United States Supreme Court

Ethics Dunce: Federal Judge Richard G. Kopf

/ Jack Marshall / 82 Comments
"Oh dear...and he looks like such a NICE federal judge!"

“Oh dear…and he looks like such a NICE federal judge!”

Richard G. Kopf is a senior district court judge on the U.S. District Court for the District of Nebraska, and a blogger. He is also,I would say obviously, an Ethics Dunce. Why?

He told the U.S. Supreme Court to shut the fuck up.

He really did.

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions. As lawyer and blogger Rich Hasen wrote, Continue reading →

Supreme Court Justice Powell’s Ethical Dilemmas

/ Jack Marshall / 39 Comments
Supreme Court Justice Lewis Powell

Supreme Court Justice Lewis Powell

The New York Times, anticipating next year’s Supreme Court consideration of the gay marriage problem, tells a fascinating story about the late Justice Lewis Powell, who was the swing vote in the 1986 case of  Bowers v. Hardwick, which was overturned in 2003, upholding a Georgia law outlawing sodomy.

During the consideration of the case, Powell told his colleagues that he had never met a homosexual, though in reality he had more than one gay law clerk during his tenure, and according to at least one of the former clerks, knew it.  (Powell even quizzed one of them about the mechanics of gay sex.) The reason he told his fellow Justices an untruth, the theory goes, is that he knew there was a stigma in the legal profession and in Washington connected to being gay, and he wanted to protect his law clerks.

Yet Powell, after flip-flopping on Bowers, finally came down on the side of a state’s right to make homosexual sex a crime. Continue reading →

Supreme Court Integrity and the Useless Times-CBS Poll

/ Jack Marshall / 9 Comments

If you dislike these people,but haven’t read their actual opinions, don’t know their names and are basing your opinion on what other people say, I don’t care what you think, and neither should anyone else.

I suppose there may be could be some uses for the recent New York Times-CBS poll measuring public attitudes about the Supreme Court. It could be used to launch, for example, a discussion about how little the public understands about the Court and how it operates. It might prompt a discussion about the recklessness of the two parties, which regularly attack the integrity of the Court every time it arrives at a decision that one of them doesn’t like. It might even prompt a refresher course on what went on during the 2000 Florida vote recount, and why that case required the Supreme Court to play a unique role that had nothing to do with helping George Bush “steal the election.” All of these would require an unformed and responsible newsmedia. however, so what the poll is prompting instead  misleading debates among talking heads about what the Court needs to do differently.

The Supreme Court needs to do nothing at all differently. Continue reading →

Ethics Hero: The American Bar Association

/ Jack Marshall / 2 Comments

Well, I'll be hornswoggled! INTEGRITY!

The mainstream media and left-of-center pundits managed to leave criticism of President Obama’s bizarre—for a lawyer and supposed authority on Constitutional law, and yes, for a President too—assertion that there was something “unprecedented” about the Supreme Court declaring an act of Congress unconstitutional, and something inappropriate for this to be done by “unelected” judges, to conservative sources, an increasingly common and deplorable technique that allows the Left to thereafter discredit legitimate and non-ideological observations as “partisan.” Thus it was a relief, and a credit to the organization, when the reliably liberal American Bar Association weighed in with the same critique of the President’s comments, with similar intensity. Continue reading →

Unethical Quote of the Week: Georgetown Professor Michael Eric Dyson

/ Jack Marshall / 11 Comments

 “Look all of this othering of Obama, like he’s from some other planet. Everything he does is subject to a different lens and seen through a microscope that really tends to pick him apart. I think it’s indivisible from the broader issue of his race, of his being a black man with a certain kind of authority. These are impolite things we don’t want to talk about. We think that they’re being extraordinary ratcheted up. But I don’t see any other way to explain it but a remarkable resistance to the integrity of this man that has no other explanation”

—-Prof. Michael Eric Dyson, discussing criticism of President Obama’s comments on the Supreme Court during Sunday’s edition of ABC’s “This Week with George Stephanopoulos.” 

