Forbid Them Not, pp. 436-446<\/strong><\/a><\/p>\nAt this point, I\u2019m not sure how many people are still following this review series. The entire story sort of went up in smoke and became extremely repetitive, at the same time. We\u2019re extremely close to the end now, and I\u2019m open to suggestions for what I should do next.<\/p>\n
For those maybe not quite<\/em> following, the children\u2019s rights activist\/U.S. ambassador who pushed for the ratification of the U.N. Convention on the Rights of the Child went rogue after deciding that the U.N. Committee on the Rights of the Child cared only about power, not about children, and found herself dodging bullets as the committee chair sought to assassinate her (weirdly, she didn\u2019t tell the press about this). This same committee chair had a Supreme Court Justice assassinated, and no one even noticed.<\/p>\nSo now we come to the hearing before the U.S. Supreme Court, which is composed of only eight sitting justices (four liberal, three conservative, and one swing vote). This might have been interesting except that the only issue actually in play here is standing\u2014whether two nonprofit agencies in the U.S. can sue on behalf of a child\u2019s rights under the U.N. Committee on the Rights of the Child.<\/p>\n
But hey, we still get stuff like this:<\/p>\n
Every seat in the historic marble chamber was filled. \u2026 Cooper, dressed in a new black suit that Laura\u2019s father had bought him or the occasion, was joined by Scott Gordon and Marian Nellis.<\/p><\/blockquote>\n
Is your fianc\u00e9\u2019s father buying you a suit some sort of tradition I missed? Or are we just hammering again on how poor Cooper is, despite being a lawyer? Perhaps he shouldn\u2019t have bought a new car using the blowout promised by Randall (his anonymous funder), before having a more secure cash flow?<\/p>\n
I don\u2019t even know anymore.<\/p>\n
Suskins speaks first.<\/p>\n
\u201cThe question before the Court today is whether the Supremacy Clause of the Constitution will be given the full dignity that its language demands. Treaties ratified by the Constitution are to be a part of the supreme law of the land,\u201d he began.<\/p><\/blockquote>\n
Everything about this framing is wrong. This is not how this case would be argued. Unfortunately, this is now this whole chapter is written.<\/p>\n
Well, that and things like\u00a0this:<\/em><\/p>\nHis hand wanted to flip his hair out of his eyes, but VanLandingham had gone to the two other name partners in the firm and gotten them to force Suskins to use some hairspray.<\/p><\/blockquote>\n
What.\u00a0No she did not.\u00a0<\/em><\/p>\nHow do you force<\/em> someone to wear hairspray? Wait\u2014I just realized I don\u2019t actually want to know.<\/p>\nNext, we get this whole bit, starting with a question from one of the justices:<\/p>\n
\u201cHow can any component of your case survive unless we reverse Yoder?\u201d<\/p>\n
\u201cThere are three components of our case, and each will survive if we should prevail even if\u00a0Yoder\u00a0<\/em>were retained as the prevailing law.<\/p><\/blockquote>\nThis book does not sound like it was written to be interesting to laypeople.<\/p>\n
First, nothing in\u00a0Yoder\u00a0<\/em>speaks to a parents\u2019 ability to beat their child. And this Court has never upheld parental so-called spanking\u2014\u201d<\/p>\n\u201cCouncil,\u201d Justice Kurlowich interrupted, \u201cyou say \u2018s0-called spanking.\u2019 Did you ever get a spanking when you were a child?\u201d<\/p><\/blockquote>\n
I\u2019m sorry, why is this relevant?<\/p>\n
\u201cYes, Your Honor, I did. But those were different times.\u201d<\/p><\/blockquote>\n
The correct answer is: \u201cYes, Your Honor, I was spanked as a child. Over the last few decades, however, science has made clear that spanking causes children harm. Just as our nation once recognized that women should have the vote and that Jim Crow laws were unjust, it is time for us as a nation to adjust our views on the discipline of children. This understanding was at the heart of the Senate\u2019s decision to ratify the U.N. Convention on the Rights of the Child.\u201d But no, we don\u2019t get any of that.<\/p>\n
Suskins is horrible at persuasion. .<\/p>\n
\u201cPerhaps they were different times, but I am wondering if your family spoke a different language. When your father spanked you, did he call it a \u2018spanking\u2019?\u201d<\/p>\n
\u201cYes, he did, Your Honor. But I fail to see the point,\u201d Suskins replied with a furrowed brow.<\/p>\n
