Saturday, December 31, 2016
Friday, December 30, 2016
Tonite we feature maybe George Michael's funky masterwork (with Wham!), "Everything She Wants", which is maybe the the filmed essence of what it means to be a star: Funk it up!
Thursday, December 29, 2016
A recent presidential election has changed things re American policy towards Israel, and a recent presidential decision has changed them in a different direction. In other words, Donald J. Trump has shown enthusiasm for moving America’s Israel embassy to Jerusalem, but Barack H. Obama has since allowed a United Nations vote to condemn Israeli settlements in the West Bank. How might the Supreme Court’s controversial and blockbuster 2015 Zivotofsky v. Kerry (in which the present author was one amicus) decision be impacted by these new controversies? (Paul Sracic’s Okay, so what would a Trump presidency be like? also brings up Zivotofsky re Trump, so the present essay is not the only one thinking about these issues.) In short, Zivotofsky, a thoughtful 6-3 decision authored by Justice Anthony Kennedy, was “procedurally” about separation of powers and who gets to recognize foreign sovereigns (the President, not Congress, said the Court, overruling Section 214(d) of the Foreign Relations Authorization Act of 2003); and it was “substantively” about whether tween Menachem Zivotofsky was allowed to call his Jerusalem birthplace “Israel” on his passport (no, said the Court). Israel, or at least its more Likud-leaning element and that element’s allies in America, was not very happy about this decision. So, could Zivotofsky ever be overturned and put smiles on their faces? I. Ways to Overturn the Court’s Decisions There are ways to overtly overturn Supreme Court decisions, and there are subtler ways. An overt overturning would tend to involve the Supreme Court overruling itself; or a constitutional amendment; or perhaps a war (if we see the Civil War as “overturning” Dred Scott). Subtler, de facto overturnings, or partial overturnings, may include, say, executive refusal to enforce a Court decision (as Andrew Jackson quipped), or legislative efforts that limit the efficacy of a Court decision (as with various states’ passing abortion-restrictive laws which arguably limit the power of Roe v. Wade). II. Zivotofsky May Not Necessarily Be Overturned “Procedurally” As for Zivotofsky: certain parties interested in supporting Israel’s current government, while once unhappy with Zivotofsky’s being decided against their wishes, aren’t likely to try to overturn the Court’s decision now that there’s a President who wants to move the U.S. Embassy to Jerusalem—which would tend to be a de facto endorsement of plaintiff/petitioner Zivotofsky’s position. In fact, the old position that the plaintiff espoused, that the Congress, not just the President, had a say in recognition decisions, would ironically hurt the plaintiff’s desires now that there is a Republican President, and the only Democrats who could stop his moving the embassy might be Senate Democrats filibustering his attempts to move the embassy. But under Zivotofsky, it’s Trump’s decision, not theirs. III. Zivotofsky May Not Necessarily Be Overturned “Substantively”, Either So in the short term, it seems that much of the substantive matter in Zivotofsky, re the status of Jerusalem in U.S. eyes, is decidable by the President-elect, in a way that would “overturn” Zivotofsky. (The present essay assumes that the Zivotofsky Court majority may appreciate the nuances of the Jerusalem situation somewhat more than Trump or many Israeli settlers do, so that the Court majority might feel private discomfiture if Trump now runs roughshod over the nuances in question.) But for how long will an American embassy be in Jerusalem, if it is indeed moved there? It is likely that Trump, or simulacra of him, may not be President forever. Indeed, a later President may return to the American-foreign-policy status quo since Harry Truman, i.e., that Jerusalem’s status is up to Israelis, and also Palestinians, and perhaps others concerned, rather than being up to one party’s fiat. The movement of the U.S. Embassy to Jerusalem could cause great rage not only in the Arab world but in the rest of the world as well. And any moves of the Israeli government not just to claim Jerusalem, but also to annex the West Bank, if they feel empowered by Trump’s trumping Truman and abandoning American tradition on the status of Jerusalem, might be condemned in the harshest terms. Some folk around the world might even compare it to Hitler’s Anschluss of Austria in 1938, or his Drang nach Osten (“Drive to the East”) for Lebensraum (“living space”). (Those comparisons would be exaggerated; but the present author would not be surprised if someone made them.) World outrage would tend to flow towards Israel’s patron, the United States; so over the years, under extreme pressure, America might tend to pull its embassy back to its old Tel Aviv location, at least until Israel and Palestine reach a final, good-faith settlement on Jerusalem. (And even if Trump doesn’t pull it back, a Democratic Congress, if one is elected, can simply refuse to fund it. This is part of Zivotofsky, too: the President recognizes sovereigns, but funding of embassies can be denied by the Legislature, so that separation of powers is preserved.) Thus, Zivotofsky’s legacy may not be so shaky as some might think it. Defying the whole world, whether on the settlements, or Jerusalem, or annexation, will tend to have its price. And if the Embassy has to be removed from Jerusalem eventually, why move it there in the first place? IV. Headwinds for Trump and His Confrere Netanyahu To add further context: one wonders what Trump has been thinking. His pre-election platform seemed somewhat isolationist, and complained about America giving too much foreign aid and getting too entangled in foreign affairs. So Trump wouldn’t seem consistent if he now puts his office and American power and money in support of Israeli expansionism. His friend Benjamin Netanyahu, prime minister of Israel, appreciates Trump’s ideas on Israel, but not all Israelis do:
(Cross-posted, with edits, at Casetext)
Amir Oren, a liberal Israeli commentator, argued that the UN resolution could save the government from itself by bringing closer an end to settlement construction. “Santa Obama delivered a wonderful Christmas present to Israel when the United States opted not to veto Friday’s United Nations security council vote condemning settlement policy,” he wrote in Haaretz. “The passage of the resolution won’t result in the immediate dismantling of any West Bank settlements, but the world is beginning to come to the rescue and try to save Israel from itself.”The Guardian, White House races to save Middle East peace process before Trump takes office. And Netanyahu is apparently realizing the potential weakness of his position:
In contrast to the recent harsh statements, Netanyahu has also reportedly warned ministers to avoid making calls for annexation of the occupied territories for fear of promoting further moves aganist [sic] Israel. The latest planned reported moves also come amid evidence of a mounting backlash against Netanyahu’s handling of the situation. On Monday Yesh Atid, the party of one of Netanyahu’s biggest rivals on the right, Yair Lapid, urged the Knesset to summon Netanyahu to explain the “dangerous deterioration in Israel’s foreign relations” following the vote. Israeli columnists also continued to damn Netanyahu’s handling of the fallout with Ben Caspit, of the Maariv, describing his “campaign of chastisement” as the “most unwarranted and looniest in the world of diplomacy in modern history”.The Guardian, Netanyahu snubs May over UN settlements vote, Israeli media says. Conclusion: The Court’s Wisdom May Offer Hope for a Better Future than 2016 The news articles above give evidence that Zivotofsky may leave a long legacy instead of disappearing into the night. This present essay makes no predictions, though. Maybe Netanyahu, who, in the spirit of George Michael (RIP), has been essentially been saying that Obama “should’ve known better than to cheat a friend” by abstaining on the U.N. vote, will eventually get his way; and the world will grudgingly accept a per se or de facto one-state solution, that one state being Israel. Then again, as Princess Leia (played by Carrie Fisher (RIP), daughter of Debbie Reynolds (RIP)) might say, (the) force of history is likely with the world as a whole, not with isolated figures like Trump and Netanyahu. 2016 has been a miserable year for many people, and we can only hope that sanity and decency prevail, in the Middle East and elsewhere. John Kerry, who defeated petitioner Zivotofsky, has been trying to promote sanity and decency—including “call[ing] for Jerusalem to be the recognized capital of both states”—, at least from his perspective. And if the Court’s Zivotofsky decision, with its appreciation of nuance, history, and multilateralism, points a way to a happy result, then the world may well be happy if that decision and its spirit stand.
