Category: Law

It was okay to discriminate against white people, but maybe it is not okay to discriminate against Asians

by philg

“In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America” (scotusblog.com):

In 2003, the Supreme Court ruled in Grutter v. Bollinger that universities may consider race in their admissions processes as part of their efforts to achieve diversity on campus. On Oct. 31, the justices will hear oral arguments in a pair of cases asking them to overturn Grutter and outlaw race-based affirmative action in higher education altogether.

The challengers urge the justices to rule that the Constitution and federal civil rights laws bar any consideration of race in college admissions. But the universities at the center of the dispute, as well as their supporters, counter that overruling Grutter would have sweeping effects well beyond university admissions, affecting everything from the performance of U.S. businesses to the practice of medicine in an increasingly diverse society.

Both of the lawsuits were filed in federal court in 2014 by a group called Students for Fair Admissions, which describes itself as “dedicated to defending the right to racial equality in college admissions.” The group was created that same year by Edward Blum, a stockbroker and conservative activist who, though not a lawyer, has backed other prominent lawsuits challenging the consideration of race in undergraduate admissions as well as a challenge to the constitutionality of the Voting Rights Act. SFFA says it has more than 20,000 members.

The two universities being challenged are Harvard University and the University of North Carolina. But according to Harvard’s brief, over 40% of all U.S. universities — and 60% of selective universities — consider race in some form during their admissions process. The cases being heard on Monday could affect all of them.

“Consider race” = “discriminate by race” and it was legally okay for decades despite a U.S. Constitution that apparently barred such discrimination, at least for the government and its affiliates. I wonder if we can cut through all of the briefs that have been filed in this case. Can the issues be summarized with the following?

  • It is settled law that discriminating against white people is okay and, in fact, something to be proud of.
  • Asians now wear the “people of color” mantle.
  • It is not okay to discriminate against one subgroup within “people of color” in favor of another subgroup within that victimhood category.
  • Universities are not just discriminating against white people (permissible/legal/praiseworthy), but they’re also discriminating against Asians (impermissible/illegal/deplorable).

Who wants to bet on the outcome of these cases?

The current ruler is on the side of the righteous:

The Biden administration, which filed a “friend of the court” brief supporting the universities, pushes back sharply against SFFA’s suggestion that the universities’ consideration of race as one factor in their admissions programs is inconsistent with the court’s decision in Brown. SFFA’s “persistent attempts to equate this case with Brown trivialize the grievous legal and moral wrongs of segregation,” U.S. Solicitor General Elizabeth Prelogar writes.

The Ivy League schools from which the Supreme Court justices graduated are on the side of the righteous and, in fact, are the most eager and aggressive sorters of applicants by skin color.

So if we think of courts as helping the powerful, this one should go in favor of righteousness (continued racial discrimination).

On the other hand, it is tough to think of a way for the justices to write a decision that would allow continued discrimination against whites (the oppressors) while forbidding discrimination against Asians (successfully established in the victimhood category). The previous decision was absurd: “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Via this approach to Constitutional law we could say that slavery is permissible right now because we’re in an inflation crisis and high wages are driving up prices, which then drive up wages in a spiral. Since we can’t stop indexing government spending to inflation, the only way to break the spiral is for 25 percent of working-age Americans to be enslaved. “Court expects that 25 years from now, the use of slavery will not longer be necessary to stop the inflation spiral that was launched in 2021.”

Because I am not creative enough to envision how a decision barring discrimination only against Asians could be written, my prediction is that race discrimination by these universities that get taxpayer money will be outlawed.

A Harvard job ad for an astronomy professor requires “Statement describing efforts to encourage diversity, inclusion, and belonging, including past, current, and anticipated future contributions in these areas” and “Demonstrated strong commitment to teaching, advising, and broadening institutional diversity is desired.”

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A friend’s teenager learns about the American legal system

by philg

A recent chat group discussion:

  • [18-year-old son] got off his second speeding ticket. Had an attorney. His friend has two tickets and got off neither. He learned a valuable lesson. That the Justice system is best if you have money.
  • That lesson does not apply in family court.

Noted.

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Supreme Court ruling will encourage holdouts to move to Florida and Texas?

by philg

“The Supreme Court Has Made a Grave Mistake on Guns” (NYT, from November 2021 but updated to reflect the recent ruling):

The Supreme Court will soon decide whether Americans have a constitutional right to carry loaded concealed weapons in public and in public places, wherever and whenever they believe they might need their guns for self-defense. Practically, that could mean everywhere and at all times.

