Wednesday, June 29, 2022




Trump said in 2016 that we’d get tired of all the winning, but I don’t think I can ever get tired of the clean sweep coming from the Supreme Court lately (with a nod toward an excellent decision also out today from New York’s appellate courts).

The biggest win today is Kennedy v. Bremerton School Districtin which the Court ruled by a 6 – 3 margin (familiar number by now) that a high school football coach who prays on the field after games does not violate the First Amendment’s “establishment clause.” It overturns explicitly what has been eroding for 25 years—the three-part “Lemon Test” from the 1971 case of Lemon v. Kurtzman, made back in the hey-day of the Supreme Court fashioning “balancing tests” out of thin air. That test was a lemon indeed. One of the refreshing things of the new Court is that it is abandoning the unprincipled “balance test” jurisprudence. Long overdue.

This moves us one step close to implementing the Handmaid’s Tale, which is of course the object of constitutional originalism. (Memo to the humor-deprived: this is sarcasm.)

But that wasn’t the only good news out of the Court today. They also ruled in a comparatively minor case, Xiulu Ruan v. United States, that the burden of proof in cases of doctors charged with overprescribing opioid pain killer belongs on the government rather than the doctor. This reverses the current burden of proof. As the executive summary puts it:

The jury in Ruan was not instructed to consider Dr. Xiulu Ruan’s “good‐​faith defense,” i.e., that he was indeed prescribing the drug “legitimately” to treat pain based upon his good‐​faith assessments of his patients’ medical contexts and requirements. The Supreme Court held “the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.”

The overreaction to the promiscuous abuse of opioids over the last 20 years has deterred even the most scrupulous doctors from writing prescriptions for opioid pain killers, and this is cruel to the many people who legitimately need them. It has probably made the opioid problem worse in fact, as corrupt doctors run pill mills and work through elaborate schemes to avoid detection. And more generally, any time the burden of proof is shifted from citizens to the government is a good day in court.

We’re still awaiting West Virginia v. EPA, which ought to drop in the next couple days. If West Virginia wins, watch for the climatistas to freak out.

Finally, this out of the New York state courts today:

A law that would have allowed noncitizens to vote in local elections in New York City was struck down on Monday by a State Supreme Court justice on Staten Island who said it violated the State Constitution.

The measure, which was passed by the City Council in December, would have allowed more than 800,000 permanent legal residents and people with authorization to work in the United States to vote for offices such as mayor and City Council.

But Justice Ralph J. Porzio ruled that the new law conflicted with constitutional guidelines and state law stating that only eligible citizens can vote. To give noncitizens a right to vote would require a referendum, the judge wrote.

This reasoning sounds a bit muddled, but a win is a win, and I’ll take it. Still not tired of all the winning.

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