To a glorious morning, Ethics-Lovers!
1. Bad Alito, Good Alito. As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.
These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.
Nevertheless, the Professional and Amateur Sports Protection Act, a 1992 law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:
The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…
…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”
…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”
2. Curiouser and Curiouser. Missouri Governor Eric Greitens refuses to resign despite evidence that he took a partially nude photograph of a woman without her consent while they were having an affair in 2015. She was allegedly bound and blindfolded when the photo was taken, and she says he threatened to release it if she ever spoke about the affair. (Now, I would repeat the challenge (“Guess what party!) that I offered regarding the New Mexico candidate for Congress who said “Fuck the NRA!” in his TV ad last week, except that there would be no way to guess: both parties have featured prominent elected officials who do this sort of thing, or similar, or worse. However, despite the accusation of a trolling commenter that my query regarding New Mexico’s Pat Davis was “unethical,” the public use of “fuck” in public discourse combined with the claim that the NRA is “responsible” for gun deaths takes the odds that the speaker is a Democrat near certainty. Greitens is a Repiblican, incidentally.) Grietens is taking the Clinton course, claiming that he did nothing illegal—just disgusting and the kind of conduct that high elected officials have an ethical obligation to eschew.
But I digress.
St. Louis Circuit Attorney Kim Gardner yesterday dropped the charges against Missouri Gov. Eric Greitens after the defense team announced its plan to call her as a witness. Gardner’s office then asked the court to appoint a special prosecutor to refile the felony charge of invasion of privacy against the governor.
This is a legal ethics story. Missouri’s identical version of ABA Model Rule 5.7, Lawyer as Witness, states,
RULE 4-3.7: LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;(2) the testimony relates to the nature and value of legal services rendered in the case; or(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 4-1.7 or Rule 4-1.9.
Once the judge in the case approved the defense’s plan to call Gardner as a witness, she had to recuse herself, and, though some experts disagree, her whole office was knocked out of the case by conflict of interest. How could her own assistants cross-examine her? A special prosecutor is the correct course. It is also being speculated that the case was dropped because a search of the governor’s Apple cloud data yielded no evidence of the photograph, meaning that sufficient evidence for a conviction is lacking.
Never mind: the legislature doesn’t need a conviction to impeach Grietens, and state Republican leaders say they will try to get the Missouri General Assembly to do just that. They also called on Greitens to resign immediately.
3. Ah, yes, the old “force the other side to hurt you” tactic. Gets sympathy every time! Some day I’m going to have to take the time to figure out how it is that the American Left became anti-Israel and pro-Palestinian. I’m pretty sure its just historical ignorance and short term attention span combined with a few high profile demagogues, excessive defense of Islam and a lot of “Think of the children!,” but I need to make sure. The efforts by the news media to make yesterday’s violence in Gaza into an Israeli atrocity is classic distorted news, but the mainstream media is following the lead of its Dark Masters, like Democratic Party co-chair Keith Ellison, Louis Farrakhan supporter and apologist, along with three other Democrats issued a statement reading in part,
The rest of the statement goes on to blame, naturally, the President for the violence, because he finally kept the promise every President since Reagan has made to Israel about moving the U.S. embassy to Jerusalem.
Note what Rep. Ellison—the term “weasel” comes to mind—does in that statement. After casually noting that the protesters were “mostly unarmed”—meaning that some were armed, and indeed we know some were armed with lethal weapons like Molotov cocktails—he states that only imminent threat to life justifies lethal force, as if he made the armed protesters vanish with his previous sentence. If there is a mob in which some are armed, the whole mob is a threat. If was partially on this basis that John Adams got most of the British soldier accused of murder in the Boston Massacre acquitted. The protest tactic of forcing a violent response is a well-loved page of the revolutionary’s play-book, used in Boston, at Kent State, at Harvard (I witnessed that one), in the streets of Chicago during the Democratic National Convention, by Occupy Wall Street in several cities, in Ferguson, and in Charlottesville. It always “works,” sacrificing a few martyrs for sympathy for the cause, however misguided or wrong it might be. That doesn’t make it ethical, or justify the deliberate distortion of the dynamics of such confrontations.
4. Ethical Tweet of the Week: Frank J. Fleming, Twitter satirist, tweeted…