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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, December 19, 2014

Fuman v. Georgia and the Death Penalty

Aikens v. California is alphabetically a quick get at Oyez.com and led me to look over Furman v. Georgia again as well. Anthony Amsterdam had multiple arguments so used Aikens to largely set-up his general arguments. In the end, the California Supreme Court declared the death penalty unconstitutional on state grounds (unclear why the USSC heard the case almost simultaneously -- the opponents argued in front of the state court less than two months before).  A Wild Justice (The Brethren being perhaps the first one) provides an examination of the history there. 

The USSC held the death penalty as applied in the cases granted unconstitutional 5-4, but only two believed it completely so.  This set up Gregg v. Georgia a few years later in which the death penalty was upheld 7-2 (Stevens replacing Douglas), but mandatory death penalty still in effect not (Powell/White switching places). Multiple justices on both sides thought the death penalty would be done with the first time, but Justice White did not -- he rested on it being applied too little to be rational. Something like thirty-five states raced to try to figure out a way to execute and the Supreme Court tried instead to "tinker with death." Still, aside from a few states, White's original concerns weren't really answered.

Justice Stewart also rested on the death penalty not being applied in a rational way, deciding later the new laws provided better safeguards. He also probably simply accepted that the country still strongly expressed a desire to have a death penalty.  Justice Marshall, though ultimately noting it wouldn't enough anyway given the death penalty was still disproportionate, appealed to "the opinion of an informed citizenry," the sort of "reasonable observer" that pops up in First Amendment cases, particularly during Christmas display season.  He has at least something of a point there, partially since we have a strong ability to assure ourselves certain things are true.  Burger and Powell do provide pushback.

The dissents are pretty strong and well written. Burger/Powell provide a broad based reply, Blackmun provides a more emotional one given he personally was strongly against it and Rehnquist rested on judicial restraint and trusting the people (this not being some affirmative action program or something). Not that majority opinions aren't strong either (White and Stewart had more of an essay approach, the others more in depth -- the whole affair would amount to around two hundred pages). The whole affair is rather intriguing reading.  The one thing I would call out the dissent on in particular is any suggestion the 8A did not deal with disproportionate punishments.  Justice Powell himself held otherwise a few years later.  

I believe the death penalty is both unconstitutional and bad policy -- digs of some, people like myself do not always think that is the same thing. Bad policy can be inspired by things that either violate the Constitution or at least its general principles. On that front, I mean that the document influences various things that might be a matter of policy -- let's say the nuances of criminal justice -- without compelling some court to strike down the "wrong" one. When Furman et. al. was decided in 1972, for instance, I'm unsure it was correct for the USSC to strike down the death penalty nation-wide. If fully honest, I think Blackmun was right at the time. There were corrections and tinkering around the edges (e.g., holding it unconstitutional as applied to rape or perhaps mandatory sentences*).  

On principle, I would have shared the views of Brennan and Marshall.  But, like same sex marriage in the 1980s, it is different when trying to use the USSC to declare something unconstitutional. Constitutional law there develops over time and requires some development of society in general. It also is appropriate to work up. The basics of speech protection came before the hard cases.  There was a lot of things to deal with in the death penalty context before a full frontal attack. And, twenty years later, there was enough water under the bridge for Blackmun's saying "enough" to have gain serious traction. Stevens' similar move in Baze v. Rees was a concurrence to an opinion upholding the death sentence.

I'm not a member of the Supreme Court, however, and never shall be. From my vantage point, and at this point in history, I think the death penalty is unconstitutional writ large for the various reasons cited in the Furman majority opinions et. al.  Meanwhile, it is proper for the Supreme Court to attack the punishment from various angles, including openness of the lethal injection process and things like the mental stability of those executed. Finally, this effort should not interfere with the many many more who are being mistreated in some fashion in our quite flawed criminal justice system.  This includes Obama's -- for whatever reason -- paltry use of the pardon power. 

See also, Mark Osler's Jesus on Death Row.


* Justice Douglas in his separate opinion basically rested on equality, overall arguing that "cruel and unusual" punishments in particular as applied here was a ban on arbitrary application.  He left open the question of mandatory punishments, which basically weren't done with few exceptions, noting however that they too might be shown to be applied unevenly. Powell argued the evidence for this was not present and in effect the nature of things will result in some people more likely to commit crimes. 

Brennan/Marshall argued that the death penalty was not needed for deterrent or other purposes. A passing note as to killing in prison etc. argued that even there that the death penalty was not necessary, but the matter was not dealt with in depth. Simply put, if the penalty is so problematic, we will have to deal with the extreme cases. And, anyway, it will not only be applied to them. 

