“Errand Boy”: Retired Judge Resigns From Supreme Court Bar In Blistering Letter To Chief Justice Roberts

There has been considerable coverage of a letter from retired Hawaiian judge James Dannenberg who resigned from the Supreme Court Bar in protest over what he views as a court become little more than an “’errand boy’ for an administration that has little respect for the rule of law.” While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base. Indeed, the letter appears to denounce the Court for being “results-oriented” because it does not reach the results that he prefers. While the conservative justices as chastised for voting in bloc, he has no such qualms about the liberal justices voting as a bloc in the same cases. One is viewed as ideological while the other is viewed as . . . well . . . right.

Dannenberg makes clear that the current conservatives are not in the model of his liking. Instead, he cited Justice Lewis Powell as an ideal. It is a curious choice. Many of us have been critical of Powell’s jurisprudence particularly his horrendous concurrence in Bowers v. Hardwick, 478 U.S. 186 (1986), allowing the criminalization of homosexual conduct. He later said that, while he probably got it wrong, he did not think it was such a significant opinion and he did spend much time afterward thinking about it.

Dannenberg states:

“Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.”

There is no objection to vetting organizations from the left or the even more consistent voting pattern of some liberal justices. Instead, Dannenberg just dismisses the conservative jurisprudential principles (long advocated by many thoughtful conservative academics) as “mere fig leaves masking right wing political goals; sheer casuistry.” Yet, the liberal principles cited by the dissents are expected as true and worthy statements of the views of those justices.

Dannenberg’s letter reflects a glaring hypocrisy from many politicians who have railed against the five conservative justices while praising the liberal justices routinely voting in dissent. As I have previously written, I have testified in hearings where this logical disconnect is raw and obvious but unaddressed by the media. It is a common narrative. Democratic Senator Sheldon Whitehouse of Rhode Island asked in one hearing, “When is a pattern evidence of bias?” Whitehouse described a voting pattern of a conservative cabal that he described as the “Roberts Five” of “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.” He noted his staff discovered that the five conservatives justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the conservatives vote so often as a five justice bloc?

As with Dannenberg, this ignores the countervailing “pattern” of those four justices always found in dissent in the same 5-4 decisions. Moreover, we should want our justices to have consistent voting records based on their views of jurisprudence.

You can reach your own conclusions. Here is Judge Dannenberg’s letter:

The Chief Justice of the United States

One First Street, N.E.

Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

172 thoughts on ““Errand Boy”: Retired Judge Resigns From Supreme Court Bar In Blistering Letter To Chief Justice Roberts”

  1. Grateful that judge James Dannenberg is a retired Federal judge. His rants cause one to think he spent muck of his time at the bench making judicial errors which he expected to be enshrined by stare decisis.

    Roger Taney is reading Judge Dannenberg’s rant from wherever he is, and looking up from the asbestos edition of his favorite newspaper to say, “Damn. I wish they thought stare decisis exempted the Dred Scott V. Sandfordruling from the Emanicpation Proclamation.

  2. For those following the COVID (house arrest) epidemic, the following medical paper was released today in a reputable medical journal. Quite possibly a case of schadenfreude.

    West CP, Montori VM, Sampathkumar P. COVID-19 testing: the threat of false-negative results [published online ahead of print April 9, 2020]. Mayo Clin Proc. [https//doi.org/10.1016/j.mayocp.2020.04.004].

    As tests become more available, observing principles of evidence-based clinical reasoning concerning the meaning of diagnostic test results is essential. For negative test results in particular, failure to do so has direct implications for the safety of the public and healthcare workers and for the success of efforts to curb the pandemic. Specifically, anticipation of a less visible second wave of infection from individuals with false negative test results is needed.

    …test performance characteristics (and the validity of the studies generating them) have not been reported clearly or consistently to date.

    Fundamental characteristics of clinical diagnostic tests for COVID-19 infection including sensitivity, specificity, and corresponding likelihood ratios are largely unknown. Sensitivity is particularly important in understanding the risk of false negative testing.

    The diagnostic sensitivity of reverse transcriptase polymerase chain reaction (RT-PCR) testing for other viruses is highly variable, but early data from China suggested relatively poor sensitivity of initial RT-PCR tests. *

    * Estovir: that number is 71%

    Even with sensitivity values as high as 90% the magnitude of risk from false-negative test results will be substantial as testing becomes more widespread and the prevalence of COVID-19 infection rises.

