A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

To Appeal, Or Not To Appeal

The Biden Administration is weighing a tough decision: whether to appeal the federal court decision striking down the mask mandate the federal government imposed on air and train travelers during the COVID pandemic. It’s a very tough decision on both legal and political grounds.

According to news reports, the Justice Department will appeal the court ruling if the CDC decides that the mask mandate is still necessary to protect public health. That’s a bit strange, in a way, because the CDC decided only last week, just before the court ruling, that the mask mandate should be extended for an additional 15 days, until May 3, to allow the CDC to assess the impact of yet another COVID subvariant. It seems as though the DOJ is punting the decision to the CDC and, perhaps, hoping that the CDC will change course, decide that public health now doesn’t require an extension, and allow the DOJ to cite that determination in electing not to appeal. In the meantime, the DOJ won’t pursue an immediate stay of the federal court’s decision, which means that the mask mandate won’t be enforced unless and until an appeal occurs and the appellate court rules to the contrary.

The legal and political stakes in the decision on a potential appeal are high. Legally, the issue is whether the federal government wants to take the risk that a higher court will agree with the district court judge and establish a firmer precedent that the CDC doesn’t have the kind of sweeping power it has exercised over the past two years. Some people describe the district court decision as a poorly reasoned “legal disaster,” while others contend it is a reasonable interpretation of statutory text that simply was not intended to authorize an administrative agency to unilaterally impose nationwide mask mandates. Regardless of how you come out on that issue, for now the decision is simply the opinion of a single district court judge. If an appeal occurs, the federal government runs the risk of an adverse decision by a federal court of appeals and, potentially, the Supreme Court–raising the possibility that, if the nation’s highest court agrees with the federal district court judge in this case, the CDC’s ability to issue future public health mandates could be eliminated, unless and until Congress decides to amend the statute to clarify what is permitted.

Politically, the stakes are equally high because there are strong feelings on both sides of the masking issue. News reports in the wake of the federal court decision reported pro and con comments from travelers about the decision, while videos of cheering passengers removing their masks mid-flight appeared on social media. Whatever decision the federal government makes is likely to upset one faction or the other, leaving the Biden Administration at risk of being labeled irresponsible in its stewardship of public health, or a lily-livered adherent to pointless governmental paternalism. No politician would be happy about either of those outcomes. On the other hand, if the CDC suddenly decides that, under the current circumstances, the mask mandate is no longer needed to protect public health, it has provided the Biden Administration with some political cover–and those who want to wear masks will of course be permitted to do so.

It would be interesting to know whether, behind the scenes, the Biden Administration is encouraging the CDC to move in one direction or another. It’s hard for politicians to restrain themselves from politicking. We’ll never know for sure, because if that information came out it would undercut the depiction of the CDC as the neutral, objective, apolitical entity that is focused solely on scientific and medical evidence and the public health.

The Limits Of The Law

Today the International Court of Justice, the highest court in the United Nations hierarchy, ruled by a vote of 13-2 that “the Russian Federation shall immediately suspend military operations that it commenced on 24 February 2022 in the territory of Ukraine.” (The Russian and Chinese judges dissented.) The majority opinion concluded that there was no evidence substantiating Russia’s stated reason for the invasion, which was that Ukraine was committing genocide against Russian-speaking peoples in eastern Ukraine.

Under the UN Charter, the Court’s rulings are binding on the parties, and the Court has stated that they create “binding legal obligations” on the parties. The article linked above notes, however, that Vladimir Putin is nevertheless “unlikely” to abide by the order and cease the murderous invasion of Ukraine, and the Court has no standing army it can hurl into the fray, or any other means of enforcing its ruling. It’s entirely predictable that the Russians will ignore the order and undoubtedly will issue propaganda seeking to undercut the credibility of the Court and depict the judges as stooges of the imperialist West.

Presumably everyone understood this at the outset, and the Ukrainians nevertheless thought that the effort was worth it, if only to further evidence the barbaric and lawless actions of the Putin regime. I’m not sure that the decision is a very positive thing for the ICJ, however, because it is not good for courts to issue orders that they know will never be enforced or enforceable. A record of unenforceable orders undercuts the credibility of the court and can only serve to encourage noncompliance with other orders in the future. The Russian actions in the Ukraine are so heinous that the ICJ apparently decided to go ahead and issue the order, regardless.

