Archive for the ‘Moral High Ground’ Category

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

WHAT HAPPENED:  Two years ago, the Supreme Court ruled in Hobby Lobby v. Burwell that the contraceptive mandate could not compel religious institutions to provide birth control to their employees.  “Fine” said the government, “You don’t have to provide birth control, and instead you just have to fill out these two forms and we’ll take care of it for you”.

WHY IS THIS BEFORE THE SUPREME COURT:  “NO!” replied the host of religious institutions who were not satiated by the Supreme Court’s favorable ruling in Hobby Lobby.  “Two forms, as nominal as it may seem, constitutes an affirmative act in favor of providing birth control and that is a sin.”  And that is where we stand now, in that the Court must determine whether two forms is an acceptable burden to place on a company that is denying medical care to their employees, or if two forms is a condemnation to hell-fire and brimstone.

WHAT IS THE RULING:  Thankfully, this case is not yet decided.

RAMIFICATIONS:  Everything and nothing.  Everything if the idea that a hypothetical employee of the Catholic Church cannot get birth control serves as the opening of Pandora’s Box toward overruling Roe v. Wade and diminishing Women’s Rights.  Nothing if you are neither person described in the above referenced sentence.

ROOT FOR ZUBIK IF:  To you, the idea of hell isn’t ridiculous.

ROOT FOR BURWELL IF:  You would like to end more sequels to this never-ending horror movie of a Supreme Court case, which by the way, was what I was going for with the picture above of Dennis Hopper fighting Leatherface in Texas Chainsaw Massacre 2.

WHAT HAPPENED:  In 2014 and 2015, President Obama passed two “executive orders” which pertained to immigration, the DACA and the DAPA.  In the interests of brevity, those two orders granted deferred action to two general classes of illegal immigrants, (1) people who arrived in the U.S. under the age of 16 and were now over 30, and (2)  parents of natural born citizens who never obtained their own citizenship.  These orders instructed the government against deporting those citizens, and instead allowing them to stay in the U.S., even though they would not be granted citizenship rights.

WHY IS THIS BEFORE THE SUPREME COURT:  Immigration issues are primarily Congress’ jurisdiction, as the Legislature has primary authority to create policy and regulations regarding the status of illegal immigrants.  Therefore, opponents of these actions claim the President has exceeded his authority to act.  On the other hand, the agency that performs these actions is under the President’s control and the President is allows to make edicts for those agencies to follow.  Therefore, the issue, in part, comes down to whether or not the President’s executive orders are so sweeping that they require greater action, of if the executive orders are within his ability to control lower agencies.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  This case could determine the occupancy status of hundreds of thousands of people who are currently living in America, but do not have citizenship.  These people likely have no where else to go if they are removed from the country, or could be separated from their children if deported.  If the orders are upheld, this could allow the government to have a better handle on undocumented aliens, as people would be more likely to come participate in registration if they were not concerned about deportation.  On the other hand, these orders only stabilize the situation and do not provide a real solution to the concern citizenship and illegal immigrants.

ROOT FOR U.S.:  If you are OK with expanding Presidential Power to resolve a situation temporarily, and probably until a Republican is voted into office.  You are also probably an advocate for the legalization of marijuana.

ROOT FOR TEXAS:  If you hate President Obama, Obamacare, and any other Obama-related terms.  You are also probably someone who likes it when people follow the Constitution, at least when it comes to this situation.

WHAT HAPPENED:  Voters in Texas argue that their votes do not count as much as the votes of other Texas citizens who live in different districts.  The principal argument is that the method of determining districts, which counts total population instead of eligible voters, is unconstitutional.  The voters in this particular case argue that counting eligible voters is a more Constitutional way to determine districts.

WHY IS THIS BEFORE THE SUPREME COURT:  Previous cases have dealt with this issue, and while a test has been developed, it is generally recognized (or at least it should be) that voting districts are never going to perfect.  So the Court applies equal protection to these claims but has generally held that voting districts that are close enough and that are not created on the basis of discrimination are usually fine.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  If it is held that using total population violates the equal protection clause, then many states will have to go back to the drawing board to determine how to create and balance districts.  That could cause greater indecision on this topic, as there is no guarantee that calculating eligible voters will resolve the problem completely.  At very least, this would likely give States greater latitude to create their own voting districts, which can be good or bad depending on how you feel about certain States.

ROOT FOR EVENWELL IF: The principal of Constitutionality means more than the practical effectiveness of the status quo.

