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

Monday, June 29, 2015

Girl At War

I am about 2/3 thru this fictional account of a girl's experiences during the war in Croatia in the early '90s and its aftermath and it is a successful pick from online reviews. It isn't a direct veiled account of the author's life but stories she was told and learned about. As with great fiction, this does not rob it of basic truth. A well told story that is a promising debut.

SCOTUS: Term Finale

Update: For whatever reason, SCOTUS announced mid-afternoon (did they forget about it before?) that for now the Texas abortion opinion is stayed with four justices dissenting without comment. There is an outstanding cert. petition involving a Mississippi case (see cert. watch at SCOTUSBlog) that is likely covered by tomorrow's orders.  

Also, there is an order (with only Sotomayor dissenting without comment, making it unclear what her issue is) involving an ongoing dispute involving the contraceptive mandate and religious exceptions.  Notable is that it says the order does not affect the ultimate ability of women to get contraceptives though the truth of that might be questionable especially along the margins.  It seems overall fairly contraceptive mandate friendly.

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Well ... The SSM did not end the passion at the Court, that's for darn sure. FOUR justices made statements regarding the lethal injection case (announced by Alito -- like in the Hobby Lobby case, certain parties surely were like "had to be him, huh?")  with Sotomayor with the main dissent, Breyer (with Ginsburg) on record now as being doubtful the death penalty is constitutional and Scalia (though Thomas wrote a better reply with less snark; he did as with SSM join Scalia) there to reply to Breyer.  I will not provide links -- see SCOTUSBlog, Election Law Blog et. al. for commentary and the SCOTUS website for links as well. 

The lethal injection result is not really surprising though Alito (he of "guerrilla" abolitionist movements) getting five full votes here is notable.  The particular means (with Sotomayor providing a strong dissent) is not clearly a problem, the district court findings here of special import. This still leaves some discretion to district judges that find differently. An added wrinkle is the idea that if a method is opposed, the claimants have to show that there is an alternative available, since the death penalty has long been held unconstitutional.  The majority rejects the implication this means any horrible means is warranted if there is no alternative.  So, there must be some limiting principle of sorts there.

But, Sotomayor makes a good argument as to the logic of the majority's opinion and is right that the state is under no compulsion at all costs to execute in the first place. Some states don't have the death penalty, after all, so it seems to be a matter of policy discretion. The majority, some members in particular (Kennedy is part of an ongoing movement to restrict it), appear to think the state is obligated to execute certain people. And, the argument that the Constitution specifically provides procedures regarding depriving "life" does not end matters.  It has to be done with "due process of law" and the Eighth Amendment is another check as is things like equal protection of the law.  If such things are not met, no, executions are not allowed.  And, overall, as to the Due Process Clause, execution is not the only means of taking life -- e.g., use of lethal force to catch convicts or use of drones in military conflicts. 

I cannot assume to be able to judge who has the best case in the dispute over the evidence here but will simply note that it is likely close enough that even a tie should go to the dissent.  Justice Sotomayor (with Kagan) in effect (Breyer/Ginsburg join the full dissent but the other two don't join his) assume the death penalty is constitutional, but isn't that enthusiastic about it ("but see" Breyer's dissent). Plus, it ends with the suggestion that some defendants here would rather the firing squad (nitrogen gas too novel to mention?) though noting it also leaves something to be desired. Net, this doesn't sound too supportive of capital punishment overall.

There were some orders before this though not anything to do with abortion (there will be more tomorrow).  There were dissents from denial and action involving cases similar to some decided.  And, with Kagan again recused, the Fisher affirmative action case is back again.  Let's see how this goes. Sotomayor might have to use that dissent she allegedly wrote after all. After tomorrow, there are scheduled order days during the summer.

The remaining cases -- Arizona redistricting and EPA regulations -- also were 5-4 with Kennedy joining the liberal and conservative blocks respectively.  Concurring Opinions Blog has various posts about this where the law professor went back and forth. Overall, this to me suggests that we should give the state discretion over the redistricting scheme and in the process I agree with the majority. The dissents overall seem to be somewhat academic "you might have a point" type arguments at best.  Kagan's dissent in the EPA case is probably correct though unsure how important it is -- some barrier to regulations, but how much? 

BTW, some first day by Steven Matz, including three hits!