    1. Sensitivity of Chest CT for COVID-19: Comparison to RT-PCR
      Yicheng Fang, Huangqi Zhang, Jicheng Xie, Minjie Lin, Lingjun Ying, Peipei Pang, Wenbin Ji

      In our series, the sensitivity of chest CT was greater than that of RT-PCR (98% vs 71%, respectively, p<.001). The reasons for the low efficiency of viral nucleic acid detection may include: 1) immature development of nucleic acid detection technology; 2) variation in detection rate from different manufacturers; 3) low patient viral load; or 4) improper clinical sampling. The reasons for the relatively lower RT-PCR detection rate in our sample compared to a prior report are unknown (3). Our results support the use of chest CT for screening for COVD-19 for patients with clinical and epidemiologic features compatible with COVID-19 infection particularly when RT-PCR testing is negative.

      1. Being a cancer patient over 60, I had my chest X-ray done at an ER at my primary care provider’s suggestion when I began having signs my head cold was moving to the lungs. Fortunately, I had a clear chest. Oddly, not meeting CDC guidelines for COVID-19 testing (oral temp over 100.4 F) sent me to the more sensitive test. I live in a rural county and was the only patient being seen, so I didn’t take a bed someone else could have used. I wonder if portable ultrasound has that kind of sensitvity.

        1. I wonder if portable ultrasound has that kind of sensitvity.

          The study I referenced used CT, not standard X-Ray nor US. We can not extrapolate CT findings in the above study to infer US would be as sensitive. It more likely would have been sensitive since that is the advantage of US without the radiation CT offers. But we can not conclude with certainty without a specific study investigating as such.

          Prayers that your cancer is eliminated with no relapse

    2. I don’t see the schadenfreude.here. Not sure why anyone would take delight in such a situation.

      However, it appears that newer and better tests are being developed very rapidly and one hopes that there will be fewer false negatives. False positives, obviously, are no significant danger. You simply test again with a more elaborate and precise mechanism.

      For reasons I don’t care to give, I am concerned about the risk of false negatives in large groups of people.

      1. Democrats do not want the malaria drug (chloroquinone?) to be used because it might help COVID patients. Democrats are demanding everyone get tested. According to the above comment, current COVID tests result in false negatives. That means people will walk away thinking they are negative when it is possible they are positive and therefore demanding testing spreads the illness . Not sure about all of the scientific stuff that commenter wrote but schadenfreude makes sense.


  4. bythebook —- I am under the impression that poster Young went to law school.

  5. This may be the perfect political occasion for examining the federal courts and making adjustments to their power.

    Conservatives already want to neuter them because of their leftist, Living Constitution, excesses and nationwide injunctions.

    Liberals may want to give them a haircut because they don’t want the abuses they have nurtured, praised and exploited to fall into the hands of a judiciary appointed by Trump.

    If it happens, they brought it on themselves.

    1. Liberals may want to give them a haircut because they don’t want the abuses they have nurtured, praised and exploited to fall into the hands of a judiciary appointed by Trump.

      Not if they believe they can throw the baby out, regain power and keep the bath water. It took them years to build their activist courts and the last thing they want to do is start over.

      1. They can only fill vacancies if they regain power and Trump appointed young judges.

        They might try FDR’s court packing scheme. The Constitution does not specify that there be 9 justices. Given the excesses engaged in during the last few years I would put nothing past them.

        1. What a hypocrite. Young overlooks the stealing of the current majority by the GOP Senate majority abandoning their constitutional duties, then in anticipation of payback – yeah, that bar is down – accusing the Democrats of maybe acting like Republicans.

    2. Young, the majority of Federal Judges are Republican appointees. So I dont know why you’re calling the courts ‘leftist’. But I think it’s just a habit Birchers cant break.

      1. So I don’t know…

        Paint Chips, if you were to begin any of your posts with that one phrase, you would be guaranteed to have something correct in every post you make.

        And to think you get such wise advise free of charge. You’re welcome.

  6. Federal courts are courts of limited jurisdiction.

    They can hear only matters that Congress allows them to hear.

    Judges like this letter writer and those who have been issuing nationwide injunctions validate the argument for Congress curtailing their ability (real and pretended) to interfere in many issues.

    1. That’s false. Federal courts hear cases involving laws passed by Congress, but also constitutional issues, including whether those laws congress passes are in compliance with it.

        1. See if you can find areas of jurisdiction not proscribed by Congress. It will be fun, like looking for the rabbits in the trees in your coloring books.

          “Section 2.
          The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

          In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

          The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”

          1. I am wasting my time saying anything to you, but look at
            Section 1 of Article III. The judicial power is vested in the Supreme Court, as well as inferior courts established by Congress.

