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At an event at the National Constitution Center (which does not seem to have been recorded), Justice Kennedy offered these remarks about the state of our civic discourse, commenting on a recent cover of National Affairs Magazine.

Later, Kennedy called out a recent cover of Foreign Affairs that depicts the U.S. Capitol “crumbling” because of “the state of our public discourse.”

“The verdict on freedom is still out,” he declared. “Half the world is the jury and they are out. They are looking to you to see if freedom works.

“This country owes a duty to the Constitution, to itself and to the idea of freedom to conduct a decent, rational, respectful, probing civic discourse—and we don’t have it.”

Without any more context, it’s hard to figure out exactly what Justice Kennedy is saying (what else is new), but he seems to be suggesting that the Constitution  and freedom demands some sort of civic discourse in Congress, and this is something we are sorely lacking.

This harkens back to a post I wrote a few weeks ago, highlighting the diverging views of Justice Scalia–who loves gridlock–and RBG who doesn’t. AMK seems closer to RBG, and this is keeping with his decision to not join Justice Scalia’s dissenting pean to gridlock (which would have turned it into a majority opinion).

Longtime readers of this blog will know that I have a (not-so) shameful appreciation of all things Jersey Shore. Now, two of my passions, Jersey Shore and the Federal Courts have collided in the District of New Jersey. Michael “The Situation” Sorrentino has been indicted on charges of tax evasion!

The caption makes me so happy. A/K/A “The Situation”

This looks really bad for Sitch:

Mike “The Situation” Sorrentino and his brother, Marc, faced a federal judge Wednesday afternoon after they were indicted for failing to pay taxes on $8.9 million in income.

The tuxedo-clad duo looked nervous for their court appearance in Newark federal court on charges of conspiracy to defraud and filing false tax returns.

Both sides agreed to pretrial conditions for the defendants that would allow them to stay at their residences near the Jersey shore.

As the brothers walked out of the courtroom, a Post reporter asked how they would describe their situation.

Mike only smiled and raised his eyebrow.

When asked if he was guilty, he shot back, “No, I’m innocent. That’s why I pleaded not guilty.”

According to the indictment, Sorrentino and his brother submitted bogus IRS returns for his companies – Situation Nation, Situation Productions and MPS — from 2010 to 2012.

They allegedly hammered out contracts with booking agencies for paid appearances at clubs, bars and liquor stores, but the money only went to line their own pockets.

The booking fees would typically range from $1,500 to $48,000 for each appearance and was paid to them in cash, the documents state.

In 2010, the brothers made $184,000, $154,000 in 2011 and $31,000 in 2012, but they didn’t pay the government a dime in taxes, according to the indictment.

“The Situation” also blew off filing a 2012 tax return in 2011 after he took in $1.95 million the previous year.

It seems that Lois Lerner had Jersey reality stars on a BOLO (be on the lookout for) list.

The duo is being investigated by the same office that prosecuted Teresa and Joe Giudice of The Real Housewives of New Jersey.

Though, speaking of the IRS, this admonition from the U.S. Attorney is just a tad ironic.

US Attorney Paul Fishman blasted the duo, saying, “Michael and Marc Sorrentino filed false tax returns that incorrectly reported millions made from promotions and appearances. The law is absolutely clear: telling the truth to the IRS is not optional.”

But the IRS need not tell the truth.

Anyway, here are the key paragraphs from the indictment:

2. From in or about January 2010 through in or about November 2013, in Monmouth and Ocean Counties, in the District of New Jersey and elsewhere, defendants

MARC SORRENTINO a n d

MICHAEL SORRENTINO, a/k/a “The Situation,”

did knowingly and intentionally conspire and agree with each other and others to defraud the United States by impeding, impairing, obstructing, and defeating, through deceitful and dishonest means, the lawful functions of the IRS, a constituent agency of the United States Department of the Treasury, to ascertain, compute, assess, and collect federal income taxes .

Object of the Conspiracy
3. The object of the conspiracy was to impede, impair, obstruct, and defeat, through deceitful and dishonest means, the lawful functions of the IRS, a constituent agency of the United States Department of the Treasury , to ascertain, compute, assess, and collect federal income Manner and Means of the Conspiracy

4. It was part of the conspiracy that defendants MARC SORRENTINO and MICHAEL SORRENTINO earned approximately $8. 9 million in gross income on which they failed to pay all federal income taxes due and owing.

