Today in Supreme Court History: September 18, 1857

9/18/1857: Justice John Hessin Clarke's birthday.

Justice John Hessin Clarke

Comments

[Dan Schiavetta]

Matter of Disbarment of Donald D. Nash, 473 U.S. 931 (decided September 18, 1985). He had been convicted of Class A sodomy. He later applied for reinstatement; the Oregon decision denying reinstatement has an extensive and graphic depiction of his treatment for pedophilia, 885 P.2d 1112 (1993). He had had sex with the 6-year-old daughter of a client. The psychiatrist at the reinstatement hearing noted that Mr. Nash was married to a woman 20 years his junior who was “unlikely to be at his maturity level”. The Dr. recommended that he return to practice but be prohibited from taking on clients who had little daughters. Good God! — thankfully the court did not buy it. As of today he is still disbarred.

Matter of Disbarment of John Cody, 473 U.S. 930 (decided September 18, 1985): This man, John Donald Cody, has such an extensive history that he is on Wikipedia. After being caught stealing client funds, he disappeared, stole another’s identity, and incorporated a charity supposedly for Navy veterans (actually it was a charity for himself). He got onto the VA’s referral list and was photographed with George W. Bush, John Boehner, John McCain, Rudy Giuliani (no surprise there) and Karl Rove. They finally caught him in 2012 and he’s in prison for life.

[Magister]

Tautologically, someone who commits horrific crimes should never be allowed to leave prison or should eventually be allowed out of prison. It doesn't seem clear that practicing as an attorney will intrinsically create greater risk of recidivism for a pedophile (except maybe if the law practice were that of Harvey Richards Esq., Lawyer for Children) than whatever else he's been doing while out of prison.

[Dr. Ed 2]

A while back, there was a major fuss about the high number of sex offenders living in the small, economically-depressed MA town of Ware. Seems that a sex offender had purchased an apartment building and in addition to living there himself, was renting to other sex offenders -- and property values in Ware, part of Massachusetts' Appalachia, were low enough to facilitate this.

My thoughts then and now are that sex offenders have to live SOMEWHERE and if the prison system isn't going to provide them housing, then...

Same thing here -- the man's trade is being a lawyer, unless the state is going to teach him a new one, the only legal means he has of earning a living is the law. Sodomizing a six year old, that's something that the entire legal community (including judges) would know about, so he'd have to behave himself.

I'm conservative, but I'm also a realist, and unless we are either going to keep people in prison for life (or execute them, which I oppose), we are going to have to deal with the reality that they will someday be out in society, No, they shouldn't get a free PhD, as someone did under Michael Dukakis, but I have no problem with a GED.

[SMP0328]

Matter of Disbarment of John Cody, 473 U.S. 930 (decided September 18, 1985): This man, John Donald Cody, has such an extensive history that he is on Wikipedia. After being caught stealing client funds, he disappeared, stole another’s identity, and incorporated a charity supposedly for Navy veterans (actually it was a charity for himself). He got onto the VA’s referral list and was photographed with George W. Bush, John Boehner, John McCain, Rudy Giuliani (no surprise there) and Karl Rove. They finally caught him in 2012 and he’s in prison for life.

Because if going to violate the ethics rules (and criminal law), really go for it.

[David Nieporent]

the Oregon decision denying reinstatement has an extensive and graphic depiction of his treatment for pedophilia, 885 P.2d 1112 (1993).

Your cite is wrong; it's 855, not 885.

[Dan Schiavetta]

Thanks

[Dr. Ed 2]

"married to a woman 20 years his junior who was “unlikely to be at his maturity level”

I never saw how that was relevant.

If she was of legal age and mentally competent, who the hell's business is what they do in private?

[TwelveInchPianist]

The whole "what consenting adults do in private is their own business" thing ended with Obergefell.

You'd be surprised at the number of people who would be aghast at the idea of someone questioning the propriety of a same-sex relationship, but would have no problem questioning the propriety of a relationship between a 55-year-old and a twenty-two-year-old, or, say, the relationship between Woody Allen and Soon-Yi Previn

[Malika]

FFS, Previn was his practically his step-daughter.

Yeah, some wacky people think the genders of two adult partners is irrelevant, but a person who was the partner of the mother of an eight year old girl eventually marrying that girl is kind of creepy!

[Krayt]

And yet, pontificating, I know what's best to teach America Hollywood still has no problems lining up to work in Woody Allen films. Or Roman Polanski for that matter. 8 year olds? Hell, they give 5 year olds lip enhancements.

[TwelveInchPianist]

1. That's not how Ms. Previn characterizes the relationship. So much for believe women, I guess.

2. I get that you disapprove of Ms. Previn's personal choices, but how is her private life any of your business?

[Estragon]

I’ll admit— I did not have “Woody Allen did nothing wrong” on my huckleberry bingo card for today. Impressive

[not guilty]

I wonder if at their wedding Woody Allen and Soon Yi danced to "Thank Previn for Little Girls."

