Supreme Dicta

Deep in the heart of Texas

2009-06-26T12:23:00.003-05:00

By this time next week, I will be a Texas resident. I will be in Austin, not San Antonio, but still this is fantastic.

Grateful hat-tip to Above the Law.

Frito...Lays

2009-06-24T12:54:00.002-05:00

Plus a shout out to Lowell "The Hammer" Stanley...I remember him from late nights watching TV in college.

Visit msnbc.com for Breaking News, World News, and News about the Economy

Why am I getting into academia?

2009-06-16T12:22:00.003-05:00

...when I have to overcome obstacles like this:

A new poll for Fox News is a good indication of how members of the one of the nation's most important institutions operate largely out of the public's consciousness. Asked "Which one of the current U.S. Supreme Court justices do you most admire or agree with?", half of the respondents had no idea. They either did not have an answer to the question or could not name a justice. On the silver lining front, the figure was 68 percent when the question was asked six years ago.

The "winner" in the poll, conducted last week, was Justice Clarence Thomas, perhaps the court's best-known and most controversial member. But he shared the top spot (11 percent) with -- drumroll -- Sandra Day O'Connor, who left the court in 2006.

When a 50% ignorance rate is considered "good news" our democracy officially sucks.

Judge Sotomayor might be the luckiest person alive

2009-06-15T14:43:00.002-05:00

...not just being tapped to sit on the highest court in the land. She's lucky on other counts too. Check out this Chicago Tribue story:

Last Nov. 23 she hit a jackpot in a Florida casino, collecting $8,283 in winnings while gambling with her mother.

Sotomayor listed her winnings in a recently released disclosure form outlining her 2008 finances.

She's a liberal jurist who enjoys gambling and baseball? She's right up my alley, even if she is a Yankees fan. (Though I must admit, if I were born and raised in the Bronx, I would cheer for the Bombers as well.) This should make for a potential tense October on the Court if the Yanks square off against Justice Alito's Phils or Justice Stevens' Cubbies.

I <3 Courtoons

2009-06-12T08:48:00.002-05:00

Another epic courtoon!

One Tough Klutz

2009-06-09T14:42:00.003-05:00

As you may have heard by now, Judge Sonia Sotomayor is in a cast and on crutches after breaking her ankle:

Sotomayor was rushing through the hallways at LaGuardia to catch her flight when she injured her foot. He said she boarded her plane despite the injury and traveled to the Old Executive Office Building next to the White House before determining that she needed treatment.

Wow! She broke her ankle, and still managed to catch her flight and went to the White House?!? I will never doubt the toughness of anyone born and raised in the Bronx. How did her Secret Service detail let her get away with taking such poor care of herself? (I'm assuming that she already has Secret Service protection - does anyone know for sure?)

Apparently, she's not the first injury-prone Democratic nominee for the high court:

In 1993, when [Stephen] Breyer was a federal appeals-court judge in Boston, he had what is certainly the most famous bicycle accident in Supreme Court history. A few days before an interview with President Clinton for the vacancy on the Court created by Byron White's resignation, Breyer crashed while trying to avoid a pedestrian near his home in Cambridge, breaking a rib and puncturing a lung. He was in pain during the meeting with the President, and it didn't go well. Breyer was appointed the following year, after Harry Blackmun retired.

Well it could be worse for the Democrats. These Republicans are much bigger klutzes:

Concering Umpires and Objectivity

2009-06-08T14:24:00.006-05:00

Senate Republicans believe a good Supreme Court justice should behave as if he were a baseball umpire, an analogy first employed by Chief Justice Roberts during his 2005 confirmation hearings. Judge Sotomayor, in the opinion of some Republicans, runs afoul of this principle in her comments that her ethnicity and gender, in some instances, shape her view of the law. Thus, somehow Sotomayor morphs from an umpire into a player in the game.

