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

Friday, March 27, 2015

State Anti-SSM Brief Day

As I type, Buzzfeed is posting state briefs from the states, which should be posted on the SCOTUS website soon [done] on the same sex marriage page. The novelty of SSM is refuted here. The "marriage is small" argument is made (tied to procreation) as if the SCOTUS hasn't repeatedly made it bigger. Expect the anti-SSM amicus briefs to come as well. [yup]

Thursday, March 26, 2015

Happy Birthday!

Young and Hungry

By chance, caught the return of this show, one of those shows on a hiatus for so long that you might forget about them (Veep is returning in April). The cliffhanger of sorts was partially addressed, but we end with a new one! Well, this one will be handled somehow within the week. Episode was plot-driven, so wasn't really that amusing as such. Okay.

Economic Libertarian Constitutionalism

Prof. Dorf's latest column concerns a book review regarding the "libertarian" Constitution, which often is a matter of a conservative friendly economic rights view.  The review shows how the person in question is faint-hearted in respect to abortion and gay rights though appears to have a default against them when popular majorities limit their freedom.  Ted Cruz at Liberty University self-proclaimed as a "conservative" candidate, but be on guard regarding the location. A blithe "less government" frame will come at some point with a different audience.  Tends to happen.

We have here in particular a debate among professors -- Prof. Sherry (not Sherry Colb, Dorf's professor wife, to be clear) wrote the book review regarding a third professor's (Richard Epstein) work and theories.  A large part of it is debate over facts -- she argues that Epstein is wrong there too, further suggesting ultimately we are dealing with a general moral view of the world that clouds assumed neutral rules (e.g., use of history).  Ultimately, we do need to determine proper baseline values when applying constitutional text and principles. 
Above all, judging is an act of controlled creativity.  Like writing at its best, it both draws on and evokes memories of what has gone before, but by innovation rather than mimicry. It simultaneously acknowledges our debt to the past and denies that the past should control the present. The task of the pragmatist decisionmaker is to reconcile a flawed tradition with an imperfect world so as to improve both and do damage to neither. We can argue about whether a particular judge does so well or badly, but we should recognize that neither her job nor ours can ever be mechanical.
A person who blogs with Prof. Dorf honors a "pragmatic" judge here, and without commenting on that judge in particular, it does seem that it is the most useful approach in the real world.  It also helps explain what actually occurs -- a person like Justice Scalia, e.g., chooses an approach to judicial interpretation (some form of "originalism") for functional reasons, including as the "best" way to adjudicate.  The concern that you really aren't "judging" without the restraint of his approach might not be true on the merits, but it clearly is a major influence on his judging.

That last entry also flags the idea that the Supreme Court is not really a "court," since the justices use a sense of personal fairness without enough of the true restraints a "court" offers.  I find that tedious -- an example of degree being confused with kind.  We saw this over at Volokh Conspiracy regarding "no" limits to treaties (Bond) or the Commerce Clause (ACA).  As the excerpt notes, "judging" is something of an art that as applied by humans in reality has a degree of discretion.  It will involve some concern with public morality (such as equal protection or concern with individual rights) influenced by but not bond to the past with non-fungible judges deciding the particulars.

Messy, but it's how things work in reality.*  If we don't like how judges currently are doing their jobs, we need to deal with how things will work in practice.  Some Platonic view of a "court" is fantastical.  The quotation is from a discussion of the Ninth Amendment, which references unenumerated rights that in application repeatedly involved broad open-ended things, not merely fixed points. How to apply them would involve using various judicial techniques (e.g., comparing like to like) with the best approach and results developing over time.  Like natural law, which in some fashion continues to influence the application, human knowledge is being used here over time, the changing nature of things part of the point -- such is part of the genius of the constitutional text.

One commenter in the first thread speaks of "economic" and other rights. But, note the title of the essay -- it isn't about "economic" constitutional rights, but economic libertarian views. The Supreme Court did eventually draw a line between changing economic arraignments and rights such as the rights of parenthood.  But, there is some overlap here -- the sale of contraceptives, limits on the federal commerce power, etc.  There are economic rights (e.g., due process involving "property") and the same applies to those not expressly granted. The right to choose what sort of work one does for a living is "economic" in nature.**

The author of that book review co-wrote a book about how no one interpretative vision probably works -- in practice, it is more of a stew.  And, so is the case here -- the economic libertarian has some leg to stand on since s/he can appeal to certain concerns, but ultimately the Constitution is too supportive of governmental power (including over the economy) for that to work as a general principle.  Some other principle, let's say democracy, might work more.  But, I'm wary of any one view here.