(Cross-posted, with edits, at Casetext)
Tuesday, December 27, 2016
Saturday, December 24, 2016
Friday, December 23, 2016
Wednesday, December 21, 2016
Monday, December 19, 2016
Saturday, December 17, 2016
Friday, December 16, 2016
Saturday, December 10, 2016
Friday, December 9, 2016
Wednesday, December 7, 2016
Saturday, December 3, 2016
Friday, December 2, 2016
Saturday, November 26, 2016
Friday, November 25, 2016
Saturday, November 19, 2016
Friday, November 18, 2016
Saturday, November 12, 2016
Friday, November 11, 2016
Tonite, not that it has anything to do with Donald John Trump, we feature "Fascist Funk" by Freaky Chakra (the actual name of the song is "Blacklight Fantasy", but if someone wants to label it as "FF" they have free speech to do so): Funk it up!
Saturday, November 5, 2016
Friday, November 4, 2016
Monday, October 31, 2016
This Halloween, a specter is haunting the Supreme Court: the specter of destruction by the Senate. At least, that’s what a recent article on the “Federalist” website claimed, with the mind-bending assertion that the Court could be eliminated completely, simply by the Senate’s refusal to appoint new Justices to replace departed ones:
(Cross-posted, with edits, at Casetext)
As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.Id. However, this “fantastic beast” of a claim may come more from Cloud-Cuckoo-Land than from the realm of reality. I. The Supreme Court: An Article III Commandment, Not a Suggestion First off, the idea that one branch of the Government can just casually exterminate another branch defies common sense. It also defies the idea of the equality of the three branches, legislative, executive, and judicial. Second, although the Senate has a prerogative not to appoint nominees in general, i.e., to refuse a specific nominee: that privilege doesn’t seem to allow them to fail the Constitutional duty to keep the Supreme Court alive in the first place. As Article III, Section 1 of the Constitution declares,
The judicial Power of the United States, shall be vested in one supreme Court . . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior[.]Id. There aren’t any colorful “maybes” or “outs”, such as, “The judicial Power of the United States, shall be vested in one supreme Court, unless someone makes it fizzle out, then bye bye judicial power! And bye bye to Justices holding their Offices!!” Indeed, the internecine warfare that would occur if one branch of the Government could snuff out another branch, put a “hit” on it, does not seem contemplated by a document with the majesty of our Constitution. Checks and balances are one thing; body-checking a branch of the government to death is another thing entirely. II. A Smaller Supreme Court Doesn’t Mean No Court at All; or, the Senate’s Duty to Keep at Least One Justice on the Court True, the Senate could let the Court get smaller and smaller: e.g., if Hillary Clinton puts forth no acceptable nominee, it might be constitutional—even if imprudent and obstructionist—for the Senate to let the number of sitting Justices dwindle to 7 or even fewer. (See Noah Feldman on Bloomberg, Obama and Republicans Are Both Wrong About Constitution,
All the Constitution requires is that there be a Supreme Court. . . . . . . . . . . But the size of that court is left undefined. In theory, I think, it could consist of a single judge. The interpretation of the Constitution would rest his hands. [sic] You could even call him Anthony Kennedy.Id.) But merely slimming down the Court doesn’t mean letting the Court actually die. Thus, as a reductio ad absurdum: let’s say seven of the current Justices are abducted by renegade Martians or Sith, so that Ruth Bader Ginsburg is the only Justice left alive, and she constitutes a Supreme Court consisting of one person (!!), with American justice “resting in her hands”. She lives to the ripe old age of 130 (!!!), but eventually is “promoted to glory” or “attains her heavenly reward”, as the euphemism goes. It seems that at that point, with no one left on the Court, the Senate would have to approve somebody, as a matter of good faith, to follow the Constitution’s clear order that “The judicial Power of the United States, shall be vested in one supreme Court”. (If the Justice turned out to be a bum, the Senate could…use another power it has re the Court, and impeach him or her for a refusal to show “good Behavior”, U.S. Const. art. III, § 1. So there’s no excuse for not appointing at least one Justice to the Court, on the pretext that the Justice may not be “perfect”. Who’s perfect?) But according to “The Federalist” article supra, the Senate could just let the Court die off. This doesn’t seem very patriotic, among other things. ...Incidentally, speaking of “Federalist”, is there anything in the actual Federalist Papers, written largely by that guy with the Broadway musical named after him, that would support the Senate kung-fu-ing the Supreme Court to death? III. Al Hamilton: Probably Not for H-Bombing the Court Let’s see, first off, The Federalist No. 76, quoted in What Did the Federalist Papers Say About Supreme Court Appointments?:
The person ultimately appointed must be the object of his [the President’s] preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed[.], id., and The Federalist No. 78,
[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.Id. So the Fed Paps say in #76 that the Senate should generally defer to the President’s nominations, and in #78 that we should be wary of other branches’ attempts to “overpower[ ]”, id., the Court. But isn’t destroying the Court the ultimate form of “overpowering” the Court? What would Hamilton say? Cf. also Shun a President’s Supreme Court Nominee? Alexander Hamilton Would Not Be Pleased (making similar points, and including snappy photo of Lin-Manuel Miranda). In all, someone publishing in a venue called “The Federalist” might want to consult the actual Federalist Papers, to see if dropping an atom bomb on the Court is something that funky founding father Al H would’ve been down with. IV. The Senate Can Pass Over Court Nominees—but Not Indefinitely or Indiscriminately The present author is somewhat neutral, by the way, as to the matter of appointing Merrick Garland to the Court or not; if Mitt Romney were President and wanted to appoint Ted Cruz to the Court, who thinks the Democrats would be enthusiastic to appoint him? And if Democrats are not enthused about Cruz, how can they blame Republican senators for not wanting to appoint one of Obama’s nominees? However, for any Senate to refuse even to consider any of a particular President’s nominees, smacks of obstruction. And for any Senate to try to kill off the Court, smacks of insanity. V. Conclusion: We Pay the Senate to Restock the Court, so the Senate Should Do Its Job The present author doesn’t especially favor big government, but if we’re paying with our taxes for government, the government might as well do something. …If you wanted to argue that a branch of the federal government be killed off, you might want to start not with the Court, but with Congress (including the Senate), or the Presidency, whose inhabitants have to be elected by everyday Americans. (What if no one voted? No one would be elected, and the branches of government in question would tend to die off. And could average Americans really be forced against their will to vote for Congressional or Presidential candidates at all??) But the Court is appointed by the President, i.e., by someone who’s paid to do a job. (Your average voter is not paid for casting a ballot.) The President should do what she/he is paid to do. And the Senate too is paid to do a job, that is, considering Supreme Court nominees. For the Senate not to do that job, and let the Court die, is the kind of ineffective big government we really don’t need. (FDR and Phyllis Schlafly promoted big government by endorsing Court-packing, the needless expansion of the Court; but at the other extreme, to wipe out the Court when the Senate is being paid to do its job and restock the membership of the Court, is also ineffective big government.) And to waste time making spooky arguments that one branch of the Government can whack another at will, may be wackier than anything else you see this Halloween—especially when such arguments may not have a ghost of a chance of withstanding serious analysis.
(Cross-posted, with edits, at Casetext)
Saturday, October 29, 2016
Friday, October 28, 2016
Wednesday, October 26, 2016
Saturday, October 22, 2016
Friday, October 21, 2016
Saturday, October 15, 2016
Saturday, October 8, 2016
Friday, October 7, 2016
Tonite, since a lot of people think Vanilla Ice is little better than Satan, and this is the big 66th installment of Funk Nite, we feature the Iceman's self-defining superhit "Ice Ice Baby": Funk it up!