The situation reminds me of an incident I learned about in law school. In 1832 the U.S. Supreme Court, in Worcester v. Georgia, issued a decision about Georgia’s rights with respect to Cherokee tribal lands. President Andrew Jackson strongly disagreed with the decision and famously stated: “John Marshall (the Chief Justice of the Supreme Court) has made his decision; now let him enforce it.” Because both the President and the state of Georgia basically ignored the ruling, it had no effect, and the terrible “Trail of Tears,” in which Cherokees were forced to relocate to Oklahoma at the cost of thousands of Native American lives, was the ultimate result. It took decades for the Court’s credibility to recover to the position it now occupies, where the public outcry if an American President ignored a Supreme Court ruling would quickly make the President’s position unsustainable.

Unfortunately, Russia is not the United States, and the ICJ does not have the same implicit authority in Russia that the U.S. Supreme Court has in our country. The ICJ’s ruling today is undoubtedly correct, and it provides another reason to steadfastly oppose Vladimir Putin’s egregious activities in the Ukraine–but it will be up to history to determine whether the impact of Putin’s flouting of the order on the International Court of Justice’s credibility, and on parties’ compliance with its future orders, was worth it.

Bringing Different Forms Of Diversity

Much has been written about how Judge Ketanji Brown Jackson, if confirmed by the Senate, would become the first Black woman to serve on the U.S. Supreme Court. Less has been said about the other diversity elements that Judge Jackson would bring to the Court–diversity elements that I think also are important.

Judge Jackson would be the first former federal public defender to become a Supreme Court Justice, and she also served for a number of years as a federal district court judge. These are significant points of experiential diversity. Public defenders are a key part of the criminal justice system. Judge Jackson’s work in that role is bound to inform her thoughts on criminal justice issues that may come before the Court, such as prosecutorial misconduct, setting bail, and sentencing. Similarly, Judge Jackson’s years spent supervising a district court docket–conducting jury trials and bench trials, deciding motions in civil and criminal cases, resolving evidentiary disputes, and making her own sentencing decisions, among other activities–will give her a practical perspective on those issues that will be helpful to the Court and that are not possessed by those Justices whose pre-Court resumes don’t include those kinds of experiences.

I’m a big proponent of diversity in all forms, including the diversity of viewpoint that can be shaped by direct, hands-on experience and observation. Supreme Court decisions that are informed by a Justice’s practical experience are bound to result in the articulation of more knowledgeable, workable rules that are meant to apply to the everyday workings of the American judicial system. If the Supreme Court were to consider, for example, the issue of how district courts must address a particular issue, I would expect Judge Jackson’s boots-on-the-ground views on that issue would be persuasive to other members of the Court. Even if her opinion on the issue didn’t command a majority, the discourse will inevitably help to shape a better, sharper, and more focused approach.

I’ll be interested in seeing whether the confirmation hearings on Judge Jackson will address these additional points of diversity, and in the future I’ll continue to hope that Presidents consider other yet other forms of diversity in making Supreme Court nominations. For example, it would be nice to see more nominees from non-Ivy League law schools, and more nominees who did not serve as Supreme Court clerks. (Judge Jackson is a Harvard Law graduate and clerked for Justice Breyer, whose retirement allowed her nomination.) Those of us who went to other law schools and didn’t obtain Supreme Court clerkships would like to think we’ve still got a shot.

The Unanimity Factor

From my perspective, one of the worst things that has happened to our federal governmental system has been the increasing efforts to apply political notions to our federal judiciary. Supreme Court nominations have been politicized for a while–although not for long as you might think; former Justice Antonin Scalia, a conservative stalwart, was confirmed by a unanimous Senate, 98-0, in September 1986–but now circuit court and even district court nominations are being treated politically, too. For example, Law360, which does daily on-line reporting on legal issues, breathlessly reports on how many judges President Biden (and before him, President Trump) is appointing, how many vacancies are open, and similar information, as if the make-up of the federal judiciary is some kind of political horse race.

And to read what some people have to say about the Supreme Court, you’d think that the Court is hopelessly divided along partisan political grounds, and that those Justices in black robes are at each others’ throats and at risk of throwing punches and karate kicks.

