Justice Clarence Thomas

End Of Week Ethics Wrap-Up, July 1, 2022: Freakouts, Freakouts Everywhere….[Corrected]

/ Jack Marshall / 11 Comments

Prelude: Why is the President of the United States attacking the Supreme Court in Madrid? His comments about a judicial body deliberating on the Constitution is not only wildly inappropriate for a President speaking abroad, his words were either calculated to make ignorant Americans even more ignorant about what the Court is, or show that he doesn’t understand himself (or no longer does). Biden called the Dobbs decision “outrageous behavior.” A SCOTUS ruling isn’t “behavior”; even Dred Scott wasn’t “behavior.” These are scholarly judicial analyses. Then he accused the Court of being “the one thing that has been destabilizing” to the nation. The Supreme Court? Upholding the Constitution is maintaining the foundation of the democracy: how is that destabilizing? Holding political show trials to try to find something that the previous President can be jailed for is destabilizing. Threatening parents who challenge indoctrinating school boards is destabilizing. Not enforcing U.S. laws at the border is destabilizing. Attacking the Supreme Court is destabilizing.

Then Biden said that Dobbs was “essentially challenging the right to privacy.” No it wasn’t, but let’s reflect back on an earlier incoherent and dim-witted statement Biden made about abortion after the Alito opinion leaked:

“I mean, so the idea that we’re going to make a judgment that is going to say no one can make a judgment to choose to abort a child based upon a decision by the Supreme Courts, I think goes way overboard.

Of course, the decision didn’t say, in May or now, that “no one can make a judgement to have an abortion.” I think Biden was and is shooting off his mouth without reading the opinion. But never mind that: he said “abort a child.” Not only does he approve of abortion, but regards it as killing a child, and must think that “privacy” includes virtual infanticide. Oh, I know, he doesn’t know what he thinks: he used to claim that there was no right to abortion. But if he’s that muddled on the issue, and he is, what business does he have impugning the decision of SCOTUS justices wrestling with difficult topic—in Spain—at all?

1. Oh, why not? Here are some more Dobbs freakouts:

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“Democracy Dies In Dickness”*: The Washington Post’s Racism

/ Jack Marshall / 6 Comments

This article in the Washington Post yesterday, authored by two “reports of color,” Cleve R. Wootson Jr., a White House reporter for the Post, and Marianna Sotomayor (no relation to that other Sotomayor) who now covers the House of Representatives for the Post after coming over from NBC, gained quite a bit of notice from the conservative news media (and none at all from the much larger other side, for this passage when it was first published:

 
 
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Nice! The two post reporters managed to insult Thomas by reducing his legal opinions to knee-jerk bias, and to attack conservatives based on their race. The obvious rejoinder to this slur would be whether the Post would tolerate an article that criticized, say, Justice Kagan as issuing opinions that are in lockstep with the advocacy of “black progressives.” What does race have to do with either observation, the actual one or the hypothetical reverse negative?

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In Borden v. US, Justices Gorsuch And Thomas Indicate They View The Law As Taking Precedence Over Ideology

/ Jack Marshall / 4 Comments

Gorsuch-and-Thomas

Good. That’s two: maybe there are more.

So- called “three strikes” laws are a conservative invention to bind the hands of liberal judges inclined to give too-lenient sentences to repeat offenders because of superfluous factors like a tough childhood. As a result, liberal justices generally detest the device, arguing that it takes the judgment out of judging.

In Borden v. US, a case that asks if a conviction for a violent felony based on recklessness or negligence rather than malice should count as a “strike,” the three bedrock progressives on the U.S. Supreme Court, Justices Breyer, Sotomayor and Kagan, voted predictably, against the application of a “three strikes” law. If all six conservative justices showed similar fealty to their biases, the petitioner, Charles Borden, Jr., would face an enhanced sentence after pleading guilty to possessing a firearm as a convicted felon, because he had three previous convictions for “violent felonies” according to Tennessee. Confounding the Supreme Court politicizers who don’t believe judges are capable of being ethical—which requires putting aside personal biases and loyalties to do the right thing—Justices Clarence Thomas and Neil Gorsuch voted with the liberals. They did so because they were following the letter of the law, and that is the Supreme Court’s job.