Even that "view" might be best applied with a grain of salt.


* At times, the messiness leads to cries of judges not really having clear standards, including the likes of O'Connor or Breyer.  But, the other judges in practice do not provide grand alternatives.  Justice Souter provided a sort of moderate conservative view of substantive due process as a finale to his tenure:
The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
"Judgment" is not a matter of mathematically nicety and if one wants that we need not only a different legal system but robotic judges.  Though even then, I wonder.

**  More at the Dorf on Law comment thread.

Wednesday, March 25, 2015

Supreme Court Watch: Breyer Edition

Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.
Richard Hasan doesn't seem to agree with this somewhat ironic opening salvo by 4/5 of the justices who joined Shelby.  Breyer wrote the majority opinion of this re-districting case that was a call for a "do over" that Prof. Hasen does argue does help the cause of racial minorities with claims of discrimination to some degree.  Two cases come to mind -- the recess appointment case, where Breyer wrote the opinion that rejected the Obama Administration's position but on narrower grounds than the dissent (Kennedy joined that too).  And, the Fisher case where Kennedy in effect punted and waited for another day to decide affirmative action though doing so by including a few tidbits that suggests the test in place has bite. Time will tell how this will work out. 

Breyer also wrote a 5-4 opinion that was a mixed result in a pregnancy discrimination case, this time Roberts joining the liberals with Alito concurring in judgment. Scalia and Kennedy wrote dissenting opinions, the latter a personal statement akin to his Hobby Lobby opinion that though he is not agreeing with application here, the concern for discrimination in this field is quite important.  This sort of thing might not impress some, but it leaves open the realistic hope that such people aren't lost causes.  Anyway, the claimant has a chance to win, but has a harder time of it now.  Ginsburg joined the opinion without comment.

The Supreme Court also had a couple of opinions yesterday, suffice to say, they were rather technical. The saving grace was one was written by Justice Kagan, so it had some charms to the reader.  Kagan even managed earlier in the term to make an interstate conflict opinion not too bad. Three justices dissented from the denial of cert. (again, the opinion was by Breyer) in a death penalty case.  And, a patent lawyer got off easy for perhaps giving too much discretion to a client writing a petition to the Court.  On special petitions, Paul Clement is 1-2 ("lost and found" petitioner earlier was not given a second chance). To complete the theme, Breyer and Kennedy also testified in front of Congress, including providing some opinions on criminal justice. 

Finally, doing a search, "lesbian" over at Oyez.com (oral arguments) pops up Smith v. California (1959), which ultimately was decided on "scienter" requirement grounds. It involved a lesbian pulp, homosexual friendly literature ultimately getting a mixed level of protection in the courts.  Listening to the oral arguments a bit, there was a reference to the Supreme Court deciding a case involving The Moon Is Blue, a "hey I am naughty, I said 'virgin' " sort of film from the 1950s that some M*A*S*H fans might recall.  The Supreme Court, with only a reference to an earlier ruling saying promotion of adultery or the like isn't a legitimate ground to ban a film, overturned a lower court ruling upholding a locality blocking the film.

Those little snapshots of SCOTUS history are worth noting.

Ted Cruz Can Be President

Sure. He just shouldn't be -- he is a troll. Some cry inconsistency; must be so happy Trump is now on the case. The details are a bit different -- it somewhat more relies on the obvious fact Obama was born in Hawaii. Yes, the real issue here is racism, consistent nativists less prevalent. But, do we really want to debate details? That's playing the trolls' game.

The Book of Life

Worthwhile attempt of an animated film using Mexican elements that overall looks good with a promising beginning. But, I got bored with it fairly quickly, and my standards for holding out is stricter these days. Enough here for a great short subject.

Tuesday, March 24, 2015

Toolbox Murders

I got this film mainly because of the praised death scene of the pictured character. It was impressive & the DVD had an interview with her. The first third was a gruesome but rather impressive late 1970s bit of film-making with a good soundtrack. Then, it largely focused on a pair of rather dim Hardy Boys mystery sort of deal. BORING. The other part was the killer talking to a girl he kidnapped who he basically starts to really think is his dead daughter. Some of this was pretty good, but a little went a long way. Decent commentary track.