            What Congress can establish it can unestablish. The power rests with them.

            There are a number of instances in which jurisdiction has been curtailed. Try challenging a final decision of the Department of Labor in District Court. You can’t by statute.

            1. Young, you posted:

              “Federal courts are courts of limited jurisdiction.

              They can hear only matters that Congress allows them to hear.”

              Setting the number of inferior courts to the SC is not the same thing as limiting what those courts may hear.

              If you are a lawyer – perish the thought, though a good example of the need for law schools to quit being just trade schools and teach the history and philosophy behind the law as some of us were discussing here recently – hopefully you’re not that sloppy when on the clock.

              1. BTB– You agree that Congess can set the number of lower courts.

                If Congess sets that number at zero what jurisdiction do they have?

                1. Young, you wrote:

                  Federal courts are courts of limited jurisdiction.

                  They can hear only matters that Congress allows them to hear.

                  Young, the SC has jurisdiction and hears those issues enumerated in the Constitution, and once Congress sets the number of inferior courts, they hear those issues enumerated in the Constitution.

                  So, unless you think the SC is not a federal court, you’re wrong on that count, and you’re wrong on the Congresses ability to “allow” what inferior courts can hear.

                  Maybe Olly can help you on this. Somebody needs to..

                  1. here’s the US attorneys saying the expression– is this good enough book?


                    “Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties.”

                    1. Thanks Kurtz. As I said, the federal courts are guided by the Constitution AND federal statutes – obviously – and not by Congress as Young falsely asserted.

                  2. Here is a jurisdictional limit imposed on the district courts by Congress. 28 U.S.C. section 1332. In diversity jurisdiction cases the amount in controversy has to be at least $75,000 or you won’t get in the door.

            2. I am wasting my time saying anything to you, but…

              There is no but. He and his ilk have their truth and there is nothing you can say, do, show, evidence or whatever that will give them that aha moment of clarity. We’ve been at this for years with them and they haven’t budged an inch.

              1. OLLY–You are right. I was wasting my time. Amazing he is still cracking on about the philosophy of law. He spoke with law students and professors about it and, as he says, their answers were not encouraging. I suspect they found talking with him was not encouraging too.

          2. book, what Young said is what they tell us like the first day in Constitutional law class. It’s basic.

            perhaps it would help to elaborate this, or would you be offended?

            1. Kurtz, Young’s assertion is false. He said:

              “Federal courts are courts of limited jurisdiction.

              They can hear only matters that Congress allows them to hear.”

              The SC is a federal court not limited to what Congress “allows them to hear”, nor are inferior courts, once established by Congress, allowed to hear only what Congress says.

              Maybe he meant to say something else.

              Is it to much to ask an attorney to correctly wordsmith his statements? Are the concepts too complex for him. More likely, after preening and posturing with his girlfriends – mespo’s favorite pass time here – he lacks the fortitude to write to correct what he meant.

              1. btb:

                Well, as usual, you’re wrong but this misogyny is new. Falling out with the misses? The inferior federal courts could be abolished tomorrow by act of Congress and we’d probably be better off for it. They were established by such an act in 1789 — Judiciary Act of 1789. Now SCOTUS could be more problematic but only nominally so as a creation of the Constitution but Congress still holds the purse strings and the grant of jurisdiction. SCOTUS has very limited original jurisdiction spelled out by the Constitution* (with Congressional regulations) and whatever else Congress wants to give it.

                Quit trying to be a lawyer, you look like Don Quixote or maybe just Rocinante.

                *In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

                1. mespo, abolishing or setting up inferior courts is not the same thing as telling them what they can hear, as Young alleged, nor can the Congress dissolve the SC, which inconveniently for Young, is also a federal court.

                    1. mespo, you left out Section 2:

                      The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

                    2. This version of Anon has you over a barrel Mespo. Wait until he tells you that he was Clarence Darrow’s advisor and teacher. 🙂

                    3. “btb: You really can’t read can you?”

                      Mespo, there are two frequent posters that can’t read.

        2. MESPO– You are right. Somebody fed BTB a false script. Congess has the power to abolish all federal courts or define the limits of their jurisdiction with the exception of the Supreme Court, the only court established by the Constitution. That court, too, is a court of limited jurisdiction.

          The only courts of general juridiction in the United States are the major state trial courts like the superior court in California, the circuit court in Florida and, oddly, the supreme court in New York.

