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

Tuesday, October 21, 2014

Sports Weekend

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

Monday, October 20, 2014

Ginsburg at 92Y

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

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

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

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

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

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

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

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

Moderate Opposition

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

SCOTUS Going to the Dogs?

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

Sunday, October 19, 2014

"other considerations"

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

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

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

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

The particulars changing from "time to time."

Sotomayor & Adoptive Couple

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

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

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

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

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

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

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

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

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

Saturday, October 18, 2014

Ipse Dixit USSC Texas Voting Decision In Wider Context

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

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

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

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

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

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

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

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

Then They Came for Me (aka "Rosewater")

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

Friday, October 17, 2014

Scotus Watch

Cuomo challenger Zephyr Teachout argues this week's dentist case raises important corporate power issues. She also opposes the proposed re-destricting commission on the ballot as not truly independent (seems less constitutionally problematic than a case USSC will hear) in NY this year though I doubt many know it (just found out myself). Also, a border dispute and two other technical cases were heard. Let's see if we have another late day order.

Enough: Our Fight to Keep America Safe From Gun Violence

Click photo for recent article on duo, here is their sane gun policy organization and I liked their recent book though wish there were some sort of end notes.

Gradualism Has Its Place

Update: I appreciate this nice crisp four page opinion dealing with SSM in Arizona -- once the 9CA ruled, no need to belabor the point.  Cf. A twenty-something ruling from Alaska. Hopefully, other district judges, as needed, follow the lead. Cf. today's a sixteen page Wyoming deal.

Various people sympathetic to same sex marriage are concerned that the USSC didn't grant cert, Prof. Dorf taking a somewhat different tack here though noting in comments that he also thinks the importance of the issue or as I quoted from their guidelines:
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
Another professor merely provided a quote on the "vices of passive virtues," leading to an extended discussion on various issues including racism. The citation of Naim v. Naim -- a much criticized punt by the USSC in the 1950s when it wasn't ready to decide interracial marriage. This led me to add a few words. The below is a somewhat edited version.

I think the "common law" idea of case by case development of constitutional law (Judge Ginsburg supported this during her confirmation hearings, using an example of how her circuit did this to decide 4A questions bit by bit), to "‘get it right’ and ‘keep it tight.’" Bottom line, though at some point the USSC should take the SSM cases, but push comes to shove, one year after Windsor, it is not horrible that they are not.

Gradualism can leave in place in the short term horrible law. But, Brown v. Board et. al. showed turning horrible law around is akin to turning a tanker. Also, though we see racial discrimination as a united whole, it simply was not in the past. For instance, even Justice Harlan, the dissenter in Plessy, felt public school segregation different:
"Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."
BEREA COLLEGE v. COM. OF KENTUCKY (racial integration in a private college not protected).  And, as Justice Souter noted, this is both not surprising or even shocking on a basic level. The law develops over time as society does. Justice Jackson in an unpublished concurrence to Brown noted that over time education became so essential to citizenship etc. that the old path was no longer sound. It was no longer mere "social" in nature. And, even there, as seen in Loving v. Virgina, "social" discrimination was no longer seen as acceptable. The original understanding on the whole, with limited dissent, was that interracial marriage was not covered. Harlan went along with the sentiment that "evenly applied" race based laws were acceptable there.  As were certain race based programs.

There is also the prudential concerns about the strong public reaction to overturning such bans (miscegenation perhaps first came to the fore as a major public bugaboo during the election of 1864, used against Republicans, most of whom joined with Lincoln in denying they were for the right to that sort of thing).  Constitutional principle might eventually lead to broad decisions but it is not inappropriate for the Supreme Court, especially with its discretionary doctrine, to not decide all things at once.

Or, one year after they decided a more narrow ruling.

See also: on the "okay to wait" side though it overargues the Roe point. Still, though question just how much it would have changed things, there is a strong argument to be made that they should have went somewhat slower.  As to the second point, I say again -- if the USSC took a case, probably the matter would be on hold for eight months. Wonder how newly married SSM couples in various states will feel about that. 

