Friday, July 31, 2015

Planned Parenthood Doc: When the Remains are not so "War Torn"

The Center for Medical Progress has released the fourth video in its series exposing the ghoulish activities of the Planned Parenthood Body Parts business.

For the squeamish, you may prefer not to watch the video linked above. For everyone that pays taxes, you should watch the video.

When White House Press Secretary Josh Earnest says that CMP's videos are selectively edited, he doesn't clarify whether he means "edited" in the same way as Planned Parenthood technicians "edit" the body of a little boy whose parts are up for grabs in the video.

The whole video -- hard to watch -- tells the story that should defund Planned Parenthood, that should produce changes in federal law on organ and tissue donation and fetal experimentation.

What I've done below, with some screen grabs, is to provide seriously disturbing excerpts. Read on, and weep:

First of all, the Planned Parenthood representative acknowledges that they get complete fetal remains when a mother delivers before PP can see them "for a procedure."

Remember that. Intact.

 Dr. Ginde allows the visitors to watch as the aborted remains of a murdered child are picked apart by the staff ghoul.
 Well, well, "It's a baby."

Hmmmmm. A baby?

How did a baby get mixed up in with these "products of conception?"


The ghoul picks out the dead child's heart.

Wait.

Since when do these abortions take place after there's a heart? 

 Dr. Ginde likes the idea of pricing things "per item" rather than by the complete remains.

Apparently the whole is not equal to the sum of the parts on sale.

 Dr. Ginde also wants us to know that these children are good sized, and their remains can be removed by hand from the medical devices.
 As it turns out, being able to remove them by hand is an important financial consideration, as the remains are not so "war torn."

And speaking of war, it sounds like even Planned Parenthood knows that its conducting a war on the unborn child.

What a lucky day!

A stomach!

A kidney!

A heart! 

And, then, well, what would they have found to discover that this dead child is "another boy."

"Another boy."

As in, not the first boy that day?

No Service Today?

This particular blog is unrelated to most things about which I write. Also, I have no idea whether what I'm writing is unusual.

I had reason to visit downdetector.com at about 8:30 am. This website aggregates information on downed internet, cable and cellular services. At first, I was just curious why Sprint and T-Mobile were both down in Atlanta, Georgia. I looked at the service outage report map for Sprint and saw service outages in Atlanta and several other major metropolitan areas. Then I looked at the service outage report map for T-Mobile and saw THE EXACT SAME THING.

At that point, I think, "Hmmmmmmm, this is curious." So I return to the mainpage on downdetector.com.  Here's what you see when you go to the page:


Each of those logos is a hot link to an individualized report page for the named service.

So I clicked on Comcast. And TimeWarnerCable. And Charter. Etc. Etc. Each service reportage major outages. Each page offered a nationwide outage map. Each map showed significant outages in major metropolitan areas.

Then, I noticed on the homepage that the black menu bar had an option called "PROBLEMS."

So I clicked on "PROBLEMS" and here's what I saw:



Hmmmmmmmmm. Every major cell provider, several smaller ones, every major cable service and internet service provider, and several smaller ones?

Would the more knowledgeable among you mind helping me figure out ... sun spot? solar flare? system stress test? Jade Helm?

Wednesday, July 29, 2015

Trump, Reagan, Cruz and the "Eleventh Commandment"

Last Friday, the US Senate provided an electrifying moment for those who care. Ted Cruz, whose candidacy for the President I cannot currently support, took to the Senate floor and rendered an stunning rebuke of Mitch McConnell, the Senate Majority Leader. You can view that moment in the video below:

Senate Republican Leadership angrily responded. Orrin Hatch, the longest serving Republican in the Senate, took to the floor and rebuked Ted Cruz, albeit without mentioning his name:


Brit Hume, one of the talking heads on the Fox News Networks, took out his shillelagh and went after Ted Cruz. In particular, Hume assailed Cruz's character, calling him a hypocrite:


Is Hume correct? Is Cruz a hypocrite who obeyed Ronald Reagan's "Eleventh Commandment" when it suited him, and disobeyed it when the need arose?

We have become like tinder, those of us who have voted Republican with a view toward (1) shrinking government, (2) reducing taxes, (3) liberating the free market, (4) reversing the decisions of a peremptory Supreme Court.

In face of consistent, constant, and long-standing support for the candidates produced by the party, we have nothing to show for our efforts. Instead, we have Speaker Mitch McConnell LYING to the Republican Caucus on the question of whether there was a deal to bring the Ex-Im Bank question to the Senate floor for a vote. McConnell fended off a vote to defund Planned Parenthood, the unflattered object of a series of recent expose videos by the Center for Medical Progress.

We have a Speaker of the House that, if he were to die before Obama's term in office ended, would ask to have himself buried with his rear end sticking out of the ground so that Obama could have someplace to park his bike. Boehner has FAILED to defund the overreaching programs of the Environmental Protection Agency. Boehner has FAILED to impeach Obama over "executive amnesty," Benghazi, Fast and Furious, or his murder of an American teenager in Yemen, killed by an attack drone because (as Obama's spokesmouth put it, "he picked the wrong parents").

Into the dried tinder of our labors, our hopes, our aspirations, Donald Trump has breathed fire like Smaug. Of course support for Trump is erupting like wildfire. He says the things that need to be said by a candidate that wants us, the great unwashed base of the Republican Party, to give him our vote (he doesn't want our money, either, as he is financing his own campaign).

Trump does not mince words:

  • John McCain called folks that came out in droves to see Trump (and others) "crazies." In return, Trump cast doubt on portrayals of McCain as a hero. In Trump's words, he prefers heroes that "don't get captured."
  • Trump says we are not getting the best and brightest of the Mexican people when we tolerate illegal immigration from our Southern neighbor. In fact, he said we are getting murderers and rapists, and, he assumed, some good folks too.
  • After a fundraiser for Scott Walker referred to Trump as "DumbDumb," Trmp fired back on Walker, saying that Walker's Wisconsin was now a mess, "they projected a $1 billion surplus and it turns out to be a deficit of $2.2 billion."
  • Trump poked Texas Governor Rick Perry over his new glasses, suggesting they were an effort not to look stupid.
  • After Lindsey Graham accused Trump of "coming in like a wrecking ball" and risking the future of "his" Republican Party, Trump revealed Graham's personal cell phone number (a number Trump presumably was given by Graham who sought and got a campaign donation from Trump in his Senate re-election bid).
When Trump's remarks about John McCain were reported (albeit incompletely by most news outlets), some challenged Ted Cruz to join with other candidates, including Rick Perry, Lindsey Graham, and others, that have criticized Donald Trump. Cruz refused, and pleaded "Ronald Reagan's Eleventh Commandment:"


So, then, there you have Cruz invoking Reagan's Eleventh Commandment, "Thou shalt not criticize a fellow Republican." There you also have Donald Trump criticizing Republicans, both fellow candidates (Graham, Walker, Perry) and office-holders (McCain). And you have Cruz, after invoking the Eleventh Commandment to eschew criticism of Trump, exposing Senator Mitch McConnell as a liar on the Senate floor.