          Time for Congess to step up and trim the jurisdiction of the federal district courts, particularly their equitable powers used for injunctions. Could be some legal issues they could be barred from considering as well.

          1. when i went to law school i already understood the federal govenment had enumerated powers

            i also knew plenary jurisdiction for cases was in the states, devolved from the Crown

            and that there was federal jurisdiction over federal questions related to federal statutes, and also maritime, and also diversity jurisdiction. yeah i worked in a law firm even before law school

            but it was second semester constitutional law before I learned about the following topic which was hinted at above….. really it is a fascinating topic. so, im going to paste in the whole wiki article, its a good start


            Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers.[1] First, Congress holds the power to create (and, implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (i.e. Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This court-creating power is granted both in the congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This court-limiting power is granted in the Exceptions Clause (Art. III, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by “knocking [federal courts] … out of the game.”[1]

            Alexander Hamilton had this to say about the issue in The Federalist:

            From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.[2]

            Transfer of authority to state judiciaries
            Framers of the Constitution, such as Roger Sherman of Connecticut, did not envision jurisdiction stripping as invariably insulating a law from judicial review, and instead foresaw that state judiciaries could determine compatibility of certain types of state statutes with federal laws and the federal Constitution. In 1788, Sherman publicly explained that,

            It was thought necessary in order to carry into effect the laws of the Union, to promote justice, and preserve harmony among the states, to extend the judicial powers of the United States to the enumerated cases, under such regulations and with such exceptions as shall be provided by law, which will doubtless reduce them to cases of such magnitude and importance as cannot be safely trusted to the final decisions of the courts of particular states; and the constitution does not make it necessary that any inferior tribunals should be instituted, but it may be done if found necessary; ’tis probable that courts of particular states will be authorized by the laws of the union, as has heretofore been done in cases of piracy, &c. …[3]

            Thus, there are two kinds of jurisdiction-stripping: one which changes the court that will hear the case (as Sherman envisioned), versus one which essentially insulates statutes from judicial review altogether. Jurisdiction-stripping statutes usually take away no substantive rights but rather change the court that will hear the case.[4]

            Congress has sometimes limited federal involvement in state cases, for example by setting a minimum amount in controversy in order to bar the lower federal courts from hearing diversity cases that involve less than that amount (currently $75,000), combined with precluding a right to appeal to the Supreme Court.[5][6] Likewise, Congress has never required that state court cases involving federal questions be removed or appealed to federal court, and so the federal courts are unable to exercise power in many of those cases.[7]

            Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court’s original jurisdiction defined in the U.S. Constitution. Congress can limit only the appellate jurisdiction of the Court.[8] According to the Constitution, the Supreme Court has original jurisdiction in, “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party. … ” This last state-shall-be-a-party language does not mean that the U.S. Supreme Court has original jurisdiction merely because a state is a plaintiff or defendant, even if a provision of the U.S. Constitution is at issue. Instead, the controversy must be between two or more states, or between a state and citizens of another state, or between a state and foreigners.[9][10] Additionally, in 1892, the Court decided that it has original jurisdiction in cases between a state and the United States.[11]

            Story’s theory
            Justice Joseph Story, in his opinion in Martin v. Hunter’s Lessee and in his other writings, wrote extensively about how Congress should ensure that the judicial power is properly vested in the federal courts. Professor Akhil Amar credits Story with the theory that Congress may not concurrently remove the jurisdiction of inferior courts and the appellate jurisdiction of the Supreme Court over certain categories of claims, as doing so would violate the Constitution’s mandatory grant of jurisdiction over such claims to the judiciary as a whole. [12] Story wrote in Martin v. Hunter’s Lessee:

            The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the cases which binds to the exercise of the one in preference to the other.

            According to Amar, Story’s exposition of federal court jurisdiction “has generated considerable confusion” and furthermore, as Amar understands Story’s theory, it “simply cannot be right”.[12] Professor Henry M. Hart instead argued that Congress may strip the power of the federal judiciary to hear certain classes of cases.[13][14] Hart wrote: “In the scheme of the Constitution [state courts] are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones.”

            Calabresi’s theory
            In 2007, law professors Steven Calabresi and Gary Lawson opined that Congress can strip the U.S. Supreme Court of appellate jurisdiction only to the extent that Congress expands the Court’s original jurisdiction.[15] Calabresi and Lawson acknowledged that their theory contradicts the holding of Marbury v. Madison, according to which the Constitution’s description of the Court’s original jurisdiction is exhaustive.

