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

Tuesday, May 05, 2015

Rape Exceptions

Sometimes hear people scornful when anti-choicers argue even rape exceptions to abortion laws should be eliminated in part since people might lie. But, why wouldn't they if desperate? The state is the one to blame there really. And, how would you know? That is the sort of question that makes me go "hmm" and thanks to the Internet found a good reply.

My Grandfather Would Have Shot Me

This is overall a good book about the mixed raced granddaughter of the face of evil in Schindler's List finding out about her grandfather with a journalist providing parallel background and commentary from a greater remove. The author already has various issues with a mother who gave her up for adoption, travels and so forth. The parallel approach works and the book is a page turner though the Israel chapter goes on a bit long.

Saturday, May 02, 2015

Lethal Injection Orals

As noted before, a few justices were irritated over the lethal injection challenge, seeing it basically a result of the bad faith of the abolitionists. Alito opened things up with asking why the state was not using sodium thiopental with the defense attorney not quite sure where he was going. He then was blunt:
I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly.

Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are
free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to
 using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.
Scalia also blamed "abolitionists" for making safer drugs unavailable and felt that should be "relevant" to the justices deciding if these particular drugs were an issue. It is not as if the defendants themselves kept the drugs from the states -- they are not exactly to blame for European suppliers being pressured by anti-death penalty groups.  Kennedy annoyingly wanted to know the answer to the question.  Why should it?  And, if so, how much, if there is some significant chance that the drug used causes something akin to burning alive?  Is there a exception to the pain limit in that case? Breyer didn't think so -- it wasn't "better that than no executions" though such a complete abolition result was not what the defendants here want to come out and say is a fine result.  Need to be a bit more cagey than that. 

At best, as suggested here, it goes to the good faith of the states if shortages, not lack of coarseness alone.  States rather not use this particular drug apparently.  But, as Justice Sotomayor noted, there are alternatives -- like the firing squad or nitrogen gas. She determined that they weren't used (as a few do as back-ups at least) "because it offends them to look at them." The firing squad seems less civilized, maybe also it is a matter of the direct nature of killing.  And, it is quite possible that something might be deemed "cruel and unusual" or otherwise uncivilized not merely because of pain. An extremely excessive punishment or one very undignified (e.g., stocks) might count too.
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded.
Since other states do get the drugs, it is unclear to me that eventually an adequate source will be found.  Why cannot states even have state run companies to produce the drug?  A question was posed on the painful nature of the alternatives.  Nitrogen gas is untested as a means of execution though its lethal qualities have been studied some.  Some -- including those wary of the death penalty (and/or worried about the negative effects to the medical profession) -- have argued all things considered that the firing squad might be better.  There was a question on the pain involved -- executions need not be pain-free.  It is a question of degree.  Finally, if the drug here (and there was a passionate debate over facts, including Sotomayor serving as a sort of prosecutor, one who bluntly basically called the states unreliable liars) did not meet the threshold, should shortages give the state some sort of free pass to use something that might be akin to burning a person alive if it does not work appropriately?

In Baze v. Rees, Roberts in the plurality opinion argued that we can mostly trust the legislative process to decide for themselves here. "The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection."  It is unclear if the firing squad was not as good as the electric chair or gassing (the old type, not nitrogen). But, trusting non-court means here would include private action that lead to the shortages, right?  And, the opinion does provide some limits.

And, per Scalia's comments about how the Supreme Court upheld various means, the question simply was not really fully addressed that much. A case a few years back that might have addressed the electric chair was mooted by the state doing away with it.  Other than a case in the 1940s that 5-4 accepted trying again after the first attempt to electrocute failed, when did it ever fully directly address the issue of method other than 150 years ago when the firing squad was accepted as not cruel and unusual?  I don't even think the Supreme Court itself as compared to lower courts directly held that physical punishments like the lash was unconstitutional in this day and age.  It did treat school corporal punishment as not an 8A issue. Baze itself was therefore a seminal case ala Heller.