So, is Cruz a hypocrite?

I think not. And I think not for good reason, call it the North Carolina Corollary to the Eleventh Commandment.

When Ronald Reagan first invoked the Eleventh Commandment, he did it during his run for Governor of California, back in 1966. That run followed shortly after the 1964 election in which Barry Goldwater lost to Lyndon Johnson. Goldwater had been subjected to a barrage of criticism from East Coast Republicans, including Nelson Rockefeller, as too conservative

Whether it is speculation or true, the conclusion Reagan drew was that Rockefeller & Co. weakened the Republican nominee and insured LBJ's election. So, facing the same tough kinds of criticism during the Republican gubernatorial primary, Reagan invoked the "Eleventh Commandment," which he borrowed from California State Republican Party Chairman Gaylord Parkinson. In his autobiography, An American Life, Reagan later wrote:
The personal attacks against me during the primary finally became so heavy that the state Republican chairman, Gaylord Parkinson, postulated what he called the Eleventh Commandment: Thou shalt not speak ill of any fellow Republican. It's a rule I followed during that campaign and have ever since.
I voted for Reagan twice for president. I admired his service as President and appreciate his gift of Antonin Scalia to the Nation as a Supreme Court justice and his profound essay, Abortion and the Conscience of the Nation. But, the truth be told, Ronald Reagan did not follow that rule "ever since." In fact, when it was necessary, to keep his 1976 primary campaign alive, in the face of mounting primary victories by Gerald Ford, Reagan took the kid gloves off and unleashed attacks on Ford's presidency. Moreover, the tactic worked sufficiently well to turn Reagan's campaign around, resulting in wins in the North Carolina primary and others following it.

So, as it turns out, not even Ronald Reagan viewed the Eleventh Commandment as a political suicide pact. When he concluded that disobeying the Commandment was necessary to change the outcome of the 1976 Republican nomination race, he abandoned the commandment. Does that make Reagan a hypocrite? And, thus, does that mean that Cruz too is a hypocrite?

Perhaps.

Or, perhaps, the Eleventh Commandment is subject to some bending. If you need help understanding how it is that a "Commandment" can be bent, you might consider the examples of David taking the sacred "Shewbread" from the Tabernacle and feeding his mighty men with it, or the example of Jesus' followers plucking and eating grain on the Sabbath. Neither David nor Jesus would stand before you and say, "Rules were made to be broken." But Jesus did say, "The Sabbath was made for man, and not man for the Sabbath."

In like vein, Republicans can and should see that something like the Eleventh Commandment, which is a rule pertaining to elections and candidacies, are not "natural laws" like gravity. They exist because they have been invoked for typically good reasons. In the case of the Eleventh Commandment, the good reason is to avoid so weakening the eventual candidate of the party that the party's candidate loses to the opposing party's candidate. And, the Eleventh Commandment must be understood to include Reagan's North Carolina corollary: if obeying the Eleventh Commandment strictly means losing, think of it as the Eleventh Suggestion.

Monday, July 27, 2015

More than Just Videos: Exposing the Ghouls at Planned Parenthood

The news broke three weeks ago, with video footage accompanying, that Planned Parenthood sells organs and body parts recovered from abortions that it performs. Last work, the bizarre story took a further, ghoulish turn when a Planned Parenthood official expressed her goal of funding the purchase of a Lamborghini from the sales of fetal remains. That official also discussed the possibility of using "less crunchy" methods of abortion so that viable tissue remains following abortions that, under usual methods, would not result in usable materials.

If you have not seen the videos, the Center for Medical Progress has them available, both the edited and unedited versions here.

Home Page of the Center for Medical Progress (http://centerformedicalprogress.org)

Among the hard and fast responses from Planned Parenthood is that there is no "profit" in the activity of tissue harvesting. Here are some indications that those that procure tissues are providing payments over and above "shipping and handling" costs:

Excerpted from a flier for StemExpress


Excerpted from Terms & Conditions from Advanced Bioscience Resources, Inc.

Fee Schedule from Advanced Bioscience Resources, Inc.

There is that ghoulish moment in the second video when the possibility of employing a "less crunchy" abortion method, in order to procure intact "tissues" is discussed. I guess PP in Mar Monte will have to consider updating their forms.


And, lest you be left with the impression that this harvesting of tissue is something new to Planned Parenthood, the 2000-2001 Planned Parenthood Federation of America Annual Report describes new initiatives including "fetal tissue donation."





















Ultimately, the expose videos, the supporting materials, all add up to one conclusion about Planned Parenthood:













Is the Sky Falling in America? Discerning the Difference Between Acorns and Asteroids

Some of us, as children, learned the story of Chicken Little. You may recall it. An acorn falls on Chicken Little. She, misinterpreting events, becomes concerned that the sky is falling. Doom impending, she begins to spread the word and the panic.

"The sky is falling, the sky is falling!" As she panics, and spreads the word, she is joined by a menagerie of other animals. Groupthink demands that the message of DOOM must be brought to the king. As the menagerie proceeds toward the castle, they meet a fox, who, on pretense of helping them make their way to the king, leads them into his den. None of the menagerie ever emerges again.

A ghastly tale, we learn from it, if we are good little groupthinkers, not to give into a panic induced by uninformed, anecdotal conclusions. The trick, of course, is to distinguish between an acorn and an asteroid.

Cultural Asteroids Do Strike From Time to Time: Just Ask the Jews


As a very young man, I discovered the horror of the Holocaust. I learned how a thing that started out as a kind of responsibility-shifting paranoid fear of Jews, grew over the course of a century or so, into a machine that slaughtered Jews, Gypsies, Poles, the mentally handicapped, the physically disabled. If, in the mid-1800s, as Prussian papers and journals carried stories about how the economy of the Nation was endangered by Jews, and a good Jewish "Chicken Little" had stood up and said, in yeshiva or a synagogue, that the current slandering would become the future holocaust, how likely would it have been to be viewed as anything other than "Chicken Little"-ing?

In the 1970s, as abortion spread its ugly self across our Nation, transmogrifying from an ugly, back alley act of depression, despair and self-loathing to a sacred rite of the Democratic Party, certain voices warned that legalized abortion was a gaping maw that would not be sated. Voices warned that disrespecting life in its nascency would culminate in a generalized disrespect for life. That such disrespect would allow a growing acceptance of infanticide, assisted suicide, and euthanasia. Liberal and progressive critics, of course, "Chicken Little"-d those voices, decrying the possible connections and doomed future of which they warned.

In the aftermath of the Supreme Court's same sex marriage decision -- Obergefell v. Hodges -- some are celebrating, others are mourning. Still, others are warning about the potential fallouts of the Court's decision. Because I don't think that Obergefell is that last shoe to drop, I have posted an action sheet on my blog. That list provides a plan of action for Congress. It also portends the kinds of things that may yet grow out of the Supreme Court's mischief with the Constitution.

