The Supreme Court Holds The U.S. To A Promise

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever…Because Congress has not said otherwise, we hold the government to its word.”

Thus did Justice Neil Gorsuch begin and end his historic 42-page majority opinion this month in McGirt v. Oklahoma, as the Supreme Court ruled  in a 5-4 decision that the Creek reservation in eastern Oklahoma had never been “disestablished” by Congress, and thus the promise made in a series of 18th Century treaties ensured that the territory remains an Indian reservation for the purposes of federal criminal law, and quite probably in other areas as well.

The decision was overshadowed by more politically debated decisions this month, but it may be the most overtly ethical of the Supreme Court’s recent holdings. Among other virtues, it rejects the false logic of Rationalization #52. The Underwood Maneuver, or “That’s in the past.” That one holds that time erases accountability, an attitude  useful to the habitually unethical, because “moving on” gives them  an opportunity to repeat their unethical and harmful conduct, or worse.

The Underwood Maneuver manipulates the victim of wrongful conduct into forgiving and forgetting without the essential contributions a truly reformed wrongdoer must make to the equation: admission of harm , acceptance of responsibility, remorse and regret, amends and compensation, and good reason to believe that the unethical conduct won’t be repeated.  By emphasizing that wrongdoing was in the past, this rationalization all but assures that it is also lurking in the near future.

Potentially half of Oklahoma will be affected by McGirt. The issue was whether the state of Oklahoma could prosecute Indians accused of major crimes in Indian Country, or if, under an 1885 federal statute known as the Major Crimes Act, such offenses were within federal jurisdiction. The case hinged upon whether the Creek Reservation had been withdrawn or disestablished, by Congress in the lead-up to Oklahoma’s admission to the Union in 1907, thus causing Hugh Jackman to sing.

This is 3 million acres in and around Tulsa we’re talking about here.

With the Court holding that the Creek reservation was never disestablished, four other tribes— the Seminole, Cherokee, Chickasaw and Choctaw Nations in eastern Oklahoma— may benefit from similar rulings. Those tribes’ total territory covers  19 million acres where 1.8 million Americans now live, relatively few of whom are Native Americans. Continue reading

Friday Evening Ethics Gallimaufry, 7/17/2020: SCOTUS, Di Blasio’s Delusion, And DiMaggio’s Luck

Speaking of gallimaufry, “A Heavy Dragoon” is one of the best Gilbert and Sullivan “list” songs, but you seldom hear it. Erudite is the listener who can identify all the historical figured named! The song is from “Patience,” the firs show I ever directed, and still one of my favorites. The singer in the clip above, Darrell Fancourt, played the part of the Mikado more times than anyone, and even dropped dead while playing the role.

1. In baseball history, it’s Moral Luck Day. On July 17, 1941, New York Yankees center fielder Joe DiMaggio didn’t get a hit against the Cleveland Indians, in great part due to a pait of great plays by Cleveland third baseman Ken Keltner, finally ending his historic 56-game hitting streak, the longest in MLB history then and now. Largely on the basis of the streak, though it helped that the Yankees won the pennant, DiMaggio was awarded the American League MVP award, despite the fact that Boston’s Ted Williams hit .406 that season, nearly 50 points higher than DiMaggio. In fact, Williams outhit the Yankee during the same 56-game period.

The end of The Yankee Clipper’s amazing streak was luck, and the streak itself was luck. All hitting streaks are. Baseball is the  sport most governed by random chance, especially hitting: a well-hit ball can become an out if it happens to be hit within a fielder’s reach, and a ball barely touched by the bat can dribble down the  baseline for a cheap hit. DiMaggio was undeniably a great hitter, but many players in baseball history were better; he just was lucky—good, but lucky—for a longer stretch of games than anyone else. Yet of all his many achievements, the 56 game streak in 1941 is the first thing baseball fans cite when assessing  the greatness of Joltin’ Joe DiMaggio.

2. It isn’t what it is! Yesterday, New York Mayor Bill de Blasio said that releasing prisoners onto the city’s streets to avoid their infection by the Wuhan virus  in jail had made New York City safer, saying, “We now have fewer people in our jails than any time since World War II and we are safer for it and better for it.”  De Blasio’s office announced  that more than 1,500 inmates had been released from city jails in three weeks, reducing the number of prisoners to its lowest level in 70 years.

