Archive for the ‘Law’ Category

It’s been a busy day for the Establishment Clause of the First Amendment. The U.S. Supreme Court’s jurisprudence on separating church and state is long and, in many cases, self-contradictory and even incoherent. But despite all that fog, there are a few solid ideas that emerge.

The Washington Post reports that the U.S. Supreme Court has agreed to hear the case of a Colorado baker who refused to bake a wedding cake for a same-sex couple’s wedding reception, claiming that to do so violated his constitutional right to religious liberty. Masterpiece v. Colorado Civil Rights Commission. The actual decision is probably a year away, but it will be interesting to hear what Gorsuch has to say.

As some ancient sage said, predictions are always dangerous, especially when they involve the future. But here goes. My prediction is that the case will go against the baker.

Were I to walk into a kosher deli and order a cheeseburger, the deli owner would almost certainly not serve me because they serve only food that complies with their religious rules.

But there’s a world of difference between not serving someone because the dish they’re asking for is against your religious principles (and therefore not even on the menu), and not serving someone a dish that is on the menu because that person’s existence or nature is against your religious principles. To call that an exercise of your own “religious liberty” is Orwellian. If that’s religious liberty, then it’s a very short step for a restaurant run by neo-Nazi skinheads (assuming one existed, and, if it did, it could stay in business for more than a week) could refuse to serve anyone who doesn’t meet their definition of Aryan.

Today as well, in the Trinity Lutheran case, the U.S. Supreme Court ruled that taxpayer-funded grants for playgrounds available to nonprofits under a state program could not be denied to a school run by a church. Though the commentariat sees this as shattering the separation between church and state, I don’t. In 1971, the Court decided Lemon v. Kurtzman, which set forth a 3-point test for such statutes: there must a secular purpose behind the statute; the statute’s primary effect must be one that neither promotes nor inhibits religion; and the statute must not foster “excessive government entanglement with religion.” Trinity Lutheran involved public funds used to re-pave playgrounds with rubberized material that’s easier on the knees than asphalt or cement. Before someone sounds alarm bells about Trinity Lutheran, they should first explain why it does not fit fairly within the Lemon v Kurtzman criteria.



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U.S. Supreme Court Justice Ruth B. Ginsburg

U.S. Supreme Court Justice Ruth B. Ginsburg

As Mark Stern at Slate writes, “Justice Ruth Bader Ginsburg has decided to take a stand against a major party’s presidential candidate in a way that she—and arguably no prior justice—has ever done before.”

Apart from any principle as to what sitting judges should or should not say or do, the reason one doesn’t wrestle with a pig is that you get really dirty and, besides, the pig likes it.

Then again, anyone fortunate enough to reach her age and still be working a full-time job arguably has earned certain privileges, among them the right to make those comments.

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Oscar "Blade Runner" Pistorius

Oscar “Blade Runner” Pistorius

A South African court is about to hear testimony from the last witness in the sentencing phase of the murder trial of “Blade Runner” Oscar Pistorius, the athlete who has used leg prostheses in order to compete as a runner. He was convicted about two years ago for one category of homicide, but the trial verdict was overruled and he was found guilty of murder. His sentencing on this more serious charge is pending.

The case has been an international sensation not only because of Pistorius unique position in the athletic world, but also because the victim, his girlfriend, Reeva Steenkamp, was a beautiful and celebrated fashion model. The case could have been tailor-made for the tabloids and will undoubtedly give rise to a few docu-dramas in the near-term. From a legal perspective the case presents a number of interesting issues completely apart from any criminal laws and evidentiary rules specific to South Africa.

Briefly, Pistorius claims that he believed his apartment had been broken into by an intruder who, he allegedly believed, was hiding in the bathroom. Sleeping with a gun under your pillow is apparently commonplace in South Africa, but put that to one side. He claims that he went down the hall from his bedroom, and before he fired through the door at the as-yet-unseen intruder, he yelled out, allegedly at the top of his voice, to Reeva Steenkamp to get out and to call the police. Then Pistorius fired four shots from his 9 mm handgun through the door.

When he opened the door, Reeva’s bullet-torn body was on the floor of the bathroom.