Sunday, June 28, 2015

Some More Before The Term Finale

And Also: John Oliver covered the weekly SCOTUS developments and his main segment covered trans issues. Nice to see Carla Gugino, a favorite actress of mine, has a small part (so far) on The Brink, which continues to be pretty good.
There are various discussions (and go to Slate for more etc.) that honor and discuss Kennedy's majority opinion's characteristics. This includes its use of liberty and equality, its overall tone and rhetoric plus its evolving tradition approach that (oxymoron it might be to some) be called "evolving originalism."  The idea is you have basic purposes (here of marriage) but how they apply change over time as our experience and knowledge changes.  Overall, there is a lot to praise, especially if you give it a chance.

There are various things I might have tweaked though as one of those discussions note, ala Brown v. Bd., the approachable nature of the opinion (and I would include here it's overall positive tone, which a more full-fledged equal protection and/or animus ruling could lack) is important given the broad potential readership here. The brief history of marriage and development of changing views of homosexuals is appreciated. The framework of marriage and equality/liberty synergy worked for me. The material was there -- he used it to provide an appealing overall approach.

Nonetheless, I would have added more on how rights of homosexuals grew there as the sticks of marriage grew for the couples involved. Also, I would have noted how same sex marriage in some fashion existed for quite some time, if only to show the potential once we accepted the possibility.  Same sex marriage is not just something that was invented twenty years ago. And, yes, I would have added a bit more on recent state DOMAs etc. to show animus and/or how democratic decision-making was blocked.

[Note: The changing minds on the question clearly factored in here but it does warrant adding that the majority opinion does at one point basically note (as has been the case in the 8A context and so forth) on some level ultimately it is up to the Supreme Court to apply constitutional principles. Here there was a circuit split making it particularly important though they at times don't require that.  Ultimately, basic constitutional principles, not nose counting of some sort, was at stake here. But, the USSC just acting solely on its own on these issues is rare. There is surely shall we say some free will going on here; it just is a combination of factors.]

As one discussion links notes, the majority opinion is overall positive and politely shows respect for dissenting religious and secular views on this subject. The dissent doesn't buy it -- the majority opinion is clearly same sex positive and rejects "demeaning" same sex couples by denying a constitutional right to marry. But, it is speaking in constitutional tones. Also, would the dissents be as concerned if racism was at stake and a general vibe of positivity involving racial equality is provided even though some people reject that sort of thing?  I seriously question this.

Finally, there was a way, especially Chief Justice Roberts, to dissent without being so bitter about it, without comparing a ruling protecting same sex marriage to overturning a maximum hour law or freedom provision. The dissent could respectfully note that homosexuals did have a history of discrimination, say that the argument about the synergy of equality and liberty has a point and some barriers here would be illegitimate. There was room for some common ground there without him sounding like one or two of the tools in dissent. Thomas, e.g., let us remember dissented in Lawrence while here assuring us same sex couples just can go about their lives. Plus, when the majority says they respect dissenting views, go with it. Don't send the message that it was really a wink wink and they won't be respected as a matter of law.

You might lose three votes here, but accept Lawrence v. Texas. And, finally, perhaps suggest some rights to couples are required though not yet  marriage. Perhaps, recognition (why was this even brought in? it was barely mentioned) or acceptance of out of state divorces or stopping a total ban of adoptions on account of sexual orientation.  Meanwhile, you say the right to marriage is too big to recognize now, things are still developing and the usual conservative line. And, tone down the Lochner stuff but use a bit of that and Washington v. Glucksberg etc. about concern for error.

Still wrong (he should know). And, one final summary.

Saturday, June 27, 2015

Mets Update

After dropping under .500, a two game winning streak pushed them over. The two hits in last night's game doesn't lead me to be that relieved. Murphy will be back eventually but the only real change so far is the rookie putative ace Matz coming up. He appears to hit well at least.

Reactions to Reactions

It bothers me that various people, including over at Lawyers, Guns and Money, are provided tired and/or unsubstantiated criticisms of the SSM opinion and unwarranted respect for certain dissents. There are the expected potshots at Kennedy's prose (I'll survive and the dissents were deep down worse unless you are only judging on style points*) and the alleged lack of clarity of what "the law is."  I reckon the law is that same sex marriage is protected.  Since marriage is deemed a "fundamental right," heightened scrutiny would seem to be followed unless the justices sub silento changed years of precedent.  Granted the opinion -- contra Heller -- doesn't have expansive dicta on other subjects.