The problem is that his assertion is ludicrous. De Blasio’s boast that the prisoner release made the city safer defied  the evidence of the results of the prisoner release the NYC Bail reform law required in January 2020. Of those who committed felonies that were no longer eligible for bail, 19.5% were re-arrested at least once after an initial non-bail eligible felony arrest, 1,798 of 9,227 individuals were re-arrested. 2020 recidivism resulted in 1,452  major crime arrests (murder, non-negligent manslaughter, rape, robbery, felony assault, burglary, grand larceny, and grand larceny of a vehicle) vs. 681 in 2019. Meanwhile,  shootings in the city were up 205% in June  compared to a year earlier. Continue reading

Tuesday Ethics Tidbits, 7/7/2020: Goodbye To “Social Q’s,” Faithless Electors And A Weenie Judge

1. I’m cancelling Philip Gallanes. The advice columnist in the Times’ Sunday Styles section has provided some interesting topic for discussion here, but there have to be some consequences for irresponsibly spreading propaganda and falsehoods, even if they are sanctioned by his employers. In response to a “Social Q’s” query from someone who was annoyed that a neighbor had posted a “Defund the Police” sign and asked if it would be ethical to eschew calling the cops if she saw her neighbor’s house vandalized (Answer: Of course not.), Gallanes had to give readers the whole set of George Floyd Freakouts talking points:

“Many of the reports I’ve read about defunding the police focus on limiting the deployment of armed police officers to situations where they may be necessary and helpful — such as violent crimes. Many activists point to the large share of state and local budgets dedicated to police services when many calls to police (about persistent homelessness or family conflicts, for instance) would be better handled by social workers. Why not redirect some police funds to affordable housing and mental health services, they ask?”

Then why not say what you mean, I ask? Defund means defund. I resent this dodge.

“Still others would like to dismantle the current model of policing, as Minneapolis has pledged to do, and reimagine community safety given the frequency with which officers kill unarmed Black men and women.

And how’s that working out so far for Minneapolis, Phil? The frequency in which officers kill unarmed Black men and women is called “infrequently,” and the frequency is decreasing. Continue reading

SCOTUS Approves State Tuition Aid For Students To Attend Religious Schools

People gather outside the Supreme Court building as the court hears oral arguments in the Espinoza v. Montana Dept. of Revenue case in Washington, U.S., January 22, 2020. REUTERS/Sarah Silbiger.

This opinion just came down, and I haven’t had an opportunity to read it, and probably won’t until tomorrow.  In Espinoza v. Montana Department of Revenue, the justices held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them, in violation of the free exercise clause.  This was a straight conservatives vs. liberals majority, and Chief Justice Roberts, much maligned of late, wrote the majority opinion. The Washington Post  reports,

Chief Justice John G. Roberts …said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.

“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.

Again, I haven’t read the legal arguments, but the ethical justification for the opinion is clear. If public schools could be trusted not to indoctrinate students with political view and social positions that their parents might oppose, the urgency of the state providing affordable alternatives would be far less. However, alert and involved parents realize, or should, that by sending students to public schools, they are too often subjecting them to partisan and ideological brain-washing, and we are seeing the results in the streets as I write this. There need to be alternatives other than home-schooling. The ethics principles here are fairness, respect, and autonomy. Continue reading

The SCOTUS Decision In June Medical Services v. Russo

This post just leapt over several others because the case was just announced.

The Louisiana Unsafe Abortion Protection Act, enacted in 2014, requires physicians performing abortions in Louisiana to have the right to admit patients to a hospital within thirty miles of the place where the abortion is performed. The law is virtually identical (as today’s opinion points out) to a Texas law that the Court held in Whole Woman’s Health v. Hellerstedt was unconstitutional four years ago by a vote of 5-3. In a vote that will have conservative bloggers’ heads exploding  like fireworks, Chief Justice John Roberts, who had been among the dissenters in the Texas case, joined the four liberals in ruling that the Louisiana law is also unconstitutional, while saying that he still believes that the Texas case was wrongly decided.

The decision is here. SCOTUS Blog’s coverage is here.