Pistorius’ story of what happened that night does not make sense. First, Pistorius could only have suspected that the alleged intruder was in the bathroom, and he claims he believed that Reeva was still in bed. But he also claims that he was yelling at the top of his voice. He’s a very good runner, so he must have a rather strong set of lungs, and if someone like that tries to shout I’m sure he can do it rather loudly. He says Reeva never responded. Why not? When someone yells at the top of his voice for you, “What?” or “I’m in here,” or something of that sort is a typical response. When he pulled his gun out from beneath his pillow, why didn’t he notice that Reeva was not on the other side of the bed? Even in the dark (or relative dark), that’s not that hard. And if his adrenaline was going strong at the thought of an intruder, wouldn’t he at least check to make sure she was safe, or at least make sure where she was?

Why didn’t he even shout out “Who’s in there?” since he hadn’t actually seen the intruder before he started shooting? Why did he fire four shots, instead of one?

Then things get even weirder. Four witnesses at the trial, neighbors of Pistorius in the apartment building, all testified that they distinctly heard a woman’s voice, and each of them testified not only that this woman’s voice was “screaming hysterically,” but also that it preceded the firing of the gunshots. A key to Pistorius’ defense is that the screams were his after he realized what he’d done.

Not credible. To defend himself, Pistorius had to claim that when he’s stressed, his voice goes from that of the manly man he is most of the time, to that of a woman.

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September 11, 2001: Former Vice Pres. Dick Cheney Watches WTC Burn During the "We Kept You Safe" Period.

September 11, 2001: Former Vice Pres. Dick Cheney kicks back to watch the WTC burn during the period in which the Bush Administration “Kept Us Safe.”

Leave it to Dick Cheney to find a way to kill two birds with one stone. (That doesn’t mean you should go bird hunting with Cheney, though. Some people who have done that have literally lost face.)

During the Republican debate this past weekend, The Donald once again hit Dubbya  (and Jeb! too) (!) on the Right Wing’s bogus claim that Dubbya “kept us safe.” Trump correctly pointed out that the World Trade Center towers (as well as a few thousand people caught inside) were destroyed during W’s reign. That August 6, 2001 President’s Daily Briefing to Dubbya with the re line “Bin Ladin Determined to Strike in U.S.” just won’t go away.

Here’s Cheney responding to Trump’s criticism of the Bush Administration:

The other areas, for example, if you look at what we did in the aftermath of 9/11, we did in fact keep the nation safe for seven and a half years. The president put in place important programs, terrorist surveillance program, enhanced interrogation techniques. All of those things gave us the information that we needed to act. And we had the tremendous support of the American military. They did a superb job. So for Mr. Trump to suggest that just, in my mind, is way off base. He clearly doesn’t understand or has not spent any time learning the facts about that period. 

See, when you talk about keeping the United States safe, you only count seven and a half years out of eight. The first six months don’t count in Cheneyland.

And here’s the second bird: Cheney’s logic also works when a right wing justice on the Supreme Court dies and you don’t want a Democratic president to name a successor. The first half year of a president’s term doesn’t count, even if our country experiences the worst terrorist attack in its history on our own home soil. And under the same Cheney logic, the last half year doesn’t count, so Obama shouldn’t get to nominate a Supreme Court justice.

See how evenly that works out? Better than a pair of bookends. Here’s a little jingle a la William Blake to help us keep this in mind:

Cheney, Cheney burning bright

In the Beltways of the night

Oh, what pundit’s hand or eye

Could frame thy fearful symmetry?


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The late Justice Antonin Scalia

The late Justice Antonin Scalia

Scalia was the leading proponent of what he termed “textual originalism” in constitutional cases. By this he meant to convince the world that, as a judge, he was merely a passive cypher or conduit for the original intent of the Framers. If a judge had to interpret something in the Constitution, he or she should embrace a strict dictionary definition and not try to divine what Madison, Hamilton and the rest may have had in mind but for whatever reason didn’t write into the document. If the Framers wanted the Constitution to mean something, they should have said so. Scalia and the so-called originalists claim that theirs is the only “objective” way of reading the Constitution. Moreover, the dictionary you go by should be contemporaneous with the part of the Constitution you’re working on. Thus, under Scalia’s approach, you’ll need the 1789 version of Webster’s (or its equivalent, if Webster wasn’t born yet). Likewise, grab hold of  the 1866 version for the post-Civil War amendments, and so on.

Originalism is a complete canard. Neither Scalia nor any of the remaining four right wing jurists now on that bench genuinely believe that “originalism” somehow limits their ability to construe the Constitution. To the contrary, they depart from “originalism” at will, and then try to bend it backwards to explain their result-oriented decisions.