Some, e.g., wanted the opinion to decide the level of scrutiny for sexual orientation, which is not necessary. It would have been a more activist and wide ranging opinion for a Court constantly favoring a more modest approach.  Also, some reference to use of "animus," which was raised in the "People's Brief," which I signed along with a mass of other people (thus it's name).  The use of state DOMAs to block legislative developments here can be cited as I have in the past to show how most if not all of the states still with bans had that extra layer of bad. And, as noted here, such provisions block the democratic means Roberts et. al. promote and support reflected in poll numbers. It is likely, especially given legislative bottlenecks generally, certain states still would not authorize same sex marriage. Telling point though.

Anyway, the opinion did focus on "dignity," a special concern in the animus area.  But, overall, as in Lawrence v. Texas, the approach used here is more comprehensive. And, animus cases -- see Windsor -- suggest the laws in question are in effect special burdens. This was more general practice. Finally, use of a more inclusive "part of a greater mosaic" approach is more welcoming overall and was a strategy of many in the marriage movement generally. In more "not just Kennedy" news, the movement has been known to use sentiment, including regarding the human interest stories / burdens of those being denied rights.  Is it really surprising that the opinion seems to be emotional there? 

There was also opposition (comments) to the use of substantive due process and arguments (comments; repeatedly conclusionary) that Roberts and Thomas did a good job challenging the majority on the point.  I get the general sense -- though one person kept on saying Kennedy didn't show his work (here regarding due process and equal protection synergy) though he clearly did (paragraphs worth) -- the criticism is more a matter of disliking the technique itself.  If you read the opinion, it provides clear analysis (using precedent) to show how the right to marry was long protected and in an open-ended way.  It was "presumed" that it involved man and woman marriage (but see Powell's concurrence in Zablocki, concerned about how regulations involving homosexuals might be struck down given the open-ended nature of the majority opinion). An evolving understanding however showed that the actual principles involved apply just as well to same sex couples.

Now, if you want to do away with years of precedent, fine, but it is unclear how the dissents challenge this in any other way. Washington v. Glucksberg won't save you either; it spoke of "new rights" and the "right to marry" is not that. Nose counting suggests the reach of potentially expansive dicta is limited especially once a range of cases are examined. And, the majority has a better case on how that right was expansively applied.  The idea that marriage was only about procreation or the only "core" aspect that simply could not be changed is man/woman does not stand up to scrutiny. How exactly is Roberts et. al. arguing things well by making the same specious arguments? If the courts can significantly change gender relationships in the 1970s given changing understandings (reflected by societal actions, expert knowledge, laws, judicial rulings etc.), why is this different?  Why is this supposed to be the act of merely five justices as compared to any number of other things?  Repetition of error doesn't make it less erroneous.

Some are concerned (accepting the ruling was a "necessary evil") that the opinion will be a "setback" including because now  "instead of having to defend anti-gay policies on the merits, [some] can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question."  Not seeing it as I say there -- is that the case with abortion?  Nor does the ruling settle each and every GLBTQ issue though it surely helps one side.  This is why so many were ecstatic in part because it will be used as a weapon for further success.**  A tipping point has come and as with abortion there will be backlash (with rights protected) either way.  How much longer should they wait?

The ruling, as was the case for Lawrence v. Texas (intimate association protected generally), has a broad reach.  For instance, the argument used here is partially about gender equality too, even if gender equality itself is not used as an argument (it is favored by some; not by many courts).  It is also about the right to make a range of marital choices just as freedom of religion includes not having one (many say they are "spiritual" instead; this might confuse non-hippies like Scalia). There was some pushback on Kennedy's pro-marriage language and I won't dispute he laid it on thick (he or a clerk might have seen it as a nod to their spouse).  But, like the reminder that marriage is only partially about procreation -- and choosing not to procreate is fine (btw must have missed Roberts et. al. explanation about the elderly marrying here)  -- more choices here includes the right not to get married.  Anyway, sometimes one forgets Kennedy is still some sort of conservative, even if the type many liberals can live with.

