Proverbs

Wordplay is the funhouse of lawyers, but we should not be fooled into believing sophistry, even if we respect its skill.

Fiction Honored

"Every American" does not have to "buy" insurance under the PPACA to avoid a "fine" as epluribus notes here.  The poll question is a mistruthful push-poll.  Prof. Kerr pats the person promoting it on the back.  Educators should not honor and help promote ignorance.

Slings and Arrows

To be, or not to be, that is the question:
Whether 'tis Nobler in the mind to suffer
The Slings and Arrows of outrageous Fortune,
Or to take Arms against a Sea of troubles,
And by opposing end them: to die, to sleep
No more

One charm of this Canadian series is how it honors the wonders of Shakespeare, including a great monologue by "Geoffrey" on the thought processes of Ophelia in Hamlet, various insights on staging Macbeth (including audience reactions) and the actual sexual energy possible playing things on the stage.  Such insights and passion is often not found on our shows these days, many of them procedurals that have their charms (I'm liking NCIS these days) but not having such intimate depth. 

I never did (reading a few and watching movie versions) but it makes me want to see a live performance of Shakespeare.  I am a bit concerned about a full length production with its language and such but something like Romeo and Juliet (here the star was so intimately connected to his Juliet, that he had his first heterosexual affair)  or Hamlet seems approachable. 

Silliness of Originalism

This tidbit from a law professor working on a bio of someone sometimes seen as the Madison of the Fourteenth Amendment is but one more example of the subject.  See also, long articles like this, which provide disputed analysis of one Framer's views.  It is a shame so many rely on this angels on a pin method as authoritative.

Slings and Arrows (S2)

Typical sophomore jinx -- first episode basically closes S1 plot lines as if everyone is ready to leave.  New plots not as interesting.  Hits a certain stride mid-way and the cast is still likable.  Still, somewhat disappointing. More evidence that you can say "fuck" on Canadian TV.

2012 Oscars

Didn't watch (Billy Crystal? yawn) except for the touching speech by the Iran film winner, alluding to current controversies but the glory of the arts win out.  Like many, haven't see The Artist. Midnight In Paris, Rango and The Beginners bored me.  MHP scared me from The Help but maybe later.  Will try to see a few others later on as well.

Beginners

Going down the list of Oscar films, The Help is being discussed on Melissa Harris-Perry (she was insulted and used it to talk about various issues) right now and Beginners meant well, but the turgid pace and style made it unwatchable for me after a short time.

Stolen Valor Case

Volokh Conspiracy often is best read for its comments.  As is sometimes the case, they can have the better of the argument than contributors, though others simply go off the rails.  It is interesting to read the responses to these people too (and helpful to read the wrong-minded ones) as it was back in the day when I started commenting privately to op-eds, which provided convenient abbreviated summaries of issues of the day. So it went with the "stolen valor act" case that just was heard by the USSC, this time Prof. Volokh supporting criminal penalties for certain categories of speech, certain viewpoints in fact.  Contra:

In 2007, Xavier Alvarez of Pomona, Calif., was elected to the board of the Three Valleys Water District. At a board meeting, Alvarez introduced himself by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez did not just lie about being a war hero; he lied about many things. His catalog of untruths include playing hockey for the Detroit Red Wings, marrying a Mexican starlet, and rescuing an American ambassador during the Iranian hostage crisis.

Now, out of all the lies he told, one of those is punishable by the Government. Why? Well, because. Because it pisses some people off. But why stop there? What if you falsely claim to be a postman to your friends? What if the government sets up a database of other facts that you shouldn’t contradict?

What if the Government really, really like the Detroit Red Wings?

Look, don’t get me wrong. False statements have (almost) no value. And they can be actionable (see, inter alia, fraud). But America, for lack of a better word, was built on puffery, exaggeration, re-inventing yourself, and, yes, lies.

Prof. Volokh (the USSC link provides his brief) wants to draw the line at knowingly false statements of fact (mistake or satire not the issue here) via neutral laws such as against false statements regarding all medals of honors.  This would allegedly get around R.A.V. v. St. Paul, which struck down a hate crime speech law (a law only about cross burning, that is, perhaps like the long ago law about wearing medals, was treated differently later on)  that targeted only some types of class based hate.  The ACS Blog link above dissents from the "this law is neutral" argument particularly since the law doesn't criminalize false denials.  Also, the law narrowly addresses one sort of honor, just like the other law was criticized for targeting only certain types of hate. 