ROOT FOR ABBOTT IF: You’re the kind of person that is OK with things not being perfect as long as they are not fundamentally corrupt or broken.





The defendant in this case was sentenced to death in Florida. In Florida, the death penalty stage of the trial takes two parts, where the jury must first decide whether an aggravating factor is present to qualify the defendant for the death penalty and then the judge takes the jury’s recommendation to determine whether or not the death penalty should be administered.


The Supreme Court has made rulings on death penalty procedure wherein the Supreme Court has shown a preference for the death penalty to be decided by the jury. In this case, there is a question over whether the decision is truly made by the jury when the judge has final approval over the decision.

AMENDMENT FROM THE PODCAST: In our episode regarding this case, we were under the impression that the judge’s decision only factors in when the jury has made a recommendation of death. This is incorrect, as the judge makes a final decision only after considering the jury’s decision either in favor or against the death penalty.

In addition, the jury may make a ruling in favor of death that is not unanimous, which is generally disfavored by the Supreme Court’s current jurisprudence on the Supreme Court.


This case is not yet decided.


Most States have death penalty statutes where the jury makes the final decision in cases of the death penalty, so Florida’s use of the jury in this case is outdated in the context of national law. Florida’s Death Penalty statute certainly makes it easier to find in favor of death, but in the same token, adding the extra level of judicial review could help the defendant avoid the death penalty in certain cases.


You prefer a more updated, modern Death Penalty statute, where the decision to sentence someone to death is held solely in the hands of citizens chosen randomly through jury duty.


You prefer a vintage death penalty statute, where the decision to sentence someone to death is held in the same Florida public officials which ruined the 2000 Presidential election.


Plaintiff is a white person who was rejected for admission to the University of Texas. Plaintiff believes that the rejection was due to an affirmative action program in which UT admits automatically admits any student who graduated in the top 10% of their class, and then considers race for the remaining applicants. Presumably, Plaintiff fit into the class of people where race was weighed in the application and was rejected.


This case is before the Supreme Court because the Supreme Court has a long history of making convoluted rules that seem well-intentioned in a vacuum, but are mostly just rhetoric that is enforced at the will of individual justices. Per previous cases in California and Michigan, the admissions program can consider race, but can’t be a quote. It also cannot have the purpose of remedying past discrimination, but it can be used to foster diversity.   Even though it shouldn’t be, this case is probably a crapshoot.


This case is not yet decided.


This case could have long-lasting effects on affirmative action in higher education. This program seems to be within the realm of acceptable programs under precedent, but this is a fairly flimsy set of precedent so we could have a whole new set of rules once this case gets handed down. It would not be surprising if decision, and future precedent, went strongly in one way or another.


Are (1)  an internet commentator or (2) between 5 and 4 justices on the Supreme Court.


Jeez, I don’t know, everyone else? I feel like most people who don’t like this are probably too scared to say it out loud out of fear sounding racist.



Plaintiff is suing a credit report website for publishing incorrect information about his credit. Plaintiff’s claim is based in the Fair Credit Reporting Act, which affords citizens the right to bring a lawsuit against credit agencies for negligent reporting.


This is before the Supreme Court because the Plaintiff has not, and likely cannot, prove damages as part of his claim. This can go in a few different directions, as the Court must decide whether (1) the statute does not require damages, i.e. the Plaintiff wins, (2) the statute requires damages and Plaintiff has proven damages, i.e. the Plaintiff wins, or (3) the statute requires damages and the Plaintiff has not proven damages, i.e. the Defendant wins.


This case is not yet decided.


This case is like a cornucopia of things that annoy the Citizen’s Guide to the Supreme Court. On one hand you have poor statute writing, as the Fair Credit Reporting Act should have answered this question on their own. On another, you have the threat of voluminous lawsuits based on principal instead of actual legal damages. And finally, you have Credit Reports which are basically a great fraud committed upon the American Public. So if it is somehow possible that everyone would lose, like when the Redskins play the Cowboys, that would be excellent.


Would like to see the money that goes into all those Free Credit Report ads go to people who had false stuff published about them on the internet. You also think that anything published incorrectly about you on the internet entitles you to money, you wimp.


Feel as though kids these days aren’t tough enough, and people should expect false information being published about them on the internet. In my day, you had to really damage someone on the internet to get damages, and these damn millennials are ruining it for everyone. Disclosure –If you are rooting for Robbins, this is what you sound like.


