The Supreme Court creates a new religious aristocracy | TheHill

The Supreme Court creates a new religious aristocracy | TheHill

By Andrew Koppleman (Northwestern)

The Supreme Court has just created an aristocracy of the religious, who now can plausibly demand the right to defy almost any law. The Court has sometimes been willing to accommodate conscientious objectors, but its earlier decisions were nothing like what it has now done. By the Court’s logic, human sacrifice now presents a hard case, with a colorable argument for its protection.

Tandon v. Newsom was a 5-4 decision against California's COVID-19 order limiting more than three households from gathering in homes. The Court declared that laws can’t be applied to religious objectors so long as the state “treats some comparable secular activities more favorably.” Some regard this as a de facto return to the old rule, in effect from 1963 to 1990, that religious conscientious objectors have a right to accommodation where that’s reasonably possible. What the Court has announced, however, is far more extravagant: a right to nullify even the most urgent laws.

The Court declares that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” This calls into question laws that do not mention religion at all, and whose framers almost certainly were not even thinking about religion, such as the one in this case.

The regulation the Court enjoined simply said that more than three households could not gather in one home. The Court explained that this rule discriminated against religion, because “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.” (Justice Elena Kagan, dissenting, pointed out that those activities “pose lower risks” because they can enforce mask-wearing, the interactions are briefer and ventilation is better.)

It is hard to find any law that cannot be characterized as excusing comparable activity, especially if, as the Court says, the comparison is based on whether the state ever tolerates any setback to its pertinent interests. Few government purposes, not even the most critical ones, are pursued with monomaniacal intensity. Once a court has decided that a law discriminates against religion, “strict scrutiny” amounts to a powerful presumption of unconstitutionality — as evidenced by the Court’s extraordinary decision to issue an injunction against a law that had been upheld in the lower courts. 

Human sacrifice is the classic example of a religious liberty claim that uncontroversially ought to lose. But the Court’s logic would give even the Aztecs a plausible free exercise claim.

What is the state’s interest when it forbids human sacrifice? People don’t want to be killed, obviously. But every state allows killing in self-defense. Is that not a comparable secular activity?

The Court tells us that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.” Murder is prohibited to further the interest in protecting unwilling homicide victims. But the state protects only some of them. Certain secular reasons for killing are favored over all religious reasons. The law “treats some comparable secular activities more favorably than” religious homicide. 

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Priests should think twice before denying Communion to Catholics in same-sex unions. | America Magazine

The threat to withhold Communion from Catholics who do not follow the Church's rigid rules on sexuality and family life has been divisive.  In the case of sexual morality - same sex relations - I personally don't understand why it is given any weight as a moral issue.  The moral issue to me is - do you treat your intimate partner with respect?  If not, how can you change?  I it is in the past how can you make amends?  But the old problem of legalistic rigidity often determines the response of the orthodox to these issues.  Here a Chicago pries offers a pastoral approach. - gwc

Priests should think twice before denying Communion to Catholics in same-sex unions. | America Magazine

By Louis J. Cameli [Archdiocese of Chicago]

Every Christian denomination is struggling with L.G.B.T. issues. Whether they concern ordained ministry or simply ordinary participation in church life, the issues surrounding L.G.B.T. Christians threaten to sunder the unity of many church communities. The Catholic Church is no exception, as the reaction to the recent response of the Congregation for the Doctrine of the Faith on the blessing of same-sex unions indicates. The Catholic struggle, however, plays out most intensely at the local level—in our parishes.

Consider this situation. A woman, who self-identifies as a lesbian and who has entered a civil marriage with another woman, presents herself for Holy Communion. Her priest is aware of her marriage. Should he share the sacrament with her? Much depends on how that priest sees himself. Is he a pass-giver or a gate-keeper? A pass-giver, who most likely is of a certain age and with a more liberal attitude, inclines to “just give” the sacraments to people upon request. If pressed to provide a theological justification, he may point to inclusivity and mercy—both of which have a firm foundation in the Gospel. A gate-keeper worries about the integrity of the sacraments, the connection with genuine commitment and the danger of scandal. These concerns are also well-founded in the Gospel.

