Philip Rosmarin

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

It seems that grievously ill-considered opinions are becoming the stock-in-trade of the United States Supreme Court.

Part of the problem may be that some of the justices seem to fancy themselves more historians than Constitutional experts. In two opinions issued last week, one overruling Roe and one striking down a New York law requiring a person to show “proper cause” to carry a concealed gun, “history” and “tradition” are cited two hundred sixty times.

The gun law though, I think, was rightly decided, if perhaps erroneously reasoned. If we have a right to keep and bear arms for self-defense, we should not have to prove, as that law required, a special need beyond self-defense.

But invalidating the law because its proponents could not identify an American tradition justifying it was just some kind of smokescreen hooey, likely just to set up future gun law targets.

It was a tradition in this country to keep slaves and count them as three-fifths of a person (only for the benefit of white men who could vote; elsewise, they weren’t counted as persons at all).

It was a tradition in this country to consider women as political zeroes: they couldn’t vote, couldn’t own property, couldn’t control their own money or bodies (the American tradition justifying the Court’s overruling of Roe?); couldn’t sign a simple legal document. They weren’t even mentioned in the Constitution.

We have shown in those cases we needn’t — shouldn’t — lean on historic traditions; we can give them up. We could also give up our tradition of being the slaughterhouse of the world, and refuse anymore to allow an individual to bear military arms intended for offense and not the defense to which we are entitled.

Though perhaps in a time when a president of the United States seeks to overthrow his own duly elected government, those who by historic tradition are considered members of “the left” ought not be hasty to give up too many of their guns. The security of our free State may depend on it.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Time to time, folks write to remind me there are actual fun things to share with other folks out there coping with the trials and tribs of criminal justice and human rights.

Some of them like to do it in song.

Jim Barakat, a public defender in Brockton, Massachusetts, wrote to ask if I’d ever heard the song “Drunk & Disorderly,” by an Australian punk band called the Chats. I hadn’t, but the name sounded familiar, so I listened to it, and you can too, here.

Hard on the musical heels of that one, a divorce lawyer who also practices criminal law — Neville Bedford, of Providence, Rhode Island — wondered whether I kept a copy of Modern Drunkard magazine in my reception room, and if I would consider using an attached catchy tune by his favorite local band for my theme song.

I assured him that, while I had no reception room, I carried a miniaturized Modern Drunkard snug against my equally wee copy of the United States Constitution in the vest pocket of the three-piece suit I’m sure I’ll get around to wearing into court one day.

As for the song: I hadn’t heard it either. I had heard Neville likes to lock opposing counsel in a small room and play it over and over till his clients get what they want. It’s by The Horse-Eyed Men, it’s called “SFIS(A),” and if you want to know what those letters stand for you’ll have to hear it yourself, because I won’t spell it out in case someone of tender sensibilities is reading this with you.

It’s actually rather lovely, and I did consider it.

So, here’s my new theme song.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

While there are two sitting justices on the United States Supreme Court who shouldn’t be sitting on any court anywhere in the world, neither is the worst to ever perch there.

The worst, according to Bernard Schwartz — not the Bernard Schwartz I once interviewed in a trailer on a Palm Springs film set, who had the nerve to call himself Tony Curtis — is a guy you never heard of (I went to law school, and I never heard of him): Alfred Moore.

This other Bernie says Moore is worst of the worst of the Ten Worst Supreme Court Justices, in “A Book of Legal Lists.” Amazon says the book is “by the late Bernard Schwartz,” though I’m pretty sure he wasn’t dead when he wrote it.

Schwartz, quoting another dead author, says Alfred Moore “must surely be one of the most unnoticed men ever to sit on the Supreme Court.” Me, I think that was just a cheap shot: the Justice was four-foot-five so you could never really tell if he was sitting or standing.

It’s true Moore only wrote one opinion — Bas v. Tingy, 4 U.S. 37 (1800) — in his five years on the court, that it rambled on for nearly an entire page, and that it depended on the legal reasoning of what else do you call a French privateer who captures your boat except an enemy. Or something like that.

Schwartz dings Moore, not only for the one opinion, but also for managing to be absent from every significant case decided during his tenure.

But I think Bernie was a little hard on Al. Despite his stature, Moore may have been busy working on his basketball skills. Because when he left the high court, he went back home and helped establish the University of North Carolina.

Without him, we’d never have had the Tar Heels. That took a man of some forward-thinking character.

Not like some of those characters we have on there now.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

In the spirit of Supreme Court Justice Samuel Alito’s leaked draft opinion, I’m going to leak a (probably) final draft opinion of my own:

I believe that life begins at conception. When the sperm fertilizes the egg, that’s when we get going. Sometimes we don’t make it very far. Sometimes we make the news by blowing out one hundred candles.

Some of us never make it out of the womb, for any number of reasons; abortion is one. That’s the space Justice Alito wants to control.

That’s not his space. That’s not my space. That’s the space every woman owns. That’s her space.

Justice Alito’s opinion, my opinion, your opinion, have no fair and just legal business in her space until the human being growing inside her has reached viability such that they could grow as well outside her, into our space.

Yes, Justice Alito, the Constitution makes no mention of abortion. The Constitution also makes no mention of the women we are going to kill or otherwise make suffer with our opinions.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I don’t remember when I first heard the expression, the only good Indian is a dead Indian. I know I was very young. It’s a rotten thing to utter into a young ear — a national shame among a multitude of national shames committed against the original caretakers of the land we call home.

The extent of another of those shames was revealed today as a direct result of Joe Biden’s appointment of the first Native American to be Secretary of the Interior, the first Native American to be appointed to any cabinet post. Barely three months after her Senate confirmation, Deb Haaland ordered an investigation into what essentially were decades of government kidnappings of hundreds of thousands of Native American children into federal boarding schools whose aim was figuratively and ofttimes literally to beat the Indian out of them. Haaland’s own grandparents were among them.

The forced removals came after the United States Congress passed the Civilization Fund Act of 1819 to instruct Indian children about the “habits and arts of civilization.” We wanted to civilize the savages. Make them more like white men and women.

Many of them were civilized into their graves.

This first Federal Indian Boarding School Initiative Investigative Report reveals that the schools accounted for more than five hundred American Indian, Alaska Native, and Native Hawaiian child deaths. Beyond the deaths, children were flogged, whipped, slapped, and cuffed; starved; used as forced labor; punished for “Indian behavior.” Their Indian names were changed, their Indian hair cut.

The Department of the Interior “expects the number of recorded deaths to increase.” And why might they expect that? Their initial analysis was of nineteen federal Indian boarding schools.

There were four hundred eight schools.

Their final analysis, the department predicts, will show tens of thousands died in the federal Indian boarding schools.

Tens of thousands of good little Indians.