Typo Ethics! The Supreme Court Had A Really Bad One, And It Made A Difference

Justice_Pierce_Butler

As regular readers here know, there are a lot of typos, too many, on Ethics Alarms, mostly because I have to write posts more quickly than I’d like, I’m often interrupted, I can’t spell and I can’t type. Thankfully readers alert me to the most egregious (two generous readers particularly), and whenever I catch a typo in an old post, which is often, I fix it (and think “One more down, 701, 566, 211 to go!”). Fortunately, very few typos over the years have resulted in a post saying something other than what I intended, though the occasions where I have left off a “not” or an “un-” have been embarrassing. It all weighs heavily on my conscience and self-esteem, which is why this revelation, regarding a consequential typo in a Supreme Court opinion, was a welcome one.

A slip opinion (in other words, a preliminary opinion subject to revision before publication) was issued in 1928 regarding a zoning dispute. The author of the opinion, Justice Pierce Butler (above), had written, “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.” But the opinion was misprinted as “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” That was a sweeping statement about the constitutional stature of property rights, and not what the opinion was intended to stand for. But the slip opinion typo slipped under the Court’s radar for a while.

SCOTUS eventually fixed the mistake, so the final version of the opinion published in book form in United States Reports, contains what Butler intended. But the Court negligently and irresponsibly did not draw attention to the change (which was typical at the time), so most judges, lawyers and law professors assumed that the typo version was the law of the land. The mistaken version, which appeared to declare a vastly expanded interpretation of property rights, has appeared in at least 14 court decisions, including one was issued in 2020. It was cited in at least 11 appellate briefs, in a Supreme Court argument, and in countless books and articles.

A new study published in The Washington University Law Review traces the carnage and confusion created by the nearly century-old typo. Michael Allan Wolf, the law professor at the University of Florida who discovered the mistake and wrote the article, believes that while it is impossible to measure how much impact the typo has had in court decisions, there is little doubt that it has served to advance an interpretation of property rights that was never supposed to have Supreme Court support.

Continue reading

Still Not Scared? How About THIS…?

During a closed meeting on this week, Attorney General Merrick Garland met with 35 state supreme court chief justices to urge their cooperation on limiting evictions. Garland praised the Michigan Supreme Court for giving tenants more time to apply for rental assistance by directing courts to stay eviction proceedings for up to 45 days. The AG also saluted the Texas Supreme Court for helping tenants facing lawsuits by sending them notices with assistance options.

The 35 justices should not have accepted Garland’s invitation (or was it a command?) Those who did accept should have ostentatiously walked out as soon as his purpose became clear. To call the meeting inappropriate is itself inappropriate: this was a straight up violation of the separation of powers, and a breach of professional ethics for everyone involved. Garland works for the President: he’s part of the executive branch. He’s also a litigant or a potential one in the matter he was discussing. The is an ex parte communication, as he well knows.

For the White House’s agents to strong-arm, or attempt to, members of the judiciary to allow the President’s party to pursue an unconstitutional policy is one more step to undo the structure of American democracy. This is a pure IIPTDXTTNMIAFB (“Imagine if President Trump did X that the news media is accepting from Biden.”). Creeping autocracy! Democrats and their puppet media would scream. Defying democratic traditions and weakening institutions! Except, you see, Donald Trump never did anything like this, and if he did, I assume all those good Democrats and progressives among the justices would have used the opportunity to call for impeachment, and the Republican chief justices, having respect for the Constitution, would refuse to attend.

Continue reading

In Americans For Prosperity Foundation v. Bonta, Supreme Court Conservatives Again Defend The First Amendment As Its Left Approves Of Chilling Speech And Association

08-18-17 Free Speech

How did we get to the point where “liberals” want to chip away at the freedoms of speech and association while conservatives defend it? It’s weird: I’m old enough to remember when those mean old conservatives were always trying to silence dissent, not to mention vulgarity and violent TV shows and movies.

But in the final day of the Supreme Court’s term, the 6-3 conservative majority ruled that California—from which all terrible ideas now seem to flow— may not require charities soliciting contributions in the state to report the identities of their major donors. The law was opposed by very unconservative voices like those of ACLU to the NAACP Legal Defense and Educational Fund, and one would think that the alleged liberals on the court would immediately recognize how the law could and would chill free speech. Or don’t they pay attention to the incidents where CEOs have been run out of their jobs for contributing money to anti-gay marriage organizations, to name just one example? It would seem not. This is also weird, for the cancel culture has made simply stating an opinion that contradicts the Woke Borg perilous to one’s career, personal relationships and safety. Is it overly conspiracy-minded to suggest that progressives want it that way, particularly with their success at making wiggly-spined Americans who would make Patrick Henry retch grovel for forgiveness.

