Many idiotic comments have been made about this infamous play, and I will try to analyze them one-by-one.
1. "We've always done things this way". This is completely idiotic, because the fact that something has always been done a certain way is no argument that it is the right or best way to do things. The fact is that there is no cogent argument for supporting Utley's dirty slide.
2. "There needs to be a rule change". Completely unnecessary, as the current rules provide for penalizing a player who goes for the middle infielder rather than for the bag.
3. Calling Utley's actions a "slide" is completely bogus. He didn't start it till he was at or beyond the base, and it was not an actual slide. Rather, it was a football block or tackle.
4. Going into a player who has his back to you is inherently dangerous and a two-game penalty for this is woefully inadequate. Utley should be out for at least a month.
5. Utley's idiot agent says he can't be punished for making a "legal baseball play". This is absurd, it was not a legal play as mentioned above. Further, saying this is like saying a pitcher cannot be punished for throwing a beanball at a batter, because pitching a baseball is a legal play! Total nonsense.
6. "Utley wasn't trying to hurt Tejada". Nobody thinks he was trying to hurt Tejada, but we are all responsible for the consequences of our actions. To say otherwise is like saying a driver who runs a red light and kills somebody cannot be prosecuted for vehicular homicide, because he had no intention of hurting anyone.
At least this play gives me a strong rooting interest for the Mets and against the dirty-play Dodgers. Here's hoping the Players Association cooperates with MLB in ensuring that this type of play becomes a relic of a bygone era.
Tuesday, October 13, 2015
Saturday, October 10, 2015
Retrospective of 2015 MLB Season
I followed this season quite closely, periodically checking on how my predictions were doing compared with those of Sports Illustrated and USA Today. Here is a division-by-division summary.
AL East. My pick of the Blue Jays for first turned out accurate in the end. However, the Jays were lower in the standings for most of the year, and I had to continually urge them forward, like a jockey taking the whip to his horse. We all had the Yankees near the bottom, so their 2nd-place finish was a surprise. Similarly, we had the Red Sox near the top (other two actually had them winning the division!), so their last-place finish was a surprise. In terms of places off, I won by 6-8-8.
AL Central. A huge win for me. I predicted the Royals to finish first, which they did by a wide margin. Inexplicably, the two so-called "experts" had the Royals in fourth! Similarly, I foresaw the Tigers as fourth, while the others had them 1st or 2nd. As a result, my win was huge--6-12-12.
AL West. We all were 12 places off, a horrendous result considering that the average based on random chance is 8. Mariners were a huge disappointment, finishing 4th when we all thought they would be 1st or 2nd. We all thought Rangers and Astros would be the last two, but they surprised and are both in the playoffs.
NL East. The Nationals were a huge disappointment, finishing 2nd by 7 games behind the surprising Mets, who we all had picked 3rd or 4th. I made a somewhat idiosyncratic pick of the Braves for 2nd, resulting in a loss by 6-4-4.
NL Central. I was hurt by an idiosyncratic pick of the Cubs to finish first. I have learned from past experience to never bet against the Cardinals, but my infatuation wiht the Cubs got the better of me and I got hurt by it. It should be mentioned, however, that the Cubs came on strong at the end, winning their last 8 games, and finished only 3 games behind the Cards and 1 game behind the 2nd-place Pirates. SI accurately predicted the entire standings for the division, while USA today was only 2 places off, missing only the Brewers nosing out the Reds for 4th. I lose 6-0-2.
NL West. I was hurt by my idiosyncratic pick of the Padres for 2nd. USA Today was helped by Rockies taking last behind the D-Backs. Finally tally was 6-4-2.
So, the end result is 42-40-40. Usually I best the experts, but this time I was slightly behind them.
AL East. My pick of the Blue Jays for first turned out accurate in the end. However, the Jays were lower in the standings for most of the year, and I had to continually urge them forward, like a jockey taking the whip to his horse. We all had the Yankees near the bottom, so their 2nd-place finish was a surprise. Similarly, we had the Red Sox near the top (other two actually had them winning the division!), so their last-place finish was a surprise. In terms of places off, I won by 6-8-8.
AL Central. A huge win for me. I predicted the Royals to finish first, which they did by a wide margin. Inexplicably, the two so-called "experts" had the Royals in fourth! Similarly, I foresaw the Tigers as fourth, while the others had them 1st or 2nd. As a result, my win was huge--6-12-12.
AL West. We all were 12 places off, a horrendous result considering that the average based on random chance is 8. Mariners were a huge disappointment, finishing 4th when we all thought they would be 1st or 2nd. We all thought Rangers and Astros would be the last two, but they surprised and are both in the playoffs.
NL East. The Nationals were a huge disappointment, finishing 2nd by 7 games behind the surprising Mets, who we all had picked 3rd or 4th. I made a somewhat idiosyncratic pick of the Braves for 2nd, resulting in a loss by 6-4-4.
NL Central. I was hurt by an idiosyncratic pick of the Cubs to finish first. I have learned from past experience to never bet against the Cardinals, but my infatuation wiht the Cubs got the better of me and I got hurt by it. It should be mentioned, however, that the Cubs came on strong at the end, winning their last 8 games, and finished only 3 games behind the Cards and 1 game behind the 2nd-place Pirates. SI accurately predicted the entire standings for the division, while USA today was only 2 places off, missing only the Brewers nosing out the Reds for 4th. I lose 6-0-2.
NL West. I was hurt by my idiosyncratic pick of the Padres for 2nd. USA Today was helped by Rockies taking last behind the D-Backs. Finally tally was 6-4-2.
So, the end result is 42-40-40. Usually I best the experts, but this time I was slightly behind them.
Thursday, August 6, 2015
An Appreciation of Mike Royko
I recently checked out "For the Love of Mike", a collection of Mike Royko columns. The best way to pay tribute to this literary genius is to discuss a few of his more thought-provoking columns.
1. Washington Post fake story, (4/26/81). This column deals with a story in the Washington Post about an eight-year-old boy who was being turned into a heroin addict by his mother's boyfriend. The reporter and her newspaper refused to reveal the name of the boy and his mother, because the mother had been promised anonymity. The paper won a Pulitzer Prize for the story, and later it was discovered that the story was a complete fabrication on the reporter's part.
Royko's take on this fiasco was unique and refreshing. He said that the editor who passed on the story was grossly derelict. Royko said that if he were the editor, he would have demanded that the reporter tell him the names. He would have said "We're going to call the cops right now, and we're going to have that sonofabitch put in jail, and we're going to save that kid's life. After we do that, then we'll have a story." And if the reporter refused, he would have fired her.
How ironic that the Post, which made its reputation exposing the Watergate coverup, was guilty of a cover-up itself in protecting a guy who was thought to be slowly murdering an eight-year-old boy.
2. The supposed "disgrace" of low voter turnout, (11/7/96). On election night of the Dole-Clinton 1996 election, Dan Rather called the low voter turnout "a national disgrace". Royko begged to differ.