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America Needs a Capitol Riot Commission - The New York Times

Opinion | America Needs a Capitol Riot Commission - The New York Times

By Jesse Wegman (NY Times Editorial Board)

...What’s standing in the way of a commission? The biggest obstacle is obvious: partisanship. The perpetrators of the Capitol attack were not terrorists on a murderous mission from abroad, but average Americans — grade-school teachers and public accountants, cops and clam-shack owners — who stormed the seat of American government, drunk on a lie about the 2020 election that had been fed to them for months by Donald Trump, his allies and leading Republicans in Congress.

Now that lie has metastasized to include an upside-down history of what happened on Jan. 6, regurgitated by many top Republicans — hence the right-wing agitprop fantasy in which shadowy leftist militants were the true villains.

It’s no surprise that roughly half of Republican voters now say they believe that the riot was a largely peaceful protest or that the only violence was committed by “left-wing activists” or others “trying to make Trump look bad,” according to a Reuters/Ipsos poll. An overwhelming majority of Republicans continue to believe that Joe Biden did not legitimately win the presidency....

Sotomayor dissenting: Whatley v. Warden, Georgia Diagnostic and Classification Prison (04/19/2021)

20-363 Whatley v. Warden, Georgia Diagnostic and Classification Prison (04/19/2021)

SUPREME COURT OF THE UNITED STATES FREDERICK R. WHATLEY v. WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 20–363. Decided April 19, 2021 The petition for a writ of certiorari is denied. 

JUSTICE SOTOMAYOR, dissenting from denial of certiorari. A jury sentenced petitioner Frederick R. Whatley to death the morning after watching him reenact a murder while wearing unnecessary leg irons and manacles. When the State called Whatley to the stand during the sentencing proceeding, his attorney waved away the prosecutor’s concerns about the visible shackles, then sat silent when the prosecutor handed Whatley a fake gun and asked him to reenact the murder for which he had just been convicted. Defense counsel’s unreasonable failure to object to Whatley’s shackling was plainly prejudicial under this Court’s precedent. I would grant the petition, summarily reverse, and remand for a new sentencing proceeding. I Following Whatley’s conviction for robbing and killing the owner of a Georgia bait shop and liquor store, the State asked the jury to impose a sentence of death. The sentencing proceeding involved just one day of evidence. 

The State relied on two, conceded statutory aggravating circumstances: Whatley committed the murder (1) during an armed robbery, Ga. Code Ann. §17–10–30(b)(2) (Supp. 2019), and (2) after having “escaped from [a] place of lawful confinement,” §17–10–30(b)(9), because he had walked away from a halfway house to which he had been paroled a few months earlier. The State further showed that Whatley had prior convictions for forging a check....

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Sonia Sotomayor’s lonely battle to highlight injustices on the Supreme Court’s docket.

Sonia Sotomayor’s lonely battle to highlight injustices on the Supreme Court’s docket.

By Mark Joseph Stern

Every year, the Supreme Court receives about 10,000 petitions and hears only around 80 cases. Four justices have to vote to hear an appeal, which ensures that thousands of petitions are swatted away without comment, leaving the lower court’s decision as the final word. Unfairness is baked into the cake: SCOTUS’s desire for tidy docket management means that egregious wrongs go unrighted simply because four justices lack the nerve, the bandwidth, or the desire to address them. A majority of the court seems content with this state of affairs. Not Justice Sonia Sotomayor. In recent years, Sotomayor has emerged not only as the conscience of the court but as the watchdog of its docket. She continually writes separate opinions to flag cases involving extreme cruelty, lawlessness, and other inequities. Her goal appears to be to urge the public to pay attention to the injustices that the Supreme Court lets stand.

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Derek Chauvin - George Floyd murder: Investigative Update on Critical Incident - Minneapolis Police

This was the Minneapolis police department's first press release on the killing of George Floyd.

Investigative Update on Critical Incident - Minneapolis Police

Remembering the Mondale Campaign - Walter Mondale, Ex-Vice President Under Jimmy Carter, Dies - The New York Times

Walter Fritz Mondale   

My only serious foray in electoral politics began early in 1983 when I signed on with the Mondale campaign.  I joined because of his alliance with the labor movement and his solid ties to the Black community - quite like Joe Biden with whom he was pretty much on the same page.  As a long-time anti-war movement activist it was a step toward the mainstream for me.  I did not regret it for a minute.  He was a decent man - much like Biden today in temperament and perspective.  He wasn't much of an orator but he never uttered a word he had to apologize for. 