Sen. John Cornyn criticized Judge Sotomayor on these grounds: "The focus shouldn't be on the umpire and what their sex or gender is, or ethnicity. It ought to be on the game."

This is a flawed analogy for a number of reasons, most importantly because it is a faulty representation of baseball. The New York Times recently ran a great story about Little League umpires, such as Seth Lofton:

One of the biggest challenges for Mr. Lofton, and for any umpire, is navigating the enigma of the strike zone. Although there are specific guidelines, the zone is notoriously elastic and every umpire seems to have a slightly idiosyncratic version.

Mr. Lofton admits to employing a different strike zone for younger players. “If the score is 15-0 in the second inning, you widen the strike zone for one team and narrow it for the other,” said Mr. Lofton, who has a 19-year-old daughter and a 15-year-old son, who plays football, not baseball. “You don’t want them to go home crying.”

Umpires also tend to adapt their role for younger players. They become an instructor as much as a neutral arbiter, telling batters where to stand and pitchers how not to balk. If he called every balk, Mr. Lofton said, “You’d be there all day.”

As you can see, baseball is not always black and white. I can attest to this from personal experience. When I came to the painful realization that I had no talent as a baseball player, I became a Little League umpire. Your inference about interpretation in baseball umpiring is absolutely correct. Every umpire's strike zone varies a little, and the game situation is taken into consideration when calling balls and strikes. I was instructed by my head umpire that my strike zone should be slightly wider when the batter has two strikes against him. He told me this because he thought it was important to teach young kids to be more aggressive when there are two strikes.

In fact, the rules of baseball recognize that umpires often must rely on their own judgment independent of the written text of the rule book.

"Section 9.01 (c) ‐ Each umpire has the authority to rule on any point not specifically covered in these rules."

This rule is in the rule book for both Little League and the Major Leagues. It is used very rarely - in eight seasons of umpiring I only had to invoke this rule once. But I think it is a recognition that umpiring baseball is not as simple as it appears. You can't just a computer program based on the rules of the game and expect a robot to apply the rules with exact precision. There is a gray area that
requires human judgment based on interpretive philosophies.

Let's take a more realistic view of judges and umpires. Otherwise Oliver Wendell Holmes and Bill McGowan will both rise from the graves to eject Sen. Cornyn from the game.

The case for judicial pay raises

2009-06-05T13:31:00.005-05:00

Chief Justice Roberts has advocated for a judicial pay raise since he ascended to the high court in 2005. He has been unsuccessful thus far, but here is a new argument he can make in his case to Congress.

Federal judges deserve a pay raise because they occasionally have to something as inane as this:

[W]hile the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist...So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

Yes, you read that correct. Some freaking nutjob brought suit against Quaker Oats for false advertising in its Cap'n Crunch Crunch Berries cereal. When a trained and accomplished legal professional has to explain in a written opinion that crunch berries do not, in fact, exist, that judge deserves a raise!!!

A grateful hat tip to Lowering the Bar.

Who says justices can't have any fun?

2009-06-04T14:24:00.002-05:00

I just finished reading a fantastically juicy book of Supreme Court gossip, called The Secret Lives of the Supreme Court. It's intellectually worthless, but nonetheless, quite entertaining.

One of the things I learned reading this book is that only one justice has a credit on IMDB (for something other than playing themselves in a documentary). Harry Blackmun had a cameo in Amistad, the 1997 film about the Supreme Court case by the same name. Justice Blackmun played Justice Joseph Story and is featured in the scene where former President John Quincy Adams, played admirably by Anthony Hopkins, pleads with the Court to free a shipload of slaves who had staged a rebellion on the high seas.

At the beginning of this clip you can clearly see Justice Blackmun sitting three from the left:

GOP gender hypocrisy

2009-06-02T12:10:00.002-05:00

Sorry, but I'm just on a cartoon kick this week. (HT to Slate)

Another legal cartoon blog!

2009-06-01T13:00:00.007-05:00

Freackin' awesome! Check out Legal Toast. Visit that site like Chicagoans vote, early and often.

