2019 Year-End Report on the Federal Judiciary

“Those principles leave no place for mob violence,” the chief justice wrote. “But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education.”

As Chief Justice Roberts -- as of now -- is due to preside over an impeachment trial (remember that? he was referred, blithely, as "the President" on MSNBC today -- it made me so angry), first we have the usual end of the year report ... dropped at 6P.M. as the year bleeds out.  His message raises two sentiments.  First, yes, civic education and talk of judges doing their job with "humility, integrity, and dispatch" (some thought this was a subtweet to various judges who write blatantly ideological opinions, at times in long pedantic ways, especially when referencing the crisp understandable nature of Brown v. Board)  is on some level fine and important.  I do respect him on some level as a public figure.

On the other hand, given the messenger, well you know a "fuck you" sentiment is hard to avoid.  Democracy? From the author of Shelby v. Holder?  Ah, yes, no mob violence, but it's fine for his ideological friends to be chose by someone who incites the mob.  (Again, I KNOW some words of caution on some level helps, but it rankles ... especially concerns for "integrity" with Gorsuch and Kavanaugh there, doing things like hanging out with Mitch McConnell or getting cheers from the Federalist Society).  Also, he shout outs various judges, including by title, well, let me quote the NYT article on the report:

That judge is Merrick B. Garland, who was nominated to the Supreme Court by President Barack Obama in 2016 but denied a hearing by Senate Republicans. Mr. Trump appointed Justice Neil M. Gorsuch to fill the vacancy.

Oh, that guy.  People also wanted a bit more than such nice words. For instance, what about live coverage (I"m okay with "live on tape," but sure; have at least audio of opinion announcements; show some film of handing down of orders or some such etc.)?  What about ethical rules?  (I'm not sure how that will work for justices -- how will you make them binding? But, didn't he say they were working on that?)  I know you aren't going to talk term limits or anything here, but yes, I'm open to the idea.  I also think de facto we have court packing, and when I think about it, it really upsets me.  It wasn't just an "election has consequences" thing. The rules were abused.

Also, more easier perhaps, maybe improve your own website. Why isn't there one of those introduction to the Supreme Court videos posted on the website, the one you would be shown if you visited?   You have media pages. Add video of justices -- after all them reaching out to educate the public is honored here -- giving speeches or interviews.  Make it more bilingual. etc.  Explain order lists (so many confusing terms).  But, you know, we appreciate -- up to a point -- the civics talk.  Yeah.

See you soon, Mr. Roberts. 

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I'll toss this here since it's more of an old theme, but it shows how things are all connected and more defensible than some might think. Was listening to the oral argument of Stanley v. Georgia, which protected the right to possess obscene materials in the home.  The advocate referenced a recent case Redrup v. New York, which in relevant part flagged the sort of materials that would more likely be deemed unprotected:

In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. And in none was there evidence of the sort of "pandering" which the Court found significant in [an earlier dubious case].

The "pandering" case is dubious, but there is something there to the degree the material is geared toward people who might not want to see it. There is a certain privacy angle there.  The Georgia opinion is a mix of privacy and free speech and reaffirms how if obscenity can be banned, it should be for limited purposes.  (The broader possibility of the opinion was lost there as the Court became more conservative ... see recent book review entry).  This concern for "private" matters with exceptions such as to protect children pops up in Lawrence v. Texas (intimate conduct) too.  See also, to go back to the late 1960s, Powell v. Texas, where public intoxication was differentiated (in another opinion by Justice Thurgood Marshall) from private conduct.

When determining the reach of open-ended terms and unenumerated rights, a common law approach that respects precedent and accepted principles such as the types of things deemed "private" and "public" (including legitimate public purposes of regulation) is one thing to take into consideration.  The Georgia case referenced a late 19th Century case that interpreted a statute to not cover the mailing of private letters though an amendment was later deemed to cover that.  The opinion had this interesting phrase: "the purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people." That last part reminds one of the wording of the Tenth Amendment though a Ninth and Tenth Amendment argument was blithely rejected when obscenity laws were uphold in Roth v. U.S.  See also, the concurring opinion here.

A typical common law approach is for courts to avoid certain things if at all possible because of accepted rules and norms.  Even if they are not explicitly written down.  The case there showed some concern even in the 19th Century for the privacy of personal correspondence. Privacy rights weren't invented in the mid-1960s.