Today in Supreme Court History: August 24, 1946

8/24/1946: Justice James McReynolds dies.

Justice James McReynolds

Comments

[Dan Schiavetta]

Kemp v. Smith, 463 U.S. 1321 (decided August 24, 1983): Powell denies stay of execution; notes that case has been reviewed 16 times by federal and state courts; doubts that Eleventh Circuit will agree with defendant on new issues but notes that they heard arguments the day before (it ruled against defendant, 715 F.2d 1459; after cert and another stay was denied, defendant was executed on Dec. 15, 1983, the first execution in Georgia since death penalty was reinstated in 1976)

[Dilan Esper]

I highly dislike AEDPA and the general conservative push to execute as many people as possible; but if you want to understand where AEDPA came from, cases like the Kemp v. Smith case are some indication of the cause.

The reality is there's a ton more resources for making last minute successive appeals and habeas petitions than there is for trial counsel in death penalty cases. And as a result, without some limits, death penalty opponents can stretch proceedings out for decades even when the defendant has no legitimate argument against the legality of his sentence.

[Dan Schiavetta]

Abolishing the death penalty would save a lot of resources. There wouldn't be such close scrutiny and meticulous attention to overlooked Constitutional arguments if there wasn't a life at stake.

[Magister]

There's also a life at stake with sentences of life without parole (which is equivalently death in prison), just not the same urgency. Spending the resources up front for crimes with potentially life consuming sentences would cost more than only spending after the fact on the few who receive the most severe sentences.

[Frank Drackman]

Want to abolish the death penalty? Peoples should stop doing things that warrant getting the death penalty.

[Dilan Esper]

It's absolutely true that we should abolish the death penalty. But as long as it is lawful, there has to be some limits on the ability of lawyers to obstruct it with last minute appeals.

[SRG2]

McReynolds was a vile POS - presumably why Wilson nominated him.
https://en.wikipedia.org/wiki/James_Clark_McReynolds#Personality_and_conflicts

[Area Man]

I recently read the Memoir of John Knox, McReynolds’s clerk during the court-packing term. I came away from that thinking McReynolds was not as bad a legal thinker as some make him out to be, but, even so, he was indeed a vile POS. (Rumor was that none of the other cabinet members wanted him around anymore, so he was nominated for the Court to get rid of him–the ultimate “failing up.” Though, I don’t know how true that is.)

He’s well known for his anti-Semitism and racism, and, according to Knox’s memoir, that was no understatement. How he treated not only his black personal staff, but also his Jewish fellow Justices was shocking even in his time.

He was also unusually hard on his legal secretaries (at the time, a sort-of hybrid law clerk and executive assistant). That’s a demanding job, no doubt, especially back in the days when there was only one per Justice. But he basically considered them his property. After already being on the outs with McReynolds, Knox was ultimately fired because he wanted to take a small amount of time off to study for the DC bar exam!

He was also vain and a sort-of womanizer. He loved being in a position of power, and had little humility about it. But he was also very secretive and paranoid.

And none of that is even to get into his results-driven jurisprudence. So, yeah, he earned his reputation and place in history.

[Dilan Esper]

Yeah, everyone on the Court, even ideological sympaticos, hated McReynolds.

And you are correct that his personality was even worse than his jurisprudence. He got a lot of cases wrong, but, for instance, Pierce and Meyer are pretty important cases where he wrote very well reasoned opinions. He had his moments jurisprudentially. He was a complete failure as a human being though.

[Frank Drackman]

But he was against Social Security so that makes up for everything else.

[Dan Schiavetta]

today’s movie review: Crimes and Misdemeanors, 1989

“Human happiness does not seem to have been included in the design of creation. It is only we, with our capacity to love, that give meaning to the indifferent universe. And yet, most human beings seem to have the ability to keep trying, and even to find joy from simple things like their family, their work, and from the hope that future generations might understand more.”

The philosopher character’s words conclude this movie and I assumed Woody must have been quoting someone. But no, the words are his. One can find Christian precedents in Paul Tillich (the “Courage to Be” — “there is a grace to life — otherwise we could not live”) but Allen really nails it here.

This movie is about how bad things happen to good people (Sam Waterston’s rabbi going blind), how good people who do one bad thing get away with it (Martin Landau’s philanthropic ophthalmologist, hiring a gangster to murder a mistress who is about to spill the beans) and how bad people keep succeeding and never pay for it (Alan Alda, having a great time sending up his sensitive-man public persona as a “pickup artist” TV producer, landing the beautiful, intelligent, thoughtful Mia Farrow). Landau’s character has bad regrets but gets over it. His soliloquy at the end, about how mental distress came and went, socks us in the gut because we know that process happens whether the distress is due to something bad we did, or not (the loss of a loved one due to natural causes, for example).

