by Political Arena Editor Chuck Norton
[Editor’s Note – We have no problem with the content of Judge Barrett ‘s personal character. The problem is too many judges and lawyers from academia using willy-nilly reasoning to treat the 1st, 4th and 14th Amendments, Separation of Powers, and other limits in the Constitution as mere suggestions. Far too many law schools teach this very same nonsense – Justice Scalia was right to call it out as he did.]
How many times have conservatives pundits said, “Republican’s stink at picking justices, we keep getting hoodwinked again and again.” Republicans tend to pick justices, with a few noted exceptions like Justice Thomas, that are breathtaking disappointments. Judge Roberts promised to “call balls and strikes” as a justice and he has become one of the worst political operators in the court’s history. Part of the problem is Republican over reliance on academia and The Federalists Society who promote judges who claim to be originalist and textualists, but fall quite short in practice.
Notice we are NOT bringing up Judge Barrett’s religion. Our problem is that several of her rulings show an authoritarian streak that would make a “Deep Stater” or those illegally engaging in domestic spying giggle with glee. Several of Barrett’s rulings go exactly contrary to President Trump’s stated positions. We linked to several of Judge Barrett’s rulings in a previous post. In this post we are going to delve into her ruling on Illinois’ draconian and selectively partisan enforced enforced COVID shutdowns. It is not just chilling in it’s wrong headedness and intellectual dishonesty, but as some believe, goes against accepted judicial norms.
We are also going to try to keep it as short as possible so that readers can actually get through and understand this piece. Enough milk, time for the meat.
The case is Illinois Republican Party vs Governor Pritzker. This case is exactly what President Trump has been vocally against, Democrat Governors taking the COVID “emergency” and going way too far with it and using it as a political weapon to decide who wins, who loses , who gets to exercise their rights and who doesn’t based on partisan preferences. Governor Pritzker was/is doing what several other Democrat governors are doing, allowing BLM and other left wing protests and activities to go on, but if Republicans or conservatives want to gather to make their voiced heard the police are sent in. Equal justice under the law and similar due process are just the tip of the iceberg of the legal problems with Gov. Pritzker’s behavior.
Judge Barrett wrote that the Supreme Court has ruled that all rights do not have to be measured with the same scrutiny or rule stick. That is true, but she also ruled that government has wide latitude to do what it wants, including the violation of constitutional rights during emergencies and medical crisis….and left it just that broad.
To justify that ruling Barrett cites as precedent Jacobson v Massachusetts, a ruling that has been considered archaic and fails rationality by today’s standards. Jacobson is a 1905 ruling where the court ruled that it was reasonable for the state to force people to get certain vaccinations and set a “precedent” that the government can appear to violate the rights of citizens should a sufficient emergency exist….readers can likely already see a very steep and slippery slope coming.
In 1905 there was no National Institute of Health, no CDC, no massive medical research being done at most universities, charities, and pharmaceuticals etc. In 1905 communicable disease was the number one cause of death. Today there is no need for such draconian mandates as medical treatments for most any ailment are plentiful and diverse. Even the National Institute of Health has published peer reviewed papers saying that rulings like Jacobson are completely unnecessary and violate people’s liberty.
The authors of Jacobson v Massachusetts foresaw that their ruling could be abused and they issued the following note of caution:
While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.
For years that warning was ignored and the results were disastrous.
Jacobson v Massachusetts was cited as precedent to justify Buck V. Bell:
In 1927, in Buck v Bell, the US Supreme Court upheld a Virginia law that authorized the involuntary sterilization of “feeble minded” persons in state institutions. Theories of eugenics enjoyed some medical and scientific support during the 1920s and 1930s.49 The Court found that the law served the public health and welfare because “mental defectives” would produce degenerate criminal offspring or imbeciles who “sap the strength of the state.”48(p207) In a chilling opinion, Justice Oliver Wendell Holmes concluded:
Society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v Massachusetts, 197 US 11. Three generations of imbeciles are enough.