I had been a county coordinator for the nuclear freeze campaign - an important movement at the time because Ronald Reagan was talking Star Wars and hadn't yet had his face to face with Mikhail Gorbachev in Reykjavik.  But there was a lot of dissatisfaction among my usual allies on the left.  They flooded to Gary Hart and mainly, to Rev. Jesse Jackson.  I had long followed Jackson - having written a paper on him when I was a grad student of Howard Zinn at BU.  But I didn't think he was a viable candidate for President.  Hart, of whom my opinion later grew, was too neo-lib for me.  They called themselves Atari Democrats.  So the Mondale campaign was home for me.

I was deployed to debate Jackson and Hart proxies at town Democratic clubs in northern New Jersey, speak to friendly crowds, like National Organization for Women (NOW) chapters.  It was heady - speaking for the leading candidate for the Presidential nomination, with only campaign talking points and reports from the Times to guide me.

I finally got to meet Mondale a few days before the June New Jersey primary.  He came to Newark for a rally in a big auditorium at the University of Medicine and Dentistry.  It took some finagling to get me into the place, and standing on the edge of the speakers platform.  The Secret Service had dug up the record of my arrest for obstructing governmental operations and resisting arrest at a picket line in front of Macy's Herald Square where I stepped out of bounds as a "legal observer" supporting the Amalgamated Clothing Workers strike at the Farrah pants factory in Texas or was it New Mexico.

New Jersey put Mondale over the top - the end of a long campaign. 

To my surprise I was named to the Democratic National Committee's "Permanent Platform Committee".  That brought me to Washington, D.C for three days of contentious meetings.  Chaired by Rep. Geraldine Ferraro, Jackson and Hart forced floor votes on many platform planks.  I spent time on line for the microphone but found that Brooklyn Congressman Stephen Solarz felt that he owned it.  But I was in the fight, and loved it.  There was never a position that the campaign took that made me uncomfortable.  I do remember being denounced by the Congressman behind me - Charles Schumer - when I voted with the Mondale campaign to call for an end to expansion of Jewish settlements on the West Bank of the Jordan River.

The Convention was in San Francisco where the platform fight continued.  I was sent to other state delegations to pitch the Mondale campaign's perspective on arms control, with talking points handed to me by Madeline Albright.  And then it was over.  When the floor fights on platform ended there was nothing for me to do but listen to Kool & the Gang - the convention house band, enhance my mood, and wait for the nightly parties on Fisherman's Wharf hosted by then State Assembly Leader Willie Brown.  A particularly high point was strolling in to the warehouse on the bay to the sounds of Grace Slick singing White Rabbit, which caught my mood perfectly.

So thank you, Walter Mondale.  Every nice thing anyone has to say about you is true.  RIP.

- GWC

Walter Mondale, Ex-Vice President Under Jimmy Carter, Dies - The New York Times

MassimoFaggioli-Joe Biden and U.S Catholicism - conversation with John O Brennan，Thomas Massaro, S.J.

 I am proud to have had the opportunity to moderate a panel discussion with Villanova Professor Massimo Faggioli about his new book Joe Biden and U.S. Catholicism.  Panelists were former CIA Director John O. Brennan, and Fr. Thomas Massaro, S.J., of Fordham.

Joe Biden and Catholicism in the United States from Fordham Law School on Vimeo.

China’s Crimes against Humanity Targeting Uyghurs and Other Turkic Muslims | HRW

China’s Crimes against Humanity Targeting Uyghurs and Other Turkic Muslims | HRW

In May 2014, the Chinese government launched the “Strike Hard Campaign against Violent Terrorism” (严厉打击暴力恐怖活动专项行动) in the Xinjiang Uyghur Autonomous Region (Xinjiang or XUAR) against Uyghurs and other Turkic Muslims.[1] Research by Stanford Law School’s Human Rights & Conflict Resolution Clinic and Human Rights Watch, along with reports by human rights organizations, the media, activist groups, and others, and internal Chinese Communist Party (CCP) documents, show that the Chinese government has committed—and continues to commit—crimes against humanity against the Turkic Muslim population.[2]

Recording & Review Pt. 8: “Same Life, Different Values”

Chinese tort law in practice has been sharply limited by the Supreme People's court which established a sharp differential between compensation for rural residents and urban residents.