            According to Calabresi and Lawson, Congress has no ability to alter or make exceptions to the judicial power of the United States, or to do anything less than bring the full judicial power into execution. The Calabresi theory finds support in a 2010 article by Washburn University Law Professor Alex Glashausser.[16] On the other hand, Judge William A. Fletcher wrote an article in 2010 taking the opposite point of view.[17]

            Related issues
            Generally speaking, the word “power” is not necessarily synonymous with the word “jurisdiction”.[18] For instance, courts will often assert a modest degree of power over a case for purposes of determining whether it has jurisdiction, or for purposes of receiving jurisdiction.[19]

            The Constitution vests the judicial power “in one supreme Court, and in such inferior courts as the Congress may from time to time establish” (emphasis added). Scholars have debated whether the word “in” means that the entire judicial power is vested in the Supreme Court and is also vested entirely in the inferior courts; that possibility has implications for what the vesting of such power means.[20][21]

            Other relevant Supreme Court cases
            During Reconstruction, Congress withdrew jurisdiction from a case the U.S. Supreme Court was then in the process of adjudicating. In terminating the case Ex Parte McCardle, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.

            We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. … It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.[22]

            In 1882, the Supreme Court again conceded that its own “actual jurisdiction is confined within such limits as Congress sees fit to describe.”[23]

            In 1948, Supreme Court Justice Felix Frankfurter conceded in a dissenting opinion that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred.”[24]

      1. Did you say “laws passed by Congress” and “constitutional” in the same sentence?

        The communists (liberals, progressives, socialists, democrats) haven’t passed a welfare state law that is constitutional in the last 120+ years. Have you ever read Article 1, Section 8, or the 5th Amendment? Congress can’t tax to redistribute wealth, regulate or interfere with private property, meaning the entire welfare state is unconstitutional.

      2. Currently the federal courts also hear cases under state law when the United States is a party or when there is diversity jurisdiction.

        1. KURTZ– Perfect link!

          Page 2 says “it is Congess, not the judiciary, that controls the type of cases that may be addressed in the federal courts.” UNDERSTANDING FEDERAL COURTS by the Administrative Office of the U.S. Courts.

          Now these folks can go argue with them.

  7. I agree that the current administration has little respect for the rule of law.

  8. Glad he took his ball and went home. We don’t need judges with his mentality. Good riddance.

  9. Reader Comment from New York Times opinion regarding Wisconsin Primary

    Court Observer Linda Greenhouse wrote that the Supreme Court’s decision to let Wisconsin proceed with potential health disaster of an election was nakedly partisan in favor of Wisconsin Republicans.

    Here Reader ‘South’ responds to Greenhouse’s piece:

    Note well that the Court’s decision in the Wisconsin case effectively gives a green light to states that in November may try to use the pandemic as an excuse to *intentionally* slow-roll mailing absentee ballots to urban areas and other majority-Democratic locales. I have seen nothing from the Roberts Court that makes me think the five conservative Justices would intervene in such circumstances.

    In Wisconsin, Milwaukee voters had 5 of their usual 180 polling places available. Under such circumstances, there is no way that city’s (largely Democratic) voters could cast ballots in reasonable fashion. The Court announced that it simply did not care–and it is no coincidence that result can be expected to favor the political party to which each of the five conservative Justices belongs.

    This result should sicken any American who cares about the right to vote.

    5 Replies876 RecommendShare

    1. In general, I favor literacy tests to restrict the franchise. I also believe a user fee should be charged to help finance voter identification and verification regimes which need to be improved.

      If the turnout in an election is low, it’s mostly because people make their own choices not to get off the couch or not. It’s a special circumstance now but I will leave it to the system of Wisconsin to resolve their own issues since I don’t live there. The story does not sicken me at all.

      absentee ballots are most certainly abused at times in history. according to Robert Cooley a former lawyer for Chicago politican Pat Marcy and various “outfit” figures, who became and FBI snitch and star witness


      he said in that book that decades ago the Democrat wranglers would round up “piles” of signed blank absentee ballots that they paid $5 (or $10 maybe) a piece for from the “projects” in Chicago to help stack the vote up to a sufficient level of avalanche win.

      I’m just repeating what he said. Juries found him very credible and he helped lock up a lot of corrupt mafia, cops, and even judges.

      1. Kurtz, your selective non chalance over purposeful abuses of our election system by the GOP – they admit it when unguarded and their rational has been proven false even by Trump’s own commission – is disturbing. Your support for poll taxes and literacy tests are irrelevant given the courts long ago ruled on them. Of course what happened yesterday and what the GOP has been trying to do for a decade, with some success is cynical vote suppression, not principled support for what you claim is your position.

