one of its professors has integrity!  Yale Law School professor Akhil Amar, a self-described liberal who is pro-choice on abortion policy, agrees that Roe v. Wade was a bad decision and deserves to be overturned. Writing in the Wall Street Journal, Amar persuasively debunks the hysteria, writing in part that Justice Blackmun’s much criticized majority opinion…

…lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft…In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish…Does Justice Alito’s draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court’s precedents on contraception and interracial marriage? It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were “deeply rooted in the Nation’s history and tradition.”…In the 1972 case of Eisenstadt v. Baird, the Court extended Griswold to invalidate a Massachusetts statute that banned the distribution of contraceptives to unmarried individuals. By then, such laws were fast becoming outliers in America, rarely enforced even if on the books.

The problem is that the professor is trying to argue laws and facts against opposition that is almost entirely driven by emotion, fear-mongering, dishonesty and hysteria.

15 thoughts on “Waning Monday Ethics Shadows, 5/16/2022: SCOTUS, Senate Candidate Gibberish, And A Yale Law Professor Shows Integrity

  1. How can congress write a law and ban judicial review of that law? That seems to be a violation of the separation of powers… I suppose I need to read the decision though.

    • It’s banning review of immigration judges’ decisions, not of the law.

      Immigration judges aren’t really judges and so I must digress again to a problem I have with many people who believe what you call something is what the thing is. An AUMF is a deceleration of war, a CR is a budget, an immigration judge is an employee of the justice department, not a judge. And Gorsuch is right in my opinion, anyone subject to the justice department’s acts has the right to contest those actions in court, that’s what courts are for.

      Incidentally, as it may come up in the near future, magistrate judges aren’t really judges either, they’re people chosen by judges to, I shit you not, issue warrants, hear and rule on motions (including extradition and summary judgment,) and preside over civil cases. Their authority is derived from that of the judge that hired them. They essentially act an the judge’s agent when the judge doesn’t want to do the work herself–and given the caseload an average judge carries in our undersized judiciary–they’re necessary.

      How messed up is that?

  2. It’s a harsh decision, and one I am a little surprised at. I used to do a fair amount of administrative law work where various lesser officials, either arbitrators appointed by the State Board of Mediation or administrative law judges, who are actually employees of the executive branch of state government, same as immigration judges here, would hear various types of cases, in this case mostly involving employment. Generally, the administrative law judges act as a clearing House, as it were, for the various state boards and commissions that oversee any number of things, from permits and public utility policy, to various professional standards, to civil service.

    I dealt mostly with the Civil Service Commission, and the way things usually worked would be that the administrative law judge would take testimony and review the various documents and render what was called an initial decision, which would then go before the Civil Service Commission, who would review it (much more quickly) and decide to accept it, modify it, or overturn it. Once that was done, however, that was only deemed to be the end of the administrative process, and further relief could be pursued in a judicial form, typically by appealing to the Appellate Division of the NJ Superior Court. Certain findings of the administrative body were entitled to deference before the court, however, the court always had the power to overturn manifestly erroneous findings, although mostly findings of law. Overturning findings of fact, particularly where credibility is involved is legally a justifiably high bar. It is generally held that the judge who actually hears the testimony, seize the demeanor of the witness, and can make a finding based on all of that how everything “hangs together” (the Court’s words, not mine) is in the best position to judge credibility. This is also why generally a jury’s findings of fact or of credibility in the trial division of the Superior Court are usually not reviewable on appeal. Appellate courts do not exist to simply give a litigant an additional bite at the proverbial apple until he gets the sought-after result.

    In this case, the immigration judges have limited jurisdiction, and most of what they hear involves individuals who are not citizens and do not have the same rights that US citizens have, including access to the courts. They act as both fact finder and decider of law, and, likewise, they are in the best position to decide issues of fact and credibility that come before them. However, unlike the various administrative courts that I used to frequently appear in, their jurisdiction is exclusive statutorily, and their governing body’s decision is considered the final decision in this unique and limited area, with no right of further appeal to a judicial forum.

    The result here is a harsh one. It is also one that no doubt those in favor of open borders or some permutation thereof will not like. It is generally the American way of handling things that if you do not like the way something goes, you file a lawsuit or an appeal and hope someone higher up the food chain will see it your way. This closes that door for any number of individuals who will be otherwise deemed removable or excludable. Unfortunately, the United States has to maintain some form of control over who is and is not allowed to enter and remain in this country, and allowing routine appeals to the Federal courts wood further clog an already overburdened system with appeals from every individual who sought entry and was turned down. In this case, it sounds like this was not a test case involving some poor otherwise innocent person who just messed up when he filled out a form. He wasn’t supposed to be here in the first place, and it should come as no surprise that when things finally caught up to him the authorities did not choose to have mercy on him. In this case, they did not have to.

