U.S. Supreme Court

More Evidence of “Why We Can’t Have Nice Things”: The Wise Latina’s Fake Apology

/ Jack Marshall / 3 Comments

I wrote about Justice Sotomayor’s unprofessional (but what should one expect?) slap at fellow Supreme Court Justice Bret Kanavaugh here. Not only was “The Wise Latina’s” attack based on an ad hominem attack rather than the, you know, law (but what should one expect?), it was a betrayal of her colleagues on the Court and one more appeal to divisiveness based on emotions.

Now the Justice has “apologized,” with this bare bones statement:

“At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”

It’s a crummy apology at best. She does not explain why her personal attack, using the cheap “privilege” tactic (as in “People like you just never understand..”) was “inappropriate,” or expressing clear contrition, like saying, oh, for example, “I was wrong.”

On the Ethics Alarms Apology Scale, I rate this pro forma dodge as at best a #6 (1 is perfect, 11 is worst): “A forced or compelled [apology] when the individual…apologizing knows that an apology is appropriate but would have avoided making one if he or she could have gotten away with it.”

In other words, it’s the bare minimum apology that isn’t completely insincere. You know what happened; everyone does. Chief justice Roberts told her that her conduct was unacceptable and ordered her to apologize to Kavanaugh and possible the entire court.

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Ethics Verdict: It Is Unethical For President Trump To Attend The SCOTUS Oral Argument On Birthright Citizenship

/ Jack Marshall / 40 Comments

As I write this, the Supreme Court is hearing a case challenging the tradition that nearly all children born in the United States, whoever their parents may be and how they came to be here, are automatically citizens.

On the first day of his second term, President Trump signed an executive order stating that babies born on U.S. soil to illegal immigrants and temporary foreign visitors were ineligible for birthright citizenship. That was an obvious shot across the bow of the U.S. Supreme Court as it challenged an interpretation of the 14th Amendment that has stood for over a century. The President knew his EO would be also challenged, and would eventually end up on the Supreme Court docket.

Because this is an important question that would, if SCOTUS agreed with the President’s interpretation of the Constitutional intent (there were no such things as “illegal immigrants” when the Constitution was written) have massive consequences in many areas, the oral argument is attracting blow-by-blow analysis. That is not my purpose here.

The issue for Ethics Alarms is President Trump’s decision to attend the oral argument. No previous President has done this, although nothing prevents the President from attending. Trump’s predecessors all avoided the option, though there have been many, many cases over the years that the President knew would have a major effect on his policies as well and the matters he had to deal with. President Pierce did not attend the Dred Scott oral arguments. To be fair, he was barely engaged at any time in his miserable four years in the White House. But FDR didn’t sit in while the Court was determining the fates of his many New Deal programs. Nixon didn’t listen to the Pentagon Papers arguments.

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Will the Supreme Court Get An Apology From The Axis And The Trump Deranged? Nah. Of Course Not.

/ Jack Marshall / 9 Comments

Remember former Perkins Coie lawyer Bradley Datt, the ex-Perkins Coie litigator whose post-Charlie Kirk assassination Facebook Facebook entry began, “Charlie Kirk got famous as one of America’s leading spreaders of hatred, misinformation and intolerance.The current political moment—where an extremist Supreme Court and feckless Republican Congress are enabling a Republican president to become a tyrant…”? The firm correctly fired the jerk, but such worthies as Unethical Website “Above the Law” and a lot of my Trump Deranged Facebook friends endorsed his “extremist Supreme Court” and “tyrant” analysis.

The U.S. Supreme Court just confirmed a major constitutional limitation on presidential power by striking down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the President by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The opinion is here; analysis is everywhere, but what I care about right now is that when the centerpiece of the President’s economic program and foreign trade policy was before the Supreme Court, the alleged “radical” Justices did not rubber stamp it and did not “bend a knee,” but rather, as they are sworn to do, followed the law and the Constitution and ruled that President Trump had exceeded his powers. Three of the supposedly “radical” justices (if you’re not willing to distort the law in the direction the Axis favors, you’re radical), Roberts, Gorsuch and Barrett, joined with the three lock-step progressive DEI Justices (a black woman, a lesbian, and the “Wise Latina”). They are the ones who apparently make up their hive mind on cases before they even read the briefs based on what Democrats want, to foil the Republican POTUS. Fortunately, the other six Justices have some integrity

Because, you see, Trump isn’t a “king,” and the system works, just as the balance of power among the branches of government is supposed to.

Authentic Frontier Gibberish of the Month: Supreme Court Justice Ketanji Jackson

/ Jack Marshall / 14 Comments

“Is treating someone transgender, but does not have, because of the medical interventions and the things that have been done, who does not have, uh, the same, uh, threat to physical competition and safety and all the reasons the state puts forward – that’s actually a different class, says this individual. So you’re not treating the class the same. And how do you respond to that?”

That was Joe Biden’s DEI Supreme Court nominee, who couldn’t define what a woman is during her confirmation hearing, talking like Kamala Harris during oral arguments over the challenge to two state laws banning biological men from competing in women’s sports.

What an embarrassment. Do any blacks think it really is helpful to overcoming racial bias in this country to have a babbling dope, also a flagrant partisan hack, as one of two African Americans on the High Court? To look on the bright side, at least Jackson relieves the only Hispanic on the Court, the consistently ludicrous “Wise Latina,” Sonia Sotomayor, from being the most obviously unqualified judge on the panel.

Remembering “Lynch v. Donnelly,” When SCOTUS Saved Public Manger Scenes With “The Reindeer Rule”

/ Jack Marshall / 6 Comments

Before you make a public statement that will guarantee that you will become a poster-mayor for the usual “War on Christmas” battles, it might be wise to check legal history regardless of which position you take.

Mayor Miko Pickett, the “historic” first black mayor of Mullins, South Carolina, ordered this season’s Nativity scene removed from a public parking lot due to “separation of church and state.” The town happily ignored her. Not surprisingly, she had based her decision on “diversity” and “inclusion” principles and the “separation of Church and State.”

Naturally, she opted for the politically correct “Happy Holidays.” But the mayor may have had a point.

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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…

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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.

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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!

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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,

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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.

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