In a postscript, Cosell writes that three days after turning in this manuscript in November of 1990, his beloved wife Emmy died suddenly of a heart attack. It is well-known that after that Cosell deteriorated rapidly, becoming a virtual recluse in his last years. This book, then, is the final account of his views on the sports world.
The book is as honest and hard-hitting as his other three books. Big-time college sports comes in for a lot of criticism. I am reminded of a recent quote, when the Ohio State University president was asked if he planned to fire football coach Jim Tressel. The president's response" "I just hope Jim Tressel doesn't fire me!" This, as much as anything, illustrates the "tail wagging the dog" situation which exists in big-time college sports. Cosell is right on the money on this issue.
As usual, he derides the so-called "jockocracy" in sports broadcasting. I was surprised and dismayed to see Tim McCarver come in for heavy criticism. I see Tim as an outstanding baseball broadcaster, one who always makes the game more interesting and points out intricacies which the average fan would miss. However, Cosell says that "Tim McCarver is unbearable. He's got that whiny voice. He talks incessantly about totally irrelevant things."
One wonders if Cosell ever bothered to actually listen to a McCarver broadcast. Also, it is apparent from his prior books that Cosell doesn't really like baseball, hence his inability to appreciate a great baseball announcer. It is said that "baseball is only dull to dull minds", and when it comes to baseball, Cosell's mind was as dull as can be.
Cosell deals with drugs, sexual misconduct, gambling, and other negative aspects of modern-day sports. These are all flimsy straw men, representing actions which no reasonable person would condone.
Cosell does offer pertinent comments about the NFL, an organization which he grew to detest in his later years. He documents how the NFL has lost anti-trust cases every time it has gone to trial, beginning in the 1950's with the Bill Radovich case. Later cases lost by the NFL include suits by Joe Kapp (1974), Cullen Bryant (1975), John Mackey, Ron Alexander, and James McCoy Smith. Th fact is that the NFL has been in gross violation of anti-trust laws for decades, and nobody but Cosell has had the courage to speak out against this. For this he deserves great credit.
It is certainly well-known that in his later years Cosell soured on both of his favorite sports, boxing and football. Yet, I was surprised to see him say that the only sport he misses is horse racing. He states that "racing is an honest sport", and that the greatest athlete in his time was Secretariat.
One wonders what Cosell's comments about horse racing would be today, following the harsh remarks made by California Chrome's owner after his horse's defeat in the Belmont. The owner called the other owners "cowards" and "cheaters" and, based on my following of the Triple Crown races for many years, I would have to say that the failure of any horse to win the Triple Crown since 1978, after twelve horses have gone into the Belmont with a chance, shows pretty clearly that the deck is stacked against any Triple Crown winner ever again appearing. For horses to run three grueling races in a five-week span can fairly be called animal abuse, in my humble opinion. And Chrome's owner is correct in saying that it is unfair for horses to sit out other races and then sabotage a potential Triple Crown winner in the last race.
There is not much really new in this book, other than comments on recent (pre-1991) events such as the Pete Rose banishment from baseball, and the Dave Winfield/George Steinbrenner fiasco. And on these issues Cosell has an obvious bias, one he really does not attempt to disguise, because of his friendships with Bart Giamatti and George Steinbrenner. Because most of this book is a rehash of his other books, I can only give it three stars out of five. However, if the reader doesn't know much about Cosell and wants to read one book to learn what he was all about, this book would not be a bad choice.
4/6/17 update. I recently reread this book and have some fresh thoughts. It is interesting how often Cosell comments on Donald Trump's involvement in sports. Cosell says that it was Trump who was mainly responsible for the USFL "losing" its antitrust case to the NFL ("losing" in the sense that the damages were set at only one dollar). He says it was obvious Trump was angling for an NFL franchise, and his involvement in the USFL was only a means to that end. However, the NFL was never going to let him in, and MLB was especially never going to let him in, due to his heavy involvement with gambling.