And he earned up to $48,000 for a booking fee:

8. Defendants MARC SORRENTINO and MICHAEL SORRENTINO entered into numerous contracts with booking agencies for the purpose of defendant MICHAEL SORRENTINO making personal appearances at various venues, including nightclubs, bars, and liquor stores, in exchange for a booking fee . The booking fee typically ranged from $1,500 to $48,000 per appearance. Generally, a substantial porti on of the booking fee would be paid in cash direct l y to defendants MARC SORRENTINO and/or MICHAEL SORRENTINO by the venue on the date of the appearance. Defendants MARC SORRENTINO and MICHAEL SORRENTINO deposited some of the aforementioned cash that they received into the bank accounts controlled by the defendants.

A grand jury was convened in the fall of 2013, and they altered records!

15. It was further part of the conspiracy that on or about November 13, 2013, in response to federal Grand Jury subpoenas dated October 9, 2013, MPS and SitNat produced QuickBooks software containing books and records for tax year 2012. However, after the Grand Jury subpoenas were served upon MPS and SitNat, but prior to MPS and SitNat producing the books and records, numerous journal entries in the QuickBooks books and records were altered. Specifically, on or about November 6, 2013, journal entries that had originally been entered as taxable payments to defendant MARC SORRENTINO were altered and reclassified as non-taxable payments to defendant MARC SORRENTINO.

 

 

The Economic Club of Southwestern Michigan decided to invite Justice Stevens to speak. So of course he found three cases from Michigan he supported, and told us why he is right. And, he praised Gerry Ford for appointing him to the Court, organizing the Carter Philips brief in Grutter, and pardoning Richard Nixon (not in that order).

First, Justice Stevens spoke about FORT GRATIOT SANITARY LANDFILL, INC., PETITIONER v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES ET AL. (1992), a case I had never heard of. In that case, Justice Stevens wrote the majority opinion for 7 members of the Court. CJ Rehnquist dissented, joined by Justice Blackmun. Why did he mention this case? Because in writing that decision he learned that a nearby airport where he learned to fly a plane became a garbage dump.

In 1992 the Supreme Court decided a case challenging the constitutionality of a provision in the solid waste disposal program in Saint Clair County, Michigan, that prohibited private landfill operators from accepting any solid waste that did not originate in the County. I was assigned the task of writing the Court’s majority opinion invalidating the county ordinance. Like much of my work at the Court, that task was a learning experience. As a matter of law, I learned that the business arrangements between out-of­ state generators of waste and the Michigan operator of a waste disposal site could be viewed either as “sales” of garbage or as “purchases” of transportation and disposal services, but in either case they had an interstate character. As a matter of fact, I learned that the operation of landfills was sufficiently profitable to motivate some businesses to abandon other uses of their property. And specifically, it was while I was working on that opinion that I learned that the Oselka Airport, in Three Oaks, Michigan, where I had learned to fly a single-engine Cessna 172, had become a garbage dump.

Second, he turns to Wygant v. Jackson Board of Education (1986). This case involved a policy where a Board of Education deviated from the normal tenure policy, and preserved the positions of recently-hired black teachers, and fired more senior white teachers. Justice Stevens dissented alone. Justice Marshall penned another dissent jointed by Justice Brennan.

Justice Stevens reveals a conversation he had with Justice Powell, who went on to author the plurality:

In 1985, the Supreme Court granted the white teachers’ petition for certiorari. During the week before the oral argument of the case, I had a meeting with my good friend Lewis Powell in his office to discuss another matter. As I was leaving, I made the observation that at long last during the following week we were going to hear an easy case involving an affirmative action issue. He agreed with my assessment of the difficulty of the case, but neither of us realized that we did not agree on how the case should be decided. Indeed, neither of us expected the case to produce so many opinions.

Stevens quotes from his opinion, which focuses on the benefits of minority teachers to education children, as a segue to Grutter and Gratz:

I believe we should first ask whether the Board’s action advances the public interest in educating children for the future.” I then explained why I believed that an integrated faculty would benefit the entire student body rather than merely providing role models for minority students.”

Third, we turn to Grutter. Stevens discusses the ever-popular brief by Carter Philips and Virginia Seitz on behalf of the generals, and suggests that it was Gerry Ford who pushed for this brief.