That’s why it’s interesting to observe that the Supreme Court has issued a remarkable number of unanimous decisions this term, for a Court that is supposed to be a festering sore of reflexive political division. And as we approach the end of the Court’s term, when many of the biggest and most controversial decisions traditionally are announced, the theme of unanimity has continued. That means that the Justices who some would contend are motivated entirely by their political affiliations have somehow managed to set aside their differences and mysteriously reach the same decision on the case presented to them.

The unanimity has occurred in a broad sweep of cases, including cases involving the authority of tribal police, whether there should be a presumption in favor of the credibility of immigrants, cases involving unlawful entry into the United States and an environmental clean-up dispute between the U.S. government and Guam, and cases involving the interpretation of a federal statute involving efforts to block collection of a tax and the scope of an exception to the Fourth Amendment prohibition on warrantless searches and seizures. And just this week, the Court issued another unanimous decision on whether the City of Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless that organization certified same-sex couples as foster parents violates the free exercise of religion clause of the First Amendment.

The issue here isn’t whether the Court’s decisions are right or wrong on their merits, or as a matter of public policy. The key point is that a Court that is supposed to be on the verge of ideological fisticuffs is somehow managing to reach complete agreement on how to resolve a slew of controversial cases. And people have noticed the many instances of unanimity, and some have wondered whether the Court is trying to send a message to those who view its work in political terms.

Maybe, just maybe, the women and men who make up the highest court in the land are simply acting as impartial, fair-minded judges deciding the cases before them, on their merits and without regard to politics. It would be wonderful if the media, and the politicians, and the pundits and commentators who want to turn the federal judiciary into another political arm of government could just assimilate that reality–but in our current hyper-politicized times, that’s probably just too much to ask for. If only they were as objective and fair-minded as our jurists.

Taxing Remote Workers

Many of us have been working remotely since the coronavirus pandemic hit in earnest last March. If your place of work and place of residence are in the same state, there’s no problem. But what if you live in one state and would work in another state — that is, if you were still going into the office? Which state gets to share in the tax revenue on your income?

New Hampshire is asking the U.S. Supreme Court to directly answer that very question, in a challenge to a Massachusetts law that says Massachusetts may tax nonresidents who used to work in the state but now work from home instead. Other states are interested, too — some because they have tax laws similar to Massachusetts (like New York and five other states) and some because they are losing tax revenues as a result of such laws (like New Jersey and Connecticut).

The stakes are high, because the treatment of remote worker taxes can mean big bucks for state budgets. New Jersey, for example, estimates it will credit thousands of New Jersey residents who used to work in New York City, but now work remotely, for about $1.2 billion in income taxes paid to New York starting in March 2020. In an era where COVID shutdowns have cost countless jobs, and many state budgets are dealing with the lower tax revenues generated by the decreased economic activity, the treatment of taxes to remote workers could tip the balance between a balanced state budget and a budget that is in the red.

The Massachusetts law being challenged in the Supreme Court was adopted in April 2020; Massachusetts said the law just maintains the status quo income tax treatment of remote workers so Massachusetts won’t have to determine precisely where they are working during the pandemic. New Hampshire, which doesn’t have an income tax, says that by taxing New Hampshire residents who formerly commuted but now are actually working from home, Massachusetts is invading New Hampshire’s sovereignty and violating the due process and commerce clauses of the Constitution. New Hampshire has invoked the Supreme Court’s original jurisdiction, which allows one state to sue another state directly in the high court, without going through lower courts, if the Court gives them permission to do so. The Supreme Court has asked the Biden Administration to weigh in on whether it should take the case. There’s some urgency to this issue, both because of the budget crisis in many states and because tax season is just around the corner.

Taxation of remote workers is just one of the many interesting legal issues that are going to be addressed as a result of the pandemic, the governmental shutdown orders, and the resulting disruption of what used to be normal practices — practices that now may be morphing into a “new normal” where remote work is much more commonplace. And you can be sure of one thing: when a legal issue raises the prospect of shifting billions of dollars of tax revenue, you can expect cash-hungry states with their eyes on their budgets to fight like cats and dogs for every cent.

