Natty Shafer Law

Utah lawyer for criminal and immigration cases


Bootleg Video Renews Debate about Cameras in Supreme Court

On ongoing debate among Supreme Court observers concerns whether or not the Supreme Court should allow cameras into the Court. “Debate” might not be the right word since no one seems to be making a strong case for the opposing argument. The consensus among observers is that the Court should allow cameras, and the Court seems not to care. It just quietly continues to forbid cameras in the courtroom.

Last month a youtube video emerged (shown below) which appears the be the first video of the Court in session. This has rekindled the old argument. Professor Erwin Chemerinsky is the latest to take up the mantle. His argument essentially is that open government proceedings are a necessary part of a functioning democracy.

I cannot disagree with Chemerinsky, but this will likely decrease the public’s estimation of the Court. For the most part, the way the Court operates is a mystery. Most decisions are ignored, but occasionally there is an important case that catches the public’s interest. At those times people seem to care more about the outcome of the case and not necessarily about the reasons the Court made its decision. Idealistic notions about the Court will end once everyone sees the behavior of individual justices. It is only a matter of time until a justice is lampooned on late night television for an impolitic jab made during oral arguments.

That is not to say that I am necessarily against cameras in the courtroom. Perhaps the public could use a little healthy distrust of the Supreme Court.

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Same-sex Marriage in Utah

At least for the time being, Utah now has same-sex marriage. Federal Judge Robert Shelby ruled that Utah’s ban on same-sex marriage is unconstitutional. He wrote, “Applying the law as it is required to do, the court holds that Utah’s prohibition on same sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.”

Judge Shelby did not put a stay on his order, which means it is effective immediately. You can bet that the state of Utah will appeal to the United States Court of Appeals for the Tenth Circuit, but same-sex marriages are being performed today. That complicates any appeal and will make it interesting to see how this case develops. The logic of Judge Shelby’s opinion could apply equally to every state. The Tenth Circuit is generally considered a conservative appeals court; Judge Shelby was appointed to the federal court by President Obama.

On a personal note, I am pleased that there is a little more love in this world. Congratulations to all the newlyweds and best wishes moving forward.


The Date of Independence Day

Lee's Resolution, which declared, "these United Colonies are... free and independent States...."

Lee’s Resolution, which declared, “these United Colonies are… free and independent States….”
(click to enlarge)

Tomorrow is Independence Day, and Utah, like every other state, will participate. However, the fourth day of July, in terms of American Independence, is not particularly important. The Continental Congress declared independence on July 2, 1776 when it finally voted on and passed the Lee Resolution. Contemporary newspapers immediately reported the news, making the delivery of a written declaration a mere formality, which did not even happen until November 1776.

Indeed, John Adams thought July 2 was the day that would be celebrated. In a letter dated “Philadelphia July 3d. 1776,” Adams wrote to his wife, Abigail:

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more. 

To his credit, Adams more or less foretold how we would celebrate Independence Day, but he selected the wrong date. So why do we celebrate July 4? The date of July 4 is the day the draft of the Declaration of Independence was approved. Thomas Jefferson was such an elegant and moving writer that the Declaration of Independence, instead of being a mere legal formality, turned out to be one of the most important political documents ever. When the date July 4, 1776 was affixed to the top and copies circulated throughout the colonies, July 4 became the date the public remembered. In 1870, when Congress first declared several days as national holidays, it selected July 4 as the day for Independence Day.

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Curious Development in the Obamacare Case

Excuse me for a moment while I have a nerdgasm, but this stuff does not happen often. Yesterday, Jan Crawford of CBS News got a major scoop detailing some of the inner-workings of the Supreme Court during the Obamacare case. Apparently, Chief Justice Roberts originally sided with the four other conservative justices to declare the individual mandate unconstitutional, but he changed his mind. The conservative justices then spent a month trying to get him to change his mind back.