China's National Development and Reform Commission (NDCR) released on April 12 its 2021 urbanization task list, which presses cities of less than 3 million residents to abolish hukou, etc., https://www.ndrc.gov.cn/xwdt/ztzl/xxczhjs/ghzc/202104/t20210412_1272133.html

But the National Peoples Congress and Supreme People's Court have also attended to this process.

 GWC

Recording & Review Pt. 8: “Same Life, Different Values”

Written by Dongyu Sun. Edited by Susan Finder and Changhao Wei.
This post also appears on the Supreme People’s Court Monitor.

Photo by ImagineChina, via Bloomberg News.

On December 15, 2005, a loaded truck rolled over on a mountain road in Chongqing, crushing a trishaw carrying He Yuan and her two friends to school. All three perished in the accident. What thrust this tragedy into the national spotlight, however, was the drastically different amounts of compensation their families received. The trucker’s employer settled with the families of Yuan’s friends for over 200,000 RMB each, but was willing to pay hers only 80,000 RMB—because she, unlike her classmates, had a rural hukou (or household registration).[1] The company cited a 2003 Supreme People’s Court (SPC) interpretation on the application of law in personal injury cases (2003 Interpretation), which created two separate standards for compensating the deaths of urban and rural residents.

As a result of this effectively hukou-based rule, countless victims’ families have found themselves in the same position as Yuan’s. The Chinese public has dubbed this phenomenon “same life, different values” [同命不同价] and has persistently criticized the 2003 Interpretation. Some citizens have requested that the NPC Standing Committee (NPCSC) conduct a constitutional review of the Interpretation.

It was not until 2020 that the NPCSC’s Legislative Affairs Commission publicly addressed these requests in its annual report on “recording and review” (R&R) [备案审查]. This report’s timing and content are significant. Below, we will first take a closer look at the 2003 Interpretation and the controversy surrounding hukou-based compensation standards, before returning to the Commission’s report.

The SPC’s 2003 Interpretation

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HONG KONG CONVICTIONS: 眾新聞 - ‘I stand the law’s good servant but the people’s first,’ says Margaret Ng

Four political leaders in Hong Kong have been found guilty and sentenced to jail for participation in unlawful protests in Hong Kong in 2019, according to a report in the GUARDIAN.  Below is the speech of Margaret Ng, Oxford trained barrister and former member of the former colony's Legislative Council.  I am reminded of the convictions for unlawful assembly of Martin Luther King and other leaders of the Southern Christian Leadership Council in Birmingham, Alabama in 1963.  King wrote his epochal epistle Letter from a Birmingham Jail, and the United States Supreme Court eventually upheld the contempt convictions for violating an unlawful injunction.  They should have obeyed the order, Justice Hugo Black, a former Senator from Alabama, wrote for the Court.  - GWC

眾新聞 - ‘I stand the law’s good servant but the people’s first,’ says Margaret Ng

Your honour, I am grateful to your honour for allowing me to make this statement about my background and the personal conviction I have held in what I did.

I was called to the bar in 1988, but my early training was not in law. I had indulgent parents who allowed me to spend 10 years in the university in Hong Kong and then in Boston to study philosophy. There I learned about rigorous intellectual honesty in the pursuit of truth and alleviation of the suffering of mankind.

It was a sharp change for me to switch to law in 1981 when I went to Cambridge to read for a law degree. Those were the crucial years of Sino-British negotiations over the future of Hong Kong. My generation were embroiled in finding a way to preserve Hong Kong’s freedoms and original way of life after the change of sovereignty. This was so important to all of us that, after I was called to the bar, I did not immediately start to practise, but took up an editorial post in the Ming Pao Daily News, because I accepted that it was critical to Hong Kong’s future to have a strong free press, and at that stage I had some standing as a political commentator. 