In that explanation she relied on a friend-of-the-court brief filed by two Washington lawyers, Carter Philips and Virginia Seitz, on behalf of high ranking retired officers and civilian leaders of the United States armed forces. After my retirement from the CourtI I wrote to Carter Philips asking if there was any truth in the rumor that Gerald Ford had played a role in the decision to file that brief. Taking pains to make sure that he did not breach any attorney-client privilege, Carter’s response acknowledged not only that Ford was the “but-for” cause of the brief”s preparation and filing l but also that President Ford had been the first person to suggest that former military officers as a group had a very important message to present to the Court.

The influence of Gerry Ford on the Supreme Court’s jurisprudence, it seems, continued long after his appointment of JPS.

The identity of the 29 leaders who joined the brief added impressive force to their argument. Fourteen of them – including men like Wesley Clark and Norman Schwarzkopf – had achieved 4 star rank. They were all thoroughly familiar with the dramatic differences between the pre-1948 segregated forces and the modern integrated military. President Ford, who also rendered heroic service during World War II, played the key role in selecting them.  …

Given the fact that Gerald Ford played a central role in the filing of the military brief, it is certainly reasonable to conclude that he shared the views that the Court adopted in that case.

Stevens then takes credit for the argument:

The authors of the brief did not make the rhetorical blunder of relying on a dissenting opinion to support their legal approach, but they effectively endorsed the views that I had unsuccessfully espoused in the Wygant case.

Stevens closes by praising President Ford for replacing Justice Douglas for appointing him, and pardoning Richard Nixon. Random.

I have always been especially proud of the fact that he selected me to fill the vacancy on the Court when Bill Douglas resigned and particularly admire his decision to pardon Richard Nixon even though he must have been aware of the fact that that decision might result in his defeat in the 1976 Presidential election.

Then he took questions, and had this to say about his colleagues:

When asked which of the justices he served with he admired the most, he answered that he respected all of the justices, even when they disagreed.

“They are honest, dedicated people who, unfortunately, can make profoundly erroneous decisions,” Stevens said.

Keep it classy.

Let me focus on one statement in his speech that is factually false:

“After my retirement from the Court…”

Maybe he is confused, and thinks he retired. But he didn’t. He has retained Senior Associate Justice Status. He keeps chambers, and a clerk at the Court! He is still an Article III Judge. He hasn’t retired. But he should!

Can someone, anyone, give me a single reason why Justice Stevens has not retired for real? He does not sit on any Circuit Courts (unlike Justices Souter and O’Connor). All he does is give speeches critical of decisions he doesn’t agree with, and praises decisions he wrote or joined. He has every right to be a pundit, but I can’t understand why he continues to serve as a Senior Associate Justice, with chambers and a clerk at the Court. This isn’t an honorific title–although based on how the statute is drafted, there is no affirmative obligation to hear cases if the Chief Justice has no objection.

Also, while I’m on a rant, may I offer deep praise for Justice Souter. Since he has retired, he has comported himself like a mensch. Barely a peep from him, other than opinions he has written on the First Circuit. This is the proper route for an ex-Justice to take.

 

 

 

In the glossy pages of the august legal publication that is Elle Magazine (see also the lead story titled “Why These Non-Singles Are Ruining Tinder“), the Notorious RBG continues her bizarre public relations campaign. In the interview, she talks about abortion, Hobby Lobby, a “national policy to promote birth,” and the childless Justices Kagan and Sotomayor. It is a very, very odd interview.

When asked about what the symbol of the United States should be, she take a potshot at Justice Kennedy:

Q: You’ve said that the symbol of the U.S. shouldn’t be an eagle but a pendulum. It seems to me that the pendulum has swung in a very conservative direction for women’s rights, but not for gay rights. Why?

A: To be frank, it’s one person who made the difference: Justice [Anthony] Kennedy. He was a member of the triumvirate used to [reaffirm] Roe v. Wade in the Casey case, but since then, his decisions have been on upholding restrictions on access to abortion.

I don’t even know what to make of this. Maybe the response was edited, but this seems to go far beyond the scope of the question. Were it not for Justice Kennedy, along with Justice’s O’Connor and Souter, Roe would have been overturned. And which “cases” (plural) is she talking about? The only two cases at issue are Stenberg v. Carhart and Gonzales v. Carhart. I should stress that by writing Gonzales v. Carhart, Kennedy left Casey largely in tact. This feeds into an false meme that apparently Justice Kennedy is very bad on abortion, even though there are only two cases post-Casey that are even on point.