What kinds of fall-out might come from the decision finding a constitutional right to same-sex marriage?

First, the category of individuals to whom special, elevated levels of protection are provided might expand to include groups identified by their sexual orientation, or their self-identification by gender. The Constitution expressly prohibits certain kinds of discrimination based on race or national origin. Federal laws (and some States' laws) have been drawn to expand those categories of protection beyond race and national origin to include religious identity, gender, and ethnicity.

Second, if the Fourteenth Amendment bars States from denying individuals of the same sex from marrying, it doesn't take "panic" to predict that the Obama administration would
  • restrict faith based organizations that provide government-funded assistance to the public from:
    • requiring that their employees conform their lifestyles and choices in accord with the teachings of their faith
    • communicating those that participate in such programs about sexuality, gender, and sexual orientation
  • require federal contractors to provide benefits to same sex married couples on the same basis as provided to opposite sex married couples regardless of the religious faith of the contractors.
Third, though it may seem a more distant possibility, the course of such things in England, in Canada, and in Northwestern Europe, shows that it will not be sufficient, ultimately, to change behaviors, but eventually, there will be pressure to silence voices that reject the Court's Obergefell decision, that teach that, even without regard to an inborn orientation toward the same gender in the matter of human sexuality, we answer to the Creator, who designed us to join in opposite sex, perpetual marital relationships.

Not An Acorn, Nor an Asteroid: A Meteorite Shower


News in my inbox tells me that the fallout is underway, and no, it isn't an acorn, it's a meteor storm and some of the meteors are actually hitting.

According to Liberty Counsel,  the Commonwealth of Kentucky Justice Cabinet's Department of Juvenile Justice  has decided to exclude a pastor from a volunteer counseling program, based on the pastor's refusal to ascribe to a set of principles adopted by the Department of Juvenile Justice regarding sexuality. That decision came in a letter to the pastor and his family from the Commonwealth. It stated:
Please be advised that your participation as one of our Religious Services volunteers must conclude. We sincerely appreciate your years of servioe and dedication to the youth served by this facility. 
However, due to your decision, based on your religious convictions, that you cannot comply with the requirements outlined in DJJ Policy 912, Section IV, Paragraph H, regarding the treatment of LGBTQI youth, I must terminate your involvement as a religious volunteer serving the youth in this facility per DJJ Policy 112, Section IV, Paragraph H, (8).
All volunteers must agree to comply with the policies and procedures of the Department of Juvenile Justice and Warren Regional Juvenile Detention Center in order to become volunteers per DJJ Policy 112, Section IV, Paragraph E, (2).
You can read a letter from the attorneys representing the pastor, as well as the letter from the Commonwealth of Kentucky to the pastor here.

The dismissal carries into effect a policy adopted by the Department of Juvenile Justice in 2014. In pertinent part, that policy says:
DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity. 

If We Can Plan to Protect the Earth from Asteroids, Can We Protect Religious Liberties from the Impact of Obergefell?

Two movies from 1998, Deep Impact and Armageddon, portray efforts to protect the world and its occupants from the extinction level threat of asteroids and comets. Though fictional, they reflect a reality that NASA and other agencies around the globe are tracking space objects for their potential for harmful impact on the Earth.

If we can plan for, and, we hope, avert such a disaster, is there some reason why we cannot avert the harms of incoming missiles like the discriminatory policy of the Commonwealth of Kentucky's Department of Juvenile Justice?

Yes, we can.

Liberty Counsel's letter shows one of the ways to begin that process of asserting and defending these constitutional rights as a shield against federal, State and local interference. The constitutional problems with Kentucky's policy are manifold.

Liberty Counsel correctly notes in their letter three sources of federal constitutional harm:
  • First, the Department of Juvenile Justice is now enforcing its new orthodoxy, by which the Department has concluded that points of view that vary from that of the Department regarding homosexuality, gender identity, and sexuality are heretical and warrant banishment. 
  • Second, the Department's decision embodies the preference for one viewpoint regarding questions related to homosexuality, gender identity, and sexuality, and takes the position that viewpoints different from its own may be suppressed. 
  • Third, inquiry into the content of expression is, itself, a constitutional problem in the absence of compelling government interests and the crafting of narrowly drawn regulations.  
[These considerations seem technical and certainly require more words to communicate than the simple prohibition: "Congress shall make no law ...." I apologize for the seeming complexity. These standards are derived from long-standing decisions of the Supreme Court showing how it interprets and applies the First Amendment to various circumstances.]

Liberty Counsel also correctly notes that the policy enforced by the Commonwealth violates the Kentucky Constitution, which, like the federal one, protects the right to freedom of religion and freedom of speech.

Liberty Counsel has given the Commonwealth of Kentucky to the end of the month to retract its decision. It remains to be seen whether the Commonwealth will do so. If they do not do so, I imagine that litigation will follow shortly after that. The role of the Commonwealth in guiding spiritual content of communications between pastors and those they counsel is extremely limited. If the Commonwealth refuses to comport itself with the requirements of the federal and Commonwealth Constitutions, and does so in the name of isolating youths from any idea or message contrary to their current, perceived, or actual sexual orientation, it does so at its constitutional peril.

The dispute that Liberty Counsel has brought to light is just one such controversy.

Every August, I look forward to the start of the Perseid Meteor shower, when the earth passes through the debris trail of Comet Swift-Tuttle. We know that the Perseids will be back because prior experience tells us how to calculate the point in time when we will pass through the debris field again.

In the same way, we can look out over the cultural plain and predict that Kentucky's actions will not stand alone. Three States and the District of Columbia have passed laws prohibiting so-called "conversion therapy," and an additional 15 or so States have considered (or are considering) such bans this year in State legislatures. As the cultural struggle continues, it is the nature of such things that additional attacks on those who espouse traditional, faith-born views regarding sexuality will take place. So, it is a meteor storm that is coming.

Sunday, July 26, 2015

Growing up with White Privilege: How A Fiction Destroys our Life Narratives

Good Morning, Students

We are ready to move on to our next composition assignment. As with previous assignments, you are limited to 2500 words. Make them count. I will, of course, grade for grammar and spelling, along with style (unless you're white, in which case, you get an "A").
Your task is to gloat about how you never had to study in school but got straight A's, not because you did well on assignments and tests, but because your teachers gave you good grades because you were white.
Then, spend some time talking about the sports programs, recreational or school-based, in which you didn't have to do weight training, calisthenics, running, or skill developments, but nonetheless won scholarships, not based on skills and achievement, but based on your whiteness.
Follow this with a brief history of entering the work force, how you were immediately selected as CEO for a Fortune 500 company, not because of an extended track record of successes in prior business ventures, but because of your whiteness.
I will be interested to read your stories.


* * * *

Perhaps you were born with dyslexia. Or, perhaps, your father was killed Afghanistan. Or, perhaps, your mother suffered a debilitating stroke when you were ten. Or, perhaps, you were the victim of a child predator. Maybe you were raised by grandparents who only spoke a foreign language at home.