I resumed my legal career in 1990, but in 1995 I was persuaded to stand for election in the legal functional constituency. Your honour, the legal profession, steeped in the common law tradition of civil liberty, did not believe in unequal elections, but they considered that so long as there was such a seat, they would not allow anyone to compromise the rule of law in their name. So I was elected as their representative to hold that office in trust for the people of Hong Kong, to use it to uphold the system under which their rights and freedoms are protected by law. I was charged with a dual mission: to do my utmost to prevent legislation that would harm the rule of law, and to safeguard the institutions that underpin the rule of law. At the top of the list was judicial independence, and the administration of justice.

Those were the tasks to which I had voluntarily pledged to carry out.

It meant, first of all, working conscientiously in LegCo’s committees.

I served in LegCo for 18 years (including the year from July 1997 to August 1998 when I was without a seat), and for 17 of those years I sat as Chairman of the Panel of Administration of Justice and Legal Services which had oversight of policies concerning the Judiciary, judicial provisions and establishment , including the allocation of land and costs for court buildings, legal policies, legal aid, the organisation of the legal profession, legal services, and legal education. Numerous issues were brought up, discussed and resolved. 

Some of the work required search for novel dispute resolution. At the height of the heated dispute within the profession over higher rights of audience for solicitors, I put the matter before the Chief Justice and respectfully asked him to intervene so that the matter may be resolved, and seen by all to be resolved, on the public interest and not by unseemly turf fight. It was vital for the rule of law that the public continued to have confidence in the legal profession.

The expansion of legal aid's supplementary scheme, assistance for unrepresented litigants, more user- friendly and helpful free community legal advice were among other examples for which extra effort had to be made to find solutions. Often there were setbacks. In 2002, when Audrey Eu SC was also in LegCo, we worked in partnership with NGOs on a proposal for a community legal services centre, to give people timely and useful legal advice. Although it was rejected by the government at the time, in due course the idea bore fruit elsewhere. 

I had found that, frequently, tact, diligence and patience were what was needed. But at other times, when a fundamental value was violated, strong statements and response were required. In June 1999, in the wake of the Court of Final Appeal's landmark decision on the right of abode in Ng Ka Ling, the NPCSC issued its first interpretation of the Basic Law to overturn the court's decision. This shook the world's faith in the power of final adjudication of the court. In protest, on 30 June, I and over 600 members of the legal profession went on a silent march, and stood in quiet respect and in solidarity in front of the CFA building then on Battery Path, to mark our unswerving support for the court in that critical hour, so that the community may not be demoralized. 

Your honour, the task in the defence of the rule of law also meant commitment to the process of law- making. I devoted a great deal of my time to vetting bills. It is recorded that I had worked in 155 bills committees. It is vital to the rule of law that the laws passed by the legislature are sound, rights - based, and measure up to the highest standards. For, judges are bound to apply the law as it is not as what they would wish it to be. Lawyers are in a better position than most to know how a piece of legislation would work - or would not work - when it comes to be tested in the courts. In this I worked closely with the profession to whom I will always be grateful. We did our best to see to it that rights were not inadvertently or unnecessarily compromised. The law should give protection to rights, not take them away, especially in Hong Kong, where structural democracy is still absent. The people relied on the law to protect them, and the courts are the ultimate arbiter of the law. We are mindful that when the court applies a law which takes away fundamental rights, the confidence in the courts and judicial independence is shaken, even though the fault lies in the law, not with the judge who applies it, and that would strike at the foundation of our rule of law.

Your honour, the importance of the duty was driven home to me by the words of a distinguished judge- Associate Justice Anthony Kennedy of the United States Supreme Court as he then was - when he came to Hong Kong at the invitation of the then Chief Justice Andrew Li to give a speech to the Judiciary and the legal profession on 8 February, 1999. He was deeply moved by the challenges lying ahead of us, and the important role of an independent Judiciary. He submitted: “One requisite for judicial independence is that judges have the jurisdiction, the right, and the official capacity to decide all matters, susceptible to judicial resolution, that are necessary to ensure liberty and human freedom. If a judiciary does not have jurisdiction to this extent, then the members of the bar and the members of the larger society must continue to press to expand the jurisdiction. This is vital, because if the bar and the society seem indifferent to a too-narrow judicial charter, there is a risk that the judiciary will in fact or perception aid and abet a larger scheme to deprive persons of their liberty.”

