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Thursday, June 26, 2003

To repeat, Lawrence deals with asses! And, Mindy wins everything!

Those affirmative action cases are big, but you don't think a Supreme Court holding for a right of privacy in the home is a major whammy? This case could do wonders for some Fourth Amendment questions as well!

And, some might say that sex and race are tied in the socially divisive issues arena (depending, of course on where one is located). For instance, Kimberly Crenshaw has written some fairly compelling literature on sexuality and race interplay. I don't know?

I would be willing to admit that the affirmative action case is important - can we call a tie here?

Not so fast on that hershey highway!

I think the affirmative action cases were bigger than Lawrence. I am measuring "bigness" by impact on the greatest number of people. Also, I think race edges out sexuality on the list of socially divisive issues.

If we measure "bigness" by dollars, however, I suppose State Farm was the biggest ruling of the term.


I believe Mindy wins.

1) This case overturned a previous Supreme Court decision;

2) This case involved asses; and

3) This case turns what was once a lonely hershey highway into a huge, hot-buttered threegie interstate (so long as the driving stays well within the privacy of a home).

Actually, I believe Mindy wins because I think she wins everything!


I just had a fight with my colleagues. I think I won. The premise was:

Resolved: Lawrence was the biggest case of the term.


"The state cannot demean their existence or control their destiny by making their private sexual conduct a crime..." J. Kennedy, Lawrence.

"The court has largely signed on to the so-called homosexual agenda..." J. Scalia, dissenting in Lawrence.

Hooray for this case and hooray for a 6-3.

Let the riots begin!

Tuesday, June 24, 2003
Judge John S. Martin, Jr.

I call Judge Martin "my district judge." I call him that not only because I had the privilege of interning with him during my third year of law school. I also call him that because, through my friendship with one of his daughters, I knew him for several years before I even thought about becoming a lawyer. Without his guidance, I would never have been able to negotiate my way through the twists and turns of applying for the "right" clerkships, getting on the "right" law review, and working for the "right" law firm. Therefore, I owe him my entire career, as he jokingly reminds me.

When I interned with Judge Martin, he wanted me to be sure to spend Fridays in chambers. Fridays were the designated days for sentencing hearings. The former U.S. Attorney for the Southern District of New York, Judge Martin believed that sentencing was one of the most, if not the most, important part of his job. Watching him preside over those hearings has given the phrase "judicial discretion" a palpable meaning. The Judge is fair, thoughtful, and thorough -- the epitome of what I would want if I were either the prosecutor or the defendant in a federal criminal case.

If he really retires (I just can't stand the thought yet), then we've lost a great judge. I hope that Senators Kennedy, Leahy, Feingold, Lautenberg and Representative Conyers are aware of the Judge's piece and can use it to persuade Congress to pass the JUDGES Act, which is aimed at repealing the portions of the PROTECT Act that further constrain judicial discretion in sentencing.

I'm talking about the Judge as if he's dead, which of course he is not. I'm talking in terms of loss because that's what I'm feeling, I guess. A tremendous sense of loss for the system -- prosecutors and defendants alike.

Goodbye, Judge Martin

I just read this op-ed in the NY Times by Judge John S. Martin.

It seems he is leaving the bench. Resigning. Hanging up the robe. Why? Because Congress is BAD. This is terrible.

Monday, June 23, 2003
Library Porn

I'm upset about the library porn filter decision. I mean, I love porn, not to mention porn filters. I installed mine at home as soon as an effective one became available. Unless you have a porn filter to immediately filter out the non-porn, how are you to find any porn on the internet at all? Otherwise you're just deluged with those pop-up ads for informative news articles, helpful household hints, and low-fat recipes. How many times have I searched the Internet in vain for just a smidgen of porn?!? Not with my porn filter. No more Salon. No more Slate. No more How Appealing. Now, its just porn, porn, porn. But, I have to say.... installing porn filters in libraries? That seems an odd choice. What if a child wants to do a book report on My Friend Flicka or research sea anemones or something?

Oh. Sorry. I just read the decision. I get it now.

All right. Now I'm really mad. This subjects librarians to an added layer of harassment. Isn't it already bad enough that they're subjected to the confining stereotype of the prim old lady who crochets cats and has a dozen Afghan hounds? Or maybe crochets afghans and has a dozen cats? Whatever. They're prim. They're old. They're librarians. And now they're forever a part of your library porn experience.

How, I ask you, will young men without home computers access now to download GirlFriend 4.0, their own girlfriend management software? Sometimes this Supreme Court just burns me up.


George Bush, Sr. is co-starring in the tour of a LIVE STAGE MUSICAL SHOW!