One discussion wondered why Kennedy would leave affirmative action but not same sex marriage to the political process, a reference to his opinion in  Schuette.  It is noted that Breyer also joined the result there though a reader might miss this in the analysis.  Also, the quotations aside, it is not as if Kennedy actually totally leaves the question of affirmative action to the electorate. He has rejected certain race conscious programs that they chose as unconstitutional.  Furthermore, affirmative action is a means to racial equality though some might believe it is a necessary one.  At issue here is a direct barrier on fundamental rights and equality.  No, the test is not that you only trust the voters when they are likely to vote with Kennedy.

The same sex marriage debate repeatedly leads to references of polygamy and incest, largely by opponents but at times by defenders with some sort of libertarian bent or desire for neatness. Line drawing as with development of the law is often not neat and we have survived, even if the rules followed seem somewhat arbitrary to some people.  Appeals to originalism here have been shown to be weak; complete trust of the democratic system rightly rejected.  OTOH, for those like Thomas who do care for such things, marriage has long been held to be a liberty.  If he wants to call it a "privilege or immunity" be my guest.  He argues "liberty" is about freedom from government action.  Marriage was just that -- it provided a realm of privacy to do things you otherwise could not do, including cohabitation.  Finally, not only spousal immunity but things like guaranteed widow benefits show how the "p/i" would work here. Plus, the distribution of benefits cannot be done in an invidious fashion.

Anyway, the majority did list "two-person union" as one of the four principles of a right to marry though Roberts in effect noted this was an arbitrary limit as compared to man/woman marriages.  The majority did not spend time discussing why polygamy is different. The core reason is that societal developments have recognized same sex relationships, which even the states accepted on some level.  Polygamy does not have such wide recognition and for good cause.  The majority might have said a bit more about that but this concerns few, including those who are open to expanding marriage to include them.  Monogamy was part of marriage precedents; the issue at hand is same sex marriage and time shows that they fit the ends of marriage.  Incest seems to have been avoided.  If such cases arise in the future, and they likely will in some fashion, the specific concerns can be examined. 

I'll be interested in seeing further developments here. As noted near the end of the opinion, the marriage "debate" is far from over even if it goes on now with basic rights protected for the group in question. This is true in general -- the push to look "beyond marriage," protections for non-marital relationships for all types of people has been ongoing for years. And, there are a range of interests to gays and lesbians, not even including trans issues that are far from fulfilled by this ruling.  After all, Loving v. Virginia did not end things for race.  For now, congratulations.


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* A low point was when Chief Justice Roberts, yes the Chief Justice of the Supreme Court of the United States, told same sex couples to "by all means celebrate today’s decision ... [b]ut do not celebrate the Constitution. It had nothing to do with it."  The bitterness is dripping.  Precedent for over a hundred years protects a right to marry as a "liberty" protected by due process and equal protection is right there in the text. So sorry. The Constitution has "something" to do with it.  And, "Lochner!" And, for added effect -- Dred Scott!!!  Equal rights to same sex couples, as we know, is akin to the non-personhood of blacks or stopping wage/hour legislation. Not like? Declaring unconstitutional PPACA or voting rights laws.

Justice Scalia is just too easy of a target -- his dissent is redundant in respect to the "leave this to the people to decide" message since Roberts already covered that. It was mostly a gratuitous chance for "Scalia to be Scalia" and be joined with Thomas in so doing.  I will grant that some of his remarks might be funny -- partially to save time -- like you would think some slightly deluded outrageous elderly family member might be.  But, seriously now, this guy has passed some tipping point. RBG? Isn't it about time to have an intervention? Or is it your crafty way to degrade the brand?  Alito here is bitter without the wackiness.

** Andy Humm (Gay USA) on his Facebook page: From the great gay journalist Steven Thrasher: "Just got off the phone with Roberta Kaplan, who argued Windsor, who explained to me all the legal ways today's case is pretty much everything we wanted, and lays the legal framework to prevent discrimination across the board in many arenas beyond marriage. 'There is nothing in it I am worried about. It states in no uncertain terms that gay people are fully protected in a manner of equality protected by the Fifth and 14th amendments. And that's what this movement has been fighting for now for decades, and for the 20 years I have been involved. This is the pinnacle of our success so far, and it is hard for me to see now that any court, anywhere, state or federal, could possibly tolerate discrimination against gay people on any basis.'