Prof. Dyson

When we look at why it is that there is a vast divide between black and white Americans regarding such incidents as the Trayvon Martin tragedy, the irresponsible comments of supposedly respectable commentators like Dyson must be given due weight. How all previous presidents must envy President Obama, whose defenders have a ready and versatile, if disgraceful, defense for any misstep, error, mistake, misstatement or policy that goes awry: it’s just racism.  What a wonderful tool to deflect criticism! Of course, it is ethically indefensible and contributes to racial divisions in the nation and society, which President Obama supposedly sought to heal, but polls must be telling the Democrats, and their flacks in the media, that it is effective.

Prof. Dyson is a scholar at a major university, and his race-baiting to discourage open and fair political discourse is thus more despicable and harmful than that of celebrities like Morgan Freeman and professional race-card dealers like Representatives Sheila Jackson Lee and Maxine Waters. Astoundingly, his outburst occurred during a discussion of President Obama’s almost universally derided and shockingly inaccurate comments about the possibility that a majority of the Supreme Court would find Obamacare’s individual mandate unconstitutional. The criticism of the President was legitimate, substantive, and richly deserved: if that criticism was based on race, than all criticism of Obama is motivated by race. That, of course, is exactly the message that Prof. Dyson wants to deliver.

Unethical Quote of the Week: President Obama (Sigh!)

/ Jack Marshall / 20 Comments

“Ultimately I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

—President Obama speaking in the White House Rose Garden about the Supreme Court’s deliberations on the constitutionality of Obamacare.

Obama made John Marshall roll over in his grave. We Marshalls just hate that,,,

This is the kind of presidential dishonesty that drives me bonkers, I must confess. It manages to deceive and misinform. It is dependent on the ignorance of  the public, so it is also condescending, disrespectful, and cynical, in addition to being an intentional  lie.

Not a lie, you say? Perhaps a mistake? Sorry, no dice: Obama was advertised as a former constitutional law expert and a Harvard Law School whiz. He can’t claim now that he’s really a babe in the woods when it comes to the Law of the Land and judicial history.

Unprecedented? The power of the Court to overturn unconstitutional acts of Congress was established by precedent, when Chief Justice John Marshall—love that name—led the court to invalidate the Judiciary Act of 1789. Is Obama playing games with “democratically-elected Congress,” since the Senate wasn’t elected directly until 1912, with the passage of the 17th Amendment. I suppose so…if challenged, he can say that he is still right, because all of Congress wasn’t elected “democratically” in 1789. Of course, few Americans know that, so the statement qualifies as deceit. Continue reading →

Ethics Quote of the Day: The Editorial Board of the Washington Post

/ Jack Marshall / 1 Comment

“Sadly, even before the sessions on health-care reform had ended, some liberals were preemptively trying to delegitimize a potential defeat at the court. If the justices strike down the individual mandate to purchase health insurance, they said, they will prove themselves partisan, activist and, essentially, intellectually corrupt. We share in the disappointment that the justices on both sides of their ideological divide are, for the most part, so predictable. That’s not, in the ideal world, how judging is supposed to work. But we also think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction.”

—The Editors of the Washington Post in this morning’s superb, balanced and fair editorial entitled “Civics Lesson From

the Supreme Court.”  The Post leaves no question that it supports the individual mandate as necessary—at least now, after the fact of

"Biased political hacks!! The ones who disagree with us, that is..."

Obamacare’s passage into law—because “no American should go without health care, and that society as a whole should be willing to pitch in toward that end.”  But the editors also properly chastise the cynical and cowardly political calculations by the bill’s supporters that placed the constitutionally-dubious mandate in the position to jeopardize the whole law, as well as criticize the unethical phenomenon that Ethics Alarms discussed here-–the preemptive effort by Democrats and their pundit allies to blame the rejection of Obamacare, if it occurs, on “judicial activism” and political bias by the conservative justices. Continue reading →

Obamacare Defenders, Spinning

/ Jack Marshall / 1 Comment

Are you hypnotized yet?

It would be nice, it really would, if partisans on both sides of a legitimate, close issue of national importance would admit that there are valid arguments on each side, show some mutual respect, and not frame their arguments as if anyone who thinks differently is deluded, stupid or evil.

