U.S. Supreme Court

On Free Speech, The Supreme Court, and “Conversion Therapy”

/ Jack Marshall / 11 Comments

One of many Woke World freak-outs going on now is one over the strong signals the Supreme Court gave off during oral argument that it was going to overturn Colorado’s law banning so-called “conversion therapy” as unconstitutional. Naturally the progressive bloc on the court thinks the law is hunky-dory. Why would anyone not want to be gay?

One of the issue that came up in oral argument was whether there is any evidence that trying to talk someone out of being gay is harmful. There isn’t, but Court Dunce Sonia Sotamayor opined that “I don’t think the state has to provide a study to show that the advice is not sound,” comparing conversion therapy to a dietitian or counselor telling a client to do something that would harm their body. In other words, the banned therapy is just bad, and every right-thinking person knows it. This is consistent with Patton Oswalt’s certainty that whatever progressives favor must represent progress, hence opposing it is per se a problem. Progressives believe that being gay is just wonderful. That’s good enough for Sonia: treating someone for it is automatically harmful.

What an ongoing embarrassment she is.

Intelligent arguments came from, among others…

Continue reading →

Ethics Quote of the Month: SCOTUS Justice Clarence Thomas

/ Jack Marshall / 11 Comments

“If it’s totally stupid, you don’t go along with it…”

—Supreme Court Justice Clarence Thomas, in comments at Catholic University in Washington, D.C., as he explained why he thinks the traditional reverence for Supreme Court precedent (stare decisis) makes neither legal nor logical sense

In discussions with some of my more fair and rational progressive lawyer friends about the Dobbs decision overturning Roe v. Wade, several of them admitted that Roe was a terrible opinion, badly reasoned and sloppily written. This has been the consensus of most honest legal analysts since the 1970s, but never mind, Roe declared the right to kill unborn children for any reason whatsoever a right, so for abortion-loving feminists and their allies (including men addicted to promiscuous sex without responsibility), Roe was a “good” decision. But my colleagues who knew it was not just a poor decision but a terrible one condemned anyway, because, they said, it violated stare decisis, the hoary principle that the Supreme Court should eschew over-turning previous SCOTUS decisions even if they were outdated or clearly wrong, in the interests of legal stability, preserving the integrity of the Court and insulating the institution from the shifting winds of political power.

Like many principles, that one sounds better in the abstract than it works in reality, and Roe is as good an example as one could find short of Dred Scott. Roe warped the culture and turned living human beings into mere inconveniences whose lives could be erased at whim. How many millions of human beings don’t exist today because of the ideological boot-strapping logic of that decision, which bizarrely equated the right to contraception to the right to kill the unborn?

Reverence of bad decisions as beyond reversal is also a handy political weapon: as several wags have noted, stare decisus is mandatory when the precedent at issue is progressive cant (like Roe), but when the Left passionately believes a SCOTUS decision was wrongly decided, it’s time for an “exception” to stare decisus. In his recent appearance at D.C.’s Catholic University, where he taught at the law school until protesters against Dobbs in his classes forced him to stop, Justice Thomas pointed to Brown v. Bd. of Education, the landmark decision that overturned a well-established Court precedent holding that “separate but equal” was a principle that allowed segregation in the public schools as he neatly eviscerated the intellectually dishonest position that SCOTUS precedent must be sacred.

Continue reading →

Who Says The Supreme Court Is Partisan On Every Issue?

/ Jack Marshall / 9 Comments


The Supreme Court yesterday sided 8-0 with a straight (okay, “cis”) woman in Ohio who filed a “reverse discrimination” lawsuit against her employer after her boss declined to promote her, preferring to promote “rainbow” staffers. In a unanimous ruling written by Justice Ketanji Brown Jackson, the Justices agreed that a federal appeals court in Cincinnati erred by imposing a tougher standard for the case brought by Marlean Ames to move forward than if Ames had been a member of a minority group. 