Chief Justice Roberts neatly summarized the importance of free association, writing,

Continue reading

Noonish Ethics Battles, 7/1/2021: “Remember Gettysburg” Edition

Gettysburg

July 1 marks the first day of the epic Battle of Gettysburg, which could fairly be celebrated as the beginning of the end for the Confederacy and slavery. Like so many pivotal moments in our history, this one came about by random chance, with Lee’s army and the newly installed Gen. Meade’s Army of the Potomac stumbling into each other in a Pennsylvania country town in 1863. For three days, a bloody and complicated battle engulfed the area, with so many ethics lessons in the process that I fear I won’t be able to cover all of them this week. [ Guest posts on the topic will be welcome!] I am hoping to visit the battlefield again this year—this week will be tough, unfortunately. I will definitely find time this week to watch Ted Turner’s excellent and even-handed film about the battle, highlighted for me by the performances of Jeff Daniels as Joshua Chamberlain, Tom Berrenger as Longstreet, and the late Richard Jordan as General Lewis Armistead, as well as the dramatization of Picket’s Charge, and the score by Randy Edelman.

1. Baseball sexual misconduct notes…A restraining order was taken out against Dodgers pitcher Trevor Bauer, last year’s National League Cy Young winner. Bauer is a sportswriter favorite for his outspoken social media presence and progressive politics, so this will be a blow to the sportswriting woke. The woman making the allegations had what started as a consensual relationship with the pitcher, but in a 67-page document, alleges that Bauer assaulted her on two different occasions, punching her in the face, vagina, and buttocks, sticking his fingers down her throat, and strangling her to the point where she lost consciousness twice, an experience she said she did not consent to. After the second choking episode, the woman awoke to find Bauer punching her in the head and face, inflicting serious injuries. She contacted police, and there is now an active investigation of Bauer by the Pasadena, California police department. If any of her account is true, Bauer faces serious discipline from baseball, which has been (finally) cracking down on domestic abuse by players in recent years.

Also yesterday, MLB suspended the former New York Mets general manager Jared Porter at least the end of the 2022 season.   Porter was fired from the Mets in January after an ESPN investigation revealed that he had harassed a female reporter in 2016 when he worked for the Cubs.

Craig Calcaterra, the lawyer sports pundit, supplied the facts here, and I am grateful for that. I would love to subscribe to his substack newsletter, but every issue I read includes Craig’s apparently incurable progressive bias where it doesn’t belong, and I’m just not paying for that. This time, for example, he cites the Bauer, Porter, and Bill Cosby stories to justify the proposition that “we believe [women] when they say what happened to them,” a stunning thing for a lawyer to say. How Kirsten Gillibrand of him! Later, as if this belongs in a baseball news letter, Craig cheers the death of Donald Rumsfeld as an architect of an “Illegal and immoral” war.

All war is immoral to some extent, but the Iraq War, while in hindsight a mistake, was not illegal except in left-wing talking points. Craig should know better, and maybe he does, but in any event, foreign policy and international law are not his areas of expertise. The degree to which wokism has rotted his brain also shows up in his inclusion of an insulting trigger warning before his account of the Bauer allegations: “Warning: the following contains allegations of sexual assault and violence that may be difficult to read.” Oh for heaven’s sake: “Finnegan’s Wake” is difficult to read. News is life: stop treating adults like children.

You can subscribe to Craig’s excellent baseball observations and juvenile political commentary here.

Continue reading

Ethics Nightmares, 6/23-24/21

I’m up at 3:30 am writing an ethics post because a nightmare woke me up. I don’t want to talk about it…

1. Breaking! American citizens are not as stupid as progressives think they are! At least in this instance…the first wave in the Democratic Party’s unethical push to eliminate safeguards agaiants fraudulent voting was the campaign during the Obama administration to label voter ID requirements as “racist’ and “voter suppression.” The argument that it made sense not to require voters to present the same level of identification necessary to rent a car, cash a check or get on an airplane when the integrity of our elections is involved was intellectually dishonest, but the with the degree to which the news media carried the message for their favorite party, I assumed this particular brainwashing exercise was a success. But in the wake of the failure of that party’s attempted take-down of election security last week, the Monmouth University Poll revealed that 80% of the public, approve of voter ID. I know, polls. But that’s a pretty convincing margin:

Even Democrats favor ID, though not by a large enough margin to generate any respect. The big surprise was that Monmouth shows whites splitting 77/21 in favor of ID and nonwhites favoring the measure even more strongly, at 84/13.

The American Left, wherein the One-Worlders dwell, always like to cite the United States’ failure to emulate European governments—which the U.S. decided at its origin not to follow by design—as an argument for various measures like banning capital punishment, nanny states, , and gun ownership restrictions, but have been adamantly mute on the fact that 46 of 47 European countries require government-issued photo ID to vote. The one exception has been Great Britain (although not Northern Ireland), and last month Prime Minister Boris Johnson’s government said it would make photo IDs mandatory in response to a Royal Commission report.