The announcement of such an absolute and unfettered right would be shocking and disquieting to most Americans, not just to Americans in the many states where the people, through their elected legislatures, have for centuries restricted the carrying of handguns in public. It would also be concerning to many Americans who support gun rights. They, too, would understandably be unsettled and frightened by the idea that everywhere they went, their fellow citizens might be carrying loaded guns.

Suppose that someone had been considering moving from shutdown-loving NY, CA, or MA to a state with open schools, e.g., FL or TX. He/she/ze/they might formerly had said “I will stay in California dodging the unhoused, the pit bulls, the unhoused with pit bulls, the pit bull poop on the sidewalk, etc., and paying 13 percent state income tax (while receiving no public schools for my kids), because I am afraid of being in a place where lots of ordinary citizens have guns.” But if the Supreme Court ruling is as impactful as the media hysteria suggests, the gun-free paradises of CA and NY will no longer be gun-free.

Or will this trend be counterbalanced by a Supreme Court ruling on abortion? Already I have heard of a computer science professor objecting to a conference being hosted in Texas on the grounds that if a pregnant person attending the conference needs an emergency abortion, he/she/ze/they wouldn’t be able to get abortion care (the current Texas law actually allows abortions in the event of medical emergencies, according to Wikipedia).

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ACLU gives us a new definition of chutzpah

by philg

The non-profit organization that actually wrote the op-ed that got Amber Heard in legal difficulties now wants to profit from the trial after which Ms. Heard was ordered to pay more than $10 million in damages for the defamatory content that the non-profit org authored. From Newsweek:

On June 1, Depp’s lawyers filed a motion with New York state’s Supreme Court expressing opposition to a request made by the ACLU. “Respondents’ request for in excess of $86,000 in “expenses” associated with their Court ordered document production is not only exorbitant and unreasonable, but unsupported by New York law,” the lawyers wrote.

The motion came shortly after the ACLU requested that Depp pay the organization over $86,000 for legal costs during the trial, which involved Depp’s lawsuit and Heard’s countersuit. According to court documents obtained by KFMB-TV in San Diego, the ACLU is demanding that Depp pay $86,256 after several ACLU witnesses testified in the trial, as well as reimbursement for documents the ACLU provided following subpoenas by Depp’s legal team.

If we combine the above with “The ACLU Says It Wrote Amber Heard’s Domestic Violence Op-Ed and Timed It to Her Film Release” (Jezebel) we get a new definition of chutzpah.

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Who paid for the consequences of the ACLU-authored, Amber Heard-signed op-ed? You did.

by philg

From the New York Post:

Multiple sources said the “Aquaman” star had to switch legal representation and is relying on her homeowner’s insurance policy to cover the cost of her current attorneys in the case.

The bill for Heard’s attorney has mostly been footed by The Travelers Companies under terms of the actress’s insurance policy, sources said.

A vice president of the insurance firm, Pamela Johnson, was spotted in the Fairfax, Virginia, court with Heard multiple times throughout her trial. Neither Johnson nor Travelers returned calls from The Post.

When your next homeowner’s insurance bill arrives, remember that part of the increase will be to cover the loss occasioned by the op-ed that the ACLU wrote.

(This post assumes that Amber Heard will never pay the judgment against her and that the legal bills, as is typical for American litigation, were in the same ballpark as the amount at issue, i.e., $10 million per side.)

Here’s a question: will Travelers sue the ACLU to get its money back? The words that the jury found to be defamatory were actually authored by the ACLU, not Amber Heard. (As noted in Don’t let the ACLU write your op-eds and other lessons from the Amber Heard libel trial, the ACLU has at least $750 million with which to reimburse Travelers.)

“Anatomy of a Hit Piece” by Asra Q. Nomani (former Wall Street Journal journalist) lays out a timeline and contains some email excerpts:

From the ACLU:

“I’d like your and Amber’s thoughts on doing an op-ed in which she discusses the ways in which survivors of gender-based violence have been made less safe under the Trump administration, and how people can take action.” .. “If she feels comfortable, she can interweave her personal story, saying how painful it is, as a GBV survivor to witness these setbacks.”

The op-ed that the jury found libelous was approved by all of the best legal minds of the ACLU, it seems, including the ACLU national legal director, David Cole. And, as it happens, the version that was published was actually toned down from the ACLU’s first draft.

If you want to know why your auto insurance rates are going up, see “Geico must pay $5.2 million to woman who got HPV from sex in man’s insured car, court rules” (NBC):

Geico must pay a Missouri woman $5.2 million after she caught HPV from unprotected sex with her then-boyfriend in his insured automobile, a state appellate court ruled.