The appellant, a straight, white woman, had filed a lawsuit in federal court alleging that she had been the victim of employment discrimination based on her not being gay. The department had hired a lesbian for the position that she had sought, she contended, as well as a gay man to replace her after she was demoted.  The United States Court of Appeals for the 6th Circuit threw out Ames’s sexual orientation claim, arguing that her claim could not go forward unless she could show “background circumstances” to support her allegations of reverse discrimination, such as a “pattern” of reverse discrimination. 

SCOTUS reversed, sending the case back to the lower court. Federal employment discrimination law, Jackson explained, prohibits intentional discrimination based on “race, color, religion, sex, or national origin.” Period. Minorities have no more intrinsic grounds to claim discrimination than majority groups.

Thank you!

Continue reading →

Stop Making Me Defend the Supreme Court!

/ Jack Marshall / 38 Comments

Almost a year ago, Ethics Alarms discussed the case of Liam Morrison (above), a seventh grader who was told that his “There are only two genders” T-shirt was inappropriate as school attire. A three-judge panel of the U.S. Court of Appeals for the 1st Circuit upheld a District Court decision from 2023 that the Nichols Middle School in Middleborough, Massachusetts didn’t violate Liam’s First Amendment rights by telling him to change his shirt.

Chief Justice David Barron, writing for the Court, concluded that “the question here is not whether the t-shirts should have been barred. The question is who should decide whether to bar them – educators or federal judges.” He continued, “We cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ‘an environment conducive to learning’ at NMS to use rather than to the educators closest to the scene.”

I wrote, in a post agreeing with the decision both ethically and legally,

Continue reading →

Stupidity Tag On Fox News

/ Jack Marshall / 15 Comments

I had the TV on Fox News to keep my dog company, and was downstairs from my office briefly to get a drink when I heard a clip of Joe Biden saying, “The Supreme Court has never been more out of step.”

“Out of step?” What’s that supposed to mean? A President being stupid is bad, but a President who makes the public stupider is far worse. It isn’t the Supreme Court’s function to be “in step” with the times, polls, public opinion, fads or zeitgeist. It’s job is to interpret the law and the Constitution. Because the public’s understanding of the law is about at the same level as my dog’s understanding of “Two Gentlemen of Verona,” their opinion regarding what the Supreme Court should do is literally useless and of no value whatsoever.

The issue at hand was the SCOTUS decision on the bump stock ban discussed here. That opinion was only nominally about bump stocks: what it involved really was statutory construction and the limits of agencies trying to do end-arounds when laws don’t allow them to do what they would like to do.

Continue reading →

Ethics Quote of the Month: Ironically, It’s Justice Alito!

/ Jack Marshall / 4 Comments

“An event that highlights the need to amend a law does not itself change the law’s meaning.”

—-Justice Joseph Alito, concurring in the case of Garland v. Cargill and re-affirming the ethical, legal, democratic and conservative principle that laws shouldn’t be ignored or changed by courts just because they no longer work the way they were designed to.

I guess this will be just one more reason for the Angry Left to try to “get” Alito. Maybe he likes to eat candy bars that a lot of the Capitol rioters ate, or something. May be they’ll hire a lip-reader to try to catch him saying something like “it was a riot!” while smiling. Conflict of interest! Recuse!

Re-affirming why the 6-3 conservative SCOTUS majority is good for democracy, the U.S. Supreme Court yesterday ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (aka the ATF) exceeded its statutory authority when it tried to ban bump stocks by classifying them as machineguns. Machineguns are defined in an old statute, the National Firearms Act of 1934. It banned “machine guns,” encompassing today’s automatic weapons. The law “defines a machinegun as any weapon capable of firing “automatically more than one shot…by a single function of the trigger,” as Justice Clarence Thomas explained in the majority opinion. Although the definition also covers parts of a gun that are “designed and intended…for use in converting a weapon” into a machinegun, it does not cover “bump stocks.”