Maybe the rural school you attended did not get the same funding, quality teachers, or books as the city schools in your State's financial center. The mistakes of your parents' parents were echoed in how you were raised.

Perhaps, in school, studying did not come easy. But study you did. For acceptable grades.

Perhaps, at work, you lacked some of the schmooze of your colleagues, and while many recognized that you were diligent, thorough, and bright, patrimony and nepotism required more of you than you could offer.

So you made it out of childhood. Never having tasted a silver spoon, never having vacationed in Vail or Rome.

So you made it out of school. You got your diploma. You were never inducted into the National Honor Society, but nor were you ever suspended. You got your Associates, or your Bachelor's. But you then spent ten years paying off your student loan debt (no silver spoon, remember).

You landed a job. You worked the job. You gave it the same consistent, dedicated, enduring attention as you had ploddingly applied in other areas of life. Truth is, though, while you might become middle management, or shop steward, you have no likelihood of becoming the CEO.

And all of that is okay with you.

At the end of the day, whether you just didn't have the same charm as some, the same wits as some, the same gifts as some, you've assembled a reasonable, livable life around yourself.

Then you turn on the Sunday morning news programs, or one of the evening cable news programs. "WHITE PRIVILEGE."

The first thing that comes to mind is, "Gosh, I wish I had experienced WHITE PRIVILEGE."

And then the president of your nation, a man who built nothing, who established no industry, who tore no farm out of forests, who actually really and truly brings a blank resume to the office, comes on the news, looks you and everyone around you and says, "You didn't build that."

If it's a conservative channel, he may be followed by some well-heeled folks -- attorneys, businessmen -- who rightly resent the ugly ignorance of the man. But you resent it too. Because, in fact, you did build it.

Whether "it" was the cars for which Henry Ford got credit, the railroads for which Andrew Carnegie got credit, or the energy resources for which Rockefeller got credit, you, or people just like you showed up, day after back breaking, or mind melting day. Digging in mines and digging with their minds.

And there's that ass again, spouting about "White Privilege." It infuriates because the rank presumptions that "white folk" are born two rungs of the ladder up above others was never true in your life, or in the lives of your friends, family, co-workers, and acquaintances.

In fact, "White Privilege" is a lie that attacks the endurance of your spirit. The gumption of carrying forward into a middle American life. It's the drool and spite of a special kind of resentment and hatred.

So, yeah, now you know why I wrote this piece. Because I tire of the spirit-destroying, inhumanity of that particular lie.

Friday, July 24, 2015

A Satchel of Embarrassments: Opinions for Which Justices Should Be Ashamed


Allow me to diminish myself in your eyes by making the following observation:

Of sitting Justices on the Supreme Court, two are genius writers/editors: Antonin Scalia and Clarence Thomas. Truth be told, I think Thomas is far and away the better of the two. But Scalia knows how to pack a punch, and when not to hold one, too.

His dissent in Obergefell v. Hodges, the decision imposing a constitutional duty to recognize same-sex marriages under the Fourteenth Amendment, contained a plaintive cry, a confession, that if he should ever join an opinion of the kind represented by the Court's majority in Obergefell, he would hide his head in a bag:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 
That quoted portion, "The Constitution promises liberty to all...," is taken from the opening paragraph of the majority's opinion. That opening reads as follows:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. 
The quotation and the majority opinion containing it came from the mind of Anthony Kennedy. Scalia's remark certainly seems to suggest that Kennedy ought to be hiding his head in a bag.

Mind you, if a Justice serves for a decade, he will have the opportunity to join, write or dissent from perhaps as many as a thousand opinions issued after briefing and argument. Were I a justice on the Court, I would hope that I would get it right every time. Yet, Scalia's "head in a bag" comment put me to thinking. Setting aside considerations such as overall quality of a justice's service, which Justices would make my top ten list for the Scalia "head in a bag" category, the justices whose opinions ought to have embarrassed the authors into silence, or early retirement?

The problem with a list is that it will reveal the biases of its creator. The value of a list is that it may reveal the biases of its critics. If you have been following JimsJustSayin for a while, you know that I do not make a secret of my biases.

To be clear, a justice can sometimes go awry, off the beaten path. You may find a justice here that you think highly of, as a constitutionalist, as a libertarian, etc. This list is NOT my list of the TEN WORST JUSTICES EVER. This list gathers those justices who should definitely have put their head in a bag after authoring a particular opinion for the Court.

Two examples illustrate my meaning. I've included Justice Stephen Field, although he is clearly an excellent economic libertarian. He would not ever appear on my list of the worst justices. To the contrary, Harry Blackmun, who appears in the bag of this blog, would definitely be on that list of the worst justices. He was an overwrought and semi-competent researcher and not a powerful writer.

This task has required more extended writing. I have, for that reason, broken the post into separate parts. Each Justice in the Satchel of Embarrassments has a separate blog entry, you will find links to those entries, with a brief synopsis, below.

So dig in. Here, in reverse chronological order are the Ten Justices whose heads most certainly belong (or belonged) in bags, together with a brief sketch of the decision by each justice that warrants dropping their head into a bag:

Anthony Kennedy (Obergefell v. Hodges)


Justice Kennedy authored the opinion for the Court in Obergefell v. Hodges. He wrote the words, quoted by Justice Scalia, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,"


Roberts misread and misrepresented the Shared Responsibility Payment by calling it a tax. His intentional twisting of the statute did not constitute the ordinary meaning to be accorded to the language of the provision. In fact, he refused to say whether his twisted reading of the statute was anything other than a "fairly possible" reading. Worse, having concluded that the penalty was a tax, and thus within the power of the Congress, Roberts committed a further error.

Harry Blackmun (Roe v. Wade)


Blackmun's opinion in Roe v. Wade combines the worst in historical research with the worst in constitutional interpretation. It is, I'm sure, coincidental, but Blackmun's opinion for the Court in Roe v. Wade opens with language strikingly similar in tone and florid appeal to Kennedy's opening in Obergefell. Blackmun wrote:
"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."

Hugo Black (Korematsu v. United States)


Justice Black, though a KKK member earlier in life, often stood for civil liberties in a class alone, as an absolutist. Nonetheless, in this case, arising from the Japanese Exclusion Orders, Black authored dark chapter in our history, and made an indelible stain of racism on himself.

Robert Jackson (Wickard v. Filburn)


Justice Jackson wrote Wickard v. Filburn, and in doing so, he crafted a rule by which the power of the federal Congress to reach deeply into highly local, intra-State activities was established. That rule, the rule in Wickard v. Filburn, in a case from 1942, is relevant today as Americans wonder how Congress acquired the power to coerce them to purchase health insurance.

