Today in Supreme Court History: August 7, 2010

8/7/2010: Justice Elena Kagan takes oath.

Justice Elena Kagan

 

Comments

[Dan Schiavetta]

Ex parte Clarke, 128 U.S. 395 (decided August 7, 1888): Harlan denies habeas to a steamship operator who had been convicted of selling alcohol in violation of a recently-enacted Pennsylvania statute; rejects argument that the statute is unconstitutional; as an aside he also believes that Congress wouldn’t have the power to override it (maybe this is why a Constitutional amendment ended up being necessary?)

[Dr. Ed 2]

I found a Clark v Commonwealth -- https://supreme.justia.com/cases/federal/us/128/395/

The two charges were (a) selling on Sunday and (b) selling without a Pennsylvania state license -- and the interesting question here is the ability of the state to regulate interstate commerce. If he was just navigating within PA it would be one thing, but the Ohio River goes all the way to the Mississippi and the record is not clear how far along the Ohio he went.

An interesting analogy would be the SS Portland, which went down in 1898 (on Stellwagen Bank), and the related Portland Steam Packet Company which had multiple paddlewheel steamships transsporting people between Boston (MA) and Portland (ME) -- in the late 19th Century, it was considered both a more luxurious and safer means of travel than rail.

Maine had various forms of Prohibition since 1851, so whose law applied aboard ship?

[Dan Schiavetta]

thanks

[Dilan Esper]

When Prohibition occurred, Hammer v. Dagenhart with its completely dumb and bankrupt holding that manufacturing had nothing to do with commerce (used to invalidate a child labor law!) was good law, so yes, at that time, the incorrect view of the Commerce Clause that prevailed would have prevented Prohibition without a constitutional amendment.

[Dan Schiavetta]

today’s movie review: Whose Life Is It Anyway?, 1981, a kind of segue from yesterday’s review

Richard Dreyfuss as a successful sculptor with a ballerina girlfriend (Janet Eilber) who becomes a quadriplegic after an accident. He’s at the mercy of hospital staff and loses the will to live. The dancer uneasily decides to pretend he’s died and goes on with her life. Christine Lahti as a sympathetic nurse, John Cassavetes as a hardnosed doctor who force feeds him against his will (perhaps he’s afraid of disciplinary action if he doesn’t do that), and Ken McMillan (for once, not playing a tough guy) as the judge who has to rule on the sculptor’s request to pull the plug.

At the time I had a girlfriend who looked like Eilber, and Dreyfuss’s post-accident dream of her dancing nude (Eilber was a ballerina in real life) was something that stayed with me.

Also at the time I had recently been a music therapy major and Dreyfuss’s dismissal of the young physical therapist stung. But she was too perky — if you’re assigned to work with someone like that you should start by listening, not wave a copy of “Joni: An Unforgettable Story” (with your functional hands) and try to prop up second-hand inspiration.

Also at that time . . . (later)

Dreyfuss’s character is lively and witty even while incapacitated. “How did the quadriplegic cross the road? He was stapled to a chicken!”. He also compliments Lahti’s breasts, and he has a point there, and I assume not even in 2023 would that result in a harassment proceeding. These scenes, I think, diminish the impact. To validate his choice he should be shown as being essentially dead already, withdrawn, morose, uncommunicative, but I suppose that would make for a boring movie.

We follow the judge out to a snowy courtyard as he ponders what to do. At the end he allows removal of life support, which the audience is meant to accept as the correct decision (not the Catholic Church of course, which would force-feed him against his will while at the same time forbidding any marriage to Lahti because in the Church quadriplegics can’t get married).

Also at that time . . . I was the director of a crisis center which was part of a 24-hour hotline which regularly dealt with suicidal callers. I dealt with several, some of which were pretty damned serious. We never lost anybody (at least, not until well after the call) but this movie was much on my mind. As was the horrible real-life case of Elizabeth Bouvia, in a situation somewhat like Dreyfuss’s, but in constant pain and lifelong (she had severe cerebral palsy). She wanted to commit suicide but was surrounded by Cassavetes-like characters who would not obey her request to remove life support. She tried to resist — biting the tube in half, learning to vomit up the nourishment — and had to go to court (and up on appeal) to finally get the tube removed. I was a member of the American Association of Suicidology and when their July 1983 newsletter came in the mail, entitled “Bouvia: Should We Help Her Die?”, I thought the headline should be “Should We Force Her to Live?”

The right of incapacitated but competent adults to refuse life support is still up in the air. Since Cruzan v. Missouri in 1990 a patient can, in advance, direct it, but only if he’s at a point where he’s unable to make a decision. The legal landscape is still unsettled (all we can say is that the right to assisted suicide is not a due process right, Washington v. Glucksberg, 1997), though AMA guidelines currently seem to allow it. In the field of suicidology the issue has faded into the background because the problem of too-easy suicide — by the ready availability of guns — is so immediate and overbearing. Our rate of gun deaths is horrible and embarrassing, but over half are suicides. If you’re drunk and depressed, it’s a lot easier to off yourself if there’s a gun in the dresser drawer next to you.