The woman — identified in court papers only as “M.O.” — said that she “engaged in unprotected sexual activities in Insured’s vehicle” in November and December 2017 and that he “negligently caused or contributed to” her catching the human papillomavirus (HPV), a common sexually transmitted infection, court papers said.

I don’t understand how the above dispute could be sorted out by an arbitrator, court, or even Ketanji’s panel of biologists seeking to define “woman.” The only way to determine that a disease was transmitted in the insured vehicle would be to establish that the woman who suffered $5.2 million in damages (nearly as much as if she’d been killed) never had sex with anyone else anywhere else. The vehicle’s DNA is not going to be embedded in the HPV that is now living inside this woman. Science says “HPV is so common that nearly all sexually active men and women get the virus at some point in their lives” (CDC), which means that the typical person who has had sex has suffered $5.2 million in losses even if he/she/ze/they did not get sued by a child support profiteer.

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Don’t let the ACLU write your op-eds and other lessons from the Amber Heard libel trial

by philg

“Legal victory for Johnny Depp after he and Amber Heard found liable for defamation” (CNN, today):

Depp sued Heard, his ex-wife, for defamation over a 2018 op-ed she wrote for The Washington Post in which she described herself as a “public figure representing domestic abuse.” Though Depp was not named in the article, he claims it cost him lucrative acting roles.

The jury awarded Depp $10 million in compensatory damages and $5 million dollars in punitive damages.

It seems that the CNN reporters did not do a lot of research. In fact, Amber Heard did not write the op-ed that proved expensive. “The ACLU Says It Wrote Amber Heard’s Domestic Violence Op-Ed and Timed It to Her Film Release” (Jezebel, April 28):

ACLU staffers actually ghost-wrote The Washington Post op-ed at the center of the trial, in which Heard claimed to be a survivor of domestic violence, and they pitched on her behalf, timed to the release of Heard’s then-upcoming film, Aquaman.

Lesson 1 is therefore “Don’t let the ACLU write your op-eds”? (Lesson 1a is “Don’t believe CNN”? They don’t even mention the ACLU, whose role was apparently central.)

What other lessons can we take away from this tawdry spectacle? Also from Jezebel:

Today, on Day 11 of the Johnny Depp and Amber Heard defamation trial, the American Civil Liberties Union revealed in damning testimony that Amber Heard has given just $1.3 million to the organization after promising in 2016 to give $3.5 million of her divorce settlement to the organization—and her ex Elon Musk donated nearly half of that money ($500,000, to be exact).

Could Lesson 2 be “Don’t rely on the promises of a family court plaintiff”?

Separately, why is the ACLU involved in domestic violence? Here’s a list of civil liberties:

freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity.

Maybe it is the “right to security”? But the typical domestic violence plaintiff (as distinct from domestic violence victim), like Amber Heard, is seeking cash, not security.

Also, is “right to life” a civil liberty? That sounds like “pro-life” and the ACLU is on the opposite side (see the abortion section of ACLU.org, which we learn that “the burden [of abortion restrictions] falls hardest on … LGBTQ+ people” (maybe Ketanji’s panel of biologists can explain that!)). How about “right to bodily integrity”? Is the ACLU opposed to forcing experimental injections on people? Far from it! “Civil Liberties and Vaccine Mandates: Here’s Our Take”:

Far from compromising civil liberties, vaccine mandates actually further them.

Circling back to Amber Heard, a domestic violence victim turned philanthropist, could the ACLU pay for the mess that they got her into? Their 2021 annual report lists assets of $748 million.

Related (very loosely):

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City of Boston spent taxpayer funds on the legal defense of a policy that 9 out of 9 Supreme Court justices found unconstitutional

by philg

Back in January: City of Boston happy to fly rainbow and Islamic flags, but not a Christian group’s flag

Today in the NYT… “Supreme Court Rules Against Boston in Case on Christian Flag”:

The Supreme Court unanimously ruled on Monday that the city of Boston had violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall.

One of the three flagpoles in front of the building, which ordinarily flies the flag of Boston, is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests for the third flag.

It rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The group’s application said it sought to raise a “Christian flag” for one hour at an event that would include “short speeches by some local clergy focusing on Boston’s history.” The flag bore the Latin cross.

The Appeals court decision says that the lawsuit was originally filed in 2018. Thus, to avoid the horror of a Christian-themed flag blocking a billboard for one of the city’s “essential” marijuana dispensaries, the City of Boston paid lawyers for years to defend a policy that not even a single Supreme Court justice found constitutional.

