Today in Supreme Court History: July 16, 2019

7/16/2019: Justice John Paul Stevens died.

Justice John Paul Stevens

Comments

[Dan Schiavetta]

Travia v. Lomenzo, 86 S.Ct. 7 (decided July 16, 1965): In this order by Harlan refusing a stay of a District Court decision, we see 1) that a federal trial court order, even when up for appeal, is “final and binding” on a state’s highest court; 2) how pissed off he was by the Supreme Court’s earlier decision in this case, which he dissented from; 3) how he is bound by the Court’s earlier decision regarding a similar application (381 U.S. 431); and 4) how if the Court had explained its reasoning “in a sensitive and not heavy-handed manner” the state court would have felt free to defer to the District Court. Here, the question was whether state senate and assembly elections could be held in the midst of litigation as to whether a recent reapportionment violated Equal Protection. The District Court ordered it to go forward; the state court had ordered it stayed. The matter was settled the next year, in time for the 1966 elections, when the New York court approved reapportionment recommendations of a judicial commission (Orans v. Rockefeller, 1966).

[Dan Schiavetta]

Today’s movie review:

Play Me Again, Vanessa (1986): anything can be done well or badly, and this was a porn movie done well. This is back when porn films had a plot — here, bored housewife Tajia Rae watches videos of Vanessa del Rio in a number of well-done sex scenes, including a casual 69 with another girl on a table in front of hotel guests. At the end of the film (I think — memories of porn tend to be long-lasting but not perfect) Vanessa steps out of the screen and fixes Tajia’s boredom problem. In the real world plot, we see Joey Silvera having sex with Melissa Melendez (what a perfect body!), and halfway through the film is speeded up five times or so, to comedic effect. And Jerry Butler has a wife who complains about their shabby curtains in a honking Bronx accent — and after he tries to quiet her by bringing her to about 20 orgasms, as soon as she recovers she complains about it again. The reaction on Butler’s face, as he recovers from his own orgasm, is great — a lot of those early porn stars began as serious actors and did have talent.

What I remember most about this movie is “Dick Rambone”, who apparently was a sensitive soul who didn’t stay in the business long. His penis is enormous and a redheaded girl somehow slowly throats all of it. But (I suppose one would expect this) it never gets fully hard. Vanessa has to squeeze it at the bottom as she flops it around her face. Years later, in the internet age, I found an old video of him walking on a nude beach, signing autographs, having his picture taken, his penis hanging like an elephant trunk almost to his knees. More a curse than a blessing.

[Frank Drackman]

Hey Now!!!!!!!!!
gotta work that "Dick Rambone" into my material.
Dick Harter, Carlos Danger,

[Frank Drackman]

Not really a Porno but saw my first X-rated movie 1977 at the Nuart Theater on Santa Monica Blvd (checked, it's still there, showing "Earth Mama: and "Rocky Horror" (at 11pm??? todays kids!)
Double Header (get it) of "Last Tango in Paris"/"Going Places" we were supposed to be going to a Dodger game but this looked more interesting.

Frank

[Mr. Bumble]

Quite a swing of the pendulum in your first two movie reviews: form two movies about the life of Christ to a porno.

[Dan Schiavetta]

I have a wide angle lens.

[Magister]

Appreciating the movie reviews; keep going! Whatever the next one is, I confidently predict that Bumble will complain about it.

[Dan Schiavetta]

Thanks!

From the lack of response today I was beginning to think that reviewing a porn movie was (um) a turn-off.

[Mr. Bumble]

Truth be told, nothing's gotten much of response since Thursday.

[Alpheus W Drinkwater]

In the age of Pornhub, it's probably pretty rare that anyone watches an entire porn movie anymore.

[defaultdotxbe]

Eh, its Sunday, comments (and posts) are always slim.

[Magister]

Well, I couldn't think of much to say. I saw porn films in the 1980s (campus film societies emptying out the dorms) but I could probably only name any of them by looking at a list on Wikipedia.

[Mr. Bumble]

Point to a complaint. Only pointed out the dichotomy between the first two reviews.
FYI when you first mentioned the idea and ca was considering, I urged him to go for it.

[defaultdotxbe]

Could be taken as a passive-aggressive complaint

[BrotherMovesOn]

It's what he does here.
Exclusively, and effeminately.

[Mr. Bumble]

As always thanks for your constructive, if slightly homophobic, comment.
You are a real credit to the VC.