The case that clearly deeply affected the liberals -- Kagan's concern was apparent even without her being as prosecutorial about it as Sotomayor --  but a 5-4 loss is likely.  It boils down to overturning a district court finding, which very well might be warranted, but leaves an opening to have a "neutral" reason to rule against the defendants.  An opinion by Kennedy or Roberts is possible with the concurrence adding more spleen.  A strong dissent (or dissents) are also likely.  And, the issue probably will not go away, including with attempts to limit access to information about the production of the drugs and use of different rules than normal there. 


* Kagan flagged that if the drug at issue didn't work, it could be akin to being burned at the stake.  Alito set up a hypo where somehow that can be done painlessly.  Kagan didn't find it that relevant -- the issue here was not like some burning at the stake where the person was totally medicated so could not feel anything (the psychological effects would suggest this would require total medication).  But, Alito's surprise that any burning at the stake can be constitutional suggests the problem there is not merely pain. Rightly so on some level, pain alone not being the test here. 

Text and History

Balkinization (a pun based on a chief originator, Prof. Balkin) is not much for comments these days, so threads that do allow them tend to be more so inclined to go on tangents or bring up other issues (including those covered by posts that don't have comments, sometimes because the person were tired of some trollish back/forth in the past).  See, e.g., this one on a fear of a "runaway convention" if we ever (per Art. V) have an open state convention to propose amendments to the federal Constitution.  "Shag" at one point referenced the 1A:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Burt Neuborne's recent book relied on the text of the Bill of Rights specifically to argue for a certain sort of progressive vision. Text and history (along with other things) need not only be used for conservative ends here. Prof. Amar, e.g., has written a lot using such techniques to raise some intriguing (if not always convincing) arguments, at times using the same "it's pretty obvious" tone of some conservative originalists.  For instance, he suggested the Thirteenth Amendment can be used against child abuse, since it is a form of "slavery" and/or "involuntary servitude."  Others, including Balkinization contributor Andrew Koppleman has used that amendment to protect abortion rights.

Text and history does not guarantee anything here -- it provides an opening and device to use when making choices.  Honesty warrants that the meaning of the text, be it constitutions or fictional works, have various possible meanings. The text of political documents often is carefully chosen in part because it provides a means to obtain agreement from different groups that understand what it means in somewhat different ways.  Still, text and history matters, particularly as a sort of "Overton Window" to reduce choices.  It changes the conversation some.

There is a "freedom of speech." Congress can not pass a law "respecting" an establishment of religion. It can't "prohibit" the free exercise of religion. etc.  Compare two provisions from Oregon's Constitution:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

"No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly."
The second is what is sometimes known as a "Blaine Amendment," the leader of a post-Civil War movement (at the time influenced by rise of Catholicism) against public financing of religious schools.  It also reflects the druthers of James Madison, a primary voice behind the federal First Amendment. But, that one wasn't as specifically phrased. It left it much easier to allow legislative chaplains (paid out of government funds) and various types of spending on sectarian schools (particularly if tied to students themselves), even if the language arguably would not allow that.

The provision still is different from the others since a certain category is blocked ("respecting") while Congress could in some fashion regulate speech but not in a way that abridged its freedom.  "Freedom" might suggest certain terms though, like "liberty" might not merely mean "license."  "Speech" itself might not merely mean "verbalization."  Is libel protected "speech" or unprotected license? Finally, "prohibiting" free exercise is not the same thing as merely burdening it in some fashion which by the nature of government, is going to occur somehow. 

The same with the free expression provision. "Freedom of speech" suggests something a bit less than banning any regulation of speech itself (while "the abuse of this right" also opens up a loophole in the state analogue).  So, Zephyr Teachout's book noted that in the late 19th Century, the Supreme Court recognized various forms of paid lobbying as against the public interest and thus such lobby contracts need not be honored.  As with Justice Scalia not using mistreated Catholic school children as a reason to be careful about state authorized prayer in schools, the use of history here often is selective.  Law office history. 

But, history should guide us some here, a complete history. We live today though. Our needs and understandings should ultimately guide us when we continually try to apply the text of all sorts of things the best we can.*


* An early Christian handbook, likely influenced by Jewish thinking that went back further, at one point noted:
For if you are able to bear the entire yoke of the Lord, you will be perfect; but if you are not able, then at least do what you can.
The  word "Lord" might be used metaphorically, if you wish, but think this is fairly good advice generally speaking.