Why you shouldn't piss off the IRS...

2009-05-29T13:30:00.004-05:00

This has to be the most interesting IRS sting operation in its history: a hidden camera set up in a freight elevator, charges filed that could carry 10 years in the slammer, and thousands of dollars of damage inflicted.

What do you think the charge is: tax evasion, racketeering? No way (if it were it wouldn't be on this blog)! Thanks to the good folks over at the Smoking Gun:

A Michigan man was actually named yesterday in a U.S. District Court complaint charging him with urinating in the freight elevator of an Internal Revenue Service building in Detroit.

As a result of his behavior, the IRS had to spend over $4,000 to clean the elevator and the elevator shaft. This upstanding citizen, who was an IRS contractor, was charged with destruction of government property, which is a felony carrying up to ten years in prison. Here's some good news: at least he doesn't have to list himself on a sex offender registry, which is a consequence of being convicted of public urination in several states.

The key to peeing in an IRS elevator is the same one for cheating on your taxes - do it in very small amounts so you don't get caught!

Ambulance Chaser Hall of Fame

2009-05-28T12:47:00.002-05:00

Major kudos to Esquire magazine for compiling a list (including videos) of the worst personal injury television ads of all time.

My personal two favorites are these. Enjoy!

Yankees hold kangaroo court

2009-05-27T15:39:00.004-05:00

From mlb.com:

For two months, Xavier Nady dutifully collected scraps of paper in a shoebox tucked near the back of his locker -- clubhouse infractions reported by his teammates, waiting for the day when the Yankees would call those offenses to trial.

The tone of the hour-plus session -- which also involved clubhouse workers, video coordinators and other support staff -- was light-hearted. For example, Phil Coke's wallet was $30 lighter as a result of the home run he served up to the Twins' Joe Mauer on Friday in New York.

Coke pointed to the drive off the bat, thinking it was a fly ball that could be easily tracked by center fielder Brett Gardner, but the ball carried out and hit the netting over Monument Park. Coke was pointing while running to back up third base and his actions were not overlooked.

"You can get fined for pretty much anything," Coke said.

I wholeheartedly support using the judicial process to adjudicate baseball infractions. And there is no team with more sins to account for than the New York Yankees. Unfortunately, there are many infractions that have yet to be heard by their High Court. Those crimes include:

Building a bandbox of a stadium with winds so powerful, it makes the Great American Ballpark look like Dodger Stadium.
Engaging in monopolistic behavior this offseason spending more on free agents than several teams spend on their entire rosters, combined.
President Reagan's pardon of George Steinbrenner, which makes the Marc Rich pardon look like pardoning Fred Rogers.
Jeffrey FUCKING Maier.
Tim Leary scuffing a baseball with sandpaper against the Orioles in 1992 (I remember that game like it was yesterday).
Forcing baseball fans to read this bullshit headline.

So come on Yankees, do some justice. The rest of the baseball world deserves retribution.

Grand re-re-opening!

2009-05-26T14:30:00.002-05:00

I know I haven't posted much recently. I'm trying to get back in the habit, but unlike most other bloggers, I have a life independent of this URL. Thanks for your patience.

I don't care much for the NBA, but this was too awesome not to post. Cheers! Courtesy of the good folks at Courtoons.

Of Courts and Crucifix

2009-04-13T23:03:00.006-05:00

It's over with, folks. We finally have the last pieces of evidence - a dishwasher, the movie Private Ryan, and speeches by Douglas MacArthur. And, the predicate has been laid for us in a very revealing interview given by the justice himself. It turns out that Clarence Thomas did it with a flag and a crucifix in the den.

The Silent One has spoken.

