U.S. Supreme Court

Two Wins For Law And Ethics Over Ideology

/ Jack Marshall / 10 Comments

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.

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Oops! So Much For That Gun Confiscation Plan…

/ Jack Marshall / 10 Comments

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.

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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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