Patterico's Pontifications


More on the Supreme Court’s Twisting of Language, GMTA Edition

Filed under: General — Patterico @ 8:40 pm

Kevin Gutzman on Facebook:

Today, Justice Anthony Kennedy joined the Supreme Court’s four avowed Progressives in saying that when the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” the word “Legislature” can be understood as referring to some body other than the state legislature.

I’m here to tell you not to defer to lawyers when it comes to the Constitution. There is nothing special in three years of education about torts, legal ethics, criminal law, etc., that would enable you to conclude that “Legislature” does not mean “Legislature.” What the five-judge majority in this case did was decide that it preferred not to enforce the Constitution in this case. Take it from a graduate of a ritzy law school: that’s all that happened.

The “ritzy law school” to which he refers? The University of Texas at Austin.

I think another graduate of that same institution had a similar complaint just this morning.

PennLive Editor Is Rebuked For Censorship, But Continues To Deny That Is What He Meant When He Said “As a result of Friday’s ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage. These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic”

Filed under: General — Dana @ 8:13 am

[guest post by Dana]

Tucker Carlson called out PennLive editor, John Micek, who announced his decision to censor commentators from speaking out against gay marriage in the news outlet’s op-ed pages. The pages where people typically, opine.

In spite of Micek doubling down on his claims that he was just attempting to promote “civil” discourse, Carlson was relentless:

“You made it pretty clear. You have contempt for people who disagree with your views,” Carlson said. “You consider them bigots and you don’t think that they ought to be able to express those views because they’re illegitimate. That was clear.”

“No, not at all,” Micek said. “What we were trying to do — and perhaps we missed a little in the execution — was to try to create a space for civil discussion in the pages of Pennlive, while allowing reasonable and intelligent debate on the issue. I fully recognize that people of good will and deeply held conviction are going to differ with the high court on this decision, but our intent, I think, and we might have missed this initially, was to create a space for civil discussion.”

“Civil discussion, really?” Carlson snapped. “What’s civil about describing people who disagree with you as bigots, comparing them to anti-Semites and racists? That’s the opposite of civil.”

“I think there actually might be a context problem there,” Micek said. “I was trying to create a space between people of good will and, again, intelligence who want to debate the issue, and those who may come at it with invective.”

Carlson had the last word in the matter:

“With all respect, I thought your first statement was crystal clear. I thought it was the opposite of what you’re saying now. I think it’s really clear you have contempt for people who disagree and that you don’t want to hear their voices, and so if you sincerely changed your view in that, I congratulate that, but I thought it was very revealing.”

“We’ll have to agree to disagree with my views,” Micek said.

“Yeah, I find them abhorrent,” Carlson concluded.

Video at the link.


“Plain Meaning” Takes Another Supreme Blow

Filed under: General — Patterico @ 7:43 am

The Elections Clause of the U.S. Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.

Today the Supreme Court, in a decision by the leftist voting bloc plus Anthony Kennedy, held that “the Legislature” doesn’t just mean, you know, the legislature. It can also mean “the People of the state through a ballot initiative.”

In a special irony, Chief Justice Roberts complained in dissent that the majority was ignoring the “plain meaning” of the Constitution.

Supreme Court Upholds Oklahoma’s Three-Drug Execution Protocol

Filed under: General — Patterico @ 7:25 am

The decision seems pretty narrow, inviting further litigation down the road. Still, a reminder that Roberts and Kennedy often vote in a manner consistent with judicial conservatism, unlike the liberal bloc that always votes in lockstep.

Not to worry. I feel confident that the precedents written by Anthony Kennedy will be used to find the death penalty unconstitutional one day, probably in my lifetime. Evolving standards gonna evolve.

But Of Course: Legally Protecting The “Unusually Sensitive”

Filed under: General — Dana @ 6:32 am

[guest post by Dana]

Further and onward we go into this brave new world. And though we may momentarily stumble as we try to keep our balance under the sweeping wave of progress, we have not arrived here with disbelief or shock, but rather with a hard, savvy understanding of precisely what is happening and why it is happening. Because we have not been caught off guard or unaware. We have all along been watching the shift in the cultural and political landscape and pushing back in resistance. This especially as we have always known where that long trail of bread crumbs, the size of red flags which mark the leftward path of our nation, would lead. Admittedly, the opposition’s tactics may be surprising but the outcome certainly isn’t. So here we are. We have entered the mothballing season of the “reasonable man”.

With that, the legal elite continue apace in this mad season of progress:

A group of judges, attorneys and law professors recently voted to make tapping the shoulder of a Muslim woman to ask for directions potentially punishable in a U.S. court of law. This group, the American Law Institute, is an elite private organization that includes the justices of the U.S. Supreme Court, the chief judges of the U.S. Courts of Appeal and the highest state courts, most law school deans, some law professors and private attorneys.

Here is the background. The American Law Institute periodically issues “restatements” that attempt to codify the common law—but also shift the law in the direction the institute wants it to go. In 1964, for example, the institute’s Restatement of Torts established the liability of sellers to consumers for defective products regardless of fault. At the time only 16 states had taken this position. Now it is the law everywhere.

The Arizona Supreme Court has ruled that American Law Institute restatements are law in all subsequent decisions when there is no state statute to the contrary. The U.S. Supreme Court on average cites the institute at least once a month.

On May 20 the American Law Institute approved, by a very close vote, significant changes to the section of its new Restatement of Torts dealing with assault and battery. The changes will have far-reaching, and extremely troubling, social and legal ramifications—including favoring some religious beliefs over others.

The institute’s restatement defines the tort of battery as any contact with another person that “offends a reasonable sense of personal dignity” or—the new addition—contact that is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”

To be a battery, the contact or touching must be offensive. That’s to exclude the occasional bumps we experience walking through a crowd. And the law always measured what constituted an offense based on the views of a reasonable person. That way a judge can dismiss a frivolous claim. However, the American Law Institute now proposes that personal contact is a tort if the defendant knows that it will be offensive to someone who is “unusually sensitive.”

The writer explains the danger this presents:

[S]uppose a patient tells a hospital, “I don’t want any Jewish doctors or nurses to touch me.” An earlier draft of the institute’s restatement said, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference” because it violates “public policy.” But the final accepted draft eliminates the words, “or religion.”

So if a hospital does not obey a religious bigot’s demand, it risks a lawsuit, jury trial and punitive damages. And insurance does not often cover a battery. Thus if the trial takes place in a community with a significant Muslim population, the hospital will be more likely to settle—an outcome that will encourage religious bigotry.

Further, how this “restatement” would favor one religion over the other:

Consider John Doe, waiting at a bus stop, who taps a woman wearing a Muslim veil on the shoulder to get her attention and ask for directions. The institute’s restatement suggests that Mr. Doe might be liable for committing battery. A jury might find that a reasonable person would know that males aren’t supposed to make bodily contact with females not in their family. But if the woman touches Mr. Doe, she’s not liable, because he follows a different religion or no religion at all.

As a result, the change would be enormous:

In North Carolina, an employee sued his supervisor for assault and battery because the supervisor, in his own office, smoked a cigar. There was no company rule against that, but the employee had warned the supervisor that he found cigar smoking “obnoxious.” A state court dismissed the case (McCracken v. Sloan, 1979) because the employee’s “mental distress” was not enough for assault and battery. The American Law Institute says: “This case would very likely result in liability today.”

A final warning:

No court ever has adopted the concept, as a widely used casebook put it, that an individual with an “abnormally acute sense of personal dignity” could make another liable for battery. Nor has the American Law Institute—until now.


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