CJ Roberts seemed to be getting used to the new name when announcing Mata v. Lynch (previous Holder). The conservatives mostly seemed to think it shouldn't be there, but the liberals were rather passionate in the lethal injection case. Sotomayor bluntly basically called the state liars, Kagan not as blunt, but clearly upset about the possibility of something akin to "burning alive." The last case was a technical case that they clearly wanted to get rid of.

Friday, May 01, 2015

A look back ...

At the time, “sexual orientation or sexual preference just wasn’t recognized as a protected category” like race or religion, Mr. LaFond said. “I was giving Justice Blackmun a cert. memo based on what I understood to be settled law.” 

“It was the petition of two guys to get married, and that was it,” Mr. LaFond said this week in an interview. He wrote a two-page memo summarizing the case, Baker v. Nelson, concluding that it should be dismissed “for want of a substantial federal question.” The court adopted his advice with a one-sentence order.
An interesting article provides a look back to the first time the Supreme Court had to decide the same sex marriage issue, this time when they had less ability to deny review (thus the disposition there and it's limited meaning even without developing doctrine and other issues). We are dealing with a different day and age, when being a homosexual could prevent you from being allowed into the country and before the time when homosexuality was removed from the Diagnostic Statistical Manual.

Nonetheless, even on that level, the state ruling below left something to be desired.  The use of a dictionary definition* to provide a meaning of marriage had some merit (the dictionary provides a rough sense of current understanding), less so a reference to Genesis.  Also, the quote is telling:
The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.
We can find part of that -- the "union of man and woman" however isn't quite even shown. After all, polygamy was seen in that book.  Likewise, marriage even then was not merely about "procreation and rearing of children" unless it wasn't applicable to the barren or elderly.  Nonetheless, even there, the Supreme Court by that time had stated that rights and equality developed over time. The argument as to rights deem fundamental  is more tied to tradition there, but note even here it is selectively cited. Finally, putting aside I think the proper approach here is to look at the aspects of the right to marry and see if logically they apply, time changed the meaning of marriage along with same sex couples generally. 
"Marriage and procreation are fundamental to the very existence and survival of the race."
The Skinner case is cited here, but that case was about sterilization so that aspect of marriage was particularly important. But, marriage wasn't just about this -- you did not have to under common law to be able to have children to get married.  It is also a tad ironic a few years after Griswold to focus on procreation.  That case itself can be cited for a definition on the what marriage brings that applies here.  The state supreme court applied it narrowly, more so than various other courts at the time, as a marital intimacy case.  It would later be clearer that the Supreme Court understood it as a liberty case generally,  involving various choices over intimate matters. Lawrence v. Texas years later basically spoke of intimate association; the First Amendment claim was rejected here without discussion.  Baker thus clearly under applies Griswold, at least per later case law.

This article explains the Eighth Amendment claim also rejected (Powell briefly raises one in his separate opinion in Bowers v. Hardwick).  The basic idea appears to be that the state was requiring same sex couples to have unwanted sex re-assignment surgery to marry.  I'm unsure how this is a criminal matter though that might be a due process violation since it "shocks the conscience."  Also, the freedom of religion claim raised in early cases has a bit of bite -- a judge in Perez v. Sharp, the state ruling striking down an interracial marriage ban flagged it.  Marriage after all even today is seen as having an important religious component and this ways years before Oregon v. Smith that accepted neutral limits there.

Finally, the state ruling held that "no irrational or invidious discrimination" was present here, and there was "a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."  This was before the expansion of the test required to justify sex classifications.  Rational basis is no longer the test. The issue of animus was not flagged, traditional non-recognition a harder case there anyway than modern day state constitutional amendments (state DOMAs).  Sexual orientation discrimination is not cited at all here. Thus, even Judge Sutton had to cover that separately. 

And, of course a lot has changed, including much more protection of same sex couples which increases the problems of explaining why you are drawing the line at marriage. To quote the ruling: the "Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same."  Things are not the same. And, the ruling even at the time was somewhat weak.  Finally, at the very least the later rejection of James Baker's discrimination claim against a state university for his marriage advocacy was quite questionable.


