Monday, December 05, 2022

T'ain't Funny, McGee!

I know Alito's "joke" upset people (and rightly so), but I think what preceded it is far more revealing:

In likely the most salient and important hypothetical example, Justice Ketanji Brown Jackson described in great detail a photographer wanting to re-create scenes from 1940's Christmases with Santa Clauses and children, in sepia tones, and making them historically accurate.

She asked the attorney representing the right-wing Christian website designer who does not want to have to provide her product to same-sex couples, if under her legal theory the hypothetical photographer would have to create photos of a white Santa with Black children.

Kristen Waggoner, the Alliance Defending Freedom's attorney arguing in favor of anti-LGBTQ discrimination, was forced to admit that the photographer would be able to say they would not take photos of Black children with a white Santa.

Later, Justice Samuel Alito, one of the Court's most far-right jurists, decided to use Justice Jackson's hypothetical analogy to make a point, and he did so by mockingly joking about Black children wearing KKK costumes.

"Justice Jackson's example of that, the Santa in the mall who doesn't want his picture taken with Black children," Justice Alito began, getting the basics of the analogy incorrect.

"So if there's a Black Santa at the other end of the mall, and he doesn't want to have his picture taken with a child who is dressed up in a Ku Klux Klan outfit, now does that Black Santa have to do that?"

I honestly think Alito is annoyed that Justice Jackson (a black woman, too!) is obviously sharper and smarter than he is.  He wanted his time in the spotlight after Dobbs, and she's stealing it.  I say this because I see the signs of it, but also because Alito could do no better than mangle Jackson's hypothetical into something closer to Alito's preferred outcome, but rather far from the facts of the case. As my Torts professor drummed into us:  "Change the facts, change the outcome."

Not that the facts of cases is a paramount concern of Alito's.  He's much more concerned with the "right" outcome.
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1 comment:

  1. rustypickup7:09 AM

    The reporting on this case has been particularly poor. I listened to a chunk of the oral argument and even I was surprised that this case is being argued on a strictly freedom of speech grounds, not freedom of religion. Therefore the decision will be far more reaching. Again, we have a case with a poor factual background that the conservative majority will ignore. The plaintiff argued that proving an identical website to a gay couple that they would provide to a male/female couple would be compelled speech. The conservatives on the court agree. The court liberals pointed out that a holding along these lines would permit all kinds of broad sexual, racial, religious and other forms of discrimination. As usual with just the audio I can't discern each judge, but one of the liberal judges pointed out that a mall Santa site could say they wanted to have a period Santa display and refuse to take pictures of black children with Santa. It's easy to see how such a holding (particularly in the hands of reactionary lower court judges) would have the result of freedom to discriminate. It's hard to see how much public access legislation could stand up to such an assault. This case will be more far reaching than it initially appears because of the basis on freedom of speech and a this bizarre extension of compelled speech.

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