Oliver Wendell Holmes (Buck v. Bell)


Justice Holmes affirmed the constitutionality of Virginia's program of forced sterilization for the handicapped. His reasoning suggests that, because society chooses to create a social safety net, it can impose on those that fall into the net such "smaller sacrifices." It is no wonder that Nazi doctors invoked Holmes' reasoning to try (unsuccessfully) to avoid conviction for their identical program of forced sterilization. One might say, three generations of imbecilic Supreme Court opinions is enough.


Justice Stephen Field, a brilliant jurist, committed his constitutional foul ball in a case that recognized, for the first time, a power of the Congress to control immigration as part of the sovereignty of the United States federal government. What Justice Field omitted from his opinion was an actual provision of the Constitution granting Congress such power to exclude foreigners.


Justice Gray makes his way into the Bag of Shame, shiny pate and all, because when he had the opportunity to give to the Fourteenth Amendment its plain, textual and natural reading, he did not do so. Rather, he strained at the Clause's obvious language to produce a decision in many ways indistinguishable from Dred Scott v. Sandford, except that Dred Scott at least predated the Fourteenth Amendment.

Roger Taney (Dred Scott v. Sandford)


Taney's conclusion, that even free born blacks were not, could never be, citizens of the United States or of the States, helped to precipitate the Civil War. His conclusion that Congress could not regulate slavery in the territories risked de-legitimizing Congressional regulation of the slave trade in the territories. It took a Civil War and two amendments to the Constitution to eradicate Taney's stain on the Constitution.

John Marshall (Marbury v. Madison)


John Marshall laid the groundwork for the rise of the Supreme Court from a separate, co-ordinate, and equal branch of the federal government, one described in the Federalist No. 78 as "the least dangerous branch" to "the most dangerous" one. 

A Satchel of Embarrassments: John Marshall and Marbury v. Madison


John Marshall
In the Federalist No. 78, Alexander Hamilton defended the proposed Judicial Branch, particularly the Supreme Court created in Article III of the Constitution. Hamilton contended that the Judiciary would be "the least dangerous branch" to the political rights of the People. With the long view of history, we can confidently conclude that Hamilton erred in that representation. Whether he lied, or underestimated the grasping desire for power, his reasoning, that Congress, which had the power of the purse, and the Executive, which bore the sword of the Nation, has proved wrong.

The Judiciary in our Nation has assumed powers far beyond any contemplated for it in the Constitution. Decisions described above give the reader some sense of how the Court's decisions have impacted the Nation, across the spectrum of human experience and relations. That this has happened could hardly be predicted from the robust debates held in the summer of 1787, when the delegates to the Constitutional Convention met in Philadelphia.

At the Constitutional Convention, on three separate occasions, the delegate debated and rejected a proposal to include the Judiciary in a panel that would review statutes enacted by Congress to determine constitutionality of them. Three times it was proposed that a Council of Revision be constituted and that the Council include representatives of the Judicial Branch. Three times the proposal was rejected. Ultimately, the Convention voted to adopt the Constitution as their proposal to the Congress. The proposed Constitution omitted the Council of Revision. The proposed Constitution left unmentioned any role for the Judicial Branch in evaluating statutes to determine their constitutionality.

Yet, as readers of this blog know, and as observers of the Supreme Court know, the Court claims to have that power, and exercises that power it claims to have. Indeed, in the face of court decisions that can only be described as exactly what decisions by a "Council of Revision" proceed from the Supreme Court, leaders of the other branches of the government too often, too consistently, retire from the field of civic battle, claiming that the Court's decision is final.

You might wonder how this outcome came from these preconditions, when the outcome was precisely rejected in the Constitutional Convention.

I propose, with no originality to the idea, that this happened by the deliberate accretion of power within the Judiciary. Case by case, decision by decision, either by direct taking of steps, or by laying the groundwork in its written explanations of the Constitution, the Supreme Court has built its base of strength and power.

That accretional process begins with Chief Justice John Marshall.

In Marbury v. Madisona case on which I have previously blogged, William Marbury filed a suit in the Supreme Court seeking an Order that Secretary of State James Madison had violated his right to obtain a commission as a justice of the peace. Marbury had been nominated to the post by John Adams and confirmed by the Senate. Marbury's judicial commission had been drawn up. Acting as Secretary of State, John Marshall applied the Great Seal of the United States to the commissions. They were then left in the office of the Secretary of State when Jefferson succeeded Adams in the Presidency in 1800. Jefferson directed his Secretary of State, Madison, not to deliver up several commissions, including Marbury's.

Adams and Jefferson had been friends and correspondents, and would be again in the future. Adams, though, was a Federalist and Jefferson was not. Adams had supported the Alien and Sedition Acts. Jefferson had friends and acquaintances who were charged with violating the Acts. Jefferson would later say that the Revolution of 1800 (his description of the struggle that brought him to the presidency) was frustrated because the judiciary had been populated by lifetime appointed Federalist-sympathizing justices. He would not shoot his own foot by delivering even a single justice of the peace post to a Federalist.

Marbury brought his suit in the Supreme Court.

Congress had enacted a Judiciary Act. The Act authorized the Supreme Court to issue certain orders in cases before it. The order Marbury sought was a Writ of Mandamus. A Writ of Mandamus is an Order Mandating a government official to do something. That Judiciary Act did not, in fact, authorize the Supreme Court to allow Marbury to file his suit in the Supreme Court. [Article III of the Constitution creates the Judicial Branch of our federal government. It identifies certain categories of cases that may be filed as original matters there (suits between States are one example of such original actions). Article III also granted to Congress the power to create inferior federal courts, to provide for their jurisdiction, and to provide for appellate jurisdiction of the Supreme Court.] In resolving Marbury's suit, Chief Justice Marshall treated that Judiciary Act as though it authorized Marbury's suit, even though it did not do so.

As with Chief Justice Taney's decision in Dred Scott, Chief Justice Marshall's decision could have been brief. Because the Constitution did not say that Congress could, by statute, expand the categories of original jurisdiction cases, the Judiciary Act (as falsely interpreted by Marshall) had wrongly granted to Marbury the right to sue for his commission in the Supreme Court. Chief Justice Marshall could have written a brief opinion noting that the Court lacked jurisdiction over Marbury's cause and entered an Order dismissing the case.

Chief Justice Marshall did not choose the road less traveled, in which a justice simply does only that which is required to complete the task before him. Instead, he used the occasion of Marbury's suit to expound on the role and duty of the Supreme Court. On that topic, disregarding the utter silence of the Constitution on such a role for the Supreme Court, Marshall asserted that the Supreme Court had the power of "judicial review." He wrote:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
Marshall's deft move asserted a principle -- the pre-eminence of the Court in deciding the constitutionality of congressional acts -- in a case in which neither the Congress nor the President would be much inclined to take immediate corrective action. The Congress had passed out of the hands of the Federalists and the Presidency, too, with the election of Thomas Jefferson. So the decision -- rejecting Marbury's claim -- while it found fault with Jefferson and Madison for refusing the commission to Marbury, produced the result agreeable to Jefferson and Madison.