In connection with the case of Mata v. Lynch (pdf), Brett and Nazim discuss how bad an attorney has to be to overturn a criminal conviction.  Afterward, they play a game called “Is This Ineffective Assistance of Counsel?“, which discusses whether or not bad-mouthing your client to a jury or falling asleep during trial warrants a new trial for criminal defendants.

  • Air conditioners, like everything else, were invented in ancient Egypt.
  • Kismet is a great word.
  • Most states require attorneys to be insured if they practice law.
  • In Mata, SCOTUS declared that the ineffective assistance of counsel made it fair to give the poor guy a real chance at appealing his case.
  • This thing we do is NOT the practice of the law.
  • Nazim loves games, and is terrible at them. This makes him the best person to play games with.
  • In Muniz v. Smith (pdf), the attorney fell asleep during trial. This was not ineffective assistance of counsel.
  • Ineffective assistance claims need to establish two things:
    • That the attorney screwed up royally.
    • That the case would have gone otherwise if it had not been for that screw up.
  • This standard is further elaborated in Wiggins v. Smith.
  • James Joyce wrote that errors are the portals to discovery, and that makes humans great explorers of knowledge.
  • Sadly, litigation has made doctors and others act to avoid being sued, rather than to do their jobs.
  • We have a Bingo. It’s always available on the left side of our website.

Sleepy attorneys are just as good, say air traffic controllers waiting for lawyers to fly.

WHAT HAPPENED: The State of Oklahoma uses a drug called Midazolam during the process of administering the death penalty.  The purpose of Midazolam is to ensure that defendants are put into a coma-like state prior to the administration of potassium chloride, which ends the inmate’s life.  The Plaintiffs in this case are suing to stop the use of Midazolam arguing that the drug has a ceiling-effect, which means that the drug stops working at a certain point, making the process of lethal injection horrifically painful for everyone associated, specifically the person sentenced to death.   The Plaintiffs lost at the lower levels before the Supreme Court, but have argued that the lower rulings are based on faulty evidence that is objectively incorrect.  The Defendants, i.e. the State administering the death penalty, argue that the lower court opinions are correct, that Midazolam is fine, and that “there’s nothing to see here folks”, as they gently nudge everyone out of the Courtroom.

WHY IS THIS BEFORE THE SUPREME COURT: The Supreme Court created a test for when the death penalty violates the 8th Amendment, although likely begrudgingly.  This test states that any method of administering the death penalty cannot have an unreasonable risk that the causing the inmate substantial and unjustifiable harm, which is a standard the founding fathers would likely need considerable amount of explaining to understand.  In addition to proving this standard, the Plaintiff is also asking that the Court overrule the factual findings of the lower court, which is something the Supreme Court almost never does.

WHAT WAS THE RULING: This decision is not released yet.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: In the short term, nothing.  Even if this decision is reversed and remanded, the lower court will be forced to have another hearing on this subject, at which the State will likely provide a better expert who will just make their point more clearly and the case will be ruled in favor of the State.  In the grand scheme of things, should Midazolam be banned under the Constitution, it creates another small victory in favor of those looking to ban the death penalty outside of the governmental processes.  Justice Scalia touched on this during the oral argument, which is that this case is part of a bigger movement to ban the death penalty by making all the drugs used in the process either commercially or legally unavailable.  Banning Midazolam would go far in movement, since there are very few drugs that can do this task within the current Constitutional framework

YOU SHOULD ROOT FOR GLOSSIP IF: enjoy seeing haughty government institutions and Supreme Court justices swallow bitter pill after bitter pill until their support of the death penalty is haphazardly put into a coma and then burned alive from the inside using potassium chloride.

YOU SHOULD ROOT FOR GROSS IF: you are gross because rooting for people to die is gross.

WHO WAS RIGHT: This case is not yet ruled on, but both Brett and Nazim believe that the ruling in favor of the State will be upheld by some majority greater than 5-4 but less than 7-2.

Scalia is Smart AND Witty

Posted: June 6, 2015 by Nazim in Moral High Ground

From this article in the Washington Post on a humorous commencement speech delivered by Justice Scalia:

He told graduates that it was their responsibility “not just to be zealous in the pursuit of your ideals, but to be sure that your ideals are the right ones, not merely in their ends, but in their means. That is perhaps the hardest part of being a good human being. Good intentions are not enough. Being a good person begins with being a wise person. Then when you follow your conscience, you will be headed in the right direction.”