Friday, June 26, 2015

Same Sex Marriage

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The majority opinion in the same sex marriage cases is basically as expected -- by Kennedy, in poetic language and resting on basically an "evolved over time" view of constitutional rights, a "synergy" of equal protection and liberty here given more expansive reach than in Lawrence v. Texas.  The nature of the right, history of discrimination and a citation at one point of the immutability of sexual orientation was cited but no specific level of scrutiny regarding equal protection was used. This is fairly typical of recent case law.  Marriage is a "fundamental right" and was always treated in an open-ended way.  Originally, it was assumed to be different sex, but over time, same sex couples were understood to be included.

I am somewhat surprised Roberts didn't find a way to concur somehow, perhaps on recognition or the possibility some sort of civil union or domestic partnership rights are required and the force of his dissent.  The other three, including their concerns, not so much.  OTOH, not really sure why Alito didn't join Roberts' dissent -- it covers all the bases.  Each justice dissented, Scalia and Thomas joining each other and Roberts (with Scalia/Thomas) and Alito (with Scalia/Thomas) provided their own. 

There is "no difference" (of constitutional moment -- but the message that the majority opinion means in general clearly rubs the dissent and others the wrong way) between same sex and different sex marriage.  As I think warranted, the nature of a constitutional right to marry was discussed.  A pure equal protection ruling is favored by some, but there you need to show why the two groups are the same for relevant purposes. I would add like some sex discrimination argument (which has only had limited reception in lower court opinions) and/or more of a focus on equal protection (including "animus") would require more going into the weeds, while this approach will likely be more "popular" in nature. The SSM opinion by Judge Posner has its charms; it's out there for those interested. This more "poetic" (which really turns off some people) approach has its own value.  Anyway, four general purposes of marriage:
  • right to personal choice regarding marriage is inherent in the concept of individual autonomy
  • two-person union unlike any other
  • safeguards children and families  [childbearing is only one]
  • keystone of our social order 
"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."  The opinion spells out how marriage changed over time regarding sexual roles, premarital intimacy, financial issues (like child support) and so forth.  But, for the dissent, that doesn't really matter.  The "core" of the definition of marriage remains one man and one woman. The fact that "human society for millennia" (to cite Roberts) would find many of our current marriage norms, many treated as constitutional rights, absurd is ignored.  Core?  Who says?

Well, as Roberts argues:
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
This is a piss poor summary of the complexity of marriage over human history.  Marriage norms came about and developed over time, different in various ways in different cultures, by a range of reasons.  The case could have used a concurring opinion discussing sex roles, including how singling out marriage between a man and a woman, even though the overall reasons (not just procreation and raising children) didn't require it, and how this makes a sex discrimination claim a strong one.  A history of same sex relationships over human existence would have been helpful too. Yet again, I am concerned with the idea same sex marriage or even same sex relationships developed sometime in the mid-20th Century or later.

Alito, whose short dissent was in effect a warning about the possible negative effects of same sex marriage, alleges that the majority "focuses almost entirely on the happiness of persons who choose to marry."  Roberts noted the claims made seemed to generally be about how "marriage is desirable and petitioners desire it." But, dislike its tone or not, the majority recognizes a certain sacred nature to marriage, it is not merely something "desirable." And, claims made by individuals would logically focus on personal happiness.  But, the "keystone of our social order" is clearly not just about that.  Marriage is not just about procreation or personal benefit. A full protection of equality is a value for all, which is after all clearly shown by the discussion of children and their needs. 

The dissents are full with such lame arguments, down to the usual canard about judicial activism, a bit weak coming from people who wanted to overrule PPACA and major civil rights legislation.  A drinking game might be created for every time Roberts cited Lochner or Scalia (who mind you, doesn't really care much about this specific issue) said something stupid ... I mean snarky (hippies, tall buildings etc.).  Roberts also argues that a right to privacy provides "no support" -- not "not enough" -- to the claims here. Privacy is protected; there is no criminal burdens here either.  But, the right to privacy includes the right to make certain intimate decisions and marriage rights (and the majority ends with a reminder only "civil" marriage is at issue here) protect them in a variety of ways.  Loving v. Virginia would not have been decided differently if no criminal charges was at issue.  Stick with the "go slow" approach. This stuff is weak.