[Frank Drackman]

Jeezo Beezo, way to start the week on a happy note, what next "Brian's Song"???
"A Walk to Remember" (2002 Warner Bros) is much better. I'll take a perky 18 year old Mandy Moore over Dick Dreyfuss (was there ever a better Dick Chaney??) any day

Frank

[Frank Drackman]

Seinfeld did it better in "The Comeback"

Shellbach: Situation #4: You're breathing on your own, you're conscious, but with no muscular function.
Elaine Benes: I don't like the sound of this one.
Cosmo Kramer: Yeah, let's pull the cord.
Elaine Benes: Yank it like you're startin' a mower.

What a great Episode, Ben Stein as "Shellbach", Jerry pretending to suck at Tennis to save Milos's manhood, George travelling cross country to deliver the "perfect line"

Frank

[Dr. Ed 2]

I think you are missing a comma as this only makes sense if Dreyfuss is the quad.

[Dr. Ed 2]

" If you’re drunk and depressed, it’s a lot easier to off yourself if there’s a gun in the dresser drawer next to you."

Or car keys in your pocket...

Manufactured gas was largely Carbon Monoxide and putting ones head in the oven was a common means of suicide, e.g. Sylvia Plath. B-ut when utilities switched to Natural gas (largely Methane) in the 1950s & 1960s, was there a dramatic decrease in the suicide rate?

No. And are there fewer suicide deaths (overall) in countries that essentially ban guns? No -- in fact, some countries with stricter gun control also have higher suicide rates than we do.

It's not the evil gun doing it.

But back to the car -- I maintain that a lot of single vehicle, single occupant OUI fatalities are actually suicides, particularly when high speed is involved. So do we ban cars???

And then there is the Canadian MAID laws -- Medical Assistance in Dying. That's becoming a major scandal in that it's reportedly easier/quicker to get MAID than medical care...

[Dan Schiavetta]

It is a lot easier to kill, either oneself or others, with a device designed solely and specifically for that purpose.

[Dr. Ed 2]

Bullshyte.

I had a client who ran over her husband with a 2 ton SUV, dropped it into reverse and did it a few more times. In the parking lot in front of horrified bystanders. (When the landlord gave me directions to the apartment complex as being behind a notorious bar, well...)

If she'd merely shot him, he might have lived as this was about 10-15 miles from a Level I Trauma Center.

No, it's not always easier to kill with a gun -- at anything other than point-blank range, marksmanship becomes an issue, and it's more of an issue than you might think.

[Dan Schiavetta]

Why don't cops carry an SUV around with them in case they have to "pacify" somebody?

Why don't hunters ride around with SUV's through the forest instead of carrying rifles?

Why don't we see SUV firing ranges where people can hone their targeting skills?

[Nige]

You could probably save thousands of lives every year if you regulated SUVs, either taxed them out of existence or made it illegal to build them as ridiculously huge as they currently are.

[Frank Drackman]

You could probably save hundreds of thousands of lives every year if they would just summarily execute any violent felon convicted of a second violent felony.
Of course you could also make a point that "Summarily Executing AKA "Termination of Prenancy" 250,000 unborn black males saves hundreds of thousands of lives down the road.

Frank

[David Nieporent]

I had a client who

Janitors don't have clients.

[Frank Drackman]

David Never Potent doesn't have friends (or Clients) .
and probably as much a "Lawyer" as the Reverend Sandusky,

Frank

[Dilan Esper]

If you’re drunk and depressed, it’s a lot easier to off yourself if there’s a gun in the dresser drawer next to you.

The experience of Canada and the Netherlands shows this is also true if there's a legal assisted suicide clinic nearby.

[Dan Schiavetta]

Hardly.

1) Find out where the clinic is. 2) Make an appointment. 3) Arrange transportation (Or drive yourself -- which you can't do if you're real drunk.) 4) Show up at the appointed time. 5) Wait for the doctor to show up with the needle.

Lots of chances there to have second thoughts.

[Nige]

Be sad if that was the only way you could access therapy and counselling, though.

[Dan Schiavetta]

You could call a hotline, like the one I ran.

A broader question is whether a delay in treatment (if you want to call it that) might be actually beneficial. This is true (to a limited extent) as to addiction therapy — providing immediate treatment only encourages the instant-gratification impulse that has to be got under control. I once heard the director of the county drug program say that a six-week delay (typical) in getting an appointment was actually good for the client. He was justifying the backlog caused by inadequate staffing and I thought that was too long a wait.

[Frank Drackman]

I called that hotline after I took a bottle of sleeping pills.
They told me to have a few drinks and get some sleep!

[Nige]

Huh, interesting. I suspect a mental health crisis might be different, though.

[Dan Schiavetta]

Yes.

At the hotline we could call on the county psychiatric center folks and get the client into their temporary 28-day facility. It was a "one P.C." admission (needing only one psychiatrist to sign off, as opposed to a more permanent "two P.C." or an involuntary "three P.C.") and they had one always there or on call.

(Taking them to the emergency room was useless. There was often a long wait, and the setting only tended to panic them further.)