        1. Book, you’re right that these devices are now verboten. I am talking about the franchise in general, not just what is lawful under current legal regime. I admit my own political philosophy is not very democratic. Not quite antidemocratic, but, skeptical. I defer to Plato. here is an article that elaborates his critique


          Plato’s antidemocratic theory of social justice is instructive once we distinguish between the abstract parts of his theory and the empirical or other assumptions he uses in applying that theory. His application may have contained empirical mistakes, and it may have been burdened too much with a prolific metaphysics and a demanding epistemology. An attempt is made to look at his theory of social justice in imaginary isolation from empirical mistakes and from his metaphysics and epistemology. It is then argued that some of Plato’s proposals and criticisms of democracy are well worth our attention, especially in the case of governing. His attempt to separate ruling and wealth and to establish economic floors and ceilings for his ideal city seems especially instructive in view of problems in these areas that modern democracies have experienced. Isolating his theory of social justice from his epistemology and metaphysics may be more problematic. Still, Plato’s insistence that superior wisdom is the central virtue of rulers is instructive, and in this respect some modern defenders of democratic justice, such as J. S. Mill and John Rawls, have leaned some in Plato’s direction. Finally, Plato’s criticism of democratic free choice of occupation is less persuasive.”

      2. And find thousands of uncounted ballots after the election stuffed in storage lockers.

  10. Just curious, where is this “considerable coverage” of which you speak? There is a war in progress. Who would possibly care what some old lefty bag of wind thinks

    1. The war is over.

      China executed its preemptive “first strike” attack facilitating the inducement of totally economically destructive panic by the communists in America, beginning and ending World War III before Americans knew what hit them.

      The war protocol was for America to launch a retaliatory “second strike” attack against China to exhibit a viable opposing force.

      It failed.

      Go matriculate at the nearest school with a Mandarin 101 course.

  11. This treasonous communist has no idea which country he is in. Comrade Dannenberg has no grasp of American freedom. The Constitution provides government no authority to tax for redistribution of wealth or charity, to regulate anything other than money, commerce and land and naval Forces, and no authority to claim or exercise dominion over property. The entire communistic American welfare state is unconstitutional. The Constitution provides government no authority over personal “pursuits of happiness” including, but not limited to, marriage, substance ingestion and sexual demeanor. The Constitution and Bill of Rights, with emphasis on the 9th Amendment, provide individuals maximal freedom while they severely restrict and limit government to its prescribed role of merely facilitating the maximal freedom of individuals.

    Judge James Dannenberg was only ever charged with the simple task of assuring that actions comport with statute and fundamental law. It was never his mission or purview to “legislate from the bench.” Judge James Dannenberg should consider his own misunderstandings and failures as an “American” in light of the admonition of Alexander Hamilton:

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

    Indeed, the American Founders were Right Wing Conservatives with an exponent. The Constitution is Right Wing Conservative. America is Right Wing Conservative. Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

    The American Founders conducted a Revolution which eliminated monarchy making the People the Sovereign and government the Subject of the Sovereign. Madison’s observation is a metaphor for maximal American freedom which Americans enjoy:

    Freedom is that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.

    “Private property is that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison

  12. J. Turley is right (as usual). Liberals and Democrats have learned that the squeaky wheel gets the oil and boy do they squeak! Dannenberg is getting the media attention that he wants. such a shame.

  13. Roberts said he calls balls and strikes, he didn’t tell us the Federalist Society owns the field, the players and the plate. It’s a rigged game and Roberts calls them as the Federalist Society wants them called.

  14. He sure do like… That Falstaff beer.
    He likes to wash it down..with that Wild Turley Liquor!
    He’s got a fifty seven GMC pick-up trucl.
    And s him rack! Ropr doper needs love too sticker!
    And it’s Up against The Bar redneck lawyers!
    Lawyers who have raised Hell so well.

  15. Wow, your review sounds a lot like a review of your blog, only reversing the parties.

  16. The more judges act like politicians the more they will be treated like politicians.

    They won’t like it.

  17. SCOTUS Conservatives Endangered Wisconsin On Behalf Of Republicans

    Health officials at both the Federal and State level have advised social distancing and isolation for almost a month at this point. Most businesses are closed and the nation is in a state of semi-quarantine.