The summary of the core aspects of a right to marry to me is fairly obviously right.  Scalia can sneer at some right to intimacy and spirituality (the word seems to confuse him), but it is a well recognized thing.  The majority's citation of the special nature of the "bilateral" (Griswold) nature of marriage could have used more discussion, given the usual concerns about polygamy.  But, Roberts claim (backed up basically with a single cite of the oral arguments, not any of the numerous briefs) the claimants didn't differentiate is b.s. As is Thomas (who spent much time criticizing substantive due process) claiming same sex couples basically can "in peace" raise their children and so forth.  Deny different sex married couples the rights arising from marriage.  See how that goes.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.
The general argument that the majority preemptively is stopping political debate over this topic is answered by citing various recent developments. I think more could have been shown how rights of gays and lesbians (and "couples of the same-sex" generally) developed over recent decades. Appendixes were provided listing legislation and lower court cases. The "First Amendment" rights of those who believe differently was noted. This again didn't impress the dissents, which might be understandable on some level -- the side of "right" here is apparent.  OTOH, consider this from a 1880 opinion, regarding racial discrimination:
At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected.
Such references to  "positive dislike" (and more could have been shown here how state DOMAs grew out of this -- the background of the provisions, not just some general legislative choice to not recognize -- is one more thing that could have been helpful here) suggests the Constitution plays favorites here. Makes certain choices, even though many in 1880 still believed that race justified special discrimination (if they even would accept that framing) quite as passionately, often with natural law arguments.  Thomas here cannot even accept the laws here really "demeans," in part since people retain dignity.  So did blacks at that time.

We will see various people -- I already did -- complain about various aspects of the opinion.  It could have been written better in certain ways.  But, overall, it is a good opinion that mixes the developing nature of the history of our liberties with concerns for the equal protection, particularly dignity, of gays and lesbians. Contra the dissent, the Constitution "says" something about such things, no less than it does about the "dignity" of states to the degree a major part of national voting rights legislation, passed by the people, was declared unconstitutional.

The time for it has come.  I'll add one thing -- Scalia argued this debate has been declared closed by the majority. Obviously not.  The debate will continue.  What the majority did, like his majority in Heller, was protect a constitutional right while the debate continues.  Did they lose something too?  So, we are talking about a certain type of discretion, one limited by constitutional law.  There is and will always be a deep divide there.  This doesn't mean one or the other side is not applying the law though on some level we are a government of men (or people), since who else runs things? (I can say more, but will end there.)

The "Other" Ruling

After Kennedy announced the 5-4 (sigh on the closeness) judgment supporting same sex marriage as a constitutional right, Scalia had a personal moment of his own, announcing 6-3 (two of them agreed on statutory grounds; only Alito totally dissented) an important federal criminal provision as unconstitutionally vague. Three left for Monday.

Thursday, June 25, 2015

SCOTUS: "Whew"

And Also: There is obviously a lot of commentary, including from the usual places I go, about these two cases. One discussion spoke about how disparate impact deals with "unconscious prejudices."  Another on the ACA decision highlights a portion that suggests a signal that the justices are getting tired of challenges.  Some call out the inconsistency, shall we say, of Scalia.  Notable as well is a portion in the copyrights case dissent by Alito on the difficulties of congressional action. Seems easier now, huh?

This is the sentiment of many, and not just on the left, regarding the two opinions today involving health exchanges and disparate impact in respect to a fair housing ordinance. Scott Lemieux has blogged a lot, believing the "Moops" argument as to exchanges had a good chance of winning.  I'm sure he is glad his pessimism was wrong -- Roberts wrote a 6-3 opinion upholding the lower court that accepted the government's argument. Kennedy, as expected, wrote the FHA opinion though this time 5-4.  This was probably considered a nice birthday present to Justice Sotomayor.