I won’t comment on the dissents—-there are several—because I haven’t read them yet.  (But I would bet my head that Justices Alito and Thomas essentially recycled their previous objections to Whole Woman’s Health v. Hellerstedt. ) However, I wrote at length about the Texas case in 2016, and upon reviewing it, I see nothing substantially different from what I would conclude about today’s decision. in both cases, it seems clear that the state was using a pretextual safety measure to restrict abortions as much as possible.  Then I wrote, Continue reading

Ethics Grab Bag: 6/18/20: Absolutism, DACA, Cancel Culture And Pancakes

1. Oh, I’m sure that will help a lot. Quaker announced yesterday that the Aunt Jemima brand would be rebranded and renamed “to make progress toward racial equality.” Yeah, I’m sure the pancake box design and hearing that demon name “Jemima” has retarded the progress of racial justice for decades.  I couldn’t care less what pancake mix is called and I doubt that anyone else does, but  if any portion of the market claims to find the logo offensive, that’s a good reason to ditch it, which I assume means that Uncle Ben’s Rice will be called “U.B.R.” soon. Nonetheless, Quaker’s move isn’t substantive. It’s virtue signaling, and at this point, more historical airbrushing. Getting rid of Aunt Jemima will cost Quaker millions of dollars, and probably raise the price of the product. It won’t affect racial equality one iota.

Meanwhile, cultural context and history is lost. The R. T. Davis Milling Company hired former slave Nancy Green as a spokesperson for the Aunt Jemima pancake mix in 1890, and she continued in that role  until her death in 1923. Green appeared as Jemima beside the “world’s largest flour barrel” while operating a pancake-cooking display at Chicago’s 1893 World’s Columbian Exposition. After the Expo, Green was given a lifetime contract to  promote the pancake mix. Aunt Jemima was Nancy Green’s one link to immortality.

2. Today’s SCOTUS decision on DACA. Here’s how NPR put it: “A narrowly divided U.S. Supreme Court extended a life-support line to some 650,000 so-called DREAMers on Thursday, allowing them to remain safe from deportation for now, while the Trump administration jumps through the administrative hoops that the court said are required before ending the program.”

The President called this a political decision in his inimitable, meat-axe way:

This is an especially stupid tweet. Every time SCOTUS doesn’t back the administration isn’t a political decision, and lumping apples and kumquats together, which is what generalizing about decisions as diverse as the gay discrimination decision and this one is, just shows that the President doesn’t read the opinions he’s complaining about, and only cares about the results. (Of course, in this he is like most Americans, sad to say.)

After wading through as much of the assorted opinions in the case as I can stand (Great thanks, once again, to valkygrrl for sending me the link), I think that’s unfair.

Chief Justice Roberts, again the swing man, joined with the four liberal Justices and authored the majority opinion. This sentence says it all: “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” That means that the decision isn’t about substance or policy, but rather process. Process decisions are not, or shouldn’t be, political. This note also undermines the idea that the Justices were just acting in partisan lockstep:

ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part anddissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

If the President paid attention, he would see that a majority of the Court found that his actions regarding DACA were not motivated by “animus,” thus denying Big Lie #4.

I am unalterably opposed to DACA, for reasons stated frequently here. The short version: it is incompetent and irresponsible law-making to provide an incentive for people to break the law. DACA is fueled by emotion and sentimentality (“Think if the children!”) and is an incremental step toward open borders. However, other than some dicta among the concurrences and dissents, there is no reason to see the decision as either favoring or disfavoring the law. Continue reading

To Be Fair, Some Conservatives ARE Hysterical Over The SCOTUS Decision in Bostock….

… which is sad. Gerald Bostock, Aimee Stephens and Donald Zarda, the appellants in the three cases decided yesterday, were discriminated against by their employers for no other reason than what they were, or had decided to be.  In a 6-3 decision, the Supreme Court decided that this breached  the landmark 1964  civil rights legislation which banned discrimination in the workplace on the basis of race, religion, and gender, or what the law called “sex.”

This morning I criticized the Times for a cut line  in its print edition that read “A Trump justice delivers an LGBT ruling that demoralizes the Right” as a gross exaggeration and “psychic news” —how does the Times know that conservatives are “demoralized”? However, I did recently encounter an article in The Federalist by a conservative who not only was apparently demoralized by the decision, but driven to the edge of madness. In all fairness, I thought I should mention it.

Joy Pullman, the author, is a Hillsdale College grad and an executive editor of the Federalist, which will lead me to be a bit more careful using the magazine as a source in the future.

As a preface, I note that Pullman isn’t a lawyer, and I see nothing in her background that suggests qualifications to analyze a Supreme Court decision. Indeed, I see nothing in the article that suggests that she read the majority opinion and the dissents. I’m guessing that she read a news article about the decision, or maybe a critical blog post. Well, a non-lawyer can only criticize a SCOTUS ruling according to his or her policy and ideological preferences. I don’t know why the Federalist would entrust an essay about the decision to someone like Pullman, though she is an executive editor.

