Taglaw

no feelings may be hurt

Suppose, I asked the students, an observant Jew has a florist shop. One day, a customer, who is also Jewish, comes to the shop to say she’s getting married and would like the florist to do the wedding. “That’s wonderful,” the florist says. “Where will you get married?” The customer replies that the wedding will be at a local nondenominational church, because her fiancé is Christian, and she, the customer, isn’t very observant. The florist thinks about it and then says, “I’m so sorry, but I can’t do your wedding. It’s nothing personal; I’m sure your fiancé is a fine person, as are you. It’s just that as an observant Jew I don’t approve of interfaith weddings. For our community to survive, we must avoid intermarriage and assimilation. Please understand. There are many other florists who can do your wedding. I’ll even suggest some. But I can’t, in good conscience, participate, myself.” What result?

In posing this hypothetical, I was not so interested in how the case would come out under current law. Rather, in good law-school fashion, I was trying to show the students that these are complicated questions and that they need to consider both sides. Much to my surprise, the students were uniformly unsympathetic to the florist. There should be no right to decline services in this situation, they told me. The florist was not acting reasonably and in good faith. […]

Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.

Mark Movsesian, St. John’s Law School, New York. A fascinating case study for people who tend to think these disputes are all about the sexual revolution. As it turns out, and as I have sometimes suggested, demand for the affirmation of sexual choices may simply be an example of a greater demand, that for the affirmation of all the self’s choices. The real principles here are (a) I am my own and (b) the purpose of society is to empower and affirm my claim that I am my own.

Trump and Constitutional Law

This is a great idea for a podcast: What the Trump presidency, with its manifold eccentricities, can teach us about Constitutional law. After all, on almost a daily basis the words and actions of the President raise some question about the powers and limits of the office.

The first episode takes off from Trump’s comment about Judge James Robart,  who blocked his first attempt at an executive order banning travel to the U.S. from six mostly-Muslim countries: Trump tweeted that Robart is a “so-called judge.” According to Elizabeth Joh, the con-law professor who co-hosts the show with Roman Mars, that tweet raises the question of judicial legitimacy, which leads her to describe the famous Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, in which the Court ruled that President Truman did not have the authority to commandeer the nation’s steel mills to serve the needs of the military during the Korean conflict. For Joh, the really important point here is that Truman, though angered by the ruling, did not question it — he acknowledged and deferred to the legitimacy of SCOTUS.

But that’s where the podcast ends, which I think is just the wrong place. The vital question that arises is: What if Truman hadn’t so deferred? What if he had said “I do too have this authority, and I’m sending in my people to take over and run the steel mills”? People talk loosely about Trump’s actions producing a “Constitutional crisis,” but that would be a Constitutional crisis. For law enforcement officials, and maybe even the Army, would have to decide whether to back the Court or the President.

Given the current President’s history of demanding that he get his way in all things, and his oft-expressed frustration (even in these first few months of his presidency) at having his will thwarted, something like that could eventually happen: that is, the Executive branch simply refusing to acknowledge the legitimacy of one of the other branches and doing what it wants to do regardless of protests. So what, within the boundaries of Constitutional law, would happen then? I’d like to see the podcast play out some of those scenarios.

judging judges

It has long been frustrating to me that the only criterion by which Americans — almost without exception — evaluate judges is: Did he or she make decisions that produce results I’d like to see? Virtually no one asks whether the judge has rightly interpreted existing law, which is of course what the judge is formally required to do. Americans — again, almost without exception — want judges to be politicians and advocates. The idea that a judge should strive to interpret existing law regardless of whether it does or doesn’t promote politically desirable ends never crosses anyone’s mind, and if by some strange chance it did, the person whose mind was so crossed would reject the proposal indignantly. Americans in this respect resemble toddlers and their own President: they evaluate everything in terms of whether it helps or hinders them in getting what they want.

This devaluation of interpretation amounts to a dismissal of the task of understanding: everything that matters is already understood, so the person who would strive to understand is not only useless, but an impediment to the realization of my political vision. To the partisan, the absence of partisanship is always a sin, and perhaps the gravest of sins.

empathy and leniency

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Stanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.  Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships.  Most aren’t even high school graduates.  Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge.  Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?  How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one?  They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin?  Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.  No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.  Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency.  If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous.  Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

Ken White

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