In Richard Sherman Controversy, Race Matters

Today, we honor the birth of Dr. King. Since I began blogging, I have written an annual post designed (in a small but hopefully significant way) to further discussions about race. I had planned to write a piece about the Michigan affirmative action case, which will be decided by SCOTUS later this year.

But last night, Erin Andrews interviewed Richard Sherman at just the right (wrong?) time, and the country’s reaction has been irresistible to write about.

ESPN.com

Richard Sherman (photo from ESPN.com)

Sherman—a defensive back for the Seattle Seahawks—is perhaps the best player in the league at his position. In the final seconds of the NFC Championship Game, Sherman made an outstanding play, preventing the San Francisco 49ers from taking the lead, instead sealing a victory for the Seahawks. Moments after the play, Erin Andrews, a sideline reporter, caught up with Sherman.

This morning, I walked into an office and into the middle of a conversation between people who were upset about this interview. Phrases used to describe Sherman included, “profane,” “uneducated,” “crazy,” “classless,” and “dangerous.” Based on some of the reactions on social media,[1] I assume that similar conversations occurred around the country.

Read the transcript of the interview:

Fox’s Erin Andrews: “Take me through it (the interception) …”

Sherman (screaming): “Well, I’m the best corner in the game. When you try me with a sorry receiver like (Michael) Crabtree, that’s the result you are going to get. Don’t you ever talk about me.”

Andrews: “Who was talking about you?”

Sherman: “Crabtree. Don’t open your mouth about the best or I’m going to shut it for you real quick. LOB!” (That’s the abbreviation for “Legion of Boom,” the nickname of the Seahawks’ defense.)[2]

Did Sherman curse? Nope. Did he personally attack Crabtree? Sort of, but he was clearly referring to Crabtree’s playing ability. Sherman didn’t attack Crabtree’s personality, his mother, or his manhood. Did Sherman demonstrate a lack of education? No. Sanity? Not really. Sure, he was yelling. But let’s be honest, it was a bit loud in that stadium.

So, why exactly is Sherman such a “profane,” “uneducated,” “crazy,” “dangerous” villain? 49ers coach Jim Harbaugh was repeatedly shown screaming viciously at anyone and everyone in sight. Why isn’t Harbaugh the villain everyone is talking about? Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part III

Tired of playing with all of your new toys already?! Well, we have just the thing–our third and final annotation of SCOTUS’s oral argument transcript on whether a town council can hold a prayer at the beginning of its meetings without violating the Establishment Clause of the First Amendment. When we left off, the conservative Justices were challenging one of the attorneys, Mr. Laycock, to identify which religious groups would be included/excluded if SCOTUS adopted a rule that legislative prayers had to be “generally acceptable to most believers.” Let’s get back to the transcript, kids (in case you were naughty and missed them, here is Part I and Part II).

JUSTICE SCALIA: You want to pick the groups we’re going to exclude?

MR. LAYCOCK: I think you picked them, Your Honor.

JUSTICE SCALIA: The Baha’i, who else? These groups are too small to —

CHIEF JUSTICE ROBERTS: We’ve already excluded the atheists, right?

JUSTICE SCALIA: Yeah, the atheists are out already.

MR. LAYCOCK: We’ve excluded the atheists. I don’t think the Baha’i are excluded, but I’m not certain.

JUSTICE SCALIA: Okay. So who else? I mean, you say just the vast majority is all that we have to cater to.

MR. LAYCOCK: Well, I think the atheists are inevitably excluded. We can’t help -­

JUSTICE SCALIA: Okay. Good. Got that. Number 1, atheists. Who else?

Scalia sure seems excited to exclude minority religious groups from recognition in religious prayer. I like to poke fun at Justice Scalia, but in fairness, what he’s doing here is important. He’s trying to get material for the Court’s opinion. He will likely vote against Mr. Laycock and hold that the town of Greece’s practice of prayer in this case is constitutional. He wants to include language in the opinion that goes something like this: “During oral argument, even the attorney who asked us to require more inclusive prayers struggled to identify which groups were deserving of protection. Why should one small sect be included over another small sect? Counsel was unable to identify a good reason during oral argument, and that makes sense. It is decidedly not this Court’s role to draw such narrow distinctions between religious groups.”

