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

Friday, October 24, 2014

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

The Puerto Rico district court ruling upholding the SSM ban was one of those things so bad that I missed some of it. See here with some gems about "traditional marriage" as: “The husband must protect his wife and the latter obey the husband.”

Thursday, October 23, 2014

Obama On SSM

Along with the usual trolls, some on the left go all out on President Obama, which sometimes annoys me even more. They should know better, right?  

One lame attack is on his gay rights bona fides, along with a shot at him  "for it after being against it" on same sex marriage. After supporting it on a questionnaire (I never saw the specifics in the past, but here you go) when he was a local politician before SSM was found in even one state, he changed his views as society did as a matter of political reality and the art of possible.  Meanwhile, he supported more gay rights than many, and led the movement to do away with DADT and eventually to push for heightened scrutiny for sexual orientation as a matter of federal constitutional law.  

The "reality based community" should realize that as a whole he was great on this issue, unless "great" requires being far left.  The overall argument holds for other issues too though there are levels of how off base the criticisms are depending on the issue. For instance, I think he has been fairly horrible on transparency and trying to block lawsuits (which however great they are given current law would often fail if taken to trial) on states secrecy grounds or the like.  I think that is one of the areas where he does have something to answer for, beyond questionable pragmatism.

His book Audacity of Hope (2006, one state with SSM, maybe a few with some sort of civil unions) is pretty useful here and darn if few actually cite it even though Obama explains himself well. First, he overall says something I fully agree with -- liberals should own talk of "values," since that is a general way we talk and our values count too. Al Franken was a big promoter of this back when he had his talk show. Second, Obama comes out as a Christian who opposes relying on a few often opaque verses of the Bible to label gays and lesbians as immoral. 

More specifically, see pages 222-23, he is "not willing to have the state deny American citizens a civil union that confers equivalent rights on such basic matters as hospital visitation and health insurance coverage simply because the people they love are the same sex."  This was more than most places, including NY, consistently provided. The phrasing might seem a bit weak, but that just underlines the low level of equal rights for GLBT at the time.  A federal benefit providing even that, which admittedly is a bit thin and vague would have been a big step eight years ago.  And, in time, he did clearly support "civil unions," which again even when he first ran for President would be more than most states, including many fairly liberal ones, had.  

His pragmatism on this point was also underlined in the book. He argued that "in the absence of any meaningful consensus, the heightened focus on marriage was a distraction from other, attainable measures to prevent discrimination against gays and lesbians." And, again, he supported such things in ways that would have moved things significantly forward.  Now, this might -- like abolitionists who felt Lincoln was too pragmatic -- seem too little for some. But, it is a fairly realistic thing to support while still pushing the movement for equality forward. Many inside the movement itself shared such a "step by step" strategy as other movements have.

My personal problem with his remarks when I first read the book was his voicing his religious stance on the issue.  Whatever his religious views, we are talking about state definitions here. A person's religious beliefs on abortion is their own, but opposition there should not determine (though it is likely to influence in some sense) how they would let others have a legal right to choose. If he supported "civil unions" for same sex couples, as a matter of law, he either should support it for all -- end the word "marriage" -- or evenhandedly support legal marriage.  Basically, I felt he was singling out this one area to insert his religious views though yes, I also was bothered by them too.  But, he can have them, I guess.

Anyway, his religious opposition to same sex marriage was of limited concern, and any somewhat cynical expression of it to appeal to certain voters understandable politics. Why? Because on the whole, he was sound on this issue.  Particularly, Obama cited that he was open-minded on the issue, open to change. This reflects the stance of society on various social issues.  And, since as a politician and President in particular, "meaningful consensus" is significant here -- it also is as a matter of constitutional law -- the change would in part be motivated by social change.

Campaign volumes can be quite telling. 

Misogyny in Iran

“We do not want to propagate virtues by acid,” some of the protesters chanted, a reference to the Islamic obligation of “propagating virtue and preventing vice.” Others shouted, “Death to extremists.”
The current Iranian President denounced a new decency law as extreme. With the upcoming Rosewater film portraying the 2009 election, perhaps he is a small sign of progress.

Wednesday, October 22, 2014

Embattled Rebel: Jefferson Davis as Commander In Chief

James McPherson was the one volume Civil War history I had as a text book. This is rather more slim, underlined by margins of a teenager trying to fill up pages. Guess it tells us the basics, but especially putting aside all its summaries of events and characters, it isn't very deep. Plus, at times it seems to be geared to high school students prose-wise. Okay.