Trump's involvement with the sleazier side of boxing is also documented. All in all, Trump comes across as a really bad actor, and it is remarkable that the US has elected him its president, when the major sports leagues all had the good sense to keep him out!
To the extent that this book is an improvement on his other books, it is because Cosell, the ex-lawyer, comments intelligently on legal issues like the NFL's monopoly, and Pete Rose's involvement with gambling. Indeed, Cosell's testimony is said to have been the high point of the USFL's ant-trust trial against the NFL.
Monday, June 9, 2014
Tuesday, June 3, 2014
"Endless Summers: The Fall and Rise of the Cleveland Indians," by Jack Torry
As someone who followed the Cleveland Indians growing up in the 1950's, I found this book fascinating. The sportswriters of that era were uniform in their condemnation of GM Hank Greenberg, and now I understand why. Greenberg did not like the press, refused to socialize with them, and as a result the press disliked him as well.
Torry documents that the actual situation is that Greenberg was a great GM, someone who built up the farm system and scouting department, and therefore had the Indians well-positioned for future success. Tragically, he was fired in 1957, and what followed was a 30-year period of poor teams and poor attendance, coupled with never-ending talk of moving the franchise to greener pastures.
As attendance fell, the owners continued to cut back on player development, creating a vicious cycle in which success was impossible. Simply put, the owners couldn't or wouldn't pony up the funds to cover the losses during those years, so they engaged in a series of self-defeating cost-cutting measures.
Things didn't turn around for the Indians until Dick Jacobs bought the team in 1986. Jacobs planned for the future, brought in able people to run the front office, and by 1994 the Indians had a high-quality team playing in a wonderful new stadium. Jacobs actually planned for losses in the first few years, understanding that those losses were a necessary step toward getting the team back on a solid footing.
The lesson of this book is, don't sacrifice the long-term health of your organization for short-term considerations. As voters we should take notice of this syndrome as well; i.e., don't vote for candidates who are willing to sacrifice the long-term health of the country for short-term political gain in the next election.
Torry documents that the actual situation is that Greenberg was a great GM, someone who built up the farm system and scouting department, and therefore had the Indians well-positioned for future success. Tragically, he was fired in 1957, and what followed was a 30-year period of poor teams and poor attendance, coupled with never-ending talk of moving the franchise to greener pastures.
As attendance fell, the owners continued to cut back on player development, creating a vicious cycle in which success was impossible. Simply put, the owners couldn't or wouldn't pony up the funds to cover the losses during those years, so they engaged in a series of self-defeating cost-cutting measures.
Things didn't turn around for the Indians until Dick Jacobs bought the team in 1986. Jacobs planned for the future, brought in able people to run the front office, and by 1994 the Indians had a high-quality team playing in a wonderful new stadium. Jacobs actually planned for losses in the first few years, understanding that those losses were a necessary step toward getting the team back on a solid footing.
The lesson of this book is, don't sacrifice the long-term health of your organization for short-term considerations. As voters we should take notice of this syndrome as well; i.e., don't vote for candidates who are willing to sacrifice the long-term health of the country for short-term political gain in the next election.
The Mississippi Senate Race
Clips this morning from both candidates in the Republican Senate primary in Mississippi showed the state of the campaign as the voting commenced today. The challenger seemed fresh and sincere, talking without notes, while the incumbent, Thad Cochran, had to read from notes written by an aide, and looked old and decrepit.
The main issue, if the lamestream media is to be believed, is the use of a video by some supporters of the challenger. The video showed Cochran's wife in a nursing home. The challenger has disavowed any connection between his campaign and those who publicized the video.
This raises a fundamental question. Why is true information considered so toxic? We have politicians who regularly lie to us, not to mention the politicians who engage in dirty tricks (think of Nixon using the CIA, FBI, and IRS to persecute his perceived political "enemies").
I can't help but think of the 1988 presidential campaign, when Michael Dukakis was forced to fire his campaign manager for disseminating true information. The true information was a tape of British Labour leader Neil Kinnock, giving the same speech that Joe Biden had plagiarized from him in a recent campaign speech. It was entirely true information, so what was the problem? The campaign manager was forced to resign, and Dukakis's campaign went into the toilet, never to recover.