Next, Notorious was asked about how laws can be passed to protect women’s rights:

Q: Do you think the pendulum might swing back in a more progressive direction on women’s rights in your lifetime?

A: I think it will, when we have a more functioning Congress.

One of the most misguided elements of the “gridlock” meme is that Congress is acting in some kind of partisan vacuum, as if the people who vote them into office all agree and get along. In case you didn’t realize it, the American populace is more polarized than ever before. The gridlocked Congress is but a mere manifestation of this disagreeability. Cass Sunstein recently wrote that “partyism”–people not liking those of the opposite party–trumps racism. You can’t fix Congress when people don’t agree.

As for which decision will be most significant in 50 years (when someone will be pleading with an elderly Justice Kagan to step down, no doubt), Notorious trains her sights on Hobby Lobby:

Q: Fifty years from now, which decisions in your tenure do you think will be the most significant?

A: Well, I think 50 years from now, people will not be able to understand Hobby Lobby.

This is a really tough question to answer. We tend to be very bad predictors of what will be important in the future. When I wrote my book, not 18 months ago, I tried to anticipate what would be the most salient Obamacare issues going forward. For the most part, I didn’t get it right. 50 years is a bridge too far for me to predict.

Next, a question is asked about how Hobby Lobby mostly impacts poor women. The question is bland, but the phrasing of RBG’s answer is really curious:

When people realize that poor women are being disproportionately affected, that’s when everyone will wake up? That seems very optimistic to me.

Yes, I think so…. It makes no sense as a national policy to promote birth only among poor people.

“National policy to promote birth.” I’ve never heard it phrased like that. I mean, that wasn’t the issue in Hobby Lobby. The issue was whether employers with certain religious convictions could be forced to pay for contraceptives. Indirectly, not having birth control may lead to birth, but this wasn’t about a “national policy to promote birth.” But, this no doubt is how RBG saw the case, and her opinion fits in with the meme.

With respect to retirement, RBG continues to exhibit her hubris–she says, who can you confirm that’s better than me!

I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office.

Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can.

She gave a similar message to Joan Biskupic.

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

I commented at the time:

That is some hubris. Oh I’m sure I could find hundreds of law professors who would rather see someone half her age on the Court, even someone more moderate. What RBG maybe doesn’t realize is the non-starstruck lawyers care less about who sits on the Court than who is casting votes for years to come. I wonder if she would have deigned to say that in 2009 when Judge Sotomayor and Solicitor General Elena Kagan were cozying up the short list.

In the past she explained that she wants to stick around until she can no longer do the job. But now, we see the ulterior motive–she doesn’t think anyone else can do the job better than her. And all of the praise of her no doubt heightens this. I still think she should decide when she retires, but now we know why she’s sticking around.

Consider a counterfactual. RBG changes her mind, and steps down in June of 2016. Assume the GOP controls the Senate. Do the Republicans even let the President have a vote on a nominee? Or does the GOP simply vote down anyone–no matter how moderate (think of a Merrick Garland)? Does the Court go a full term with 8 Justices (boy that would mess up FantasySCOTUS!)? If they do, and a Democrat wins the next election, do they then swing for the fences once their party controls the Senate?

Next, RBG replies to criticism (by whom I don’t know) about Kagan and Sotomayor who do not have families:

How do you have a family and a family life and a work life? So some people are writing about Justice Sotomayor and Justice Kagan and saying to rise to the top of the tree in the legal profession, you have to forgo a family. Where are these people? What about Justice O’Connor? She had three sons. I have two children. Pat Wald was with me on the DC Circuit and had five children.

This doesn’t reflect well on either Kagan or Sotomayor. O”Connor did it. RBG did it. Kagan and Sotomayor. Whatever.

Update: Ed Whelan points out that the editorial staff at Elle noted that the Republicans eliminated the filibuster:

[The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court.

Is this what RBG said or implied? Or are the brackets simply not even in the ballpark of reality?

Following a lecture I gave last week at George Mason, a student showed me a copy of my book he purchased from Amazon, and much to my surprise, it had my autograph on it! I was really confused, because I had never autographed copies for Amazon. Then it hit me. At one of my events, I autographed a number of books that the book store could sell. It seems those books did not sell, and the book store sent it back to the publisher, with my John Hancock. No one, apparently, noticed, and Amazon sold the book–with my scribble on the author page–as “new.” I imagine these things do happen.