Still, that nugget of judicial review was laid into the law with Chief Justice Marshall's opinion in Marbury. That nugget provided a precedent on which he, and future justices of the Supreme Court, could lean in other, further expansions of the Judiciary. Those many expansions that transformed the Court from its original condition as "the least dangerous branch" to the political rights of the People, to the one it occupies today as "the most dangerous" one.

A Satchel of Embarrassments: Roger Taney and Dred Scott v. Sandford

Roger Taney
That we tolerated the condition of slavery in America, and that we did so for so long, represent shameful blots on the otherwise praiseworthy enterprise in liberty that our history proves this Nation to be. In hindsight, we all hope that, had we stood in the shoes of Washington, Jefferson, Madison, Adams, and the other leading lights of our Independence, we would have rejected compromises that ensconced slavery within our republican framework. The value of considered hindsight, after all, is its acuity.

Yet, there you have Jefferson, penning among the most powerful and persuasive declarations of the natural rights of men, acknowledging that Nature, and Nature's God, endowed us each with the unalienable rights to life, to liberty and to pursuit of happiness. All the while, Jefferson's agriculture enterprises, such as they were, rested on the backs of African slaves. Not free black tradesmen, craftsmen and laborers, but slaves.

That the wrong of slavery among our Founders was known, and understood, cannot be rightly disputed.

Still, the compromises that are essential to politics, it seems, compelled the Framers to conclude that for the enterprise of independence to succeed the view of the moral wrong of slavery must give place to the expedient need of unity among the manufacturing colonies and the agricultural colonies. So our Declaration of Independence did not declare the liberty and equal status of those held to involuntary servitude or slavery.

When the States formulated a general government for the Nation, slight regard was given to the ongoing stain that slavery placed on hearts that professed such love of liberty. So the Constitution did not end slavery, and it ensconced the idea of slavery in it by including the counting of slaves (each slave reduced in count value to 3/5ths of a person) in the enterprise of apportioning representatives in the Congress. The States did include a provision that offered a possibility that Congress could eventually end the international importation of slavery, although it would not restrict internal trading of slaves:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
As it happened, Congress did act to prohibit the importation of slaves, in 180718181819, and 1820.

Nonetheless, a population of about 1.5 million slaves lived in the US at the time of the 1820 decennial census (out of a total population approaching 10 million). By the time of the enactment of the Thirteenth Amendment, prohibiting slavery and involuntary servitude, the slave population in the US grew to about 4 million.

Although the Constitution expressly contemplated a ban on importation of slaves, it was silent as to the long-term solution to the Peculiar Institution. Because of regional differences, it became a source of ongoing political discord. Congress undertook several efforts at legislative solutions to the Peculiar Institution. Although the supply of imported slaves would be virtually eliminated, the Nation had to consider how to address the possible expansion of slavery with the Nation. And the slave population did, in fact, grow, quadrupling in a forty year period.

Congress took legislative action in 1820, with the Missouri Compromise, in 1850 with the Compromise of 1850, and in 1854 with the Kansas-Nebraska Act.

The Missouri Compromise:
  • brought Maine into the Union as a free state and Missouri as a slave state
  • prohibited slavery in the federally controlled territories 
  • prohibited slavery in any new States above the 36º 30´ latitude line except Missouri
  • maintained the balance of free state and slave state Senators in the US Senate.
The Compromise of 1850:
  • brought California entering the Union as a free state
  • granted the New Mexico and Utah Territories the right to decide the slavery question for themselves
  • abolished slave trading in Washington, DC
  • bolstered the Fugitive Slave Law by requiring free States to assist in the return of escaped slaves to their masters.
The Kansas-Nebraska Act:
  • granted to the residents of Kansas and Nebraska the right to decide the slavery question for themselves
  • removed the slavery prohibition above the 36° 30´ latitude previously set by the Missouri Compromise.
These compromises reflected the work of the representatives of the People, in the Congress, seeking to resolve the continuing divide and conflict among the States on the question of slavery. Imperfect as they may have been, the compromises determined conditions for the admission of new States, regulated the territories under the supervision of the general government because they had not yet been organized into States, and provided balance in the admission of States between Free nor Slave States.

And it is at this point that we discover how the head of Roger Taney ends up in the Bag of Shame.

Taney, Chief Justice of the Supreme Court, wrote the 1857 decision of the Court in Dred Scott v. Sandford. Dred Scott had sued his owner in federal court, seeking a judgment on three personal injury claims arising from assaults on Scott, his wife, and their child. Because the Constitution limits the kinds of cases claimants can bring to federal courts, Dred Scott relied on "diversity of citizenship" because he and Sandford resided in different States.

A brief detour here will illuminate why Taney's head is in the bag.

Federal courts do not have the power or right to decide case except where that power is expressly granted to them in the Constitution, or in statutes enacted by Congress using the power given to it in the Constitution to create federal courts and craft the rules for their jurisdiction. So, when a federal court is drawn into a controversy between antagonists, it has a constitutional duty to insure that its powers are properly exercised or restrained. That duty is honored by a court proceeding first to answer the question whether the Constitution or federal statutes authorize it to hear the particular case before it. In cases where a court concludes that the Constitution and laws do not authorize the suit, its duty is done by dismissing (throwing out) the lawsuit.

When a court dismisses a lawsuit because it lacks the power (jurisdiction) to hear the case, that does not reflect on the moral character of the underlying claims, or on whether sufficient evidence exists to prove the claims, or any other substantive question. It simply reflects the duty of federal courts to confine themselves to the boundaries of the constitutional duties.

Bearing that duty in mind, we can quickly see how Taney's head ends up in the Satchel of Embarrassments.

Dred Scott claimed that, because he became a free man by his extended presence in a free State and in a free Territory at the deliberate cause of his previous owner, he, Scott, acquired the status of a free black. As a free black, Scott contended he had the right, as a citizen, to bring the lawsuit seeking the judgment on assaults committed on him, his wife and his child by his owner.

Taney concluded, however, that even if he were a free black, he could not be a citizen. In fact, Taney construed the Constitution to exclude any possibility that free blacks could ever be citizens:
The question before us is whether [free blacks] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
Now, at the point in time where Taney concluded that, even were it true that Scott had acquired the status of a free black, he could not be a citizen, and therefore was not entitled to have access to the federal courts based on "diversity of citizenship" between himself and his current owner, the case properly should have ended. There would be no reason to engage in any further reasoning or discourse on issues that were affected by the dispute, once the Court reasoned that it lacked jurisdiction.

But Taney did not stop with his conclusion that the Court lacked jurisdiction to hear Scott's claim. He then proceeded to conclude that Congress, in its enactment of the Missouri Compromise of 1820, had violated the Constitution. In his view, and the Court's, the Constitution did not give Congress power to regulate slavery in the territories not yet organized as States. Proceeding from that conclusion, prohibitions on slavery in the territories that lay above the 36º 30´ latitude line were invalid.