Royko wrote that "My belief is that someone who must be nagged into voting hasn't been paying attention and doesn't have any idea what the issues are or what the candidates will or won't be trusted to do."
But Royko goes on to make a larger point. He says the media has to shoulder a large part of the blame for the low turnout. Almost every day during the campaign somebody in the media was talking about how the polls showed the election was already over--Dole had no chance. So how then can the media complain that people didn't go to the polls?
Royko calls polling "the laziest, dumbest, cheapest form of journalism." And it has only gotten worse since 1996. With all the news outlets today, one can hardly turn around without being bombarded with the latest poll results. Let's talk about the issues, and not treat an election as some kind of sporting event.
3. On how words matter, 2/9/94. The Minister for the Nation of Islam, Louis Farrakhan, said that "You can't be a racist by talking--only by acting". He was defending himself and his senior aide for their vicious verbal attacks on Jews.
In response, a cartoonist for the Sacramento Bee came up with the idea for an inspired cartoon; two Ku Klux Klan members are looking at Farrakhan's statement and one said, "That nigger makes a lot of sense".
Royko says that if he had been the editor, he would have said : "Fine cartoon. It makes the point".
Despite the fact that the cartoonist was trying to take the side of blacks in this issue, there was a huge outcry against the use of the dreaded N word. So much so that the publisher wrote a profuse page one apology!
Royko is aghast, and ends by saying that "there is a need for people to look in their dictionaries for an understanding of the meaning of 'satire'." The point the cartoonist was making is that words do matter, and the outcry from some quarters was simply misplaced and moronic in the failure to understand this basic point.
4. One the Pete Rose suspension, 8/25/89. An idiot on the radio used the words "American tragedy" to describe the Pete Rose suspension, and this prompted a response from Royko. He noted that many millions of American boys would have given anything to have played in the major leagues, himself (and this writer) included.
Rose knew the rules but chose to ignore them, and he got what is supposed to be the penalty for betting on your own team--a lifetime ban from baseball. But this occurred after his playing days were already over.
Royko says: "What matters is that he had those 24 wonderful summers and those 3,562 games. And whatever kind of jerk he may have been in his private life, it was obvious that when he stepped out onto the field he loved every moment of it. How many people can say that about 24 years in the same job?"
Royko ends with "It's not a tragedy. It isn't even sad...Tragedy is a kid getting hit by a car. Sad is being old, alone, and lonely."
1. Washington Post fake story, (4/26/81). This column deals with a story in the Washington Post about an eight-year-old boy who was being turned into a heroin addict by his mother's boyfriend. The reporter and her newspaper refused to reveal the name of the boy and his mother, because the mother had been promised anonymity. The paper won a Pulitzer Prize for the story, and later it was discovered that the story was a complete fabrication on the reporter's part.
Royko's take on this fiasco was unique and refreshing. He said that the editor who passed on the story was grossly derelict. Royko said that if he were the editor, he would have demanded that the reporter tell him the names. He would have said "We're going to call the cops right now, and we're going to have that sonofabitch put in jail, and we're going to save that kid's life. After we do that, then we'll have a story." And if the reporter refused, he would have fired her.
How ironic that the Post, which made its reputation exposing the Watergate coverup, was guilty of a cover-up itself in protecting a guy who was thought to be slowly murdering an eight-year-old boy.
2. The supposed "disgrace" of low voter turnout, (11/7/96). On election night of the Dole-Clinton 1996 election, Dan Rather called the low voter turnout "a national disgrace". Royko begged to differ.
Royko wrote that "My belief is that someone who must be nagged into voting hasn't been paying attention and doesn't have any idea what the issues are or what the candidates will or won't be trusted to do."
But Royko goes on to make a larger point. He says the media has to shoulder a large part of the blame for the low turnout. Almost every day during the campaign somebody in the media was talking about how the polls showed the election was already over--Dole had no chance. So how then can the media complain that people didn't go to the polls?
Royko calls polling "the laziest, dumbest, cheapest form of journalism." And it has only gotten worse since 1996. With all the news outlets today, one can hardly turn around without being bombarded with the latest poll results. Let's talk about the issues, and not treat an election as some kind of sporting event.
3. On how words matter, 2/9/94. The Minister for the Nation of Islam, Louis Farrakhan, said that "You can't be a racist by talking--only by acting". He was defending himself and his senior aide for their vicious verbal attacks on Jews.
In response, a cartoonist for the Sacramento Bee came up with the idea for an inspired cartoon; two Ku Klux Klan members are looking at Farrakhan's statement and one said, "That nigger makes a lot of sense".
Royko says that if he had been the editor, he would have said : "Fine cartoon. It makes the point".
Despite the fact that the cartoonist was trying to take the side of blacks in this issue, there was a huge outcry against the use of the dreaded N word. So much so that the publisher wrote a profuse page one apology!
Royko is aghast, and ends by saying that "there is a need for people to look in their dictionaries for an understanding of the meaning of 'satire'." The point the cartoonist was making is that words do matter, and the outcry from some quarters was simply misplaced and moronic in the failure to understand this basic point.
4. One the Pete Rose suspension, 8/25/89. An idiot on the radio used the words "American tragedy" to describe the Pete Rose suspension, and this prompted a response from Royko. He noted that many millions of American boys would have given anything to have played in the major leagues, himself (and this writer) included.
Rose knew the rules but chose to ignore them, and he got what is supposed to be the penalty for betting on your own team--a lifetime ban from baseball. But this occurred after his playing days were already over.
Royko says: "What matters is that he had those 24 wonderful summers and those 3,562 games. And whatever kind of jerk he may have been in his private life, it was obvious that when he stepped out onto the field he loved every moment of it. How many people can say that about 24 years in the same job?"
Royko ends with "It's not a tragedy. It isn't even sad...Tragedy is a kid getting hit by a car. Sad is being old, alone, and lonely."
Saturday, August 1, 2015
PCC June Swiss
This tournament was divided into two sections, as announced if 30 players or more showed up. All four games were tough, the lowest in my (upper) section being rated 1725.
Rd. 1, chessart(1889) - Joshua Grabinsky(1882), Classical French, C14
1 e4 e6 2 d4 d5 3 Nc3 Nf6 4 Bg5 Be7 5 e5 Nfd7 6 BxB QxB 7 f4 a6 8 Nf3 c5 9 Qd2 Nc6 10 dc Nxc5
10...Qxc5 is slightly favored, but black scores slightly better with 10...Nxc5.
11 Bd3 b6?
This is not even given in the database. 11...b5 is most usual.
12 0-0-0 Bb7 13 Rhe1 0-0-0 14 Qe2 Kb8 15 a3 Na5 16 f5 NxB+ 17 QxN Nc4 18 Ne2 ef 19 Ned4 g6 20 e6 Nd6 21 ef QxP 22 Ne5 Qf6 23 Nec6+ Ka8 24 NxR RxN 25 Re6 Qf7 26 R1e1?