[BrotherMovesOn]

Err ... I think the homophobe between us is the one who types the word "fags" in comments (hint: not me).

[Frank Drackman]

Either John Paul Jones, the Naval Hero or Led Zeppelin Musician would have been a better choice.

[F.D. Wolf]

Justice William O. Douglas announced his retirement on November 12, 1975. Democrats argued that Ford should appoint a liberal in the vein of Douglas, and the Republican Right, naturally, pressured Ford to nominate a conservative. Ford asked his Attorney General Edward H. Levi to give him a short list of candidates. (Among the names on Levi's final list was Assistant Attorney General Antonin Scalia. Imagine, we could have had ten extra years of Scalia! Opportunity lost or bullet dodged, depending on your point of view).

Ford eventually narrowed his choices to three: Solicitor General Robert Bork, Judge Arlin Adams of the Third Circuit, and Judge John Paul Stevens of the Seventh Circuit. Bork was the preference of conservatives and those in the administration who thought it was politically smart to appease the conservative members of the party, who had never been completely at ease with Ford. Bork was eventually passed over as being too associated with the Nixon administration. (It had been Bork, as Acting Attorney General, who had carried out Nixon's order to fire Watergate Special Prosecutor Archibald Cox after Attorney General Eliot Richardson and Deputy Attorney General William Ruckelshaus had both resigned rather than comply with Nixon's order.) Adams was viewed as a conservative without the Nixon baggage, and Stevens was viewed as a moderate. Eventually, of course, Ford nominated Stevens, who was also the top choice of fellow Illinois resident Levi.

[Brett Bellmore]

He was largely passed over for being an obnoxious SOB. Further, establishment conservatives liked him, he made ideological conservatives very unhappy. (Remember his "inkblot" remark?)

[Commenter_XY]

I do remember that from his confirmation hearing (I think it was the 9th amendment he called being an inkblot). And I also recall a very memorable exchange with Senator Byrd over Congressional intent. That is when I knew he was doomed; he became Byrdsh*t.

[Mr. Bumble]

...and probably the last time a candidate for anything requiring Senate confirmation answered honestly.

[F.D. Wolf]

Indeed. Bork was not shy about answering questions about his legal opinions and philosophy. Every subsequent nominee has learned the lesson to completely evade such questions by responding that they cannot comment on a matter that might come before the Court.

[F.D. Wolf]

No, I don't remember "the inkblot comment".

Good Lord, Robert Bork was the antithesis of an "establishment" Republican and precisely the type of conservative that Establishment Republicans depise. Establishment Republicans are afraid of controversy, are terrified of social issues, generally follow a philosophy of "go along to get along", and believe the sole purpose of the Republican party is to cut taxes. That was not Robert Bork.

There's a reason Ronald Reagan nominated him, and it wasn't to appease Establishment Republicans.

[Sarcastr0]

Dude was tight with the Nixon folks. Who later became Reagan folks. Hard not to call them the establishment; Ford's faction was long gone by then.

[Dr. Ed 2]

Yes, a lot of Nixon folk became Reagan folk == but look at the contrast between the two administrations!

[Sam Bankman-Fried]

Carter was like Trump in that for better or worse the Democrats moved closer to Republicans on labor and trade and economic issues like federal regulations…so Trump moved closer to Democrats on China and reshoring and ending the Bush wars. So just as Biden benefited from Trump’s reforming the GOP Reagan benefited from Carter’s reforms of the Democratic Party.

[David Nieporent]

Establishment Republicans are afraid of controversy, are terrified of social issues, generally follow a philosophy of “go along to get along”, and believe the sole purpose of the Republican party is to cut taxes.

… in the 1970s, sure.

[David Nieporent]

Further, establishment conservatives liked him, he made ideological conservatives very unhappy.

False. Brett continually describes this imaginary conflict that exists only in his head between True Principled Conservatives™ and perfidious establishment Republicans that are always betraying them.¹² In fact, Bork was incredibly popular with ideological conservatives, who 100% agreed with his inkblot comment. Brett does not understand that comment (to be fair, liberals also did not understand it). Bork's point was about the illegitimacy of the judiciary using the 9th amendment to invent unenumerated rights — something that ideological conservatives were also opposed to, given the recent Warren-Brennan era. (Bork was not, as some think, implying that the 9th amendment was some sort of stain on the constitution. Bork's point was that the meaning of the 9th amendment — the concrete meaning, not just an abstraction like "unenumerated rights exist" — was entirely unclear, and thus could not be enforced by the judiciary. He analogized it to a provision that said, 'Congress shall make no…' and that had an inkblot concealing the rest; the courts could not just fill in whatever they guessed might be under the inkblot.)