Taney's conclusion, that even free born blacks were not, could never be, citizens of the United States or of the States, helped to precipitate the Civil War. His conclusion that Congress could not regulate slavery in the territories risked delegitimizing Congressional regulation of the slave trade in the territories. It took a Civil War and two amendments to the Constitution to eradicate Taney's stain on the Constitution.

A Satchel of Embarrassments: Horace Gray and Elk v. Wilkins


Horace Gray
That Fourteenth Amendment, the one by which the newly freed slaves were granted both national and State citizenship, was not, by its terms, limited to granting citizenship to the former slaves. The pertinent portion of the Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 
Justice Gray makes his way into the Bag of Shame, shiny pate and all, because when he had the opportunity to give to the Fourteenth Amendment its plain, textual and natural reading, he did not do so. Rather, he strained at the Clause's obvious language to produce a decision in many ways indistinguishable from Dred Scott v. Sandford, except that Dred Scott at least predated the Fourteenth Amendment.

Gray's stumble came in the case of John Elk, a Native American that severed relations with his tribe and sought to vote in a Omaha, Nebraska, city election for members of the City Council. Elk tried to register to vote in the election and he was rebuffed on the ground that he was ineligible due to his lack of citizenship.  Elk's application, and his pleadings in subsequent litigation, established beyond dispute that he severed ties with his tribe and subjected himself fully to the "jurisdiction" of the United States thereby.

Under the Fourteenth Amendment, Elk had become a citizen of the United States by virtue of two separate incidents:  his birth within the United States, and his submission of himself to the jurisdiction of the United States when he severed ties with his former tribe. Neither the incidents of his birth, nor the fact of his severing ties with the tribe were disputed. So, it would seem that his attempt to register to vote should have raised no difficulty.

The Constitution can be just that simple. One reads its words. One sees its meaning. One applies its terms in accord with their plain terms and plain meaning.

Justice Gray, however, did not see things in this way.

Instead, Justice Gray undertook his convoluted deconstruction of Elk's new citizenship and of Elk's deliberate pursuit of citizenship in accord with the Constitution. Where the plain words of the Fourteenth Amendment patently admit that one born in the United States is a citizen of the United States if they are subject to its jurisdiction, Gray rejected that reading. Rather, Gray's opinion
construe[d] the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside;' whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.
By his artificial construction of the Fourteenth Amendment's Citizenship Clause, he actually created a circumstance that the Fourteenth Amendment had been enacted to ameliorate, the ongoing presence within the Nation of an underclass. Justice Harlan explained in his dissent:
If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the fourteenth amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.
Justice Gray, deformed the Citizenship Clause by adding his artificial requirements to its express terms. In the process he did injustice to a lawful claimant of citizenship, did damage to the language and frame of the Constitution, and failed to account in his decision for the great national blood-letting that was so recently concluded with the enactment of the Fourteenth Amendment. These are all reasons why, for this decision, Justice Gray's head belongs in the Satchel of Embarrassments. 

A Satchel of Embarrassments: Stephen Field and Ping v. United States


Stephen Field
If you haven't noticed it by now, my list consists of Justices and opinions that have wandered from the Constitution's text, have expanded that text from the meaning of its actual words, or have imported entirely new meaning into text. Justice Stephen Field, a brilliant jurist, committed his constitutional foul ball in a case that recognized, for the first time, a power of the Congress to control immigration as part of the sovereignty of the United States federal government:
"The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one."
What Justice Field omitted from his opinion was an actual provision of the Constitution granting Congress such power to exclude foreigners.

Now, you may be thinking, but the Constitution grants to Congress power over immigration. Well, not exactly. What the Constitution says is quite precise. The Constitution grants to Congress power to "establish an uniform Rule of Naturalization." Oddly, though it might seem otherwise, that provision alone, no other, states the nature of the power delegated by the States to the Congress with respect to such matters. There is no "Immigration Clause" in the Constitution, no express delegation of the power to restrain or encourage immigration to the United States anywhere in the Constitution. All there is is the Naturalization Clause, and nothing more.

The Naturalization Clause, for what it's worth, actually has to do with the decision by the States to grant to Congress the exclusive power to define how individuals could become citizens of the United States. Yet, in this case, using the florid and imprecise style of language common to many of these bad decisions, Justice Field presumptively includes the power to exclude foreigners within the general powers of the Congress. And, yes, the prose is florid:
The control of local matters being left to local authorities, and national matters being intrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determinations, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers. 
Sadly omitted from Justice Field's decision is constitutional writ, constitutional text, or arguments from them. His argument, instead, is a kind of organic demand of the nation at large. It says, in essence, "only the federal government can address" this question because of the expanse of the Nation and the variations of its interests. 

Which Clause of the Constitution, you may ask yourself, is the one on which Fields' conclusions rest? The answer, unfortunately, can only be the Fields Clause. Because his decision repudiates the historic role played by the States in regulating migration into their borders by foreigners, and recognizes a sole power in the federal government to so regulate, I have added Justice Field's head to the Bag of Shame.

A Satchel of Embarrassments: Oliver Wendell Holmes and Buck v. Bell


Just One Generation of
Supreme Court Imbeciles
When the German Medical Crimes Tribunal heard the cases against the Nazi regime based on forced sterilization of "feeble minded" persons and others, a not-so-very surprising defense was offered. Germany's mad scientists argued that the Nazi's forced sterilization program, an extension of the overarching, "Aryan" program of eugenics, was drawn from the particulars of a similar program conducted in one of the prosecuting Nations, the United States of America.

Nazi doctors claimed that their crimes could not be crimes because their actions mirrored those carried out in the United States, and those done there were carried out with the approval of the United States Supreme Court.

Could that be the case? Could the United States have provided the sick inspiration for the medical crimes of Nazi Germany. Unfortunately for us, the Nazis were right.

The case was Buck v. Bell.

Carrie Buck, a Virginian, resided at a State institution for the feeble minded. There, by state law, she was subject to involuntary sterilization under a Virginia eugenics law intended to prevent procreation by feeble mindeds, incompetents, and other genetically "undesirable" populations.     "[Carrie wa]s the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child." The court below found that Buck was
the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization[.]
I take a caution here. This statement is not Justice Holmes' for the Court, but a quotation from the Virginia court that denied Carrie's requested order protecting her from involuntary sterilization.

Justice Holmes, as I mentioned in discussing Harry Blackmun above, had concerns about substantive due process being a tool by which substantial accretions of power were being deposited with the Court over time. As in other cases where he was loathe to reject State laws based on the discovery of newly identified substantive rights within the Due Process Clause of the Fourteenth Amendment, Justice Holmes rejected Buck's attempt to attack the Virginia Eugenic Sterilization Act on the ground of a substantive right to be free from State imposition on her ability to procreate.

In his brief discourse rejecting Buck's claim, Justice Holmes penned one of the most disturbing, startling paragraphs on the power of the State and the justifications for its actions:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [] Three generations of imbeciles are enough.
In essence, Justice Holmes concluded that, because society chooses to create a social safety net, it can impose "smaller sacrifices" on those that fall into the net. Such a principle, once articulated, has no obvious limits.

