Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part I: Fisher v. University of Texas

Abigail Fisher: Not dark enough to get "an equal shot"

Abigail Fisher: Not dark enough to get “an equal shot”

The under-populated U.S. Supreme Court recently made four decisions on issues with ethical principles involved. This is the first of four posts reviewing the ethics implications of the decisions.

I. Affirmative Action: Fisher v. University of Texas

The University of Texas’ admissions program guarantees admission to top students in every high school in the state. It is dubbed the  Top 10 Percent program, though the percentage cutoff is flexible. A second part of the admissions program admits other students from Texas and elsewhere using standards that take into account academic achievement and other factors, including race and ethnicity. Many colleges and universities base all of their admissions decisions on such grounds. The case before the Court challenged that part of the program, and presented an opportunity for the Supremes to finally declare affirmative action unconstitutional, as previous opinions hinted they might do some day.

This was not the day, however. Justice Kennedy, writing for the majority, said courts must give universities significant but not total autonomy in designing their admissions programs, writing:

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

This defines either an ethical dilemma, which the Court’s majority is punting, or an ethical conflict…which the Court majority is punting. Is diversity an ethical objective, or a practical one, that is, a powerful non-ethical consideration? It is hard to argue that diversity in a student body isn’t desirable—to enhance the educational experiences of students, to avoid having a permanent, under-credentialed underclass, to “look like America.” However, fairness and common sense argue that admitting one candidate over another who is better qualified simply because of ethnicity or race is per se wrong. I don’t blame the Court at all for not making a clean call.

As usual, President Obama described the result in simplistic terms. “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society,” he told reporters at the White House. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.”

Thank you, President Obvious. The crux of the case, however, was what should be done when using race as a standard for admission to attain that diversity denies an “equal shot” to someone who has the misfortune to be white, like Abigail Fisher, or Asian-American. Continue reading

Should President Obama Attend Scalia’s Funeral? Of Course.

NICK SCHNELLE/JOURNAL STAR Pastor Larry Zurek leads a funeral mass for former Peoria Fire Cheief Ernie Russell on Friday morning at Sacred Heart Catholic Church. Russell was 74.

President Obama, we learned from Josh Earnest, won’t be honoring the late Justice Antonin Scalia by attending his funeral, and the Presidential spokesman couldn’t even say what weekend activity Obama deems more important. Already, conservative commentators and pundits are calling the odd decision an intentional snub, and many on the left are also obviously puzzled, causing them to make up excuses, like suggesting that the Scalia family told the President of the United States to stay away.

It’s not a snub, of course. It’s just a willfully lost opportunity to show some non-partisan class and leadership, or in other words, Obama being Obama. We’ve seen this kind of irrational, arrogant, toxic conduct from him before, as when he was the only world leader who wouldn’t deign to join with other heads of state in the mass support of France following the Charlie Hebdo terrorist attacks. This is Obama’s “It’s my Presidency and I’ll be a jerk if I want to” streak, unattractive, petty, and a major reason why the United States is as culturally, politically and societally fractured as it is.  Continue reading

The Seventh Annual Ethics Alarms Awards, Part II: The Worst of Ethics 2015

Donald and Hillary

Ethics Corrupters of the Year

(Awarded to the unethical public figure whose prominence, popularity and success most corrupts the public’s ethical values)

A Tie: Hillary Clinton and Donald Trump.  Nobody else is close.

I’m sorry that these two are so dominating the awards. They also dominated the posts last year. If they dominate the awards next year, God Save The United States of America…

Double Standard Of The Year

The deference accorded to anti-white protesters on dozens of college campuses, not just by spineless administrators but much of the news media. Similar protests, conduct and rhetoric by white students would be immediately condemned for what it would be: blatant racism.

 Lie of the Year

Hands Up! Don’t shoot! The lie was uttered in 2014, but acquired new status after the Justice Department unexpectedly and definitively determined that the evidence did not support the inflammatory myth that Mike Brown was shot dead in Ferguson while trying to surrender to Officer Wilson. Never mind: the lie is part of the manifesto of Black Lives Matter and similar groups; it is still alluded to by activists and shameless politicians; it still divides the nation and focuses hate on police departments; and it has contributed to getting police officers killed while making communities more vulnerable to crime. It may be the Lie of the Decade.