[Mr. Bumble]

Rimshot!

[TwelveInchPianist]

Just a couple of weeks ago we were discussing girls being required to share beds with boys on school trips, and you were saying that the girls should mind their own business.

It seems like your principles changed depending on the situation.

[ducksalad]

Yup. I've got no problem with same-sex marriage, but Kennedy's justification was awful: he thought the state should be in the business of affirming relationships.

On your other point, there are several types of relationships that lefties tend to disapprove of:

Older man, younger woman.
Man from a "privileged" group, woman from a "victim" group.
One man, multiple women.

[Sarcastr0]

Maybe the first one, but I've not seen the left get puritanical about the others.

Maybe I just run online with a saner crowd of leftist.

[TwelveInchPianist]

I guess you don't run online with liberals from the National Sexual Violence Resource Center:

Examples of Imbalances of Power

Privilege: White privilege, male privilege, and other unearned advantages are part of the power some of us bring to relationships.

[Dan Schiavetta]

In all three arrangements, there is a power imbalance such that, historically, it can scarcely be said that the woman is consenting. Not that there necessarily is, but . . .

[TwelveInchPianist]

Good thing women have men like you to tell them whether or not they are consenting, so they don't have to worry their pretty little heads about it.

[Dan Schiavetta]

Or you can listen to women who have survived the experience.

[TwelveInchPianist]

Women who have survived dating older men?

[Brett Bellmore]

My problem was with the judiciary deciding that it was their call, and steamrollering popular opposition. A fad swept the judiciary, and they just decided to hell with what the public thought, THEY were deciding this one.

I still think they're not going to forget that they got away with it, and wonder what topic they'll next decide to impose their views on the public concerning.

[grb]

Brett Bellmore : “…. they just decided to hell with what the public thought ….”

It’s not clear to me whether you refer to Obergefell, but (assuming you are) you’ve got everything ass-backwards. The Supreme Court followed public opinion on gay marrage; they didn’t lead. Quote:

“By the time of the Supreme Court’s Obergefell v. Hodges decision in 2015, support for gay marriage had reached 60%.”

Of course now that support is up to 70% including a small majority of republicans. Even older U.S. adults – once the holdouts in support for gay marriage – now come down on the same side as young adults. Ya gotta be a real deadender to be on the other side these days. Of course that’s why the Right went loony-toons loco with their jihad against the tiny number of transexuals. It’s the only form of mob hate where they still poll good.

https://news.gallup.com/poll/350486/record-high-support-same-sex-marriage.aspx#:~:text=By%20the%20time%20of%20the,marriage%20has%20continued%20to%20increase.

[Brett Bellmore]

I was talking about the lower courts. Obergefell was just finishing off the survivors on the battlefield after the lower courts had won the battle. It was just a judicial mopping up operation.

And there's no ambiguity about what was going on for most of the court battle; In CALIFORNIA, the proponents of SSM lost at the ballot box, TWICE. The courts just didn't care.

[Sarcastr0]

I don't think lower courts drive public opinion like that.

More likely the public just changed their opinion as gay folks' public lobbying was effective.

Not all fast change you don't like is some liberal plot to hide the truth.

[grb]

Brett Bellmore : “It was just a judicial mopping up operation.”

No doubt you see Dobbs as a “judicial mopping up operation”. Yet your side was unpopular before the lower courts decided to ignore SCOUS rulings, they were unpopular after the lower courts went their own way, they were unpopular before & after Alito’s mess of a ruling, and they’re unpopular now.

I guess some mop-up operations mop better than others…..

[not guilty]

"My problem was with the judiciary deciding that it was their call, and steamrollering popular opposition. A fad swept the judiciary, and they just decided to hell with what the public thought, THEY were deciding this one."

Brett, should SCOTUS have declined to hear Loving v. Virginia, 388 U.S. 1 (1967)?

[Brett Bellmore]

Not the right question: Immediately after the 14th amendment was ratified a lot of states repealed their laws prohibiting inter'
-racial marriage, and where they didn't, lower courts were striking them down. It was an understood application of that amendment until the Court ruled such laws constitutional as part of their drive to moot the amendment.

Loving should never have been needed but for the Court's own earlier perfidy, just like Brown.

By contrast, we can be quite confident that the 14th would never have been ratified if anyone had thought it mandated SSM. The very suggestion was enough to kill the ERA a century later!

So, Loving and Obergefell have radically different status.

[Dan Schiavetta]

Alternate history

[Brett Bellmore]

Which part are you in denial about?

That the suggestion that the ERA would mandate SSM was enough to kill the ratification drive a century after the 14th amendment? That's pretty clear history, I lived through it.