What, then, is the big problem of releasing true information? The Mississippi race is said to be dead-even, but my hope is that Cochran's actions in trying to deflect from the real issues and make the tape of his wife an issue will backfire and we will get fresh blood in the Senate. God knows we need it.
The main issue, if the lamestream media is to be believed, is the use of a video by some supporters of the challenger. The video showed Cochran's wife in a nursing home. The challenger has disavowed any connection between his campaign and those who publicized the video.
This raises a fundamental question. Why is true information considered so toxic? We have politicians who regularly lie to us, not to mention the politicians who engage in dirty tricks (think of Nixon using the CIA, FBI, and IRS to persecute his perceived political "enemies").
I can't help but think of the 1988 presidential campaign, when Michael Dukakis was forced to fire his campaign manager for disseminating true information. The true information was a tape of British Labour leader Neil Kinnock, giving the same speech that Joe Biden had plagiarized from him in a recent campaign speech. It was entirely true information, so what was the problem? The campaign manager was forced to resign, and Dukakis's campaign went into the toilet, never to recover.
What, then, is the big problem of releasing true information? The Mississippi race is said to be dead-even, but my hope is that Cochran's actions in trying to deflect from the real issues and make the tape of his wife an issue will backfire and we will get fresh blood in the Senate. God knows we need it.
Friday, May 30, 2014
Letter to Mennonite Weekly Review
I wholeheartedly agree with the
letter from Karl Bartsch in the May 26th issue. This whole idea of
"welcoming but not affirming" strikes me as rhetorical nonsense.
In
the same issue, I note an article on Dale Schrag's commencement speech
at Bethel College. I have often heard Dale say that what Mennonites
believe is that "Jesus meant what he said, and he was talking to us."
Jesus'
whole ministry was about inclusion, not exclusion. My hope and prayer
is that our conference will get back on track with this central message.
Thursday, May 29, 2014
David McCullough's "1776"
McCullough does his usual fine job in describing the activities of the Continental Army during the year of 1776. It was a very difficult year, filled with all sorts of problems for the army.
We think of 1776 as being a year of great achievement for the Continental congress, because of the Declaration of Independence, but in reality the congress failed miserably in providing General Washington with the troops and supplies he needed to wage the war. The British always had much more manpower, and were better equipped. At times some of the US soldiers had to make do without shoes, even engage in long marches without shoes.
Pay for the US troops was often lacking, and desertions happened on an almost daily basis. Disease was also rampant, and Washington usually could not even calculate how many soldiers he had under his command, so fluid was the day-to-day situation with soldiers dropping out due to desertions or disease.
We like to think of "Washington crossing the Delaware" when we think of the progress of the war in 1776. In reality, the war went very badly that year. The British were forced out of Boston, but they took up residence on Long Island, and then took over the entire city of New York when Washington blundered by not defending a particular entranceway into the city.
By giving us a day-by-day account of the struggles of the army, McCullough paints a good picture of what warfare was like in that era. Communication was always by letter, carried by messengers. The vagaries of the weather determined the outcome of many battles.
My personal preference would have been a book which covers the entire Revolutionary War. I would also have preferred a more accurate account of the attitudes toward the war in the British Isles. McCullough says that public opinion in Britain was split almost equally. However, George Trevalyan's great history of what the British called "The American War" documents that the war was quite unpopular in Britain, with at most one-third of the people in Britain supporting it. Parliament was kept in line only by bribes from King George, and by the use of "rotten boroughs". Edmund Burke's passionate speeches against the war are considered some of the best oratory ever seen in the British parliament, and he had many supporters.
It is clear from "1776" that the colonies held together against Britain only because of the perseverance and leadership of George Washington. McCullough states that Washington "was not a brilliant strategist or tactician, not a gifted orator, not an intellectual. At several crucial moments he had shown marked indecisiveness. He had made serious errors in judgment." But despite these shortcomings, Washington persevered and by his example inspired his men to believe in the cause of freedom they were fighting for.