The most insightful disassembly of Scalia’s sham originalism is Posner’s article, The Incoherence of Antonin Scalia, For example, Posner cites a case in which Scalia voted to hold unconstitutional a federal law making the burning of the American flag unlawful. But as Posner points out, the First Amendment guarantees freedom of speech. Speech in 1789, meant speech, talk, tongue-wagging. No mention is made of non-verbal “speech,” and under Scalia’s announced principles, if the Framers meant to protect non-verbal speech they should have said so. Posner goes on to completely destroy the notion of “originalism” in reference to the landmark case of Brown v. Board of Education, for which no textual support exists in the Constitution.

Wayne LaPierre and the gun lobby would be quite surprised if Scalia’s textual orginalism were applied to the Second Amendment. By “arms” the Framers could only have understood the type of gun used by Leonardo DeCaprio in his new early wilderness flick, Revenant: muzzle-loading, black powder affairs that could fire one shot. Not only that, but once you pull the trigger on one of those babies, it takes another half-second or so before the bullet actually blasts out of the muzzle. Compared to modern guns, that’s an eternity. Then you have to put the damn thing down and reload it.

If Scalia really believed his own nonsense, perhaps we would have no controversies about assault rifles and high-capacity magazines. Such things were unknown to the Framers, and accordingly there would be no constitutional right to own them. There’s an advantage in that, though. If textual originalists meant what they said, nut-cases like Jared Lee Loughner would probably have caused far fewer fatalities.

But consistency is merely the hobgoblin of non-originalist minds.

Perhaps now Scalia and originalism can take their rightful place, right next to Derrida and deconstructionism, in the Encyclopedia of Piffle.

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Emmanuel, Rahm

When a dashcam of po-lice brutality
Displayed clear CPD typicality
The cops said, with aplomb,
And with backup from Rahm,
The cop acted with pro-portionality

Rahm said “Bad, but not institutional.”
Yet his “Sorry!” was circumlocutional:
“It is quite a pity,
“But don’t blame the City;
“Sixteen shots are quite constitutional.”

But the dashcam proved too big a bombshell.
And the masses thronged Casa Emanu-el,
Shouting “Rahm, read our lip!
Ist kaput* Mayorship!”
“So pack up and leave office pellmell!”

But Rahm had another design,
For blame to fast reassign.
“If you crawl back in your beds,
“I’ll call in the Feds,
“But don’t pressure me to resign!”

[Kaput, Ger. for utterly finished, destroyed.]

If you care to add a stanza, please feel free to comment.

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Former Massey Energy Co. CEO Don Blankenship

Former Massey Energy Co. CEO Don Blankenship

Huffington Post has a blog entry on Massey Coal that’s worth reading:

Justice — of sorts — was finally delivered as Donald Blankenship, the former Chairman and CEO of Massey Energy, was convicted (with a maximum fine of $250,000 and up to one year in prison) of conspiring to willfully violate mine safety standards at the Upper Branch Mine in West Virginia, where 29 workers died in April 2010. Here’s a blog I wrote about it a few months after the disaster.

Huffington makes the point that the Upper Big Branch mine explosion is much like the 2008 financial crisis because they both have the same root cause: elected officials who should have been creating a regulatory system that protects workers (or investors, or the public) instead created a system whose first priority is to protect the corporations it was meant to watch over.

Read the full Huff Post entry here.

It’s also the same as the BP Deepwater Horizon, whose regulator was the Minerals Management System, or MMS. The MMS was a bureau within the U.S. Department of the Interior (DOI):

MMS’s biggest problem was agency capture. In 2008, MMS was caught in a scandal in which the Department of Interior’s inspector general found that regulators had “inappropriate relationships with industry that could compromise their objectivity.” Those inappropriate relationships allegedly included sharing alcohol at industry functions, using drugs, and sexual relationships between regulators and industry professionals. [17] The inspector general also characterized MMS as dependent on industry’s greater expertise with the technology of deepwater and ultra-deepwater drilling, and thus reliant on industry’s judgment of appropriate safeguards to incorporate in regulations.[18] Essentially, the oil industry’s deep pockets gave it strong leverage over MMS decisions.

Yep. MMS was literally in bed with the company it was supposed to regulate. And as they said on the bridge of the Titanic, that’s just the tip of the iceberg.

From: Changing Direction: How Regulatory Agencies Have Responded to the Deepwater Horizon Oil Spill (Part I of II)


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