Vanita Gupta (and drug criminalization)

After a controversy largely arising out of a controversial client ended one path, the new nominee for chief of the Department of Justice’s Civil Rights Division should please voices on the left. Some conservative voices don't like her comments against drug criminalization, a term clarified here. I added a comment on the effect of drugs on crime.

Challenging the Status Quo (Beyond Voting)

I am not a big fan of the guy cited but the thread went interesting places: 
Voting is the only tool that people have to challenge the status quo other than violent revolution? The court system, collective bargaining, street protest/strikes/pickets, the building of alternative social institutions, community education and organizing…they all count for nothing?

“Voting is the only tool” strikes me as being nearly as oblivious as “violent revolution is the only tool”.
A response by "JL," who then provides an extensive list of his/her own efforts in influencing the status quo beyond voting.  Also, "gmack":
If voting is something we do only as individuals, then we’re doing it wrong. If it is to be a political activity, voting is something we have to do together, as part of a group oriented around common opinions. In other words, I don’t think it’s a good idea to view elections simply as an opportunity for individuals to register individual preferences. That way of interpreting voting ends up collapsing into Brand’s position: If my personal preferences are not satisfied, I just abstain. Voting instead is part of an organized practice, and thus not altogether different from, say, building alternative institutions, engaging in collective protest, etc., etc.
The results of the actions of single persons do sometimes seem to me to be of unclear value though like one drop of water joining others the fill a glass, the ultimate ends can ultimately be seen by the actions of individuals.  For instance, people change their minds about things, in part by listening to others and reading things say say. Who's to know how even one person's input here will not matter, especially if addressed to major distributors such as members of the press?  At least, I feel compelled to do so here in various cases, including when things are said wrong. I'm a bit of an evangelist in that sense, feeling a need to preach and promote.

Such is but one way to change the status quo. Take high school. If just a few people, especially those with some social standing, oppose certain types of injustices -- including harassing certain types of people -- it will be significant.  It can change the status quo.  Sometimes, it's a matter that few really give much of a thought about something.  Just one person, or perhaps a small group, can change minds by bringing it to light. 

On the mega level, I have noted in the past that the courts alone doesn't define the law, in fact, it is influenced by other factors. This is true even if the judge involved rests on originalism.  Some give courts too much credit here. The same applies to voting. It is obviously very important, but just one tool, including to change and influence society. 

"girls played hooky from school and tried to join ISIS"

Good articles on ISIS' attraction to some in West.

KC Loses For First Time Since Late September

Bound to happen. After a long layoff, with "small game" James' record in the playoffs and the unstoppable force of Bumgardner (James Garner's original name!), good time as any. Wipe off the dust and win tonight! He's bound to lose eventually too.

Tuesday, October 21, 2014

Puerto Rico SSM Ban Upheld

When same sex marriage cases are discussed, repeatedly we hear of "states" and D.C., plus perhaps in some cases (given DADT especially) the military and other federal agencies. But, I repeatedly -- including from the usually on the ball on this issue Chris Geidner -- don't hear about federal territories. I myself was reminded once that the 1st and 3rd circuits include Puerto Rico and the Virgin Islands, so are not free from worrying about this issue giving state and D.C. action. I reminded someone this this very day. And, what happens? A federal judge out of Puerto Rico (1CA) upholds its ban! A Carter nominee at that.  Told ya so!  

The ruling spends the key middle portion arguing, with an appeal to a 1CA DOMA case in particular, that Baker v. Nelson is still binding. When the 6CA decides to finally announce their rulings -- and wouldn't be charming if we have a two-fer here -- if Judge Sutton is the deciding vote on the side of inequality that odds are that he will too.  He has a harder job of it being on the appellate bench.  Won't belabor the point on how I and others find Baker non-binding. The 1CA ruled before Windsor, but let me note that it is not beyond reasonable (if far from compelling) to read it to apply here too.*  It was a fairly conservative opinion.  If pressed, wouldn't bet the farm that the circuit will join the other four.  Would also note that Puerto Rico is not really a great fit for the New England 1CA. 

The 1CA overread the doctrinal breadth of the Baker summary affirmance to my eyes and makes it broadly about "same sex marriage" though (cf. footnote) in its holding mixed federalism concerns along with a test that "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form" as applied to sexual orientation. Wikipedia, which already has reference to the ruling, tells me that a referendum blocking civil unions and domestic partnerships did not pass.  This helps the government's case -- as compared to a majority of places, the matter is up to simple legislative process that can be replaced I assume by a simple vote tomorrow in the legislature.  Still, the 1CA rule very well might not justify various types of denial of protections of benefits less than marriage. This underlines Baker v. Nelson, especially as applied in the current day with current realities, is of limited concern. 