I should have retreated my rook on e6. I was oblivious to the danger.
Ne5 27 Rxb6? Qc7
Now my rook is toast, as 29 Qb4 Nd3+ forks king and queen.
38 Qb3 Nc5 29 RxB NxQ+ 30 RxN Qf5+ 31 Kb1 QxR 32 Re7 Rb8 White resigns 0-1
***
Rd. 2, Danny Phipps(1823) - chessart(1889), Benko Declined, A57
1 d4 Nf6 2 c4 c5 3 d5 b5 4 Nf3 bc 5 Nc3 d6 6 e4 Nbd7 7 Qa4 g6 8 Bxc4 Bg7 9 e5 de 10 Nxe5 0-0 11 Nc6 Qe8 12 0-0 Nb6 13 Qb5 Bd7 14 Qxc5
White's win of a pawn is only temporary.
Bxc6 15 dc NxB 16 QxN Rc8 17 c7 Qd7 18 Bf4 Nh5 19 Rfe1 NxB 20 QxN BxN 21 PxB Qxc7
Pawns are now equal again.
22 Qe3 e6 23 Rac1 Qc5 24 c4 Rfd8 25 g3 QxQ 26 RxQ Rd2 27 Ra3 Rc7 28 Ra6 Kf8
The start of a bad plan to move my king to the queen-side.
29 c5 Ke7 30 a4 Kd7 31 c6+ Kc8 32 Rc4 Rd6 33 Kg2 Kb8 34 h4 h5 35 Rc3 Kc8 36 Kh3 f5 37 f3 e5 38 g4 e4 39 gf gf 40 Kg3 ef 41 Rxf3 Rdxc6 42 RxR RxR 43 Rxf5 Rc3+ 44 Kh2 Ra3 45 a5 Ra2+ 46 Kg3 Ra3+ 47 Kf7 Kb7 48 Kg5 Kc6 49 Kxh5 Kd6 50 Kg6 Ke6 51 h5 Rg3+ 52 Rg5 Rf3 53 h6 Rc3 54 h7 Rc8 55 Rh5 Black resigns, 1-0
*** Rd. 3, chessart(1889) - Dagadu Gaikwad(1793), Giuoco Piano (by transposition from Scotch Gambit), C53
1 e4 e5 2 Nf3 Nc6 3 d4 ed 4 Bc4 Bc5 5 c3 Nf6 6 e5 d57 Bb5 Ne4 8 cd Bb4+ 9 Nbd2
9 Bd2 is more accurate, the idea being that I get a knight to the hole at c5.
9...0-0 10 BxN bc 11 0-0 Bg4 12 Qc2 NxN 13 NxN Qd7 14 f3 Bf5 15 Qa4 c5 16 QxQ BxQ 17 PxP BxP+ 18 Kh8 Bb5 19 Rd1 Rad8 20 Nb3 Ba4 21 Bg5 BxN 22 PxB Rd7 23 Rd3 Bb6 24 f4 h6 25 Bh4 Re8 26 Rad1 d4 27 Bf2 c5 28 Bh4 Rb7 29 g4 Reb8 30 Rc1 a5 31 Rc4 Ba7 32 Ra4 Rxb3 33 RxR RxR 34 Rxa5 Bb6 35 Ra8+ Kh7 36 Rb8 d3 37 Rb7 d2 38 Rd7 Rxb2 White resigns 0-1
*** Rd. 4, chessart(1889) - David Yoshinaga(1742), Smith-Morra Declined, B21
1 e4 c5 2 d4 cd 3 c3 e5 4 cd ed 5 Nf3 Nc6 6 Nxd4 Qb6 7 NxN dc 8 Bc4 Nf6 9 Qf3 Bg4 10 Qf4 Rd8 11 0-0 Bc5 12 e5 Rd4 13 Qg3 Nh5 14 Qb3 0-0 15 Be3
Winning the exchange.
15...RxB 16 QxR BxB 17 PxB Be6 18 Qd4 c5 19 Qc3 Rd8 20 Nd2 Qb5 21 Ne4 c4 22 Rad1 Qb6 23 RxR+ QxR 24 Nc5 Qd5 25 NxB QxN 26 Rd1 g6 27 Rd6 Qc8 28 Qd4 Qf5 29 Rd8+ Kg7 30 e6+ Nf6 31 ef KxP 32 Qxc4+ Kg7 33 Qc7+ Kh6 34 Qf4+
It's over now, but black plays on for a few more moves.
Kg7 35 QxQ PxQ 36 h3 Ne4 37 Rd7+ Kg6 38 Rxb7 h5 39 h4 Nf6 40 Rxa7 Ng4 41 Ra3 Kf6 42 Kf1 Ke5 43 Ke2 Nf6 44 b4 Ne4 45 b5 Ked5 46 Rb3 Kc5 47 b6 Black resigns, 1-0
Rd. 1, chessart(1889) - Joshua Grabinsky(1882), Classical French, C14
1 e4 e6 2 d4 d5 3 Nc3 Nf6 4 Bg5 Be7 5 e5 Nfd7 6 BxB QxB 7 f4 a6 8 Nf3 c5 9 Qd2 Nc6 10 dc Nxc5
10...Qxc5 is slightly favored, but black scores slightly better with 10...Nxc5.
11 Bd3 b6?
This is not even given in the database. 11...b5 is most usual.
12 0-0-0 Bb7 13 Rhe1 0-0-0 14 Qe2 Kb8 15 a3 Na5 16 f5 NxB+ 17 QxN Nc4 18 Ne2 ef 19 Ned4 g6 20 e6 Nd6 21 ef QxP 22 Ne5 Qf6 23 Nec6+ Ka8 24 NxR RxN 25 Re6 Qf7 26 R1e1?
I should have retreated my rook on e6. I was oblivious to the danger.
Ne5 27 Rxb6? Qc7
Now my rook is toast, as 29 Qb4 Nd3+ forks king and queen.
38 Qb3 Nc5 29 RxB NxQ+ 30 RxN Qf5+ 31 Kb1 QxR 32 Re7 Rb8 White resigns 0-1
***
Rd. 2, Danny Phipps(1823) - chessart(1889), Benko Declined, A57
1 d4 Nf6 2 c4 c5 3 d5 b5 4 Nf3 bc 5 Nc3 d6 6 e4 Nbd7 7 Qa4 g6 8 Bxc4 Bg7 9 e5 de 10 Nxe5 0-0 11 Nc6 Qe8 12 0-0 Nb6 13 Qb5 Bd7 14 Qxc5
White's win of a pawn is only temporary.
Bxc6 15 dc NxB 16 QxN Rc8 17 c7 Qd7 18 Bf4 Nh5 19 Rfe1 NxB 20 QxN BxN 21 PxB Qxc7
Pawns are now equal again.
22 Qe3 e6 23 Rac1 Qc5 24 c4 Rfd8 25 g3 QxQ 26 RxQ Rd2 27 Ra3 Rc7 28 Ra6 Kf8
The start of a bad plan to move my king to the queen-side.