As Brother Harlan has noted elsewhere, Justice Thomas has talked more to CBS 60 Minutes than from the bench. But, he has explained himself now. And, the only verdict that any reasonable jury can come to is . . . the guy is just depressed. I mean, more depressed than even I thought he was!! I would venture to say more depressed than ANYONE thought he was. He makes Thurgood Marshall look like a happy justice!! (Marshall, of course, was notoriously unhappy on the Court)

Justice Thomas' most recent comments have revealed the true source of his discontent. It is the 14th Amendment. If only Akhil Amar or Garrett Epps had a degree in psychology. Justice Thomas' long, rambling response to a question about "what since the Civil War has changed our view of the Constitution" reveals an inner tension brought about by an irreconcilable collection of values. There is a disconnect among Thomas' concern over too much emphasis on rights, the changing social and cultural norms that got him to the Court, and the intent of the framer of that amendment regarding to what use Congress could put it. I think it is causing him serious mental strain.

And, I gotta say what is it with Republicans and technology? George H.W. Bush was astounded by a grocery store scanner. Now we discover the justice he put on the Court finds dishwashers magical?!! Enjoys loading them and then peering inside during the dry cycle?!!

And, that swipe at those of us who think we can do his job better than he can - “What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ”

Ouch.

I think I'll stop picking on Justice Thomas now. And forever. I see him as a truly . . . clinically depressed character among the men and women who have occupied a seat on that court. There is nothing wrong with his jurisprudence that a little Zoloft couldn't cure. I hope he discovers that for himself.

Lawrence v. Texas Has No Effect in Georgia

2009-04-02T22:05:00.005-05:00

Lawrence v. Texas (2003) changed absolutely nothing in the State of Georgia. This is so because, in 1998, the Supreme Court of the State of Georgia struck down OCGA § 16-6-2(a), a statute crimnalizing all acts of sodomy, as an unconstitutional violation of privacy protections afforded under Georgia's constitution.

In an ironic twist, this was the very same act that the Supreme Court of the United States held constitutional in Bowers v. Hardwick. And, the case, Powell v. State of Georgia, was decided fully five years before the Supreme Court's decision in Lawrence.

Petitioner, Powell, was charged with performing non-consensual oral sex on his wife's 17 year-old daughter. At trial, the jury acquitted him on the non-consensual charge, but found him guilty of consensual sodomy under the statute. He then appealed, basis for appeal being that the act under which he had been found guilty violated the State constitution's privacy guarantees.

The Georgia Supreme Court agreed. Writing for the majority, Justice Lance Cullpepper stated:

"If he'd be one o' dem, ahhhh, . . . funny types wid the limp wrists an all, o' one o' dem switch hittas, den . . . let's jus say dat we be comin' to a very different kinda decision ta day. But he ain't, and we ain't neitha!! We thinks da boy deserve some privacy. Dis is Georgia, folks. We do dat stuff indoors now."

Shortest opinion ever

2009-04-01T12:53:00.002-05:00

J.H. GILLIS, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn't. We couldn't.

Affirmed.

Denny v. Radar Industries, Inc., 184 N.W.2d 289, 290 (Mich. App. 1971)

It's the Ogden Nash of opinions. Excellent.

A very grateful hat-tip to Lowering the Bar.

Quote of the day

2009-03-27T13:44:00.003-05:00

"This is the 'crack' bill, and I think any respectable citizen would be against crack."
- Tennessee Rep. Joe Town (D, Memphis)

No this is not a drug bill. It's a droopy drawers bill, the retarded bill that just won't die.

In case you don't know this bill allows cops to write tickets if they can observe your underwear because your pants are being worn too low. Because in this economy, state government best serve the interests of their people by becoming fashion police. Sweet Jesus.

There are two bills in Tennessee, one Senate and one House. The House bill has made it out of subcommittee.

And why is it that so many of these bills are introduced by Democratic legislators? Aren't we supposed to be the party that is mindful of the First Amendment and skeptical of legislating morality?!?