Jacobson was cited as support for the general principle that public welfare was sufficient to justify involuntary sterilization. The decision extended the police power’s reach from imposing a monetary penalty for refusing vaccination to forcing surgery on a young woman against her will and depriving her of the ability to have children. The Court did not require the state to demonstrate that sterilization was necessary and not arbitrary or oppressive. This suggests that the Court did not view Jacobson as having required any substantive standard of necessity or reasonableness that would prevent what today would be considered an indefensible assault. The Court did not even consider that Carrie Buck might have any right to personal liberty. With the Court’s imprimatur of involuntary sterilization laws, more than 60 000 Americans, mostly poor women, were sterilized by 1978.
Jacobson v Massachusetts was also cited to justify the emergency powers used in Korematsu v United States where the court ruled that the internment of Japanese Americans was acceptable.
A Jacobson citation for government emergency powers in certain emergencies can be used rationally, such as in Justice Thomas’ dissent in Hamdi v Rumsfeld saying that emergency powers can be used to house enemy combatants without habeas corpus. Holding prisoners of war is reasonable, but notice the court majority did not accept Thomas’ view and ruled that the liberty of those prisoners was paramount enough for the court to intervene, Jacobson was ignored.
Jacobson v Massachusetts, in it’s context, is considered archaic and flawed by todays standards. It is used selectively and applied inconsistently for outcome based rulings and judging by President Trump’s many comments on the unfairness of the COVID lockdowns he certainly would not approve of Judge Barrett’s ruling. Judge Barrett ignored the warning quoted above in Jacobson about the application of emergency powers in an arbitrary manner to get to her desired outcome, thus tossing the 14th Amendment, equal justice under the law, and the 1st Amendment out the window.
This idea that Judge Barrett puts forth that Jacobson has always been the guiding light and all the government has to do is declare emergency and most anything goes is ridiculous. The liberty tests such as strict and intermediate scrutiny, among others, that the courts use did not even exist when Jacobson was written. The last fifty years of jurisprudence has severely undermined Jacobson as a functioning precedent and to say that it is overly broad is the understatement of the century, which is why the authors of it warned of the ruling’s potential for abuse.
Fortunately there are judges who paid close attention to the warning in Jacobson and used that warning to apply a rational context to it. Such judges include Justice Samuel Alito and Judge William Stickman IV.
Judge Stickman, a Trump appointee, ruled that Pennsylvania’s COVID shutdown, which was abused in the same way as Illinois, is unconstitutional. His ruling is a legal and academic home run, a clinic of you will, on the liberty of the individual as guaranteed by the Constitution vs the emergency powers of the state when the state violates their own rules for their own partisan advantage. The courts often strike things down for being overbroad and arbitrarily imposed – well read Judge Stickman’s amazing rulings, including where he quotes Justice Alito, at the following links – http://www.courtlistener.com/recap/gov.uscourts.pawd.266888/gov.uscourts.pawd.266888.79.0_1.pdf
If you lack the time to read it attorney turned VLAWGer Viva Frei summarizes both of Judge Stickman’s rulings beautifully. You will not regret watching:
Compare Judge Stickman’s ruling to Judge Barrett’s. It shows an intellectual mismatch and understanding of the law that is breathtaking. Barrett’s ruling by comparison is inept, intellectually dishonest, and quite frankly juvenile. Such a ruling is disqualifying to sit on the highest court in the land. It seems the Deep State has won again.
UPDATE – Famed Attorney Robert Barnes reviewed Judge Barrett’s last forty 4th Amendment cases:
Few judges in America would be worse on FISA & Fourth Amendment issues than Barrett. In 40+ cases I read & reviewed by Barrett, she sided w/ the government over 90% of the time, a near-record, calling judicial remedy for 4th Amendment violations “not a personal right.”
A highlighted list of excuses Barrett used to excuse Fourth Amendment violations: the dog sniff was just a little extra at a traffic stop; “consent” from abbreviated demands by police to sign an unread document; magical sniffing abilities of police; near a border; cars can move.
More Barrett excuses for 4th Amendment violations: blood draws don’t “invade” your privacy; it’s ok to be incompetent in violating civil rights if not “egregiously” or “mostly” incompetent; cops acting “outside jurisdiction” is just “too bad” & no “personal right” to remedy 4th.
Barrett immunized almost everyone accused of rights violations, granting immunity in 90%+ of all cases she decided on the topic & she hasn’t found for a single person that ended up dead in police custody while explaining it’s ok to kick someone on the ground to “control” them.
A list of the cases you can research & read for yourselves – LINK.