29 c5 Ke7 30 a4 Kd7 31 c6+ Kc8 32 Rc4 Rd6 33 Kg2 Kb8 34 h4 h5 35 Rc3 Kc8 36 Kh3 f5 37 f3 e5 38 g4 e4 39 gf gf 40 Kg3 ef 41 Rxf3 Rdxc6 42 RxR RxR 43 Rxf5 Rc3+ 44 Kh2 Ra3 45 a5 Ra2+ 46 Kg3 Ra3+ 47 Kf7 Kb7 48 Kg5 Kc6 49 Kxh5 Kd6 50 Kg6 Ke6 51 h5 Rg3+ 52 Rg5 Rf3 53 h6 Rc3 54 h7 Rc8 55 Rh5 Black resigns, 1-0
*** Rd. 3, chessart(1889) - Dagadu Gaikwad(1793), Giuoco Piano (by transposition from Scotch Gambit), C53
1 e4 e5 2 Nf3 Nc6 3 d4 ed 4 Bc4 Bc5 5 c3 Nf6 6 e5 d57 Bb5 Ne4 8 cd Bb4+ 9 Nbd2
9 Bd2 is more accurate, the idea being that I get a knight to the hole at c5.
9...0-0 10 BxN bc 11 0-0 Bg4 12 Qc2 NxN 13 NxN Qd7 14 f3 Bf5 15 Qa4 c5 16 QxQ BxQ 17 PxP BxP+ 18 Kh8 Bb5 19 Rd1 Rad8 20 Nb3 Ba4 21 Bg5 BxN 22 PxB Rd7 23 Rd3 Bb6 24 f4 h6 25 Bh4 Re8 26 Rad1 d4 27 Bf2 c5 28 Bh4 Rb7 29 g4 Reb8 30 Rc1 a5 31 Rc4 Ba7 32 Ra4 Rxb3 33 RxR RxR 34 Rxa5 Bb6 35 Ra8+ Kh7 36 Rb8 d3 37 Rb7 d2 38 Rd7 Rxb2 White resigns 0-1
*** Rd. 4, chessart(1889) - David Yoshinaga(1742), Smith-Morra Declined, B21
1 e4 c5 2 d4 cd 3 c3 e5 4 cd ed 5 Nf3 Nc6 6 Nxd4 Qb6 7 NxN dc 8 Bc4 Nf6 9 Qf3 Bg4 10 Qf4 Rd8 11 0-0 Bc5 12 e5 Rd4 13 Qg3 Nh5 14 Qb3 0-0 15 Be3
Winning the exchange.
15...RxB 16 QxR BxB 17 PxB Be6 18 Qd4 c5 19 Qc3 Rd8 20 Nd2 Qb5 21 Ne4 c4 22 Rad1 Qb6 23 RxR+ QxR 24 Nc5 Qd5 25 NxB QxN 26 Rd1 g6 27 Rd6 Qc8 28 Qd4 Qf5 29 Rd8+ Kg7 30 e6+ Nf6 31 ef KxP 32 Qxc4+ Kg7 33 Qc7+ Kh6 34 Qf4+
It's over now, but black plays on for a few more moves.
Kg7 35 QxQ PxQ 36 h3 Ne4 37 Rd7+ Kg6 38 Rxb7 h5 39 h4 Nf6 40 Rxa7 Ng4 41 Ra3 Kf6 42 Kf1 Ke5 43 Ke2 Nf6 44 b4 Ne4 45 b5 Ked5 46 Rb3 Kc5 47 b6 Black resigns, 1-0
Wednesday, July 15, 2015
Zivotofsky v. Kerry
This is a Supreme Court case decided on June 8, 2015. The issue involved in the case is a rather unusual one for a Supreme Court case.
In 2002 Congress enacted a law mandating that American citizens born in Jerusalem can request that their place of birth be listed as "Israel" on their passports. Since the official position of the U.S. has always been that it recognizes no country's sovereignty over Jerusalem, the State Dept. records the place of birth in such instances not as "Israel", but rather as "Jerusalem". Plaintiff Zivotofsky filed suit to require that his passport reflect the Congressional mandate.
The majority interpreted this as requiring that the official U.S. policy on recognition of a foreign sovereign be changed. Since the Constitution does not specifically say that diplomatic recognition is solely the province of the executive, the majority ruled by analogy from other powers that the executive does have under the Constitution, such as the power to receive ambassadors from other sovereign countries. The court also looked at the historical record, beginning with Washington's recognition of the new government in France following the revolution there, and doing this without consulting with Congress. Based on both of these analytic threads, the majority concluded that the Congressional mandate in question was invalid, because the power to recognize foreign governments rests solely with the executive branch.
This was a 5-4 decision, with the conservatives dissenting, three of them dissenting completely and Thomas dissenting in part (he felt that it was OK for Congress to make its requirement for consular reports of birth abroad, but not for passports).
Roberts' dissent emphasizes that this is the first time the court "accepted a president's direct defiance of an Act of Congress in the field of foreign affairs". Roberts expressed doubt that the president's power of recognition is exclusive. But he then goes on to say that "even if the president does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition".
Scalia filed a separate dissent in which he took apart the majority's position more systematically. Scalia notes that Congress has power over passports, due to the clause in the Constitution giving it power to establish a "uniform Rule of Naturalization". This really decides the issue, other than noting that putting "Israel" as the nation of birth on passports for kids born in Jerusalem does not equate to recognition of Israel's sovereignty over Jerusalem. Scalia's conclusion, then, is that "the court's decision does not rest on text or history or precedent".
Some observations:
Scalia vs. Thomas. Scalia and Thomas really sniped at each other in their respective dissents. They called each other by name over and over, in their attempts to specifically refute the other's arguments.
Kennedy again the swing vote. Kennedy wrote the opinion for the majority. This was one of many cases in which the four-member liberal bloc stuck together in this term, which was a very successful one for the liberal side. Part of this success is due to the four sticking together, and speaking with one voice rather than sniping at each other as the conservatives sometimes did. And they were happy to allow that "one voice" to be another justice, as in Kennedy here, with Roberts occasionally filling this role in other cases.
Breyer's position. Breyer filed a two-sentence concurrence stating that he believes the case presents a political question which the judicial system should stay out of. But he joined the majority because "precedent precludes resolving this case on political question grounds."
Roberts' deference to Congress. It has been noted that Roberts was the only justice to defer to the legislative branch on both the Obamacare and the gay marriage decisions. In this case, he again demonstrates that same deference to the legislative branch, which presumably is speaking the will of the people.
So who's right? This seems to be one of those hard cases that makes bad law. Jerusalem is such a sensitive issue on the international stage, that the majority felt it crucial that the U.S. speak with one voice on that issue. And the majority obviously agrees with the position of the executive branch here, rather than the legislative branch.