Uncivil U.S. Official of the Year

Justice Antonin Scalia, who crossed all lines of judicial restraint, collegiality and civility when he excoriated his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling  that same-sex marriage was a Constitutional right no state could deny, with this comment in a footnote:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia,

 

The Jesse Jackson Award 

(For the Year’s Worst Amateur Diplomat)

Barack Obama.  I know, this is snarkier than I like to be in these awards, but the signature diplomatic measure of the past year, the astounding, one-sided, dangerous and Munich-like deal with Iran, could only be the product of an ideological tyro placing wishes and hopes over diplomatic responsibility, and not for the first time. For most Presidents, trading dangerous terrorists for a deserter would be nadir. History has seen many tragedies seeded by world leaders with no diplomatic skills: the disastrous Treaty of Versailles,  Potsdam, and the treaty that this one most resembles, negotiated by the hapless Neville Chamberlain. We can only hope that the worst case scenario doesn’t materialize, but if it does not, it will be moral luck.

Most Unethical Sports League

New England Patriots quarterback Tom Brady speaks at Salem State University in Salem, Massachusetts, May 7, 2015. REUTERS/Charles Krupa/Pool ORG XMIT: BKS06

The NFL, for the third year in a row. “Concussion,” Tom Brady, Deflategate, more evidence that NFL players are slowly killing themselves with brain damage, Johnny Manziel.  What a great sport pro football is.

Sports Cheat of the Year

Tom Brady, New England Patriots ball-deflating quarterback.  Brady eventually avoided punishment because the NFL botched both its investigation and its imposition of penalties, but his smirking, cynical comments about the incident made it clear that he thinks cheating is no big deal, and most of his fans agree.

Not surprisingly, Brady supports Donald Trump.

Unethical Lawyers of the Year

Law Firm Division:  Lawyers Stephen Diaco, Robert Adams and Adam Filthaut of the Florida firm Adams & Diaco were found to have “maliciously” set up the drunken-driving arrest of their opposing counsel in a  high-profile defamation trial. The plot involved a comely paralegal and a cooperative DUI cop. Last I checked, it looked like all three lawyers would be disbarred for life.

Scary Lawyer Division: California lawyer Douglas Crawford  held a can of pepper spray a yard from the face of the opposing lawyer saying, “I will pepper-spray you if you get out of hand.” Then the lawyer pointed a stun gun at Traver’s head and said, “If that doesn’t quell you, this is a flashlight that turns into a stun gun.” To show he wasn’t kidding, Crawford discharged the stun gun the startled lawyer’s face.

Hard-working Lawyer Division: Massachusetts lawyer,  Karen Andrade, was  charged with prostitution after a police investigated a report by a suspicious neighbor and  found online reviews of both the lawyer’s legal services and her escort services

Celebrity Lawyer Division: Michael Cohen,  one of Donald Trump’s lawyers, told the Daily Beast that it was legally impossible for a man to rape his wife. He was only a couple of decades and many court cases behind on his research. That piece of legal scholarship came after he had threatened the website’s staff in language usually associated with loan sharks and pimps.

Unethical Prosecutor of the Year

Mosby

Baltimore’s City Attorney Marilyn Mosby
Continue reading

Update: Some Perspective On Justice Scalia’s “Racist” Question About Affirmative Action

Big fish, meet small pond...

Big fish, meet small pond…

Ethics Alarms recently discussed the unfair attacks on Justice Scalia, now even extending to calls for his resignation, for his legitimate question in oral argument about whether black students accepted into elite schools via affirmative action might be better off being able to excel in less competitive institutions. The question was not racist, reflecting common sense, nor was it necessarily Scalia’s position, as it was an argument raised in one of the briefs on the case. Never mind: much of the media still characterizes the query as outrageous, and social justice warriors are trying to make the episode out to be smoking gun evidence of Supreme Court bias in anticipation of a negative ruling in the case regarding affirmative action.

As the Daily Beast reveals, however, there is a much better explanation than racism for why Scalia might find the argument powerfully supported by the research of Richard Stander and Stuart Taylor in their book “Mismatch” compelling. Young Nino Scalia was a star in elementary school, but failed the entrance exam for the Jesuit High School in Manhattan. His father told him that he might ultimately be better off at a less competitive school where he could shine, and that’s what happened.  Scalia later graduated first in his class at a less prestigious high school. Then he was rejected again when he applied to Princeton University.  Again he took a step down, attended Georgetown University instead, and was first in his class. Continue reading

Race-Baiting Scalia (For Doing His Job)

Ignore them, Nino.

