This is annually the last day before everything goes bananas in Marshall World. From now until New Years, its like the Nantucket Sleigh ride, not quite as dangerous, but not as much fun either. November 22 is the anniversary of Kennedy’s assassination, my generation’s 9-11. It changed everything. The 23rd is my anniversary, #40, which my son is sure to forget and my wife, for various reasons, doesn’t like to celebrate. Next is Thanksgiving, always depressing now because what was once a vibrant table of 7-15 relatives and friends is now at most four and a lot of wistfulness. My birthday comes on December 1, forever tainted because my perverse father chose the date to die on, and fate chose me to find his body. Then it’s the anxious run-up to the Christmas holidays, which always follows in the deadest period for ProEthics, meaning that we are counting pennies at the one time of the year we don’t want to be. (There is also the annual tree drama, since both my family and Grace’s were addicted to real, meticulously decorated trees, and we have a 20 foot ceiling which makes any tree less than 8 feet look silly. The thing takes about 2500 lights, which I have the responsibility of hanging, and then over a hundred mostly unique ornaments, beginning with the yarn Santa my mother made for Jack Sr. and Eleanor’s first scraggly tree in their new Cape Cod-style home in Arlington, Massachusetts. It was 1948. Getting our tree up and decorated to family standards takes about twelve hours and multiple First Degree prickle wounds. I can’t wait.
On the plus side, I’ll finally finish the Ethics Alarms Ethics Guide to “Miracle on 42nd Street”…
1. No, I’m not surprised that the Catholic Church sexual abuse cover-up went straight to the top. Are you? I’m not even disappointed. This is what organizations and institutions do: they protect themselves, and sacrifice the victims of their misconduct.
The Vatican this month released a report that showed Pope John Paul’s role blame in allowing the disgraced former prelate Theodore E. McCarrick to continue in the Church’s hierarchy.
The investigation, commissioned by Pope Francis, who canonized John Paul in 2014, reveals how the Pope ignored a wave of accusations of sexual abuse and pedophilia against McCarrick. Three popes participated in the cover-up, but one of them, John Paul, has been canonized. So Catholic saints are now accessories to rape.
A reversal of the canonization, which may never have happened, is unlikely, but it may slow the rush to canonize future popes.
2. And speaking of organizations facilitating sexual abuse…The Boy Scouts were not prepared for this. When the organization sought bankruptcy protection as sexual sexual abuse lawsuits reached an ominous level the BSA said feared that at least another 1,400 claims from men and boys were on the way. On Monday of this week, the deadline set by a federal bankruptcy court for filing claims, the number had reached a bit more than anticipated: 95,000. That exceeds the number of known accusations by abuse survivors in the U.S. Catholic Church. Bankruptcy protection may not be enough to save the 110-year-old youth group that was once synonymous with all-American virtues.
As I have noted before, this development would have deeply wounded my father, a fatherless only child forced by the Depression to change neighborhoods repeatedly. He believed that scouting saved his life while providing the ethical bearings and skills that allowed him to become the remarkable man he was. I can’t see any way the Boy Scouts can come back from this, and maybe they don’t deserve to survive. As with the multiple scandals in women’s sports, the astounding lack of due diligence and care taken by leaders of an organization like the Boy Scouts, which anyone could see (one would assume) is like a flame to a moth in its attractiveness for pederasts, is difficult to comprehend. Was everyone really so naive, so out of touch with reality? Is that possible?
3. A Rationalization #30 case study. The Prospective Repeal, or “It’s a bad law/stupid rule”got a workout at Yellowstone National Park. Eric Romriell, 49, and Eric Roberts, 51, both of Idaho, and Dallas Roberts, 41, of Utah, got themselves banned from the park, sentenced to two years’ probation, and fined for cooking chickens in a hot spring. It is illegal to go off the designated trails and to throw objects into hot springs or other hydrothermal features at the park. It’s also dangerous, since the water in the hot springs can exceed 400 degrees Fahrenheit and thus can cause severe or fatal burns.
Romriell, a scout master for several years (oh-oh!) , says he wasn’t aware that he was doing anything wrong, and interpreted the prohibitions against “tossing, throwing or rolling” items into the thermal features as “don’t be destructive.” No, it means don’t put “toss, throw or roll” anything into the hot springs. Even chickens.
“The way I interpreted it was don’t be destructive,” Mr. Romriell said, “and I didn’t feel like I was.”
On the bright side, the men say that the chickens they cooked in the spring were “fantastic.”
4. Did Justice Alito cross a ethical line? Justice Samuel Alito, arguably tied with Clarence Thomas as the Supreme Court’s most conservative jurist, told the Federalist Society a week ago that progressives posed a growing threat to religious liberty and free speech. Nothing in Alito’s remarks would be a shock to anyone who had read his opinions, but they were quickly attacked by some on the left. Was Alito unethical? The sainted RBG made public statements on her favorite issues equally pointed, and had criticized President Trump in an interview during the 2016 campaign for refusing to release his tax returns. Then she went on to rule on cases concerning their disclosure.That was clearly worse, but it doesn’t justify Alito’s conduct. Predictably, Alito’s ideological foes went overboard.
Alito began by arguing that the pandemic “has resulted in previously unimaginable restrictions on individual liberty,” though he added that he was “not diminishing the severity of the virus’s threat to public health.” Alito criticized the Supreme Court’s July decision to reject a Nevada church’s challenge to state-imposed social distancing restrictions, arguing that Nevada “blatantly discriminated” against houses of worship because its restrictions on casinos were less strict. He pointed to recent court opinion on same-sex marriage and abortion as threats to the First Amendment, suggesting that “now it is considered bigotry [to] say that marriage is the union between one man and one woman,” and that Americans who don’t approve of gay marriage are facing restrictions on their free speech.
Objections to the speech broke down along predictable lines. Erwin Chemerinsky, the progressive dean of Berkeley Law, said that he could not “think of any speech like this one that discussed so many issues and in a clearly ideological, partisan way.” Constitutional law professor Daniel Epps said that Alito’s speech made a strong argument for court reform, because it demonstrated that there is “no good justification for a system that gives an angry partisan like this a veto on legislation.”
But Ed Whelan, the president of the Ethics and Public Policy Center, wrote on National Review’s Bench Memos blog, “It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruledIt’s a very different — and much less remarkable — thing for a justice to restate positions that he has already formally adopted.” In the same vein, lya Shapiro of the Cato Institute, a libertarian think tank, said that he doesn’t think that “we should keep judges out of the public sphere,” especially because the justice didn’t express views in his speech that were not covered in previous writings.
I tend to fall in the middle camp with Vikram D. Amar, the dean of the University of Illinois College of Law, who said,
“There’s a difference between what a justice can do and what a justice would be well advised to do. Other than an ethical line about prejudging cases and avoiding the appearance of bias, it’s a matter of what you think a good judge should do and the image a judge should cultivate.”
A judge should cultivate the image of being forever open-minded and above political and ideological battles. His or her opinions, and those alone, should do the talking.