But, the district judge here doesn't really just rest on Baker v. Nelson. The last third of his opinion makes the reading in fact look almost pretextual. He talks about "traditional" marriage, quoting Alito's dissent in Windsor. How the "very survival" rests on the procreative aspect. Give me a break. That would call into question even Griswold. The "ingenuity and imagination" of the four appellate courts that ruled the other way is cited and polygamy/incest raised.  We hear talk of "minimal marriage" (new one!)  and the Schuette case (involving something concededly allowed) is cited to support the political process.

Its a tour de force of backward b.s. It's "DISMISSED WITH PREJUDICE" grant is not just legal language. It's a substantive description.  Think it is fair for a district judge here to hold the line. But, he couldn't rest with that. He stacked the deck and embarrassed himself.


* I can be convinced that this gives the judge too much credit, especially when he cites the first portion of the opinion and notes state control of marriage "led" the USSC to decide as it did. This papers over the equal protection portion of the opinion. Guess the one group loathe to cite Scalia (though he cites Alito) are those who want to uphold SSM bans.

And more: SCOTUSBlog is on the case.  It's summary cites the "tribute" given to "traditional marriage" (good use of quotes; again ... coverture? what?) and underlines my stack the deck conclusion:
If anything, he added, “Windsor stands for the opposite proposition:  it reaffirms the states’ authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”
Putting Windsor and Baker together “in tandem,” the judge declared, those rulings “emphasize the states’ historic and essential authority to define the marital relation free from federal intrusion.”  He quoted language in the main Windsor opinion saying just that.
Except that it underlines that there are constitutional limits here, something the Court found repeatedly as well. Marriage is a federal question. There is a difference between there being no substantial federal question and a win on the merits, especially with the help of the fairly recent 1CA ruling's direct language regarding Baker.

The  judge here, along with his "tribute," did the evenhanded conservative a disservice.  He placed a thumb on the scales. If you want the USSC or at least the 1CA to decide the issue, fine, but really. Again, if this is taken to its logical conclusion, Griswold would fall -- it struck down a state regulation of the contours of the marital relation.  It is "simply" hyperbole.

Sports Weekend

Jaguars won, Seattle lost & each NY team lost, the NYJ in painful fashion. Overall liked the Joan Biskupic Sotomayor book -- in fact, wanted a bit more (e.g., it mostly skipped the hearings!), a nice crisp read. Getting a lot of love from the Court watching community.

Monday, October 20, 2014

Ginsburg at 92Y

Supreme Court Justice Ruth Bader Ginsburg and former President of the Supreme Court of Israel Dorit Beinisch joined NPR’s Nina Totenberg yesterday, adding to Ginsburg's latest public appearances. Sotomayor private let her know that she might be overexposing herself. Seriously, it does seem Ginsburg is putting herself out there a lot recently. And, her comments continue to be somewhat blunt and a bit controversial though those in the know are by now familiar with her standard replies. 

I listened to the very beginning of the appearance and was somewhat annoyed with three of her answers. Totenberg started with the Saturday morning voting rights order/dissent and Ginsburg explained that the matter came at the last minute and it took time for her to write a reply. The general assumption is that she was sending a message here and the timing underlines the point. I really don't see why it couldn't, e.g., not just wait to Monday morning.  The USSC could have just stayed it until then. 

The more dubious comment was in response to a question regarding the by now much criticized slew of unexplained actions "by way of injunction, stay, unsigned order, and wordless denials of cert petition"  Dahlia Lithwick suggests -- as might be understood by people who recognize the technique in less marble tinged locales -- such silence can "hide a multitude of conflicts."  Ginsburg noted that these orders etc. can be a result of last minute appeals that require quick responses and there isn't time for more. 

Oh please.  There is time for a brief explanation especially as applied to same sex marriage cases which they had for some time and was not compelled to deny right away.   She also noted as to the SSM cases, there is no circuit split, so the Court wouldn't generally take one.  Good to hedge a tad, since if you look up the guidelines here, we have this:
a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
This is the third "consideration governing review" on cert, putting aside some debate on just how without conflict we truly are. Now, I have said here and elsewhere that waiting if reasonable, but in the spirit of another recent comment, it might not be quite as easy as all that.  The question of a split itself is only so clear if we deal with a post-Windsor world, since older cases in both federal and state realms rejected the claims. Every case the USSC does not take in effect builds the momentum with them granting stays sending a signal to appellate courts they should not either. 

