Law & Law Enforcement

Final Ethics Observations on the Media’s Alito Flag Set-Up

/ Jack Marshall / 8 Comments

…the main one being that the distress signal is appropriate, because the Axis of Unethical Conduct proved with this fiasco that it is ruthless, shameless, untrustworthy, and will do anything in 2024 to mislead the public if it might mean a few extra votes for Democrats. Or maybe the main one is that your friendly neighborhood ethicist was right about this story from the very start, which is why Fredo asked to make another appearance as my spokesman.

And this, my friends, is why we can’t have nice things.

Or a functioning republic.

Let me not get to far ahead of myself. Right now, the whole, biased, corrupt, anti-Trump, anti-conservative, Biden-protecting propaganda-spewing mainstream news media, the third partner in the Ethics Alarms-dubbed Axis of Unethical Conduct (“the resistance,” and Desperate Democrats completing the troika) is doing a mass Jumbo (“Flags? What flags?”) regarding what was its favorite earth-shattering scandal a week ago. This sudden amnesia was brought on because the Washington Post, perhaps seeking to embarrass its old rival, effectively eviscerated the Times’ “Get Justice Alito!” scoop, which EA first discussed here, and subsequently here, here, and here. (Don’t make me describe it again: I was sick of it days ago.)

Two days ago, the Post revealed that it had known about the first flag episode more than three years ago and had decided that it wasn’t newsworthy (because, as the revealed facts showed clearly, it wasn’t). Now-retired SCOTUS reporter Robert Barnes traveled to the Alito’s home on January 20, 2021, the day of Joe Biden’s inauguration, to follow-up on an anonymous tip he had received from some Alito-hating asshole neighbor about the flag. After investigating, Barnes and the Post concluded there was no story, because the flag-raising appeared to be the work of Martha-Ann Alito, Alito’s wife, not the Justice, as part of her dispute with her neighbors.

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Note to the “Wise Latina”: There’s No Crying on the Supreme Court!

/ Jack Marshall / 4 Comments

“There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days. And there are likely to be more.”

Justice Sonia Sotomayor, speaking at the Radcliffe Institute at Harvard University, where she was being honored….for what, I can’t imagine.

Awww! Poor Sonja! What’s she crying about? That she’s obviously over her head on the Supreme Court with actual legal scholars and experts who can make persuasive arguments about what the law is and what the Constitution means instead of just relying on warm, fuzzy feelings and mandatory progressive sentiment? That mean old conservatives aren’t buying her “But…but…it would be nicer if we decided this way” routine?

Did Sandra Day O’Connor, when she was in the minority on a liberal majority court, ever say she just went into her office and wept when a SCOTUS vote didn’t go her way? Did Ruth Bader Ginsburg, when she was on the losing end of a 5-4 ruling? Did Scalia? No, but this Justice not only weeps over her defeats, she thinks its something to be proud of.

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A Critical Addendum to the Left’s Alito Flag Freakout

/ Jack Marshall / 11 Comments

I had already decided to shut down my commentary for the day (judging from the traffic, I see that a lot of people are starting their Memorial Day Weekend early) when I saw a fascinating note on The Volokh Conspiracy, and I just can’t let it pass, since it puts the two posts (here and here) about the “Get Alito!” flag fixation in proper perspective.

Josh Blackman, a regular contributor to VC, a constitutional law professor at the South Texas College of Law Houston, and the president of the Harlan Institute, reminded readers about something that occured the day after election day in 2016, November 9. The Supreme Court was in session, and Justice Ruth Bader Ginsburg wore the jabot she only sported when dissenting from a majority opinion. Ginsberg herself had explained her sly fashion messaging in in 2014:

but in this case there was nothing to dissent from other than the obvious: Donald Trump, whom Ginsburg had called “a faker” before the election, had defeated Hillary Clinton. The Associated Press got the message and reported on it.

Unlike the Alito flags, there is no question about who was making the political statement regarding President Trump: it was Justice Ginsburg. Nobody fooled her into wearing that collar. A relative didn’t wear it, she did. Nor was the symbolism of the collar in question: Ginsberg herself had said exactly what it meant. This was a far less ambiguous and far more serious display of bias by a SCOTUS justice than the contrived flag outrage, yet no Republicans in Congress exploited the incident to call for Ginsburg to recuse herself from future cases, or to move for a Congressional censure.

Ah, but Ginsburg was a news media favorite, female, progressive, Democrat and cute in her casual and repeated crossing of the lines of judicial propriety. I have to check, but I don’t recall the members of my legal ethics expert association registering any problem with Ginsberg’s open protest of Trump’s election, while the listserv has been roiling over Alito’s flags all week, with Ginsberg-adoring female members being particularly indignant.

