U.S. Supreme Court

Just Bake The Damn Cake, Jack!

/ Jack Marshall / 35 Comments

trans cake

Jack Phillips, the stubborn Christian baker who owns Masterpiece Cakeshop in Lakewood, Colorado, is being sued again, this time because he refused to make a custom cake celebrating a clients’ gender transition. In 2012, the baker refused to bake a custom cake for a same-sex wedding and was accused of unlawful discrimination on the basis of sexual orientation.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court ruled 7-2 for Phillips overturning the decision of the Commission on the grounds that it was obviously biased against him as well as devout Christians. One commissioner even compared Phillips’s invocation of his Christian beliefs to justify rejecting the cake design to defenses of slavery and the Holocaust. Yeah, I remember that the Nazis were really unreasonable about cakes. SCOTUS never reached the constitutional question of whether the government can compel people to create speech or artistic expressions they object to on religious grounds or otherwise.

If a custom cake design is art, then I think the answer to this is easy: no. Similarly wedding photographs, though if you used what we got from our wedding photographer, calling them “art” is a stretch.

With a conservative Supreme Court, the baker wins. And yet…

The first time around, after finally getting all the facts, I held that both Phillips and the gay couple who obviously targeted him to bend him to their will were being jerks. My position hasn’t changed a bit. I wrote here,

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Ethics And Common Sense Win Out Over Law: SCOTUS Weakens “Qualified Immunity” [Updated]

/ Jack Marshall / 8 Comments

The one constant recommendation by critics of police brutality and those trying to find ways to mitigate the problem without, you know, rioting, looting and burning every time a black man is killed by police is to eliminate or sharply curtail qualified immunity. Taylor v. Riojas, handed down in November by the Supreme Court in a 7-1 decision, might do just that.

A government officer sued for damages on a claim of violating the Constitution, such as violating an individual’s civil rights, must overcome the defendant’s claim of immunity. Judges (and Presidents) have absolute immunity for their conduct in the pursuit of their duties, no matter how outrageous or incompetent. Legislators cannot be sued for their decisions as lawmakers. Prosecutors cannot be sued for prosecuting. Other government officers, like police officers, have qualified immunity if they are sued for money damages for harming individuals in the course of their duties.

The Supreme Court has set up a tough standard for plaintiffs to meet in order to establish liability. Overcoming qualified immunity requires that the defendant officer acted in violation of law and Constitutional principles that any reasonable government official should know, and that the civil right allegedly breached has been established beyond question.

In a 2018 case, District of Columbia v. Wesby the Court stated:

“Existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”

This extreme hurdle has proved nearly impossible to clear. From 1982 to 2020, the Court reviewed 30 qualified immunity cases. Plaintiffs prevailed in two.

Yet in the per curiam opinion issued last year (that means there are no signed majority opinion or concurring opinions) the Court signaled a major shift, and ruled that prison guards had no qualified immunity even though there was no precedent that would have alerted them that their conduct was illegal or unconstitutional.

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Law Vs. Fallacy: The Jurisprudence Of Justice Sotomayor

/ Jack Marshall / 14 Comments

us-supreme-court-justice-sonia-sotomayor

I haven’t been moved to do the research, but I would not be surprised if Barack Obama is owed the prize for the worst nomination for the U.S. Supreme Court ever to be confirmed by the Senate. That would be Sonia Sotomayor, the self-described “wise Latina” who was picked using the same criteria that led to Joe Biden choosing Kamala Harris as his VP: checking the right boxes. Obama was seeking a Hispanic judge (another first!) and a woman, but managed to choose a judge with weak credentials whose selection insulted better judges, female judges and Hispanic judges who were more qualified than her, and there were a lot of them. Since her confirmation, Sotomayor has introduced touchy-feely “compassionate” arguments exactly where they should never show their mushy heads: in Supreme Court oral arguments and opinions. Some of her opinions read as if they were composed by anyone with a law degree, though her law clerks are expert at stuffing them with the requisite number of case cites for appearances sake.