Volokh also belittles (contra to a strong concurrence by his former boss, Judge Kozinski) the possibility that a whole list of possible lies might be criminalized.  Not likely to happen.  Oh?  A silly argument by a scholar who is aware of a slew of petty laws out there against speech.  This very law is petty, particularly if the thing is interpreted narrowly (as any law targeting speech should be).  The very name -- stolen valor?  This sounds like the stereotypical primitive who thinks his/her soul is stolen via photographs.  What is "stolen" in any real sense by some liar here?  If lies of this sort will now be criminally actionable theft, where is the stopping point?  There isn't one, so we will have selective prosecution depending on what particular viewpoint we find important at the moment. 

If the issue is that it influenced the obtaining of a job or something, that might be different, though a neutral law about lying on a government application can easily apply there.  But, this is speech and as the appellate court opinion noted, strict scrutiny should apply unless some exception is involved.  Yes, false statements of fact were deemed not by themselves to have constitutional value, but criminalizing them all would be problematic since free speech needs breathing space.  Thus, it is hard to claim libel when matters of public importance are at stake, even if the statement is untrue.  Judge Kozinksi also noted the importance of personal expression, litigating personal lies could be problematic on that level.  The original  (Kozinksi concurred on en banc review) appellate court panel noted:

In sum, our review of pertinent case law convinces us that the historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements, carefully defined to target behavior that is most properly characterized as fraudulent, dangerous, or injurious conduct, and not as pure speech. We are aware of no authority holding that the government may, through a criminal law, prohibit speech simply because it is knowingly factually false.

Like cases involving animal cruelty and violent video games, this law provides a somewhat novel question that forces the point, a type of "pure" false statement that an overly literal (see the dissent below) application of dicta might be thought to allow. This case is not about lying to a federal agent or as Volokh (with his co-writer) suggests about lying online to talk to a minor about sexual matters.* A special relationship or protecting minors CAN possibly be a compelling state interest.  There is no compelling state interest in this case. It is a symbolic piece of legislation to provide a type of shame to those who lie about military records.  It is not even about someone who actually was in the military who has some additional responsibility.  This interest is not totally trivial, but not enough when speech is involved.

The best case that might be imagined is to think of it as a type of trademark security, though again, not all government honors are so protected even there.  It is also a somewhat strange trademark law, even if one argument was made to shoehorn it in.  The government is clearly not really relying on that argument. As SCOTUSBlog notes, it will try to uphold the most they can by interpreting it more narrowly than its language suggests.  This is common practice.  I'll stick with the NYT and others to argue it is not worth the effort and trivial as the case might be on some level, the underlining principle is not.  Petty laws targeting speech are not only shallow but set forth dangerous precedents. 

I listened to some of the oral arguments and it was somewhat disconcerting to hear the defendant's counsel (who after all won below) sound so disjointed.  Judge Kozinski wrote a strong opinion about the troubling nature of the law but for a significant amount of time, you failed to get a sense that much was at stake but general principle.  The advocate even made a "concession" that it might not chill any speech.  Rather striking.  Contrast Judge Kozinski, cited by the LAT:

"Lying about being a military hero is despicable and may have some impact on the government's ability to recruit genuine heroes, but it's hard to understand why it's so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes," or other unpopular speech held to have constitutional protection, Kozinski said.

"Some impact" is not a reason to criminalize speech and if other speech or speech-like acts can cause similar harms, why are they not chilled?  Santorum, e.g., (h/t TPM) had an ad that mentioned his "Armed Services" experience, alluding to his time on the Armed Services Committee.  Arguably, this misleadingly sends the message he was in the armed services.  The government would likely argue that the (the literal reach of the statute possibly notwithstanding) that this does not count since he didn't intend to falsely send that message.  Is the court of law a place to determine such statements by politicians?  Some statement in some media interview or the like? Add this to the "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship" argument, you had an opening for a strong case against the law.  Not quite at the USSC earlier in the week, however. 

An appellate court as this case was pending upheld the law and a better case should have been made here, even if one does not think oral argument matter that much.  Bottom line, criminal penalties should be used sparingly given "Congress shall make no law."  Special interest exceptions need not apply.  And, even putting aside that, this is a petty piece of symbolism while more important protections are not provided. 