At the last second I deleted a comment I was ready to make yesterday after following the hypocritical thread. It read, “I’m sorry, but the partisan bias and hypocrisy being displayed here by alleged legal ethics scholars isn’t just depressing, it’s disgusting.”

Blackman concluded, “I have a very, very difficult time taking the outrage over the Alitos’ flags seriously. The Justices routinely convey messages through their words and deeds. Who gets to decide what is an appearance of impropriety? People who are inclined to despise the conservative Justices will draw the worst possible inferences from all of their acts….These people are loathe to co-exist with anything they disagree with, so will take umbrage at the slightest sleights.”

In contrast, I take it very seriously. The Double standard harshly demonstrates how little integrity and honesty exists even among our most trusted professionals.

Oh-Oh! Now It Seems That TWO Historical Flags Someone Else Has Used As Free Speech Were Seen Flying Over a Justice Alito Residence! Clearly, This Violates the “Obscure Flags” Section in the Judicial Code of Ethics….

/ Jack Marshall / 15 Comments

The contrived Justice Alito flags controversy has exactly one valid use: it shows that the panicked Axis has lost all sense of proportion and self-preservation, that its ethics alarms are deader than Generalissimo Franco, and that between now and November nothing can be ruled out, from violent uprisings to horrified leftist wackos tearing off their clothes, painting themselves mauve and running amuck coast to coast while shouting dirty limericks. Good to know.

Here’s the New York Times, which launched the previous “Bad flag, BAD flag! “scoop (as of this moment, the Times has published nine—NINE!—articles about the flags):

Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.

This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.

Three photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google Street View image from late August also shows the flag.

In two words, so what?

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“Justice-Impacted Individuals”? Seriously?

/ Jack Marshall / 12 Comments

Even a bracing cup of Italian Roast in the morning can’t quite get your juices flowing and your mind ready for the day like a good old-fashioned head explosion! This is what triggered mine today:

Item: “Illinois is moving forward with a bill that would reclassify some “offenders” as “justice-impacted individuals“…House Bill 4409 changes the word ‘offender’ to ‘justice-impacted individuals.'”

The bill has passed both state houses, and awaits Democratic Gov. Pritzker’s signature. Don’t worry, though: he’s such a sober, rational, reasonable elected official that I’m sure he’ll veto this nonsense…

…right?

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Well, At Least He Didn’t Get Shot: Observations On An Unethical Confrontation On All Sides

/ Jack Marshall / 13 Comments

Reginald Burks’ vehicle was pulled over for speeding in Alabama last December as he was driving his two children to school. The officer told Burks that he had exceeded the speed limit, but when Burks asked how fast he was going, the officer said he wasn’t sure because his radar gun was broken. He told the motorist that he had used his cruise control to estimate the speed.

Burks replied that the officer “ was full of crap” because he didn’t believe the cop could clock a car’s speed by cruise control. The officer gave him the ticket anyway, and was standing stood in front of Burks’ car. Burks said he asked the officer “politely at least twice” to get out of the way; the officer told Burks to go around him.

So Burks said, “Get your ass out of the way, so I can take my kids to school. That’s why y’all underpaid because y’all act dumb!”

Oh, good one.

Burks has already paid more than $200 to resolve the speeding ticket. A judge, however, has ordered him to apologize to the police officer in writing, and Burks refuses, calling it compelled speech and a First Amendment violation. Judge Nicholas Bull of the Ozark Municipal Court in Alabama says he’ll put Burks in jail for up to 30 days if he continues to refuse to write the ordered mea culpa letter.

As EA”s periodic columnist Curmie might say, “Oh bloody hell!”

1. Let’s assume arguendo that Burks was speeding. With kids in the car, that is unacceptable—it’s unacceptable without kids in the car. Speeding justified the officer pulling the car over. If his radar gun was broken, depending on the speed, a ticket might be successfully challenged in court. Maybe the officer was just going to issue a warning…until the driver decided to argue with him.

2. It’s unethical to use the process as the punishment, which is what the cop would be doing if he knew cruise control pacing would not stand up in traffic court. (I have no idea if it would in Alabama: it wouldn’t in Alexandria.)

3. It’s bad citizenship to escalate a police stop by telling an officer he’s “full of crap.” Citizens should treat police with respect, even when they are mistaken, or even full of crap. Why is that such a difficult concept to grasp? Or teach children before they become adults (or juvenile delinquents)?

4. By standing in front of the car, the officer was engaging in conduct I have experienced myself: deliberately inconveniencing a driver to “teach him a lesson.” That conduct is also unethical and unprofessional. It is also daring a motorist to misbehave.

5. OK, the cop was being an asshole. It doesn’t matter: that doesn’t justify Burks’ shifting into full asshole mode himself. Police officers should be treated with respect and civility because of the institution and mission they represent.