The latest example of Soromayor’s sentimental hackery was her dissent in the case of U.S. v. Dustin John Higgs, in which the Court, by a 6-3 vote (guess the three!) turned down the writ of certiorari of a man convicted of kidnapping and murdering three women, and sentenced to death. Justice Sotomayor began,

After seventeen years without a single federal execution,the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

Such an approach is a logical fallacy called “appeal to emotion.” That’s not law, that’s sentiment, assuming one is moved to tears by the idea of multiple convicted murderers finally being executed after years of expensive appeals and stalls. Sotomayor seems to think the fact that the “Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades” and that it was 17 years before the Trump administration did what should have been done all along has more than trivia value. So what? The U.S. has a death penalty, and finally has decided to follow through on it. Good.

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The Supreme Court And Taylor Swift Ethics

/ Jack Marshall / 10 Comments

It is generally regarded as a sign of ethics, courage and character to take action “on principle.” In theory, this means that non-ethical considerations (like enrichment, power and popularity) are not the actor’s goals; making a statement for the enlightenment of society is. However, actions on principle can often be quixotic and even silly, causing greater damage, as well as wasting time and money, “on principle” than the message is worth. The folly was nicely illustrated in the ancient burlesque skit above known as “Pay the Two Dollars.”

The issue of how far it was reasonable to go “on principle” was recently explored, of all places, in the U.S. Supreme Court in the oral argument of the case Uzuegbunam v. Preczewski.

Chike Uzuegbunam, a student at Georgia’s Gwinnett College in Lawrenceville, was threatened with discipline under the school’s speech code that violated his and other student’s First Amendment rights. He sued the college but it quickly backed down, eliminating its speech restrictions and replacing them with one that allows students to “speak anywhere on campus and at any time without having to first obtain a permit.” State officials said the change made the case moot. A trial judge agreed, and the United States Court of Appeals for the 11th Circuit, in Atlanta, affirmed her ruling.

Uzuegbunam and his student supporters, however, felt strongly that an official declaration that their rights had been violated was important, and they appealed on the grounds that they should be able to pursue their case for nominal damages. This was the issue that got the case before SCOTUS.

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Saturday Ethics Nightcap,12/12/2020: Bad Journalism, Bad Governors, Bad Santas

/ Jack Marshall / 29 Comments

nightcap

That’s just ginger ale, in case you’re wondering…

1. “Nah, there’s no outrageous, flagrant, shameless mainstream media bias!” April Ryan, arguably the worst, most unethical, most biased and most unprofessional of CNN’s reporters (but it’s such a lively competition), attacked the confidential sources responsible for leaking a recording of Joe Biden making weaselly comments about his stance toward the “defund the police” movement. Ryan demanded to know who was responsible for allowing the embarrassing comments to be made public, because, as we all should know by now, the job of the media isn’t to report the facts, but to empower and protect Democrats. (She didn’t come out and say the last part, but after her performance over the last four years, she doesn’t have to.) Jonathan Turley appropriately nailed this one:

The fact is that Ryan was just stating what has become the approach of many in the media. As we recently discussed, we are moving dangerously close to a de facto state media with the cooperation of Big Tech companies.  Ryan believes that it is outrageous to rely on unapproved material if it is critical of Joe Biden (despite her use of such material for the last four years against Trump)…CNN has not expressed any disagreement with Ryan’s view of the new journalism.

2. Santa Claus Ethics: If you can’t do any better than these Santas, you shouldn’t even try. But they do provide one reason to be grateful for social distancing. I think my favorite is this one…

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A False Narrative Exposed, Part 2: The Times’ Editors Beclown Themselves

/ Jack Marshall / 7 Comments

Clowns

[This is Part 2 of the Ethics Alarms essay that begins here.]

The first section of “A False Narrative Exposed” concluded,

The extent of the Democrats’ false smearing of Justice Amy Coney Barrett and the blatant fearmongering regarding the consequences of her confirmation are put in sharp perspective when one goes back and re-reads the New York Times editorial of the week before headlines, “The Republican Party’s Supreme Court.”  Indeed, the Times editorial shows us much more: the utter dishonesty of the mainstream media and its willingness to mislead rather than inform the public; it’s deliberate employment of false history to advance its partisan ends, and perhaps  most damming of all, the weak powers of reasoning and analysis the alleges cream of the journalistic crop applies to its craft. Then there are the repeated reminders that the Times is so deeply in bed with the Democrats that it can count its moles.