\u201cThe point is, Mr. Suskins, that you are trying to persuade us to your position by verbal tricks. Spanking is either constitutionally protected or it is not. Using the term \u2018so-called spanking\u2019 adds nothing to the strength of your argument, and in fact, your confession that your own parents spanked you highlights the long-standing nature of this parental tradition, which has been protected in law for more than four hundred years of Anglo-American jurisprudence.\u201d<\/p><\/blockquote>\n
What in the blazes is this<\/em>. Suskins would never have said \u201cso-called spanking\u201d to begin with. He would have said \u201ccorporal punishment\u201d throughout. Beyond that, I thought it was common knowledge that different people and different communities use different terms to refer to corporal punishment. In African American communities, spanking is often referred to as giving \u201cwhooping\u201d, but that\u2019s not the only area different terms are used. Even Michael Pearl\u00a0<\/em>doesn\u2019t always use the term \u201cspanking.\u201d<\/p>\nFrom Michael Pearl\u2019s book:<\/p>\n
We have progressed to the place where a discussion of the use of the rod is in order. Let\u2019s talk about spankings\u2013sometimes called \u201cwhippings.\u201d<\/p><\/blockquote>\n
And indeed, Michael does use the term \u201cwhipping\u201d in other areas of his book, as a synonym (one can assume) for spanking. \u201cSpanking\u201d is not some sort of universally correct and recognized term for corporal punishment. Farris likely prefers the term \u201cspanking\u201d because to him it feels sanitized\u2014removed from terms like \u201cwhipping.\u201d Fine. But Suskins should be using a term like \u201ccorporal punishment\u201d or \u201cphysical discipline,\u201d not<\/em> \u201cso-called spanking,\u201d and no justice should be insisting that he say \u201cspanking.\u201d<\/p>\nThis whole book is just ridiculously sloppy.<\/p>\n
Next, Suskins says this:<\/p>\n
\u201c[W]e contend that the Constitution is a living document, and if long experience shows that child discipline practices become inextricably intertwined with child abuse and neglect, it is within the province of the United States Senate, by treaty, to ban abusive practices.\u201d<\/p><\/blockquote>\n
That is also not how he would be arguing this. \u201c[I]f long experience shows that child discipline practices become inextricably intertwined with child abuse and neglect\u201d\u2014what does that even mean? What<\/em> child discipline practices? Presumably Farris means for Suskins to argue that corporal punishment has become \u201cintertwined\u201d with child abuse and that\u2019s why it needs to be banned.<\/p>\nFirst, this isn\u2019t the core point Suskins would make, the core point he would make is that no spanking is healthy for a child. Second, to the extent that this is a point made by children\u2019s rictus activists\u2014and it is\u2014it needs to be explained in more detail. The argument, when not filtered through Farris\u2019 mouth, is that as long as any form of corporal punishment is allowed, it will serve as a shield for abuse\u2014abusive parents can claim they were only \u201cspanking\u201d their child, abused children may think that every child is beaten like they are because their friends also mention being \u201cspanked\u201d (without knowing that what their friends experience is light years from the abuse they experience), and so forth.<\/p>\n
Instead, all we get is a truncated suggestion at a maybe-argument. For being such an elevated lawyer, Suskins is doing a horrible job. Anyway, moving on.\u00a0There is more repetition. Lots\u00a0<\/em>more repetition.<\/p>\nThe only thing particularly interesting that Farris puts in Suskins\u2019 mouth is a reference to\u00a0Prince v.\u00a0Massachusetts,\u00a0<\/i>in which the Supreme Court barred Jehovah\u2019s Witness children, but not their parents, from soliciting funds while passing out literature. Suskins argues that it is within the rights laid out in the Constitution to bar parents from teaching certain religion doctrines to their children, provided adults themselves are not barred from holding those beliefs. That is an actual relevant point.<\/p>\n
And then there\u2019s this:<\/p>\n
\u201cCounsel,\u201d Justice McNeil interjected, \u201cisn\u2019t it a fact that the vast majority of religious groups who have filed amicus briefs in this matter supported your position?\u201d<\/p><\/blockquote>\n