[And Also: Prof. Volokh and some others also do not find much to be upset about in regard to proxy baptisms by Mormons, particularly of Holocaust victims like Anne Frank.  To briefly comment, particularly since I'm taking a break from doing so there, I'm inclined to be with those who find it at least somewhat troubling on respect grounds.  Since this law is largely about just that, there is a connection.  And, here too, the main concern is what should be done, not something that should be legally actionable.  The former means a lot more at the end of the day. 

I find it troubling that some go on and on about how religion is rubbish, so who cares?  I find much religious belief wrong, but I find a disconnect with some who I agree with on other issues when they find it necessary to rub their nose in it.  After all, there are quite a few liberals who practice Christianity and other faiths that have beliefs that seem irrational. Why gratuitously take potshots? When they want to remove rights from others, sure, but in general, it seems bad manners.  And, the idea of some that even being offended is stupid seems rather much.] 

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* Any exception to the general prohibition against censorship tends to bring with it problems, underlining the misguided approach by Prof. Volokh here in the pursuit of doctrinal purity.

As someone online for years, I can tell you that even this apparent no-brainer matter is not without complications. For instance, in chatrooms, people often knowingly pretend to be someone else for role playing purposes, including being another sex or age.  Criminalizing lying in this context can be problematic, particularly when entrapment is mixed in. 

Ho Chi Minh City

This received some hits previously but not sure about from Vietnam.

Rum Diary: Rating etc.

[SPOILERS]

Rum Diary was rated 'R' -- "for language, brief drug use and sexuality."

The brief drug use was something of a tacked on scene (much more drinking in the book -- the fact the lead comes off as somewhat boring at times here is one problem with the film) involving some mysterious psychedelic drug provided by a crazed roommate and applied via eyedropper.  Nothing much happens for a bit, then our young Hunter stand-in sees his buddy's tongue get real big and soon the two are wandering around a bit in the dark night.  Johnny Depp's animated film Rango was more psychedelic by far (if to me, more boring). 

The language was not noticeable.  They might have used the dreaded "f" word at some point, but I did not get any sense of it being adult level language as a whole.  As to "sexuality," how that even gets you a rating where you cannot go with an adult if you are under seventeen is unclear.  Notice it didn't say "nudity."  Nudity is hinted at times, but you never actually see it.  You do see a quick scene of sex in the distance without anything being explicitly seen.  Another sex scene is interrupted before it barely gets started.  Amber Heard has some sexy moments here and she looks like a young actress to watch.  Still, not seeing that rating here.

A bit on the story.  The movie takes the basic outline of the book, removing one character and giving his girlfriend to the no principle money guy that tempts our hero,* the usual sort of movie compression as was omitting Paul's actual plane trip into Puerto Rico.  A local watering hole that provides the opening scene of the book is also mostly ignored, a more questionable choice.  The changing of the boyfriend results in some plot changes involving the girl (Amber Heard) and causes some plot confusion.  His pal (standing in for someone else) comes along at one point when it doesn't make much sense for him to do so. 

The overall idea of a young (but to him getting old fast) writer experiencing some life stuff in Puerto Rico, including with a colorful press photographer (Giovanni Ribisi adds some color too as a crazed crime/religion reporter)  staid largely the same.  As fleshed out more in a "making of" segment, the idea is the writer/reporter cannot find his voice and the experiences here makes him develop into his "get those bastards" persona.  You do not really see it, to be honest.  The movie promises more craziness than it really delivers, even the striking rape (we see the lead up) found in the book watered down here, down to much less sexiness on the dance floor.  Depp seems strangely toned down here repeatedly. 

And, the ending sort of comes in a rambling way (involving a cockfight to suddenly make some money for some last bit of justice that came off as unlikely, which they do not actually use and then a thing with a boat and ... a tacked on "happy ending" final crawl that really seemed ill advised)  that I found badly done.  The book was somewhat disjointed there too but handled things better (no cockfight, for one thing), without the happy ending business. It left things more appropriately hanging.  The film had charms like I said earlier but in a disjointed fashion, including various supporting characters and some good scenes.  Tellingly, I watched it in dribs and drabs, getting bored.

The extras were a "making of" segment that was pretty good and a rather drawn out home movies flavor documentary regarding the real Hunter Thompson editing the work and trying to get (a decade ago) it made into a movie.  This over forty minute segment could have been shorter.  

