Saturday Ethics Diversions, 3/6/21…And Remember The Alamo!

Alamo morning

On this March date in 1836, after a 13 day siege, the Battle of the Alamo ended when a pre-dawn attack by the much larger Mexican force slaughtered the 200 (or more) Texan defenders, creating many legends—the line in the sand, Jim Bowie’s desperate fight from his sickbed, Davy Crockett battling on as the Mexicans poured over the walls of the fort— and an iconic symbol of American bravery, sacrifice, and resistance of tyranny. The final minutes of the defenders were spent in desperate hand-to-hand combat with knives, swords and clubs.

Thirteen days earlier, on February 23, Mexican General Antonio Lopez de Santa Anna ordered a siege of the Alamo Mission, near present-day San Antonio. It was occupied by rebel Texas forces. They spent the next two week ducking shells during the night and repairing the fort during the day. On the night of the 5th, however, there was no shelling. The exhausted men of the Alamo finally had a chance to sleep, and the Mexicans were almost inside the walls before they awakened. The bloody battle was over in less than 30 minutes. Several Texans reportedly surrendered, but Santa Anna ordered all prisoners executed, as he had promised when William Barrett Travis refused to surrender at the outset of the seige. Historians estimate that the battle cost Santa Anna between 400 and 600 soldiers, a high price for a fort with little strategic value. On April 21, 1836, Texas and Mexico fought again at the Battle of San Jacinto. This time it was the Mexicans who were surprised, and the rout won independence from Mexico and brought the Texas Revolution to an end.

I’ll be watching the 1960 John Wayne movie tonight. It is historically inaccurate in almost every way, but if there was ever an event in our history when the legend was more important than the reality, it is the battle of the Alamo.

1. It’s great to see that the news media and others have adopted a more fair and forgiving sta… Oh. Oh, right. “It’s amazing. Indian-descent Americans are taking over the country: you, my vice president, my speechwriter,” President Biden told Swati Mohan, NASA’s guidance and controls operations lead for the Mars Perseverance rover landing. Imagine the reaction from Democrats and pundits had the previous President said that. It would have been a story for weeks. The episode would have been cited any time one of the Trump Deranged was asked to defend the hardy Big Lie that Trump was a racist. Now that Joe Biden is President, the office is back to having the benefit of a presumption of good will, which is necessary for any President to do his job. About the only people mentioning Joe’s latest—read his quote with Jews or “blacks” in place of “Indian-descent Americans”—are bitter conservative pundits, and people like me, who foolishly believe that the same standards should be applied regardless of race, creed, gender or political affiliation.

Incidentally, this was Biden’s second gaffe regarding Indians. In 2008 he said, “In Delaware, the largest growth in population is Indian-Americans moving from India. You cannot go to a 7/11 or a Dunkin Donuts unless you have a slight Indian accent.”

2. Apparently the police aren’t paying attention to stupid trends. In Mullins, South Carolina, the police department is holding a contest to name its new bloodhound puppy:

Hound puppy

They might as well just name him “Puppy McPuppyface” now and and be done with it.

3. Here’s the sad part: I’m not surprised. Linda Lacewell, the superintendent of New York state’s Department of Financial Services is identified by The New York Times as one of the “most senior aides” to Governor Andrew Cuomo responsible for rewriting a report by state health officials to hide the true number of deaths in nursing homes that resulted from Cuomo’s disastrous executive order to put infected seniors in the care facilities.

Lacewell is an adjunct professor of legal ethics at NYU.

4. Justice Dangerfield? Supreme Court minority dissents traditionally end with “I respectfully dissent.” If one doesn’t, it’s no accident, especially if the justice is a veteran on the Court. For reasons no one has yet determined, Justice Stephen Breyer, the only male progressive jurist in the current SCOTUS array, did exactly that in last week’s 7-2 ruling in U.S. Fish and Wildlife Service v. Sierra Club, holding that the Environmental Protection Agency can prevent the Sierra Club from obtaining certain internal government documents. The majority opinion that Breyer disrespected was Justice Amy Coney Barrett’s first as a member of the Court.

Not to flog the double standard theme, but I’m going to flog the double standard theme. A conservative male justice who left out “respect” in the first majority opinion of a progressive female Justice would be immediately condemned by Democrats as a sexist. If that female Justice were Sotomayor, he’d be called a racist as well.