MR. LAYCOCK: True polytheists who don’t understand their gods as manifestations of the one god are probably excluded. I’m not sure many others are. And you have all these lawyerly hypotheticals, but the fact is we’ve done this kind of prayer in this country for 200 years. There’s a long tradition of civic prayer and the clergy know how to do it. When in Greece, no one has told them that’s what we want you to do. And I would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed Protestant religious exercises on Catholic children in the 19th century. And that produced mob violence, church burnings, and people dead in the streets.

JUSTICE KAGAN: Mr. -­

CHIEF JUSTICE ROBERTS: We’ve already separated out, I thought, in our jurisprudence, children and adults.

Time to place bets. How many times will Kagan be interrupted before she is able to ask her question? I’ll set the over-under at five.

MR. LAYCOCK: Well, Lee v. Weisman twice reserves the question of whether adults might be subject to similar pressures.

CHIEF JUSTICE ROBERTS: Well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right?

MR. LAYCOCK: In some ways that adults are not. But there’s no doubt that before you stand up to ask for relief from a governing body, you don’t want to offend that body. Adults are subject to coercion here. And no competent attorney would tell his client, “it doesn’t matter whether you visibly dissent from the prayer or not.” You try to have your client make a good impression.

JUSTICE KENNEDY: Well, I just want to make sure what your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. That’s your position?

MR. LAYCOCK: I wouldn’t use all those adjectives, but yes. And we don’t think that’s difficult to do.

JUSTICE KAGAN: Mr. -­

The second Kagan interruption:

JUSTICE BREYER: Congress has a set of guidelines which you’ve read and are here in the papers and so forth. Are those satisfactory to you?

MR. LAYCOCK: We’d like to be a little more explicit, but those are vastly better than –

JUSTICE BREYER: If those are satisfactory to you, then I wonder, are they satisfactory to everyone. And you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but I cannot give such a prayer if I am a priest or a minister or whatever in that particular religion. I must refer to God as I know that God by name. And what do we do with them? That’s what — I mean, we can recommend it, but can we say that the Constitution of the United States requires it?  Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part II

In Dose 1 of our SCOTUS holiday cheer, we learned that “Greece” is not only a bankrupt country that is the bane of Germany’s existence, but also a small town in New York struggling with a big time problem. The town of Greece begins council meetings with Christian prayers, which bothers at least a couple of the non-Christian citizens. The non-Christians’ attorney, Mr. Laycock, is trying to convince SCOTUS that the town should have to tell the members of the clergy who conduct the prayers to limit them to content that is generally acceptable to most people. Let’s pick up the transcript where we left off.

JUSTICE SCALIA: Your point is that it coerces, it’s bad because it coerces?

It’s a trap!

MR. LAYCOCK: It coerces the people who are about to stand up and ask for things from the board and -­

Never let Scalia put words into your mouth if you know he disagrees with you. This is trouble.

JUSTICE SCALIA: If coercion is the test of the Establishment Clause, why do we need a Free Exercise Clause? If there’s coercion, I assume it would violate the Free Exercise Clause, wouldn’t it?

MR. LAYCOCK: Well, I think that’s right. And that’s why -­

Backtracking…

JUSTICE SCALIA: So it seems to me very unlikely that the test for the Establishment Clause is identical to the test for the Free Exercise Clause.

MR. LAYCOCK: Well, it seems to me unlikely as well.

Backtracking…

MR. LAYCOCK: Coercion is one test for the Establishment Clause, but there is also broad agreement on the Court, and there has been, that sectarian endorsements are prohibited by the Establishment Clause.

Sooooo, we’re not talking about coercion then?

CHIEF JUSTICE ROBERTS: Since you are adopting the coercion test, what exactly is coercive in this environment? Having to sit and listen to the prayer?

Hang on. Did we resolve Scalia’s question? It sounds right that coercion shouldn’t be the test under both the Establishment Clause and the Free Exercise Clause. Otherwise, one would be superfluous. So, if this is an Establishment Clause case and coercion is more of a Free Exercise issue, why are we still talking about coercion?

MR. LAYCOCK: There are many coercive aspects here of varying degrees of importance. Citizens are asked to participate, to join in the prayer. They’re often asked to -­

CHIEF JUSTICE ROBERTS: They are asked to participate, but not in any tangible way. They say: Well, I’m not going to participate, and everybody’s just sitting there.

MR. LAYCOCK: They are often asked to physically participate, to stand or to bow their heads. The testimony is most of the citizens bow their heads whether they are asked to or not. So people who are not participating are immediately visible. The pastors typically say: “Please join me in prayer.” They offer the prayer on behalf of everyone there. They talk about “our Christian faith.”