Thursday, December 18, 2014

"Justice Department Will Now Support Transgender Discrimination Claims In Litigation"

Now, Holder wrote, “the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”
As noted, an outlier prisoner case should not let us forget the many other interests of transsexuals. GLBTQ indeed.

"Religious" as a line drawing device

Andrew Koppelman provides a response to a criticism of use of "religion" as an accommodations classification (see, e.g., her last comment here -- one that is rather weak and uses "impose" to cover way too much ground to be helpful*). The discussion raises some interesting points, such as this:
Religion is an adequate proxy for multiple goods, some of which are not ones that can directly be aimed at. “Religion” denotes salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and much else besides. Each of those goods is, at least, more likely to be salient in religious than in nonreligious contexts. The fact that there is so much contestation among religions as to which of these goods is most salient is itself a reason for the state to remain vague about this question. Because “religion”—or, at least, that subset of it that is likely to come before American courts—captures multiple goods, any substitute that aims at any one of them will be underinclusive.
The Supreme Court is loathe to define "religion" much though a few times there is a nod to there being some limits.  Sometimes, I have seen people be upset that "religion" get special attention, but so it does -- see the First Amendment. Other things can get special protection too, putting aside related things like "conscience" that is particularly "religious-like" though can be defended in other ways as well.  Still, "religion" is special, both for (free exercise) and against (establishment) in our system.  The extended quote above helps to show the word has a range of connotations, which range beyond "fantasy sky god" or the like. 

It's tricky and debating lines is fine.  Helps, however, if we don't use the level of naivety that comes off at the end of his commentary:
The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. This will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.
If filling out forms or corporations allowing employees to choose their plans akin to how they choose to use their salary in general will be "a heavy burden" (it really isn't; his assumption there is far from clear), a consistent application of this rule will not merely result in "administrative headaches." This crap from a liberal who supports the mandate is tiresome.  For profit corporations with employees of various faiths are not in the same position as non-profits often likely to be smaller and/or more fellow travelers. The two situations are different. Stop promoting ignorance.  Over and over again the other side does. Et tu, Brutus? 
So what could have been a disaster for women’s equality suddenly became a victory. Justice Alito noted in his majority opinion that the burden of the required accommodation on the women involved “would be precisely zero.” They will get the same free contraception that the challenged rule would have provided. Religious objections such as Hobby Lobby’s will be accommodated if and only if that continues to be the case.
The fact Alito says something doesn't make it true.  Even without taking into consideration some other Administration might do things differently, at best resulting in drawn out litigation or the like to put a stop to unwarranted burdens, the accommodation makes things harder. Personal example. I didn't know for some time that the health insurance provider I chose (nearby office / constantly saw ads for it) was Catholic based and does not cover various things. It has no direct concern for me but doubt I'm alone not looking at that too closely.  If I suddenly needed coverage, there would be lag time as I obtained another option -- if I had the wherewithal to do that.  The mandate in place in part is an incentive. 
Under those circumstances, religious accommodation, even of their peculiar beliefs, does not seem too much to ask.
So, even where there is a for profit corporation given special privileges in part in return of equal access and being separate from the personal individuals involved, there is no "substantial burden" (various people spelled out that test would not be met here) and because we are supposed to trust Alito (or rest on Kennedy, who is supportive on birth control, but who know about something else ... of course, nearly every case will rely on at most appellate judges of a mixed variety) that "precisely zero" burden is at issue here.  Koppelman wouldn't believe him there in various cases if police conduct was at stake, I gather.  Yes, the opinion could have been worse.  Making it out as a big win the other way is silly. I have covered this ground a lot here. But, ignorance is wickedly persistent.

A more minor disagreement. The article earlier on discussed a case where the Supreme Court decided 6-3 that it did not violate "free exercise" to open a public road in a way that interfered with the exercise of the religion of certain Native Americans.  The article notes:
Nonetheless, the Court, evidently persuaded that exemptions had to be based on conscience, held that there was no constitutionally cognizable burden, because the logging road had “no tendency to coerce individuals into acting contrary to their religious beliefs.” This result was quickly reversed by Congress, which evidently was not in the grip of this particular theory.
I think this discussion is somewhat misleading since the exemption involved the internal control of government property. In that context, every hindering of religious exercise (which surely doesn't just include conscience and/or belief in God but also things like rituals) is not the test when determining if the "prohibiting" of "free exercise" was violated. Meanwhile, O'Connor (who wrote the opinion) relied on compelling state interest, not merely that "coercion" was involved, when concurring in the Smith (peyote) case.  She realized more was involved.