Monday, October 3, 2016
Some Quirks re Buck v. Davis: Red/Blue/Black Briefing, Glenn Reynolds’ Driving Etiquette, and Strickland vs. “Mechanical Rules”
Duane Edward Buck is scheduled to be killed in Texas because he is black. This is a pithy, but plausible, reading of the bizarre, race-tinged death-penalty case Buck v. Davis, due for oral argument in the U.S. Supreme Court on Wednesday, October 5th. There are some interesting quirks in the briefing, and also in some recent real-life events, not to mention relevant case precedent; discussion of said quirks may help readers understand the case better. I. “What Color Are Your Briefs?”, or, How Petitioner’s Reply Brief May Use Colors to Clever Ends First off, there is an interesting quirk in the NAACP Legal Defense Fund reply brief of September 28 for petitioner Buck. Supreme Court rules say that petitioners file blue briefs at the merits stage (except for the shorter reply brief, which is yellow), and respondents file red ones, see id. R. 33(g)(v)-(vii). Occasionally a Justice may even refer to this difference from the bench: e.g., Justice Anthony Kennedy referring to the “Red Brief” in the oral argument, id. at 21, for Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). But it’s basically unheard of, from what the present author has seen, for a brief itself to refer to “Red Briefs” and “Blue Briefs”, which would go more into mysterious legalese than most briefs do. (The lay public likely has little notion that some Court briefs are mandated to be blue, others red, and others white, orange, tan, yellow, cream, or light or dark green, see S. Ct. R. 33(g).) The reply brief in Buck does talk about brief color, though, passim, citing to “Blue” or “Red” briefs. (The initial petitioner’s merits brief didn’t do that.) Is this just an amusing quirk, or is it amnesia about how the usual reference is to “Petitioner’s” or “Respondent’s” briefs, not to colors?…or is it something more clever than that?? Of course, it may just be a strange coincidence. However, seeing Petitioner’s emphasis on how bad it is to be arbitrarily punished for being Black (and the word “Black” tends to be capitalized in Petitioner’s briefs), one wonders if his lawyer is trying to make a point about colors—even a subconsciously made point, without intent to do so. Maybe by mentioning “Blue” and “Red” so often, colors of equal value which are arbitrarily assigned by the Court to denote various types of briefs and have no inherent meaning, Buck’s attorney was making the point that black, white, brown, and any other human skin colors are not something that we should be punished for, especially when the punishment is death, as in this case. But whether Petitioner meant us to get those thoughts from his reply brief or not, we still learn the lesson, even if it is just a “strange coincidence”, about the meaninglessness, or at least the desired meaninglessness, of skin color in human life. If we can respect blue and red as equals, then presumably we can respect black, white, and everyone else with equal justice under law. II. Instapundit Incitement against Pedestrian Protesters? or, Living while Black Is Still Dangerous in USA But not everyone always respects the spirit of the law. —There is a television show called How to Get Away with Murder, starring Viola Davis as a criminal law professor implicated in covering up the murder of her husband. And now, there is famed “Instapundit” blogger and University of Tennessee law professor Glenn Reynolds, who was recently caught “tweeting” on Twitter about people protesting the fatal police-officer shooting of a black man, Keith Scott: “Run them over.” Presumably, this meant running them over with a motor vehicle, not with a large, soft pillow rolled gently over the protesters. Reynolds’ recommended automotive blitzkrieg fortunately did not occur (though who knows who might be “inspired” by that tweet one day?): he even apologized--after first trying to defend his tweet--, and the U. Tenn. administration decided not to punish him. Some UT law graduates are still not happy, though. This nasty episode supra is especially relevant to Buck v. Davis because Reynolds’ terrifying tweet shows that even law professors are capable of racially insensitive, or even de facto racist, outbursts that prima facie encourage the mass vehicular butchery of black (and other) protesters. So, then, why would it be impossible that the jury in Buck’s case also behaved irrationally and maybe condemned him to death because of the false evidence claiming black people tend towards violent crime? Like it or not, rational behavior is often a very thin lid over a cauldron of subconscious prejudices, urges, feelings, etc., which keep us from being as fair as we should be. And sometimes, the cauldron boils over. While it’s easy to make a punching bag of Reynolds and say, invent nicknames for him (e.g., “Instassassin”, “Killer Reynolds”, or even just “Glenn the Knife”), the time might also be well spent on increasing racial justice in this country. While, hopefully, Reynolds’ brief apparent advocacy of carrying out Nice-style terrorism on protesters against racial injustice was just a fluke, and he has maybe learned his lesson, Duane Buck is still scheduled to be killed because he is black, it seems. That said, if Reynolds is going largely unpunished for his appalling remarks—remarks of which all of us in the legal profession should be ashamed, since we are trained to know better than to act that way—that seemed to advocate killing protesters who have many African Americans among them, then maybe Duane Buck should not be punished by death for being black, either. III. Strickland v. Washington: Disapproving Mechanistic Rigidity re Ineffective Assistance by Counsel While the death clock for Buck ticks on, there may be salvation in case law for him, though. Some helpful points to Buck are in Strickland v. Washington, 466 U.S. 668 (1984). For example, as Buck’s counsel has mentioned, see, e.g., Blue Br. at 33, Buck need not show by a preponderance of the evidence that his counsel’s errors swayed the case’s outcome, see Strickland, supra, at 694. And falsely claiming that blacks are inherently more violent than other people is hardly an insubstantially important claim, even if that claim cannot be definitely proven to have swayed the jury. Another point from Strickland, which might be useful to mention in Wednesday’s oral argument or elsewhere, is that mere “mechanical” application of rules in situations like Buck’s may be a bad idea:
(Cross-posted, with edits, from Casetext)
Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. . . . the ultimate focus of inquiry must be on the fundamental fairness of the proceeding[.]Id. at 696 (O’Connor, J.). So, emphasizing that mere “mechanical” rigidity must not defeat “fundamental fairness” in Buck’s case may be crucial. (O'Connor was not being “quirky” per se in Strickland, but she recognized that reality has quirks or unusual points that may not be justly treated by using needlessly rigid procedures.) E.g., there may be overly-rigid arguments for denying Buck relief, such as the argument that of eleven facts Buck put forward to show how extraordinary his case is, see, e.g., Blue Br. at 47, and achieve relief under Federal Rule of Civil Procedure 60(b)(6), none of the facts individually is enough to show “extraordinariness”. But what about the holistic aggregation of all 11 facts together? Could that gestalt prove extraordinariness? It well may. Similarly, a realistic consideration of the bizarreness of the case as a whole (absurd racism, broken promises by the Texas Attorney General’s office, etc.) should preclude any overly mechanistic application of rules, see Strickland at 696, that might prevent relief for Buck. IV. Conclusion: Texas’ Case May Be on Death Row—Which Is Good for the United States Then again, petitioner Buck may not have as hard a struggle as one might imagine. Buck has six amicus briefs on his side at the merits stage—including one by the present author—; interestingly, Texas has zero amicus briefs on its side. This says a lot of what needs to be said about the legitimacy of Texas’ case. It is, and should be, a pretty hard row to hoe to defend executing someone using absurd ““evidence”” that “blackness equals violence”. On that note, it’s somewhat odd that the U.S. Department of Justice is nowhere to be seen in this case, this case of flagrant racialized abuse of someone in the criminal justice system. Some activists claim the Obama administration hasn’t done enough for black people, and they might be able to adduce the DOJ’s mysterious absence from the Buck case as evidence. One hopes that in similar cases in the future, the federal government might take notice and act. That’s especially so because there’s an important national interest besides racial justice inside the U.S.: i.e., the foreign-policy implications of the case. If Buck is executed because he is black, then how can we complain when other nations execute people under suspicious circumstances? such as religiously-tinged executions like those in Saudi Arabia? “A decent respect to the opinions of [hu]mankind”, as the Declaration of Independence put it, not just respect for ourselves, would seem to support Petitioner’s case here. Cf. John Donne, “Any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” After all, America is famed throughout the world for having nothing against quirks and the freedom to be quirky; but there are good quirks, and there are bad quirks. And refusing legal relief to Duane Buck is the deadly and unjust kind of quirk that America, and the rest of the world, can’t afford.