JUSTICE SCALIA: This is coercion? He says, “May we pray,” and somebody doesn’t want to pray, so he stays seated.

Why are the conservative Justices so surprised that these legislative prayers could be perceived as coercive? It seems to me that Mr. Laycock has the better argument in this portion of the transcript. This argument is a shining example of why it is not ideal for relatively homogeneous groups of people to make important decisions.  Justice Scalia, a white, Christian man may find himself in a position where he feels like a minority being subjected to the views of the majority on occasion, but it probably isn’t that frequent. Those types of experiences, or at least familiarity with a paradigm of being marginalized, would provide a Justice invaluable perspective on an issue like this one.

MR. LAYCOCK: What’s coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your Down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade.

Speaking of irritating the people you are trying to persuade, who wants to guess the religious make-up of the Supreme Court? There are nine Justices. What do you think the religious distribution is? I’ll give you a jump to think about it.

Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated

It’s that time of year to sit down to make fun of the guy at the office holiday party who gets too drunk and starts hitting on coworkers prop up the economy by spending excessive money on gifts stunt our children’s logical development by telling them a fat man squeezes down every chimney in the world in one night to deliver presents contemplate the role of religion in our society! To that end, here is a religiously-themed SCOTUS oral argument transcript figuratively gift wrapped just for you.

Can town councils start their meetings with Christian prayers? That is the question before the U.S. Supreme Court in Town of Greece v. Galloway. The small town of Greece, NY begins town council meetings with a prayer, which is almost always Christian in nature. Two citizens of Greece, an atheist and a Jew, attended a meeting to request that changes be made to a local television channel. Offended by the prayer at the start of the meeting, these citizens sued the town arguing that the prayer violates the Establishment Clause of the Constitution, which codified the separation of church and state.

Below is the actual transcript (lightly edited for clarity) of the citizens’ attorney’s oral argument (with my thoughts intermixed in italics) at the Supreme Court last month. The full official transcript can be found here.

Mr. Laycock,[1]the citizens’ attorney, begins by trying to explain to the Justices that the town council meetings in Greece begin with a prayer as part of the meeting, so people who want to attend are essentially forced to listen to the prayer. Mr. Laycock believes that any prayer should be held well before the meeting itself, so people who don’t want to hear it can show up after the prayer without missing the meeting. Mr. Laycock would also like the prayer to “avoid points on which believers are known to disagree.” Now, how exactly someone is supposed to pray in a way that appeals to everyone is beyond me, but as we will see, Mr. Laycock sure seems to think it’s possible, so let’s hear him out.[2]

As always, enjoy. [3]

MR. LAYCOCK: Mr. Chief Justice, and may it please the Court. There is no separation in time between the public hearing and the invocation. People appear before this town board to ask for personal and specific things. Our clients put shows on the cable channel. They were concerned the cable channel was about to be abolished or made much less usable. People appear to ask for a group home — There are many personal petitions presented in the immediate wake of the prayer.

JUSTICE ALITO: But that’s during the public forum part.

MR. LAYCOCK: That’s in the public forum.

JUSTICE ALITO: Which is not the same thing as the hearing.

MR. LAYCOCK: It’s not the same thing as the hearing and that’s the point, Your Honor.

JUSTICE ALITO: There’s another part of the proceeding that is the hearing.

MR. LAYCOCK: Yes.

If you have no idea what Alito is trying to get at, good, neither do I. Hang in there.

JUSTICE ALITO: And that’s when somebody has a specific proposal. They want to — something specifically before the board and they want relief. They want a variance.

MR. LAYCOCK: The hearing is a particular kind of proposal.

JUSTICE ALITO: And that is separated in time.

MR. LAYCOCK: That is somewhat separated in time. The forum is not. And people make quite personal proposals there. They ask for board action. They often get board action.

So, to recap, we’re five Alito questions deep at this point, and we may or may not have established that the hearing and the forum are two different things. Let’s just say that Justice Alito is not in the running for this year’s Clarity of Questions award. Let’s see where he’s going with this…

JUSTICE ALITO: But that is a legislative body at that point. It’s clearly a legislative body, is it not? The only difference is it’s a town rather than Congress or a State legislature where you have more formalized procedures. This is more direct democracy. Or it’s a town meeting.