This is just bizarre. I cannot imagine a situation in which the \u201cvast majority\u201d of religious groups sign on with regulating what children may be taught in Sunday School. Even the ACLU would be all over this, submitting an amicus brief on behalf of the parents. Farris has no idea what people on the liberal end of the religious spectrum (or progressives in general) actually believe.<\/p>\n
We also get lots of sentences like this:<\/p>\n
Suskins sparred effectively with the conservatives on the Court and skillfully employed the friendly questions from the liberals to advance his argument for the remainder of his thirty minutes.<\/p><\/blockquote>\n
Finally, it\u2019s Cooper\u2019s turn. Once again, there is\u00a0so much\u00a0<\/em>repetition.<\/p>\nThe problem is that there are three court hearings, and in each case Farris chooses to cover them in full, outlining their entire oral arguments. But neither side changes what they are arguing. The result is that there is complete repetition of the exact same legal arguments each time. That makes for boring reading.<\/p>\n
The only new thing here is this argument:<\/p>\n
\u201cThird, and this would be the ultimate disposition we desire, [for the Court] to rule that the original intent of the framers of the Constitution forbids the use of international treaties to govern America\u2019s domestic\u2019s policy. This use of the treaty power effectively trumps the principle of self-government. If unelected officials in Geneva are afforded the ability to control America\u2019s domestic policy, constitutional government has been bargained away.\u201d<\/p><\/blockquote>\n
Even here, it\u2019s not that Farris has never said these things before. It\u2019s just that here, he\u2019s actually asking the Supreme Court to rule on this, because as the Supreme Court, they can.<\/p>\n
Several justices note that the Court has never ruled anything close to this; Farris argues that this is a unique circumstance: \u201cOur government has never before given away this much control over our internal affairs.\u201d There\u2019s lots more back and forth. What about NAFTA? Doesn\u2019t that speak to domestic things as well, indirectly\u2014doesn\u2019t it give national sovereignty away too? Oh, but those are legislation, not treaties.<\/p>\n
And so on and so forth.<\/p>\n
\u201cAn argument worthy of the Senate, Counsel. But you are across the street in the Supreme Court of the United States.\u201d<\/p><\/blockquote>\n
I feel like we\u2019ve heard this line before, Oh wait,\u00a0we have.\u00a0<\/em>This was stated in at least one\u2014if not both<\/em>\u2014of the past two court hearings.\u00a0Cool.\u00a0<\/em><\/p>\nCooper is adamant:<\/p>\n
\u201cThis treaty doesn\u2019t just violate one part of the Constitution; it violates the entire structure of the Constitution by allowing ten people in Geneva to decide that all the votes of all the voters in the United States do not matter, whether the ballots are cast for state or federal office holders.\u201d<\/p><\/blockquote>\n
Cooper is also wrong. Because Farris is wrong.<\/p>\n
The U.N. Committee on the Rights of the Child does not<\/em> make decisions for the countries that have signed the treaty. It makes\u00a0recommendations.\u00a0<\/em>Countries party to the treaty can choose whether and how to implement those recommendations. None of this is how any of this works.<\/p>\nAnd that\u2019s the end of oral arguments. That very afternoon, the justices come together to vote on the case.<\/p>\n
\u201cAny discussion before we vote?\u201d the chief justice asked.<\/p>\n
\u201cSuskins was his normal self, expect did anyone notice he didn\u2019t flip his hair at all today? What was up with that? Hurter asked.<\/p>\n
\u201cI have to say that you had a feisty young man on your side of the case,\u201d VonDuyke said with a grin.<\/p><\/blockquote>\n
This \u2026\u00a0what.\u00a0<\/em><\/p>\nNo. Just no.<\/p>\n
So then they immediately go around the circle, and come up with a 4-4 split vote. Each justice offers a couple sentence justifying their position (well, most do; some don\u2019t), but there is no discussion at all. No one tries to convince anyone else. No one weighs or considers their decision. \u00a0The result is an affirmation of lower court\u2019s decision. This means that the case is thrown out on standing\u2014but could easily be brought again by a government agency, such as the National Commission on Children led by Nora Stoddard.<\/p>\n