The final answer that bothered me was in response to calls for her to retire. I respect the prudential concerns of others -- personally 2015 looks like a good time to do it -- but surely she has every right to stay on as long as she thinks proper. The annoying thing is when she starts saying things like there being a low likelihood that someone as good as she would be confirmed in this atmosphere. Well, the fear is that with a Republican Senate or even worse a Republican President, the replacement would not be ideal.  So, yes, the people promoting this viewpoint thinks we would get a better choice -- by their likes -- if she had retired in 2014 or did so in 2015.

I personally find it unlikely that even if Republicans gain control of the Senate -- a prospect that is depressing and might be settled with runoffs and challenges for months -- her replacement would not be a perfectly reasonable sort who at the end of the day will vote like Obama's other two picks.  They might not be as flashy as Sotomayor or a newcomer to the bench like Kagan, but let's take Judge Wood.  Now, she would be 65, which might seem a bit old. Ginsburg was over 60 when she was confirmed.  Would is really be unlikely -- especially since her age might be a "plus" for some since she would on the Court for somewhat less time (though given recent trends, could be there twenty years) -- for her to be confirmed?

RBG has a bit of a high opinion of herself here. She clearly was a civil rights great, but at the time of her appointment was seen as something of a moderate.  There must be at least one option that will get at least enough support from a few Republicans to avoid a defeat. I'll believe a true filibuster here when I see it -- the last time that took place on this level was to block Fortas for Chief Justice, a guy with some baggage.  At best, this would require Obama not to pick someone who can be tarred as too liberal. This probably isn't really his inclination anyway. 

Judges have to be judicious in comments made publicly, but at some point, we have a right to call "b.s.," even of the Notorious R.B.G. Might want to tone it a bit down.

Moderate Opposition

One response here in particular felt for those who thought about it and aren't self-interested it is blatantly simple to oppose criminal punishments for drug use. Such overkill bothers me -- people aren't just wrong, they are either biased and/or unthinking. People can be wrong without this, especially for complex questions. Likewise, they (such as "conservatives") are usually not simply bad people. Strong opposition is fair, but sometimes people go too far.

SCOTUS Going to the Dogs?

Meanwhile, Oyez.com (since SCOTUS doesn't) has most of last term's opinion announcements with a few dissents from bench up and (normal time) SCOTUS itself had an orders day.

Sunday, October 19, 2014

"other considerations"

Reading the Sotomayor book, mention was made of a 1950s USSC ruling involving exclusion of Mexicans from juries in Texas that recognized Hispanics are protected by the 14A:
Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'—that is, based upon differences between 'white' and Negro.
This runs counter to people, down until today in things like same sex marriage, who say the 14A Equal Protection Clause -- the text aside -- only concerns itself with blacks. The application to "race" generally, which widely would include alienage and religious groups ("Arabs" and "Jews" originally considered as racial groups, e.g., and such was the case even into the 1980s)  is a fairly uncontroversial, at least now, application. 

But, "distinct class" rule is wider.  A half-century before that ruling:
Of course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes.
Note how "color" and "race" are set forth in a list, so it is not even that they deserve special concern.  But, even granting that, the "arbitrary" rule, the "no legitimate state interest" rule widely applied for over a century.  It helped when dealing with federal legislation, since without a federal equal protection provision, equal protection was often protected as a matter of due process. An "arbitrary" (discretion not based on legitimate reason) law was seen illegitimate, not an appropriate legislative practice. "Substantive due process" continues to be seen by some as an oxymoron, but various accounts show historical practice honored this rule as well.

The test as expressed, though this was in 1900 after all, sounds a bit easy to make -- "no possible" isn't that hard.  The courts had a low bar for reasonableness in that era even in the area now seen as fundamental rights. Meyer v. Nebraska, an important early precedent for privacy rights, e.g., noted in the 1920s:
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.
The phrasing suggests the complexity of the rule -- something can have a "reason," but it might not be an appropriate purpose. For instance, it might interfere with parental decision-making over education without be justified by some "emergency" or other strong interest (citing an "emergency" as not being present suggests the test is not quite as weak as it sounds -- it might be thought that something much less would do the trick). 