Ahhhh. Got it? SCOTUS has previously ruled[4] that legislative prayer is generally okay when Congress does it. So, Alito is suggesting that there is no difference between the prayers in this case and the prayers in Congress. It just took Alito six questions to get there…

MR. LAYCOCK: It is direct democracy. When a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that’s not asking for legislation or policymaking. That’s asking for administrative action. This board has legislative, administrative, and executive functions.

JUSTICE ALITO: Well, if that is your argument, then you are really saying you can never have prayer at a town meeting.

MR. LAYCOCK: That’s not what we’re saying. We’re saying -­

JUSTICE ALITO: How could you do it? Because that’s the kind of thing that always comes up at town meetings.

Wait a minute. I see what Alito is doing here. On rare occasions, a single Justice will ask at least ten questions in a row. We call it a DDQ[5], and it’s such a rare accomplishment that it can be a career defining moment for a Justice. We’re already at eight questions in a row for Alito. YOU CAN DO IT!

MR. LAYCOCK: We’re saying you cannot have sectarian prayer. The town should have a policy in the first place, which it doesn’t. Instruct the chaplains to keep your prayer nonsectarian, do not address points of -­

JUSTICE ALITO: All right. Give me an example. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha’i.

CHIEF JUSTICE ROBERTS: And atheists.

Ohhhhhhhhhh. Alito made it to nine before being cut off by the Chief Justice. That’s like taking a perfect game into the ninth inning only to lose it on a bunt single.

JUSTICE SCALIA: And atheists. Throw in atheists, too.

(Laughter.)

First of all, the Justices seem to think that there is something humorous about atheists throughout this transcript. I can’t figure out what it is. Second, Roberts clearly beat Scalia to the punch on bringing up atheists, so he should arguably get at least partial credit for that laughter line. Continue reading

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The Corporate Morality Hypocrisy

[Barney’s office at Goliath National Bank. As the scene opens, Barney is on the phone with a business associate.]

Barney:        The new shredder in my office is junk. It can only shred 100 sheets at a time. My old one could handle 250 (well, it could until I shoved my seven iron in it). Get a new 250-sheet one here by tomorrow … Why don’t we buy from that supplier anymore? … Listen, if we avoided suppliers that utilized forced child labor, we wouldn’t have any supplies at all … I don’t care if they have to work 16-hour days … They make a damn good shredder, so get one here by tomorrow.

[Marshall enters as Barney hangs up the phone]

Marshall:    Did you know that we’re suing the federal government?

Barney:        Yeah, over Obamacare. Who isn’t?

Marshall:    Good point. There are about 75 similar lawsuits around the country. But doesn’t it seem a bit strange that we would be one of them?

Barney:        We sue people all the time. If we’re going to have lawyers on staff, we should use them. Continue reading

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Five Things the Supreme Court Could Learn From the NBA—Part 2

The 2014 NBA season tipped off last night, and the 2014 SCOTUS term argued-off[1] A few weeks ago. In light of SCOTUS’s problems gaining attention, we came up with five things it could learn from the NBA. Here is Part 1.

2. Personalities.

The greatest strength of the NBA is that fans feel like they really get to know who the players are. And here’s the surprising part: it’s true. With 82+ games a season, constant interviews and microphones everywhere on the court, there is nowhere for an NBA player to hide his personality. A fan who watches closely can really come to understand a player’s personal strengths and weaknesses. I’m convinced that at this point Bill Simmons can see a Paul Pierce mood swing coming more easily than he can see a Mrs. Simmons mood swing coming.

The Supreme Court has the same strength. Those who read the argument transcripts and opinions really get to know each Justice. And the personalities are every bit as intriguing, frustrating and profoundly human as those in the NBA.

In fact, each Justice has an NBA counterpart:

Justice Scalia is Lebron James. I pointed this out at the end of my feature on Justice Scalia’s DOMA opinion. Suffice it to say that both are immensely talented, but among the most polarizing figures of their respective generations.

Justice Thomas is Metta World Peace. They’re both enthusiastic, bull-headed and almost incomprehensibly frustrated with the state of the world. Thomas is so far out of the mainstream that he thought the Citizens United case should have gone further. That position is the rough judicial equivalent of charging into the stands at a basketball game and throwing wild haymakers at unsuspecting civilians.[2] Continue reading

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Five Things the Supreme Court Could Learn From the NBA—Part 1

Let’s face it. Supreme Court coverage is boring. It gets bogged down by long explanations of complex legal issues. No wonder two-third of Americans can’t name a single Supreme Court Justice.

