Yes, you remember now, Holmes was a Supreme Court justice — but that was several decades ago, maybe a century ago, right? Just to refresh your memory, Oliver Wendell Holmes was an Associate Justice of the US Supreme Court from 1902 to 1932, when he retired at age 90. He’s one of the most widely cited Supreme Court justices. He often said that judges decide first and then look for the laws and precedents that will justify their decisions. He wasn’t being witty or making light conversation. In his very first law review article, written in 1870, he said, “It is the merit of the common law that it decides the case first and determines the principle afterwards.”
That may strike you as exactly the reverse of what should happen. But nothing that Holmes came across in his long life as a lawyer and judge made him change his mind. Indeed, he once told his fellow supreme court justices that he could take any established principle they wished to cite and he could use it to uphold or reverse any decision. Holmes may have spoken or written in ways that startle us, but by and large he was right in his view of how judges decide. Or how we all decide, for that matter.
You’ve noticed that Supreme Court decisions are generally not unanimous. Judging whether or not a law is constitutional requires that the justice interpret the Constitution. And — Surprise! — interpretations differ. Yes, old Oliver Wendell Holmes was right. Decide the case first and determine the principle afterwards.
We do need a national health insurance plan. Even Chief Justice John Roberts saw that right away. The reasoning came later, fashioned rather like a corkscrew, but it got the job done. We applaud the Chief Justice.
You probably know that after the Supreme Court hearing about the health care law, the Republican National Committee released a video with what sounded like an honest audio recording of part of that hearing. And you probably know it wasn’t an honest audio. The Republican National Committee had manipulated the audio to make it sound as if the government’s lawyer, Donald Verrilli, was nervous and stumbling, because he was having a hard time making the case for the government’s health care plan.
Why did the Republican National Committee lie that way? After all, only the most partisan Democrats would claim the government came off well in that hearing. Verrilli certianly did his job well, but any objective listener would have to say that the conservative justices appeared very dubious about the law and the more middle-of-the-road justices seemed pretty skeptical of it. It wasn’t a good day for the Obama administration.
George Romney’s first video attacking President Barack Obama also was a bare-faced lie. Romney’s campaign associates frankly admitted that they used Obama’s words when he was quoting one of his opponents, but they attributed the sentiments to Obama. They said they were merely making a political point. Apparently, that made it all right. (We have a post on that, but please don’t get distracted.)
Sean Spicer, a spokesman for the Republican National Committee has said that the GOP ad about health care and the Supreme Court uses multiple audio bites and runs them together to make it sound as if the Solicitor General is having a hard time defending the law. “Our goal was to make the point of what a hard sell Obamacare is,” Spicer told the Associated Press. Oh, good, that explains the lying.
By coincidence the Stop Porn Culture conference and the US Supreme Court decision about violent videos came upon us at the same time. What caught our attention was that although the Supreme Court has ruled in the past that states can legally keep pornography from youngsters, it has now ruled states cannot keep violent video games from them.
Justice Antonin Scalia wrote the court’s majority decision in the video game case. Among other things, he wrote “Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” And later: “No doubt a State possesses legitimate power to protect children from harm… but that does not include a free-floating power to restrict the ideas to which children may be exposed.”
That last part did strike us as running counter to the assumptions behind the Supreme Court’s permitting a ban on, say, video depictions of sexual acts being shown to the very young. In perhaps the most important case involving children and their access to pornography (Ashcroft vs. ACLU, 00-1293) the court ruled 8 to 1 in favor of using “community standards” as a measure for determining what material should be prohibited or regulated online.
A pornographic book or video can also “communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music)” yet those books and videos can be restricted using “community standards.” OK, we’ll stop now and admit we’re confused. As a matter of fact, Justice Scalia does go into the difference in legal standing between pornography and depictions of violence. Justice Scalia has never been one of our favorite Supreme Court justices, but his opinions are always interesting to read, and if you’d like to read his opinion, please click on this link http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf
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Gene Mirabelli writes most of the posts here, so we're very pleased to announce that his recent novel, Renato, the Painter, has won a first prize for Literary Fiction in the 2013 Independent Publisher (IP or "IPPY") Book awards.
The Awards program was created to highlight the year’s most distinguished books from independent publishers. Award winners are chosen by librarians and booksellers who are on the front lines, working everyday with patrons and customers. Some 125 books competed for the literary fiction Gold Medal. These books are examples of independent publishing at its finest.
Publishers Weekly says "In prose as lusty and vigorous as Renato himself, Mirabelli captures the feeling of coming to terms - ready or not - with old age." For more about the writer and his book, turn to our contact page or to the author's web site.
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