We think of 1776 as being a year of great achievement for the Continental congress, because of the Declaration of Independence, but in reality the congress failed miserably in providing General Washington with the troops and supplies he needed to wage the war. The British always had much more manpower, and were better equipped. At times some of the US soldiers had to make do without shoes, even engage in long marches without shoes.
Pay for the US troops was often lacking, and desertions happened on an almost daily basis. Disease was also rampant, and Washington usually could not even calculate how many soldiers he had under his command, so fluid was the day-to-day situation with soldiers dropping out due to desertions or disease.
We like to think of "Washington crossing the Delaware" when we think of the progress of the war in 1776. In reality, the war went very badly that year. The British were forced out of Boston, but they took up residence on Long Island, and then took over the entire city of New York when Washington blundered by not defending a particular entranceway into the city.
By giving us a day-by-day account of the struggles of the army, McCullough paints a good picture of what warfare was like in that era. Communication was always by letter, carried by messengers. The vagaries of the weather determined the outcome of many battles.
My personal preference would have been a book which covers the entire Revolutionary War. I would also have preferred a more accurate account of the attitudes toward the war in the British Isles. McCullough says that public opinion in Britain was split almost equally. However, George Trevalyan's great history of what the British called "The American War" documents that the war was quite unpopular in Britain, with at most one-third of the people in Britain supporting it. Parliament was kept in line only by bribes from King George, and by the use of "rotten boroughs". Edmund Burke's passionate speeches against the war are considered some of the best oratory ever seen in the British parliament, and he had many supporters.
It is clear from "1776" that the colonies held together against Britain only because of the perseverance and leadership of George Washington. McCullough states that Washington "was not a brilliant strategist or tactician, not a gifted orator, not an intellectual. At several crucial moments he had shown marked indecisiveness. He had made serious errors in judgment." But despite these shortcomings, Washington persevered and by his example inspired his men to believe in the cause of freedom they were fighting for.
The Supreme Court in 2013
My review of Supreme court cases decided in 2013 reveals that the liberal/conservative split is still alive and well. For purposes of this review I break down the justices as follows: the three liberals, which are the three women, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg; the three conservatives, Antonin Scalia, Clarence Thomas, and Samuel Alito; and the three in the middle, Stephen Breyer, who tends to vote with the liberals, John Roberts, who tends to vote with the conservatives, and Anthony Kennedy, who is right in the middle, and so is often the swing vote.
I looked in depth at ten cases from 2013. Let's start with the five in which the liberal/conservative split was exactly as stated above, with Kennedy providing the deciding vote. In Clapper v. Amnesty International, Kennedy sided with the conservatives in denying standing to a group of professionals who were challenging the new FISA law allowing government surveillance of communications between U.S. citizens and people in other countries, the problem being that the plaintiffs had no direct evidence that any of their communications had been intercepted. The four liberals dissented, stating that there was a "very high likelihood" that some of the plaintiffs' communications would be intercepted under the FISA law. The dissenters went to point out that "certainty is not, and never has been, the touchstone of standing".
Then we saw Kennedy siding with the liberals in Peough v. United States, a case challenging the new and tougher sentencing guidelines as an ex post facto law. The dissent argued that the guidelines were only advisory and not mandatory, and, since the sentence given was within the trial court's discretion under either set of guidelines, it should not be disturbed on appeal.
Kennedy sided with the conservatives in Salinas v. Texas, a case in which the prosecutor was allowed to comment to the jury on the defendant's silence when asked whether his shotgun "would match the shells recovered at the scene of the murder". After answering questions up to that point, he suddenly became very nervous and clammed up. The conservative majority rejected defendant's fifth amendment claim because he did not invoke the privilege against self-incrimination. Thomas and Scalia would go even further, saying his silence could be used against him even if he had invoked the privilege, because "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony".
Kennedy aligned with the liberals in US v. Windsor, a case challenging the Defense of Marriage Act. Here the four conservatives wanted to deny standing, since the government had declined to defend the DOMA law before the high court.
