Stupidity Tag On Fox News

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

“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.

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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.

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.

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

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”

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.

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

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.

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End Of Week Ethics Exegesis, 1/20/2023, SCOTUS Ineptitude, The Child Shooter’s Parents, A Coinkydink, And More…[Corrected]

[NOTE: This was another one of those posts that I had to squeeze in and get up before I had a chance to do a careful proofing. Coming back to it hours later, it is so embarrassing to find all the irritating little typos: missing letters, transposed letters, words I thought I typed in but didn’t. Ugh. I’m sorry.]

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The mainstream media (and Democrats, but I repeat myself) is doing everything it can to try to make Lyin’ George Santos the big story rather than Joe’s Biden’s document scandal, which has nicely exposed Biden’s hypocrisy along with that of law enforcement and the Trump-Deranged. The Republicans have made it easier for them than it should be: Kevin McCarthy should have created a committee called “Shameless Lying Committee and placed only Santos on it, and made him chairman. Oh, maybe have Adam Schlitt on it to keep George company. McCarthy’s canned line about how Santos was elected to represent his district by voters and they deserve representation is worse than if he said nothing at all. Santos gets to vote on bills, and that’s all an incompetent, lazy, gullible district like his deserves. (If Santos says one more time that he’s done nothing wrong, I may jump out my office window.)

Back to the news media: This morning I watched CNN, Fox, News, and BBC all at once on the DirecTV “News Mix” channel. The experience would be depressing to anyone under the delusion that broadcast news is anything but a confederacy of dunces. As the abrasive and smug “Fox and Friends” kept repeating the same outrage about Joe’s stash of classified materials, CNN interviewed high school students in Santos’ district in an obviously carefully staged segment purporting to show that teens are more ethical and instinctively wise than their elected elders. (Hey, look at these kids! Let’s let 16-year-olds vote!) When one student said that Congress should vote to expel Santos, his grandstanding teacher didn’t point out that Congress can’t, probably because the teacher doesn’t know.

Neither CNN nor the teacher brought up Joe Biden’s career of making up credentials and experiences, which would have been an interesting counterpoint for the aspiring Democrats in the student group (there was one self-proclaimed future Republican, which doesn’t mean there weren’t others afarisd of getting wedgies) to ponder: the thrust of the segment was that Santos and the GOP acceptance of him pushed the students into the Blue.

MSNBC, as usual, was even more flagrant in its bias, and also funnier. It had—get this—Al Sharpton and former Republican National Committee chair Michael Steele discussing how corrupt and incompetent Republican House members were. Michael Steele calling anyone incompetent is like, well, Sharpton calling anyone corrupt. Steele is now a Never-Trump talking head for MSNBC in the Ana Navarro mold, because his flip-flop was the only way anyone would hire him to give his opinion on anything. He was a disaster as RNC head, embarrassing the party by such stunts as okaying a fundraising mailing that intentionally masqueraded as a census document—while the census was underway. Congress passed a bi-partisan law making such chicanery illegal.

Mostly Steele is just an idiot. I know I’ve mentioned this before, but it should be flashed up on the screen any time this dolt tries to be a pundit. When he was running to be re-elected RNC head (he lost), Steele was asked during the one debate among the contenders to name his favorite book. The other hacks (like Reince Priebus, the eventual winner) said that a Ronald Reagan’s biography was their favorite book, but Steele, trying to seem erudite, said “War and Peace.” “It was the best of times, it was the worst of times,” he quoted (from “A Tale of Two Cities”), causing questioner Tucker Carlson to facepalm.

1. The SCOTUS Dobbs leak can’t be found. That’s bad enough. Equally bad were the stunning revelations of sloppy procedures at the Court, probably long the status quo, that nonetheless made this scandal inevitable. From the 20-page report

1. Too many personnel have access to certain Court-sensitive documents. The current distribution mechanisms result in too many people having access to highly sensitive information and the inability to actively track who is handling and accessing these documents. Distribution should be more tailored and the use of hard copies for sensitive documents should be minimized and tightly controlled.

2. Aside from the Court’s clear confidentiality policies and the federal statutes outlined above, there is no universal written policy or guidance on the mechanics of handling and safeguarding draft opinions and Court-sensitive documents, and practices vary widely throughout the Court. A universal policy should be established and all personnel should receive training on the requirements.

3. The Court’s current method of destroying Court-sensitive documents has vulnerabilities that should be addressed.

4. The Court’s information security policies are outdated and need to be clarified and updated. The existing platform for case-related documents appears to be out of date and in need of an overhaul.

5. There are inadequate safeguards in place to track the printing and copying of sensitive documents. The Court should institute tracking mechanisms using technology that is currently available for this purpose.

6. Many personnel appear not to have properly understood the Court’s policies on confidentiality. There should be more emphasis on training so that all personnel fully understand the policies.

7. Bills were introduced in the last Congress which would expressly prohibit the disclosure of the Supreme Court’s non-public case-related information to anyone outside the Court. Consideration should be given to supporting such legislation.

Summary: The Court’;s security has been incompetent and inexcusable.

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Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.

The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.

Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.

The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.

I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report

Further observations:

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Professional Ethics Breach Alert! The Draft SCOTUS Abortion Opinion Leak

The issue right now is simple. Someone with access to Justice Alito’s draft majority opinion in THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS u. JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL. leaked it to Politico. This is the worst breach of professional ethics in the history of the Court. It is the worst breach of professional ethics in the history of the federal court system. If a lawyer, such as a law clerk, was responsible, he or she should be, and probably will be, disbarred.

The draft is here.

I haven’t read the draft: the thing is 67 pages long, and I just got it. The conclusion, however, is clear:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not pro­hibit the citizens of each State from regulating or prohibit­ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

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