* The marriage is different sex marriage because it is so this isn't discrimination any more than a woman claiming a right to be  a "father" repeatedly was the basic grounds of denial of these claims. Citations of dictionaries will not be as easy these days for that reason any more than old usage of "religion" to mean "belief in God and an afterlife."  Put aside that a full understanding of "marriage" over history would include same sex couples in some fashion.  Invidious discrimination resulting in only one form obtaining legal sanction is of help to the wrongdoers only so much.

Superman Versus the Ku Klux Klan: The True Story of How the Iconic Superhero Battled the Men of Hate

The above is some audio from a 1940s radio Superman serial where he goes up against a KKK type hate group. The subject book is for teens but is good for readers overall. To provide context, the book examines the origins of Superman (a pair of Jewish teens who loved comics) and how it was fit into the times, including during WWII. Also, we learn about the development and re-insurgence of the KKK plus a particular person from the South himself who fought them and had some influence on the serial. Good historical snapshot.

Rationality While Watching Sports? Is that Even Possible?

Snow in May writer provides thoughts on a Russian singer that showed up in the stories. Meanwhile, the current Mets struggles (more things change ...) has lead to various chatter at Mets Blog. Continue my "let's have a sense of perspective" mantra and find it a good policy on all things. So, don't latch on to one player, or if you do, look at him as a whole. etc. And, hey, I realize its sports. I'm not always rational. It's part of the charm. So vent some.

Thursday, April 30, 2015

I know you ...

Young & Hungry was amusing last night and I recognized the guy with the fake accent from various shows. But, the new love interest actually is a familiar face too -- listened to her sing decades ago. On something called a "record." Time flies. Those perogies looked good too.

Wednesday, April 29, 2015

Justices Impatient With Wrong People?

The last day of oral arguments included one involving use of midazolam, which has been flagged as inappropriate by certain experts. The USSC (5-4) allowed one execution to go forward before taking a case. The risk here also is just that -- a risk; so (if it was okay) a successful execution doesn't prove much. Five justices seemed to see this as just a delay mechanism. Or, it just might be the system is flawed and they are blaming the messenger.

Campaign Finance Regulation UPHELD!

Supreme Court opinions are rarely surprising, but Roberts joining the four liberals (though two did not fully agree with his opinion) to uphold a regulation of judicial elections is. The limit might be modest, but as with cases striking down such laws, the ripples might be interesting. Agree judges aren't legislators, so there is more concern for avoiding of corruption or appearance thereof. Roberts also might have seen it as protecting his role.

Don't Make Marriage History Small

This article on the changing nature of marriage is fine overall but has a tedious approach of simplifying that I see from time to time in comments. So, marriage was "not above love" until recently or something. Simplistic at best as seen by various ideal couples in ancient myths etc. I also (after a fashion) used this amusing imagined reply to a question about the Greeks to provide my own thoughts on the history there.

Tuesday, April 28, 2015

SSM Orals

The arguments were rather unrewarding, especially the recognition questions that might be a more limited approach/issue, if they seemed to care much. They didn't. The couples' lawyer in the main argument was a bit hesitant sounding; the best was the S.G. The states relied on the risible argument that it would be bad for children if people thought marriage was about love and commitment. First part of audio release while the arguments were still ongoing.


Two are better than one, because they have a good return for their labor: If either of them falls down, one can help the other up. But pity anyone who falls and has no one to help them up. Also, if two lie down together, they will keep warm. But how can one keep warm alone? Though one may be overpowered, two can defend themselves.
 -- Ecclesiastes 4:9-12
Marriage equality is good for marriage overall.   For the children.  Necessary for a complete "right to marry."  The basics of legal rationality. Basic to equality (including sex equality).  And, knock on wood, it is a nice to -- about two decades after first seriously thinking about the subject -- live thru a positive seminal moment of Supreme Court history.

It isn't all good, after all, so you got to enjoy the highlights. 

Monday, April 27, 2015

Wake-up Call

I'm not on the ledge or something, but winning eleven in a row was not quite "real life" either. The Yanks weekend series, including last night's game, was in effect their first big test. Sorta failed, last night kinda embarrassing (four errors didn't help). The winning streak gave the Mets a cushion. Great. Nothing won yet. That series was a bit pathetic.