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Steve Shiffrin
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Yesterday, the Court heard oral arguments in 303 Creative LL v. Elonis. Lorie Smith is a web designer doing business as 303 Creative LL. Smith would like to provide her services for heterosexual weddings, but as a matter of religious conscience feels that she cannot provide the same services for same sex weddings. Colorado forbids discrimination on the basis of sexual orientation and interprets its statute to include businesses that provide services for heterosexual marriages but refuse to provide services for same sex marriages. Accordingly, 303 Creative LL sought a declaratory judgment that the law was unconstitutional on free speech and freedom of religion grounds. The Court agreed to hear the case on free speech grounds; it did not agree to hear the freedom of religion issue. Creative argued that designing a website is free speech. Colorado argued that Smith was proposing to engage in discriminatory commerce, a form of... Continue reading
Posted Dec 6, 2022 at
The Supreme Court’s abortion decision exhibits a fundamental misunderstanding of the judicial role and our system of government. First, the majority primarily relies on a case involving assisted suicide which says that liberty rights must be “deeply rooted in the Nation’s history and tradition” (Washington v. Glucksberg) and proceeds to devote page after page showing that abortion was a criminal offence at various stages of our history. What this amateur foray into abortion history misses, as the majority well knows, is that the Court has specifically denied that rights must be deeply rooted in the Nation’s history and tradition. In upholding same sex marriage, Obergefell v. Hodges, disagreed with the Glucksberg test and pointedly observed that “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” See also Lawrence v. Texas... Continue reading
Posted Aug 10, 2022 at
In 1956, Oxford University planned to give an honorary degree to Harry Truman. Elizabeth Anscombe dissented. Truman authorized the dropping of nuclear weapons on Hiroshima and Nagasaki. Anscombe did not deny that Truman’s decision saved lives by speeding up the end of the war. She denied that the end justified the means. We should think of this when we condemn other war crimes. Our country is not pure. I get this example from the Wall Street Journal’s book review section this past weekend. Heather McAlpin reviewed Metaphysical Animals: How Four Women Brought Philosophy Back to Life by Clare Mac Cumhaill & Rachael Wiseman and The Women Are Up to Something by Benjamin Lipscomb. The four women are Anscombe, Philippa Foote, Mary Midgely, and Iris Murdoch. These four women wrote against the then dominant strain in moral philosophy, namely the view that moral values were subjective and not objective. It is... Continue reading
Posted Jun 17, 2022 at
Taryn Mattice has served as a Cornell Chaplain for nearly three decades. She has been supported by five mainline churches in Ithaca. Months ago she announced her retirement. She richly deserves to do so, but it is sad to see her go. In addition to being an outstanding preacher: erudite, insightful, and down to earth, she has been a spiritual model and has led the students on numerous social justice trips through the years. Here is her last sermon: Last Sermon May 8, 2022 2 Thessalonians 5 What I’m about to read you is the very end of Paul’s first letter to the church of Thessaloniki. You’ll see he takes his sweet time, signing off. Goodbyes are hard. “Finally, my sisters and brothers, he says, “Be at peace among yourselves. And we urge you, beloved, to admonish the idlers, encourage the fainthearted, help the weak, be patient with all of... Continue reading
Posted May 27, 2022 at
Recently on MSNBC Charles Blow made an important distinction about "replacement" theory. He remarked that the demographics are changing in the U.S. (the proportion of people of color is increasing though not so much the proportion of black people) and will continue to do so. This change threatens the identity of many white people. But the conspiracy claims of replacement theorists are utterly made up. The notions of a Jewish conspiracy with its companion white supremacy themes is altogether at odds with basic notions of constitutional equality and democracy. Finally, I find it puzzling that illegal immigration is touted by the right as part of the "conspiracy." Undocumented immigrants do not vote and the primary political actor pressing for more immigration is the corporate employer whose motivation is money, not immigrant voting. But why should I be puzzled? We are not living in the age of Reason. Continue reading
Posted May 25, 2022 at
In her Saturday column, Peggy Noonan scolded President Biden for unfinished sentences, for an unconvincing retreat from his prior comparisons of those who were opposed to voting rights legislation with Southern racists, for his handling of Afghanistan, and for being old and tired. She maintained that Biden’s new strategy of going over the heads of Congress to communicate with the people will be a failure. She said: “He is misdiagnosing his problem. It isn’t that his stands and decisions haven’t been fully understood and will be embraced if comprehended more fully. It’s that his stands and decisions the past year were basically understood and disliked. It’s not a communications problem, it’s a substance problem. It would be better if he spent his second year readjusting his positions.” Noonan’s column is embarrassing. First, it is misdescribes Biden’s strategy. Second, her claim about the popular reception of Biden’s policies is wholly at... Continue reading