(Cross-posted, with edits, from Casetext)
Saturday, October 1, 2016
Friday, September 30, 2016
Saturday, September 24, 2016
Friday, September 23, 2016
Tonite, for this 64th funk nite, we have Paul McCartney playing "When I'm Sixty-Four" live at a marriage proposal by a 64-year-old: Funk it up!
Saturday, September 17, 2016
Friday, September 16, 2016
Sunday, September 11, 2016
Saturday, September 10, 2016
Recently-deceased activist Phyllis Schlafly, in her last year of life, had some interesting ideas tending to expand federal government and elevate the executive and legislative branches of government above the judiciary, especially the Supreme Court—a Court to which she tried to have herself appointed, as explained below. She was best known as a “conservative” and for being “pro-family” in an ultra-traditional sense; but her “modest proposals” of March 22, 2016, in the Townhall article No Confirmation of Supreme Court Nominee, raise interesting questions about the first of those two descriptors. Schlafly:
(Cross-posted, with edits, from Casetext)
On March 16th, President Obama announced his nomination of Judge Merrick Garland to succeed the late, great Justice Antonin Scalia . . . .Id. Note that Schlafly mentions expanding the size of the Court only after offering the scenario where a Republican President would have power to add Justices, see id. So her proposal to make the Court bigger may not be very neutral. Indeed, it may be no more neutral than its most famous past exemplar, Franklin Roosevelt’s infamous and failed “court-packing” attempt in the 1930’s. I. Schlafly and FDR: More Alike than Anyone Suspected Indeed, FDR’s court-packing gambit is the first thing of which one thinks when seeing Schlafly’s proposal for “11 or more Justices”, id. (emphasis added) Would Schlafly have been happy if Barack Obama, during the period of his presidency that the Democrats held both House and Senate, expanded the number of Justices to 11—as per her recommendation—and promptly added Bill and Hillary Clinton (or Gloria Steinem and Howard Dean, say) as the newest Members of the learned Court? Probably not. So, one suspects that Schlafly’s expanded Court is meant to expand in one direction only, the political Right or ultra-Right. This does not seem fair. And what is the stopping principle for the number of Justices? Why not 21, a lucky, blackjack-sounding type of number? Maybe nine is a sensible number after all. II. Schlafly v. the Court…Sometimes Schlafly is somewhat less to blame for her proposal of rotating Justices and imposing a sort of “term limit” on the Court’s Members. People on the Left and the Right have both proposed such an idea. But again, where is the stopping principle? If life tenure for a judge or Justice is so horrible, shouldn’t we also have rotation and term limits for all federal appellate judges . . . and all federal district judges too? Sauce for the goose, sauce for the gander. But Schlafly had a long habit of complaining about the Court in general. She wrote a whole book, The Supremacists, arguing, see id. passim, that the Court has too much power. But did she really believe that? Did she have a problem with the Court’s power when it issued the Hobby Lobby decision? Or Bowers v. Hardwick? Or Citizens United? If not, then some may wonder whether her complaining about the Court was done simply to have something to complain about. (Schlafly, a former model as Wikipedia notes, didn’t seem to have a problem with appearing on camera, or on radio or in print, on a constant basis.) While she may not have bothered to get people to protest Hobby Lobby or other Court decisions supra, she had no hesitation about “nullifying” the Court’s authority when she felt like it, see, e.g., Schlafly: GOP Hopefuls Must Vow To Defy Gay Marriage Ruling Until We ‘Decide Whether We Want To Overturn It’:
If Republicans elect the next president and retain control of Congress, there will be plenty of time to add new Justices to the Supreme Court. One scholar proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction.
In addition to controlling the size of the Supreme Court, Congress could also authorize the President to nominate new Justices on a regular timetable . . . .
. . . The unexpected Supreme Court vacancy is a golden opportunity for Congress to reassert its power over the number of Justices and the process for appointing them.
In an interview with far-right pastor and Colorado state Rep. Gordon Klingenschmit today, Phyllis Schlafly declared that the Supreme Court’s recent marriage equality ruling should simply be ignored while “we the people” decide if we want to overturn it.Id. So does that apply to Hobby Lobby, too? Can Americans just ignore what the Court said there? What would Schlafly say?? III. The Importance of Not Being Counterproductive Moreover, her recent proposals for the Court may have been self-contradictory or self-defeating. E.g., while Schlafly often claimed to be against big government, especially the federal sort, her Townhall article supra tells us she wanted to expand the size of the Court, which means expanding the size of the federal government and spending more taxpayer money. Not to mention her attempt to make the Court a tool of the Executive by having a Republican president (perhaps Donald Trump, whom she supported despite his multiple marriages that didn’t comport with Schlafly’s declared Catholic faith) pack the Court with presumably-compliant Justices. Thus, her efforts would be counterproductive, if she were really interested in a smaller, fairer federal government. (And, as mentioned at the top of this article, that all brings into question how “conservative” she really was.) Counterproductivity was a long-time problem of Schlafly’s, by the way. For example, she claimed to oppose abortion bitterly; but at the same time, she infamously said at a Bates College speech in 2007, “By getting married, the woman has consented to sex, and I don’t think you can call it rape.” Wikipedia Biography, supra. But if husbands are busy raping their wives, then, logically, that would tend to increase the abortion rate, since more unwanted pregnancies would probably result. Therefore her “let’s overlook marital rape” stance was not only repulsive and problematic in itself: it also undercut her supposed opposition to abortion. Also undercutting that opposition, arguably, was her attempt in 2005 to get Justice Anthony Kennedy impeached from the Court for his stance against the death penalty for minors. Id. If we expand “abortion” to mean killing in general except for self-defense, then Schlafly was perfectly happy to see young people “aborted” by the State. (Incidentally, the Catholic Church has been active for some time against the death penalty, period, which shows another self-contradiction on Schlafly’s part.) IV. “Justice Schlafly”: It Could Have Happened And one of the most trenchant contradictions in her relation to the Court, is that for all her criticism of its “excessive power”—she wanted that power for herself. As Randall Balmer notes in Phyllis Schlafly: The antifeminist who wanted a job in the Reagan administration,
“There’s nothing in the Constitution about homosexual marriage,” Schlafly said. “The judges made it up and some people think that because they did and the Supreme Court has spoken, therefore we have to accept it. We don’t.”
Schlafly, who had supported Barry Goldwater’s campaign for the presidency in 1964, initially backed Philip Crane for the Republican nomination in 1980 because she harbored doubts that Reagan was sufficiently conservative. Eventually, she rallied behind Reagan and evidently believed that her advocacy on his behalf entitled her to a plum appointment in his administration. ...Id. Schlafly’s spectacular lack of qualifications to be a Justice should elude no one: her failure ever to be a judge in the first place, and her political hyperpartisanism which did not promise a judicial temperament on her part, may be some of the main problems, though there may be others. ...For all we know, maybe part of her Court-packing scheme of earlier this year, was to allow an extra seat to have herself, or at least a relative, appointed to by a grateful Donald Trump. In any case, it is fascinating to see that she felt she was better-qualified than Merrick Garland or Anthony Kennedy to be a Justice of the Supreme Court of the United States. V. “The Power of Prayer”, Schlafly, the ERA, and the Court So, without calling Schlafly a self-contradicting, self-serving demagogue and celebrity-seeker (cf. “Speak no ill of the dead”), one still is allowed to wonder how exactly how she justified her principles and actions, with respect to the Court or otherwise. Her choice to echo FDR’s worst, most power-hungry side, re the issue of Court-packing, is not a choice which politicians, lawyers, or citizens of the present should echo themselves. And those who choose to pray for her soul, can—while also praying for an Equal Rights Amendment, if they like—, in addition, pray for the Supreme Court: a Court which, even though never burdened by having Schlafly as a member, still seems to need prayers badly, with all the ambitious persons trying to chop, slice, dice, stretch, or drop-kick the Court into whatever configuration will fit those individuals’ own idiosyncratic interests. The Court is for all the people, after all, not just for a few of us.
