Kagan: Day 3

[Accord. This is a bit better than the "she's so charming," let me stereotype the Republicans more than they do themselves analysis shown by Dahlia Lithwick. Like last year, she has a vacuous snarky shtick thing going here that doesn't appeal. See, Slate for the links.]

Usually, in a confirmation hearing for a Supreme Court nominee, the discussion of the Second Amendment comes down to a debate over whether the amendment guarantees an individual or collective the right to bear arms. One might think the matter was settled in Congress since Supreme Court rulings in Heller and McDonald leave the individual right to bear arms, as Elena Kagan said earlier today, "settled law." However, having a settled constitutional question left Sen. Charles Grassley (R-IA) with an opening to question whether the right to bear arms come from more than just the constitution. He wanted to know, in fact, whether it came straight from God.

Keith Olbermann ridiculed this too. As with his guest Jonathan Turley saying Justice Marshall really couldn't be deemed an "activist" justice (come on!), this suggests a lack of basic understanding of what is being debated here. The idea -- which Grassley clearly referenced -- is that we have various "pre-existing" rights, rights not given by the government, but protected from their invasion. For instance, many would agree that your freedom to worship your God is such a right, not one "given" by the government, but existing by the nature of being human. Like the First Amendment, the right of self-defense of the Second can (and was -- that was why it wasn't originally incorporated; it was not a "privilege or immunity" of citizenship, but a pre-existing right) be deemed in the same category. These are rights endowed by nature and/or nature's God. A positivist would disagree, but it's a totally rational argument.

The last four Democrats (Whitehouse, Klobuchar, Kaufman and Franken) had their first round questioning. Whitehouse was upset about 5-4 rulings, no one reminding him that they weren't somehow an invention of the Roberts Court or that one way to stop them is having more votes in conservative rulings. He and the others (less so Klobuchar, who actually briefly referenced Kagan's academic writings on relatively minor points; again, she has some, but NONE of the senators really did any due diligence here ... Kagan is the one who brought up her writings on the Chevron Doctrine, for instance) had concerns about various rulings. This is okay up to a point, even if it did more to tell us about their views of the law and the Roberts Court than Kagan's views. Franken really went on and on there ... really, he should be careful talking about law as an amateur. We actually got a bit on that -- she's for strong stare decisis (workability, new facts and doctrinal change would affect this), especially for statutory cases. Clearly, we are stuck with Citizens United, I guess.

Also, some senators were concerned with punitive damages -- someone should reference Stevens voted in many cases to strike down them too. Sen. Hatch covers this in his second round and this too. Sessions has some more DADT harping, letting Kagan give an expansive reply on decisions by the SG and responding "okay, I'll look into that." Hatch and Feinstein allow her to talk about (nothing much) about speech (U.S. v. Stevens was the point of the question, but a chance to really cover her writings was avoided) and religion (thumbnail summary that is really vanilla, if perhaps helpful if you know nothing on the issue).

Grassley opens up for a somewhat more expansive discussion of Kelo (including its limited scope) and how states didn't have to take the power given by it. Not too helpful on her views, even though she says she agrees property rights are important, but helpful given the ruling is a favorite whipping boy for many people. She didn't want to talk about marriage being a state issue giving pending cases, so Loving v. Virginia et. al. note referenced. Again harps as he did with Sotomayor on a 1970 or so summary disposition dismissing a constitutional question to same sex marriage. Kagan notes summary dispositions, not just this one, do not seem to deserve the same weight as a fully argued case. Specter the only one really annoyed (or seriously so) her answers aren't substantive.

Kyl (mainly on this, same sex marriage rights [as SG candidate, she noted there was no such federal constitutional right] and the usual Republican specter of foreign law) and Graham actually have stronger questioning the second time around, maybe Graham wants to prove to his constituents he isn't totally a Kagan supporter. He does a respectable job underlining candidates are not totally fungible and that Kagan and Roberts/Alito once served political causes. Cornyn provides a Breyeresque quote (by Goodwin Liu) that says original understanding along with other things that should be used by judges and she in effect agrees with it. This includes evolving societal standards. [Cornyn doesn't like that, but Graham referenced Plessy v. Brown (experience/understanding and precedent changed, though text did not).*] He notes Liu thinks things like welfare benefits are protected by the Fourteenth Amendment, but elides past that some of them in his view would only be supplied by congressional action; the implication seemed to be that the courts would enforce some of them by themselves. It's a valid question, if asked in a slanted way, and more of that sort of thing should have been provided. He also does a decent job covering her Harvard/DADT policy, of course with his own p.o.v.