The idea that the relatively innocuous act of listing a kid's place of birth as "Israel" on his passport amounts to recognition of Israel's sovereignty over Jerusalem is silly. And, as Scalia points out, if there was indeed any real confusion about this, the president could easily issue a statement clarifying his administration's position on the matter. So, the dissent is legally correct.
In 2002 Congress enacted a law mandating that American citizens born in Jerusalem can request that their place of birth be listed as "Israel" on their passports. Since the official position of the U.S. has always been that it recognizes no country's sovereignty over Jerusalem, the State Dept. records the place of birth in such instances not as "Israel", but rather as "Jerusalem". Plaintiff Zivotofsky filed suit to require that his passport reflect the Congressional mandate.
The majority interpreted this as requiring that the official U.S. policy on recognition of a foreign sovereign be changed. Since the Constitution does not specifically say that diplomatic recognition is solely the province of the executive, the majority ruled by analogy from other powers that the executive does have under the Constitution, such as the power to receive ambassadors from other sovereign countries. The court also looked at the historical record, beginning with Washington's recognition of the new government in France following the revolution there, and doing this without consulting with Congress. Based on both of these analytic threads, the majority concluded that the Congressional mandate in question was invalid, because the power to recognize foreign governments rests solely with the executive branch.
This was a 5-4 decision, with the conservatives dissenting, three of them dissenting completely and Thomas dissenting in part (he felt that it was OK for Congress to make its requirement for consular reports of birth abroad, but not for passports).
Roberts' dissent emphasizes that this is the first time the court "accepted a president's direct defiance of an Act of Congress in the field of foreign affairs". Roberts expressed doubt that the president's power of recognition is exclusive. But he then goes on to say that "even if the president does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition".
Scalia filed a separate dissent in which he took apart the majority's position more systematically. Scalia notes that Congress has power over passports, due to the clause in the Constitution giving it power to establish a "uniform Rule of Naturalization". This really decides the issue, other than noting that putting "Israel" as the nation of birth on passports for kids born in Jerusalem does not equate to recognition of Israel's sovereignty over Jerusalem. Scalia's conclusion, then, is that "the court's decision does not rest on text or history or precedent".
Some observations:
Scalia vs. Thomas. Scalia and Thomas really sniped at each other in their respective dissents. They called each other by name over and over, in their attempts to specifically refute the other's arguments.
Kennedy again the swing vote. Kennedy wrote the opinion for the majority. This was one of many cases in which the four-member liberal bloc stuck together in this term, which was a very successful one for the liberal side. Part of this success is due to the four sticking together, and speaking with one voice rather than sniping at each other as the conservatives sometimes did. And they were happy to allow that "one voice" to be another justice, as in Kennedy here, with Roberts occasionally filling this role in other cases.
Breyer's position. Breyer filed a two-sentence concurrence stating that he believes the case presents a political question which the judicial system should stay out of. But he joined the majority because "precedent precludes resolving this case on political question grounds."
Roberts' deference to Congress. It has been noted that Roberts was the only justice to defer to the legislative branch on both the Obamacare and the gay marriage decisions. In this case, he again demonstrates that same deference to the legislative branch, which presumably is speaking the will of the people.
So who's right? This seems to be one of those hard cases that makes bad law. Jerusalem is such a sensitive issue on the international stage, that the majority felt it crucial that the U.S. speak with one voice on that issue. And the majority obviously agrees with the position of the executive branch here, rather than the legislative branch.
The idea that the relatively innocuous act of listing a kid's place of birth as "Israel" on his passport amounts to recognition of Israel's sovereignty over Jerusalem is silly. And, as Scalia points out, if there was indeed any real confusion about this, the president could easily issue a statement clarifying his administration's position on the matter. So, the dissent is legally correct.
Saturday, July 11, 2015
ACLU Turns Its Back on Sweet Cakes
I'm a liberal but I've never been enthusiastic about the ACLU. News recently that it has come out against the free speech rights of the Sweet Cakes owners has helped me to understand the reasons why.
Organizations the ACLU has represented in the past include the Ku Klux Klan and the Westboro Baptist Church. Individuals include Kareem Abdul-Jabbar, Arthur Bremer, David Duke, Sean Hannity, Ted Kaczynski, G. Gordon Liddy, Rush Limbaugh, Oliver North, Sirhan Sirhan, and George Wallace. Really no reason here for a liberal to support this organization.
The Sweet Cakes owners have recently been victimized by an administrative ruling that they are prohibited from talking about their refusal to bake a cake for a lesbian wedding. This is in addition to the absurd amount of $135,000 they have been ordered to pay for "pain and suffering" of the two lesbians. The "talking" which the labor dept. bureaucrat complained of in his ruling was describing what happened to a reporter, and posting a sign saying in part, "This fight is not over. We will continue to stand strong." The bureaucrat decided this was in violation of an Oregon law prohibiting a business from announcing it's intention to discriminate in the future.
So the ACLU is backing these people, right? No, the legal director, a dunce named "Mat dos Santos", wrote a column in the paper explaining that the ACLU is supportive of the ridiculous decision to punish the Sweet Cakes owners. How disappointing.
Organizations the ACLU has represented in the past include the Ku Klux Klan and the Westboro Baptist Church. Individuals include Kareem Abdul-Jabbar, Arthur Bremer, David Duke, Sean Hannity, Ted Kaczynski, G. Gordon Liddy, Rush Limbaugh, Oliver North, Sirhan Sirhan, and George Wallace. Really no reason here for a liberal to support this organization.
The Sweet Cakes owners have recently been victimized by an administrative ruling that they are prohibited from talking about their refusal to bake a cake for a lesbian wedding. This is in addition to the absurd amount of $135,000 they have been ordered to pay for "pain and suffering" of the two lesbians. The "talking" which the labor dept. bureaucrat complained of in his ruling was describing what happened to a reporter, and posting a sign saying in part, "This fight is not over. We will continue to stand strong." The bureaucrat decided this was in violation of an Oregon law prohibiting a business from announcing it's intention to discriminate in the future.
So the ACLU is backing these people, right? No, the legal director, a dunce named "Mat dos Santos", wrote a column in the paper explaining that the ACLU is supportive of the ridiculous decision to punish the Sweet Cakes owners. How disappointing.
Thursday, July 2, 2015
SCOTUS Gay Marriage Decision
The Supreme Court Friday issued its long-awaited gay marriage decision. As expected, Justice Kennedy delivered the majority opinion in favor of a right to same-sex marriage for a sharply-divided 5-4 court. The majority opinion is straightforward, and therefore not very interesting. Justice Kennedy, writing for a unified majority (there were no concurring opinions), reasoned that marriage was a fundamental right, and therefore denying that right to a segment of the population was a violation of the Due Process clause of the Fourteenth Amendment. There was also a halfhearted effort to base the decision on Equal Protection grounds, but there was none of the rigorous, step-by-step analysis that is required of Equal Protection decisions.
The dissents were much more interesting. Each of the four dissenters wrote a separate opinion.
