Wednesday, February 17, 2021

Tabares v. City of Huntington Beach (9th Cir. - Feb. 17, 2021)

I'll offer two somewhat tangential comments about this opinion from the Ninth Circuit today.

First, personally, I always blanch a bit whenever I read things that (in my view) grossly exaggerate the alleged unprecedentedly awesome nature of American history and/or leaders.  Was the founding of an American democracy great?  Yep.  Did our elders create a novel nation?  Definitely.  Was it a material advancement for humankind in general?  Sure.

But let's not deify the thing.  The people who did it were human.  Flawed.  As we all are.  Our founders were often racist and sexist in totally unacceptable ways.  Indeed, let's not forget that several held other human beings in chattel slavery.  Not good.

These people -- and the nation they created -- were not perfect.  At all.  And, yeah, as for our founding, we beat the British, and that was a huge win.  But only in the same way North Vietnam subsequently beat us.  (Plus we had the huge advantage of the French on our side; no small help.)  In a fair one-on-one fight on neutral soil, we'd have been crushed.  (And, indeed, sort of got our butts kicked a quarter-century or so later by that selfsame enemy in the War of 1812.)

All of that's a frame of reference for my reaction to the second paragraph of today's opinion, which says:

"The Constitution is a “singular and solemn . . . experiment” created by one of the finest group of statesmen ever assembled. The Federalist No. 40 (James Madison). It was born of a hard-fought struggle that against all odds wrested a fledgling nation from oppression by the then-greatest empire on earth."

Okay, yeah, I get it.  I know that we love our country, and wax poetic about American exceptionalism on occasion.  I just want to remind everyone that the actual reality is much more gray.  The same Constitution that -- awesomely -- created democratic institutions simultaneously ensured continued enslavement of a huge portion of the country as well as continued disenfranchisement of the majority of the population thereof (e.g., women).

It was a product of its time.  With all the wonder and all the flaws.

But, okay, Judge Nelson wants to point out only the good stuff, and thinks that our particular founders were amongst "the finest group of statesmen ever assembled."  That's one take on it.  At the same time, just don't forget that we're talking about an all-white, all-male group in which half of 'em held others in permanent bondage.  There's probably an even more venerable lot somewhere in history.  But, okay, if you want to go the U.S.A.-chanting route, that's your right; just know that, to me, the actual history seems a fair piece more complicated.  Which -- like our awesomeness -- is worth a reminder from time to time as well.

My second reaction was to one of the footnotes that Judge Nelson drops.  A reference that -- like the second paragraph -- was both sort of random (i.e., orthogonal to the actual case) and that I thought reflected Judge Nelson's particular take on the world.

The losing party's brief in the case called a particular argument by the other side a "Hail Mary," and since Judge Nelson ultimately agreed with that particular argument, obviously, he didn't think it was a "Hail Mary" at all.  Judge Nelson went ahead and explained in the footnote was a "Hail Mary" was in this context, quoting a First Circuit opinion that said that "A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success.”

Now, if it were you and me writing the opinion, and you wanted to give an example of an actual Hail Mary pass, what example would you give?  The Doug Flutie pass for Boston College?   The Aaron Rodgers pass (the longest Hail Mary in NFL history)?   The Stanford Band play (not technically a Hail Mary, but the same idea)?  The original Hail Mary -- the 1975 Roger Staubach pass?  There are surely lots of possible choices.  Lots of super-famous catches.

Which one does Judge Nelson choose?  The only one that he mentions is "the 41-yard touchdown pass as time expired in BYU’s 1980 'Miracle Bowl' victory."

Which is perhaps not surprisingly the most memorable such pass for a double BYU graduate like Judge Nelson.