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* Aaron Eckhart is well cast here but after awhile, has not enough to do.  The same might be said for the great character actor Richard Jenkins, playing the editor.  The others, besides the three cited in the text, were generally okay, but nothing special.  Michael Rispoli as Sala was very good though at times he was a bit too talky. 

A Room with a Zoo

Had some bad luck finding a book recently to read through so tried  a safe choice -- this charming book with cute illustrations.

Rum Diary

The book read like a rough draft of a young writer that was left unpublished for years.  Some good parts but not good as a whole.  The DVD extras (with Hunter Thompson) showed how long the film was in development.  Similar result really with Depp et. al. still providing enough to make it worth a look. Last part still rather weak.

"sex should be free from consequences"

This thread like others raises some ugliness, including this seen before trope.  The idea is that somehow Griswold or birth control being covered equals protecting licentiousness.  Such ignorance. A small nod too to Dilan -- usually worth reading, but on religion, uh ...

Girl Scouts

A comment at BTC News etc. alludes to a Republican legislator's shot at the Girl Scouts, but on religious issues, gays and so forth it actually is saner, more so than the Boy Scouts. Also, they are for girl empowerment. Anti-conservative! Yes, rather ridiculous too.

Sandra Fluke Talks About Contraceptives

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

-- Article I, § 3 of the New York Constitution

We here in NY manage to have religious freedom as well as a requirement for religious employers to provide insurance coverage that includes contraceptives. It is noted that the First Amendment does not have a proviso like this one has but as noted in the past, it still protects religious exercise more than the current official understanding of the federal Constitution as applied to laws of general applicability. I covered this issue back in 2006 (tempus fugit) here.

The controversy that an application of a similar rule pursuant to the PPACA has received a lot of coverage, but various details are often missed. The important points might still be cloudy. For instance, what is a "religious employer" for purposes of federal law here (note that this is pursuant to this administration's interpretation of the law, underlining the importance of who controls the executive department)? With apologies to Rachel Maddow, this site lets us know:

A religious employer:

• Is a nonprofit organization

• Has the inculcation of religious values as its purpose

• Primarily employs persons who share its religious tenets

• Primarily serves persons who share its religious tenets

Thus, even for religious schools, not merely churches, you do not have to provide birth control to nuns, but it could be different if non-faith employees make up a significant part of the facility and staff. If the institution is so insistent to not provide coverage, or even indirect fund those that do (or, as in reality is the case, some of them), don't hire non-Catholics in this situation and only serve those who follow your tenets. If you don't want to do that, yes, you will have to follow some general laws. Since you are no longer doing something purely religious, but something that can be regulated to deal with the general public affected. They want to have their cake and eat it too, however.

The "threat" to religious liberty led Rep. Issa to hold an oversight hearing (and I wonder if anyone picked up on this) with even the url to the video being politically charged. There was controversy because of the lack of women on the first panel, but he noted: "The hearing is not about reproductive rights and contraception but instead about the Administration’s actions as they relate to freedom of religion and conscience."  [I would add that is wrong for another reason -- the witness was concerned not just about that, but women's health as a whole.]

Sure, that's why there wasn't a woman on the first panel (the stupidity of this underlined by the presence of two on the second -- there are women against even the compromise policy out there) and giving the minority party all of ONE witness. And, "freedom of religion and conscience" is not absolute, nor is it non-germane to have the other side there to address the question. Reasonable opposition recognizes such things. Ms. Fluke was represented on the hearing's website via a link to a press conference that included others like her, which is nice, but it would have been nicer if they were represented on the actual panel. She also came in for a special Democrat only hearing today. Instead, we have talking past each other, made worse given that even the Catholic Charities and Catholic Health Association (why weren't they there?) support the proposed solution.

A real debate on this issue would be represented by having the Democrats' side represented for a few witnesses, instead of the one sided affair that took place. If something that has bipartisan, broad Catholic support results in this, well, that's rather telling in itself. One concern raised by the panel was that Plan B is covered.* That sort of thing has a shred of logic, more than harping on the fact that "pregnancy is not a disease." A moronic statement -- the issue is the real health effects of pregnancy, which is a major reason why Catholics do not generally have ten children, even if they have the money to care for them. But, real debate of possible sticking points is not the point here. Major fail.