Thus it has been elevating, if, I suppose, misleading, to read over a year’s worth of debate on the topic now under consideration by the Supreme Court, Obamacare’s so-called individual mandate, over on the scholar and lawyer- glutted blog, the Volokh Conspiracy. Written by distinguished and articulate academics, it is a right-leaning and libertarian site for sure, yet manages to cover all sides of most of the issues it considers thoroughly and fairly. Nobody could read the detailed, case and precedent-filled essays about the individual mandate and think for a moment that its constitutionality is an open and shut case. It’s obviously a very close question, and one that involves far wider implications than merely one health care law. This is one of the periodic landmark constitutional cases in which the Supreme Court is being asked to approve another key adjustment in the meaning of our remarkably flexible but hard to amend national by-laws, or, in the alternative, put up a red flag and a brick wall that reminds our government that there are some things is cannot do, even if it would dearly like to.

If you care about the case being argued in the Supreme Court as I write this, go read some—it would take you a month to read it all—of the discussions on this topic over at Volokh. If you can understand the sometimes technical and overly-dense writing, you will recognize how difficult a legal issue this is. If you can’t understand it, then stop rendering opinions about the case, the mandate, and the inevitability of its approval or rejection. Journalists and pundits should follow the same advice. Continue reading →

White House “Ethics”: Obamacare Justifies The Means

/ Jack Marshall / 11 Comments

Supreme Court protests: pointless when anyone else organizes them, unethical when the White House organizes them.

I was stunned by the news reports of the White House organizing pro-Obamacare demonstrations outside the Supreme Court, and then found myself stunned that I was stunned.

It should have been obvious to all, which includes me, that President Obama and Democratic supporters of Obamacare were so determined to pass this mess that it stopped mattering to them long ago what democratic and constitutional principles were nicked, warped, distorted and violated in the process. This should be obvious regardless of whether one likes the final product (as if anyone knows what that really is, even today—principle nicked: transparent government).

The final bill was passed with a series of legislative maneuvers that had never been mustered all in the support of one controversial bill (principle warped: process and representative democracy); it was built on an expansion of Congressional power the is either unconstitutional or a frightening slippery slope (principle distorted: individual freedom); the individual mandate was (and is) simultaneously sold to the public as not being a tax while argued to the courts as one (principle violated: honesty and integrity), the Congressional Budget Office’s verdict was obtained using accounting tricks and deceitful projections (principle nicked: fairness); and misrepresentation was the norm on both sides of the debate (principles violated: respect for the public; candor, transparency and honesty). Now that the President is already campaigning for re-election and the health care law remains his signature accomplishment—if you consider it that and not a fiasco—the White House has made it clear that, while it may not be fair to say it will stop at nothing to save it, what it won’t stop at to protect the measure is a damning indictment of its integrity.

From the New York Times, one of the few non-conservative media sources to cover the story: Continue reading →

Obamacare Recusal Wars: Right and Left Are Equally Deluded

/ Jack Marshall / 5 Comments

Note to Drudge: Cheering your boss's victories is not unethical. It's not unusual. It is not even meaningful. It's called "smart."

I hadn’t written about the dual efforts to knock Justice Kagan and Justice Thomas off the Supreme Court panel considering the constitutionality of Obamacare’s individual mandate, because it is so obviously politics masquerading as ethics. I also though they would stop soon, since there is no chance either Justice will recuse at this point, and neither should.

The controversy is still occupying newspapers, blogs and talking heads, however, so I suppose it is worth discussing, especially to make this point: what concerns those seeking recusal is that they know, or think they know, how each Justice will vote on the issue, and they want to rig the process by finding a technicality that will prevent one or the other from participating. Does anyone really think that Kagan’s previous work as Solicitor General under Obama will bias her already liberal leanings? No. Does anyone really believe that Clarence Thomas would vote for an interpretation of the Constitution that opens that door for Congress to demand that we buy whatever it tells us to, were he not trying to please his conservative wife? Tell me another. Both recusal arguments are intellectually dishonest attempts to interfere with full judicial consideration of a politically explosive matter. Continue reading →