Hear are some extreme and irresponsible statements from the piece, which has an extreme and irresponsible title that kindly warns us of the hysteria to come: “SCOTUS’s Transgender Ruling Firebombs The Constitution”: Continue reading

Lunchtime Ethics Appetizers, 6/16/2020: ALS, Artistic Freedom And Arrogance [UPDATED]

Bon Appetite!

1. Today’s fake news note from the New York Times: “A Trump justice delivers an LGBT ruling that demoralizes the Right.” This completely fabricated observation, a variety of fake news I refer to as “psychic news,”purports to, first, characterize the “Right” as a monolithic, anti-LGBT mob, in the way the Left really is a monolithic, anti-Trump mob, and second, claim an extreme reaction to the decision that just doesn’t exist. The Times front page says the 6-3 decision was one “few expected.” That’s deceit: most analysts I read reached the same conclusion I did, which was that a 5-4 decision supporting the interpretation announced yesterday had at least a 50-50 chance of coming down. I did not expect the vote to be 6-3, but anyone familiar with how these things line up shouldn’t be shocked. Once he realized that the majority was going to hold that discrimination against gays and transgender individuals illegal, Justice Roberts may have joined the majority so that he could assign the opinion to Justice Gorsuch, for example.

President Trump has never indicated any animus towards gays or same sex marriage (Pence is another story); the presumption that the President’s supporters are horrified that discrimination against gays and transsexuals wasn’t upheld is just another version of the “deplorables” slur. Moreover, I believe the decision, and the fact that Justice Gorsuch joined with the Left wing of the court to cement it makes the President look good to all but reflex Trump-haters. His job is to appoint competent, open-minded justices, and he has. Gorsuch was never a conservative ideologue, though the Democrats who opposed him in the Senate falsely represented him as one. The decision also makes the Supreme Court look good by once again proving that it is not the lock-step partisan body Democrats claim, and that Chief Justice Roberts has correctly denied. It would be even better if the Court’s block of four liberals were as open-minded and non-partisan as Roberts, Gorsuch, and in other recent cases, Kavanaugh have shown themselves to be. Continue reading

In A 6-3 Vote, SCOTUS Holds That Workplace Discrimination Against Gay and Transgender Employees Violates Existing Federal Law

Back in October I wrote about these cases, including the case involving whether businesses requiring employees to dress in traditional gender-specific garb discriminated against transgender workers without violating federal civil rights law.  Solicitor General Noel Francisco and other Justice Department attorneys argued just that , claiming that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act (I think that’s obvious), so the law’s ban on discrimination because of “sex” referred only to unequal treatment of men and women in the workplace.  In  R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Justice Department opposed the position of the Equal Employment Opportunity Commission that the firing of  former funeral home director Aimee Stephens after she announced she would transition from male to female violated the Act, arguing that redefining sex discrimination was a job for Congress, not the courts. I wrote at the time,

It seems clear that giving LGBTQ Americans the same protection against discrimination as other minorities is the ethical course. This seems to be a technical dispute over whether the Courts or Congress should  fix the problem. That argument is worth having, and I would not be shocked in a SCOTUS majority said that the omission in the law was unjust, but it was not the Court’s job to fix it. In the long run, it will be illegal to discriminate against LGBTQ citizens in the workplace, as it should be. The only question is how drawn out, angry and divisive the process will be to get there.

Well, we have our answer. Continue reading

Saturday Morning Ethics, 5/30/2020: Burn, Baby, Burn Nostalgia

1. Bulletin for Gov. Walz: Derek Chauvin has civil rights too, you irresponsible fool. I have just watched Minnesota’s Governor repeatedly refer to George Floyd’s “murder.” An elected public official cannot and must not do that. If he wants to guarantee that a fair trial in the case becomes impossible, this is the way to do it. There has been no trial, and however horrible the video of Floyd’s  death may be, Chauvin and the other officers have the right to the presumption of innocence. Now a St. Paul’s mayor is at the podium calling for Chauvin to be held “accountable.” Well, he’s under arrest and will face trial, and for now, that’s about it.  All of this outrage porn and virtue-signaling now enables the rioters by pretending that there is anything productive to be done but to wait for the justice system to play out. Continue reading