Let’s look at that editorial…

“What happened in the Senate chamber on Monday evening was, on its face, the playing out of a normal, well-established process of the American constitutional order: the confirmation of a president’s nominee to the Supreme Court. But Senate Republicans, who represent a minority of the American people, are straining the legitimacy of the court by installing a deeply conservative jurist, Amy Coney Barrett, to a lifetime seat just days before an election that polls suggest could deal their party a major defeat.”

Right—those phony polls meant to suppress the GOP vote showing that the Democrats were going to increase their dominance of the House and win control of the Senate. The scandalously misleading and mistaken polls were also part of the novel Democratic argument, endorsed by the Times, that the Senate should reject a legal and historically routine SCOTUS nomination because of clearly biased polls…a corrupting phenomenon the Founders never heard of.

“As with President Trump’s two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett’s jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society. Along with hundreds of new lower-court judges installed in vacancies that Republicans refused to fill when Barack Obama was president, these three Supreme Court choices were part of the project to turn the courts from a counter-majoritarian shield that protects the rights of minorities to an anti-democratic sword to wield against popular progressive legislation like the Affordable Care Act.”

The only valid question for the Senate to consider was whether Barrett was qualified. Even the deeply progressive-biased American Bar Association  agreed that she was. I don’t know what the Times is trying to say: the Federalist Society wouldn’t have approved of an unqualified justice. “Anointed’ is just cheap Times rhetoric meaning “conservatives tended to agree with her jurisprudence,” just as progressives approved of the late Justice Ginsberg. Both had to excel during tough questioning in their confirmation hearings. Neither was “anointed.” The editorial board is pandering to its readership’s hysterical biases against conservatives….

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A False Narrative Exposed, Part 1: Fearmongering And The Comey Lie

/ Jack Marshall / 2 Comments

Terror

Wrote conservative columnist Tyler O’Neil after this week’s oral argument in the SCOTUS case of California v. Texas, “While the resolution of California v. Texas remains unclear, it is likely that the Court will preserve most of Obamacare. Such a decision would expose Democrats’ shameless fearmongering about Amy Coney Barrett as a disgusting political ploy.”

Wrong. It was a disgusting and unethical political plot no matter how that case comes out, but hey, it probably won a lot of votes for Joe Biden from the brick-ignorant public, so it’s all good, right? The ends justify the means.

During the confirmation hearings for Barrett, Democrats warned that Barrett would destroy the Affordable Care Act, joining with the other intractable right-wingers on the Court to finally strike down the law for all time. Yet when the Supreme Court heard arguments on the Obamacare case last week, the Associated Press reported that the tenor of the questions from the Justices made it clear how unlikely it was that the Court would strike down the health care law. Chief Justice John Roberts and Justice Brett Kavanaugh signaled that they were  unwilling to invalidate the entire law just because the individual mandate forcing people to purchase health insurance was unconstitutional.  

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Was Today’s Women’s March In D.C. The Dumbest Protest Yet?

/ Jack Marshall / 16 Comments

ProtestMarch

To be fair, it’s impossible to say. Almost all protests and demonstrations, even the ones that do not deteriorate into “mostly peaceful” riots, are silly, juvenile tantrums that cost money, waste time, inconvenience saner citizens and accomplish less than nothing. You can review the Ethics Alarms Protest Check-List: today’s mass scream by hysterical progressive women protesting the vote that hasn’t been cast in a case that doesn’t exist which would undo a SCOTUS decision that is  unlikely to be undone flunks on almost all points. Marcher Cherie Craft, a D.C. community organizer, told the Washington Post, “People think, you know, is this really making a difference?” Will it cause Judge Barrett not to be confirmed? Will it change the result of that so far imaginary abortion case that threatens Roe v. Wade? Will it make those who find abortion to be an ethical and moral abomination suddenly support abortion on demand?  No, no, and no. Might it cause some extra Wuhan virus cases that marchers will carry back to their states? Well, look at that photo above. I guess that’s something.

The hypocrisy of such an event while the mainstream media is attacking the President for so-called “super-spreader” events is palpable, and one of many reasons that there will be no effective shutdowns going forward. The pandemic hysterics, fascists and Democratic mayors—but I repeat myself– have no credibility. D.C. Muriel Bowser is being sued for banning outside church services, and yet allows this sardine-fest to go forward with her blessings.

Go ahead, rationalize that. Anyone. I dare you.

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

/ Jack Marshall / 15 Comments

“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

/ Jack Marshall / 12 Comments

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 →