In Borden, prosecutors argued for the mandatory 15-year sentence based on three earlier convictions that included on for “reckless assault.” Borden argued that such a conviction was not a “strike’ according to the wording of the law, and in law, words are supposed to matter. His claims were rejected in the lower courts, and Borden was sentenced as a “career-criminal.”

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End Of Day Ethics, 4/7/2021: “Ick,” Ethics, And Law

/ Jack Marshall / 12 Comments

And as we bid farewell to April 7 and good morning to April 8, I want to wish my wonderful, kind, talented and tolerant wife of 40 years a happy birthday. I owe everything to her.

1. Well, you can’t accuse satellite radio of being politically correct…the Comedy Legend Sirius channel is a welcome oasis in the woke era humor desert, with routines old enough to remind one what it was like when comedians only had to worry about being funny to the audience at hand—and yet there are limits. At least, there should be. Today I heard an old Louis C.K. routine about his childhood. You recall how C.K. became a #MeToo arch-villain, costing him his show, bookings, and essentially his career, don’t you? He set a new low for celebrity sexual harassment by masturbating in front of non-consenting female visitors to his hotel room, and on more than one occasion. Ick. Also sick. In the routine featured on Sirius-XM, the comedian was reminiscing, to audience hilarity, how he showed his penis to a girl with Down Syndrome when he was nine. I don’t know that I would have ever found that story funny, but hearing C.K. tell it in light of his later revealed proclivities was an experience I could have lived my whole life without having. Since it is now clear to me that whoever programs that channel can’t be trusted to apply any discretion or common sense at all, I’m not sure it is safe for me to drive with it playing…

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Pre-Debate Ethics Distraction, 9/29/2020: Prediction: Whatever Happens, I’m Going To Hate It, And The News Media Will Lie About It.

/ Jack Marshall / 31 Comments

The question for the ages: Was this the most unethical pair in a Presidential debate before tonight?

1. Well this seems ominous. This morning the Trump campaign requested  that a third party inspect both candidates for electronic devices or transmitters. President Trump had already consented to such an inspection, and the Biden campaign had reportedly agreed to this days ago. The New York Post reported a few hours ago that the Biden camp refused the condition.

What’s going on here? I can only assume that it’s gamesmanship. Biden would be beyond demented to try to cheat in a broadcast debate.

2. Here are results of the FIRE’s college free speech rankings survey, as determined by students. My alma mater ranked #46 out of the 56 schools ranked; no surprise there. The school I worked for as an administrator after getting my law degree there is two slots worse.

3. Prediction: It will not end well for poor David Hogg. I foresee a tragic opera in his future. Too young for the prominence he was thrust into as a survivor of the Parkland shooting, cynically exploited by the news media and activists who did not care about him, he is now condemned to have no support from any quarter. His best course would be to quietly leave the public gaze forever, and fight off the addiction of fame. It’s not easy. Continue reading →

Ethics Quote Of The Month: Ann Althouse

/ Jack Marshall / 14 Comments

“I do think that the argument can be made that the case law establishes that there is one and only one reason that must be the reason for there to be a constitutional right to an abortion (other than to protect her own life or health): The woman must actually believe that what she is destroying is not a person.”

—-Blogger/retired law professor Ann Althouse, commenting on today’s SCOTUS decision in Box v. Planned Parenthood of Indiana and Kentucky.

The Supreme Court  rendered a split decision on Indiana’s contested abortion law. The Justices upheld  part of Indiana’s 2016 law placing  restrictions on the disposal of fetal remains after an abortion, but left the  part of the law overturned that would have prohibited women from choosing the procedure after of a diagnosis or “potential diagnosis” of Down syndrome,  “any other disability,” or because of the fetus’s gender or race.

Justice Thomas wrote a dissent taking issue with the latter, writing in part, Continue reading →

Ethics Quote Of The Week: Supreme Court Justice Clarence Thomas

/ Jack Marshall / 31 Comments

“Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”

—Associate Justice Clarence Thomas, rebutting the arguments of Justice Breyer, a long-time opponent of capital punishment regarding the denial of certiorari in a death-penalty case, Reynolds v. Florida.

Justice Breyer’s statement reiterated themes he has echoed before in death penalty cases:

  •   “Lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale”;
  •  Jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and
  • The constitutionality of the death penalty should be reconsidered.