Continue reading

Law vs. Ethics #2: The Supreme Court Unanimously Says Colleges Can Use Tuition To Run A Professional Sports Business

In NCAA v. Alston, handed down yesterday, a unanimous Supreme Court ruled that the National Collegiate Athletic Association (NCAA) violated the rights of student athletes and the Sherman Antitrust Act by restraining colleges from compensating student athletes. Justice Gorsuch wrote the opinion, upholding the U.S. Court of Appeals for the 9th Circuit. Justice Brett Kavanaugh wrote a concurrence.

The decision was a slam dunk for the players. Gorsuch vivisected the NCAA argument that its compensation rules should not be subject to a “rule of reason” analysis because it is a joint venture to offer consumers the unique product of intercollegiate athletic competition. The NCAA has monopoly power in the market, Gorsuch explained, so it deserves no such deference. The NCAA’s argument that it should be exempt because it offers societally important non-commercial benefits is ridiculous on its face, and Gorsuch explained why.

Justice Kavanaugh’s concurring opinion went further:

Continue reading

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

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.”

Continue reading

Incredibly, A Unanimous U.S. Supreme Court Rules Against The Democrats’ Theory That Illegal Immigrants Can Be Transformed Into Legal Immigrants After The Fact

See? The government isn’t completely crazy. Not for the first time, the Supreme Court has emphatically sided with the rule of law, confounding the Biden Administration and such Democratic Party stars as Senators Mazi Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Ed Markey (D-Mass.), Elizabeth Warren (D-Mass.), Sheldon Whitehouse (D-RI), and former DNC chair Debbie Wasserman Schultz (D-Fla.), among others. Along with them, we also had the Democrat attorneys general of Washington, D.C., Massachusetts, California, and 17 other states arguing for one more step on the way to open borders.

Best of all, the slap-down opinion was authored by Obama appointee Justice Elena Kagan, who wrote in Sanchez v. Mayorkas, issued today,

Continue reading

Two Wins For Law And Ethics Over Ideology

DC RULES_blind justice

Judges are proving less partisan and ideologically driven than the increasingly totalitarian Left had hoped.

1. In Vitolo v. Guzman, the 6th U.S. Circuit Court of Appeals at Cincinnati ruled last week that the federal government violates the equal protection clause when it considers race or sex in in allocating Wuhan virus relief funds. Following the same track as the earlier case discussed here, the Court agreed that the U.S. Small Business Administration violated the Constitution by giving preference to minority- and women-owned restaurants.

Antonio Vitolo and his wife own a restaurant called Jake’s Bar and Grill. Vitolo is white, his wife is Hispanic, and they each own 50% of the restaurant. Of course, Jake could have gamed the easily manipuated SBA system by just handing his wife the extra 1%. The government requires small businesses to be at least 51% owned by women, veterans or “socially and economically disadvantaged” people to jump to the head of the line, because someone is presumed to be socially disadvantaged if they are a member of a designated racial or ethnic group. A person is considered economically disadvantaged if they are socially disadvantaged, and they face diminished capital and credit opportunities. In such a system, whether the business owner being given preference has actually been disadvantaged doesn’t matter. He or she is presumed to be disadvantaged. This nicely follows the circular logic of Critical Race Theory.

The group preferences are taken into consideration during the first 21 days in which the Small Business Administration awards the pandemic grants to restaurants. After priority applications submitted during that period are processed, the Small Business Administration processes grant requests in the order that they were received. That is, white men come last.

The 6th Circuit majority said Vitolo and his wife are entitled to an injunction forcing the government to grant their application, if approved, before all later-filed applications, and that their color and gender should be irrelevant. The government did not demonstrate a “compelling interest” justifying preferences based on race or sex.

Continue reading

Oops! So Much For That Gun Confiscation Plan…

SCOTUS cartoon

…at least until they pack the Supreme Court, of course….but with lackeys, not liberals.

The Biden Administration, eager to pave the way for the gun confiscation it claims it never would dream of, is eager to expand the “community caretaking” exception from a 1973 case, Cady v. Dombrowski, in which an officer took a gun out of an impounded car without a warrant. The Supreme Court ruled then that police could conduct such warrantless searches as a “community caretaking function” as long as they did so in a “reasonable” manner.

Since the Progressive Borg considers “sensible gun controls” inherently reasonable, and since they (it?) regards the Second Amendment as inherently dangerous to the community, the government argued that“community caretaking” should extend to homes as well as cars.

A Rhode Island man, Edward Caniglia, sued after police officers searched his home and seized two handguns without a warrant in 2015. During an argument with his wife, Caniglia had placed a handgun on the dining room table and asked her to “shoot [him] and get it over with.” His wife left and called the police the next day. She was worried that her husband had shot himself. The police found Caniglia on his porch, alive. He agreed to go to the hospital for psychiatric evaluation “on the condition that the officers would not confiscate his firearms.” But when he did, the police searched his home anyway, and seized his gun.

Continue reading