Ignore them, Nino.

As is often the case with topics here, I heard about the uproar over Justice Antonin Scalia’s controversial question during oral argument on the latest challenge to affirmative action accidentally, when a Facebook friend re-posted a furious message from his friend calling Scalia a moron and a racist. Even reading a second hand account of what somebody read that Scalia said (the transcript hadn’t been released, but never mind: that was enough for my friend’s African-American friend to call a Supreme Court Justice a racist and for my friend, who is a liberal-minded professor, to endorse it), I could tell that the attack was unfair and worse, outright race-baiting.

What Scalia was alleged to have asked a lawyer was whether affirmative action actually hurt blacks by putting them in “more advanced” institutions, that they “don’t belong” in elite schools. I knew, no matter what Justice Scalia really said, that he was talking about some blacks, not all blacks. That’s obvious: if an African American student can be admitted to an elite school without the “thumb on the scale” of affirmative action, obviously he or she is qualified and belongs there. But more importantly, I knew from personal experience that being admitted to a top school when the student’s credentials wouldn’t normally warrant it could be disastrous.

I worked in the administration of Georgetown Law Center in the late seventies and early eighties, as the school was trying to increase its percentage of black students. I was involved in the process sometimes, and was stunned by its unfortunate revelations: for example, some of the black students we accepted from elite colleges lacked basic reading, writing and critical thinking skills. I remember one Yale grad in particular who could not write a comprehensible sentence.

Georgetown Law set up a special class for these minority students (and a couple of  white “legacy” admits who were sons of wealthy alums, one of which I had specifically told his father could not possibly graduate, based on his college grades and test scores.) Then the school was sued by one of the affirmative action students, who claimed that making him take the remedial class was demeaning and racist. Of course he would have been better off in a less demanding law school. Affirmative action did none of these students any favors. In my opinion then and now, their welfare, confidence and self-esteem was  sacrificed so Georgetown could look progressive, and to the dubious objective of diversity for diversity’s sake.

It wasn’t just my Facebook friend’s friend that was bashing Scalia as a racist. It was much of the news media. “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges” reported Mother Jones. “Scalia: Maybe black students belong at ‘less-advanced’ schools” reported The Hill. MSNBC’s slur was Justice Antonin Scalia floats ‘lesser schools’ for black students.  A New York Times editorial—the paper has, it appears, lost its mind– said that Scalia raised an “offensive premise which has not gotten such a full airing at the Supreme Court since the 1950s.” The New York’s Daily News  headlined“SUPREME DOPE” over a photo of Nino. Continue reading

Comment of the Day: “Disqualified For High Office: Senator Ted Cruz (R-Tx)”

legs

(Some of the many legs Kim Davis and Ted Cruz don’t have to stand on…)

My posts are long enough, I think everyone will agree, and often a lot more than that. Believe it or not. I’m always debating whether to include more detailed and footnoted arguments that make the blog more like the New Yorker, and I usually opt for the shorter version. I am always grateful when an articulate commenter expands on the post expands, at any length, on what I present and adds some of the sources I have read and others, putting more flesh on the bones of my position.

johnburger2013 has done Ethics Alarms a service by doing this regarding my posts about recalcitrant Kentucky clerk Kim Davis, now known as Inmate 8522901, and hosanna to that. In particular, I am grateful for his Scalia reference. The Volokh Conspiracy is the best reference for issues like this, as Prof. Volokh and his cohorts lean libertarian but brook no nonsense. You know, like Ted Cruz’s rant. Thanks to jvb also for using that site deftly.

Here is his Comment of the Day on the post, Disqualified For High Office: Senator Ted Cruz (R-Tx): Continue reading

Unethical Quote of the Month: Justice Antonin Scalia

Scalia

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia, excoriating his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling today,  authored by Kennedy,  that same-sex marriage was a Constitutional right  no state could deny. Scalia filed an angry and intemperate dissent, low-lighted by this comment in a footnote.