Retarded state legislation: March Madness Edition

2009-03-18T12:18:00.003-05:00

Here's a gem from the Kansas state Senate:

Kansas Senate tries to keep KU from any more killer B’s

TOPEKA | If the Kansas Senate has its way, the Kansas men’s basketball team will never suffer another postseason loss to a team that begins with the letter “B.”

After Thursday’s loss to Baylor in the Big 12 tournament quarterfinals, the Senate endorsed a resolution to stop the Jayahwks from ever playing another “B” team in March.

The resolution, which is only symbolic, notes that KU has “frequently struggled with teams that begin with the letter ‘B’ in March.”

Therefore, the resolution states, “we declare the team should not play any more teams that begin with the letter ‘B’ in the month of March.”

In 2005, KU lost to Bucknell in the first round of the NCAA Tournament. In 2006, the Jayhawks lost to Bradley in the first round.

The resolution, SCR 1850, passed on a voice vote. In case there’s any question: the resolution has little weight and, unfortunately for KU fans, has no impact on the Jayhawks’ scheduling.

You're the defending national champions! Stop being such wusses. And whiny little wusses at that. If you're so worried about a first-round loss, how about passing a resolution encouraging your team to practice more.

Retarded state legislation: West Virginia edition

2009-03-13T14:15:00.009-05:00

H. B. 2918

(By Delegate Eldridge)

[Introduced March 3, 2009; referred to the Committee on the Judiciary.]

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §47-25-1, to read as follows:

ARTICLE 25. BARBIE DOLLS.

§47-25-1. Unlawful sale of Barbie dolls.

It shall be unlawful in the state to sell "Barbie" dolls and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.

Seriously?!? OK, sure body acceptance issues is a big problem facing our society, but the solution is better parenting not banning Barbie. This equivalent of seeing a roach on your kitchen counter and deciding to kill it using a sledge hammer.

Kids watch too much TV? Ban TV. Kids spent too much time text messaging rather than doing homework? Ban cell phones. Kids eat too much junk food? Ban Twinkies.

I consider myself somewhat of a paternalist, but even I have my limits.

Retarded state legislator: Florida edition

2009-03-12T08:40:00.002-05:00

The Florida Legislature (which might be more accurately called Open-Mic Night at the Improv) is debating a bill to make bestiality a crime. Fifteen other states besides Florida do not have laws against this practice, but that isn't the funny part.

The bill was amended to "target only those who derived or helped others derive 'sexual gratification' from an animal. The amendment specified that conventional dog-judging contests and animal-husbandry practices are permissible."

This last provision was a bit too complicated for Senator Larcenia Bullard (D-Miami) who asked: "People are taking these animals as their husbands? What’s husbandry?"

No this is not Rodney Dangerfield making a cheap one-liner, this is an elected representative of the people of Miami. Sweet Jesus.

The bill sponsor explained what animal husbandry actually means, but Sen. Bullard still didn't quite catch on: "So that maybe have been the reason the lady was so upset about that monkey?" she asked referring to the Connecticut woman whose chimpanzee went mad and was shot by police.

Churchill was right: democracy is the worst form of government, except for all the other ones.

The one bright side of this story is it gives me an excuse to mention Del. Lionel Spruill of the Virginia House of Delegates, who rivals Sen. Bullard in the intelligence department. Last year he introduced a bill prohibiting truck nuts. Confused? I'll let him explain:

Another funny case name

2009-03-11T13:44:00.002-05:00

Funny case names has long been an obsession of Supreme Dicta. We have another member of this fabled fraternity:

U.S. v. Eighteenth Century Peruvian Oil on Canvas Painting 2009 U.S. Dist. LEXIS 10704

The Washington Post describes the case name as "unusual." No, my friends, that is a profound understatement. "Unusual" describes the few cases where Scalia and Thomas vote on opposite sides (last I checked that was only 15%). Case names like these are as rare and as wacky as when Justice Thomas actually asks a question from the Bench (2007 Term: 0 occurances).