¹ This is confirmed in his mind and the minds of a handful of online loons by the fact that TPC™ don't always get what they want. But that's not a reflection of betrayal; it's a reflection of the fact that adults understand that government is about compromise and that unless one's faction has 60% support in the country, one can't just impose one's will on the country.

² This is similar to his insane beliefs that (a) Trumpkins haven't controlled the GOP since the day he got the nomination in 2016; and (b) the fact that Trump didn't get things done wasn't a reflection of Trump's incompetence and indifference as an executive but rather was the result of sabotage by the Republican establishment.

[Magister]

Bork apparently meant that the vagueness obscured the meaning as if the underlying text were unreadable, but his two analogies were bad: Sanskrit could be translated, and inkblot carries a connotation of psychiatric testing and therefore mental imbalance. He could have just said "and there's a hole in the document after "Congress shall make no"".

[Dan Schiavetta]

thanks for clearing that up

[Alpheus W Drinkwater]

"Who was this Rorschach guy and why did he paint so many pictures of my parents fighting?"

[BrotherMovesOn]

A+ !

[defaultdotxbe]

I heard a similar one before

"My therapist said she was going to give a me a Rorschach test but instead of the inkblots she just showed me a bunch of pictures of my parents fighting"

[Commenter_XY]

So that was the argument behind the inkblot thing with the 9th amendment. That was great to read, good background.

[Sarcastr0]

I learned Bork was arguing a portion of the Constitution has no cognizable purpose.

[Dan Schiavetta]

I met Bork once, shook his hand and told him he was overeating. A story for another time.

[Krayt]

For 30 years I disliked Bork for his roll in the Saturday Night Massacre, then I learned he planned on resiging, too, and the resigned AT told him to stay and carry out the deed, as someone had to do it eventually.

[Sarcastr0]

This seems a bad argument. The more the massacre the less legitimate the Presidents actions.

[David Nieporent]

Yes, but the more people he fired the less of a DOJ there was. Richardson and Ruckleshaus thought there needed to be someone there running the show. The top two resigning made the public point.

[Joe_dallas]

Stevens knew his dissent in heller was wrong.

He effectively admitted his dishonesty when he proposed an amendment to 2A which matched the language needed for his dissent to be validated.

[Mr. Bumble]

Bee suspicious of anyone wearing a bow tie except when wearing a tuxedo.

[Sam Bankman-Fried]

Or just ignore dumbasses on the internet like Joe dallas. 😉

[Alpheus W Drinkwater]

How dare you slander Pee-Wee Herman!

[Ed Grinberg]

From the introduction to A patriot's history of the United States (2004): "Personal liberties in America are genuine because of the character of honest judges...who, for the most part, still make up the judiciary..."
I guess we can count Justice Stevens out.

[Sam Bankman-Fried]

How stupid are you?? Here is what Stevens wrote in 2019:

District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.

The text of the Second Amendment unambiguously explains its purpose: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When it was adopted, the country was concerned that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states.

[Dan Schiavetta]

He was correct about that. The Framers were deeply shaken by Shays’s Rebellion while at the same time wary of a federal standing army.

[Syd Henderson]

I thought a better argument would be through the Ninth Amendment since self-defense is one of the other rights people traditionally have and nothing in the Constitution says otherwise.

[Sam Bankman-Fried]

If you read Stevens’ McDonald dissent he pretty much gets to an individual right to keep guns in one’s home for self-defense via liberty interests/right to privacy…but at the last minute he wimped out and concluded with a knee-jerk Democratic partisan position. Stevens’ Heller dissent is equally as absurd as Scalia’s majority because liberals aren’t strict constructionists and that opinion is the perfect strict constructionist interpretation of the 2A.

[Mr. Bumble]

Tying into the new movie review feature, does anyone see a resemblance between Stevens and Clarence Odbody (Henry Travers, Jimmy Stewart's guardian angel in "It's a Wonderful Life)?

[Dan Schiavetta]

Somewhat. Though accented by their common aura of avuncular benevolence.

I remember Travers fondly for his role in “The Bells of St. Mary’s”, obligatory viewing for us Catholic families in the 60’s.

[hoppy025]

This man was a piece of shit.