Thursday, October 16, 2014

More on Reproductive Health News / 1A Issues

So when the Supreme Court said in its opinion that the Administration could extend a religious accommodation and that the effect on Hobby Lobby employees would be “precisely zero,” the Court was wrong—its employees are likely being denied coverage right now. Although that gap is probably temporary, it could result in serious, irreversible financial and personal harm to women.
Just to "update" how Hobby Lobby burdened employees (and their religious beliefs -- they matter right?) because their employers in the public sphere have a different religious belief.  As cited in an article linked in the piece, a law "restoring" things to past law would seem to guard against this sort of thing, since:
“[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.”
But, other than trying to paper over the burden, the majority here (though Kennedy's opinion clouds things) makes past case law somewhat irrelevant. The Religious Freedom "Restoration" Act really isn't about returning to past law even though "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests" is cited in the law itself.  Just what the law overall requires is unclear, but on balance, pre-Smith case law is a sound guidepost here.

The above is posted as a reminder and also because of a recent post at Balkinization, which also has an interesting ongoing series on public health and the First Amendment.  I agree with the argument that commercial speech deserves protection though intermediate scrutiny might be warranted in some cases where ideological or other questionable grounds are the "purpose or effect" of regulations.  A recent post addresses a shift in abortion law where conservative medical facts (court "facts" are troubling things) are cited as "objective and neutral" things, somewhat different from the days of Blackmun authored opinions.  The "abortion regret" issue is cited. Putting aside that, yes, facts can be ideological, the bottom line there to me is that we sometimes regret choices we have the right to make.

The answer there was that fully informing the woman, not removing the right to an abortion procedure that at times would be the right legal or moral choice (the latter tellingly noted in passing in one of the oral arguments).  It can be a tricky thing, especially in the context of regulation of professional speech, to hold that certain things are violations of the First Amendment (or the right to choose).  This is true even if we are talking bad policy. I do think the ideologically slanted nature of these things are problematic on speech grounds, even if Casey held the state can favor life here.  This is so even though I agree with Stevens/Blackmun there that "informed choice" and slanted coerced physician speech to push the choice in one direction favored by certain abortion views is not the same thing.

Things like forced sonograms are a problem (icky teeth image) for other reasons too, including adding costs and any physical invasions required.  One concern cited is the psychological harm to some women and Prof. Colb, who is somewhat sympathetic to some sort of informed consent rules, finds this in particular makes forced sonogram images unconstitutional. The costs of various requirements, especially early in the pregnancy, is a problem here as well.  Nonetheless, especially given current law, requiring clinics for second and third trimester abortions to provide the option would be different. Some abortion clinics do this anyway.  It would truly add an objectively neutral criteria for true informed consent and promote "life" in the process as well.  There are ways to do this that are not inappropriate.

Finally, to remind, the Supreme Court temporarily stayed part of an oppressive abortion regulation from Texas (Linda Greenhouse provides hypos) with reproduction rights advocates rightly hesitant to be overly excited.  The lack of good faith here as to applying neutral medical rules or applying precedent for that matter is telling.  The ideological nature of the legislation underlines that even commercial or professional speech and other regulations at times should be taken with a grain of salt.*


* It is notable that in Casey as well as the gay rights cases, we hear tell of "purpose and effect" of governmental action.  This was seen as notable over a hundred years ago in the Yick Wo case, where an allegedly neutral law was applied in a discriminatory way.  It is a realistic way to uphold rights.

Wednesday, October 15, 2014

R.I.P. Elizabeth Peña

Two gems -- Lone Star and Shannon's Deal. R.I.P.

You're Not You

The NYT review was mixed as was the Rotten Tomatoes & the leads were intriguing. But, Hilary Swank has had great/serviceable/bad & this is more in the last column. The actresses deserve better material in this MLS drama though hey look Ed Begley, Jr. has a neat cameo.


Interesting photos of various body types.