Supreme Court Wrap-Up

Thought:Those ads about identity threat with ordinary folks shown along with audio from those who stole their identity are getting annoying. Still, they suggests the dangers to the integrity of one of our most important possessions. All the same, sometimes legal methods are more troubling, methods used to cloud true identities using the latest advertising gimmicks to "crossdress" the true nature of people, objects, and events. Ironically, crossdressing is often seen as an illegitimate way to play with identity, though it often provides a more accurate expression of the person's true nature than the more unsavory use of the technique.

"The law in this case asks judges to apply, not arcane or complex legal directives, but ordinary common sense. Would a reasonable person in Alvarado's position have felt free simply to get up and walk out of the small room in the station house at will during his 2-hour police interrogation? I ask the reader to put himself, or herself, in Alvarado's circumstances and then answer that question...."

- Justice Breyer, dissenting in YARBOROUGH v. ALVARADO, which held a seventeen year old being questioned at a police station didn't mean he was "in custody." Justice Breyer explains in a straightforward opinion that the answer is "no." Justice O'Connor briefly concurred to note that he was almost eighteen, so his age really wasn't relevant here. More to the point, I think, is the fact that he was questioned alone for two hours without his parents present in a police station was. The five that count disagreed. Who says nuance isn't important these days?

[Update: Decision is discussed today here; last week's decision (and the trend it continued) of Thornton v. United States is criticized here.]

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[Deputy Attorney General] Comey said that if Mr. Padilla had been handled by the usual standards of the criminal justice system ? allowed access to counsel and been able to refuse to answer questions, for instance ? he could have stayed silent and "would likely have ended up a free man."

This is the usual rejoinder to those who oppose labeling American citizens "enemy combatants" so that we are allowed to keep them incommunicado for an indeterminate length of time without basic judicial due process. It is all too easy, even if we are not dubious about the veracity of the evidence supplied. As Legal Fiction suggests concerning the importance of legitimacy as applied to the war power (his reply to Dan Drezner's neocon sympathies is also excellent), this is the path to our downfall.

It also is just a tad suspicious how now they decide to explain how there is enough evidence to hold him, and besides, he wouldn't have given us some of it if given even minimal due process rights. Try disproving that negative. I can note that the "all or nothing" implication made here is (predictably) bogus. We can lower the bar in special situations, including national security matters, without depriving the individuals any rights. Finally, why exactly would he clam up just because he saw his lawyer, especially if it would not bring as much protection as in a normal case? As Justice Warren once asked "when does a lawyer become a menace?"

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A few quotes from a federal district court ruling declaring the Partial Birth Abortion Law unconstitutional:

"Like the Nebraska statute in Stenberg [U.S. Supreme Court decision this law tries to circumvent], the Act bans abortions performed at any time during a pregnancy, regardless of gestational age or fetal viability. In fact, Congress rejected alternatives and amendments to the Act that would have limited its applicability to viable fetuses." [intentionally overbroad]

"[B]ecause physicians may face criminal prosecution under the Act for violative procedures, the nature of which they cannot always predict, the Act would have a significantly negative impact on their practice and their relationships with their patients, and in some circumstances, already has." [vagueness ultimately a threat to women's health]

"Congress' grossly misleading and inaccurate language, comparing the procedure to the 'killing of a newborn infant,' appears to have been intentional. Congress was aware that the Act as written applied to previable fetuses. In fact, as noted in this court's discussion regarding the Act's undue burden, Congress rejected alternatives and amendments to the Act that would have limited its applicability to viable fetuses." ["infanticide" charge misleading]

"Congress' ultimate finding that partial-birth abortion is never necessary to preserve the health of the mother is not entitled to deference, the court finds that the Act's life exception is constitutionally inadequate." [claimed absence of "health" value as medically accepted as the term "partial birth abortion" itself, the leadership of the Senate being a physician, notwithstanding]

Thus:

For all of the reasons discussed above, this court concludes that the Act is unconstitutional because it (1) poses an undue burden on a woman's ability to choose a second trimester abortion; (2) is unconstitutionally vague; and (3) requires a health exception as set forth by the Supreme Court in Stenberg.