Maybe this is some hint at how Lawrence is going to be decided?

Robert gets 100%. Being even half right about a Supreme Court opinion should count for 100% on this blog!

Now then, as a former public library employee (from high school through college), I was trying to think what my reaction would be if someone asked me to unlock the filtering software so they could look at something that was being filtered. If it involved getting off my butt, the answer would be "It is broken". If it was for someone attractive, "Of course - can I watch?". If for someone disgusting, "No. Absolutely not - you're unruly and must leave this place at once."

I don't trust librarians - I spent my formative years around them and I gotta tell you - they like little more than making fun of patrons and flipping through Publishers Weekly searching for the new Jackie Collins novel in large print type, for the "older" patrons.

This is odd law, Supreme Court! Shame on you! The fear of mockery will prevent taxpayers from looking at blocked websites! This builds a stupid America. PORN FOR ALL!

2 for 4?

I think (hope) that you accurately predicted Nike and Lawrence. At this rate, we may know by the end of the day!

Could I have been more wrong?

Doh! I'm happy about the Court's affirmative action opinions, but, damn, I got the Library Porn case exactly wrong. I thought I had that one nailed. Oh well, I guess I'll just have to ask the librarians to remove the filters everytime I log-on at a public library (which has never happened yet, but who knows). I suppose it will be just as embarrassing as buying condoms or something. Please let me be right about Lawrence, Please!!

0 for 4 so far

Kind of an auspicious start, Robert! I thought your predicion re: Grutter was dead on. But, I just read that the Court has upheld the "critical mass" system used by the U. of Michigan by a vote of 5-4. Then again, they found the undergraduate admission policy in which "underrepresented minorites" were awared 20 points without any individualized assessment to be UNconstitutional. So, I guess we now know (kinda) where the line is drawn with respect to admission policies.

I'm going to try to read the 95 page Grutter opinion and the 68-page Gratz opinion. I'll get back to y'all in a few days!

But for now - I have this important question. Robert got it about half right in his U. Michigan prediction. Should we count that as an accurate or inaccurate prediction? I leave it to the Vegas-wise Academy members to figure that one out.

Sunday, June 22, 2003
Supreme Court Predictions

In the grand tradition of The Academy, I have set out to predict the results of the most contentious of the still pending 10 Supreme Court cases, which are likely to be decided this week. I have no particular expertise for offering these predictions, I am doing it only to see whether I am right. The fact that I am employed by one of the nation's largest law firms should probably count against me. You have been warned. So, here is what is going to happen this week:

In Grutter v. Bollinger and Gratz v. Bollinger, since I am a gambling man, I make the following bold prediction. The Court will overrule Bakke's central premise (if you can call it that) that diversity is a compelling state interest, thereby effectively declaring affirmative action unconstitutional. The Court will be split 5-4, and we may get a completely fractured court with many opinions and no clear result just like in '78. However, affirmative action will not be dead. There will be language in the opinions suggesting that, although diversity cannot be considered a compelling state interest to overcome strict scrutiny review of the policies challenged in these cases, there are other "options" available that would effectively maintain the "proper" racial balance in colleges and graduate schools. Race, per se, cannot be used because of the 14th Amendment's clear position on the subject, but that will not stop institutions from using other proxies that mirror race consideration, i.e., geographic location of the applicant, location of the high school, household income, and consideration of "essays" describing how the applicant has overcome "adversity." The result: status quo, but with the added benefit that the affected institutions now have a safe harbor against litigation.

In Lawrence v. Texas, I have to go with the word on the street. The Texas gay-only sodomy statute will be ruled unconstitutional (good-riddance) on equal protection grounds. The line-up will be 6-3 or 7-2 with Scalia and Thomas definitely in the dissent. Although the Court should declare a right of privacy for virtually anything that goes on between consenting adults in their own homes, it certainly won't go that far (maybe in a few years when people really start getting sick of all this government intrusion into our private lives). I guess we should be lobbying for a privacy constitutional amendment to legitimize the admittedly shaky constitutional grounds for the Court's privacy decisions of the past 4 decades. The Chief Justice will write the opinion, if he's in the majority. Here is one unusual prediction: I believe that although Scalia will dissent, his opinion will be suspiciously void of the obvious rancor and animus that permeated throughout his last opinions on homosexual issues. He will dissent only on the grounds that sexual orientation is not a suspect classification and, just as is almost always the case, the government wins on rational basis, i.e., there is some rational basis for discriminating against homosexual sodomy and not heterosexual sodomy for whatever reason he (and the government) can invent. Absent will be the historical damnation of everything gay. Scalia: welcome to the 21st century, now stay out of our bedrooms.

