Justice Stephen Breyer

Comment Of The Day: “Observations On Justice Breyer’s Retirement”

/ Jack Marshall / 4 Comments

Michael West’s rueful Comment of the Day relating Justice Breyer’s eagerly awaited (by Democrats) retirement to the deterioration of the balance of powers intended by the Founders presents a useful perspective. My only cavil is his introduction.

I think it is unfair to assume that Breyer retired to ensure that a Democrat President would choose his successor. Maybe he did, but nothing Breyer has said in his years as a Justice would be consistent with that thesis. Breyer, unlike Ruth Bader Ginsberg, has never been overtly political, and has objected to accusations that his colleagues on the Court were driven by partisan agendas. If we take him at his word, it would be extremely out of character to quit so Joe Biden could apppoint a replacement based on an ideological check list filtered through the non-merit restrictions of race and gender.  Of course, all of this is really just a bad sign for the dignity of SCOTUS and the strength of the divided government. “The only ethical reason for any Justice to retire is because it’s time to retire,” Michael begins. Well, at 83, it’s always past time to retire. I think Justice Breyer has earned the benefit of the doubt.

Now here’s Michale West’s Comment of the Day on the post, “Observations On Justice Breyer’s Retirement”:

***

The only ethical reason for any Justice to retire is because it’s time to retire. But we all know Breyer is making a strategic retirement to permit a Democrat president to appoint and a Democrat Senate to approve a Progressive to the bench. This is a clear indication of the intentional politicization of the Court – which is was never meant to be.

This is all because of the ever increasing ability of Executive Branch and now the Judicial Branch to basically become alternative legislatures to Congress which has largely surrendered most of it’s power since the technocratic growth of the bureaucracy from FDR’s time. Continue reading →

Morning Ethics Warm-Up, 5/20/21: Happy Birthday, John Stuart Mill!

/ Jack Marshall / 21 Comments

Mill

John Stuart Mill (1806–73), was born on May 20, not merely the most important figure in ethics to have a connection to this day, but also the most important human being born on this day in the history of civilization—yes, even more than Cher, who turns 75 today. Mill’s refined the concept of liberty that required the freedom of the individual in opposition to state control. He was the most influential proponent of utilitarianism, the crucial ethical theory developed by Jeremy Bentham. He helped reform scientific inquiry and research, recognizing the pervasive risks of confirmation bias, by clearly explaining the premises of falsifiability as the key component in the scientific method.

Mill was also a Member of Parliament and a towering figure in liberal political philosophy. You have certainly heard or read his most famous quote: “A society that will trade a little liberty for a little order will lose both, and deserve neither.”

A thorough biography and analysis of his work is here.

1. Justice Breyer doesn’t care about making sure the Supreme Court doesn’t get more conservative. Good. That’s not his job. Democrats realize that their control of the Senate is hanging by a thread, “thread” defined as a few superannuated Senators who could drop dead any second, giving the GOP a majority. Thus they are increasingly pushing Justice Stephen G. Breyer, 82, to retire now so Joe Biden can name an appropriately liberal replacement (who will also have to be female and black, vastly limiting the pool of possible choices without concern for actual legal competence.) “Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook,” wrote Erwin Chemerinsky, the hyper-partisan dean of the law school at the University of California, Berkeley in The Washington Post this month. Got that? The 80+year-old Democratic Senators have to hold on to their jobs like grim death, but Breyer is being lobbied to retire. Hypocrisy, they name is Democrat! But it isn’t Breyer:

The Justice has been particularly vocal about the importance of not allowing politics to influence judges’ work, including their decisions about when to retire. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment….If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

I wonder if he’s read (or seen) “The Pelican Brief”…Meanwhile, research suggest that retirement tends to kill Supreme Court Justices. A paper in The Journal of Demography studied the effects of retirement by Supreme Court justices on their future longevity, and found that the effect of retirement was about the same as smoking two packs of cigarettes a day. The Democrats don’t care if Breyer dies sooner than later, though, as long as he does it when they can pick his successor, or after he’s quit.

Continue reading →

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

/ Jack Marshall / 16 Comments

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.

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 →

Mid-Day Ethics Refreshment, 6/12/2018: “Ethics Isn’t A Horse Race, It’s A Marathon” Edition

/ Jack Marshall / 31 Comments

Good afternoon…

1. Culture rot symptoms. Once upon a time it would have been unthinkable and shameful for the owner of a losing horse in a Triple Crown race to claim that dirty tactics have affected the outcome. That, however, was before the loser of the 2016 Presidential election did the equivalent sour grapes act, loudly and continuously. This is how important cultural ethics norms fall off in chunks.

Justify becoming the only undefeated Triple Crown champion after Seattle Slew as he won the Belmont Stakes was immediately smeared  by Mike Repole, co-owner of fourth-place Vino Rosso and last-place Noble Indy. He didn’t claim Russian collusion, just equine collusion.

“Justify is a super horse. He is a Triple Crown winner and he’s undefeated,” said Repole “But I can see the stewards looking into this over the next couple of days. I probably expect them to look into reckless riding by Florent and bring him in to question him about what he was thinking and what his tactics were.”  He accused jockey Florent Geroux of riding Restoring Hope, Justify’s stablemate, to clear the way for Justify to win the race.