    But Republicans in Wisconsin were determined to make sure that a Conservative won election to a full, 10 year term on the State Supreme Court. Republicans also wagered that by holding a state-wide election amid a pandemic, they would put Democrats at a disadvantage. Milwaukee, Wisconsin’s biggest city by far, was able to open only 5 polling stations; down from the normal 180.
    That one fact alone favored Republicans.

    Therefore one could argue that by ruling in favor of Wisconsin Republicans, SCOTUS conservatives were taking an irresponsible and totally unjustified position for nakedly partisan reasons regardless of public health.

      1. Kurtz, I responded immediately to your post on Reade but you don’t seem to have any interest in actually discussing her or the accusation.

        1. Book, Kurtz is stuck in some rightwing media vacuum where the Reade issue is more urgent that Covid-19. He cant figure out why mainstream presses haven’t ground to a halt for Reade.

          1. the socalled mainstream press ignored the story in early february because they were still grasping at the straws of the impeachment. remember? i do

            I was reporting here that the situation in china was bad. you ignored that at the time too seth.

            you are better than this schtick of yours seth. the Wapoo does not need you to rebroadcast their editorial here for free every day. a thinking person like you can bring forth his own insights.

        2. i saw that book responsed briefly last night and I didn’t have much to add to what you said
          Elvis replied as well. thanks to you both.

          Seth has avoided it and now so has Natacha
          They are obviously ignoring it

          so far there doesn’t seem to be a lot to discuss, except the lack of coverage in the media.

          i did see that the biden campaign denied it. biden is apparently not going to be talking about it.
          smart move biden

          complaint media will help bury it. we know that’s where it’s headed. right?

          now if the biden campaign has information which discredits her then they should come forward with it. i personally don’t have my mind made up. I should like to hear anything at all which discredits here. perhaps there is simply nothing, because she is credible, and they’re just relying on the power of cooperation to bury the story.

          We’ll see i guess.

      2. Kurtz, every voter in America has heard the “Acess Hollywood” tape. Why should one accusation against Biden, from 30 years ago, matter now??

        Do you honestly think millions of women will vote for Trump because Biden has been ‘tarred’ by this??

        You are seriously delusional!

        1. You’re insulting me by calling me delusional;. I have some anxiety but delusions are not a problem.


          The incident was in 1993. That was actually 17 years. Obviously Joe is too old for it now. If he tried to shove a 20 something year old girl the girl would probably knock his weak unsteady frame down for it. Biden was a fit man in his earlier days.

          Putting the insult and your incorrect dating aside, the question of relevance is valid. here is my reply.

          a_ it is relevant because Biden is running for President. Like Trump was. And we heard a lot about every allegation against Trump, again and again. This is called “Vetting” and Biden will have to face it eventually,. Although perhaps you hope not.

          b. I didn’t say anything about my hopes about women voting for trump or not. Not once. Go find it and show me if you think so. No actually you just gave voice to your own fear perhaps but I have not stated any opinion about that subject at allo

          You’re quite defensive Seth AND YOU STILL HAVENT ANSWERED THE QUESTION



          IF NOT WHY NOT?

          These are valid questions. You whine all the time about Trump supposedly dodging issues. You’re dodging this issue clearly

          1. Kurtz, 1993 was 27 years ago.

            Again, Reade is not going to drive women to vote Republican. It’s just not going to happen.

            Secondly, Republicans realized the Hunter Biden nepotism angle ain’t gonna fly with Jared and Ivanka in the White House. So they’ve turned to this Reade woman as a Hail Mary pass. But again, Trump has more Me Too issues than Biden. So the bottom line is.. this dog won’t hunt.

            1. Seth, thanks for your speculations about the political angle. I am not really interested in that. it’s fine, I know you are, but I don’t think it would be decisive either way, credible or not.

              the issue is not a “Republican” issue. This is a “Woman’s issue” and there is lot of hypocrisy in ignoring it. but that too is not all that interesting to me.

              I just want to consider it on its own merits. yes the story is very stale– 27 years old is stale.
              and yet, sexual crimes are often not reported, surely you will agree!
              so that alone does not impeach it fully. lateness detracts, but is not fatal to such accusations.

              So, sorry Im a pest but,




              IF NOT WHY NOT?

              1. OK, I’ll answer again.

                The reason this has not gotten attention from major media is because there are questions about the accuser which are legitimate and her accusation does not fit with the other accusations – 8 I believe – against him. That doesn’t mean she’s not being truthful and it didn’t happen. It does mean responsible news sources don’t just go on the statement of one person unless they are of proven reliability.