That the Court spiked the 14th amendment in a series of cases after it was ratified? One of which was Pace v Alabama?

That the lower courts had been enforcing it until that spiking? Including in the case of inter-racial marriage? From Wikipedia:

"Arkansas, Florida, Louisiana, Mississippi, Texas, South Carolina, and Alabama legalized interracial marriage for some years during the Reconstruction period. Anti-miscegenation laws rested unenforced, were overturned by courts or repealed by the state government (in Arkansas[23] and Louisiana[24]). However, after white Democrats took power in the South during "Redemption", anti-miscegenation laws were re-enacted and once more enforced, and in addition Jim Crow laws were enacted in the South which also enforced other forms of racial segregation.""

I repeat: Legality of inter-racial marriage was an understood and anticipated result of the 14th amendment, and being put into effect until Pace. By contrast, mandating SSM came out of the blue, one could even say it was anti-anticipated.

[Brett Bellmore]

Here’s some more evidence of legalization of SSM being a goal of the 14th amendment:

“THAT SUBLIME MINGLING OF RACES:” ABOLITIONIST SUPPORT
FOR INTERRACIAL MARRIAGE

Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause

Now, let's see your evidence that it was intended to legalize same sex marriage.

[Krychek_2]

Years ago I had a client who was on trial for sexually abusing his own six year old son. He wanted me to make the argument that there is some tribe in New Guinea where that behavior is acceptable and our laws against it are merely cultural prejudice, and therefore violate the First Amendment.

I did not make that argument. I explained to him that whatever abstract, theoretical merit there may be to that argument, American law and culture are American law and culture, and if he finds Papuan tribal law and culture to be more to his liking, he could perhaps consider moving there once his prison sentence was over. Though I phrased it more diplomatically than that.

And he did have a point that other cultures at other times and places did not have the same sexual mores that we have, and it's not that long ago that abusing his own six year old wouldn't have gotten him in any real trouble even in this country. But in those places, there was no expectation on the part of children that they had bodily autonomy and were entitled to protection, and here there is.

[Magister]

The whole “what consenting adults do in private is their own business” thing ended with Obergefell.

Obergefell has absolutely nothing to do with what consenting adults do in private (which only started with Lawrence); it's about the public status of being married and the substantial legal consequences of that status which do not depend on what they do in private.

[Malika]

Ed regularly refers to women as whores for their consensual, sexual, personal lives.

[Dan Schiavetta]

E.g., the juvenile, misogynist nickname he always gives our current V.P. and Presidential nominee.

[Dr. Ed 2]

What? "Dumb Cunt"?

I am not a state actor. THAT is the distinction.
Now what I am NOT saying is that she should be harmed -- something that the left routinely says about Trump.

I am *not* encouraging the assassination of "Heels Up" -- ridiculing her, yes, but I don't want a hair on her head hurt. Compare this to the left which says things like "it's a pity he missed."

[Drewski]

It's not directly legally relevant but is psychologically relevant and was presented as expert testimony about Nash's psychological state. Bear in mind this was *his* expert, to overcome *his* burden of showing fitness for reinstatement.

[Malika]

It's relevant because he abused a child and had a predilection for much younger women. Since Woody Allen has been introduced here, it's interesting that Woody Allen more than hinted in his movies, over and over, that he was sexually into young, even underage girls before he ended up marrying a young girl who was practically his step daughter for 12 years. This strongly suggests something to most people with normal human EQ.

[Dan Schiavetta]

It’s true that in his movies Allen hints (at the very least) with an attraction for underage girls. The earliest I can think of is in “Love and Death” where an elderly rabbi’s fantasy includes “a pair of 12 year old virgins”.

Looking back on his work (which I was always a fan of) it’s disturbing. “Crimes and Misdemeanors” was a terrific movie and within its context there’s nothing wrong with his character’s friendship with the 13 year old daughter. But nowadays it is creepy, which is a shame.

[Malika]

I think his films are some of the best crafted around. But, yes, it's hard not to have noticed his frequent hints at what he was about....In Manhattan he was straight up about this.

[ducksalad]

Slightly OT, but in the book thread yesterday, Heinlein got mentioned a few times.

He's got one novel where the whole point is to make it "OK" for the protagonist to marry an adolescent he is guardian for, via a complicated time travel scheme that gets her legally of age.

Then in a later novel he spends a good fraction of a long chapter on a lengthy exposition, using probability, on why it's OK for an adolescent brother and sister under his* care to be having sex.

*In late stage Heinlein, after he jumped the shark, the protagonist is usually and obviously Heinlein himself.

[Brett Bellmore]

Heinlein had, I hear, a side gig as a writer of porn, before he hit it big in the SF market. It started leaking over into his SF writing, especially towards the end of his career.