One of the women panelists (in the second round) offered "reasonable alternatives" to having the insurance company provide the coverage without charging the institution. I still find this akin to that bit on The Daily Show where it was noted that there are just so many ways for the government to pay for abortion, so what we really need is special money (dollar bills) so that pro-life people will not be corrupted. After all, we pay the salaries of building inspectors to clinics. Pacifists also ridicule them on what the government forces them to do.

Anyways, these "alternatives" would include the women paying for it themselves, their employers or via their spouses. Ms. Fluke notes that contraceptives could cost $3000 over the span of one's attendance at law school. The point of insurance is avoid out of pocket costs. Many of these people are not married, particularly those at college. Many are not employed -- why do they need insurance at all if they can get it that way? -- and many opponents would like to let many employers not cover insurance either. So, these "alternatives" are weak, leaving the option of individual credits. Where will this money come from? Unless this is some sort of unfunded mandate, it will come from somewhere. Perhaps, less funding to education institutions and so forth?

I guess finding not overly credible distinctions is something Catholicism has had a long history putting forth, but the bottom line is that money is fungible and at some point, the religious institutions have to recognize the lines they are drawing here are silly. They are not being asked to directly promote, distribute or even fund contraceptives or even those that do so. They interact with various institutions, down to those who build their campuses and serve their food, that in some fashion support violations of doctrine. Do all cafeteria food come from companies without same sex couples being given benefits? If not, is not the Church funding the promotion of same sex marriage? Seriously, why is that different?

Ms. Fluke's remarks (she doesn't appear to have been sworn in, so it isn't "testimony" as such) underlined the importance of the drugs in question for women's health. It is my understanding, though some appear to be confused here (I say this in part from reading blog commentary), that non-birth control related use of these drugs is not the issue. But, as with narrow "health" rules for abortion, one problem is that once you make it controversial, those who need it for ovarian cysts or whatever will have a hard time. Some providers (and students) will not understand the after all unreasonable lines being drawn. After all, the basic idea of preventive health apparently is too hard for some to understand, sneers of "pregnancy is not a disease" being made.

And, it bears remembering that even Catholic organizations accept the compromise, most Catholics (e.g., Rep. Nancy Pelosi) realizing even the original ones were not some big insult or threat to Catholics as a whole. This plus the thousands of students, employees, patients and others covered by these institutions that are well respectful of "religious liberty" underlines the shallowness of the alleged "threat" here. The modern regulatory state is a major driver for the felt need for some religious exemptions of general laws, even if the institution in question received government funds and serves the general public. It also shows the need for respect for all views and some middle ground. Most seem to respect that.

A hopeful sign.

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* See here for discussion of a district court ruling striking down as a sort of religious gerrymander a local policy held to be applied in a discriminatory fashion. Seems to depend on the facts, which those interested can investigate further. As I noted, if anything, for what it is worth (it's only a district court ruling in a special case), it's possible the logic there would hurt the dissenters here because Obama's proposal seems to be a problem in the other direction!

Anyway, this Plan B issue has received less press. Since some think it is an abortifacient given there is a small chance that it will not merely block conception but implantation, it raises the abortion red flag. Looking at the written testimony of the two women panelists, and this really deserves to be underlined, their main concern (not saying it was their only concern) was in fact this issue. One in fact underlined her institution DOES cover contraceptives (but not sterilization) generally.

The year delay is well used to deal with issues of this sort and if a bipartisan modification merely exempts this sort of drug, it would be acceptable though probably with some sort of rape exception. Those with health problems would still get contraception coverage. It is not ideal, but no compromise is. Rushing this slanted panel for political effect is again not productive to the general welfare, the ultimate bailiwick of Congress under the Constitution.

Privacy Quickies

A district court struck down section 3 of DOMA and it's nice and all for a Bush43 appointee to do so, but as I said here, probably went overboard on the reasoning. Virginia's forced ultrasound bill's (possible fix) is still bad, but somewhat less so without direct bodily invasion.

The single issue voter

In my recent comments on President Obama's treatment of medicinal marijuana, I referenced a blog post where I first saw the Rolling Stones article on the subject as well as certain comments in particular. This includes those that to me seemed more visceral than a rational look at events, including belittling what Obama did in respect to gays.* I find that sort of thing annoying, but should be somewhat more philosophical about the state of mind expressed by such comments. Perhaps, for Lent, I will try to take a breath and do more observing.