Kennedy was again with the conservatives in Shelby County v. Holder, a case challenging the Voting Rights Act of 1965. Here the conservatives essentially substituted their judgment for that of Congress, which had just reauthorized the Act for another 25 years in 2006, following extensive hearings which had demonstrated that the need for it still existed. Yet, these so-called "conservatives" found the Act unconstitutional.
In three 4th amendment search and seizure cases, 2013 saw the interesting alignment of Scalia siding with the three most liberal members of the court. In Missouri v. McNeely, the court considered the question of whether a warrantless blood test of an individual arrested for DUI was OK as a matter of course. The court held it was not, saying that the normal test of exigent circumstances had to be applied before it would pass constitutional muster. Scalia sided with the three liberals in the main opinion, while Kennedy, Breyer, Roberts and Alito concurred in the result, but not in the court's reasoning used to reach that result. Thomas stamped himself as clearly the court's most conservative member by being the lone dissenter; he felt that exigent circumstances existed in every DUI case, due to the lessening of blood alcohol levels in the body over time.
In Maryland v. King, the court faced the issue of whether it was proper for a state to take a DNA sample from everyone arrested for a serious crime. The majority felt it was OK, saying it was part of the identification process, just like fingerprinting and photographing. Scalia wrote a blistering dissent, and was joined by the three liberals in his dissent.
Scalia's dissent is absolutely fascinating. He does not follow the normal custom of saying he is "respectfully" dissenting. Rather, he makes it clear that he has no respect at all for the majority opinion, saying "it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." He ends his opinion by saying that 'I therefore dissent, and hope that today's incursion upon the fourth Amendment, like an earlier one, will some day be repudiated."
Scalia undertakes an analysis of the Maryland law in question, and absolutely destroys the majority's position that the purpose of the DNA sample is for identification purposes. Rather, Scalia shows that the purpose is to conduct what he calls a "suspicionless search". Scalia asserts, correctly I think, that "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving." So thoroughly does Scalia eviscerate the majority position, that one is left with the thought that if a law student were to submit the majority opinion as a paper, he or she would surely flunk.
So, what are we to make of Scalia's alliance with the liberals on these search and seizure cases? To me, it looks like Scalia simply takes the text of the constitution quite seriously. Indeed, he quotes the language of the fourth amendment, and goes on to examine the reasons for the adoption of the amendment. He states that the American colonists despised the British practice of using "general warrants", meaning warrants that did not specify who was to be searched, what places were to be searched, and what was being looked for in the search.
It should be noted in passing that the liberals lost this case only because Justice Breyer defected and voted with the conservatives. Usually when Breyer, or his conservative counterpart, Chief Justice Roberts, defects like this they will write a concurring opinion explaining their rationale. Breyer did not do so in Maryland v. King, so we are left to wonder about why he abandoned his liberal colleagues in this case.
In Florida v. Jardines, we see an even stranger juxtaposition of the justices in a search and seizure case. In this case, the police had an anonymous tip about drugs in a particular house, so they took a drug-sniffing dog onto the porch. After the dog alerted, they obtained a warrant and searched the house. The issue, therefore, was whether the initial intrusion onto the porch was justified.
Here again, Scalia wrote an opinion in which he was joined by the three liberals. Here, though, it was the majority opinion, since Justice Thomas joined in. Why Justice Thomas believed the Fourth Amendment meant something in this case and not the other two is unexplained, since he did not write a concurring opinion. Justice Kagan did write a concurring opinion, joined by her female colleagues, explaining that she felt the better approach was to rest the decision on privacy grounds, rather than on property rights. Breyer again broke with his liberal colleagues, but without explanation, as he simply joined in the dissenting opinion written by Justice Alito.
In Fisher v. University of Texas, the court was confronted with the issue of whether a university can use race as a factor in admitting students. The court ruled that strict scrutiny needed to be applied, and sent it back to the lower court to apply the strict scrutiny standard. Scalia and Thomas concurred in the result, but wrote separate opinions making it clear that for them race could absolutely not be considered, and a prior Supreme Court ruling to the contrary should be overruled. The only dissenter was Ginsburg, but it should be noted that Kagan did not take part in the case.