“It definitely seemed to me [Restoring Hope] was more of an offensive lineman than a racehorse trying to win the Belmont,” Repole told reporters, “and Justify was a running back trying to run for a touchdown.” Nice. the complaint instantly became the main story of the race, before Justify’s jockey and owners were able to bask in the rare accomplishment for a day or two. Ironically, Repole’s own Vino Rosso was assisted by similar “lineman” tactics by another horse, Noble Indy, like Vino Rosso trained by Todd Pletcher. Concludes racing expert Pat Forde,  “It’s almost certainly why Noble Indy was entered. Basically, Pletcher’s two-horse racing tactic simply ran up against a better two-horse racing tactic.”

And the tactic is legal. Never mind. Graceful losing is on the way out, thanks to our politicians.

2. He gets it, and he doesn’t even read Ethics Alarms! The Ethiopian cabbie who drove me home from the morning mandatory legal ethics seminar that I teach every month for newly-minted D.C. lawyers spent that first half of the trip complaining about President Trump. Then he said, “Now, I didn’t vote for him, but I respect him. I respect him because he is the President of my country, and my fellow citizens elected him. I can complain about him to you, because you are an American too. If a foreigner gets in my cab, however, and starts insulting the President, I pull over and order him out.” Continue reading →

Morning Ethics Warm-Up, 3/1/18: Obstruction Of Justice In Oakland, Virtue-Signalling At Walmart, And Common Sense At SCOTUS [UPDATED!]

/ Jack Marshall / 62 Comments

 

Well, whaddya know! There IS a there there!

Good Morning!

(Why isn’t this another Afternoon Warm-up? Because I started it in the morning, and all hell broke loose here, that’s why.)

1  Injecting even more stupidity into the culture…Walmart’s virtue-signalling release yesterday reminded everyone that the big-box stores stopped selling AR-15 rifles three years ago. It also announced that it would be refusing to sell firearms to anyone under 21, and this…

“We are also removing items from our website resembling assault-style rifles, including nonlethal airsoft guns and toys.”

Ugh. This is how we end up with no-tolerance fascists in public schools punishing students for chewing their Pop Tarts and pizza slices into the shapes of guns. I had a Mattel burp gun–a plastic model of a Tommy Gun—as a kid. I shot it off in the school auditorium as a stunt during my speech when I was running for president of the 8th Grade. (I lost) One of my favorite toys ever. Now corporations want to assist in the anti-gun indoctrination.

Writes Stephen Green: “‘If an object resembles something we think is bad, then it is bad,’ is the sloppiest kind of magical thinking.” It’s worse than that, though. The more sloppy thinking  injected into the culture, the less competent the culture becomes.

I hate memes as a rule, but this one is relevant:

2.  The all-time false equivalency champ…The calls to raise the age of legal gun purchasing, one of many gun regulation issues where the NRA’s absolutist opposition makes little sense except that it is an absolutist, no infringement means no infringement organization, is another in a long list of confusing, partisan-divide jumping controversies over “age of responsibility.” laws.  There are age limits on buying cigarettes, alcohol, driving, consent to have sex,  right to sign binding contracts, military service (and formally the draft), and some other activities, and they have always been used to bootstrap each other. This has been going on for decades despite the fact that physical maturity, mental maturity and emotional maturity are not always nicely synchronized, individuals vary greatly, and if we followed recent scientific studies, we would consider restricting what young men especially could legally do until about age 23. Continue reading →

Ethics Quote Of The Day: Supreme Court Justice Stephen Breyer

/ Jack Marshall / 31 Comments

breyer

“The state has a reason? Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We’re not sure, but we think probably. . . . Okay. End of case, right?”

—-Supreme Court Justice Stephen Breyer, during oral argument in the case Packingham v. North Carolina, describing how state laws are traditionally seen by the Court as infringing on freedom of speech.

Lester Packingham was registered as a sex offender in 2002 after pleading guilty to statutory rape with a 13-year-old girl (he was 21). He served his time and probation, and then, in  2010, Packingham posted on Facebook to thank the Lord for a recently dismissed parking ticket, writing, “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? . . . Praise be to GOD, WOW! Thanks JESUS!”

Jesus, however, did not stop him from being prosecuted for that message under a 2008 North Carolina law that prohibits registered sex offenders from accessing social media, on the theory that it gives them access to minors.

Packingham appealed the resulting conviction, arguing that the law violated his First Amendment rights. The Supreme Court accepted the case, which could  determine whether access to social media sites like Facebook, Youtube, and others are a fundamental right.

In oral argument this week, observers got the distinct impression that this is where the Court is headed. At least five justices, a majority of the temporarily reduced court, suggested during argument that they would rule against North Carolina and for Packingham , whose lawyer says that more than 1,000 people have been prosecuted under the law.

Reading various reports of what was said, I am stunned by how out of touch everyone involved sounds. The Washington Post story describes Justice Kagan like she’s a web-head because she’s “only” 59.  “So whether it’s political community, whether it’s religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?” Kagan asked North Carolina Deputy Attorney General Robert C. Montgomery, who was defending the law.

Do we really have to ask that question today? The law was passed in 2008, which in technology and social media terms makes it archaic. Legislators can be forgiven for not understanding the central role of social media in American life nine years ago, but in 2017, when we have a President tweeting his every lucid thought (and many not so lucid), how can anyone defend the argument that blocking a citizen from social media isn’t an extreme government restriction on free speech? Laws related to technology should all have sunset provisions of a couple years (a couple months?) to ensure that they haven’t been rendered obsolete by the evolving societal use of and dependency on  the web, the internet, and new devices. Continue reading →