The Appeals court document is also interesting for the list of organizations who hate seeing a Christian flag so much that they’re happy to toss out the U.S. Constitution. Examples of folks who filed amicus briefs in support of the city’s unconstitutional behavior:

  • Anti-Defamation League
  • Central Conference of American Rabbis
  • Hindu American Foundation
  • Maine Conference, United Church of Christ (they also hate Jews in Israel)
  • Men of Reform Judaism
  • National Council of Jewish Women
  • Christ; People for the American Way Foundation (it is not “the American Way” to follow the American Constitution?)
  • Reconstructionist Rabbinical Association
  • The Sikh Coalition
  • Southern New England Conference, United Church of Christ (again with the Israel-haters; I’m not sure that this name is accurate because I never heard anyone in New England who attended a UCC church mention either “Jesus” or “Christ”)
  • Union for Reform Judaism
  • Women of Reform Judaism

Not strictly related, but why do we Jews have so many different organizations? And why isn’t there a Reform Judaism-related group for those who do identify neither as “Men” nor “Women”? Also, what happens when a member of Men of Reform Judaism becomes a “woman” (as the term is defined by Ketanji’s panel of biologists)? Does she have to switch to the “Women of Reform Judaism” group?

The Person of Color (identified as such by the media) who is the current Boston mayor gets into the spirit of Islam today:

See also “Boston City Council approves protest restrictions proposed by Mayor Wu” (Boston Globe, March 30, 2022) for how Mx. Wu has enhanced freedom of speech.

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Joe Biden asks to speak to Judge Kathryn Kimball Mizelle’s manager

by philg

“Biden administration to appeal ruling striking down transit mask mandate” (Washington Post, today):

The Biden administration will appeal a federal judge’s decision that struck down the mask mandate on public transportation, officials announced Wednesday.

The Justice Department filed notice of its plans to appeal after U.S. District Judge Kathryn Kimball Mizelle of Florida on Monday concluded that the mandate exceeded the statutory authority of the Centers for Disease Control and Prevention. The ruling blindsided the White House and sparked days of debate within the administration about how to proceed.

In other words, the muscular Vanquisher of Corn Pop has asked to speak to the young judge’s manager!

Separately, as long as we’re talking about COVID Karens, I still can’t figure out why people who want to wear masks in public are in public to begin with. They’re afraid of COVID-19 so they put on a cloth mask or a non-fitted N95 mask after leaving the house. But if they’re afraid of COVID-19, why did they leave their houses in the first place? Karen visits a Florida theme park is an extreme example of this conundrum.

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Forced masking: the 34-year-old judge versus the 79-year-old president

by philg

In a perfect illustration of the intergenerational conflict exposed by COVID-19 and with perfect timing for Passover (a holiday all about freedom), a 34-year-old federal judge struck down the 79-year-old’s order forcing healthy young (non-elite) people to wear masks on buses, subways, and commercial airliners. On one side, we have Dr. Biden’s husband at an age where COVID-19 is often serious and sometimes fatal. He’s presumably hoping to make it to 100 so that he can attend the Metropolitan Museum’s opening of a permanent wing devoted to the work of Hunter Biden (today: “face coverings required for all visitors age 2 and older; in 2043 maybe it will be “face coverings required except for visitors under age 2”?). On the other side, Judge Kathryn Kimball Mizelle, a 34-year-old with no obvious COVID-19 risks (photo below from a Tampa Bay Bar Association interview) who can rely on her immune system to co-evolve with SARS-CoV-2.

Most young Americans meekly accepted the loss of their liberty (and, in many cases, their education) that was, at least in theory, supposed to help rich old people get richer and older. But not this judge!

As you might expect, the ruling was based on more technical grounds, as explained in “CDC mask mandate for travelers struck down by federal judge” (CNN):

A federal judge in Florida struck down on Monday the Biden administration’s mask mandate for airplanes and other public transport methods.

US District Judge Kathryn Kimball Mizelle said the mandate was unlawful because it exceeded the statutory authority of the US Centers for Disease Control and Prevention and because its implementation violated administrative law.

A Biden administration official familiar with the White House’s decision previously told CNN the goal of the extension was to gather more information and understanding of the BA.2 variant of the coronavirus. Covid-19 cases in the US are on the rise, leading universities and the City of Philadelphia to reimplement indoor mask mandates.

The first part of the judge’s 59-page ruling turned on the meaning of the word “sanitation,” as it functions in the 1944 statute that gives the federal government the authority — in its efforts to combat communicable diseases — to issue regulations concerning “sanitation.”

Mizelle concluded that that the use of the word in the statute was limited to “measures that clean something.”