As with most of these cases with bizarre names, the actual case is substantially more boring, as is evidenced by the WaPo story. It's a property dispute case involving stolen artwork. Unless it relates to the Da Vinci code, I'm not really interested.

In case you missed it...

2009-03-09T10:43:00.001-05:00

IndecisionAn Indecision Exclusive!

Sandra Day O'Connor Pt. 1

Funny Political Video
Political Games

Joe Biden Jokes
Barack Obama Jokes

The Daily Show With Jon StewartM - Th 11p / 10c

Sandra Day O'Connor Pt. 2

Daily Show Full Episodes
Important Things With Demetri Martin

Political Humor
Joke of the Day

Our constitutional landscape: Inflatable rat has more free speech rights than a religion

2009-02-26T15:33:00.008-05:00

No doubt, many of my atheist readers will think that this is the way things should be, but I think this is absurd. Let's dive in, shall we?

Earlier this month, the New Jersey Supreme Court ruled a ten-foot blow-up rat is a form of free expression entitled to constitutional protection. The rat had been and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

Justice John Wallace Jr. wrote for the court: "The township's elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad." Justice Wallace continued by arguing, "Restrict free speech? Fugetaboutit! No disrespect."

Also in the realm of free speech, yesterday the U.S. Supreme Court handed down Pleasant Grove City v. Summum. The Court ruled a city government in Utah has the right to refuse the donation of a monument from a religious sect called Summum for display in a public park. However, that same public park has displayed a monument with the Ten Commandments for decades.

Read in context with Van Orden v. Perry, which upheld the display of the Ten Commandments in a public space, this ruling that creates a glaring loophole in our Constitution’s First Amendment, a loophole that manages to damage both the freedom of religion and the separation of church and state at the same time. By refusing to give Summum the same recognition as Christianity and Judaism, the Supreme Court has effectively created a hierarchy of religions with Summum near the bottom.

Justice Alito’s majority opinion argues that Summum followers have the right to hand out leaflets in the city park because that is private speech, but the erection of a permanent monument is government speech. If Justice Alito is correct, then the Ten Commandments monument in that same park has received government endorsement.

In 2005, the Supreme Court said that a Ten Commandments monument on the grounds of the Texas Capitol did not violate the Establishment Clause because the Ten Commandments “have an undeniable historical meaning” in addition to its “religious significance.”

That finding is little help to Summum, which was founded in 1975. Just because one religion is too young to have history on its side does not mean that it ought to be treated differently by its government. To do otherwise uses a religion’s age as a proxy for its legitimacy for inclusion in the fabric of American society.

This stunning conclusion by the Court leaves me disturbed both as a believer in the First Amendment, but also as a believer in God. If the Roman government had adopted similar logic in the second century A.D., my faith tradition, Christianity, might never have flourished. Today’s Summum might be tomorrow’s Christianity, and the government has no business meddling in this free and open marketplace of religious ideas.

This case may appear to be a limited-scope Free Speech case, but it smells like a major Establishment Clause and Free Exercise Clause problem. Look at this passage from Justice Souter's concurrance:

"The government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause’s stricture against discriminating among religious sects or groups. Under this view of the relationship between the two doctrines, it would be easy for agovernment to favor some private religious speakers over others by its choice of monuments to accept. Whether that view turns out to be sound is more than I can say at this point."

Whiskey. Tango. Foxtrot? Justice Souter is unwilling to say definitevly that the Establishment Clause means...something. This is a truly troubling statement. It is as if Justice Thomas has hacked into Souter's computer and published a fradulent opinion in Souter's name. Because if Souter endorses that view, his First Amendment views are identical to Thomas'. GULP!

Finally, you want some irony? Summum's lawyers made Jay Sekulow-style arguments concerning public forum jurisprudence. Guess who represented the Utah city before the Court? Jay Sekulow. See he believes in the marketplace of ideas, but only when it benefits conservative Christians or messianic Jews. The rest of our nations religions can go f*&^ off.