But it doesn’t have to be that way. Tonight is opening night for the NBA, which is coming off a banner television ratings year. As it turns out, SCOTUS shares a lot of things in common with the NBA. So let’s look at a few things that the Court could do to attract new fans by pulling a few pages out of the NBA’s playbook. Here are five possibilities.

5. Rename the Terms.

SCOTUS terms run from October – June, basically the same as basketball seasons. And most of the really big action in each term comes in May and June, at the same time as the playoffs. Here is the difference, SCOTUS identifies terms with the beginning year. So, SCOTUS just began its 2013 Term, which will end in June 2014. That doesn’t make sense. Remember the ’98 Bulls? That was the ’97-’98 season: the last of the Jordan years in Chicago and when this happened, NOT the ’98-’99 season, which nobody remembers.

Name one thing that happened in the Supreme Court in 2012.

I’ll let you think for a moment.

Obamacare! That’s the answer. The big Obamacare case was decided in June 2012. But according SCOTUS, it occurred during the 2011 term. That’s just silly. Supreme Court terms should be referred to by the year they end. This blog will start the trend. Continue reading

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“So You’re Telling Me There’s a Chance!” – Why the Government Shut Down

Let’s start with this principle: it is generally bad for the United States to shut down the government. That’s fair to say, right? So, anyone who advocates shutting down the government ought to have a good reason for doing it, right?

Here was Newt Gingrich’s reasoning for shutting down the government in the ‘90s: Bill Clinton and his fellow Democrats won the election in 1992. In that election, the American people gave Clinton a mandate to pass certain laws. But Clinton and the Democrats misinterpreted the mandate by spending too much money. The American people noticed, voted for Republicans in 1994, and gave the Republicans a mandate to force President Clinton to cut spending. The Republicans couldn’t do that by normal means because they didn’t control the Presidency. So, they had to use extraordinary means to execute the will of the people by using a government shutdown as a negotiating chip with President Clinton.

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Game of Thrones Explains the Future of Same Sex Marriage

I’ll sum up SCOTUS’s same-sex marriage cases from June in one word: factions. The Court split up into four factions. And what better way to explain warring factions than Game of Thrones[1]?

Want to know how each Justice will vote in the future on the same-sex marriage issue? A clue might be in how they voted on the jurisdictional issues this past June. In both cases, the Court had to first decide the technical issue of jurisdiction before it decided the substance of the case. Here is how the nine justices voted:

Jurisdiction in both cases: Kennedy and Sotomayor

Jurisdiction in neither case: Scalia and Roberts

Jurisdiction in DOMA but not Prop 8: Ginsburg, Breyer and Kagan

Jurisdiction in Prop 8 but not DOMA: Thomas and Alito

The question of jurisdiction was similar in the two cases, so it is surprising to see five of the nine Justices vote in favor of jurisdiction in one case, but not in the other. Just for fun, let’s take a cynical perspective and assume that these five justices voted the way they did for strategic (not legal) reasons.

What were their strategic motives you ask? Well, what would they have done if they were Houses in Game of Thrones?

House Lannister/Scalia

The Scalia/Roberts faction, much like House Lannister, is bold, determined and ruthlessly intelligent. This faction rules the Court right now (Roberts is the Chief Justice and Scalia has the most intellectual stature). They are excellent at playing the SCOTUS game, and they have fought hard to make it to where they are. Although Justices Scalia and Thomas currently reign over the Court like King Joffrey, with a Democrat in the White House, national demographics shifting against the Republican Party and public opinion swinging in favor of same-sex marriage, the long term outlook for House Scalia is dim.

Continue reading

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Justice Scalia’s DOMA Dissent: Annotated

Justice Scalia wrote the primary dissenting opinion in the DOMA case the Supreme Court decided on Wednesday. That is appropriate. Justice Scalia is the king of the dissenting opinion. He has actually won SCOTUS’s award for Best Dissenting Opinion[1] in all but one year since he joined the Court. The one exception was in 2010, when the 90-year-old Justice Stevens unexpectedly stole the award days before his retirement for his epic dissent in the Citizens United case.

In DOMA, Scalia has given us yet another gem. The actual text of his dissent is below (in italics), along with my annotations (in standard text).[2]

There are many remarkable things about the majority’s merits holding.

This is vintage Scalia. You know fireworks are coming when he starts an argument with a sentence like this.

The first is how rootless and shifting its justifications are.

See?

For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?

I’ll bet he’s going to tell us. Continue reading

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