“Wearing a mask cleans nothing,” she wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”

Mizelle suggested that the government’s implementation of the mandate — in which non-complying travelers are “forcibly removed from their airplane seats, denied board at the bus steps, and turned away at the train station doors” — was akin to “detention and quarantine,” which are not contemplated in the section of the law in question, she said.

“As a result, the Mask Mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse),” she wrote. “But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country.”

If her order sticks, maybe young people will say “Thank Mizelle” every time they get on public transit (which the rich old people who created the mask orders never used to begin with).

Speaking of Tampa, the children’s museum there in a photo from December 2021:

(One of the things that I am liking about Florida is the priority given to children. Events that would require paid tickets for each child up in Maskachusetts are generally free to children here. At least half of the time that I expect to pay for our kids I find out that a paid adult admission enables an unlimited numbers of kids to come in as well. A family of modest means, therefore, can afford a wide range of activities that would be out of reach for a family in the Northeast. Disney, of course, is an exception and is financially ruinous for anyone with kids.)

Reaction from a Facebook friend (old white guy): “If there was a hell, it would hold a special place for U.S. District Judge Kathryn Kimball Mizelle”

From the NYT readers:

(Kathleen in NY) It’s a shame that not one major airline was brave enough to keep the mask policy in place—offering passengers a choice to fly with other safety-minded people. Missed business opportunity too. It’s a tragedy that airlines caved to the vocal minority, rather than the more compliant majority—placing more importance on individual liberty (aka selfishness) than to the common good.

(Andy in Chicago) Even if masks were about to become optional anyway, this judge’s decision sets a dangerous right-wing precedent for future Covid waves and other epidemics.

(josh in NY): The judge who made this decision was a political appointee of Donald Trump, and utilized no scientific based reasoning in the decision to remove masks from travel. I think this will only harm the nation further and while no one likes to wear them, they are especially useful in tightly packed places like planes, trains, and buses. I hope the administration appeals this blatantly political opinion.

(Jason in NY): I had a trip planned to California next week. As a result of this politically motivated and dangerous move to end masks on flights, I have cancelled my trip.

(Martha in Tennessee) Woo hoo! Now the US needs to drop the negative test requirement for citizens to get back into the country. Those of you who insist on living in fear are just going to have to stay home.

(David in California, replying to Martha) I’ll stay home, thanks for your consideration. And I’m not the only one. Taking action that drives customers away isn’t necessarily a good business decision.

(John in San Jose) I read the decision of Judge Mizelle. It is shockingly bad and is based on narrow views of select words while ignoring not only other sections, but even common sense. … Judge Mizelle claims that the mask mandate exceeds its authority because it does not fit into the suggested list of remedies listed in the law, but she also chose to ignore the closing words of 42 U.S. Code 264 which state “and other measures, as in his judgment may be necessary.” It is sad to realize that the hard work of thousands of well-trained people can be rendered moot by one judge with no knowledge of diseases and a partisan agenda.

Related:

  • COVID-safe restaurant chain idea (perfect for the NYT commenters above who want to continue living under the rules that prevailed in New York City, Washington, D.C., and San Francisco circa January 2022)
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City of Boston happy to fly rainbow and Islamic flags, but not a Christian group’s flag

by philg

Today at the Supreme Court: Shurtleff v. Boston. Officials of the Cradle of Liberty were happy to fly the rainbow (Pride) flag and the Islamic-themed flag of Turkey, but a Christian-themed flag was unacceptable (284 applications were approved over a 12-year period and this single group was denied).

“Several Juneteenth Events Planned As Massachusetts Observes Official Holiday For First Time” (CBS) and “Boston Raises Pride Flag On City Hall Plaza” (CBS) have videos of example events.

The Christian group’s petition gives the history. According to the city, everyone should feel included (sometimes the best way for a Christian to be included is for Christians to be excluded?):

In my view, the petition incorrectly characterizes Rainbow Flagism as a “cause” rather than as a religion.

Although the city itself says that this is supposed to be a “public forum”, which you might think would require allowing the Christian group to participate, so far the appeals courts have all sided with the city’s policy of excluding this one group.

Given that Boston shut down its schools for more than a year while keeping marijuana stores open, and that marijuana retailers are such big advertisers in the city (see above) and on Mass Pike billboards, I’m disappointed that the petition cannot cite an example of a flag devoted to healing cannabis (Ivermectin for Democrats, as one reader here commented). I think it would be fun to apply to fly the “Rainbow Marijuana USA Stars Flag Gay Pride Lesbian LGBT” flag:

Readers: Where do we think the Supreme Court will come down on this case?

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