Posted Jan 26, 2022 at
Many are criticizing the Justice Department for not indicting those political leaders who had a role in bringing about the January 6th insurrection. Perhaps, the Department does not want to interfere with the 1/6 Committee and believes time is on its side. Perhaps the Department is already investigating and has managed to avoid leaks. My hope is this: There has been widespread reporting of Republican plans to steal the future elections by installing ideologues to make decisions about which votes to count and which not. In other words, when Donald Trump or his ilk asks a local official to come up with a few thousand extra non-existent votes, they will already have installed a willing stooge. You might think that no crime has yet been committed because the midterm election and the next Presidential election has yet to take place. But, if the reporting is correct, a crime has already... Continue reading
Posted Jan 11, 2022 at
Millions of our fellow citizens believe there is a fundamental constitutional right not to wear a mask. If there is such a right, it should come as a surprise to anyone who has gone to law school. If the foes of masks are right, they will need to explain why the military draft was not stopped in its constitutional tracks. The conservatives have long insisted that constitutional rights appear in the text of the Constitution or are “deeply rooted in the nation’s tradition” and they typically insist that liberty rights be carefully defined and identified by the specific facts, not by anything as vague as liberty or freedom. That is why the conservatives maintain there is no right to an abortion. Neither “the right not to wear a mask,” nor the right to an abortion is deeply rooted in the nation’s tradition. Other justices over the years have not looked... Continue reading
Posted Dec 30, 2021 at
Gerald Seib, who writes the Capital column for the Wall Street Journal, has an excellent piece on polarization in Saturday’s paper. Nonetheless, I was taken aback by this statement: “Meantime, Republicans, having been pushed entirely into the minority, did not have to bear responsibility for either what transpired or what did not get done.” Instead, even liberal media blame Joe Manchin, Kirstin Sinema, Joe Biden, and the Democrats generally for what has not gotten done. Apparently, the polls show that the Republicans gain by doing nothing. They offer no alternatives. They just say no, and they are proud to do so. Most of them even bite their tongues about the storm on the capital. They are do-nothings, cowards, moral lepers – who apparently will get away with it. The liberal media has chastised the Republicans for their failure to condemn all manner of sins – from sedition to racism –... Continue reading
Posted Dec 20, 2021 at
Justice Felix Frankfurter once said that Supreme Court justices are molders of policy rather than impersonal vehicles of revealed truth. He was right. So, when members of the Supreme Court give speeches asserting that they are not political, they speak only partial truths. When Chief Justice Roberts said a Supreme Court justice was like an umpire calling balls and strikes, he was way off the mark. To borrow a locution Fred Schauer used in a different context, it is like saying a butterfly is an adjusted camel. This does not mean that there are no limits on the Court. Two of them are crucial. First, it is illegitimate for the Court to make decisions based on which political party would be benefited – as the Court did in Bush v. Gore. Second, although the Court can overrule precedent in an appropriate case, depending on the circumstances there can be a... Continue reading
Posted Dec 13, 2021 at
In listening to the oral arguments this week, I could not help but think how different things would be if the Democrats controlled the Court. Most obviously, Roe would be settled law. Furthermore, the right of poor women to secure government funding for an abortion would be put in place. Somewhat less obvious, the notion that a finding of discrimination requires discriminatory intent would be cast aside. Instead, at the very least, government action resulting in disparate impact on the basis of race would be unconstitutional in the absence of a strong justification. If a state can outlaw abortion, the harm will fall disproportionately on the basis of race, sex, and class. Forcing a woman to carry a child to term is itself problematic, but there are strong grounds to doubt that the interests of poor black women are properly valued in the “great state” of Mississippi. To narrow the... Continue reading
Posted Dec 4, 2021 at
New York City is likely to permit 800,000 non-citizens to vote in local elections. These individuals have permanent legal resident status and pay taxes. Few Republicans would approve of this. An op-ed carried by Fox claims that it shows the depravity and evil of the Democratic Party, and states that immigrants who have citizen status with “communist” China will be voting. I would note that the 14th Amendment’s protections of due process and equal protection extends beyond citizens and protects “persons” regardless of citizen status. On Facebook, Mark Tushnet helpfully reports that Jamie Raskin's tenure article at American University was about this issue. (See Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, U. Pa. L. Rev. (Apr. 1993). I am reminded of an article by Ken Karst who argued in a Foreword to the Harvard Law Review for the principle of “equal citizenship”... Continue reading