Only In France

For all of the talk about globalization, every once in a while we get a reminder that there are still a lot of differences between countries.  One such reminder came this week, in a news story about a court ruling from France.

man-woman-holding-hands-table-with-glasses-wine-restaurant_23-2148016832

It’s a story about the unfortunate Xavier. a security technician who worked for a railway company near Paris.  Xavier was sent on a business trip to central France by his employer.  One night on the trip, the amorous Xavier had an extramarital relationship with a woman at her home one night — and then keeled over, dead, from a heart attack apparently related to the encounter.  A health insurance fund concluded that Xavier’s demise was the result of a work-related accident, making the employer liable.  The employer appealed, saying Xavier should be viewed, instead, as having interrupted his work-related trip for his tryst, so that the company was not responsible for his post-coital death.

Earlier this year a French court rejected the employer’s arguments.  Under French law, any accident that happens on a business trip is considered to be work-related, even if the activity is not closely related to the purpose for the trip.  The court ruled that French law protects employees engaged in everyday activities during business trips, unless they interrupted planned business activities, and the employer couldn’t show that Xavier was supposed to be working when he was having his fatal sexual encounter.  And get this:  the court noted that the insurance fund argued that sex was part of everyday life, “like having a shower or a meal.”

Casual sex with a stranger while you’re on a business trip is akin to taking a shower or eating breakfast?  Only in France.

Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

gettyimages-1066751830The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

Primate Rights

A New York state appeals court has rejected a request to issue a writ of habeas corpus to free two chimpanzees who are kept in cages — one in a warehouse in Gloversville, New York, and the other in a storefront in Niagara Falls, New York.  The writ sought to have the primates moved from their cages to an animal sanctuary.

article-2034439-0dbb7fa500000578-543_306x338In the case, the New York courts were presented with expert evidence “that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.”  In a nutshell, however, the court of appeals concluded — correctly, in my view — that the fact that chimpanzees exhibit some humanlike characteristics is simply not enough to make them “persons” in the eyes of the law.  The court reasoned that “[t]he asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.”  And, the court added, the flip side of personhood would mean that chimpanzees could be held criminally accountable for killing or injuring humans — something that has not been done, obviously, because chimpanzees do not have moral culpability for such acts, nor do they have the capacity to understand the proceedings against then or to assist in their own defense, which is what courts typically look for in deciding whether a defendant is competent.

You can read the court of appeals decision here.

Although I think the law cannot recognize primates like chimpanzees as “people,” with all of the rights of people, that doesn’t mean they shouldn’t be afforded some rights, beyond being viewed as mere property.  The court of appeals’ decision summarizes expert evidence that indicates that chimpanzees have an impressive array of qualities that we associate with thinking beings, such as “recognizing themselves in reflections,” “setting and acting toward goals such as obtaining food,” “communicating about events in the past and their intentions for the future, such as by pointing or using sign language,” “protecting others in risky situations, such as when relatively strong chimpanzees will examine a road before guarding more vulnerable chimpanzees as they cross the road,” “making and using complex tools for hygiene, socializing, communicating, hunting, gathering, and fighting,” “counting and ordering items using numbers,” “showing concern for the welfare of others, particularly their offspring, siblings, and even orphans they adopt,” and “resolving conflicts” and “apologizing.”

At some point, we need to ask ourselves — do creatures that exhibit these kinds of qualities and characteristics really deserve to be put into cages at the whim of whoever purchases them?

The End Of Privacy As We Know It

The right to personal privacy isn’t a right that is specifically recognized in the Constitution or the Bill of Rights, but it has been a recognized area of the law for decades, as well as a treasured ideal for many Americans.  For many people, the right to be left alone is an important one.

But this is another area where technology is simply changing the game.  Whether it is cookies left on personal computers that lead to pop-up ads that are specifically targeted to your website viewings, search engines that can sift through mounds of news stories, photos, and data in split seconds whenever a name is entered, tracking mechanisms on cell phones, surveillance cameras on every street corner, drones in the air, computer hacking, or listening devices that are routinely used by governmental entities, technology makes the ability to maintain some zone of privacy harder and harder.

20130203_adde1Social media also has had a significant impact.  Anyone who likes the convenience of Facebook as a way to keep in touch with their old friends, family members and colleagues is giving up a piece of their privacy.  And when technology and social media meet, the erosion can become even more pronounced.