Roberts dissent. The main dissent was written by Chief Justice Roberts, who painstakingly took apart the majority's argument point-by-point. The problem with the majority analysis is that it was not based on sound legal reasoning, and therefore, it was easy pickings to be demolished by Roberts' cogent dissent. Certainly the majority opinion contains much good reasoning which would argue in favor of a legislator changing the law in regard to gay marriage, but nothing indicating it was proper for a court to do so.
The Roberts dissent starts out be observing that "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening". It goes on to say that "The majority's decision is an act of will not legal judgment. The right it announces has no basis in the constitution or this court's precedent."
Roberts then gets to the details, examining the majority's argument that the court 's prior line of cases on marriage expands the definition of marriage, and this decision is therefore only a logical continuation of that line. The line of cases the majority relies on includes a case on granting mixed-race couples the right of marriage, granting prison inmates the right, and granting people who owe child support the right. However, Roberts aptly points out that the basic definition of marriage as between a man and a woman was never in question in any of these cases.
Roberts then examines the legal basis of the majority's position, which is substantive due process. This is clearly a contradiction in terms, and always has been, because"due process" refers to procedure, and not substance. This concept has been severely discredited and has practically died out; yet, the majority resurrects it from the legal cemetery in this opinion.
Substantive due process was first used in the infamous Dred Scott case in 1857. It reached its zenith in the case of Lochner v. New York, which Roberts refers to numerous times in his dissent. Lochner was a 1905 case which dealt with a New York law which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. The court struck down the law on dubious substantive due process grounds. That decision has come to be regarded by legal scholars as one of the worst decisions in Supreme Court history. The whole substantive due process theory is considered today to be totally discredited, and it is surprising that the court could find no better basis on which to base a decision in 2015 than this discredited 158-year-old joke of a legal concept.
The basic problem with substantive due process is that the court is substituting itself for a legislative body. The court is saying that "we have a better idea of how things should be than the people's elected representatives." This obviously is a huge overreach for the court, and totally improper.
When a court does this type of overreach, it risks the possibility that the executive branch will simply ignore its decision. After all, the supreme court has no ability to enforce its decisions; rather, it must rely on the executive branch to do so. This raises the possibility that the executive branch might do as Andrew Jackson did when the Supreme Court issued a decision in favor of Cherokee rights; Jackson replied, "John Marshall has made his decision, now let him enforce it." Jackson then proceeded to ignore the Supreme Court decision and to remove the Cherokees from their homeland and relocate them to present-day Oklahoma, over the infamous "Trail of Tears".
Concerning the majority's halfhearted Equal Protection argument, Roberts easily demolishes this position. He says that "the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position....In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States' 'legitimate state interest' in 'preserving the traditional institution of marriage'."
Roberts states that "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept". Roberts is actually making a very interesting point here; his point is that it is always better for people to work out their problems themselves, rather than have a "solution" imposed upon them from a higher authority.
Any good teacher understands this, and will seek to enable students to work out answers for themselves. The same goes for any good parent; rather than "hovering" around and solving every problem for their kids, a good parent will allow kids to grow by letting them work out their problems for themselves. A good family law judge will also recognize this, and require the parties to go to mediation to work something out they both can live with, rather than having a judge arbitrarily decide issues of child custody and visitation.
Scalia dissent. Scalia was his usual vitriolic, snide, sarcastic self in his criticism of the majority opinion. He writes right at the start about "this court's threat to American democracy". He says that "it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me."
As to the idea that marriage expands our freedoms, Scalia correctly points out that just the opposite is the case; marriage limits our freedoms, not expands them. Scalia states that "Freedom of Intimacy is abridged rather than expanded by marriage....Anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."
Thomas dissent. Thomas also makes some cogent points in his dissent. His basic point is that "liberty has been understood as freedom from government action, not entitlement to government benefits." He goes on to discuss what "liberty" means. It basically means the freedom from restraint. The 14th amendment can only be invoked if a citizen is being deprived of "life, liberty or property" without "due process of law". Thus, it cannot apply to this case.
It is interesting that Justices Roberts and Alito are the only dissenters not to join in on any of their fellow dissenters' opinions. In the case of Roberts, I think this is due to the fact that Justice Roberts has a sincere and honest desire to protect the legacy and reputation of the court. To join in an opinion which contains the vitriol and sarcasm that characterize the opinions of the three right-wingers is just not something he is inclined to do, even though he agrees with the points being made.
Alito dissent. In the case of Alito, it appears that Alito wants to emphasize an issue mostly ignored by his colleagues. That issue is the threat the decision poses to the religious beliefs of those opposed to same-sex marriage.
A few observations are in order.
Democracy. First, there is the idea emphasized by Scalia of "the threat to American democracy" which he thinks this decision represents. People like Scalia often talk about democracy when it suits their purposes, and ignore it at other times. The fact is, we do not have a democracy, we have a republic.
And thank God we do. We have seen instances all over the world in which democracy is used by the majority to persecute the minorities. Just look at Egypt, for example. The Western world rejoiced in 2011 when Mubarak was ousted as Egypt's ruler. However, the imprisonment of dissenters since then has gotten worse, and under the first democratically elected president, Morsi, the Christian minority was brutally persecuted. Many other examples from everywhere in the world could be given.
We had an idiot president take us into war in Iraq, on the misguided notion that toppling Saddam Hussein would take care of all of Iraq's problems. All it did was topple one ethnic group and substitute another for it as the ruling power. So, instead of the Sunnis persecuting the Shias, we now have the Shias persecuting the Sunnis. And civil unrest is at unprecedented levels. Such are the (rotten) fruits of democracy.
In India, we have a situation in which 24 of the 29 Indian states have regulations prohibiting either the slaughter or sale of cows. And to take this to an absurd extreme, the Indian state of Maharashtra now has a law making eating beef illegal, with violators subject to up to five years in prison! All this despite the fact that India has a constitution which says quite clearly that India is (supposedly) a secular state and recognizes freedom of religion. Thank God the U.S. is more serious about following its constitution than India is.
The U.S. was settled by people who had been persecuted in their countries of origin, either because of their religion, their ethnic group, or their unpopular ideas. Consequently, our constitution was written so as to make it clear that we would not have a tyranny of the majority in this country. Governmental power was diffused in many ways, such as the separation of powers, which spreads power around among the three separate branches. Similarly, power between the federal government and the states is divided, so that everywhere one looks there are checks on governmental power over its citizens.
So, for Scalia and the other dissenters to use the word "democracy" as often as they do shows a clear lack of understanding of what our system is all about.
Makeup of the court. As to whether the court can function properly as a "super-legislature", Scalia surprisingly goes into some detail about the personal characteristics of the Supreme Court's current makeup. They are as unrepresentative of the public at large as can be imagined. All nine graduated from either Harvard or Yale law schools. All but one are from one coast or the other, with only one coming from "the vast expanse in-between". Not a single evangelical Christian; in fact, and most amazingly, not a single Protestant! There are six Catholics and three Jews.