[Dilan Esper]

I would just point out that we have seen specific cases of depressed people offing themselves through legal assisted suicide in the Netherlands and Canada. So it may not be a loaded gun, but it definitely can lead to the same result.

[Dan Schiavetta]

If you want to get a tattoo you have to sign a form saying 1) I’m not drunk, 2) I’m over 18, 3) no one is forcing me, and 4) I have thought about this procedure carefully and still wish to proceed. I wonder if a similar form has to be signed at those clinics? Do they have a counselor there to screen people to make sure their decision is not impulsive?

[Nige]

The idea of such a thing without extensive screening is horrifying.

[not guilty]

I am trying to recall the last member of SCOTUS prior to Kagan who joined the Court with no prior judicial service. I think it was Lewis Powell and William Rehnquist, who took office on the same day in 1972.

[Frank Drackman]

If one of the current Surpremes keels over (I'm guessing the Wide Latina) Barry Hussein would be my guess for the next (without Judicial Experience, and his Kenyan birth wouldn't be disqualifying)
Frank

[Dr. Ed 2]

I’d love to see the confirmation hearing on that one — B. Hussain has way more baggage than Taft did.

[bernard11]

Sure he does, Ed.

[CJColucci]

Where would he put it?

[Sarcastr0]

"B. Hussain" such a lame-ass attempt to make Obama a scary Muslim.

[Frank Drackman]

Don't blame me, blame whoever named him Hussain

[David Nieporent]

Well, nobody, actually. That's not his name.

[Frank Drackman]

it's actually Barack Hussein Obama II

[Aunt Teefah]

Technically, his real name is actually Barfsack Obungler

[Mr. Bumble]

I thought it was Barry Soetoro.

[Nige]

It's Bumble Obravodelta

[Mr. Bumble]

That's Mr. Bumble to you.

[CJColucci]

The "blame doesn't belong to his parents for giving him a name, the "blame" belongs to people who exploit the name, when they have nothing else, to create the false impression that Obama is a Muslim. Not that there would be anything wrong with that if it were true, but it isn't. So when you pull that kind of s**t, don't blame his parents, own what you're doing.

[Mr. Bumble]

Well, because of who he is Islam gives him a pass. In other parts of the world where Islam dominates he would be considered an apostate.

[CJColucci]

There isn't anyone who represents "Islam" to "give him a pass." There isn't any Pope who can make that decision. And in parts of the world where Islam dominates, he would not be considered an apostate; he'd be considered a Christian. Obama isn't a Muslim and never was.

[Frank Drackman]

So why did Barry Hussein Osama thank John McCain for not making an ish-yew of his “Muslim Faith” lets go to the Videotape!!! “John McCain has not talked about my Muslim Faith” of course former Clinton aide Stephy Stephanapolis helpfully corrects him “Your Christian Faith”https://www.youtube.com/watch?v=XKGdkqfBICw

Frank

[CJColucci]

That's what you're hanging your hat on? Well, if you don't have a functioning head, you hang your hat where you can.

By the way, do you remember the "57 states" remark? Or Occam's Razor?

[Mr. Bumble]

Not a chance he would even consider it. Too, much of a pay cut and not enough time for golf.

[bernard11]

If you were in his situation would you?

[Mr. Bumble]

No. Right now it is the best of all possible worlds for Obama.

[not guilty]

Barack Obama just turned 62 years old. That is a bit long in the tooth for a SCOTUS nominee. Ruth Bader Ginsburg was 60 when nominated. Lewis Powell was 65. Thurgood Marshall was 59. All other justices in recent history have been significantly younger when first nominated. (Robert Bork was 60, but he was not confirmed.)

[Magister]

If Wikipedia can be trusted, that is correct. All the Justices between Powell/Rehnquist and Kagan were previously judges; Sandra Day O'Connor is the only one who was not on a federal Court of Appeals (however briefly) before being on the Supreme Court (she was an Arizona judge before).

[Krayt]

Well, I found out what happens when you click post in a Monday open thread, and meanwhile the thread disappeared out from underneath you, as those types of threads are wont to do from time to time.

https://youtu.be/9dYHEE40LTA

[not guilty]

[duplicate post deleted]

[David Nieporent]

I assume the Deep State deleted the Open Thread to silence the MAGA posters.

[Mr. Bumble]

Server overload. Too many bullshit posts from the usual suspects.

[OtisAH]

That’s especially funny considering how pretty much every three threads in most open posts are typically posted by you, BCD, and Brett or one the other jackasses. ML, I think.

[Mr. Bumble]

Congratulations on your appointment as official scorekeeper of comments.
Does AH stand for AssHat?

[Rev. Arthur L. Kirkland]

Who, other than Prof. Blackman and Volokh, are the usual suspects?

[Mr. Bumble]

I meant to say comments rather than posts.

[Nige]

Wow, they really nuked it out of existence. Was it something someone said?

[bernard11]

So no Monday open thread?

Guess I can get some work done.

[OtisAH]

There was, then there wasn’t.

[Aunt Teefah]

Literally 1984

[Nige]

Doubleplusunthread.

[Mr. Bumble]

...and now it is. It's back up.

[Dan Schiavetta]

TMI