The health exchanges ruling on the whole was sane. It made some potshots at the apparently special problems (including "secrecy") as to how the legislation was made (a citation to an old law review article and cartoon reminds one of the infamous Pelosi comment). This is b.s. though perhaps the old citation reminds it isn't so novel after all. (edited upon reading the linked discussion)*  It says the specific text is "ambiguous" (arguable) and the challengers have a "strong" case on that but that taking the law as a whole (particularly its purpose; might be a "Breyer" friendly opinion -- see his books), the government's interpretation is correct. In fact, so-called Chevron deference is not applied (at least it says this), so a later administration cannot even decide to use Scalia's "absurd" reading.  Scalia accuses the majority of more creation by interpretation, suggesting "Scotuscare," which might be better than Obamacare -- SCOTUS did make the Medicare expansion voluntary, more power than Obama himself has. 
The ruling is a defeat for banks, insurance companies and other business groups that claimed such lawsuits are not explicitly allowed under the Fair Housing Act, the landmark 1968 law that sought to eliminate segregation that has long existed in residential housing.
Given seniority, Roberts announced the case last (Scalia announced his dissent aloud, as usual, without audio or transcript; Obama had a good statement about the case and ACA itself later on as well); the first case announced was the housing case.  This was a significant case that went beyond the specific claim.  The opinion suggests the claim itself (regarding placement of certain housing) was weak.  Those who wanted the case to be heard, at least some of them at least, were aiming for bigger game -- to take away as a matter of statutory interpretation (though the dissents seemed to be as concerned with alleged negative policy implications) -- to deny disparate impact is covered by the law in question.

This is big since intent is a lot harder to prove; it is easier to start with impact, even if you have to show evidence the policy in question caused that impact. Scalia in oral argument raised an example -- the fact the NFL has a lot of black people does not in itself mean the NFL is "discriminating."  But, the fact that there is a lot of a certain type of people by color in certain sports is fairly telling.  It is likely, though it can be rebutted, that race had something to do with it.  History -- as cited by the majority here in the context of the creation of the housing law (the setting and purpose behind ACA also was cited in the other statutory case) helps show this.  Disparate impact therefore is a useful tool in policy-making.

Kennedy rarely references dissenting opinions (he did so in his concurring opinion in the contraceptive mandate case and those in the know should have seen it as notable) but here speaks of the "well-stated principal dissenting opinion" by Alito (Thomas concurred as well separately).  This might be because Kennedy is sympathetic with the overall concerns with use of race when invidious intent is clearly not shown, including in the area of affirmative action and school integration.  But, Kennedy repeatedly leaves open -- if as here with caveats -- some room for maneuver.  Some ability to take race into consideration when appropriate. 

Kennedy in particular refers to the example that Alito leads with -- "No one wants to live in a rat’s nest."  This refers to a lower court opinion in a case that was settled before SCOTUS was able to decide the matter.  In some fashion, it's not advisable to trust Alito's framing, the lower court held that enforcement against code violations that fell the most on certain housing was discriminatory under the law.  Kennedy noted it is unclear, especially given the majority's language regarding proper governmental interests acceptable even if there is some disparate impact such as dealing with "rat nest," how the test in the opinion would be applied there. Net, disparate impact is likely to benefit residents as an additional tool. Anyway, precedent also made this an easy call.

A careful opinion that made things somewhat harder for people who feared a full loss and a sane ACA opinion with a few potshots. "Whew."  Five opinions left.  Expect the SSM on Monday.

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* The idea there was not a normal sense of "care and deliberation" in legislation that had much more attention given to it than usual is annoying. There was some difficulties regarding the lack of expected editing, but the context there should be recalled -- Republicans simply would not let that be done, even if no substantive changes were made. Even there, I reckon legislation had some problems in the past because of late developments. The size of this legislation made it an issue here but only so much.

Wednesday, June 24, 2015

The Real Reason #SCOTUS Justices Don’t Want Live Broadcast of Opinion Announcements?

Release of opinion announcements is an especially prickly issue with the justices. The announcements are summaries written by the justice who wrote the majority, and the other justices in the majority don’t sign off on the wording.

So, reportedly (though I never hear them asked about it myself), justices don't want them broadcast. But, they are reported on and Oyez.com includes them online eventually. And, do they sign off on headnotes? A disclaimer is enough there. So, sorry. No sale.

Confederate Flags

How is that race war going? Instead got the victims' family forgiving you and South Carolina (is this the "end of the war" moment discussed on C-SPAN Civil War analysis over the weekend? special Juneteenth event?) et. al. removing the Confederate flag from statehouses and such. The SC process is convoluted and the governor had to paper over some things in her statement. But, impressive. Not sure about all these retailers, even when third parties sell them, barring sale though. Public endorsement is my concern; don't like shutting off private options, which will in various ways offend. A bit on the U.S. flag.