Those were strong words, your honour, but I recognised their authority, and I had ever taken them as marking the ultimate loyalty a barrister owes to a judicial independence. Your honour knows that there is no disrespect, to say that the defence of judicial independence is not for the benefit of judges themselves, but so that they can be in a position fearlessly to uphold the rule of law.

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In Memoriam - Ruth Bader Ginsburg - Columbia Law Review

RBG Archives - Columbia Law Review

Columbia Law Review In Memoriam:Justice Ruth Bader Ginsburg

“Fight for the things that you care about, but do it in a way that will lead others to 

Contributors

1. Z. Payvand Ahdout 
 
2. Ginger D. Anders 
 
3. Benjamin Beaton 
 
4. Stephen G. Breyer 
 
5. Hillary Rodham Clinton 
 
6. Brenda Feigen 
 
7. Robert A. Katzmann 
 
8. Goodwin Liu 
 
9. John B. Owens 
 
10. Kathleen Peratis 
 
11. John G. Roberts, Jr. 
 
12. Susan Deller Ross 
 
13. William Savitt 
 
14. David M. Schizer 
 
15. Alexandra A.E. Shapiro 
 
16. Arun Subramanian 
 
17. Zachary D. Tripp & Gillian E. Metzger 
 
18. Amanda L. Tyler 
 
19. Stephen Wiesenfeld

Acknowledgments 

 

Masthead

Remembering Ruth

John G. Roberts, Jr.*

Ruth Bader Ginsburg was a professor, lawyer, and jurist of historic stature. The contributors to this memorial volume speak to the multiple stages of her legal career, including her four decades on the federal bench with twenty-seven years on the Supreme Court. She is among the few Justices in the history of the Court who had a pathmarking impact on the law even before becoming a judge and among the even fewer still who will be remembered long beyond their service. Ruth enriched the lives of all who knew her, worked alongside her, or simply were inspired by her example. She was proud of her many associations with Columbia Law School, and it is fitting that this tribute collection appears in the Columbia Law Review, a publication to which she contributed as both editor and author.

As a jurist, Ruth was a master of the judicial craft. Her opinions are written with the unaffected grace of precision. She chose her words with calibrated nuance to convey exact intended meaning. But she also worked quickly, even on hard assignments. She enjoyed the challenge of routinely being first to complete an assigned opinion each Term, undaunted by the possibility that a Chief Justice might send difficult cases her way to enable others to keep pace.

In conference, Justice Ginsburg embodied integrity, intelligence, and responsibility. She listened attentively and spoke softly, contributing quiet rigor and conviction to each conversation. Those contributions continued through the opinion circulation process. She offered edits to improve the work of others and accepted suggestions to strengthen her own. Her many majority, concurring, and dissenting opinions constitute an impressive legacy. And every Justice who shared the bench with her produced better work for being by her side.

Ruth not only brought judicial talent and temperament to the Court; she also brought her passion for the arts. She was world famous for her love and knowledge of opera. She served as our impresaria of the Supreme Court Musicale, a tradition of bringing the Justices and Court family together twice a year for music at the Supreme Court. She attracted world-class talent that lifted our spirits during our most arduous workdays.

Justice Ginsburg has of course become an international icon of the law. In her long life, she traveled the globe making common cause with judges, lawyers, and law students, building friendships based on a shared belief in the power of the law to help people live free. She inspired a great many individuals, and especially a great many women, to dedicate themselves to law and to public service. Her influence will continue through their work.

Beyond all this, Ruth was devoted to her delightful family. She demonstrated that one can indeed balance a demanding professional career with a rich home life. We at the Court were third-party beneficiaries of her marriage with Martin Ginsburg, who enlivened our gatherings during his too-short life. Their children, Jane and James, will always be welcome at the Court.

I am fortunate to be among those who knew Justice Ginsburg as a colleague and a friend. She will remain an enduring model for so many others who know her through her work and example. The collected tributes that follow will help ensure that future generations will know Ruth Bader Ginsburg too, as a tireless, resolute, and beloved champion of justice.

* Chief Justice of the United States. 

join you.”