The rules in certain ways are stronger and classes of scrutiny has some logic (race remains more clearly wrong than let's say occupation) but some basics stay the same.  Constitutional protections are not in place merely for the central reason behind their births. It bears noting that even there the 14A was originally also there to protect non-blacks, such as Republicans and others felt to have been mistreated in antebellum times and later. Anyway, the language is general, was intended to be so, and clearly is appropriately so today.  The need being a question of fact.

The particulars changing from "time to time."

Sotomayor & Adoptive Couple

You need not be from the Bronx to read Joan Biskupic's latest on Sonia Sotomayor -- aimed to be about more than Sotomayor but also a cultural study for which she is a representative -- but it helps. For instance, one vignette involves the 5 train, which I took but the other day. She went to Cardinal Spellman HS, which was on my short list. The Puerto Rican / projects angle is not my experience, but you cannot have anything. Still, my sister-in-law has both, so there's that.  

Anyway, found her Scalia and O'Connor biographies serviceable if a bit bland at times, perhaps my familiarity with the subject matter raises my standards, but the book is pretty good at first glance. The conclusion, though not using the name, suggests Sotomayor will be a sort of "William O. Douglas" justice -- concerned more about being right than convincing others, willing to challenge others and (though he was more shy) having a large role off the Court (he had political inclinations and later was a world traveling author, she takes being an ambassador to the public very seriously, especially regarding children).  I think there is a place for that.

An example of her style was Adoptive Couple v. Baby Girl, a tragic case involving the adoption of a Native American child given federal policy that gives a special role to protect Native American culture.  The Wiki entry provides important background (with links -- a key value since the entry itself at times can be iffy).  As with many child custody matters that are subject to extended litigation, and many that are not, there was no easy answers here to ensure the best interests of the child.  She was strongly on the side of the birth father, who eventually challenged the adoption, and she made it know by strong questioning. To the degree that Roberts and Scalia each once told her to the advocates finish what they were saying.  Sotomayor seems to have toned down her questioning a tad lately.

Scalia (who joined her dissent along with Ginsburg and Kagan) at one point noted that we aren't always strictly concerned with that -- or we would arguably have a need to take away many parental rights. Still, even putting that aside, the case was messy.  Note how the case was decided 5-4 with one of the majority (Thomas) saying both interpretations of the statute were reasonable, but constitutional avoidance (he has a more limited view of the Indian Commerce Clause) put a thumb on the scales. Also, it might be useful to get a sense of the father's side of the story. 

Custody cases are tricky and the outsider should take each side with a grain of salt, but background does color my thinking here. The "sperm donor" hypo here or concern that the dissent's view would result in removal "at any point in a child's life without concern for that child's welfare" contrasts with the actual details of the case. This was no one night stand -- the biological parents knew each other off/on for years. This is a key matter -- the father had a reason to not take a break as permanent. As cited as well by the state court below (if child custody matters being largely state matters is a factor, should not state courts be respected too?) -- link found on the SCOTUSBlog case page -- the alleged "abandonment" of the birth parent here is complicated too.  

The birth mother, at least there is reason to think so, seems have made a concerted effort here to stack the deck there down to maybe even trying to complicate the tribal rights here. The adoption was started -- going by the state supreme court -- days after the birth (the adoptive parents at the birth) but the father (in the military and about to go overseas) was only notified months later.  He claims, and it is not clear this was disputed, to have not known an adoption was taking place until being served the papers. And, once he did, he immediately rejected the idea. The father thought he was giving custody to the mother, not giving up any right to see the child.  No "sperm donor," no "years" later.

The messy details suggests just the sort of thing often taking place in the real world, particularly in the lives of various minority groups.  Some justices were upset that Native peoples were getting special treatment. Duh. (The article was wrong to be optimistic regarding him obtaining custody.)  Their disrespect for biological parents is also troubling. One thing highlighted when the case was going on was the father's small amount of Native American blood.  Who else should we disqualify for rights arising from being members of tribes?  And, yes, states generally have discretion over domestic matters, but the federal government has special power over Native Americans. Federal supremacy here over states is well warranted given overall history though it was not always used wisely.

We are left with statutory analysis that might favor the majority -- especially without Thomas' caveat I am left a bit dubious -- but it does seem like a thumb was placed on the scales here in large part based on a few justices' personal biases.  Such things are always going to be part of human judging, but it still is useful to keep an eye on them.  Overall, I'm glad for people like Sotomayor and Kagan to keep an eye out. Thanks Obama.

If useful, will update my opinion of the book later this week.