Justice Thomas’s entire statement in rebuttal, ending in the section quoted above,  is excellent… Continue reading →

Regarding National Institute for Life Advocates (NIFLA) v. Becerra

/ Jack Marshall / 35 Comments

The Supreme Court ruled today that California could not require that pregnancy resource centers (PRCs) promote abortion services on their premises. The  law doing so, the 5-4 majority held, is forced speech. (A law couldn’t make the PRC’s bake cakes saying “YAY ABORTION!” either, presumably.)

The ruling in National Institute for Life Advocates (NIFLA) v. Becerra holds that by imposing the law, California created “an unduly burdensome disclosure requirement that will chill [PRCs’] protected speech.”

 California’s 2015 Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act mandated that any facility that provides care to pregnant women must post this notice:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

Fines for violating the law were $500 for the first offense after 30 days, and $1,000 for each subsequent offense.

 Justice Clarence Thomas, writing for majority, concluded that the requirement “alters the content” of the licensed centers’ speech by requiring them to notify pregnant women about the availability of low- or no-cost abortions even though the centers’ goal is to persuade women not to have abortions at all. This could be justified by a “compelling interest,” Thomas wrote, but he noted that there are other ways —an advertising campaign or posting notices on public property near the licensed centers—that would not force the centers to promote the very activity that they exist to stop.

Writes at Amy Howe at SCOTUSblog regarding the law’s application to unlicensed centers: Continue reading →

Comment Of The Day: “Ethics Observations On The Masterpiece Cake Shop Decision”

/ Jack Marshall / 47 Comments

How refreshing it is, while at least half the pundits and journalists are misrepresenting the Masterpiece Bakery decision to the public, to read an Ethics Alarms comment that both clarifies Justice Kennedy’s majority opinion’s flaws and also highlights an important issue that only the routinely-derided Justice Thomas focused on.

As it happens, I disagree with Thomas that a custom wedding cake for a gay wedding is  necessarily “compelled speech.” What is it saying? If it can’t be reasonably interpreted to express a position that can be fairly attributed to the baker, then it’s the customer’s speech, not the baker’s. I know there are cases where sign-makers and others have been upheld in their refusal to reproduce messages they personally find offensive. We saw a hint of that in the silly “Summa ___ Laude” cake fiasco. My position is that a business that creates a setting for speech by others should have no right to interfere with that message—hateful messages, obscene messages, it shouldn’t matter. It should be no more acceptable for a sign-maker to say “I won’t make that sign” than for a cabbie to say, “I won’t drive to that address,” or a haberdashery to refuse to let you buy a suit that makes you look fat.

Here is Glenn Logan’s excellent Comment of the Day on the post, Ethics Observations On The Masterpiece Cake Shop Decision:

Justice Thomas, in his partial concurrence:

“Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Johnson, supra, at 414. A contrary rule would allow the govern­ment to stamp out virtually any speech at will.”

This is the opinion that should’ve carried the day. In fact, Kennedy’s opinion is a blatant special pleading, fallacious on it’s face when he claimed the CCRC disparaged Phillips’ position. Even if I allow the comments made by some CCRC members do in fact disparage Phillips’ religion, the law makes it clear that religion is inoperative as a defense against its requirements anyway. How, then, can hostility to religion matter one jot or tittle, and isn’t such expression protected in its own right? The CCRC needed not show the least deference to Phillips’ religion, because the law that creates it manifestly doesn’t: Continue reading →

Ethics Quiz: Bill Cosby’s Bias Argument

/ Jack Marshall / 32 Comments

As Bill Cosby’s latest trial gets underway, “the Cos” and his lawyers contend that the presiding judge should recuse himself because the judge’s wife is an advocate for sexual assault victims. Judge Steven O’Neill’s wife, Deborah O’Neill, is a social worker on a University of Pennsylvania special staff that advocates for students who are alleged victims of sexual assault. According to the motion for the judge to recuse, she has donated money to a victims advocacy group that plans an anti-Cosby rally outside the courthouse during Cosby’s trial.

 

Your Ethics Alarms Ethics Quiz of the Day:

Should the political activities, public statements or occupation of a spouse be considered a sufficient conflict of interest to mandate judge’s recusal?

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