Also, someone bothered me because (other than also wrongly diminishing Obama's overall actions) of what I saw as a myopic view arising from personal experience with those helped by medicinal marijuana. One person in apparent response to my comments spoke of "partisans" who miss "deal breakers," referencing a "pro-life" Democratic candidate. I guess he did not mean Sen. Casey, who underlines that no one issue should decide an election by its lonesome, especially in comparison to candidates like Rick Santorum. If you live in a safe state or district, perhaps, but overall, as I noted, even if Obama's position (at least after 2010 -- the thread mostly ignored the article on that point; standard case of not addressing hard questions) here is wrong, the very same people you care about will be helped in some other fashion.

And, politics like religion should not be just about you. I was said to be deluded or holier than thou on this point, but it's true. And, those who really care about these issues realize the fact, sometimes "holding their nose" because they know the alternative is worse. Public policy affects a lot of people. If your single issue dominates, screwing other people (I think it was at least partially b.s. anyways -- even if the person voted for Obama in '08, the belittling of him overall did not suggest a person much sympathetic as if this was the "tipping point") by helping to support bad public policy (again, even "me and mine" cares about more than one thing) is selfish. We as a society are supposed to not be just for our own interests. I find it easier to be less selfish because it is actually in the long run also beneficial.

Some disagree. They have a myopic vision and to me it is pretty sad. And, leads to bad results for "me and mine." And yours.

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* The theme of this discussion is the same with some other candidate, some other issue, but I do find a disconnect at times for those who imply I'm some sort of "Obama lover," when I find him too moderate on various issues ... I don't "love" him, but do realize his moderation is not just some sort of reprehensible hypocrisy, the sentiment of some. 

As to being some sort of "partisan," if that means some basic respect for the coalition known as the Democratic Party or some other organization, realizing that I am not merely some lone actor standing in the ether, fine, but that is also rather misleading.  I feel more comfortable reflecting that I have been targeted from both sides, the sign of valor of my sort. 

USSC Case Best Likely To Be Fictionalized?

Sounding a bit like a Law & Orders: Special Victims episode, talk of "bitches" and "passing strange" in an interesting clash of Roberts v. Sotomayor (Kagan in the middle) in a Fourth Amendment case involving gangs and such. Again, glad Sotomayor is there.

"Corruption"

A local professor with the wonderful name Zephyr Teachout was on Chris Hayes recently. She wrote an interesting article on how "corruption" is a major concern of the Constitution, but how far she takes that is questionable. I am not, e.g., appalled at corporations funding ads against candidates, even shortly before elections.

Supreme Court Watch

Rachel Maddow had a good segment last night on the Republican presidential candidates' billionaires, particularly Mitt Romney's (well one of them) who did things like out gay journalists in efforts to stop criticism and full disclosure of his activities promoting certain viewpoints.  I'm sure, though his blog seems selective on the issues (where are all the posts on commandeering physicians and patients to give ultrasounds etc.?), that Eugene Volokh types would find this sort of thing ill advised.

All the same, it does provide evidence of the power of deep pockets and helps point to the motivation for campaign finance laws.  RM notes how things are going after Citizens United, but we aren't talking corporations here, but powerful individuals.  Since there is so much focus, including from her, about the whole "corporations are people my friend" (didn't McCain have such an affectation?), this would have been a good chance to remind (like Justice Ginsburg did in supporting taking the Montana Supreme Court case for review) that it goes beyond that.

The problem is the "fact" that this sort of spending is not "corrupting," no matter who does it. Well, at least outside of judicial elections, non-citizens, government employees in some cases and perhaps some other exception Kennedy and at least four justices will find. Maddow should think about having Rick Hasen on to talk about this issue, since I think people are not fully aware of the fact, especially since so much focus has been put on the corporations angle.  She and others can also remind people that eight justices upheld disclaimer and disclosure limits, showing the value of DISCLOSE Act type legislation. 