Posted Nov 28, 2021 at
Peggy Noonan’s column Saturday argued that the Democrats need to face down the “Woke.” She refers to the woke education agenda and the woke regime. She claims that her bias is that there should be “two strong parties duking it out.” She does not refer in this column to the departure from support of democracy by the Republicans. The Merriam Webster dictionary defines woke as aware of and actively attentive to important facts and issues (especially issues of racial and social justice). But Noonan defines it differently and claims that the teachers unions and the school boards (who she says are stacked with candidates backed by teachers) adhere to her characterization of woke: According to her the woke regime primarily stems from a charge that racial evil was systematically and deliberately embedded long ago by the white patriarchy, in the heart of all American life. Comment: The first part of... Continue reading
Posted Nov 14, 2021 at
By John Kiriakou Special to Consortium News Drone whistleblower Daniel Hale was sent on Sunday to the notorious Communications Management Unit (CMU) at the maximum-security U.S. Penitentiary (USP) at Marion, Illinois to serve a 45-month sentence, rather than to the low-security prison at Butner, North Carolina, where federal Judge Liam O’Grady had recommendedhe go. Butner is a prison hospital complex, and O’Grady was cognizant of Daniel’s need for psychological therapy to deal with post traumatic stress disorder from his time as a U.S. Air Force drone operator. USP Marion, on the other hand, is a former “Supermax” prison that was built in the early 1960s as a replacement for Alcatraz. It was converted into a CMU to keep terrorists from being in contact with the media. The Bureau of Prisons, which apparently knows better than a federal judge, decided that the American public must be protected from Daniel Hale’s dangerous... Continue reading
Posted Oct 27, 2021 at
In the late 1960's and early 1970's I was coaching debate and teaching a variety of courses including Argumentation (also The Rhetoric of Black America, Group Discussion, Beginning Public Speaking, and Persuasion) at San Fernando Valley State College - now CSU at Northridge. I became interested in Adorno's discussion of the authoritarian personality (discussed in my last post). So far as I am aware there was no human subjects committee and I had no empirical training (still do not). I decided to embark on an experiment. I had my students fill out Adorno's F test at the beginning of the class without their name and without an explanation of what the test was about. The class assignment was to give two well researched speeches (accompanied by outlines) arguing for and against the same proposition. At the end of the class, the students took the test again (unsigned and unexplained again).... Continue reading
Posted Oct 6, 2021 at
The Summer issue of Dissent contains an article by Udi Greenberg, an Associate Professor of European History at Dartmouth. A principal theme of the article is to ask whether it was accurate or useful to pin the label fascist on Donald Trump. Alexandria Ocasio-Cortez and Madeline Albright thought so, and so did Timothy Snyder’s On Tyranny. Obviously, there were similarities (racism, sexism, plutocracy, disrespect for law). Among the differences between fascism and Trump, Greenberg argues is that fascism was strongly supported by impoverished youth; Trump was most strongly supported by the propertied old, anxious to preserve their privileges. Fascism sought imperial military mobilization; Trump was a draft dodger who claimed to reject military adventures. I want to underscore an aspect of Trumpist appeal that was shared by Hitler. Here, the Republican leaders are irrelevant. They can be believers or opportunists. I am focusing on the followers. The appeal I have... Continue reading
Posted Oct 5, 2021 at
The most shocking political development of my lifetime has been the erosion of democratic values and the flagrant disregard of the rule of law. The Republican leaders have spat at inconvenient democratic truth (the clear loss of the election) and allowed a sexist, racist criminal to lead the party, a leader who would use the tools of power to jail his enemies. It is hard to believe that Republican leaders really think they won the election; it is easier to believe that they think the Big Lie (coupled with racism and vote suppression) is the best path to victory in the next. At the same time, the Democrats have played their own role in suppressing votes. For years the Democrats controlled most state legislatures and gerrymandered the Republicans. One exception was Indiana where the Republicans gerrymandered the Democrats. If the Court reversed that gerrymander, the political landscape outside Indiana would... Continue reading
Posted Sep 6, 2021 at