It is no wonder that Nazi doctors invoked Holmes' reasoning to try (unsuccessfully) to avoid conviction for their identical program of forced sterilization. One might say, three generations of imbecilic Supreme Court opinions is enough.

A Satchel of Embarrassments: Robert Jackson and Wickard v. Filburn


Robert Jackson
Associate Justice Robert Jackson had a remarkable career in law. After high school, he apprenticed in a law office, attended one year of a two year law school program, apprenticed another year, and then was admitted to practice law in New York. Over the course of his life, he rose to the positions of Solicitor General of the United States, Attorney General of the United States, and Justice of the Supreme Court. While serving as Justice, he took a leave of absence at the request of President Truman and served as the Chief US Prosecutor at the Nuremberg War Crimes Tribunal.

Beyond the career achievements, Justice Jackson likely is most remembered either because he wrote the decision for the Supreme Court in West Virginia Board of Education v. Barnette, in which he crafted the strong defense of individual autonomy by which even public school students were protected from coerced statements of ideology, or his scouring of cases in which violations of procedural due process (that aspect of "due process" that actually pertains to assuring that adequate procedural protections precede in time the denial of rights to life, to liberty and to property). Again, I would never include Justice Jackson on a list of the Ten Worst Justices.

But Justice Jackson wrote Wickard v. Filburn, and in doing so, he crafted a rule by which the power of the federal Congress to reach deeply into highly local, intra-State activities was established. That rule, the rule in Wickard v. Filburn, in a case from 1942, is relevant today as Americans wonder how Congress acquired the power to coerce them to purchase health insurance.

Roscoe Filburn, an Ohio farmer, sued to prevent imposition of taxes on wheat grown by him on his own property. The tax was intended to depress the excess production of wheat, and was assessed only after Congress authorized the imposition of such taxes, and after farmers voted to adopt it. Congress sought to prevent the deflation in pricing of wheat that would result from "excess" production. By limiting the amounts of wheat each farmer could grow, the over all supply of wheat was kept in check, and downward spirals in pricing due to gluts were to be avoided.

Filburn contended that Congress had exceeded its power under the Commerce Clause. That Clause grants to Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]" In Filburn's view, he grew an excess of wheat solely for his private use on his farm solely and completely within the State of Ohio, and without intention of putting his wheat into interstate commerce.

Justice Jackson's opinion for the Court rejected Filburn's attempt to demonstrate that the Commerce Clause power of Congress was precluded from interfering in such parochial exercises as his production of a "personal supply" of wheat for use on his farm. Jackson concluded that even such matters as an amount of wheat above quota grown, threshed, and consumed within the borders of a farm within the borders of a single State could have the harmful impact Congress contemplated it might have on interstate commerce in wheat by reducing overall demand for purchased wheat. For that reason, though admittedly an entirely local activity on Filburn's end, Jackson concluded that the Commerce Clause power reached it:
That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. [] But even if [Filburn's] activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."
Justice Jackson took his conclusion further. He anticipated the conclusion many would draw, that by limiting the entirely local act of growing and consuming wheat under the Commerce Clause, Congress could, in effect turn willing producers into unwilling consumers, in effect, shifting to others a benefit (the sale of wheat to another) that would have been absent but for the ability to bar a man from growing his own wheat:
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. … The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.
Justice Jackson's opinion for the Court in Wickard marked the beginning of an era about 50 years in length in which the Court simply could not find a limit to the reach of Congress under the Commerce Clause. The language of the Clause notwithstanding, the intention of the States to retain powers over internal affairs, including economic affairs, notwithstanding, Jackson's opinion emboldened an overreaching Congress. For this reason, for the Wickard opinion, Justice Jackson's head is also found in the Bag of Shame.

A Satchel of Embarrassments: Hugo Black and Korematsu v. United States


Hugo Lafayette Black
Fred Korematsu's mom gave birth to him in the United States. Fred lived in San Leandro, California. After the attack on Pearl Harbor and the subsequent declaration of war on Japan, on March 21, 1942, Congress enacted a new criminal law making it a misdemeanor criminal offense to disobey certain exclusionary orders that might be issued by the President or his designees:
[W]hoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. [56 Stat. 173]
Congress acted after President Roosevelt had issued an Executive Order authorizing the Department of War to issue and enforce orders of exclusion. Both the March 1942 statute and the previous Executive Order contemplated the recognition of certain areas of military importance, and, the risk that places of military importance might be subject both to espionage activities and sabotage.

So far, so good. The recognition of risk and the actions anticipating risk taken to ameliorate them are perfectly sensible. What followed, however, was a dark chapter in our history, and reflected an indelible stain of racism on Hugo Black.

Fred Korematsu, as I said, lived in San Leandro. San Leandro sits on the San Francisco Bay, directly across from San Francisco and immediately south of Alameda. Based on residence, he was required by Order of the Military Authority to report to a designated facility and thereafter to be transported to a new place of residence. Fred did not report as required.

It is important to note, and Justice Black's opinion does so, that there was never any question about Fred's loyalty to the United States. He was subject to exclusion solely based on his ancestry. A federal court convicted him of the misdemeanor offense and the federal appeals court affirmed. Because the Court considered that Fred's appeal presented important constitutional questions, it agreed to hear the appeal.

Justice Hugo Black came to the Supreme Court because he had been a progressive voice of support for FDR's economic recovery programs in the US Senate. His nomination raised consternation because he had, for a period of time, been a member of the Ku Klux Klan. On the Court, Korematsu to the side, Black set his own course of strict application of the text of the Constitution. He took seriously the language of the Constitution that "Congress shall make no law" on many topics. Where other justices applied balancing tests to decide the legitimacy of statutes restricting speech, press and other fundamental constitutional rights, Black was the Court's absolutist.

Given his absolutism, and his commitment to a textual reading of the Constitution, it is hard to grasp how Black found himself affirming the conviction of an American whose crime was to be in a place where other Americans could be, solely on the ground of his Japanese ancestry. Perhaps because this decision was so inconsistent with his general legal philosophy, the essence of his opinion just meanders along to an end that does nothing more than say, it was not an act of racism because we are at war:
Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.
Three Justices dissented from the Court's decision. Justice Murphy pointedly called out the true nature of the Orders that targeted Fred and other Americans of Japanese descent as patently racist:
This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power," and falls into the ugly abyss of racism.
Justice Jackson, whose head goes into the bag immediately below this discussion, explained how that racism was evidenced by the exclusion order:
Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.
A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four -- the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole -- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.
Hugo Lafayette Black did not maintain a lifetime membership in the Ku Klux Klan. In 1937, as furor arose over revelations of his prior membership in the KKK, Justice Black took the extraordinary step of making a radio address to the Nation. At the time, the only radio address to reach a larger audience was that for the King's abdication in England. Justice Black repudiated religious and racial biases. I suppose Korematsu is best understood as Justice Black having forgotten his 1937 speech.