                In this case, as recently as 2-3 months ago, Reade alleged an incident which was in fact in line with others against Biden – he leaned in close and ran his finger up her neck. It made her uncomfortable. That changed to the current actual sexual assault charge a couple of weeks ago. What explains changing her story?

                She has been an active Bernie supporter – fine, even if she also disagreed with Biden on policy, anything he did which made her uncomfortable could be a rational basis for supporting somebody else. However, she also posted – within the year I think – on Twitter glowing praise for Putin which was over the top. Not just that he was good leader, maybe good ally for the US, whatever, but that he was of sterling character, a good man, etc. That goes not to policy differences but nuttiness.

                So, it could be true. I don;t know and can’t say with certainty it didn’t happen. Who can but her and him. However, there are enough questions about her to make the story questionable and one to put away.

                Do the other accusations against Biden by women disqualify him. I don’t think so, but I’m male. maybe I don’t get it. I do know you can find photos of Biden leaning closely over some pretty unattractive people, which weakens the idea that these are sexual advances by him.

                1. The reason this has not gotten attention from major media is because there are questions about the accuser which are legitimate

                  Plenty of ‘legitimate’ questions about Christine Blasey, Julia Swetnick, James Roche, et al. Didn’t keep them out of the media.

                  1. Absurd, news may not have reached your cave. But the world is having a pandemic and Unemployment is at Great Depression levels.

                    So that could explain why Reade isnt getting attention.

                    1. an alternative explanation is that her case was denied funding from a prominent “metoo” organization which has overlapping staff with biden campaign

                      this is elaborated in both the Intercept article and Democracy now interview


                      Seth still has not evaluated her credibility. Seth, are you reluctant to come forth with an opinion on the merits, why do you keep on dancing around the issue of credibility?

                    2. I gather when they send out the talking points they tell you to try distraction.

                    3. yes the pandemic is the big news and so forth but the election will proceed

                      this is the time to evaluate biden seriously as a candidate, don’t you agree? or when can that start happening?

                      you blame this on republicans and bernie bros but bernie dropping out yesterday makes the subject timely, whether you personally enjoy it or not

                      Joe Biden has the presumption of innocence as against these accusations of felonious sexual assault. He has the right to remain silent. he has denied it via spokespeople. I think Joe should be called on to to say what he remembers if anything

                      Perhaps he will again say, as she claims he said, she is “nothing to me.”

                      I just want to hear what folks think about it. Book has evaluated it, Elvis commented fairly, Paul weighed it some, Absurd took a bite at it. Natch has ignored it and Seth only says that it’s not relevant. Well, Seth my man, Democracy Now give her her due, they listened to her, so why not you? Give it a listen. If you want to poke holes in her story, go ahead. if you can>?

                    4. KURTZ, FROM YOUR ARTICLE:

                      The references to Dovere, a reporter with The Atlantic, and Painter stem from their Twitter posts that highlighted favorable comments Reade had made about Putin in a now-deleted post on Medium. “What if I told you that everything you learned about Russia was wrong?” she had written in one 2018 post. “President Putin scares the power elite in America because he is a compassionate, caring, visionary leader. … To President Putin, I say keep your eyes to the beautiful future and maybe, just maybe America will come to see Russia as I do, with eyes of love. To all my Russian friends, happy holiday and Happy New Year.”

                      Reade says that she learned about Russia and Putin through a Russian friend in her creative-writing group; she is currently writing a novel set in Russia. She wrote the post in the spirit of world peace and solidarity with her friend, she said, adding that the writing should have nothing to do with her allegation. Reade’s leftist mother had raised her to oppose American imperialism and be skeptical of American exceptionalism. She hoped that Time’s Up would be able to help push back against the attacks she knew would be coming.

                2. See here is book taking the question seriously. That is a honest and sincere evaluation. Thanks

                  Why natch and Seth can’t address the topic with sincerity?

                  1. Kurtz, according your article, see post above, Tara Reade sounds a little dubious. No wonder the Me Too funder wasnt interested!

  18. And these are the people who rule on motions and sit in judgment of us whether in a civil or commercial matter or criminal. As you well know from several of your columns on this topic, these people do not have mirrors at home and cannot see the dripping hypocrisy in their condemnation of someone who has a different point of view.

  19. (music)
    He was born.. in Okla Homa!
    His wife’s name was Betty Lou Thelma Liz.
    He’s not responsible for what he’s doing.
    His mother made him what he is.

    So it’s up against the Bar dumpchuck lawyer.
    Lawyer who has raised some hell so well.
    He’s ninety four and drinking in DC bars.
    Kicking chicky asses and praying for Hell.

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