In Hollingsworth v. Perry, the court considered the legitimacy of California's ballot initiative amending the state's constitution to ban same-sex marriage. Since the state had chosen not to defend that law, a majority of the court felt that the ballot initiative proponents who had taken up the cause did not have standing. The four dissenters were an odd mix: Kennedy, Thomas, Alito and Sotomayor. This odd mixture makes some sense, though, since each might have had a different reason for wanting the case decided on the merits, instead of on the standing issue.
It seems odd that standing was an important issue in no less than three of the above cases. One would think that such a basic concept would have been well-settled by now. It seems to reflect the reluctance of the court to deal with certain hard issues. But why take up the case at all if you are just going to cop out and say there is no standing to decide it?
I looked in depth at ten cases from 2013. Let's start with the five in which the liberal/conservative split was exactly as stated above, with Kennedy providing the deciding vote. In Clapper v. Amnesty International, Kennedy sided with the conservatives in denying standing to a group of professionals who were challenging the new FISA law allowing government surveillance of communications between U.S. citizens and people in other countries, the problem being that the plaintiffs had no direct evidence that any of their communications had been intercepted. The four liberals dissented, stating that there was a "very high likelihood" that some of the plaintiffs' communications would be intercepted under the FISA law. The dissenters went to point out that "certainty is not, and never has been, the touchstone of standing".
Then we saw Kennedy siding with the liberals in Peough v. United States, a case challenging the new and tougher sentencing guidelines as an ex post facto law. The dissent argued that the guidelines were only advisory and not mandatory, and, since the sentence given was within the trial court's discretion under either set of guidelines, it should not be disturbed on appeal.
Kennedy sided with the conservatives in Salinas v. Texas, a case in which the prosecutor was allowed to comment to the jury on the defendant's silence when asked whether his shotgun "would match the shells recovered at the scene of the murder". After answering questions up to that point, he suddenly became very nervous and clammed up. The conservative majority rejected defendant's fifth amendment claim because he did not invoke the privilege against self-incrimination. Thomas and Scalia would go even further, saying his silence could be used against him even if he had invoked the privilege, because "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony".
Kennedy aligned with the liberals in US v. Windsor, a case challenging the Defense of Marriage Act. Here the four conservatives wanted to deny standing, since the government had declined to defend the DOMA law before the high court.
Kennedy was again with the conservatives in Shelby County v. Holder, a case challenging the Voting Rights Act of 1965. Here the conservatives essentially substituted their judgment for that of Congress, which had just reauthorized the Act for another 25 years in 2006, following extensive hearings which had demonstrated that the need for it still existed. Yet, these so-called "conservatives" found the Act unconstitutional.
In three 4th amendment search and seizure cases, 2013 saw the interesting alignment of Scalia siding with the three most liberal members of the court. In Missouri v. McNeely, the court considered the question of whether a warrantless blood test of an individual arrested for DUI was OK as a matter of course. The court held it was not, saying that the normal test of exigent circumstances had to be applied before it would pass constitutional muster. Scalia sided with the three liberals in the main opinion, while Kennedy, Breyer, Roberts and Alito concurred in the result, but not in the court's reasoning used to reach that result. Thomas stamped himself as clearly the court's most conservative member by being the lone dissenter; he felt that exigent circumstances existed in every DUI case, due to the lessening of blood alcohol levels in the body over time.
In Maryland v. King, the court faced the issue of whether it was proper for a state to take a DNA sample from everyone arrested for a serious crime. The majority felt it was OK, saying it was part of the identification process, just like fingerprinting and photographing. Scalia wrote a blistering dissent, and was joined by the three liberals in his dissent.
Scalia's dissent is absolutely fascinating. He does not follow the normal custom of saying he is "respectfully" dissenting. Rather, he makes it clear that he has no respect at all for the majority opinion, saying "it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." He ends his opinion by saying that 'I therefore dissent, and hope that today's incursion upon the fourth Amendment, like an earlier one, will some day be repudiated."