Schlafly continued her efforts into the early days of the Reagan administration, but to no effect. Undeterred, she organized yet another campaign several months later to have herself appointed to the Supreme Court seat vacated by the retiring Potter Stewart in June 1981. Reagan, however, who had promised to appoint the first woman to the high court, chose Sandra Day O’Connor instead. ...
Reagan made several questionable appointments during his presidency — the ethically challenged Edwin Meese III as attorney general, for instance, or the environmentally hostile James Watt as secretary of the Interior . . . . But I suspect that installing Phyllis Schlafly as . . . . Supreme Court justice, would have made those appointments look sagacious by comparison.
(Cross-posted, with edits, from Casetext)
Friday, September 9, 2016
Tonite we feature James Polk & The Brothers and their plainly yet funkily named "Just Plain Funk": Funk it up!
Saturday, September 3, 2016
Saints Augustine of Hippo, Jeanne Jugan, Joseph of Arimathea and Nicodemus, Giles, and Gregory the Great, and Blessed John Francis Burté and Companions and Claudio Granzotta, around this time of the Feast of the Martyrdom of John the Baptist, please pray for us.
Friday, September 2, 2016
Tonite we feature Lee Mason's "Shady Blues"; maybe not funk in a strict per se way, but maybe still funkier than a lot of funk is: Funk it up!
Tuesday, August 30, 2016
Saturday, August 27, 2016
Friday, August 26, 2016
Saturday, August 20, 2016
Friday, August 19, 2016
Saturday, August 13, 2016
Friday, August 12, 2016
Saturday, August 6, 2016
Friday, August 5, 2016
Saturday, July 30, 2016
Friday, July 29, 2016
Monday, July 25, 2016
While there may be unappealing choices for President in 2016, with each side’s ticket almost seeming more like a “Suicide Squad” than like people that everyone could admire, some of those candidates’ own choices are even more unappealing. One of those is Hillary Clinton’s recent pledge to field a U.S. constitutional amendment to overturn the Supreme Court’s controversial decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (“CU”). Her rationale is campaign finance reform, which is admittedly an important issue. But is it right for Hillary to suggest amending the Constitution to destroy CU? Or does it seem like she’s almost being a judge in her own case, and disrespecting the powers of the judicial branch of government?? There hasn’t been an amendment to the Constitution for almost a quarter-century, the most recent being the 27th Amendment, re the salaries of Congresspersons. Ideally, the fewer the amendments, the better: why change the Nation’s top document if the problem could be handled at a lower level, e.g., changing federal or State laws or procedures? But what makes Mrs. Clinton’s proposal especially suspect, is that CU, see id. at, e.g., 887, concerned federal law preventing a film about her, Hillary: The Movie, from being aired right before the 2008 Democratic primaries. (CU overturned that law.) In other words, she wants a constitutional amendment to say that it would’ve been all right to censor criticism of her herself, Hillary Clinton. This looks suspect, to say the least. Although Hillary is, then, the worst possible person in the universe to recommend overturning CU by amendment, that doesn’t mean it would be right for anyone else to do it either. The present author believes there’s probably too much big money in American politics; but the best way to handle it might be through stronger financial disclosure requirements, or other means, rather than what the CU opinion deems to be outright censorship of corporate free speech. (Indeed, Clinton herself mentioned disclosure, among various campaign-finance reforms, in her proposal; but those possible good things don’t give her a free pass for her anti-CU amendment proposal.) Indeed, as the Court notes, see CU, 558 U.S. at 897, even a book criticizing a candidate could have been censored under the laws overturned. George Orwell, are you listening? The Inadvisability of Constitutionally Amending Supreme Court Decisions After all, while the Supreme Court can get things wrong, it is an insulting assumption to think that the Court can’t get it right, even if it takes a while. For example, Bowers v. Hardwick was decided in 1986, but it took less than a generation to overturn it, with the Lawrence v. Texas decision in 2003. So, using a constitutional amendment to overturn an undesirable Supreme Court decision, is something like using a sledgehammer to kill a fly. It may “work”, but in a way that is serious overkill. If there is some emergency, e.g., the Court decides that Nazism must be official government policy, then a constitutional amendment (or other extreme solution) may be appropriate. But for something of the magnitude of CU, letting the Court handle it, and keep reweighing the evidence, may be the best idea. For example, people have opined that the Court’s statement that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption”, 558 U.S. at 910 (Kennedy, J.), has been empirically proved to be incorrect. Maybe so. But if it is incorrect, the Court can note this and overturn or amend CU itself, rather than having the Constitution amended. Some More Palatable Constitutional Amendments re Electoral Fairness If one wants constitutional amendments aimed at improving electoral fairness, there are plenty of others that could be passed, which may be far more needed, and overdue, than overturning CU. For example, the Electoral College could be abolished, which would make the presidential election a true democracy for the first time, instead of the current “federalist” substitute whereby each State’s vote in the Electoral College is more important than the individual vote of each American. This would’ve prevented the situation in Bush v. Gore from occurring, and the 2000 Presidential election would’ve had a different winner, one voted for by the most Americans. Also, the part of Article II, Section 1, Clause 5 of the Constitution which bars naturalized citizens from running for President, could be overturned. Arnold Schwarzenegger might not be the best President (?), but he and similarly-situated immigrants should have a right to run, and people should have a right to vote for them. The new amendment allowing naturalized citizens to run could add a more relevant restriction on running for President, if people are concerned about foreign loyalties of presidential candidates. (The requirement for presidential candidates to be natural-born citizens was passed in order to prevent, say, a British noble from moving to America and running for President with the support of American Tories.) That is, the amendment could prevent people with dual (or triple, etc.) citizenships from running for President. People who have another citizenship besides American could simply voluntarily lay down their foreign citizenship(s). Thus, people wouldn’t have their birth held against them (as with Arnold Schwarzenegger), they’d only have their voluntary choices held against them, e.g., a choice to retain Iranian, Russian, or Chinese citizenship when running for president of the U.S. Trumping the Constitution By the way, this essay is not endorsing Donald Trump for President, or condemning Hillary Clinton’s candidacy. Trump has his own problems, such as his Neville Chamberlain stance towards defending northeast-European NATO allies against an invasion by Vladimir Putin. (Also, the 2016 Republican platform has the quirky notion, see id. at 12, that no future constitutional amendment can abolish the First Amendment either on the whole or in part. The sentiment is right—free speech is extremely crucial—, but the understanding of what amending the Constitution means seems a little bit slim. …And why don’t they give the same “immunity from amendment” treatment to the Second Amendment? Would their NRA allies be comfortable with having that palladium of our gunbearing liberties be amended out of existence?) Free Speech: Even “Undesirables” Have a Right to It And the present author isn’t endorsing the Citizens United group at all; but even though not all their ideas are his, they still have a right to speak. If they want to come up with Hillary: The Movie Part 2 before the upcoming election, more power to them, so to speak. And if an opposing group wants to produce and air The Donald: The Movie Part 1 before the election, that’s fine too. While we should be suspicious of icky corporate entities, even icky people have a right to speak. (And note that not only corporations supported Citizens United’s lawsuit: the well-left-of-center ACLU, and the well-known union group the AFL-CIO, supported it too.) Conclusion: Criticizing Hillary and Others, without Restraint Ironically, Hillary might be the one needing to spend the most money in this election: Trump is so much of a celebrity and cause célèbre that he hasn’t had to spend much money to gain publicity. (And if Hillary is so interested in transparency re big money, why doesn’t she release her Goldman Sachs speech transcripts?) All of which makes it more awkward that she’s proposing a constitutional amendment against CU. Then again, Hillary’s proposal may just be political theater. The difficulty of amending the Constitution, including getting 38 States to ratify the amendment, means that her idea may be just a pipe dream, a talking point to rally “progressives” to support her candidacy. Still, her idea is dangerous and ill-conceived, whether it has a chance of succeeding or not. If she wins this election and runs for re-election in 2020, do we really want it to be a criminal offense to produce media criticizing her? In elections, we should usually appreciate more information, not less—even if we dislike the corporate/union/whatever entities producing the information. In the current election, many people may not have decided how to vote yet (if they vote for anyone at all). But thinking people tend to worry about issues like separation of powers; for example, what if a presidential candidate (“executive branch”) tries to outflank a Court decision (“judicial branch”) that allows people to criticize that candidate freely instead of being censored? Thus, it might be best if that candidate weren’t advocating an amendment diminishing the Supreme Court and overturning Citizens United—especially if the candidate’s name is Hillary Clinton.