Consider the news that a software developer has used the advances in facial recognition software to develop an app that allows you to take a photo of a stranger in a public place and immediately run a search for the identity of that person through Facebook.  It’s called Facezam, and it’s apparently going to launch on March 21, although Facebook is raising questions about whether the software is in compliance with the Facebook privacy policy.  But even if Facebook quashes the idea as to Facebook, you would imagine that the app could be modified to be applied to search through other sources of photos.

It’s creepy to think that random strangers, simply by taking your picture in a public place and unbeknownst to you, could then find out who you are and, if they’re so inclined, track you down.  One person in the story linked above describes that concept as the end of anonymity in public places, and I think that’s right.  If you want to guard against it, you can withdraw from any social media, refuse to get your photo taken, avoid going out in public except in disguise, avoid any travel, and stay in your room.  Those aren’t especially attractive options, are they?

Welcome to the Brave New World!

 

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

Peanuts Envy

Should people who have peanut allergies be permitted to pre-board airplanes, along with the folks in wheelchairs?

That’s the subject of a complaint filed last week with the Department of Transportation by Food Allergy Research and Education (“FARE”), a group that advocates on behalf of people with food-borne allergies.  It alleges that American Airlines is breaking the law and discriminating against those who have adverse physical reactions when exposed to peanuts by not accommodating them and allowing them to pre-board with others.

90634998-280x186For its part, American Airlines — which doesn’t serve those little bags of peanuts to its passengers, incidentally — notes that it limits pre-boarding to people with physical disabilities that require them to get assistance in making it down the jet bridge and into their seats.  AA states that its planes are cleaned regularly, but the cleaning efforts, and for that matter the air filtration systems on the planes, are not designed to remove all traces of nut allergens. The airline states that it cannot establish “nut-free zones” on its planes, and it does not prevent other passengers from bringing nuts on board.

FARE contends that people with peanut allergies, and those who are traveling with them, should be permitted to pre-board so they can wipe down the seats, armrests, and trays, or even cover them.  It notes that, unlike American Airlines, Delta allows peanut allergy sufferers to pre-board upon request.

It’s one of those weird issues that seem to crop up more and more in the modern world.  There’s no doubt that people who have peanut allergies can have severe reactions when exposed, up to and including going into anaphylactic shock.  At the same time, it doesn’t seem like people with peanut allergies really need pre-boarding to the same extent that, for example, people in wheelchairs do.  People with peanut allergies don’t require physical assistance, and even if they need to wipe down their seats, there seems to be no reason why that can’t be done when they board with everyone else, as part of the settling-in process that inevitably occurs when people board planes.

If people with peanut allergies can pre-board, doesn’t that open up pre-boarding to people with other conditions who could plausibly claim they should be accommodated, too?  People with fear of crowds, for example, could argue that they shouldn’t be required to wait in the packed-in throng on the jet bridge, which could provoke an anxiety attack.  And peanut allergy pre-boarding seems to open the door to potential abuse, because airlines have no way of knowing whether someone who claims to have an allergy really does.  Speaking as someone who has seen fellow travelers push the envelope on carry-on items and in jostling for early boarding, I’m guessing that if FARE prevails on its complaint we’re going to see a huge spike in claimed peanut allergies.

Sick Subculture

In case you missed it, there’s a trial underway in Florida in which Terry G. Bollea — better known to the world by his stage name of Hulk Hogan — is suing Gawker.com for posting a grainy, secretly recorded video on its website that purportedly shows the retired wrestler having sex with a friend’s wife.

ap_651364014819_-_h_2016Normally I wouldn’t care about a tawdry legal clash between a fringe celebrity who claims invasion of privacy and a website like Gawker.com, but yesterday I happened to read a news story about one piece of testimony in the case that stopped me in my tracks.  The testimony came when a former Gawker editor-in-chief, Albert J. Daulerio, was being questioned about what he considered newsworthy and where he drew the line when it came to posting sex videos of celebrities.

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” the lawyer asked.

“If they were a child,” Daulerio answered.

“Under what age?” the lawyer asked.

“Four,” Daulerio responded.