Race and statistics -- FREDERICK L. HOFFMAN (1865-1946)

THE REDISCOVERED PROPHET: FREDERICK L. HOFFMAN (1865-1946)

W.E. Burghardt DuBois - The Health and Physique of the Negro (1906)

The Myth of the Actuary - Life Insurance and Frederick L Hoffman's Race Traits of the American Negro. Megan J Wolff Public Health Chronicles

Conk - Deadly Dust 

U.S. Congressman and Former Jesuit Speaks at Fordham

U.S. Congressman and Former Jesuit Speaks at Fordham

U.S. Congressman Juan Vargas, a California state representative and 1987 Fordham alumnus, met current students on April 1 over Zoom, where he answered their questions about religion and politics and reflected on how his time with the Fordham Jesuits shaped his perspective on life. 

The event, “Faithful Service: Reflections on Religion in Public Life,” was hosted by the Curran Center for American Catholic Studies in conjunction with Fordham professor Michael Peppard’s Religion and American Politics course, whose students were in attendance, along with other guests. In the hour-long session, Vargas reflected on his eclectic life, the ways his faith shaped his political career, and the role of religion at the U.S. Capitol. 

U.S. Congressman Juan Vargas

Vargas was raised on a chicken ranch in California with his nine siblings. As a young adult, he entered the Jesuits and worked with disadvantaged communities, including orphaned children and displaced people in El Salvador. He spent two years with the Jesuits at Fordham—where he earned a master’s degree in humanities in 1987—and said they instilled in his worldview the importance of making the world a better place. 

“I have always been someone with deep faith in Christ. But this gave me a way of looking at the world and trying to address it in a way that makes sense to me,” Vargas said. 

Vargas went on to graduate from Harvard Law School in 1991, along with his famous classmate, President Barack Obama. He left the Jesuits and married Adrienne D’Ascoli, a fellow Fordham graduate. He began his career in politics at the San Diego City Council in 1993, where he worked in planning, funding, and advocating for public safety, municipal infrastructure, and schools. He’s now a member of the U.S. House of Representatives in the 51st district of San Diego, where he has served since 2013.  

Though Vargas is no longer a Jesuit, he remains a devout Catholic. A person’s religion can deeply inform their values, including his own passion for immigration reform in the U.S. His faith has also led to interesting interactions among his colleagues. When he joined a state assembly prayer group, he was the sole liberal Catholic in a group of right-wing Protestants. They disagreed on many issues, but they became friends, he said. 

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court - Eric Segall

Expanding the Supreme Court is on the docket.  Tomorrow House Judiciary Chair Jerrold Nadler and Senator Ed Markey will simultaneously introduce a bill to expand the court from nine to thirteen.  President Joe Biden has appointed a blue ribbon bi-partisan mainly academic panel to look at the question and report in 180 days.  Skepticism abounds. Court-packing - a specious charge in this moment, as in most - is sure to become the MSM mot of the day.  But Eric Segall, a Georgia State law professor, argued three years ago for a balanced Supreme Court.  He still does.  The recipe for gridlock? common ground?  is intriguing.  - GWC

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court

By Eric Segall

Abstract

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation's history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. Thus, Congress should pass or amend a statute permanently implementing a Supreme Court comprised of an even number of Republicans and Democrats. To reach a decision and avoid deadlock on such a Court, at least one Justice would need to cross ideological lines, resulting in more positively received decisions, especially in politically charged cases. This article concludes that an evenly balanced Court would uphold the supremacy and uniformity of federal law, be more favorably viewed as a Court of law rather than a politicized institution, and would enable well-thought-out and rational procedure--rather than death, serious illness, or politically timed retirements--to drive the judicial confirmation process.

The Supreme Court radically redefined religious liberty in the COVID case Tandon v. Newsom.

Slate's Mark Stern interviews First Amendment specialist Jim Oleske and Texas Supreme Court commentator and practitioner Stephen Vladeck about the radical new religious freedom case which upends the principle that discrimination against religious expression is barred while laws of general application can stand. - GWC

The Supreme Court radically redefined religious liberty in the COVID case Tandon v. Newsom.