Anyway, this is a tricky area, with a high volume of "wait a minute" fodder.


* How much does many a religion "impose" on others exactly? What does that word mean in this context? The reply answered a question regarding an employer imposing on an employee by denying certain types of insurance coverage. My favored line drawing here in part arises out of this being in a "public" context where restrictions are more appropriate.  But, if all religions "impose," what are we talking about?  Impose on believers who agree to join? On unwanted observers to even things like wearing religious garb? Pretty unhelpful word choice.

The Founding Foodies: How Washington, Jefferson, and Franklin Revolutionized American Cuisine

Got this as part of a food related gift box for someone and found it somewhat wanting. First, John Smith is more appropriately in the subtitle -- Franklin is barely covered. Jefferson is treated a bit too politely (big friend of slaves, was he?) too. OTOH, it was a decent book on a lower expectations level, giving some sense of early American dining. This a tad harsh. But, the book surely didn't show how even Washington or Jefferson "revolutionized" much here.

Wednesday, December 17, 2014

Border News

Over the dissents of three Justices, the Supreme Court today rejected Arizona’s request to allow it to deny driver’s licenses to young undocumented immigrants who have been permitted by Obama administration policy to remain in the United States. No prize if you guess the three dissenters. Meanwhile, certain Republicans whining about the sane Cuban policy move. Sen. Marco "I'm a little boy" Rubio especially sounded lame.

It Isn't All Bad ...

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

With this, moves to reestablish relations with Cuba and Cuomo to ban hydraulic fracturing, I take we only need five more Hanukkah miracles. Can Mets getting a new SS be one?

"The Eclectic Reader"

My result in this test. Seems fitting.

Tuesday, December 16, 2014

"Conflicted Emotions About Kosilek Case"

Petitioner is a transsexual who is currently serving a 20-year sentence in an all male federal prison for credit card fraud. Although a biological male, petitioner has undergone treatment for silicone breast implants and unsuccessful surgery to have his testicles removed. Despite his overtly feminine characteristics, and his previous segregation at a different federal prison because of safety concerns, see [lower court opinion], prison officials at the United States Penitentiary in Terre Haute, Indiana, housed him in the general population of that maximum security prison. Less than two weeks later, petitioner was brutally beaten and raped by another inmate in petitioner's cell.
This was from a passionate concurring opinion by Justice Blackmun in a prison rights case (with a mixed result as this article marking its twenty years anniversary notes). It shows that sometimes transsexual rights arise in the prison context though someone there for credit card fraud is more sympathetic than a murderer.  As the article notes, ironically Justice Souter in the more restrictive majority opinion avoided pronouns while Blackmun used masculine ones ("him").  The use of the feminine by the defense was still notable though these days insisting to use "him" there would be mostly left to conservative voices.

Michelle Kosilek's long and convoluted journey continued today when the First Circuit* decided en banc (showing its size, the ruling was 3-2) to overturn a ruling that allowed her to have sex reassignment surgery (SRS).  The Reagan appointed district judge had determined that given the facts of her case and the decisions of the institution's own doctors, that was compelled by the 8A. The details are pretty blatant -- including a suicide attempt -- and your garden variety transsexual might not have such a compelling argument. One dissent noted this -- we trust district judges with fact-finding and the decision was reasonable. Such would be my feeling. The other dissent was more passionate, ending with a comparison to Korematsu and Plessy

Taking it as quite possible that the nature of the condition here motivated the majority opinion, thus it is a black mark for transsexuals generally, I think comparing it the nation-wide segregation or the interment of a hundred thousand or so people is a bit much all the same.  The case is pure tabloid fodder -- paying thousands of dollars for a sex change for a convicted murderer. But, there is a minimum standard of care required when you imprison people.  The doctors themselves deemed this required. It wasn't just a prisoner saying "he" wanted to look pretty or something. Tabloid reaction alone shouldn't be grounds to overturn expert findings.  Seems arbitrary and discriminatory.

I have read a bit about transsexualism and won't claim to be some sort of expert on the matter. The flexibility of gender is pretty clear to me. The next step where you actually have a sex change operation is the big one. But, secondary sexual characteristics are not the only reason, I'd think, that I am a male.  It does ultimately seem to arise in the brain.  The matter is somewhat fascinating to me -- the complexity of the human animal and all.  Anyway, the medical experts here should be trusted.  Sorry, Sen. Warren. IOW, the details have to be taken as they come. Chelsea Manning in some fashion might have  different issues.  Case by case. 