6. What a dangerous lesson Burks was teaching his children! He should apologize to them.

7. Burks is correct, however: a judge has no power to demand that a citizen say or write anything. Burks is willing to spend money on lawyer fees and go to jail to fight for this principle. The sound of one hand clapping for that: the judge shouldn’t order him to apologize, but Burks should want to apologize voluntarily.

8. So should the police officer.

Did I neglect to mention that Burks is black and the officer is white? Silly me. Yet why should that change the analysis here?

My exit question: How many lives would be saved if black Americans resolved to obey police orders and instructions (let’s forget about obeying the law for now) without incivility, hostility and resistance regardless of the circumstances?

Ick, Unethical, or Illegal? The Fake Scarlet Johanssen Problem

/ Jack Marshall / 17 Comments

This is one of those relatively rare emerging ethics issues that I’m not foolhardy enough to reach conclusions about right away, because ethics itself is in a state of flux, as is the related law. All I’m going to do now is begin pointing out the problems that are going to have to be solved eventually…or not.

Of course, the problem is technology. As devotees of the uneven Netflix series “Black Mirror” know well, technology opens up as many ethically disturbing unanticipated (or intentional) consequences as it does societal enhancements and benefits. Now we are all facing a really creepy one: the artificial intelligence-driven virtual friend. Or companion. Or lover. Or enemy.

This has been brought into special focus because of an emerging legal controversy. OpenAI, the creators of ChatGPT, debuted a seductive version of the voice assistant last week that sounds suspiciously like actress Scarlett Johansson. What a coinkydink! The voice, dubbed “Sky” evoked the A.I. assistant with whom the lonely divorcé Theodore Twombly (Joaquin Phoenix) falls in love with in the 2013 Spike Jonze movie, “Her,” and that voice was performed by…Scarlett Johansson.

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Worse Than A Mere “Unethical Quote,” Lawrence O’Donnell’s Rationalization For Theft Marks Him As An Ethics Corrupter

/ Jack Marshall / 3 Comments

MSNBC’s Lawrence O’Donnell has all sorts of red flags in his resume. He went to Harvard for one thing, and describes himself as a “European socialist.” At Harvard you can’t major in journalism: you work on the daily paper, The Crimson. O’Donnell didn’t do that: he wrote for the fake news satirical student publication, the Lampoon. O’Donnell became an openly biased and agenda-driven MSNBC news anchor by making TV contacts while writing scripts for TV’s imaginary leftist nirvana White House fantasy, “The West Wing.” Later he was Keith Olberman’s stand-in on MSNBC, which should tell you all you need to know.

And yet…much as I fart in his general direction, as he personifies just how vile MSNBC is and just how self-lobotomizing anyone is who uses it to get their “news,” I am shocked at the degraded character and shame-free embrace of ethical relativism O’Donnell displayed yesterday.

The big news coming out of the “Get Trump!” fiasco in Manhattan was that the prosecution’s star witness Michael Cohen, already a disbarred lawyer and a convicted perjurer, further enhanced his credibility by admitting that he had stolen $30,000 from his employer and client, Donald Trump. Here is how O’Donnell described it:

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Florida’s Unethical Ban on Under 21-Year-Old Strippers

/ Jack Marshall / 14 Comments

Gov. Ron DeSantis signed HB 7063 which raises the age limit for performers and other employees of adult entertainment establishments—you know, strip clubs— from 18 to 21. DeSantis claims this legislation will “combat human trafficking.” Baloney. It is pure grandstanding, pandering to his supporters who object to sex shows generally on moral grounds, and more to the point, it is unethical age discrimination.

The issue is simple: are 18-year-olds, 19-year-olds and 20-year-olds adult citizens with all the rights of adult citizens, or aren’t they? (Hint: they are.) Since they are, there is no justification for a state telling them that there are activities, occupations and modes of expression that they cannot engage in until they are 21.

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Round and Round and Round the Cultural Destruction of Basic Concepts of Justice Goes, and Where It Stops, Nobody Knows

/ Jack Marshall / 8 Comments

Increasingly, Americans no longer agree on what justice and the rule of law mean. This is a very important societal problem, and gee, it would be nice if we had two, or even one, Presidential candidate who could articulate the elements of the crisis well and persuasively enough to make a sufficient proportion of the public aware that this trend must be addressed and reversed.

But we don’t, do we?

The most recent story that brings this into focus comes from Arizona, one of many states with a fracturing, incoherent culture these days. Melody Felicano Johnson, 39, attempted to murder her husband, putting bleach in his coffee at least twice. The woman’s husband, a US airman, began suspecting that something was amiss in March of 2023 when he was stationed in Germany; his wife’s coffee was never very good, but for weeks it had been especially foul.

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