By Mark Joseph Stern

Late on Friday night, the Supreme Court issued a 5–4 decision in Tandon v. Newsom, which blocked California’s COVID-related ban on religious gatherings in private homes. Chief Justice John Roberts dissented, as did the three liberal justices, making Tandon yet another COVID decision in which Justice Amy Coney Barrett’s vote made the difference.

Although the conservative majority’s decision was unsigned and ran just four pages long, it radically altered the law of religious liberty. Since 1990’s Employment Division v. Smith, the Supreme Court has not interpreted the First Amendment’s free exercise clause to require religious exemptions to laws that don’t discriminate against religion. In Tandon, however, the majority effectively overturned Smith by establishing a new rule, often called the “most favored nation” theory. Under this doctrine, any secular exemption to a law automatically creates a claim for a religious exemption, vastly expanding the government’s obligation to provide religious accommodations to countless regulations. In Tandon, for instance, the Supreme Court held that California had to let people gather indoors for Bible study because it allowed them to gather indoors to get a haircut, eat, or take a bus; if Californians can get pedicure, they must also be permitted to spend hours in close quarters discussing the Bible. And the Supreme Court created this sweeping new rule through its shadow docket—those cases decided with minimal briefing and no oral argument outside the court’s normal procedure.

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NJ Law Journal Editorial - Strong Gun Law Saves Lives

 Today, like many days, there was another horrifying shooting.  Today it was Tennessee.

Two weeks ago it was Boulder, and before that Georgia.  New Jersey has the strongest gun laws in the country. And a low rate of gun deaths, though tragically high nonetheless.

Today the New Jersey Law Journal Editorial Board spoke up.  I'm proud to be a member. - GWC

Wayne LaPierre, the NRA leader, at the CPAC conference earlier this year, lambasted the mayors of Chicago and New York for recent increases in gun violence: Guns don’t kill people, people kill people, so don’t blame the availability of guns. When stated forcefully, it makes momentary sense.

Of course the fact that the country is flooded with easily and legally purchased weapons makes it easy for people in strong gun control states like New York and New Jersey to fall victim to illegal firearms. We recognize that the existence of such an arsenal cannot be wished away. And we are not going to send the police door to door to seize weapons, as some Second Amendment adherents fear.

But when a demented, possibly racist, misogynistic mass killer like the Georgia massage salon shooter got his weapon it wasn’t through illegal channels, purchased unlawfully. The young man walked into a store, bought a nine millimeter pistol and sufficient ammunition to kill eight and head down the road to inflict more mayhem. No criminal record, no finding of domestic violence stood in the way of his constitutionally protected purchase of a deadly weapon for no demonstrable reason other than his having the cash on hand and the desire to own a gun.

It is the current fashion to dismiss such concerns as having been placed beyond our reach by the Supreme Court mandate that there is a personal right to bear arms for self-defense. But our laws in New Jersey, like those in New York, would have prevented such a purchase. In New Jersey, a showing of need would have been required and the 30-round capacity gun would have been banned. Similarly in the Boulder grocery store massacre, the perpetrator was able to lawfully buy his large capacity magazine weapon shortly before the attack. We should urge the members of Congress, the Senate, and every legislator in every state to enact such laws.

Hate crime laws add nothing to the already maximum sentences for murder and do nothing to protect the principally Korean and Chinese women slaughtered in Georgia. Murder is already harshly punished. But keeping guns out of more hands might save lives.

 

Dorf on Law: The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

Dorf on Law: The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

By Eric Segall

I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.

                                                                                            Chief Justice John Roberts

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."

What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much. 

First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions.

Then there are the truly inexplicable 5-4 free speech cases that reflect the Roberts Court's overall conservatism more than a desire to protect freedom of expression. In Janus v. AFSCME, in an opinion written by Justice Alito, the Court reversed a 1977 case and held that states could not require non-union public sector workers to pay union dues going to collective bargaining costs because doing so somehow violated their free speech rights. Of course, these non-union workers could say anything they wanted at anytime about any subject. This case was much more about the Court's anti-union preferences than restrictions on speech. And the idea that paying for bargaining-related activities of unions would be considered speech as an original matter is laughable. This anti-federalism decision overturned laws in almost half the states. This is "applying the law" only in the sense that the five conservative Justices' personal preferences equals "the law."

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