(Cross-posted, with edits, from Casetext)
(Cross-posted, with edits, from Casetext)
Saturday, July 23, 2016
Friday, July 22, 2016
Saturday, July 16, 2016
Saints Veronica Giuliani, Benedict, John Jones and John Wall, Henry, Francis Solano, Camillus de Lellis, Kateri Tekakwitha, and Bonaventure, and Blessed Emmanuel Ruiz and Companions, and Angeline of Marsciano, around this time of the Feast of Our Lady of Mount Carmel, please pray for us.
Friday, July 15, 2016
In honor of the Nice victims, no funk today, but instead, the Marseillaise: Peace. And remembrance to the Dallas, Istanbul, Bangladesh, Baghdad, and other victims as well.
Saturday, July 9, 2016
Friday, July 8, 2016
Saturday, July 2, 2016
Saints Josemaria Escriva de Balaguer, Cyril of Alexandria, Irenaeus, Junipero Serra, and Oliver Plunkett, and Blessed Raymond Lull, around this time of the Feast of the Solemnity of Sts. Peter and Paul and of the Memorial of the First Martyrs of the Church of Rome, please pray for us.
Friday, July 1, 2016
Saturday, June 25, 2016
Friday, June 24, 2016
Saturday, June 18, 2016
Friday, June 17, 2016
Monday, June 13, 2016
Saturday, June 11, 2016
Friday, June 10, 2016
Saturday, June 4, 2016
Friday, June 3, 2016
Monday, May 30, 2016
The death last month of Prince Rogers Nelson, musician and moustache extraordinaire, is appropriate to remember on Memorial Day, including for his impact on the Supreme Court and on American politics and law. Granted, it's not a huge legacy, his politico-legal one, but of interest, and rebellious enough to call "red" as a little red corvette, even. (Or maybe purple, if you will.) First off, let's see Prince's impact on the budding thought of one young White House aide in the Reagan era, a certain John Glover Roberts Jr.: I. John Roberts: Keeping Michael Jackson and Prince in Endorsement Equipoise. (With Notes on Ronald Dworkin, Mozart, and Beethoven) How did the young "J. Ro" develop his sense of administrative fairness before falling into the seat of Chief Justice of the United States? One surprising anecdote (first dealing with Michael Jackson) comes from Charlie Savage of the New York Times, From the White House Files: A Fight Over Michael Jackson,
(To be cross-posted, with edits, to Casetext)
Mr. [Michael] Jackson had visited the White House on May 16, 1984, and appeared with Mr. Reagan at an event on efforts against drunken driving. The following month . . . . the White House was asked to contribute a letter from Mr. Reagan recognizing the pop singer’s work. . . . . On June 20, 1984, [White House aide James K.] Coyne forwarded the proposed letter [to the] office of then-White House Counsel Fred Fielding, where Mr. [John] Roberts, then a young associate White House counsel, was assigned to review it[; he] expressed acid disapproval in a June 22, 1984, memorandum to Mr. Fielding: I recognize that I am something of a vox clamans in terris in this area, but enough is enough. The Office of Presidential Correspondence is not yet an adjunct of Michael Jackson’s PR firm. 'Billboard' can quite adequately cover the event by reproducing the award citation and/or reporting the President’s remarks. (As you know, there is very little to report about Mr. Jackson’s remarks.) There is absolutely no need for an additional presidential message. A memorandum for Presidential Correspondence objecting to the letter is attached for your review and signature.Id. Ann Althouse notes, in When Chief Justice John Roberts was a vox clamans in terris... about Michael Jackson., Ha ha ha. What a character! The wise Latin! The voice of a terrified clam! Id. (By the way, Roberts' Latin may be questionable: vox clamantis in deserto, "a voice crying in the desert", is a well-known saying, maybe first seen in the Latin Vulgate translation of Isaiah 40:3. But vox clamans in terris is more like "voice crying out in the earth", a somewhat less romantic claim than "...in the desert".) Roberts went on,
I hate to sound like one of Mr. Jackson’s records, constantly repeating the same refrain, but I recommend that we not approve this letter. Sometimes people need to be reminded of the obvious: whatever its status as a cultural phenomenon, the Jackson concert tour is a massive commercial undertaking. The tour will do quite well financially by coming to Washington, and there is no need for the President to applaud such enlightened self-interest. Frankly, I find the obsequious attitude of some members of the White House staff toward Mr. Jackson’s attendants, and the fawning posture they would have the President of the United States adopt, more than a little embarrassing. It is also important to consider the precedent that would be set by such a letter. In today’s Post there were already reports that some youngsters were turning away from Mr. Jackson in favor of a newcomer who goes by the name “Prince,” and is apparently planning a Washington concert. Will he receive a Presidential letter? How will we decide which performers do and which do not?Savage (or Althouse), supra. (See Alex Balk, When John Roberts Denied Michael Jackson Cert: "Dude found out about Prince from the Washington Post. Can you imagine living in an age when newspapers were that relevant?") And Althouse expounds,
A newcomer who goes by the name "Prince." Yeah, don't want the Prez bowing down to bogus royalty. And I love the resistance to ad hoc decisionmaking and the demand for neutral rules of general applicability. Put that man on the Supreme Court! Equal justice under law.Id. Althouse's possible sarcasm is not completely valid here, though, since Roberts does bring up a valid question: why Michael, the King of Pop, instead of Prince, the...Prince of Pop? If Roberts has been fair in his time on the Court--neutral enough to outrage conservatives who wanted him to overturn the Affordable Care Act, for example--some of the genesis of this fairness may come from his musical musings back when he was in the Reagan White House and refused to put the Gloved One above the Purple One. (Roberts gets extra points since his middle name is "Glover", so that he might hypothetically be biased in favor of the Gloved One.) Moreover, Roberts outdoes legal titan Ronald Dworkin, who in his 1996 essay, Objectivity and Truth: You'd Better Believe It, opines,
I assume that you, like me, are willing and think yourself able to make at least some comparisons of artistic merit: we think . . . . Mozart a greater composer than Beethoven.Id. at 133. The problem is that the Dwork gives no reason--and thus no "objectivity" or provable "truth"--for thinking that Mozart is really greater than Ludwig van B. Charles M. Schulz's "Schroeder" certainly wouldn't think Wolfgang beats Ludwig. And the European Union's anthem is part of Beethoven's Ninth Symphony, not anything by Mr. Amadeus. Thus, Roberts beats Ronald for this round, since Roberts shows admirably neutral "judicial restraint" instead of injecting his own personal biases into the musical judgment as Dworkin did. So, Prince has his place in Supreme Court history, as careful examination shows. (Printz, i.e., Printz v. United States, is another matter entirely, of course.....) II. Prince's Piquant Politics By contrast, Mr. P's legacy in politics may be less "neutral" than his Supreme Court one: see, e.g., Joi-Marie McKenzie, Prince's Lyrics Gave Clues to His Personal Politics,
