Posts Tagged ‘U.S. Supreme Court’

The Oregonian reported last week about the latest mandatory bar kerfuffle. This time, it involves a signed statement published in the Oregon State Bar’s April 2018 house organ, The Oregon State Bar Bulletin. It was signed by the bar’s governing board president, president-elect and its CEO and ran alongside a statement by several so-called special interest and specialty bar associations. You can read both statements here.

According to the news story that ran April 24, 2018 in the state’s largest newspaper, “Two signed statements in the latest Oregon State Bar bulletin – one by the bar condemning speech that incites violence and the other by non-bar specialty groups decrying the rise of the white nationalist movement under President Trump — have drawn fire from some lawyers aghast that the bar would allow such political statements.” The ABA Journal also has a story at “Statements by Oregon State Bar and specialty groups draw fire.”

Playing politics and ideology with mandatory monies.

Mandatory bar associations like having it both ways. In mandatory bar states like Oregon, these associations force lawyers to join and fund their activities as a precondition of earning a living. U.S. Supreme Court case-law, however, imposes certain restrictions on these forced-membership associations. They can constitutionally fund activities out of the mandatory dues of all members only if the activities are germane to the goals of regulating the legal profession and improving the quality of legal services.

But being masters of the self-serving, parsed interpretation, the associations generally have a field day gumbifying those goals into loopholes large enough to drive a dump truck through. This is why the temptation remains strong to use mandatory dues to fund activities even if they’re not germane to those regulatory and quality improvement goals, including those of an ideological or political nature. In the rare instances when they’re caught being political or ideological, they solely get to calculate the pittance refunded to objecting members.

Is it any wonder mandatory bars can’t resist their unaccountable access to and nontransparent use of mandatory dues to take positions on public policy matters — even controversial ones? Supreme Court restrictions or not, they depend on every cent of those mandatory member monies even while taking the latitude enjoyed by voluntary bar associations to weigh in on public policy.

Unlike mandatory bars, voluntary bars are free of First Amendment and Keller v. State Bar of California restrictions and can therefore comment and even advocate on political or ideological concerns. However, if members don’t like a position that a voluntary bar association takes, they aren’t forced to remain members.

This, then, is the crux of the mandatory bar problem. If members want to earn a living as lawyers — they might qualify for a nickel ninety-five refund if they have the nerve to complain about non-germane dues use — but they can’t get out.


Credits: Donald Trump caricature by Donkey Hotey at Flickr via Attribution share-alike attribution license.

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photoBill Clinton notoriously parsed the meaning of “is” and in Jacobellis v. Ohio, 378 U.S. 184, 197, Justice Justice Potter Stewart famously struggled to defineI know it when I see it” obscenity.

But while everyone else in Arizona was roasting on the spit of our 28th day of triple digit temps this year and waiting for the U.S. Supreme Court to hand down its decision in the first of the ‘show me your stinkin’ papers’ SB 1070 illegal immigration case: Arizona v. United States (11-182) — the Court instead unanimously vacated and remanded 8-0, FCC v. Fox Television Stations, Inc.

photoThe U. S. Supreme Court did not address First Amendment considerations but relied instead on “fair notice grounds under the Due Process Clause” to rule against the FCC in a case that was about profanity and nudity on television.

The Court held that “Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague.”

More specifically, the Fox Television case involved 3 instances of alleged indecency, 2 which occurred on Fox Television and 1 on the ABC Television Network.

The first concerned Cher’s unscripted acceptance speech at the Fox-televised 2002 Billboard Music Awards. In accepting her award, Cher pronounced, “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ’em.” To my surprise, however, Cher did not add the infamous if-clause, if they can’t take a joke.”

The other incident took place the following year at the same music awards. But this time, it involved Nicole Richie who popped off while presenting an award, “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

The third and final incident involved a bum wrap on ABC. And besides the gratuitous gluteus, also gave new meaning to the ‘boob tube.’ The February 25, 2003 broadcast of NYPD Blue featured 7 seconds of an adult female character flashing her naked butt along with a fleeting side view boob. All three broadcasts generated complaints to the FCC.


Now I had more than a passing interest in the Fox Television case and not because some might mistakenly think I welcome the malolactic fermentation of a dry, toasty, aromatic expletive or that I take particular delight in what passes for a well turned-out areola on television.

The fact is that, as previously noted here, our increasingly uncivil F-bombing culture is lamentable. But that said, we have a long way to go to before we approximate the public television airwaves of Europe, the touchstone for — depending on your point-of-view, the ‘Old World’s’ enhanced excesses or its exuberant freedoms. And yet, take note of the latest controversy from across the pond, “Harvey Nichols ads show models peeing in excitement over its sale.

So is it the place of government or of the law to protect us from our excesses? While the FCC says yes, others argue no. And while the Court didn’t necessarily agree in this instance with the argument that we havea right to say ‘[expletive] you’ in public” under a First Amendment Right to Profanity. Others continue to insist the F-bomb has “a legitimate place in our daily life.”

Characters 25Nonetheless, in a throw back to those puritanical colonial days when there were laws against blasphemy, the Massachusetts Town of Middleboro has sworn off swearing and the town chief of police will be fining people with ‘potty mouths.’

But back at the FCC, based on the high court’s decision today, the Court extended an invitation to the Commission to revisit its standards and policies so that those apparently unsophisticated, unjaded and uninformed broadcasters can get a better sense of what offending butts, boobs and bad words are. What a surprise.