This is another movie about a subculture I was alien to, namely affluent, liberal Jews, but which I came in contact with in college and later in human services, and then as a lawyer in New York. I was struck by the scene where Landau sees himself at a dinner with his family’s previous generation. His father was a rabbi and they are discussing whether there really is a God, given all the bad things that happen to innocent people. Such a discussion would never happen where I grew up. Catholics don’t ask questions like that. One uncle says he just goes through the motions (passover, going to temple, etc.) but doesn’t believe any of it. But . . . he’s still a Jew. It is possible to be a Jewish atheist (I got to know a professor who was one). Being a Catholic atheist is a contradiction in terms.

The closing words, quoted above, are what stays with me, and I don’t see them as dispiriting. I quoted them to a couple of my nieces (whose mother is very religious) who said they agreed with them. It’s o.k. for there not to be a God. One can still get through life, and know right from wrong.

[jdoeford]

A really great movie, probably my favorite Woody Allen.

[SRG2]

One uncle says he just goes through the motions (passover, going to temple, etc.) but doesn’t believe any of it. But . . . he’s still a Jew. It is possible to be a Jewish atheist (I got to know a professor who was one)

Oh, lots of Jews are atheists and agnostics. I was an agnostic Jew for years before redefining myself as an atheist Jew. At my parents' small synagogue in England, which drew most of its membership from the science faculty of a local university, probably 3/4 of the membership were agnostics or atheists, and going to synagogue was tribal bonding (and an opportunity to chat).

[Mr. Bumble]

One of the conundrums of being a Jew. Are you speaking of ethnicity or religion? If you're an atheist or agnostic you are not a jew in a religious sense.

[SRG2]

Ethnicity of course. Unlike "Christian" or "Muslim", "Jew" can mean either a member of our tribe, or someone who believes/follows the religion of our tribe. So no conundrum.

[Dan Schiavetta]

A difficult idea to get my mind around. As you say, it's more a tribe than a set of beliefs. The polar opposite of Christianity.

It's interesting to see the development of Christianity from a Jewish standpoint. I've recommended this before (I think) but see Dr. Henry Abramson's videos on Jewish history. Here he talks about interactions with the first Christians (who of course were Jews). It's interesting also to hear a Jew describe the New Testament. I only got fascinated by the topic after I stopped believing in the Bible and became an atheist myself.

https://youtu.be/Ng7D4beNmeA

[Purple Martin]

captcrisis, think for most formerly religious atheists that turning point arrives not as a decision, but a realization.

[Dan Schiavetta]

That's true. It is brave and liberating to admit to oneself that for quite some time one has at heart been an atheist and to finally claim that identity.

[Dr. Ed 2]

I think Hitler changed that -- the Nuremburg Laws defined "Jew" by bloodline and not religious beliefs, sending Catholic Jews to the concentration camps. It would be interesting to somehow see what attitudes were a century ago, i.e. before all of this.

Of course in Ireland the spelling of one's last name often indicates if one is Protestant or Catholic, in one case if it ends in "er" or "or" -- so regardless of one's actual faith, one is identified.

[SRG2]

Well, even before Hitler, many Zionists were agnostics and atheists, but were aware of their tribal identity.

[Dan Schiavetta]

On the flip side, some Zionists were antisemites. Chesterton was an example: he wanted the Jews to go to Israel because he wanted them out of England. Even the Nazis (early on) made deals with Zionists to get Jews to emigrate there.

[SRG2]

There are modern Christian Zionists who are anti-Semites They want us to go back to Israel as a precondition of the 2nd Coming, but they also think that we'll then be eternally damned.

[Dan Schiavetta]

They think the Jews will finally then be converted. Or at least that’s my impression of that ideology.

[Bob from Ohio]

"Hear, O Israel: YHWH is our God, YHWH is one"

If you can't say this [and mean it] you are no longer a Jew, no matter who your Mom was.

[Purple Martin]

No, you are describing No True Scotsman.

[Bob from Ohio]

Not at all.

Jews have a basic creed. You are saying that Jews and Catholics are no different than Unitarians, that you can believe anything.

Can a Jew believe in the Trinity?

[Alpheus W Drinkwater]

When I was a kid, my Rabbi (Conservative Synagogue) would tell us that Judaism is a religion of behaviors, not beliefs. You could more or less believe what you wanted, as long as you followed God's many rules of behavior. However, his one exception was that you could not believe in Jesus as the messiah. Maybe that was just his quirk, I don't know.