"Baltimore" Prince released this tribute last year and performed it at a benefit concert in Baltimore after the death of Freddie Gray. In the song, Prince croons: "Does anybody hear us pray/For Michael Brown or Freddie Gray? ... Are we gonna see another bloody day?/We're tired of the cryin' and people dyin'/Let's take all the guns away." "Ronnie, Talk to Russia" In this 1981 song from Prince's aptly-named album, "Controversy," the singer was speaking directly to President Ronald Reagan, even referencing him by name. It was a time when the U.S. was in the midst of the Cold War. He sang, "Ronnie talk to Russia before it's too late/Before it's too late ... Ronnie talk to Russia before it’s too late/Before they blow up the world." [etc.]Id. So, Prince may not only be an inspiration (of sorts) to Reagan's aide John Roberts, he may have inspired Reagan himself to play nicely with Mikhail Gorbachev and end the Cold War in Eastern Europe. (?) This, and Prince's words on Michael Brown and Freddie Gray supra, doesn't necessarily make Prince a "red", though it may show his politics to be "redder" (more left-of-center) than the politics of, say, Trump-endorser Kid Rock. III. The "Mauve Minnesotan": the Court's "Minnesota Twins", and the "Prince Protection Act" Getting back to the Supreme Court: since the purple Prince was also the "Mauve Minnesotan", we should recall, since this is Memorial Day, the "Minnesota Twins" of the Court, i.e., Chief Justice Warren Burger and Justice Harry Blackmun. While they were both Minnesotan, Blackmun became more liberal during his tenure on the Court, so that he was a little less of a "twin" at that point. When will the next Minnesotan pop up on the Court?? --And speaking of Minnesota, one should briefly mention the "Prince Protection Act", see, e.g., Jennifer Williams-Alvarez, After Backlash, Law to Protect Prince’s ‘Likeness’ Tabled–For Now,
In the wake of Prince’s death, two lawmakers in Minnesota proposed a bill to codify publicity rights and protect those rights after a person dies. The Personal Rights in Names Can Endure Act, otherwise known as the PRINCE Act, attracted a lot of naysayers due to its broad wording. And such criticism has apparently been heard, as the bill has been pulled from consideration for the time being. . . .Id. Everyone loves Prince, but using his death to torpedo the First Amendment may be counterproductive. IV. What Prince's Civility Could Teach the Supreme Court Commentariat Torpedoing anything can be counterproductive, actually; so, sensible people must beware of violent behavior, or even excessively nasty speech. Prince was quite a verbal pistol in his early years, but in his later ones, he became quite the teetotaler in terms of language: see, e.g., Jeff Nelson & Maria Mercedes Lara, Devoted Jehovah's Witness Prince Kept a Swear Jar at Paisley Park: 'He Wasn't Joking,' Says Congregation Member,
"If you swore at Paisley Park, he would charge you between 10 and 3 dollars per swear word," said [James] Lundstrom, who belonged to the same congregation as Prince and had known the musician for years. "And he wasn't joking. You had to pay in cash in the bucket.["]Id. Thus, Prince might be a good role model in this era of highly uncivil Supreme Court punditry. For example, Mark Tushnet's recent Abandoning Defensive Crouch Liberal Constitutionalism says, inter alia,
6 Finally (trigger/crudeness alert), fck Anthony Kennedy.Id. (brackets not in original) Tushnet would be ponying up some dollars if he were in Judge Prince's court. (Another recent "Balkinization" article, Sanford Levinson's Is Sanders stupid or simply a coward?, may not have any dirty words, but has a similar civility problem, in its inflammatory Bernie-bashing title.) Politically to the right of the two left-of-center pundits above, we see Ilya Shapiro (and Randy Barnett) opening a can of whoop on John Roberts for his NFIB v. Sebelius decision, but maybe going too far, as Orin Kerr notes in The rise of Donald Trump and the politics of delegitimization, including quotes from Shapiro,
3) Because the Court upheld Obamacare despite recognizing it was unconstitutional, the Court ruled in a “wholly extra-legal way” that was a “sucker punch” to the constitution-loving Republican base. This understandably “increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.” . . . . . . . Shapiro’s argument relies on what I’ll call the politics of delegitimization. When someone does something you don’t want, you say they acted for improper and corrupt reasons. . . . But in the long run, the strategy backfired because Trump coopted it. I think that unexpected backfiring is at least one cause of Trump’s popularity.Id. Again, even if there's no foul language from Shapiro or Barnett, their idea that John Roberts is a dirty cheater or such, is not terribly civil. What hope is there for American civilization if even well-known academics in the "top Supreme Court commentariat" are needlessly uncivil? Prince's aspirational lyrics from Purple Rain, "I never meant to cause you any sorrow/I never meant to cause you any pain", id., may be a good guide as to how Supreme Court pundits should civilly conduct themselves. It's not a crime to be decent or civil. V. Conclusion: Judging Prince Aside from the "swear jar", Prince may not have been a very legalistic or trammeled figure; cf. President Obama's eulogy for Prince, which notes, "'A strong spirit transcends rules,' Prince once said", id. So Prince was just a little bit antinomian. On the other hand, he had a serious side, and was concerned about "judgment", see, e.g., 1999,
I was dreamin' when I wrote this, forgive me if it goes astray But when I woke up this mornin', could've sworn it was judgment dayId. And his conversion to Jehovah's Witness-dom may have further accentuated his apocalyptic mentality, leading to his "cleaning up his act before it's too late", as with the "swear jar" noted supra. None of us is in a position to give a final judgment on Prince--only Jehovah, the final "Supreme Court of the Universe", as some say, may be fit to do that--; but one hopes that wherever Prince is now, his helping John Roberts seek disinterestedness, his late-life love of civility, and anything else good about him, will be counted in his favor. The mere fact that some guy from Minnesota with a falsetto, a guitar, ruffles, eyeliner, and high heels (as opposed to pompous law professors or BigLaw lawyers, folks who probably don't have falsetto-guitar-ruffles-eyeliner-heels) could contribute anything positive to this nation's learned and legalistic discourse, reminds us that democracy and equality are not a dead letter after all, that free speech has unexpected side benefits, and that government "by the people" still lives this Memorial Day.
(To be cross-posted, with edits, to Casetext)
Saturday, May 28, 2016
Saints Rita of Cascia, Gregory VII, Bede the Venerable, Madeleine Sophie Barat, Mary Magdalene de' Pazzi, Philip Neri, Augustine of Canterbury, and Mary Ann of Jesus of Paredes, and Blessed Joachima, Oscar Arnulfo Romero, and Pierre Toussaint, please pray for us.
Friday, May 27, 2016
Saturday, May 21, 2016
Friday, May 20, 2016
Monday, May 16, 2016
Saturday, May 14, 2016
Friday, May 13, 2016
Saturday, May 7, 2016
Friday, May 6, 2016
Saturday, April 30, 2016
Saints Fidelis of Sigmaringen, Mark, Pedro de San José Betancur, Simeon, Zita of Lucca, Peter Chanel, Gianna Beretta Molla, Louis Mary Grignion de Montfort, Catherine of Siena, Ludovico of Casoria, Pius V, and Joseph Benedict Cottolengo, please pray for us.