from Taryn Mattice August 29, 2021 First Service John 15:9-11 On his last night with his disciples, this is what Jesus said. As the Father has loved me, so I have loved you; abide in my love. 10 If you keep my commandments, you will abide in my love, just as I have kept my Father’s commandments and abide in his love. 11 I have said these things to you so that my joy may be in you, and that your joy may be complete. On a fairly regular basis I need to remind myself that God’s intention for me is joy. Unburdened, true and boundless joy. I mean here is Jesus, two days before he was crucified, with Roman soldiers set to arrest him in a matter of hours, presiding over a last meal with his friends, and telling them that he means for them to know joy. Complete... Continue reading
Posted Sep 2, 2021 at
My colleague Nelson Tebbe has a brilliant article forthcoming in the Harvard Law Review. I suspect we agree on most Establishment Clause issues. We tend to disagree on free exercise issues. One area we agree on is the ministerial exception. I think that the Catholic Church should be able to confine the priesthood to males - even though I think the restriction is appalling. But suppose the Unitarian Church in downtown Ithaca discriminated against females. Although the Unitarian church has few binding doctrines, it is certainly no part of the Unitarian faith to discriminate against females; yet the ministerial exemption would allow them to do so - perhaps to avoid a governmental determination of the content of a religion or a broad conception of autonomy. Neither Nelson, nor I would extend the exception this far. Similarly, I would rarely compel an individual to violate his or her conscience (Nelson less... Continue reading
Posted Aug 5, 2021 at
In this week’s column Peggy Noonan claims that the Democrats are responsible for starting the culture war. She quotes from Kevin Drum: “If you hate cultures wars, blame liberals. Why? Liberals have moved to the left on hot button issues. Missing from her column, are any references to a number of events that really brought us to where we are today. Brown v. Board of Education upset Republicans because an Eisenhower appointed Chief Justice led the way. Lyndon Johnson launched the Civil Rights Bill of 1964 That drove a vitally important nail in the racial segregation status quo particularly since the resistance to Brown was powerful. Let us remember that Barry Goldwater carried previously Democratic Alabama, Georgia, Louisiana, Misssissipi, and South Carolina (Republicans have held the South because new black voters have joined the Democratic party causing it to move to the left and causing many whites to leave the... Continue reading
Posted Jul 14, 2021 at
In 2006, the American Catholic Bishops overwhelmingly approved new documents yesterday, exhorting Catholics to refrain from using artificial birth control, describing gay sex as immoral, and saying that anyone who disagrees with key church teachings should not take Communion. I read these documents and promptly left the Church. They were demanding that taking communion ratified their bigoted and indefensible views. Their authoritarian mindset repelled me. Before I thought I could be a dissenting Catholic. No more. Today, they have resurrected their views and injected them into American electoral politics. Pope Francis preached this month that communion “is not the reward of saints, but the bread of sinners.” His top doctrinal official, Cardinal Luis Ladaria, wrote a letter to the American bishops, warning them that the vote could “become a source of discord rather than unity within the episcopate and the larger church in the United States.” Even if the Bishops... Continue reading
Posted Jun 28, 2021 at
I subscribe to the Wall Street Journal. The news reporting is excellent. The Saturday features are terrific. But I ordinarily ignore the ignominious editorial pages except for Peggy Noonan. She is sometimes infuriating; sometimes insightful; never boring. Last week, she was infuriating and insightful. On the racial issue. She distinguished between faculty lounge Robespierres - racial radicals (apparently the Democrats) and those who will side with Senator Tim Scott (the only Republican African-American Senator) in believing that the U.S. is not a racist country and that racism is a vice. No shades of grey; no acknowledgement that Republicans have campaigned for years on coded racial appeals. Having established herself as willfully blind to the realities of Republican politics, she proceeds in rousing rhetoric to decimate the “sage of Mar-a-Lago.” He is a “waning figure”; his unfavorable ratings are 15% higher than his favorable ratings; a majority of Republicans said they... Continue reading
Posted May 21, 2021 at
My daughter Seana gave me a wonderful mystery set in Los Angeles, entitled An Old Man's Game. It is smart, funny, and richly entertaining. I am now reading the second in the series (in both Amos Parisman is the detective - Andy Weinberger is the author). So far, another winner. Highly recommended. Continue reading
Posted Jan 5, 2021 at
In May of this year, I renewed my membership in the New York bar. The renewal was processed on May 27. On August 27, the Bar sent a notice confirming my renewal. I received the notice a few days after the election - more than 2 months later! Continue reading
Posted Nov 21, 2020 at
The Republicans refused to consider more than 100 judicial nominees by President Barack Obama, including 19 Court of Appeals nominees and the nomination of Merrick Garland to the Supreme Court. All of those seats are stolen seats. Thieves should not be rewarded. Expand the federal courts. The above is from my cousin Brian Shiffrin My suggestion would be the addition of two seats for each stolen judge to discourage future thefts. Continue reading
Posted Oct 29, 2020 at