Bump stocks assist “bump firing,” which involves pushing a rifle forward to activate the trigger by bumping it against a steady finger, then allowing recoil energy to push the gun backwards, resetting the trigger. If the shooter maintains forward pressure and keeps the trigger finger in place, a semi-automatic rifle will fire like an automatic weapon (anti-gun fanatics don’t know the difference, and don’t care). The ATF’s “interpretive rule” published in December of 2018 banned stock replacements that facilitated this operation.

Continue reading →

What a Surprise. SCOTUS Agrees That the Left’s 14th Amendment Fantasy To Rig the 2024 Election Is the Cynical, Anti-Democratic Ploy That It Is.

/ Jack Marshall / 13 Comments

Reports on the oral argument before the Supreme Court indicate that the Justices’ questioning was harshly critical of the ruling from the Colorado Supreme Court under scrutiny. That was the declaration that former President Trump’s conduct after the election in 2020 made him ineligible to hold office under the 14th Amendment section barring those who engaged in an insurrection from running for office.

It wasn’t just the solid conservatives (above) who doubted the Colorado ruling; even two-thirds of the so-called liberal bloc of the Court seemed unimpressed by the Colorado decision banning Trump from the ballot, which by extension makes the Supreme Court’s decision applicable to Maine as well as any other Trump-fearing states that are inclined to try the same tactic. Every Justice except the pathetic Sonia Sotamayor expressed skepticism at the Colorado argument and appeared to be more sympathetic with Trump’s lawyer’s positions.

Continue reading →

Breaking! The Supreme Court Finally Issues Its Own Code of Judicial Ethics

/ Jack Marshall / 8 Comments

This is a rarity: genuine breaking ethics news. The U.S. Supreme Court just released a SCOTUS code of conduct, signed by all nine justices. I have already read that the code “largely follows an existing code for other federal judges.” That code is here. I disagree. The new SCOTUS Code is significantly more detailed, with special emphasis on family conflicts (no doubt prompted by the criticism of Justice Thomas’s wife, a conservative activist.)  I find it fascinating, after decades of arguing that the general precepts of judicial ethics were to be presumed in the very core of our nation’s most powerful judges, when they finally codified their ethics, it yielded the most specific and extensive judicial ethics requirements in existence.

I want to flag two important features. First, the word used in all of the five Canons is “should,” not “shall.”  That makes these best practice guidelines, but not absolute requirements. Second, the code does not include any mechanism for enforcement, discipline, or public oversight. Presumably the Court is still  entirely self-policing.

Here is what was released today; I apologize for the funky formatting. WordPress made a lot of strange changes when I copied and pasted, and I had the patience to fix only the worst of them… Continue reading →

Update: “The New York Times Legal Expert Doesn’t Understand The Constitution”

/ Jack Marshall / 11 Comments

Well, what do I know….

At least in the view of the New York Times SCOTUS reporter Adam Liptak, the course of the Supreme Court oral argument in United States v. Rahimi indicates that the Court is likely to over-rule the Fifth Circuit and let the law discussed her in this post stand. Just call me “Fredo”: I was certain that the Court would agree that the law is unconstitutional, and I’m still certain it should be so ruled.

Based on the story, the Justices are persuaded by the fact that Rahimi, after the law was imposed on him, proved he was in fact a danger to society and should not have access to a gun.

Continue reading →

I THOUGHT This Issue Would Eventually End Up At The Supreme Court, And Here It Is!

/ Jack Marshall / 27 Comments

A federal appeals court in New York ruled in 2019 that President Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints. Judge Barrington D. Parker Jr. wrote for a unanimous three-judge panel of \ the U.S. Court of Appeals for the Second Circuit, “We conclude that the evidence of the official nature of the account is overwhelming…We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

I wondered at the time if the ruling was a by-product of anti-Trump mania, and I still wonder if the same ruling would have been made had the sensitive official tweeter been Barack Obama. I confess to being torn on both the ethics and the law regarding the matter.

Continue reading →