Credits: Bill Clinton, by DonkeyHotey at Flickr via Creative Commons-licensed content requiring attribution; “Surprise,” by Trinity Rebecca Partington at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution;”Cher’s View of the World” by Michael Coghlan, Adelaide, Australia via Wikipedia Commons and under the Creative Commons Attribution-Share Alike 2.0 Generic license; Super Bowl wardrobe malfunction image at Wikipedia Commons under a fair use, non-free media information and use rationale.

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Broccoli in a dish 2.jpgLike overcooked broccoli that gets mushy, stale and tasteless, this week’s Op-ed punditry and legal beagle analyses following the Supreme Court hearings on the Constitutionality of the Patient Protection and Affordable Care Act has started to acquire the same PEEUWW! sulfurous smell of that similarly gaseous vegetable. It all started with the so-called Broccoli mandate , i.e., that if the government can force you to buy health insurance, as Justice Antonin Scalia analogized, you can make people buy broccoli, too.
                                                                                                                                                                                                                                                  Clueless punditry.
Regardless of outcome, the foamers on the losing side will be lathered up. And somebody’s angry base will be “energized.”

Indeed, post-hearings, things are already so worrisome for Progressives that not only are they running around trying to simultaneously grab all four cheeks – – – but they’re also trying to grab each other’s. Yesterday, left-leaning New York Times economist Paul Krugman wrote, “. . . we don’t know how this will go. but it’s hard not to feel a sense of foreboding – – – and to worry that the nation’s badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.”

Ironically, just weeks ago legal experts predicted a Supreme Court win for ‘Obamacare.’  Indeed, according to one report from the American Bar Association, the tea leaves read by 85% of so-called veteran court watchers indicated the nation’s highest court would uphold the Constitutionality of the individual mandate and of Obamacare itself. Notwithstanding that these “experts” could still be right, the tenor of the hearings nevertheless exposed the dubious reliability of such “expert” predictions. When it comes to the U.S. Supreme Court, like the results of last night’s Mega Millions lottery jackpot, you don’t know till you know.

The Myth of a Non-ideological Court.

As it now turns out, the reliably ideological 5-4 cast of the current Court personages has yet again deflated the overly optimistic predictions of supposedly savvy savants. Instead, what’s left is that same degree of helpful cheerfulness employed by schoolboys who whistle past graveyards.

What were they thinking? Weren’t these the same Progressives who had run wailing into the cobble-stoned streets sans torches and pitchforks following this Court’s rulings in Bush v. Gore and more recently, Citizens United?

And pardon my mixed metaphors, but crossing the political aisle, Progressives are so down-in-the-mouth right now that the fervent Conservatives’ counted chickens may not be prematurely dancing on the Affordable Care Act’s grave.

And that’s not broccoli the Right is inhaling. It’s what Kilgore loved, “The Smell Of Napalm In The Morning.”

File:Emperor Clothes 01.jpgBut rather than add more of my own equally clueless noise to the prognosticating cacophony, I’ll limit my further ruminations merely to draw attention to what’s long been obvious to legal insiders but not always to the general public, that “long ago, the legal realists exposed the myth of formalism by demonstrating the inevitability of judicial discretion” or as “any first year law student knows that judges make law constantly.” This is what constitutional law professor Erwin Chemerinksy memorably characterized as “Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making.”

The good professor calls discretion-free judicial decision-making a “myth,” disagreeing with the supposed “fear that courts would lose legitimacy if people knew that the values of unelected jurists were the basis for decisions with direct, local impact on their lives.”


“Of Course Ideology Should Matter in Judicial Selection,” Chemerinsky further argues in yet another useful deconstruction of the mythology that’s also been challenged by such eminent law professors as Randall Kennedy and Christopher Eisgruber. I previously discussed their assessments here while also noting the recent “Poll: Many Think Justices’ Ideologies Will Affect High Court’s Health Law Decision,” revealing that: “Seventy-five percent said they think ideological beliefs influence decisions made by the Supreme Court justices, while just 17 percent think pure, nonpartisan legal analysis drives their decisions, according to the January Kaiser Health Tracking Poll.”

“We aren’t stupid.”

businesses,businessmen,dunce caps,embarrassment,males,men,metaphors,persons,shame

Justice Antonin Scalia during the hearings was referring to U.S. health care consumers when he told the suddenly oratorically M.I.A. Solicitor General Donald B. Verrilli Jr., “We aren’t stupid.” But increasingly, as the mythology of a non-ideological court is laid bare, the electorate finds itself also not stupid about innocuously described judicial ‘policy preferences. Reported by “The Washington Post,” a Bloomberg News survey taken before the oral arguments found that 75 percent of Americans believe that politics will influence the justices’ decision on the health-care law.

And in no small part, thanks to talking points being promoted by liberal groups like the Center for American Progress and recapped by “The Washington Post,” it gets worse. “The story line is simple . . . the Supreme Court puts politics above the people in the name of the Constitution.”


Photo credits: “Broccoli in a dish” licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license via Wikipedia;”Gnome Moon,” by Ludie Cochrane at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution;Illustration “From the Dance of Death” by Michael Wolgemut (1493) in the public domain via Wikipedia; “The Whistling Boy” (1872) – Frank Duveneck(1848-1919) public domain via Wikipedia; Illustration of “The Emperor’s New Clothes” by Vilhelm Pedersen in the public domain via Wikipedia.

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