Legal briefs

Crime

The Illinois legislature recently passed a bill to change all uses of the term “offender” in the Illinois criminal code to the term “justice-impacted individual.” Criminals no longer commit crime in Illinois. Instead, they are simply “justice-impacted.” It’s as if they are innocently walking down the street and some justice falls on their head the way pianos do sometimes in old cartoons.

In opposition to the bill, State Senator Steve McClure said, “There seems to be some rush to take away all accountability for people who commit crimes. If a person is going to get on the right path, they have to know they did something wrong. This apologizing for the criminal, the person who chooses to commit crimes to the detriment of our victims, the people who don’t choose to be victims of crimes, is absolutely incredible.” There doesn’t seem to be a rush to take away accountability, Senator. There is a rush to take away accountability. It has been going on for some time. Changing the language is but one tactic in the effort.

Textualism and originalism

I have previously written here about the U.S. Supreme Court case Consumer Financial Protection Bureau v. Community Financial Bank. In the case, Community Financial Bank argued that the way the CFPB is funded is unconstitutional. The CFPB budget comes from fees levied on Federal Reserve member banks. The Fed collects the fees and disburses them to the CFPB, bypassing the normal Congressional appropriations process. Community Financial Bank claims this mechanism violates the Constitution’s Appropriations Clause, which says that, “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law.”

Last week, the Supreme Court found in favor of the CFPB. Justice Thomas wrote the 7-2 opinion upholding the novel funding mechanism on textualist and originalist grounds. Thomas found that, “Under the appropriations clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the Bureau’s funding meets these requirements.” Thomas also, for originalist underpinning, reviewed two centuries of Congressional Appropriations that were, he says, likewise broadly written. 

Justices Alito and Gorsuch dissented, in an unusual departure for them from textualism and originalism. Concerning the majority opinion they wrote, “That holding has the virtue of clarity, but such clarity comes at too high a price. There are times when it is our duty to say simply that a law that blatantly attempts to circumvent the Constitution goes too far.”

This Court gets accused of being purely political. A close observer of the decisions, however, will see that such criticism is unfounded. There are multiple examples, like this one, where the ideological approaches are scrambled leading to outcomes that do not fall along political lines.

Other

So, England has these things called Employment Tribunals. They are judicial bodies responsible for resolving workplace disputes. Sometimes they hear discrimination claims. Recently, an employment tribunal in London was called upon to decide whether it is racist to tell a Japanese person you like sushi.

In 2020, Nana Sato-Rossberg was a professor at the School of Oriental and African Studies in London. Her boss was Provost Claire Ozanne. Claire was Nana’s boss for eighteen months. They worked closely together and had many conversations covering many topics. One day, Claire remarked to Nana, who is Japanese, that she had recently enjoyed a sushi restaurant and recommended the restaurant to Nana. Obviously, Nana was irreparably wounded by this vile and racist remark. She made a discrimination claim to the University which was denied. She then approached the London Employment Tribunal, a body seemingly responsible for navigating the pettiest minutia of English work life. The tribunal found that Claire, “mentioning a sushi restaurant and her family’s love of sushi was not a detriment because a reasonable person would not consider themselves at a disadvantage when a manager, trying to be friendly and find common ground, was enthusiastic about food from the person’s country of origin. A reasonable person would not take offence at such complimentary and friendly words.” You think?

I’m glad the tribunal came to the right conclusion, here. I’m also glad that American judges don’t deal in such inconsequential disputes (yet). I’m not sure if Judex has any Japanese readers, but, if so, I love sushi. You guys nailed it on that one.          

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