[SRG2]

No - your rabbi was following fairly conventional thinking on the subject.

[Alpheus W Drinkwater]

He was also fairly conventional in his apparent belief that he could sleep with any of the married women in the congregation who would have him. He eventually ran off with the wife of my dentist.

[SRG2]

It's a shonda!

[Dan Schiavetta]

To believe Jesus was the Messiah you have to disregard every Messianic prophecy in the Hebrew Bible. Which is why he got such a poor reception with Jews.

[ducksalad]

Slightly OT

Early in college I happened to read up on the Mandaeans, the still existing (back in the 1980s) remnants of the religion that John the Baptist had been running all on his own. Clearly he hadn’t told his own followers that Jesus was the one.

Already had no belief in the Gospels as literal history, but thought they at least represented the sincere beliefs of the authors. The Mandaean thing made me realize the endorsement claims and name checks on JtB and earlier prophets were just a sales pitch.

[SRG2]

Can a Jew believe in the Trinity?

Nope. That is not only a rejection of Judaism the religion, it is also a rejection of tribal membership.

[Bob from Ohio]

"Nope. That is not only a rejection of Judaism the religion, it is also a rejection of tribal membership."

So is being an atheist. That is a complete rejection of HaShem.

[SRG2]

It is not a rejection of tribal membership.

[Bob from Ohio]

The ability of humans to rationalize anything is amazing.

Go ahead and think what you want, boys can imagine they are girls now.

[SRG2]

I did 23&Me. It said I was >99% Ashkenazy Jewish. How was this a rationalisation, rather than a mere recognition that Jews are a tribal group? When Hammer or Carmi do their analysis of Jewish genetics, are they rationalising? Or is it you who's rationalising in the other direction?

[Bob from Ohio]

DNA is not the sum of what makes a Jew, its the least important part actually. You are saying a convert is not a Jew.

[ducksalad]

I believe it was possible to "join" at least some Native American tribes, sometimes even involuntarily. It doesn't follow that they were not an ethnic group, or that membership was defined primarily by religious beliefs.

[SRG2]

Bob, I am saying that a convert is not ethnically Jewish. They are Jewish by religion. Why is the idea that there are two definitions of “Jew”, one tribal and one religious, so hard for you to grasp?

[David Nieporent]

Bob, I am saying that a convert is not ethnically Jewish. They are Jewish by religion. Why is the idea that there are two definitions of “Jew”, one tribal and one religious, so hard for you to grasp?

Bob's not right in his stance, but you're not right here either. "Ethnically Jewish" isn't really a thing. Judaism is a tribe. A convert is just as much a member of the tribe as someone born into it. A non-believing member of the tribe is just as much a member of the tribe as the most observant black hat; (s)he's not "ethnically" a Jew; (s)he's just a Jew.

Being "ethnically" Jewish is like being "ethnically" American; it's not a real term. Either you're actually American, by birth or naturalization, or you're not. (Though you can give up your American citizenship, whereas you can't actually give up your status as a MOT.)

To be sure, if you say, "He's ethnically Jewish," people will know what you mean, but that doesn't make it accurate.

[David Nieporent]

Ironically, Bob is rejecting Jewish belief in taking the position that Jewish belief is what matters. If your mother was a Jew, you're a Jew, period. (Or if you convert in, you're a Jew, period.) You may be an apostate; you may have removed yourself from the community. But you're still a Jew.

See, e.g., https://www.chabad.org/library/article_cdo/aid/1269075/jewish/Is-a-Jew-Who-Converts-Still-Jewish.htm

[SRG2]

It means you are not a Jew in the religious sense, but you can still be a tribal Jew, though some tribal Jews also renounce membership in the tribe, as is their right.

As for one's mother, that determines whether a religious Jew would regard you as Jewish for religious purposes. But no religious Jew has the right to determine whether someone who has a legitimate attachment to the tribe via either parent is a member of the tribe or not.

[Dr. Ed 2]

What surprises me about the affluent Liberal Jews is exactly what part of "Kill the Jews" they don't understand.

Heck, even the Saudis are afraid of the nutcases in Iran.

[ducksalad]

Fairly bad comparison.

I believe there are no synagogues in Saudi Arabia and the number of openly avowed Jews is very close to zero.

Iran has something in the range of 9,000 Jews, several dozen openly operating synagogues, and Jews have one reserved seat in the parliament (for what that’s worth).