Gawker later said that Daulerio was being “flippant” because, you know, people are always flippant when they are being questioned by a lawyer in a legal proceeding.

Have we really come to this point?  I can’t imagine why any adult would record a sex tape, much less why anyone would want to watch it — but to suggest, even in a “flippant” way, that sex tapes of children would be newsworthy and should be posted on the internet is, in a word, sick.  Any website that would articulate such an editorial policy isn’t really a “news” website at all, but just a mechanism for feeding the voyeuristic interests of a seamy underside of American culture.

There are important legal issues to  be explored at the intersection of the internet, the First Amendment, and the privacy rights of celebrities large and small.  No doubt the Hulk Hogan lawsuit against Gawker will help to develop the law in that area, but it’s also obviously exposing something equally important about the internet — something that is small and sick and sad about our society.  Have we touched bottom yet?

Vets End

For decades it squatted on the west bank of the Scioto River, directly across from downtown Columbus — a bland, nondescript, hunched building, instantly forgettable to all who drove past it, noteworthy only for its absolute, unflinching genericness.

The Franklin County Veterans Memorial was home to trade shows and auto shows and generic meetings of groups.  No one really cared much about it, one way or the other.  And when Franklin County Commissioners voted to demolish the building as part of a plan to add some much-needed dash and character to the west bank of the river, no one really cared much one way or the other about that, either — with one striking exception.

For one group, Veterans Memorial was a grotesque living reminder of a horrible few days — a period in their lives that was so terrible that just looking at the building and parking lot brought back soul-crushing recollections of angst and strain, panic and pressure, and the ultimate in testing nightmares.  That is because, for years and years, every new law school graduate who wanted to be licensed to practice law in Ohio had to come to Veterans Memorial in Columbus and sit in its cavernous main room to take the multi-day bar exam.

After three years of law school, your professional and financial future rode entirely on your performance on one test.  It was an all-or-nothing proposition:  pass, and you went on to become a practicing lawyer; fail, and . . . well, failure was unthinkable.  Everyone who has taken the bar exam remembers the sense of suffocating pressure, the grim expressions of their fellow test-takers, and the oppressive atmosphere in that testing room.

Some lawyers who successfully navigated the bar exam make jokes about it now, much like people who’ve been through a painful divorce attempt awkward humor about it.  But the jokes aren’t funny, and every lawyer knows it.  Deep down, every lawyer in Ohio is secretly thrilled that Vets Memorial has been reduced to rubble, and that the ugly physical reminder of their ugly rite of passage is no more.  We are free.

Good riddance!  May the rubble itself burn in hell.

Forcing Adherence To The Law

We may be on the verge of a new era in personal choice and personal responsibility:  Ford is getting ready to roll out a new car that simply will not allow you to exceed the speed limit.

From a technology standpoint, the Ford S-Max is an interesting step forward.  The car will come equipped with a camera that will read speed limits posted on roadside signs.  The S-Max will then automatically adjust the amount of fuel to the engine to prevent the car from reaching speeds above that posted limit.  So, rather than using braking action to control speed, the S-Max will use the operation of the engine itself to prevent any lawlessness by the lead-footed driver.

The Ford S-Max is in line with a recent trend to use technology to force adherence to the law, whether it is through electronic ankle bracelets that control where people can and cannot go or proposals for cars that require you to pass a breathalyzer test or to fasten your seat belt before the ignition will engage.  Leave aside the issue of whether requiring complete compliance with the law at all times is always safe and smart — there are circumstances, for example, when exceeding the speed limit to get out of the way of other vehicles in a merging situation is the only prudent course — and consider, instead, what such technological controls do to affect concepts of personal morals and to encourage governmental intrusion into personal choice.

If you have no ability to break certain laws, do you even need to develop a personal code of ethical behavior that will apply to your daily life and help to guide your actions?  If you can’t make the wrong choice, what does the concept of personal choice really mean?  And if we start to accept routine technological controls on our behavior, will government entities be tempted to increase the range of controls, by enacting new laws that regulate behavior and by requiring further technological limitations on our ability to act freely?

The Ford S-Max is a long way from futuristic, sci-fi worlds where computer chips are implanted into human brains to rigorously control behavior, but every journey begins with a single step.  I’m not going to be in the market for an S-Max — if the choice is left up to me.