Some may rejoice at the superficial diversity currently existing on the court. Consider that the first Catholic wasn't appointed until 1836, the first Jew not until 1916, the first woman in 1981, and the first Hispanic in 2009. But look at where all this politically correct nonsense has gotten us. We now have Catholics (25% of the nation) and Jews (less than 2%) representing 100% of the court. Just think, important abortion cases are decided by a court that is 2/3 Catholic, a church which condemns abortion and denies communion to politicians who support abortion rights. Protestants like myself, along with other religious groups, represent 73% of the population, yet we have zero representation on the court!
Now, if the court were to fulfill its proper role making legal decisions instead of political ones, then we would not want it to be representative of any group except the group of top-flight legal scholars. But when the court gets into this sort of political quagmire, the elitist nature of the court's makeup becomes relevant.
The court's reputation. Roberts moans that "The stuff contained in today's opinion has to diminish this court's reputation for clear thinking and sober analysis." It is ironic that two of the dissenters (Scalia and Thomas) were part of the decision which by far did the most to damage the court's reputation. That decision was the atrocious Bush v. Gore decision in 2000.
What makes Bush v. Gore so atrocious is that the constitution gives the state legislatures the right to choose electors any way they want to. It does not even have to by a vote of the people (in contrast to the election of Senators, which under the 17th amendment must now be chosen by popular vote). In light of this, for the federal branch of government to interfere in how Florida was choosing its electors is downright shameful. And the hypocrisy of the right-wingers knows no bounds,. These are people who supposedly are so big on states rights and preserving the federalist nature of our system. And yet, this are the same group which interfered in a function which the constitution grants to the state of Florida to determine its electors for president.
After her retirement, Justice Sandra Day O'Connor acknowledged the damage done to the court's reputation, and admitted that taking the case was a mistake. Alan Dershowitz minced no words when he stated: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."
The constitution doesn't mention same-sex marriage. This is no doubt the lamest argument of all, made by Alito at the start of his opinion, when he says that "The Constitution says nothing about a right to same-sex marriage." There are two basic reasons why this argument is so lame.
First, the constitution doesn't mention a lot of things. There is no mention in the constitution of automobiles, of trains, of planes, of telephones, of the internet, and one could go on and on. Just because the constitution does not mention these things, doesn't mean that the constitution has no application to them.
But the real problem with this type of analysis is that it presumes that the government is all-powerful. That is, it presumes that "We the people" have no rights or freedoms except those specifically granted by the constitution.
This stands the constitution on its head. Our system, unique in the history of the world, makes the people sovereign, not the governmental rulers. The government only has the power which "We the people" have granted to it. Therefore, the correct inquiry is not "Does the constitution grant a right to same-sex marriage, but rather, "Does the constitution grant the power to the government to deny same-sex couples the right to marry?".
A reading of the Bill of Rights makes it clear it is not intended to be a complete list of rights and freedoms enjoyed by the people. Thus we have the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". And the 10th amendment, saying that "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This analysis points the way to what a proper basis for the court's ruling would have been. Marriage is a fundamental right, as even the dissent acknowledges. Nothing in the constitution gives the government the power to deny that right to a certain class of adult citizens. Yes, the power to regulate marriage is given to the individual states, but the states cannot exercise that power in a way that discriminates against a certain class of citizens. Basic freedoms must be allowed to flourish, even if not specifically mentioned in the Bill of rights. QED
The dissents were much more interesting. Each of the four dissenters wrote a separate opinion.
Roberts dissent. The main dissent was written by Chief Justice Roberts, who painstakingly took apart the majority's argument point-by-point. The problem with the majority analysis is that it was not based on sound legal reasoning, and therefore, it was easy pickings to be demolished by Roberts' cogent dissent. Certainly the majority opinion contains much good reasoning which would argue in favor of a legislator changing the law in regard to gay marriage, but nothing indicating it was proper for a court to do so.
The Roberts dissent starts out be observing that "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening". It goes on to say that "The majority's decision is an act of will not legal judgment. The right it announces has no basis in the constitution or this court's precedent."
Roberts then gets to the details, examining the majority's argument that the court 's prior line of cases on marriage expands the definition of marriage, and this decision is therefore only a logical continuation of that line. The line of cases the majority relies on includes a case on granting mixed-race couples the right of marriage, granting prison inmates the right, and granting people who owe child support the right. However, Roberts aptly points out that the basic definition of marriage as between a man and a woman was never in question in any of these cases.
Roberts then examines the legal basis of the majority's position, which is substantive due process. This is clearly a contradiction in terms, and always has been, because"due process" refers to procedure, and not substance. This concept has been severely discredited and has practically died out; yet, the majority resurrects it from the legal cemetery in this opinion.
Substantive due process was first used in the infamous Dred Scott case in 1857. It reached its zenith in the case of Lochner v. New York, which Roberts refers to numerous times in his dissent. Lochner was a 1905 case which dealt with a New York law which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. The court struck down the law on dubious substantive due process grounds. That decision has come to be regarded by legal scholars as one of the worst decisions in Supreme Court history. The whole substantive due process theory is considered today to be totally discredited, and it is surprising that the court could find no better basis on which to base a decision in 2015 than this discredited 158-year-old joke of a legal concept.
The basic problem with substantive due process is that the court is substituting itself for a legislative body. The court is saying that "we have a better idea of how things should be than the people's elected representatives." This obviously is a huge overreach for the court, and totally improper.
When a court does this type of overreach, it risks the possibility that the executive branch will simply ignore its decision. After all, the supreme court has no ability to enforce its decisions; rather, it must rely on the executive branch to do so. This raises the possibility that the executive branch might do as Andrew Jackson did when the Supreme Court issued a decision in favor of Cherokee rights; Jackson replied, "John Marshall has made his decision, now let him enforce it." Jackson then proceeded to ignore the Supreme Court decision and to remove the Cherokees from their homeland and relocate them to present-day Oklahoma, over the infamous "Trail of Tears".
Concerning the majority's halfhearted Equal Protection argument, Roberts easily demolishes this position. He says that "the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position....In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States' 'legitimate state interest' in 'preserving the traditional institution of marriage'."
Roberts states that "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept". Roberts is actually making a very interesting point here; his point is that it is always better for people to work out their problems themselves, rather than have a "solution" imposed upon them from a higher authority.
Any good teacher understands this, and will seek to enable students to work out answers for themselves. The same goes for any good parent; rather than "hovering" around and solving every problem for their kids, a good parent will allow kids to grow by letting them work out their problems for themselves. A good family law judge will also recognize this, and require the parties to go to mediation to work something out they both can live with, rather than having a judge arbitrarily decide issues of child custody and visitation.
Scalia dissent. Scalia was his usual vitriolic, snide, sarcastic self in his criticism of the majority opinion. He writes right at the start about "this court's threat to American democracy". He says that "it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me."