In fact, it’s hard to find any aspect of treatment of women or minority religions in which Saudi Arabia isn’t far worse than Iran. And Iran is quite bad. The US has a realist rather than idealist foreign policy. The harshest criticism on human rights is mainly reserved for countries that are enemies for completely different reasons.

[ducksalad]

“Being a Catholic atheist is a contradiction in terms.”

Sure, if you define a Catholic as someone who accepts the Nicene creed. And few people would openly identify as a Catholic atheist, because Catholic is not also an ethnicity.

But I think there are a lot of people attending Mass who don’t have a literal belief in God, or believe in something weakly deist and compatible with modern science rather than a god that answers prayers, makes appearances, works miracles, etc. For them the church is a place to be around people with a similar moral outlook, sort of like joining the Masons without believing there’s anything mystical about trowels.

And in places like the Balkans that had inter-Christian warfare, I bet you can find people who have a strong tribal identification with either Catholic or Orthodox churches but don’t care much about the theology.

[Dan Schiavetta]

True.

The cathechism I had to learn in 1964 had 46 questions and answers (the answer to #46 had six subparts). Most Catholics, even the churchgoing kind, don’t really believe in all that complicated theology. (They also don’t agree with official Church teaching on contraception, female priests, gay people and even abortion, though that’s a different story.)

This is all to the good. The emphasis on points of doctrine set Christianity apart — in the sense of producing infighting. From the very beginning (the letters of Paul) Christians were sectarian, and once they got temporal power Christian vs. Christian became deadly.

[Purple Martin]

But I think there are a lot of people attending Mass who don’t have a literal belief in God, or believe in something weakly deist and compatible with modern science rather than a god that answers prayers, makes appearances, works miracles, etc.

Pretty sure that's been true for nearly two millennia.

[Dan Schiavetta]

As long as you don’t say so publicly.

The thirteenth century bishop Robert Grosseteste defined heresy as “an opinion contrary to scripture, openly avowed and obstinately defended”. In other words, you weren't a heretic if you just kept your mouth shut. Who knows what all those people in the pews were thinking?

[ducksalad]

Bishop Grosseteste sounds like a pretty reasonable guy. You could even openly avow it if you backed down when called on it.

[Dan Schiavetta]

Most people, when hauled before the diocesan tribunal, would pretty quickly take back any heretical statement. The Church had to prioritize its time and energy and probably let most things slide. Periods of hysteria, such as the Albigensian Crusade, were probably unusual. A good account of it is given in "The Perfect Heresy" by Stephen O'Shea (2000).

[Bob from Ohio]

"Sure, if you define a Catholic as someone who accepts the Nicene creed. "

Yes, if you define a Catholic as Catholic, they are Catholic.

[Purple Martin]

…no, captcrisis described, more precisely, a subset of Catholics.

Again, you are closer to describing No True Scotsman. (glad you're a multi-sectarian No True Scotsman.)

[Dilan Esper]

Also there's a big difference between recites the Nicene Creed and accepts it. I have a feeling if the definition is "accepts it", there's probably a tiny number of Catholics by that definition even worldwide. Most Catholics don't even know what the heck it means.

[Dan Schiavetta]

The big mystery to me was the Apostles' Creed. What was this about Jesus "descending into Hell"?

[Magister]

For the possibility of salvation of those who died before Jesus died for their sins, I thought. Maybe for the full measure of possible suffering, or to use up the rest of the special effects budget.

[Dan Schiavetta]

ha!

[David Yashar]

Widely considered the single worst USSC justice. Supposedly, at the justices' initial case conference, he would sometimes look at Brandeis and ask, "What does the kike think?" I'd have had more respect for Brandeis if he'd have punched him in the face and said, "That's what the kike thinks."

[Dr. Ed 2]

Far better to rise above it -- particularly when the other seven men present wouldn't have said much *had* Brandeis done that.

[Frank Drackman]

Kagrungy Jackson Browne probably says that about Ellen Kagan.

[Dr. Ed 2]

I somehow suspect that Kagan can hold her own, you don't get to be a dean without knowing how to deal with obnoxious professors.

[Rev. Arthur L. Kirkland]

It was predictable that this white, male, conservative blog would commemorate former Justice McReynolds. In another era, several Conspirators would have endorsed him for public office.

[David Nieporent]

Widely considered the single worst USSC justice.

No. Biggest asshole personally, sure. But worst justice? I mean, Roger Taney pretty much laps the field with just one decision.

[Dilan Esper]

Woody Allen was grossly overrated. Give me Mel Brooks or Zucker-Abrahams-Zucker or the Marx Brothers any day of the week.