Wrote Prof. Stephen Gillers, legal ethicist:

“How after this can Kennedy work with him?  Scalia has himself “descended” from the manner of argument found  in  opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.  Scalia sets a bad example that will harm civility in lower courts and at the bar.”

Exactly.

The rest of Scalia’s dissent is hardly more restrained, either.

You can read the opinion and dissents in Obergefell v. Hodges here.

UPDATE: Here’s a screenshot of another selection, courtesy of Slate:

screenshot_99.jpg.CROP.promovar-mediumlargescreenshot_100.jpg.CROP.promovar-mediumlargescreenshot_101.jpg.CROP.promovar-mediumlargescreenshot_102.jpg.CROP.promovar-mediumlarge

Arguing with the majority’s wisdom and legal analysis is one thing, mocking a Justice’s writing style is quite another—unprofessional, uncollegial and below-the belt. Yes, Nino is a much better writer than Kennedy, but belittling his efforts shows neither proper judicial temperament nor appropriate respect for the Court itself. Some commenters excuse this because they disagree with the ruling: Irrelevant. Check your rationalizations, especially #2. The “They’re Just as Bad” Excuse, or “They had it coming.”

KABOOM!* An Unethical Loophole In The Justice System—And The Supreme Court Just Refused To Remove It

Screenshot_loophole

Radley Balko, the libertarian investigative reporter, reports in his Washington Post column on a sentencing anomaly I was blissfully ignorant of before, and was a happier man for it. He writes…

Think the government must convict you of a crime before it can punish you for it? Think again.Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.

Balko was writing about Jones v. United States,  in which the jury found three Washington, D.C.not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, convicting them only of selling small quantities of the drugs, a relatively minor offense.  The judge, however—think about this, now—decreed that his sentence could also take into account the conduct that had led to the more serious conspiracy charge —that is, exactly the charges that the jury had acquitted them of—gave the three men sentences ranging from 180 to 225 months, while the crimes they were found guilty of committing would justify something in the range of 33 to 71 months. Continue reading

Ethics Dunce: Law Professor Josh Blackman, Too Desperate To Take A Cheap Shot At Justice Scalia

Supreme Court Justice Scalia, though not quite to the absurd degree of Sarah Palin, is a conservative who inspires such visceral dislike from the residents of the American Left that he often inspires them to behave irrationally in their eagerness to express their contempt. Such was the case this week, when Scalia sharply rebuked a lawyer making his oral argument before the high tribunal in the case of Marvin Brandt Revocable Trust v. United States, a property rights dispute over the conversion of abandoned railroad rights of way into public trails. The advocate, Steven Lechner, was before Scalia and his colleagues for the first time, and began his argument by reading from his notes. This is not cool, and violates Supreme Court tradition, rules, and long-observed standards.

Tony Mauro, blogging at the Legal Times, explains: Continue reading

“The Judge in the Hat” (With Apologies To Dr. Seuss)

antonin-scalia hat

The sun did not shine.

Inaugurations are gray.

So reporters sat mocking the people that day.

Senator Claire McCaskill tweeted just what they said.

“Why does Justice Scalia have THAT on his head?”

“It’s a beret on steroids!” one journalist claimed.

“It’s so floppy! It’s silly! He should be ashamed!”

But the mockers just showed what they’d proven  before:

They are dim wits, for the hat honored Sir Thomas More. 

It is seen on his portrait, sitting right on his hair,

And Scalia had chosen his fashion with care.

Brave Sir Thomas fought power abused by a king,

And he died fighting tyranny, beheaded one spring.

For Scalia to emulate More on this day

Meant his hat was a message, and not just some beret.

He was telling this President, as More might have said it,

“Keep abusing your powers, and you will regret it.

Obamacare skated when Roberts’ mind quit,

But  we’ll fight for the Founders, don’t you doubt it one bit!” 

It was clever of Nino, and audacious, and tough

To choose this event to declare, “That’s enough!”

And in such a sly way that he certainly knew

Would go over the heads of all but a few.

Still I’m sorry to say, but I’d say to his face,

“Mister Justice, that symbol was just out of place.

The swearing in isn’t the place for defiance; 

You were bound to show loyalty, just not compliance.”

So as much as I honor More’s ethics and fight,

For Scalia to wear his hat then…

Wasn’t right!

thomas-more