    I am familiar with Federal magistrate judges also. I don’t appear in Federal Court very much, and I’m not sorry that I don’t, because those are usually the civil rights cases that are major headaches and involve dealing with very nasty attorneys on the other side. Magistrates, who are typically hired for 7 years at a time and can be let go at the end of their 7 years do almost everything that the district judges do. The only two things that they do not do or cannot do, at least in the District of NJ, are dispositive motions and jury trials. Typically, however, at least in a civil setting, their role is to oversee discovery, amendment of pleadings, and all the other preliminary matters leading up to trial. In a criminal setting, which they also handle, since the federal courts do not have judges assigned exclusively to civil and exclusively to criminal like the state courts, they do less, because things quickly moved to either dispositive motion or jury trial. They also serve as a “pool” from which district judges are often nominated. It is correct that they generally handle the work that the district judges themselves do not or cannot, since they are often tied up presiding over criminal trials due to the constitutional right to a speedy trial. However, to Congress alone belongs the power to constitute tribunals inferior to the Supreme Court. That being the case, creating judge ships is often a political football. The federal courts might well benefit from the addition of judges. However, if one party is doing the adding, accusations of court packing arise. Likewise, the federal courts might benefit from organizing its judges into divisions, each responsible for specific types of cases. However, that is also vulnerable to accusations of politicking, like moving too many conservative judges into the Civil division to shut plaintiffs out, or moving too many liberal judges into the criminal division to make it a little too easy for criminals to get away.

    • Steve-O-in-NJ: “seize the demeanor of the witness.”

      One of the funnier typos I have seen today. Just imagine being the witness!


  3. #1: just the latest example of the Founder’s brilliance in making Senators an appointee of the State Legislature.

    This yahoo would never be considered for the Senate under the old rule.

    The worst you would get is the occasional Calhoun.


  4. Steve
    I think you hit the nail on the head with this statement:

    “Unfortunately, the United States has to maintain some form of control over who is and is not allowed to enter and remain in this country, and allowing routine appeals to the Federal courts wood further clog an already overburdened system with appeals from every individual who sought entry and was turned down.”

    We currently have an immense backlog of immigration cases which is a result of intentionally having policies that encourage illegal entry into the United States. Much of this backlog is by design in order to allow the offender to later claim that removal would cause undue hardship as the “immigrant” has established roots in the community. The sole argument for DACA centers on this idea. Current estimates of the number of people who will be apprehended by the CBPS will be something in the neighborhood of 18,000 persons per week when Title 42 expires. At this rate there will never be enough appointed judges, magistrates or Administrative Law judges to handle the expected caseload. Had the court gone the other way and allowed a factual error (if it was one) to be reviewed every case henceforth would attempt to appeal the facts of their own case and further clog up the system.

    If our immigration system is broken, as so many claim, Congress could pass a law that allows for possible reentry after a period of time. So far they have not, so it is not up to the judges to legislate from the bench. The fact that this case made it to the Supreme Court makes it obvious that the case got judicial review and thus due process.

    I don’t believe our immigration system is broken I believe it has been sabotaged by activist groups, Immigration lawyers, politicians and business interests.

  5. Just another example of federal government overreach in establishing powerful rule-making agencies that are not readily subject to review and which our Congress has been unable or unwilling to rein in. Just like the BATFE which has the authority to declare that a small gun part, or a chunk of metal that could be made into a gun is, in fact, a firearm. The power and reach of the federal government today would outrage the Founders, as it should all Americans.

  6. Justice Barrett wrote:
    “When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances,” she wrote.

    But federal courts “have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends—specifically, whether it precludes judicial review of factual findings that underlie a denial of relief,” Barrett wrote.

    If, Congress has given the Attorney General power to grant relief from removal in certain circumstances why has Merrick Garland not done so? Given that he looks the other way at issues at the southern border then there is more here than meets the eye or Garland is allowing this guy to be deported to make the conservative Justices take the blame so as to elevate the level of emotion directed at the court.

    • The AG has delegated that to the Immigration Judges. For him to intervene PERSONALLY to save someone about to be shipped back wherever would be a political bomb burst.

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