Scalia undertakes an analysis of the Maryland law in question, and absolutely destroys the majority's position that the purpose of the DNA sample is for identification purposes. Rather, Scalia shows that the purpose is to conduct what he calls a "suspicionless search". Scalia asserts, correctly I think, that "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving." So thoroughly does Scalia eviscerate the majority position, that one is left with the thought that if a law student were to submit the majority opinion as a paper, he or she would surely flunk.
So, what are we to make of Scalia's alliance with the liberals on these search and seizure cases? To me, it looks like Scalia simply takes the text of the constitution quite seriously. Indeed, he quotes the language of the fourth amendment, and goes on to examine the reasons for the adoption of the amendment. He states that the American colonists despised the British practice of using "general warrants", meaning warrants that did not specify who was to be searched, what places were to be searched, and what was being looked for in the search.
It should be noted in passing that the liberals lost this case only because Justice Breyer defected and voted with the conservatives. Usually when Breyer, or his conservative counterpart, Chief Justice Roberts, defects like this they will write a concurring opinion explaining their rationale. Breyer did not do so in Maryland v. King, so we are left to wonder about why he abandoned his liberal colleagues in this case.
In Florida v. Jardines, we see an even stranger juxtaposition of the justices in a search and seizure case. In this case, the police had an anonymous tip about drugs in a particular house, so they took a drug-sniffing dog onto the porch. After the dog alerted, they obtained a warrant and searched the house. The issue, therefore, was whether the initial intrusion onto the porch was justified.
Here again, Scalia wrote an opinion in which he was joined by the three liberals. Here, though, it was the majority opinion, since Justice Thomas joined in. Why Justice Thomas believed the Fourth Amendment meant something in this case and not the other two is unexplained, since he did not write a concurring opinion. Justice Kagan did write a concurring opinion, joined by her female colleagues, explaining that she felt the better approach was to rest the decision on privacy grounds, rather than on property rights. Breyer again broke with his liberal colleagues, but without explanation, as he simply joined in the dissenting opinion written by Justice Alito.
In Fisher v. University of Texas, the court was confronted with the issue of whether a university can use race as a factor in admitting students. The court ruled that strict scrutiny needed to be applied, and sent it back to the lower court to apply the strict scrutiny standard. Scalia and Thomas concurred in the result, but wrote separate opinions making it clear that for them race could absolutely not be considered, and a prior Supreme Court ruling to the contrary should be overruled. The only dissenter was Ginsburg, but it should be noted that Kagan did not take part in the case.
In Hollingsworth v. Perry, the court considered the legitimacy of California's ballot initiative amending the state's constitution to ban same-sex marriage. Since the state had chosen not to defend that law, a majority of the court felt that the ballot initiative proponents who had taken up the cause did not have standing. The four dissenters were an odd mix: Kennedy, Thomas, Alito and Sotomayor. This odd mixture makes some sense, though, since each might have had a different reason for wanting the case decided on the merits, instead of on the standing issue.
It seems odd that standing was an important issue in no less than three of the above cases. One would think that such a basic concept would have been well-settled by now. It seems to reflect the reluctance of the court to deal with certain hard issues. But why take up the case at all if you are just going to cop out and say there is no standing to decide it?
"The Tempting of America", by Robert H. Bork
This book was published in 1990, a scant three years after Bork's ignominious defeat in the Senate for his Supreme Court nomination. It is obvious that Bork is using this book as an attempt to present his view of constitutional jurisprudence, and to hopefully rehabilitate his discredited views which led to such an embarrassing defeat.
The problem is that the book is virtually unreadable. I bought the book because I genuinely wanted to try to understand Bork's views. Instead, I found nothing informative or enlightening in it. In thinking back on Bork's hearings before the Senate Judiciary Committee, I realize that this was exactly Bork's problem at that time; he simply has no communication skills, no people skills, and could not communicate his views in an understandable way to anybody. When asked a question, instead of answering forthrightly, Bork would grimace, fidget around, look up at the ceiling, and then offer a lame, (usually) unintelligible defense of his views.
