Justice Scalia

Illegal Immigration Insanity

/ Jack Marshall / 10 Comments

I wonder what HE thinks is the sensible way to handle illegal immigration. It can't be much crazier than almost everyone else's opinion.

Yesterday the U.S. Supreme Court heard arguments on the legality of Arizona’s anti-immigration legislation, and in today’s Washington Post, columnist Dana Milbank, one of the Post’s house liberals who has the integrity to be up-front about it, presented us with a related column that reminded me how ideology can become indistinguishable from insanity.

Illegal immigration is perhaps the best (or worst) illustration of this phenomenon, a problem that requires essential and obvious measures to address, one of which—finding a route to allow current illegal immigrants to achieve legal status—is opposed “on principle” by the Right though there is  no feasible alternative, and the other—taking effective measures to block entry by future illegals and to eliminate the benefits of breaking immigration laws through tougher enforcement—is opposed by the Left on humanitarian grounds, though it is irresponsible, expensive, and dangerous. In the middle of this absurd impasse is the government, which refuses to aggressively enforce the laws on the books, either because of unholy alliances with business interests that want cheap and exploitive labor (the Republicans) or because of a cynical strategy to court a large and growing demographic group to ensure future political power (the Democrats).

In short, Nuts, Nuts, Corrupt and Corrupt. Continue reading →

Ethics Quote of the Week: Justice Antonin Scalia

/ Jack Marshall / 8 Comments

“Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression.” 

— Justice Supreme Court Justice Antonin Scalia, in the majority opinion of Brown v. Entertainment Merchants Association that over-turned a California law restricting the access of children to violent video games. Scalia was responding to the argument by conservative colleague Joseph Alito, who described the wide range of violent and offensive experiences a child could have though video-gaming, such as reenacting the shootings at Columbine High School and Virginia Tech,  raping Native American women or killing ethnic and religious minorities.

Scalia is the Supreme Court justice liberals love to hate, but he is the most stalwart defender of the First Amendment since Justice William O. Douglas and Justice Hugo Black on the Warren Court. As political warfare increasingly focuses on the tactic of suppressing and inhibiting speech and ideas rather than rebutting them, Scalia’s uniform rejection of any effort to squelch the free exchange of ideas, even disgusting ideas, is the last line of defense against government-imposed political correctness, nanny state thought control, and puritan censorship. While sufficiently important ends, such as protecting our children and our culture, may justify some extreme means, Scalia’s opinion reaffirms the core American principle that those means can never include government restriction of speech in its broadest definition. Continue reading →

The Supreme Court Saves An Ethics Principle

/ Jack Marshall / 2 Comments

Mayor Quimby is honest about being corrupt. Isn't that good enough?

Rescuing the states’ power to insist on more ethical conduct from their elected legislators, The U.S. Supreme Court ruled Monday that there was no Constitutional prohibition on state rules against legislators voting on issues in which they have a private, personal interests.

The unanimous decision upheld a Nevada ethics law that governs when lawmakers recuse themselves from voting on official business because they might have conflicts of interest. The challenge to the  law came from Michael Carrigan, a conflicted city council member from the Sparks, Nev., who was reprimanded by the state ethics commission after he voted  on a casino proposal though his campaign manager had been hired as a consultant to the project.

The law prohibits a public official from voting on an issue when a “reasonable person” would suspect a conflict because of financial ties or the interest of a spouse or family member. This is the essence of “the appearance of impropriety.” It also includes “any other commitment or relationship that is substantially similar” to those spelled out.  Carrigan had argued that the Nevada’s law was overly broad and that he should be able to vote on the project, so long as he disclosed his relationship with the consultant.

Ah, disclosure! Continue reading →

Ethics Heroes: The U.S. Supreme Court

/ Jack Marshall / 1 Comment

To be more accurate, the heroic component in this instance is the liberal wing of SCOTUS ( Justices Sotomayor, Kagan, Ginsberg, and Breyer) plus the swing vote, Justice Kennedy, who wrote the majority opinion in Brown v. Plata.  The decision upheld a court order requiring California to release a staggering 46, 000 inmates of its prisons, more than a fourth of the those sentenced there. The majority concurred with the lower court’s assessment that California prisons were so obscenely over-crowed that conditions amount to a human rights violation and a breach of the constitutional prohibition on “cruel and unusual punishment.”

Some Supreme Court decisions come down to ethics as much as law, and this was certainly one of those times. At issue from a legal standpoint was  whether federal judges had the power to order the release of state prisoners as a necessary means of curing a constitutional violation. But the brilliant legal minds on the conservative side of the Court’s divide had no problem answering that question in the negative, and persuasively too.  The dilemma is that California’s least sympathetic citizens, its residents of the state’s penal institutions, are being kept in conditions that violate their constitutional rights, and despite many years of knowing about the problem, the state hasn’t found a way to rectify it. Continue reading →

Comment of the Day: “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”

/ Jack Marshall / 8 Comments

The motion to vacate Judge Walker’s ruling on Proposition 8 has been filed, you can read it here. Since the original post, I have detected some cracks in the formerly near-united front of legal ethicists and journalists deriding Walker’s critics. Some of them are finally, grudgingly, admitting that the Judge might not have handled his potential conflict so well after all, and that the motion is not a frivolous, anti-gay outrage as they originally labelled it.  The most rickety of the rationalizations put forth on Walker’s behalf, advanced by some his most respected defenders, is that he had no obligation to reveal his own sexual orientation by disclosing his domestic arrangement because of its intimate and private nature. Yet the judge voluntarily disclosed it after his decision was in the books, raising a rebuttable presumption that his original silence was to avoid suggestions of conflict, not out of a desire for privacy.

First time commenter Jada adds her Comment of the Day to the discussion: Continue reading →

The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price

/ Jack Marshall / 38 Comments

"Oh, all right...as long as we like the decision."

Thanks to the Judge Walker controversy, now have proof that the best legal ethicists in the nation are human. I suppose that’s something.

My colleagues in the legal ethics field are arguing—decreeing, really— that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality. Coincidentally, they also really, really like his decision. But then, so do I. Continue reading →

Scalia’s Latest Controversy: Does An Appearance of Impropriety Have to Be Reasonable?

/ Jack Marshall / 1 Comment

Supreme Court Justice Antonin Scalia is once again under critical fire for appearing to feed a conservative bias. He accepted G.O.P. Rep. Michele Bachmann’s invitation to address the Tea Party Caucus next month, as the group holds its first Conservative Constitutional Seminar. Some are claiming that the meeting is unethical, raising the specter of an “appearance of impropriety.” Continue reading →

The Kagan Hearings: The Right Thing For Republicans To Do

/ Jack Marshall / 12 Comments

There is not one chance in a thousand that they will do it, of course. But Senate Republicans can do much good for the country, the political culture, and, in the long term, themselves, if they would undertake a courageous, principled and ethical act: confirming Elena Kagan to the Supreme Court, after establishing her qualifications to serve, by an overwhelming if not unanimous vote. Continue reading →