Happy B'Day Megyn Price (b. 1971)

Alabama v. Equality

The amicus brief of the governor of Alabama against same sex marriage is of the "make marriage small" variety:
Marriage equality does not exist in the United States. It cannot be made to exist in law without destroying the rights of children to be connected to their biological parents. ... Even those States that have extended legal recognition to same-sex couples continue to distinguish between marriage and same-sex “marriage.” The reason is plain: Marriage is a natural reality that States must distinguish from all other forms of human sociability, including same-sex relationships, for the purpose of securing the rights and well-being of children.
Toss in some religious discrimination -- flagging how certain Catholic institutions oppose taking part in foster care and the like if same sex families are involved while ignoring how the current inequality (which the state bluntly supports) clashes with the marriage beliefs of other religious groups. Do they matter?  These groups think "nature" defines "marriage" in a broader way, not just tied to certain people having sex and conceiving children.  They think marriage includes them and other people.

A 1885 case is cited for this idea of marriage -- "the integrity of the family is grounded on the monogamous union of a man and woman for life, the source of healthy children and the continuation of civilization."  It is unclear if modern divorce laws, which to me express a right as much as the right to get married in the first place, is a serious interference with "natural" marriage as well.  And, even in 1885, the ability to have children wasn't the only way one obtained a marriage license, plus "healthy children" and the "continuation of civilization" can be furthered by same sex marriage too.

So, especially today, there is no need to single out the "union of man and woman out of which arises the biological family" as the only couple that is given a marriage license.  The need to alter certain regulations touching upon marriage, such as paternity assumptions, very well might be needed to be altered as much as old fashioned assumptions involving the woman. BFD. "Marriage is the only institution capable of solving the problem of establishing normative connections between fathers and their children." Not clear, but again, that is not the only reason marriage is there for. Allowing that and other reasons for marriage licenses is and always was possible.

It is true that "moral" reasons are the only reason that rationally can be shown to block same sex marriages. However:
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment.
The idea marriage is merely about procreative relationships is off:
The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.  First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
The reasoning applies to same sex marriages generally as to marriages with prisoners -- these reasons apply, each and every one of them probably, to same sex couples.  Those married who are infertile and/or do so to protect adopted children (and other such families) are covered and this was a "traditional" type of thing marriage was there for.  Such people, including same sex couples, falls within an old case that noted "without a doubt" there is a fundamental liberty "to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience."  Not "procreate" children alone.  The "father" of our country had no children and still got married.  Ditto the "father" of the Constitution.

If this is the tenor of briefs for the states ...

Legal Stuff

Of course, the first amicus brief against same sex marriage would be from the governor of Alabama. Word for the day (Better Call Saul edition): spoliation. Case -- garbage searches not being an invasion of privacy. Took a case too big to chew there guys. And, Mike decides to go to the dark side again to make money for his granddaughter? Grandpa!

Monday, March 23, 2015

"Governor signs law making Utah only state with firing squad"

If the governor of Utah thinks the firing squad is a little bit "gruesome," not sure how it will fare elsewhere as a back-up to lethal injection, even if that method is pretty problematic. Utah is an outlier in this field along with nearby Oklahoma and Wyoming.

I Spit On Your Grave (aka Day of the Woman)

Note the alternative title is the name of a horror movie blog (by a young cancer survivor), which suggests the opposition to the film (on last night; not the subpar remake) by Roger Ebert et. al. is arguably misguided. The DVD had two commentaries. It has exploitation aspects, but it has a certain low rent horror and yes style that continues to impress.

Princess Jellyfish

Watched the first half of this Japanese animation series based on a manga about some social outcasts (one with a close connection with jellyfish per her mom taking her to see them as a girl) meeting up with a cross-dressing rich college student whose family has their own issues. Enjoyable with various intriguing themes. Story left open but continues in the manga.

Sunday, March 22, 2015

TV Watch

The first episode of iZombie was decent; too many voice-overs. But, guess some liked that in Veronica Mars, which has some connection to this show. Wish she would be the new sideline reporter for Mets games. The other guy is dull and she's nicer on the eyes. Good Witch, a few episodes in, continues to be pleasant Hallmark viewing.