[Brett Bellmore]

The first novel referenced is "The Door into Summer"; The protagonist gets shanghaied into spending decades in suspended animation, when he comes to he finds that he's been happily married to the girl in question for a long while under an assumed name, and managed to travel back in time to arrange it. It doesn't quite come across as squicky as you describe it when you read the book, IMO.

The latter is, I think found in "Time Enough For Love", as a flash back. That was by the time Heinlein was getting a bit weird and no longer being edited, and yeah, he went to great lengths to set up a scenario where it would seem reasonable.

[David Nieporent]

My recollection — and perusal of wikipedia backs me up on this — is that Previn was not practically his step-daughter. Obviously not legally, but not practically either. He never even lived with her, let alone (step-)parented her. Doesn't mean you can't still find it creepy if you want.

Speaking of which, Seinfeld dating a high school student came to mind, but it turns out that they were much closer in age than Allen-Previn (though still two decades apart, plus she was still in high school).

[Dan Schiavetta]

I think I can speak for most men my age (67): we like hanging out with young women because 1) they’re pretty, and 2) we’re so curious about what they think; when we were their age they were too defensive, and now that we’re “invisible” to them maybe they’ll open up to us a bit. But flirting is creepy, and if a young woman actually shows interest in us, we consider that a big red flag and an immediate turn-off (she’s got “Daddy issues” — or by my age it would be more like “Granddaddy issues”) and it's time to run the other way.

[Brett Bellmore]

Well, I married a woman 21 years my junior, but she was a 25 year old college graduate when we met, hardly a child. She likes to joke that it would have been nice if we'd met when I was younger, but "Never mind, that would have been creepy." 😉

[loki13]

I'm not going to touch on this issue, other than to recommend that people listen, again, to Hey Nineteen by Steely Dan.

Mature and complex people enjoy being able to find areas of common interest; people that are chasing their glory days, and hoping to find it vicariously through another, have an emptiness to them.

[Dan Schiavetta]

There's nothing more pathetic looking than young hair on top of an old face.

[Brett Bellmore]

You're weirded out by people who don't go bald?

[Drewski]

Right, psychologically relevant but not, directly, legally relevant, as I said. Psychological state is legally relevant but the specific behavior is not addressed by law or doctrine.

Just as an aside, a person with a normal EQ wouldn't agree in that way. It sounds like you're trying to rebut and you've veered off into talking about Woody Allen rather than Nash for some reason. I don't imagine Allen's movies' motifs would be admissible as relevant, nor would he ever seek reinstatement to practice as an attorney. Seems very random.

[Brett Bellmore]

I assure you that it suggests something to people with a severely deficient EQ, too.

[Dr. Ed 2]

I make a distinction between statutory rape and a much younger woman (of legal age). I believe that the law does too.

A six year old versus an 18 year old -- lots of differences, including ability to get pregnant. And no matter how immature, we let one vote, sign contracts, and operate 6000 lb vehicles -- and mandate the other wear her mittens.

[Krayt]

Sex with 6 year old. Gets off light. It's 1902, what do you expect?

Wait, 1985! Wtf

[David Nieporent]

I don't know any of the facts of this case (and am not particularly interested in learning about them), but oftentimes nobody wants to put a young child (or the child's family) through the trauma of a trial, so there's a good deal offered to get a plea bargain to avoid that.

[JoeFromtheBronx]

Justice Clarke's abbreviated tenure, resulting from various personal concerns, is somewhat unfortunate. His progressive views provided a different view on a conservative-leaning court. His health problems might have led him to retire in the late 1920s anyhow.

On 9/18/18, an order in a pending case was dropped:

CROSSROADS v. CREW, ET AL.

The application for stay, presented to The Chief Justice
and by him referred to the Court, is denied. The order heretofore
entered by The Chief Justice is vacated.

CREW is Citizens for Responsibility and Ethics. Not a big concern SCOTUS-wise for a certain VC writer.

Crossroads sounds like an astroturf group. Apologies if they are just a true blue organization!

The answer is what Crossroads Grassroots Policy Strategies (GPS) is all about: President Obama and the rest of Washington’s politicians have spent lots of time talking at us – now it’s time for them to listen to us.

The dispute involves a campaign finance regulation. You can read about it here:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18a274.html

[CJColucci]

Clarke has a very contemporary look for someone born in 1857.

[Dan Schiavetta]

Yes. At the time this photo was taken, you’d expect a neck beard or other creative facial hair. And not such a modern part on top.

[JoeFromtheBronx]

Multiple justices around that time had a modern look.

Pierce Butler, who we talked about around here recently, was born in 1866. No 19th-century facial hair or anything.

https://conlaw.us/scotus-group-photos/

[JoeFromtheBronx]

Something for both parties to honor, even if it took a long time to get around to it, the person who sponsored the legislation dying in the interim:

https://www.cbsnews.com/news/nasas-hidden-figures-congressional-gold-medal-ceremony/