Friday, April 29, 2016
Saturday, April 23, 2016
Friday, April 22, 2016
The problem with a tribute to the funkiness of Prince Rogers Nelson is, what video do you show? His entire catalogue? Is there some song of his that lacks the funk?? ?
So, as a tiebreaker, one should probably choose a song of his with "funk" in the title, like "Funknroll": Funk it up!
So, as a tiebreaker, one should probably choose a song of his with "funk" in the title, like "Funknroll": Funk it up!
Saturday, April 16, 2016
Friday, April 15, 2016
Saturday, April 9, 2016
Friday, April 8, 2016
Thursday, April 7, 2016
Reasonable “Nun Payment” in Zubik v. Burwell; or, How Nuns and the “Shabbas Gov’t” Can Meet Everyone’s Needs
I. Zubik’s “New Order” and Its Problems The present author had considered writing an article on how the Zubik v. Burwell oral argument divided on some unimaginative or stereotypical lines: the four aging observant-Catholic males on one side; and three women (some of them youngish), three likely secularists, and one not-necessarily-observant Catholic, on the other side. Then the unexpected March 29 Order came along, and things seemed interesting again. The Order tries to reach a “compromise” between both sides, but one way it fails is in not accounting for Petitioners’ desire not even to contract with insurers providing contraceptives to Petitioners’ female employees or students. This is understandable, especially in light of, e.g., activists’ attempts to get schools or other institutions to divest from apartheid South Africa in the 1980’s, and from fossil-fuel companies at present. Sometimes people feel morally defiled by even contracting with perceived evildoers, even if one oneself is not distributing contraceptives or practicing apartheid. Also, re the ideas in the new Order, see id., insurers would be still seemingly be using information garnered from Petitioners’ employees and insurance plan, in order to distribute the contraceptives. Petitioners dislike this, and so might some insurers who themselves may be religious and unwilling to distribute contraceptives. But how could the employees be identified and served, without that information? What is needed is not for the particular insurers of Petitioners to distribute contraceptives. All that is needed is for somebody to take the vital identifying information (and relevant medical information, e.g., employee Jane Jones has a fatal allergy to Contraceptive X and needs an alternative) and provide care, even if the somebody is not Petitioners’ own insurers. II. Keeping Employees in the Loop, Not a Noose: or, Looking Critically at the Government’s Contraceptive “Nudge” Part of the “care”, by the way, is not only the actual contraceptives, but keeping the employees informed about how to get them as part of an easy, “seamless” experience, which includes continuing information on contraceptive issues, such as medical updates. The Government puts this in a somewhat creepy way, by citing a conformist-sounding “nudge” as a reason for the “seamless coverage”:
[S]ee generally Richard H. Thaler & Cass R. Sunstein, Nudge 7-8 (2008) (observing that modern social science demonstrates that “people have a strong tendency to go along with the status quo or default option”).Zubik U.S. Merits Br. at 75 . That is, the Government believes that putting the women into the habit of easily attaining contraceptives will be good for both women and the public; however, this sounds a little bit like “Pavlovian conditioning”. Cf., e.g., Zager and Evans, In the Year 2525: “…In the year 3535…./Everything you think, do and say/Is in the pill you took today…./In the year 6565/You won’t need no husband, won’t need no wife/You’ll pick your son, pick your daughter too/From the bottom of a long glass tube”. Id. However, even if the “nudging” seems creepy, it is true that the women may still want to receive the information, even if they decide not to contracept. This is one problem with Edward Zelinsky’s suggestion that Petitioners provide HSA’s or HRA’s to the employees instead of contraceptives. The HSA/HRA would provide the money, so that employees could buy the contraceptive (or something else), and Petitioners would be untainted. But the informational web (hopefully just keeping women in the loop, not being a noose of conformist pressure to contracept) by which the Government keeps women informed of their contraceptive options, and the ease of not having to sign up for a new contraceptive program, are not fulfilled by the HSA/HRA solution on its own. (Or by similar solutions, such as just paying female employees enough extra wages straight-up, say, enough to buy an IUD in the first year of employment, then a smaller wage increase for subsequent years.) III. The Government as “Shabbas Goy” in Zubik: Contacting Employees, Providing Care, and Fining Petitioners for the Amount Incurred Thus, an optimal solution might be for the Government to handle everything, but not to foist the cost onto the taxpayer, but onto the Petitioners themselves. The Government handling everything resembles the Jewish concept of the “shabbas goy”, i.e., a Gentile who does certain tasks for Jews on the Sabbath, when those tasks are forbidden to Jews. The Zubik respondents-side amicus brief by Norman Dorsen et al. mentions the “shabbas goy” concept, id. at 30 & n.14, 31 (as “Shabbos goy”); and the present author has long had similar ideas re the Hobby Lobby and Zubik cases. That is, the Government would garner the relevant information from Petitioners or their insurers, or some other source that might have it. This might be done in various forms, e.g., in a compulsory fashion, say, a lawsuit or other legal claim for the information, maybe in the form of a sex-discrimination claim re Petitioners’ depriving their female employees of medical care. (In the course of lower-court litigation, Petitioners had to reveal various information they might not have without being in litigation.) By the way, if a female employee opposes contraception, perhaps she should have the right to opt out of providing her personal information, so that the Government will not bother her further with unwanted “nudges” about contraception. After having obtained the information—which may constitute the “settlement” of a suit—, the Government would use it to contact the women and set up information channels to them. The Government, not Petitioners’ insurers, would also provide the contraceptives to those employees who wanted them, whether by “tweaking” Title X or otherwise. And Petitioners would be fined for whatever all this work by the Government cost. (If the Government wanted to fine somewhat lower, they could; but the upper cap on the fine would be the cost of the work the Government did to give women information and contraceptives.) This idea would solve all the problems in Zubik, basically: Petitioners or their insurers would not provide contraceptives, or willingly give up information about the female employees/students (Petitioners/insurers could claim the information was gotten elsewhere, or forced out of them by the Government), nor contract with any private contraceptive provider; female employees would get contraceptive information and contraceptives (except those who did not want them); and taxpayers would not pay anything, as Petitioners would be fined in the amount that the Government’s efforts cost. (And such a fine may be far smaller than a “substantial burden” that would trigger RFRA in the first place.) Too, there could be variations of this which interface with proposals like the “HSA/HRA” option, or the “higher wages” option. E.g., the Government would get the employees’ information, and keep them in the contraceptive-informational loop; but the HSA, HRA, or higher wages would let the employees purchase contraceptives themselves, using the Government-sent information. If the procedures just outlined may seem “convoluted”, they may be no more so than religious Jews having Gentiles perform certain tasks for them on the Sabbath. Religious people may have high standards to fulfill, and fulfilling them may take some effort. IV. “Nun Payment”, Not Non-Payment, by Zubik Petitioners But another angle on religion is that, as the current “Best Picture” film Spotlight stridently notes, religious people are worldly and human indeed. There are nuns like Mother Teresa, and then there are nuns like recently-infamous Pennsylvania nun and shoplifter Sister Agnes Pennino. Nuns being imperfect, then, perhaps the signs nuns carried outside the Zubik oral argument re the HHS mandate, saying “I’ll Have Nun of It”, could just as easily have been carried by their female employees, saying that they’d have “nun” of being denied their contraceptives. So, nunnery and punnery aside: if the Court goes beyond even what is in its recent Order, and, as per the present essay, more fully recognizes the humanity of both the nuns and their secular sisters, their female employees, a close-to-ideal balance of religious freedom and freedom from religious oppression can be reached. The nuns seek total non-payment of legal penalties; but instead, maybe nuns’ payments, in a moderate, Court-mandated degree, to the employees they may damage, or to the Government helping those employees—along with the Government's keeping those women informed about their contraceptive options—, are the road to salvation in Zubik. (Cross-posted, with edits, from Casetext)