Hard cases are said to make bad law. We should not let cases like this color too much the fight for transsexual rights generally.  Sex change operations are the most extreme issues here in an area with a range of concerns, including the right to voluntarily transition, live as a gender that does not match your apparent sex and so forth. Same sex marriage is one area that arises here -- for a subset, transsexuals are involved, including those states that legally deem chromosomes to be the test.  In some states where SSM is not recognized, this has the somewhat crazy result of a de facto SSM being allowed, since one party is legally not the sex most people think. Life does have its absurdities.


* The 1CA basically covers New England and its small size probably explains why Puerto Rico was tossed its way, even though that area to me seems more appropriately combined with the Second Circuit (NY etc.).  It at times appears to be somewhat conservative, so it is not totally apparent to me if it would in fact overturn the anti-SSM Puerto Rico district ruling.

Monday, December 15, 2014

Scalia/Kagan Watch (Ginsburg Jealous?)

And Also: In the world of football, local teams beat subpar opponents (the NYG showed already this is not a gimme -- see Jaguars game ... this time, they still had to win from behind, but sealed it in the Second Half)  though it took something for the Jets to win. An unsportsmanlike extended the drive that clinched it though the Titans were given one second more at the end of the game and nearly hook and lateraled it home.

Given this hurt the Jets in the "picks" race, not only some Titan fans were upset about this result.  Only works against Buffalo, perhaps, who today upset the Packers.  Ex-Jets QB lost last night to hurt the Eagles playoff chances. If New Orleans loses to the Bears tonight, the Panthers (using a back-up now) will actually lead the NFC South.  On their second (third?) back-up, especially given how Seattle is playing, Arizona is hanging on to first place with their fingernails.  Did clinch a playoff spot yesterday. 
Though Scalia generally sides with conservatives on the court and Kagan generally sides with liberals, the two have built a friendship around hunting. Kagan has said that during her confirmation process, she received many questions about hunting and asked Scalia to teach her. Kagan said during a talk at Princeton University in November that she and Scalia would come to Mississippi in December, in part, to hunt ducks.
Yes.  On the live blog over at SCOTUSBlog, we were informed that they were present for today's session/opinion announcements, but it was noted that hunting wasn't the reason.  This report suggests that even if they aren't hunting today specifically, it still is part of their trip.  I'm more a favor of Scalia and Ginsburg's love of opera than a means for Kagan to chuckle at public events over Scalia/Kagan's love of shooting defenseless animals. Not a fan of arming the ducks, mind you, though it might be more sporting. Or, perhaps, only really intelligent ones -- trying to hunt Bugs Bunny shows in that respect that there is at least a real sporting chance. 

Scalia wrote the dissent (which Kagan et. al. joined) in the jurisdictional dispute but did not deem it so important to be one of those rare cases where you announce/read it from the bench.  Kagan/Ginsburg, to add a bit, wrote a brief concurrence to the 4A ruling, highlighting in part that a reasonable mistake regarding an opaque traffic law doesn't mean police have no limits here. Meanwhile, a per curiam decree regarding a boundary dispute was released as well. 


Lower court case striking down limits on "medical abortions" left standing. Kagan splits with the liberals in a jurisdiction dispute, but it was 8-1 to uphold a stop based on a ("reasonable") mistake on the traffic laws at stake. Sotomayor's dissent, including concerns about "human consequences" of community relations with police given stress of stops, was appreciated. But, as a national rule, the majority is both unsurprising/probably acceptable.

Saturday, December 13, 2014

Judge Souter on Begging

I am not aware of Justice Stevens doing so, but O'Connor and Souter continues judicial service on appellate tribunals. Doing a search, a recent NYT article flags the latter in a case involving "aggressive" begging. Troubling breadth to the law upheld, including merely begging at night and/or in fairly broad areas (a twenty feet from a bus stop, e.g., is pretty far). Aspects of the law might be okay, but there is a difference from let's say limits of begging inside a subway car and half a block down from a bus stop. Doubtful the USSC will take it.

Rabbi Joe: Hanukkah

In response to a Slate article, I spoke about this holiday in the past, which is coming up in a few days.  Looking at Wikipedia and elsewhere (including my handy Oxford Companion to the Bible) provides some background, including the usual realization that the holiday as celebrated today includes various things that were added on over the years and/or adapted from other things.  II Maccabees (there are four books here, related in subject, but not a true series)  itself references an earlier "dedication" (what the holiday means) that they were apparently patterning it on.

It is sometimes good fun for some to do things like note that the original Pilgrims were not great people in some ways, particularly somewhat after the events we usually celebrate (one person, e.g., referred to their involvement in the Pequot War, which happened fifteen years later than the landing of the Mayflower; things significantly had changed by this point).  We can play this game with the Maccabees, who might have been fighting for self-rule, but it was in large part just another of many power struggles before Rome stepped in to take over the field. 

