THE GINSBURG CONTROVERSY: IT IS TIME TO IMPOSE A CODE OF ETHICS ON OUR HIGHEST COURT

440px-Supreme_Court_US_2010Below is my column on Sunday in the Chicago Tribune on the controversy involving Justice Ruth Bader Ginsburg. Ginsburg’s expression of “regret” over “ill-advised” statements may strike many as a bit short of an actual apology for what was facially unethical conduct. However, it was more than was required because nothing is required from a Supreme Court justice. That is the problem. Not the tirade against Trump. Not the criticism of Republicans in Congress. The real problem is that Ginsburg and her colleagues claim that the Code of Judicial Ethics is only binding on lesser jurists. Indeed, a majority of justices have been accused of ethical violations, but the Supreme Court is the only part of our government that is not subject to any enforceable code of ethics. Ginsburg’s apology should not detract attention from pressing need for reforms of our Court, including the creation of an enforceable ethical code for the justices. Once again, we have addressed only the latest manifestation of the problem on the Court rather than the underlying cause: the absence of an enforceable code of ethics for the justices. I have long advocated two primary reforms for the Court: the establishment of an enforceable code of ethics and the expansion of the Court to 19 members. What was disturbing recently during an appearance on the Washington Journal on C-Span was how many people argued against an enforceable code of ethics and just accepted that justices speak and act politically. While some people simply supported what Ginsburg had to say about Trump, others view the notion of an enforceable code of ethics as “naive” despite that fact that all other federal jurists comply with such a code. Below is the column:

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Brown Family Asks Entire Tenth Circuit To Review Sister Wives Decision

240px-sister_wives_tv_series_logoLate Monday, the Brown family filed their appeal in the United States Court of Appeals for the Tenth Circuit in Brown v. Buhman, No. 14-4117. The Sisters Wives case raises core issues of free speech and free exercise — constitutional violations found by the trial court in striking down the Utah cohabitation law. This “en banc” petition is to the entire Tenth Circuit in seeking review of the recent panel decision vacating the earlier decision on standing grounds.

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Justice Antonin Scalia’s Funeral Mass

By Darren Smith, Weekend Contributor

basilica-of-the-national-shrine-of-the-immaculate-conception220px-Antonin_Scalia,_SCOTUS_photo_portraitSupreme Court Justice Antonin Scalia’s funeral was held Saturday, February 20th, 2016 at the Basilica of the National Shrine of the Immaculate Conception, the largest Roman Catholic church in North America. We now feature the videography of his funeral service.
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Tale of Two Cases: Supreme Court Rules For Officer In Texas Shooting As Two Officers Are Arrested In Lousiana Shooting

Derrick+Stafford+and+Norris+Greenhouse+Jr.The Supreme Court has reversed the United States Court of Appeals for the Fifth Circuit in a police shooting case where a police officer who fired six times at the car of a fleeing arrestee. The Court found that the officer was entitled to qualified immunity in a civil suit. The ruling comes as prosecutors filed charges against two Louisiana officers in the Fifth Circuit in the shooting death of a 6-year-old autistic boy. Thirty-two-year-old Derrick Stafford of Mansura and 23-year-old Norris Greenhouse Jr., of Marksville each is charged with second-degree murder and attempted second-degree murder. Bond has been set at $1 million for each officer. The father has not been told that his son was killed.

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Embattled Prosecutor Reportedly Says He Will Get $100,000 In Free Publicity For The Murder of Four Police Officers

By Darren Smith, Weekend Contributor

Mark Lindquist
Mark Lindquist

An outrageous statement, if proven to be true, was made by embattled Pierce County Washington Prosecutor Mark Lindquist following the assassination of four Lakewood Police Officers in 2009.

These four officers were murdered while at a local coffee shop in Parkland. Their deaths were marked by great mourning in the law enforcement community and among Washington State’s citizens.

Showing almost sociopathic indifference, Prosecutor Mark Lindquist was quoted by his former Chief Criminal Deputy Prosecutor Mary Robnett (who is now an Assistant Attorney General) as saying he,

“was going to have to run for re-election and would get $100K of free publicity from the murders.”

Of course, publically he was right there to show his great “remorse” for the officers and their families. His statement was confirmed by other witnesses.

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Kim Davis Was Not The Only Kentucky County Clerk Who Refused To Issue Couples Marriage Licenses

By Darren Smith, Weekend Contributor

Casey Davis via MSNBC interview screen shot
Casey Davis via MSNBC interview screen shot

Kentucky was faced with another case of drama and failure to perform statutory duties and the federal courts. The Casey County Clerk announced that he would refuse to issue marriage licenses to couples who’s marriage he objects to.

The clerk, in a bit of irony, is named Casey Davis.

Davis insists that he has a duty to himself to violate state law but oddly he feels the Commonwealth should pay for an attorney to represent him.

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What RFRA Hath Wrought-Part 3

By Mike Appleton, Weekend Contributor

“Smith relegated our national commitment to the free exercise of religion to the sub-basement of constitutional values.”

-Michael P. Farris and Jordan W. Lorence, “Employment Division v. Smith and the Need for the Religious Freedom Restoration Act,” 6 Regent U.L.Rev. 65, 66  (1995)

Several years following the ratification of the Constitution, a man named Jonas Phillips was subpoenaed to testify on behalf of a defendant in a criminal case in Pennsylvania. The problem was that the trial was scheduled for a Saturday and Mr. Phillips was a devout Jew. He refused to be sworn on the Jewish Sabbath and was subsequently held in contempt and fined ten pounds, despite invoking the protection of the Pennsylvania constitution, which provided that “no human authority can in any case whatsoever, control or interfere with the rights of conscience. . . .”  Stansbury v. Marks, 2 Dall. 213 (Pa. 1793). Fortunately, the defendant waived Mr. Phillips’ appearance and the fine was discharged.

Jonas Phillips’ “rights of conscience” were deemed subordinate to the orderly administration of the judicial system in a state which boasted one of the most religiously tolerant constitutions in the young nation. Therefore, when the Supreme Court held in 1878 that rights of conscience likewise could not be raised as a defense to a charge of bigamy, the ruling was hardly earthshattering.  Reynolds v. United States, 98 U.S. 145 (1878). And the decision over one hundred years later in Employment Division v. Smith, 494 U.S. 872 (1990), appeared to confirm a principle that had largely guided free exercise jurisprudence since the nation’s founding: the Religion Clauses do not mandate religious exemptions from valid laws intended to be binding upon all of us. Yet the Smith decision produced a harsh political and academic reaction, resulting in legislation that has radically altered the free exercise landscape. How did that happen?

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