Saturday, March 21, 2015

“I'm so happy that I didn't sneeze.”

MLK talks about a mostly forgotten assassination attempt by a deranged black woman, who just died, including a white student (from White Plains?!) at around the 35m mark.

Idea of Same Sex Marriage Suggested Thirty Years Ago

Some note the novelty of SSM, but there are various examples of the basic concept being expressed for some time. One example was the prescient lower court protection of same sex relationships overturned in Bowers v. Hardwick. A same sex relationship was seen as comparable to marriage. The idea was expressed back in the 1950s. And beyond.

Nitrogen Gas

A discussion on the latest "good" way to execute.

"Adam Smith's First Amendment"

I have seen reference to this article, which notes:
From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.
Furthermore, the Supreme Court "defined the [commercial speech] doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers." Thus, truthful advertising and compelled speech (e.g., labeling requirements) are allowed there while lying in various contexts (even about obtaining a medal) or forced speech is deemed protected by the First Amendment. "Freedom of speech" is protected, not a total right to speak, all words treated the same. 

Note that "to receive information" provides an important caveat here -- even in the "purely economic" field, a law that burdens the receipt of information can and should be deemed illegitimate in various contexts. Thus, e.g., I noted that there was a case involving the receipt of contraception advertising; an early case that recognized commercial advertising was protected by the First Amendment dealt with abortion ads. So, mere "rational basis" is not enough. The article also cites as problematic a case involving a locality's law that would "prohibit gun sales at its fairgrounds."  But, that raises Second Amendment concerns, just as the abortion ad ban (or a lawyer speech ban) touched upon other rights. Speech regulation, including involving money, can involve various things.

The article flags as problematic a recent lower court opinion regarding licensing tour guides, noting that the matter being regulated is  not something "we" would deem as regulating "an attempt to influence the content of public opinion."  It notes that if the tour group had an ideological nature ("Tea Party Tours"), it would be different.  I find this a somewhat dubious line -- tour groups probably are divided in various ways, many with some sort of "ideological" focus in some sense.  For instance, let's say the tours focus on certain historical events.  Will they all determine the locations totally neutrally? What does that even mean?  What if the group singles out places that highlights advances in women's history and it seems to overall noticeably lean in a progressive direction.  Enough? 

I think if we allow tour guides for profit to be licensed in some fashion that neutral fashion, the Tea Party Tours can be covered too. The law in question set forth rules by age (over 18), a proficiency in English (seems problematic), not being guilty of certain felonies and a general knowledge test.  But, the last provision does seem problematic. Why exactly is it required to pass some general knowledge test (with all the selective knowledge that tends to further) to be a tour guide?  You do not have to do so to write a tour guidebook.  It's helpful, sure, but why not just provide those who pass the test a government seal of approval that could help consumers?  Passing a test is a limited benefit and given speech is involved, is it really worth the candle? 

This underlines the wider point of the article that a "one size fits all" free speech rule is not appropriate.  But, this applies to "commercial" speech in both directions.  The same applies to professional speech generally. Surely, e.g., doctors do not have the same freedom to speak to patients as let's say a politician in a campaign.  Note though that even there disclaimer and disclosure laws (with some push-back) have been upheld.  Still, be it too blithely put (no shock), Justice Douglas had a point:
The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But, as Chafee said, "the First Amendment and other parts of the law erect a fence inside which men can talk. The lawmakers, legislators, and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law."
Likewise, the right to privacy is of special importance in the doctor/patient relationship, even if it is not absolute. So, broad statements by some regarding the state's power to regulate professional speech in doctors' offices should not allow, e.g., various interferences with doctors talking to their patients about abortion.  Some "conduct" is involved in medicine as well, but yesterday's discussion regarding contraceptives shows this as well.  Medicine is regulated but it also is speech friendly in some ways. Plus, neutral regulations are one thing; ideological barriers often another.  Thus, just because it is a professional area, a law that denies a doctor the ability to ask anything about guns given their health effects would be illegitimate. There is no "right to privacy" against that; a compelled reply is another matter. 

The truth often comes by listening to both sides here, including when determining what speech regulations are warranted for "safeguarding democratic governance."