Basically, after Alexander the Great, the area in question was fought over by Syrian and Egyptian forces (III Maccabees actually takes place earlier than the first two and involves an Egyptian leader). This led to various factions trying to get on the good side of such and such leader, which factors into the preview of the events here.  Also, money was involved -- targeting a priest (shades of Henry VIII) looks to be more as a ready source of funds than some disfavoring for religion specifically. 

Finally, "Hellenizing" (taking on Greek culture) was done by various factions.  It isn't clear that anyone was particularly trying to deprive the Jews of practicing their religion until events led a Syrian (Seleucid) king to do so more as a way to show who was boss (from Persian times, the end of the Hebrew Bible, a sort of local option approach was the norm). As I noted in my earlier discussion, "moderation in all things" might have been the best policy there.  This added fuel to the "Maccabean Revolt" (the name meaning "hammer"). The original Hanukkah was an eight day celebration to honor the rededication of the Temple; the miracle of a little bit of oil lasting eight days a myth added later. 

Whatever the origins, the holiday can still be seen as a remembrance of the importance of religious freedom. Some might use it to help the cause of Zionism or Jewish nationalism.  Many just use it -- like many cultures -- as a type of late year celebration event.  The menorah, like the creche, loses a lot of its spiritual and religious significance here and is just a symbol for the holiday.  I'm with the justices here that this doesn't mean it is so secular that official displays are no longer controversial. But, that's perhaps an argument for another day.*  Doing so using your own personal cultural and religious (or whatever) flavor is fine enough. 

I put it out there that Madeira wine could be a Christmas gift, noting it has historical significance given CJ John Marshall and others drank the stuff. One person didn't find this an overly sensible reason to pick a wine. Find that a bit lacking fun and such myself, but it's a way of looking at things. Some might not be overly concerned with deep looks at the holiday season either.  But, how I look at things, it can be of some interest and insight.


* Christmas display cases are not in various ways deeply important, but as I said in the past, it matters to some degree:
Display cases remind us about such issues [e.g., things like "under God" provide mild but still sectarian benefits] as well as the value of not getting the government too involved with religious symbols and messages. Individual government agents might express their own views, including President Obama citing his views as to what good religious belief promotes. Religion is part of whom we are and influences political positions. But, when the government as a whole is involved, strict neutrality should be our guide. Christmas clearly has secular components, its very timing arising from pagan practices, but its religious aspects are basically none of the government's business (again, collectively speaking).
But, then complications arise, like perhaps Jewish groups want a representation of their holiday (e.g., a menorah), while others rather not. This leads me -- again without forgetting there are bigger problems out there -- to think big displays of creches, menorahs and so forth should be left to private parties.  Trying to remove every speck of religious significance from any governmental display is something of a fool's errand, but there are lines, and something like that seems to cross them.

Update:  Interesting recent article on this matter from a Jewish perspective. The debate apparently continues.

Friday, December 12, 2014

"political differences"

Update: For some reason, Justice Scalia thought it a good idea again to opine about how torture can be constitutional. I agree with Stevens/Ginsburg/Kennedy in Chavez v. Martinez, but even the controlling majority understood coerced testimony not used for a criminal case or punishment (though de facto, it probably was here too) was actionable at some point. 

Someone flagged Eric Posner's discussion regarding (allegedly) "the legal and normative problems with prosecution" as well as a potential additional barrier arising from the Detainee Treatment Act of 2005.  He can be used as a sort of example for a trend of thought, which is the usual value of such references on blogs, Twitter and the like. Glenn Greenwald, who is a tool but has some good points, once noted this and it helps answer the "it's just one person" response.  We always are making selections here.

[For those who rather read sentiments from those who seem likely to actually support restraint of executive discretion in this context, this blog might be a good place to start.]

Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value.  He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against.  But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing. Also, as Lederman and Barron wrote etc., there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.  

Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics."  But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture.  This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.

As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, especially given what was known by those involved.  At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess perhaps only us peons don't have an "ignorance of the law" excuse. Finally, regarding the "they are just hypocrites" philosophy, various nations actually seriously have upheld such norms, including Great Britain and Canada in recent years.  And, we should try to lead, not follow. Maher Arar is a sad example.

Ultimately, things are often wrong for various reasons -- pragmatic, principle and proportionality (extreme arguments) might be one way to think of it.  The report is powerful in that it can be used in more than one fashion.  If something doesn't work or leads to negative blowback, it often is easier to respect principle.  I think ultimately our own souls here are very important, even if we don't care about the bodies and lives of others.