In Part III of the book Bork describes the confirmation process, from his point of view. In response to the public opinion which was mounted against his nomination, Bork repeatedly says things like "every charge recounted was false" (p. 282), "there is not a word of truth in this litany" (p. 286), that "was as flat a falsehood as could be imagined" (p. 289), and many more similar statements, often referring to the accusations against him as "lies".
The salient point to remember here is that Bork had every chance to explain his views, and refute the alleged "lies", if in fact they were really falsehoods. For example, he explains that "I spent almost seven hours all told with Senator Spector, at the hearings and in his offices, discussing constitutional law..." The fact that Bork was unable to satisfactorily explain his views does not speak well of his abilities as an advocate, hence as a prospective Supreme Court justice.
The fact is that Bork had every opportunity to defend himself, and had vigorous advocates on the Republican side who were defending him, and yet could still not make his case. At one point it was felt that he was going to withdraw his nomination, but after consultation with his wife and children he decided to stay in. He went to the White House and read a statement saying this, and then left without taking any questions from the media. Why he didn't take the opportunity to make his case to the interested public, he does not say.
How bad Bork's performance was during the confirmation process is measured by his pathetic results. He got 42 votes in the Senate. Four years later, by contrast, a much poorer candidate, arguably more extreme than Bork, certainly much less of a legal scholar, and carrying heavy personal baggage, was confirmed with 52 votes, ten more than Bork got, even though there were three fewer Republicans in the Senate than in 1987. That candidate was Clarence Thomas, who still serves on the court to this day.
This book constitutes Bork's (belated) effort to make his case, but it is every bit as pathetic as his efforts during the nomination process. It is little more than an exercise in self-pity.
The problem is that the book is virtually unreadable. I bought the book because I genuinely wanted to try to understand Bork's views. Instead, I found nothing informative or enlightening in it. In thinking back on Bork's hearings before the Senate Judiciary Committee, I realize that this was exactly Bork's problem at that time; he simply has no communication skills, no people skills, and could not communicate his views in an understandable way to anybody. When asked a question, instead of answering forthrightly, Bork would grimace, fidget around, look up at the ceiling, and then offer a lame, (usually) unintelligible defense of his views.
In Part III of the book Bork describes the confirmation process, from his point of view. In response to the public opinion which was mounted against his nomination, Bork repeatedly says things like "every charge recounted was false" (p. 282), "there is not a word of truth in this litany" (p. 286), that "was as flat a falsehood as could be imagined" (p. 289), and many more similar statements, often referring to the accusations against him as "lies".
The salient point to remember here is that Bork had every chance to explain his views, and refute the alleged "lies", if in fact they were really falsehoods. For example, he explains that "I spent almost seven hours all told with Senator Spector, at the hearings and in his offices, discussing constitutional law..." The fact that Bork was unable to satisfactorily explain his views does not speak well of his abilities as an advocate, hence as a prospective Supreme Court justice.
The fact is that Bork had every opportunity to defend himself, and had vigorous advocates on the Republican side who were defending him, and yet could still not make his case. At one point it was felt that he was going to withdraw his nomination, but after consultation with his wife and children he decided to stay in. He went to the White House and read a statement saying this, and then left without taking any questions from the media. Why he didn't take the opportunity to make his case to the interested public, he does not say.
How bad Bork's performance was during the confirmation process is measured by his pathetic results. He got 42 votes in the Senate. Four years later, by contrast, a much poorer candidate, arguably more extreme than Bork, certainly much less of a legal scholar, and carrying heavy personal baggage, was confirmed with 52 votes, ten more than Bork got, even though there were three fewer Republicans in the Senate than in 1987. That candidate was Clarence Thomas, who still serves on the court to this day.
This book constitutes Bork's (belated) effort to make his case, but it is every bit as pathetic as his efforts during the nomination process. It is little more than an exercise in self-pity.
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