It is difficult to say with certainty, without more facts, whether Kim Davis’ legal team is corrupt, incompetent or simply weak.
The team was warned that it was futile to pursue a philosophical argument on religious rights in any court in this country. The courts are no longer inclined to entertain such arguments. The appeals court’s statements that,“It cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court,”…;and, “There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal.”; clearly demonstrate a severely corrupt judiciary.
A so called “dispositive holding” is a prejudgment based on the presupposition that a particular argument is without merit which is an unconstitutional denial of justice. Moreover, the so called “dispositive holding” is not founded on the US Constitution rather it results from convoluted parsings of prior court decisions.
The rule of law is paramount and that is the only irrefutable legal argument they should make. “Case law” is a concept born of a philosophy posited by Chief Justice John Marshal, in Marbury v Madison; but it is not a law.
In the centuries since the Marbury v Madison decision neither congress nor the states have ever codified or sought to codify Marshal’s notion in federal law or as an amendment to the US Constitution. Therefore the notion that “case law” is tantamount to legislation, and binding on anyone other than parties to litigation before the court; or that by simple majority the court could circumvent the legislative process prescribed in the US Constitution. is not expressed or implied anywhere other than the opinion of John Marshal in the Marbury v Madison opinion; so “case law” has no constitutional founding.
The US Constitution empowered congress to enact legislation to establish the structure of the judicial branch. That legislation is known as the Judiciary Act of 1789. This Act nor the US Constitution expresses or implies that the judicial branch has any power to change or ignore any federal law or precept of the US Constitution, for any reason; nor does either empower the judiciary to confer powers upon itself, under any circumstance.
However, without any constitutional founding whatsoever; which Marshal, himself acknowledged, Marshal theorized that he had the power to declare the Act unconstitutional; and on that premise he decided Marbury v Madison; however the Act remained intact because only congress had the constitutional power to amend or repeal the Act in whole or in part.
The Judiciary Act nor the US Constitution have ever been amended to reflect Marshal’s view therefore the judicial branch does not have the power to amend repeal, invalidate or otherwise alter any Act of Congress; and inasmuch as the US Constitution vests “all” legislative power in congress, “case law” is not law. There is no legislation conferring the power of law on any decision by the judicial branch.
The extent of the Supreme Court’s supremacy is within the judicial branch of government; it is not the supreme branch of government. In fact court decisions are constitutionally required to be based on the US Constitution and the laws of the United States, “as they exist” not as the court believes they should be. Section 8. of the Judiciary Act requires all judges to swear or affirm that their adjudications will be “…agreeably to the constitution, and laws of the United States.”
Additionally, Section 34 of the Judiciary Act directs “That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”; which means on issues where the US Constitution is silent, the court must defer to the laws of the state.
So the question Kim Davis needs to have answered is whether the Olson firm is pursuing an ill-fated defense because it is too weak or incompetent to rebuke the court’s exercise of power not granted it by the US Constitution or does it have a vested interest in facilitating her defeat.