But let\u2019s dwell for a moment on how odd it is that the justices went back to their chambers the moment the oral arguments finished and immediately took a vote on how to rule on the case. I did a bit of googling just now, and it appears that there is some variation\u2014some cases take longer for the justices to decide than others\u2014these conversations don\u2019t typically occur the day of, and they typically involve arguments and attempts to persuade fellow justices, and, well, a bit more time.\u00a0<\/em><\/p>\nIf I were in the room, that feels like it would be the thing to question. Why the rush to vote now,<\/em> today? Why can\u2019t we have some time to try to persuade our fellows, and some back and forth, as is typical?<\/p>\nThis is not, however, the critique the liberal justices raise. Instead, they raise a different critique. A bizarre critique. Justice McNeil addresses his question to Chief Justice Thomson, and this back and forth ensues:<\/p>\n
\u201cCan\u2019t we just wait for Congressman Farenholt to be confirmed and then reschedule oral argument?\u201d McNeil asked.<\/p>\n
\u201cNo, Justice McNeil. We will not. We are an evenly decided court, and the decision of the Supreme Court of Virginia will be affirmed without an opinion of the Court.\u201d<\/p><\/blockquote>\n
Is this even a thing\u2014throwing out oral arguments after the fact and re-hearing the case? This suggestion is bizarre. It was perhaps worth asking, before the oral arguments, whether it made sense to have the case in the docket when it was\u2014actually, I take that back. The Supreme Court doesn\u2019t just stop\u00a0<\/em>hearing cases when it\u2019s not a justice. Even before the oral arguments, that would have been a silly question.<\/p>\nThis, though, is just\u00a0ridiculous.\u00a0<\/em>And perhaps that\u2019s how Farris sees liberals: as so ridiculous and unprofessional that they wouldn\u2019t think twice about making a suggestion like this.<\/p>\nJustice McNeil makes one last attempt to stall:<\/p>\n
\u201cIt will take me at least a month to prepare my dissent, and that will take me until Farenholt is confirmed. Then we\u2019ll have his potential vote and we will have to do it again. So what\u2019s the difference?\u201d<\/p><\/blockquote>\n
Again,\u00a0that does not make sense.\u00a0<\/em>It always takes time to prepare decisions and dissents, and there\u2019s a process of drafts and editing\u2014there will be many cases where a case is heard when the court is down one justice, and the decision is announced after a new justice is seated. That is simply how it works\u2014and how else could it? Deciding cases and writing opinions takes time; Supreme Court decisions are frequently not announced until months after they are heard. This delay between oral arguments and the announcement is so large that most of the Supreme Court\u2019s decisions aren\u2019t released until the end of the term in June.<\/p>\nChief Justice Thomson doesn\u2019t go over any of this, though. He doesn\u2019t point out that this is just how it<\/em> works: sometimes you have only eight justices, and you don\u2019t pause all proceedings until you have a ninth.\u00a0<\/em>Instead, Chief Justice Tomson treats the timing of the decision like some sort of power game:<\/p>\n\u201cThe difference is that I am the chief justice of the United States, and I control the docket of the Court unless there are five votes to overturn me. You have forty-eight hours to prepare your dissent. I will prepare the per curium decision that simply announces that we affirm without opinion. Nothing concerning this case will remain on our docket when Farenholt is confirmed. See you tomorrow at 9:30. Good day.\u201d<\/p><\/blockquote>\n
I don\u2019t think this is how it works.<\/p>\n
None of this is how this works.<\/p>\n
I have a <\/b>Patreon<\/b><\/a>! Please support my writing!\u00a0<\/span><\/b><\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":"The problem is that there are three court hearings, and in each case Farris chooses to cover them in full, outlining their entire oral arguments. But neither side changes what they are arguing. The result is that there is complete repetition of the exact same legal arguments each time. That makes for boring reading. But don’t worry! I’ll only include the few actually interesting bits in my post! <\/p>\n
Click through to read more!<\/p>\n","protected":false},"author":845,"featured_media":40882,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[719],"class_list":["post-40867","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","tag-forbid-them-not"],"yoast_head":"\n
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