Meanwhile, the Supreme Court today accepted for review a University of  Texas affirmative action case, Kagan recused.  The university had a "top 10%" policy of accepting the top tenth of high school graduates, which  promoted "underrepresented minorities" without specifically using race as a factor, though that clearly was the intention.  After all, why else accept the top tenth of very different academically successful schools? This sort of approach just might satisfy Justice Kennedy, who left open the possibility of some concern for racial balancing, but not in a way that directly affected a student. The plan had some success and then the university added another race conscious policy, here argued to be unnecessary.  Will AK again fail to find a policy he can uphold? Will Alito help water down another O'Connor keynote opinion?*

To round things out, the USSC came back from their hiatus (putting aside the previous orders, including the one alluded to above on Montana) to split time in the health care orals, hand down some orders and some mostly uncontroversial opinions. One of mild interest involves a Kagan/Sotomayor split, Sotomayor joining the other liberals in partial dissent involving applying defining "in custody" pursuant to Miranda to the prison context.  Another such split the other way involved another of a handful of "per curiams" in recent years that appear to be fairly trivial in nature, a sort of fact correction approach that the USSC is not usually involved in, this one from Alito's old haunting grounds. 

And, the Prop 8 defenders reportedly are going -- somewhat surprisingly -- to seek en banc review, delaying USSC involvement. Their chances are unclear, the likes of Judge Kozinski showing some interest in same sex rights.  One complication is that given size of the circuit, the norm is not to have every judge take part.  To be continued yet again.

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* The NYT article explains things helpfully:

Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.

The LAT article is a bit more vague. 

Questions I Would Have Asked

Rachel Maddow had Dahlia Lithwick on to talk about the Republican war against women, the Virginia bill in particular, referencing the Texas ultrasound law and failed challenge on free speech grounds (forced script).  She noted that the physicians were the focus of that challenge, reflecting my sentiment that these things should be challenged on various grounds, not just abortion rights directly.

But, what about the non-abortion liberty ground of the transvaginal invasion?  Anti-abortion 5th Cir. judge?  Things might be different in another circuit.  As I said at some point, Casey not only opened the way for more regulations by loosing the standard of review, but more chance of split votes in the lower courts.  O'Connor friendly balancing tests do that sort of thing.  She was off the Court when they decided the second "partial birth" abortion case, the first one a state law struck down 5-4 in part because of the lack of a "health" exception.  Kennedy dissented.  Alito, who dissented as an appellate judge regarding the one provision in Casey (spousal notification) that was struck down, switched things 5-4 the other way.

As with Judge Jones' anti-abortion vote in the Fifth Circuit (I linked her desire years back to actually bring back the actual Roe case), this underlines how the membership of the courts matter. This is a major reason why the Republicans are doing so much, even when the ultimate vote is ridiculously not close, to delay nominations.  More neutral matters such as many more federal judges taking senior status doesn't help with the vacancies.  As DL noted, Kennedy's opinion did not trust women, opening the way up to these ultrasound laws. The opinion notes:

Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.

The interesting thing is that this "decision so fraught with emotional consequence" does not seem to warrant full disclosure in respect to the problems of having a child and raising one without full knowledge of all the risks and responsibilities.  We also do not require people before getting married to get marital counseling or listen to the numbers regarding divorce rates.   When various other key moments, including involving health and life, is involved, we do not force, against the will of the participants, them to have "clear and precise" knowledge of the intimate details of what will occur.  This is not just a matter of availability and full disclosure, but selective disclosure and freedom of choice.

The irony here is that (as the dissent notes but DL did not) full disclosure was not the path chosen there.  The case was not one debating the need to supply a biased informed consent script.  It was about a particular procedure, which during the oral arguments of one of the cases it was noted choices regarding it had a moral significance to the woman, different women having different beliefs.  No, the path chosen was to remove the choice, according to health experts the most safe for certain patients, away from them.  This mentality only furthers the idea that you cannot trust women, so force them to have ultrasounds, even those that require putting probes into their vaginas.  The latter is one better than the script challenged unsuccessfully in Texas, but the mentality leaves us open to it. 

Rachel raised the question of how this was "small government," but come on.  Let's be serious.  These are conservatives.  We know this; let's not pretend to be surprised.  Conservatives, yes even to some extend the anti-abortion, gay rights etc. Ron Paul (big libertarian thinks Lawrence v. Texas is wrongly decided) are all for government intrusion into personal moral choices when it is for our own good.  There are some Republicans, though more and more the best place to find them is in the state legislatures, who understand the folly of this path.  That though some balance might be warranted (one I might disagree with but respect), bottom line, some things are private. As Justice Stevens noted in his concurring opinion in Casey, dissenting on even the more limited opening there (waiting period/mandatory biased counseling) the state "must respect the individual's freedom to make such judgments."

Economic trauma should not be an opening for this sort of thing.