The Supreme Court usually doesn’t leak this kind of story. The Court eschews most publicity—cameras aren’t even allowed in the courtroom—and details about the Courts’ deliberations usually come out years or decades later, if they come out at all. For this story to come out just three days after the decision means that a justice or a clerk wanted this story released immediately. It could have been anyone, but it most likely that someone angry leaked the story. It is unlikely that a clerk would risk their career without having permission to talk. One or more of the conservative justices, directly or indirectly, likely leaked this story.

If true, it explains several oddities about the case. For one, it would explain why none of the conservative justices were willing to join any portion of Roberts’ opinion, even the parts they agreed with, and it explains why the dissenters refused to reference his opinion in their unsigned joint opinion. But most of all is explains the sudden appearance around Memorial Day of op-ed pieces accusing the “liberal media” of trying to bully Roberts into changing his vote. (Linda Greenhouse, legal blogger for The New York Times, noticed this too.) It caught my attention at the time, because the op-ed pieces specifically singled out Roberts as the target of an alleged liberal campaign, instead of Justice Kennedy, who is generally more likely to vote with the liberals on the Court.


Chief Justice Roberts Rehabilitates My Faith in the Judiciary

I won’t say my faith is completely restored, but Chief Justice Roberts went a long way towards rehabilitation my faith in the Supreme Court. (Justice Scalia, on the other hand, is irredeemably partisan and unprincipled.) With the Chief Justice’s opinion on the Obamacare case, we now know that there are at least a couple conservatives on the Court who make decisions based on principles, instead of what is best for the Republican party.

Back in April, I worried that the Court would make a decision based on bad principles. I don’t entirely agree with the Court’s decision, but I have no doubt that Chief Justice Roberts arrived there through a principled, logical thought process.

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Everyone Should Care About My Sacred Cows

It’s been over a week since the Supreme Court heard oral arguments about Obamacare. The news coverage on the networks and cable news focused on the result of what the Court will do, with decidedly less coverage going to the logic of how the Court will get there. I understand why most people are results oriented, but for lawyers like me, that’s frustrating because I believe deeply that the Court should rule based on principles. Unfortunately, it’s an all-too-common occurrence for an academic to lecture the general public for not caring enough about their sacred cow.

That’s why the warning of some Democrats that the Court striking down Obamacare would undermine the legitimacy of the Court strikes me as particularly hollow. Rightly or wrongly, polls continue to show that the majority of people disapprove of the Affordable Care Act, and particularly the individual mandate. If/when the Court strikes down the mandate or the whole act, the majority of people will focus on the result rather than the Court’s rationale.

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How Useful Is Daylight Saving Time?

The Los Angeles Times has an interesting story suggesting that Daylight Saving Time may not be all that useful in saving energy. The accompanying video, shown below, says that there are some conflicting studies about whether Daylight Saving saves energy or whether it actually costs us energy. In either case, the difference is less than 1%. If we save energy, the cost benefit is probably around $4 a year, per person. Meanwhile, it’s undeniable that Spring Forward takes a toll on us; in the week following the switch, work productivity drops while car accidents and suicide rates go up.

I don’t have a preference as to whether the United States switches to Standard or Saving Time, but the change should be permanent. The biannual disruption to our lives is not worth a negligible energy savings—if any energy is saved at all.

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The Official Name of Presidents’ Day

Or is it President’s Day or maybe Presidents Day? As Hendrik Hertzberg explained a few years ago, it’s none of the above:

Ever since 1968, when, in one of the last gasps of Great Society reformism, holidays were rejiggered to create more three-day weekends, federal law has decreed the third Monday in February to be Washington’s Birthday….Just to add to the Presidential confusion, Washington’s Birthday is not Washington’s birthday. George Washington was born either on February 11, 1731 (according to the old-style Julian calendar, still in use at the time), or on February 22, 1732 (according to the Gregorian calendar, adopted in 1752 throughout the British Empire). Under no circumstances, therefore, can Washington’s birthday fall on Washington’s Birthday, a.k.a. Presidents Day, which, being the third Monday of the month, can occur only between the 15th and the 21st. Lincoln’s birthday, February 12th, doesn’t make it through the Presidents Day window, either.

So I hope you enjoyed Washington’s Birthday (Observed).