As to the idea that marriage expands our freedoms, Scalia correctly points out that just the opposite is the case; marriage limits our freedoms, not expands them. Scalia states that "Freedom of Intimacy is abridged rather than expanded by marriage....Anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."
Thomas dissent. Thomas also makes some cogent points in his dissent. His basic point is that "liberty has been understood as freedom from government action, not entitlement to government benefits." He goes on to discuss what "liberty" means. It basically means the freedom from restraint. The 14th amendment can only be invoked if a citizen is being deprived of "life, liberty or property" without "due process of law". Thus, it cannot apply to this case.
It is interesting that Justices Roberts and Alito are the only dissenters not to join in on any of their fellow dissenters' opinions. In the case of Roberts, I think this is due to the fact that Justice Roberts has a sincere and honest desire to protect the legacy and reputation of the court. To join in an opinion which contains the vitriol and sarcasm that characterize the opinions of the three right-wingers is just not something he is inclined to do, even though he agrees with the points being made.
Alito dissent. In the case of Alito, it appears that Alito wants to emphasize an issue mostly ignored by his colleagues. That issue is the threat the decision poses to the religious beliefs of those opposed to same-sex marriage.
A few observations are in order.
Democracy. First, there is the idea emphasized by Scalia of "the threat to American democracy" which he thinks this decision represents. People like Scalia often talk about democracy when it suits their purposes, and ignore it at other times. The fact is, we do not have a democracy, we have a republic.
And thank God we do. We have seen instances all over the world in which democracy is used by the majority to persecute the minorities. Just look at Egypt, for example. The Western world rejoiced in 2011 when Mubarak was ousted as Egypt's ruler. However, the imprisonment of dissenters since then has gotten worse, and under the first democratically elected president, Morsi, the Christian minority was brutally persecuted. Many other examples from everywhere in the world could be given.
We had an idiot president take us into war in Iraq, on the misguided notion that toppling Saddam Hussein would take care of all of Iraq's problems. All it did was topple one ethnic group and substitute another for it as the ruling power. So, instead of the Sunnis persecuting the Shias, we now have the Shias persecuting the Sunnis. And civil unrest is at unprecedented levels. Such are the (rotten) fruits of democracy.
In India, we have a situation in which 24 of the 29 Indian states have regulations prohibiting either the slaughter or sale of cows. And to take this to an absurd extreme, the Indian state of Maharashtra now has a law making eating beef illegal, with violators subject to up to five years in prison! All this despite the fact that India has a constitution which says quite clearly that India is (supposedly) a secular state and recognizes freedom of religion. Thank God the U.S. is more serious about following its constitution than India is.
The U.S. was settled by people who had been persecuted in their countries of origin, either because of their religion, their ethnic group, or their unpopular ideas. Consequently, our constitution was written so as to make it clear that we would not have a tyranny of the majority in this country. Governmental power was diffused in many ways, such as the separation of powers, which spreads power around among the three separate branches. Similarly, power between the federal government and the states is divided, so that everywhere one looks there are checks on governmental power over its citizens.
So, for Scalia and the other dissenters to use the word "democracy" as often as they do shows a clear lack of understanding of what our system is all about.
Makeup of the court. As to whether the court can function properly as a "super-legislature", Scalia surprisingly goes into some detail about the personal characteristics of the Supreme Court's current makeup. They are as unrepresentative of the public at large as can be imagined. All nine graduated from either Harvard or Yale law schools. All but one are from one coast or the other, with only one coming from "the vast expanse in-between". Not a single evangelical Christian; in fact, and most amazingly, not a single Protestant! There are six Catholics and three Jews.
Some may rejoice at the superficial diversity currently existing on the court. Consider that the first Catholic wasn't appointed until 1836, the first Jew not until 1916, the first woman in 1981, and the first Hispanic in 2009. But look at where all this politically correct nonsense has gotten us. We now have Catholics (25% of the nation) and Jews (less than 2%) representing 100% of the court. Just think, important abortion cases are decided by a court that is 2/3 Catholic, a church which condemns abortion and denies communion to politicians who support abortion rights. Protestants like myself, along with other religious groups, represent 73% of the population, yet we have zero representation on the court!
Now, if the court were to fulfill its proper role making legal decisions instead of political ones, then we would not want it to be representative of any group except the group of top-flight legal scholars. But when the court gets into this sort of political quagmire, the elitist nature of the court's makeup becomes relevant.
The court's reputation. Roberts moans that "The stuff contained in today's opinion has to diminish this court's reputation for clear thinking and sober analysis." It is ironic that two of the dissenters (Scalia and Thomas) were part of the decision which by far did the most to damage the court's reputation. That decision was the atrocious Bush v. Gore decision in 2000.
What makes Bush v. Gore so atrocious is that the constitution gives the state legislatures the right to choose electors any way they want to. It does not even have to by a vote of the people (in contrast to the election of Senators, which under the 17th amendment must now be chosen by popular vote). In light of this, for the federal branch of government to interfere in how Florida was choosing its electors is downright shameful. And the hypocrisy of the right-wingers knows no bounds,. These are people who supposedly are so big on states rights and preserving the federalist nature of our system. And yet, this are the same group which interfered in a function which the constitution grants to the state of Florida to determine its electors for president.
After her retirement, Justice Sandra Day O'Connor acknowledged the damage done to the court's reputation, and admitted that taking the case was a mistake. Alan Dershowitz minced no words when he stated: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."
The constitution doesn't mention same-sex marriage. This is no doubt the lamest argument of all, made by Alito at the start of his opinion, when he says that "The Constitution says nothing about a right to same-sex marriage." There are two basic reasons why this argument is so lame.
First, the constitution doesn't mention a lot of things. There is no mention in the constitution of automobiles, of trains, of planes, of telephones, of the internet, and one could go on and on. Just because the constitution does not mention these things, doesn't mean that the constitution has no application to them.
But the real problem with this type of analysis is that it presumes that the government is all-powerful. That is, it presumes that "We the people" have no rights or freedoms except those specifically granted by the constitution.
This stands the constitution on its head. Our system, unique in the history of the world, makes the people sovereign, not the governmental rulers. The government only has the power which "We the people" have granted to it. Therefore, the correct inquiry is not "Does the constitution grant a right to same-sex marriage, but rather, "Does the constitution grant the power to the government to deny same-sex couples the right to marry?".
A reading of the Bill of Rights makes it clear it is not intended to be a complete list of rights and freedoms enjoyed by the people. Thus we have the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". And the 10th amendment, saying that "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This analysis points the way to what a proper basis for the court's ruling would have been. Marriage is a fundamental right, as even the dissent acknowledges. Nothing in the constitution gives the government the power to deny that right to a certain class of adult citizens. Yes, the power to regulate marriage is given to the individual states, but the states cannot exercise that power in a way that discriminates against a certain class of citizens. Basic freedoms must be allowed to flourish, even if not specifically mentioned in the Bill of rights. QED
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