Apparently Breyer didn’t think anyone would notice his slap at Barrett. As soon as several noted his departure from the traditional civility ( “I didn’t think this ESA/FOIA case was particularly contentious, but Breyer signed his dissent with the aggressive ‘I dissent’ rather than the standard, cordial ‘I respectfully dissent,'” tweeted Politico reporter Alex Guillén for example), Breyer issued an edited version with the “respectfully” restored.

5. Remember when everyone was frightened about how the burgeoning National Debt was reaching crisis proportions? The Senate approved today the $1.9 trillion pandemicstimulus” package on a strict party-line vote.

It is completely irresponsible.

16 thoughts on “Saturday Ethics Diversions, 3/6/21…And Remember The Alamo!

  1. 4. I bet it was Breyer’s clerks who pulled that stunt. My (now former) lawyer buddy, as he was insulting me from here to Friday for who knows what reasons during the run up to the election last fall, referred to “Amy Coney Island,” as if I was supposed to be mortally wounded by such a remark because I graduated from Notre Dame Law School. Just bizarre and truly deranged thinking. Frankly, I wouldn’t be surprised if all the Supreme Court Clerks look down on Justice Coney Island because she didn’t go to Yale or Harvard. My (now former) lawyer buddy did his undergraduate at Stanford. A distant relative who’s a District Court judge in New Haven only hires Ivy League clerks. Her law degree is from, wait for it, BU. I wonder sometimes whether graduating from, or not graduating from, an elite institution isn’t somehow debilitating for many people?

    5. I can’t believe Joe Manchin went along with that. Maybe there’s a ton of pork heading up the Potomac as we speak.

    • Throwing the clerk under the bus is the oldest trick in the book.

      It’s also irrelevant.

      Breyer’s name is on the opinion, not the clerk. Breyer would owe Berrett a sincere apology for his oversight. The clerk in question should also be quietly fired to put the rest of the staff on notice, but not appear to be a sacrifial goat.

  2. That the amended bill will pass the house is almost a certainty. I will say that I intend to cash and spend my $1400, it is a bad idea. My children, grand children and great-grand children will live to regret this debt.

  3. Stupid legal question: What is the point of a published dissenting opinion, if it carries no legal weight?

    Or does it?

      • Of course, you are right, Jack (Did I just type that?). Dissents provide different interpretations of the law (as do concurring opinions). The law is not always clear and reasonable people can have different opinions about it. If that were not the case, we would only need one Supreme Court Justice.

        Anyway, my point in responding at all is to provide my favorite quote that is relevant here.

        There is a Wisconsin case that puts it quite succinctly: A dissent is what the law is not.


          • There are many cases, but State v. Perry seems to be the one most cited to, even though there was an earlier one that made that point. From the case:

            Perry also contends that his conviction in this case may have resulted from a jury compromise in the face of the multiple charges and an erroneous belief that a person alleged to have committed multiple offenses should not be acquitted altogether. Perry bases this argument on the dissenting opinion in Johnson. Despite any credence this argument may have, it is not the law. A dissent is what the law is not.
            State v. Perry, 510 N.W.2d 722, 181 Wis.2d 43 (Wis. App. 1993).


        • The best example of a dissent paving the way for a crucial majority opinion later would be the first Justice Harlan’s dissent in Plessy v. Ferguson, May 18, 1896, the separate but equal decision reversed by Brown v Board of Education decades later.

          Justice Harlan: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved… If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.”

  4. Finally watched The Alamo with the family as per yearly tradition around this time.

    While I like all Alamo movies, I tend to watch the most recent one because of the attention to detail for historic subtleties and the continuation of the story to San Jacinto.

    But, it just dawned on me, and I don’t know why I didn’t notice it earlier… I don’t like Crockett’s character.

    Yes, I like most of the wisdom he passes on, but there’s a handful of lines he’s given that imply he’s a hesitant coward only in Texas because he thinks the hard work is already done. And while I knew for year those lines were annoying to begin with, they just rubbed me especially wrong when we watched last night.

    • Yeah, that was a big reason the film alienated me, much as I like Billy Bob as an actor, and especially the scene with the missed shot at Santa Anna. Two of Crockett’s biographers, while acknowledging that the Duke’s movie was more myth than history, have written that Wayne’s portrayal was very close to what Davy was probably really like.

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