In United States v. American Library Assn., Inc., the case pitting the moral majority against common sense and the First Amendment, the Court will rule that the Federal Government cannot force libraries to install Internet filters on their computers. Anyone who has ever come in contact with such filters knows that they are extremely overbroad AND underinclusive, i.e., largely useless. And even if they worked, the Court will not allow such an obvious infringement of the First Amendment. Libraries have staff that can and do walk around and monitor what people are doing on the computers -- they listen to patron's complaints. Libraries will and still will be able to police their own halls with discretion. The Court may even be unanimous on this one. If I am wrong, and I hope I am not, God save our country from whatever Ashcroft (and Congress, in this case) can get away with next. First Amendment? What First Amendment?

In Nike, Inc. v. Kasky, the other First Amendment case, in keeping with the theme, the Court will find that Nike's ads are (and were) protected speech -- lawsuit dismissed. I don't think the Court will abandon the commercial speech doctrine, instead, I believe the Court will recognize the speech at issue in this case for what it is -- political speech protected by the core of the First Amendment. This is not the classic False Advertising case, and this lawsuit should suffer a quick death.

That's it. I don't particularly care about the remaining cases, so if I missed yours, go find some other predictions. I look forward to many amusing comments, before and after these cases are handed down. No matter what, this promises to be a fun week for Court watchers!

P.S. They're all sticking it out. No retirements. I think the Court got the message that retiring now would actually support the conspiracy theorists' claims that the Court installed the current president. Any sane Justice would wait until Bush is legitimately re-elected before allowing the installed to appoint the successors to the installers.

Blog Sweet Blog

Oh, Bloggie. How have I missed ye? I know I have been away for quite some time. I have no excuses. Well, I do have excuses. But rather than dwell on the past, let's move on to the future, shall we? By detailing what I have been doing .... in the recent past.

My federal employment is coming to a close, so I'm frantically trying to tie up loose ends and working like a dog in the process. But I started off this Farewell Tour with a last trip to the glorious city of San Francisco, where I ate too much, got my hair cut, and bought shoes.

I then tripped away for a weekend rendezvous in glorious Las Vegas with fellow Academy member Robert and my dashing young colleague Ben. We met up there with another institutional colleague who had just a week or so before been discharged from service with one of the most legendary workaholics amongst us. (And, may I say, one of the most charming... as long as you limit your contact to social engagements.) It had been so long since this young recently-expelled clerk had seen the outdoors in the middle of the day, he looked like one of those fish that live in caves that have evolved into blind albino freak-creatures. But, after a nice four days or so lolling by the pool at the Palms, he appeared to have some of his (I'm told) original bounce back. Welcome back to the living, Young Man, say I!

Have I spoken to this blog about how much I love Las Vegas? I couldn't possibly love Las Vegas more. But, I have decided that my official limit is four days. Four days is just about perfect for someone with my income and attention span. I was there from Thursday afternoon through Monday morning. Joy, rapture.

I think the highlight had to be my pilgrimage to Cheetah's, the strip club featured in one of my favorite films -- Showgirls. I felt more of a thrill witnessing in person Nomi's familiar dancing pole and the red vinyl couches in the VIP room where she gave Zach a Crystal-funded lapdance than I did when I visited Graceland. But, I also learned much about myself. Namely, I am not cut out for visiting strip clubs with my man in tow. Strippers leapt repeatedly into Robert's lap. Almost without thinking, I shooed them away like flies. "Get away from him! What is the matter with you?!?" The nerve! After the first couple of shoo's... I realized I had taken Robert to Ben & Jerry's only to be appalled when they offered him ice cream. Duh. I'm an idiot.

The low point? Perhaps it was a rather patronizing speech I endured which was delivered by a leggy blonde wearing only a g-string and a cowboy hat, "You know, it takes an open minded woman to bring her man here. But it takes a truly open minded woman to have fun with her man here." Oh. I see. Excuse me, Tex. Let me wrestle with that zen koan for a few, okay? But in the meantime GET THE HELL OUT OF MY BOYFRIEND'S LAP.

Eventually we found a tiny stripper dressed like a schoolgirl named Abby. She talked a lot about watching the Game Show network and she asked us if Mike Tyson had a mechanical hand. She was insane, but I liked her. So I let her sit on Robert to keep the other strippers at bay.

So, there's your slapping match, Mark.... hope you enjoyed it! Robert and I will be keeping our strip-club jaunts to a minimum from here on out. Or, at least, we'll go in groups of others of our own genders.

More later, Kiddos.... Boy did I miss y'all!