Tuesday, June 23, 2015

"Casey and the Clinic Closings: When "Protecting Health" is an Undue Burden"

The draft title article by two supporters of abortion rights is a convincing brief to not apply Casey merely gratuitously to burden women's health, but think more should be added to cover acceptable regulations. For instance, ultrasound laws allegedly have a mixed purpose of health and promoting fetal life. Where do they fit? Is the problem with some the fact they are not truthful? 24 v. 72 hr. waiting periods? Other laws? They aren't fans of Casey, but want to apply it fairly. This is often tough, if necessary -- real life requires compromises.

The "tender-hearted" SCOTUS

I will say some more about yesterday's opinions that have received some commentary including regarding the importance of the takings and administrative searches (hotel guest registry). One discussion on the latter noted that the decision states: 
a clear doctrinal rule requiring an “opportunity for precompliance review” for virtually all governmental inspection programs. While the decision on the specific Los Angeles statute is close [5-4], the Court does not seem divided on the fundamental principles. Thus the Court appears to fulfill one of its primary functions: stating general rules that can be relatively clearly implemented, to guide governmental and litigant behaviors on a national level.
While we can debate the substantive merits of such opinions and quibble over language, this is an important bottom line, including when talking about stare decisis (an issue in another case yesterday, once that again split Scalia/Thomas, this time Scalia was the one assigning things to a liberal justice).  These cases are important partially because they retain some basic limits that should relieve the hearts of liberals who are inclined to generally deem the Roberts Courts a bunch of retrograde fascists.  The split might too often be too "close," but there is enough there for hope, especially since it provides the tools for willing (and even some wary) lower court judges and others including the victims that now have more tools to fight back.

Though I'm still inclined to think the raisins case was overblown, the basic idea that we should be concerned about the government taking all types of property illegitimately, including without just compensation is part of this whole affair.  A comment here, e.g., suggests the possible breadth of Sotomayor's "if you don't take all the property interests" rule.  And, though I really question she would apply it to seizure of 1/3 of a hotel's rooms, the concern has some merit as a matter of principle. Yesterday, therefore should be seen as in some small way protecting various constitutional rights, especially given the breadth of administrative power, those detained in the criminal justice system awaiting before being found guilty and so on.

The split is still too close at times and it is troubling that Chief Justice Roberts continues to at times join broader opinions as seen both in the passport case and now in a prison excessive force ruling. Again, Alito found a way to avoid the broader argument while Kennedy this time joined the majority upholding the liberty interest at hand.  Thus, Roberts' join of Scalia (and Thomas) again seems gratuitous. Usage of a federal statute in place to protect federal civil rights (even though there was generally also state means of relief too given state action is involved) is a "tender-hearted desire" to federalize tort law.  The "tort" here alleged excessive force against a person in criminal custody, but still legally innocent. Scalia's dissent argues that: "The Constitution contains no freestanding prohibition of excessive force. "The Fourth Amendment not at issue (Alito relies on this), allegedly the only thing left is an "intentional infliction of punishment."

The majority, correctly and more logically, holds that the Fourteenth Amendment's protection of "liberty" is more stringent. As one opinion cited noted: "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose."  Not only is use of force in a prison without a legitimate purpose in effect assumed to be "punishment" for constitutional purposes, one would think obviously there is some bare minimum standards of treatment in government detainment. 

The opinion here holds that the force must be judged "objectively," not merely trying to show the specific officer subjectively intended to hurt the person. The added requirement is more appropriate in the 8th Amendment context where such intent has been deemed necessary.  This has application in a case of current notoriety.  A reliance on subjective intent can be much harder since even if objectively something is unreasonable, a particular actor might be able to show the lack of the guilty mind needed to obtain satisfaction.  We should not have to rely on the unreasonable assumptions of state actors at some point -- at some point, when finding fault and/or the need to provide damages, a general sense of reasonableness should be enough.  This is particularly the case where criminal allegations are not at issue but civil right claims. 

The Court is not only "tender-hearted" to raisin brokers.