Saturday, October 18, 2014

Ipse Dixit USSC Texas Voting Decision In Wider Context

Update: Rick Hasen talks about Breyer's silence, offering some reasonable possibilities. The "dissent without saying" option seems lame, especially when Ginsburg was on the record.  Even if he could officially do that, it surely doesn't come off that way. People ignored when he actually publicly joined Stevens' (along with Ginsburg) dissent in Bush v. Gore. They actually aren't that wrong to not assume he dissented here
The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.
From time to time, the justices in effect brag that unlike some people, they explain their rulings via opinions. At times, they point to them when asked about certain subjects, the justices standing on the opinions.

This was always somewhat overblown, especially to the degree that the opinions were not really always a full account of what was going on. Justice Brennan, e.g., in Eisenstadt v. Baird rested on rational basis review in striking down a ban on contraceptives that applied to unmarried couples but dropped language hinting at a possible right to choose an abortion. It also noted that wider fundamental rights issues need not be decided, given the law was irrational, but covered such things in dicta anyway. 

This sort of coyness at least is somewhat explicit. The Supreme Court also denies cert or appeals, including in death penalty situations, usually without comment.  As noted here, it was even more complicated before recent days, when mandatory appeals actually meant brief orders expressly made law though a "summary affirmance" generally were given less respect.  The use of Baker v. Nelson, as alluded to there, shows, however, that the opening for broader implications were possible if desired like a loaded gun.

From time to time, justices dissented from these orders / denials, or perhaps added some sort of concurring statement noting a denial of cert. shouldn't be taken to have legal precedential significance and (maybe even if they thought the issue important) there was a reason not to take a specific case.  Likewise, I have seen a few opinions by individual justices writing "from chambers" about appeals to them directly in their role as circuit justices that explains why they did not grant a stay or some such thing. There are thousands of appeals to the Supreme Court annually and most deserve quick treatment. The practice of not even noting actions by individual justices (noted from time to time at SCOTUSBlog with links) is a bit much.

Nonetheless, from time to time, there is a case for more substantive comments. As expressed here, e.g., the to this somewhat more than causal observer striking number of without comment (with a few dissents) stay or cert orders of special significance this month involving the death penalty, abortion rights, voting and same sex marriage. Election Law Blog, e.g., provided ongoing coverage of various lower court rulings involving voting id and procedure laws that to me unfortunately wound up being deciding weeks before the election.  They should find a way to avoid that sort of thing, perhaps postpone new voting rules for a year and a set of appeals.
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study.
As noted here, regarding the latest "ipse dixit" voting law stay, the Supreme Court did set up a rule that looked askance at late minute judicial changes of voting procedures.  The three dissenters here, however, argued that the contours of the rule are unclear.  Does it apply when the district court ruling convincingly finds the law discriminatory and overall problematic on statutory and constitutional grounds?  Particularly looking at how they treated providing the more strict ids. Now, we can say, though now we might add a few names, that "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court," but it's best to do so based on an opinion, not (accurate it might be) tea leaves reading of orders. 

This morning's action -- my leaving open mid-afternoon the chance the USSC (akin to "take out the trash" Friday politician news) would have late day orders was prescient if not quite expecting one early morning Saturday (when did this EVER happen?!)  -- does take the cake.  The best case is that this fits in to the "don't change rules late in the game" rule that has thus far (if again without explanation) applied to appellate rulings that went in both directions. This is so even if as noted by the dissent that such "foolish consistency" is ill advised. But, guys, at least explain yourselves.  Justice Breyer's silence (see also in the post-Hobby Lobby order) is particularly annoying, if perhaps part of his long term prudential strategy.

I have noted that not taking SSM cases is defensible and recognize how these orders/stays policies work.  Nonetheless, there is a point when it is taken too far. I was annoyed when the dissenters didn't state why they were for a stay of more than one execution recently, at least once probably because of concerns with protocols. It wasn't just one case. At some point, even if the USSC won't take the case, the dissenters should have made their concerns know. The importance of voting rights, including public opposition to Citizens United, makes this a special case too. 

The break of dawn timing adds to what I see as a black eye to the Court. Enough!

Then They Came for Me (aka "Rosewater")

The Iranian-Canadian journalist Maziar Bahari took part in a joke segment for the Daily Show, not knowing it would be used as part of the "case" against him by Iranian authorities after the 2009 elections. Jon Stewart later directed the akin to a novel account of Bahari's four months of hell in prison, a film coming out next month entitled Rosewater.