Whitehouse, who seemed a bit tired in the morning (they started 9 o'clock), returns to his theme that the Roberts Courts have various tells of a Court with an agenda. Coburn (as did a few others) rubs the Dems noses in the fact that Kagan supported Estrada. Concern for confidence in government and liberty ... doesn't reference those who gained rights in the last decades or how his party is one major reason the confidence went down. Also, people as a whole support health care reform, some wanted more of it. I respect his misplaced passion though. Klobuchar focuses on women and law. Franken brings up media consolidation / value of Internet speech and how antitrust cases etc. might have some First Amendment implications. Kagan largely begs off. Franken argues various Roberts cases were activist ... Graham had ridiculed the term, Kagan not wanting to admit of any justice that was one. Franken references Thurgood Marshall and justified judicial review as compared to illicit activism ... finally cites Carolene Products Footnote Four. BTW, FN 3 and the case as a whole might scare some senators who referenced regulating vegetables. The ruling began:

The question for decision is whether the "Filled Milk Act" of Congress of March 4, 1923 (c. 262, 42 Stat. 1486, 21 U.S.C. § 61-63), [n1] which prohibits the shipment in [p146] interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment.

During Grassley's second round, we find out that Kagan doesn't like "penumbras" but supports the result of Griswold via a more textual basis. But, Douglas' analysis is in fact argued that there was a textual basis. The right to privacy was necessary to fully protect various textually based rights. Saying that "liberty" is the test, which seems to be Kagan's position, is in no way less open-ended. Why Kagan felt this specific issue was okay to "grade" is unclear. Sessions sums up, basically saying "activist" means when judges interpret things wrongly and other than general disagreement with progressive activism, Harvard's policy on military recruitment is what he remains most concerned about. And, soon it was over, followed by a closed door meeting to deal with the FBI investigation and such.

Witnesses late tomorrow.

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* Liu co-authored Keeping Faith With The Constitution, which reaffirmed this conclusion. Prof. Dorf also recently noted:

Of course, opting to follow such a course would come with a different kind of cost. It would be a tacit admission that Justice Stevens was right in his parting blow: Incorporation, no less than freestanding substantive due process, requires the exercise of value-laden judgment.

Throughout his distinguished judicial career, Justice Stevens acknowledged this inevitability--the inevitable role of judgment in constitutional interpretation. Unfortunately, the Senators who are now most aggressively questioning the woman who would take Stevens's seat are demanding that Solicitor General Kagan renounce the very candor that was central to this well-respected Justice's judicial philosophy.

A citation to Justice Souter's recent commencement address also can be provided.

Supreme Court (and Kagan) Watch

First, the Supreme Court had a bit more to do today. It over three Justices’ dissents, summarily upheld a federal law banning "soft money" donations to, and spending by, the political parties. The justices made sure to underline in McDonald that many firearm regulations are still allowed. This suggests Citizens United is not as broad as some fear as well. A per curiam habeas opinion that sounds like Stevens' was also handed down. And, Sotomayor was the senior justice in one action. And, a quick analysis on the strategic activism of CJ Roberts, a target of the likes of Senators Whitehouse and Franken yesterday.

I told myself that I would not pay much attention to the Kagan hearings since I was a bit depressed at such a middle of the road sort to replace Stevens, her "judicial restraint," "moderation," "pragmatism," etc. at times not something we need right now. The love shown by Sen. Graham, for instance, on her solicitor general work on detainee cases is something of a red flag here. But, who am I kidding? I'm a sucker for this sort of stuff, and it is after all important to get a sense of her and the senators as well. Years ago, she wrote on the confirmation process:

The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues. By "judicial philosophy" (a phrase Carter berates. without explanation), I mean such things as the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory. A nominee's views on these matters could prove quite revealing: contrast, for example, how Antonin Scalia and Thurgood Marshall would have answered these queries, had either decided

She in effect praised the Bork hearings, including its questioning of "judicial methodology, on prior case1aw, on hypothetical cases, on general issues like affirmative action or abortion." The passion involved can be abused, but "the placement of this decision in the political branches says something about its nature- says something, in particular, about its connection to the real-world consequences of judicial behavior." She is more hesitant now, it is to be noted, supported by various Republican senators on the point:

Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues. Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents

This is unfortunate and Sen. Coburn -- one of the non-lawyers appreciated for his passion if not some of his extreme views -- is right to be wary of the "dancing" that results. We get a lot of talk of "settled law" as if justices respect that all the time. Scalia doesn't accept Roe, Stevens didn't accept Heller. There is value in senators addressing various concerns (if a chance of a lot of b.s.*), including those of a constitutional matter. The senators don't get to talk to justices on a general basis, do they?

So, you have to catch with you can, judge the nominee's general character (part of qualifications, surely) and hope for some substantive content. In fact, Leahy early on (other than showing that he along with Feingold supports Heller) led her to state her belief that the Constitution sets forth broad rules whose specific applications can change over time ("equality" etc.). We didn't get much more of this under Sen. Coryn went back to his fantasy about there being "traditional" judging and "activist" judging, the latter some recent thing mostly that probably (unsaid) rests on liberals (Schumer, mostly there to provide the defense, got her to say that "activism" has no party) and she said her view doesn't mean some "loosey-goosey" approach with no limits.

[And Also: Dahlia Lithwick notes here Kagan at one point discussed how specific cases would involve complex analysis. Okay. But, the article overall is really a lovefest about how pleasant she is. Everyone just LOVE her, even conservatives like Miguel Estrada, whom she promised to in effect write a pre-emptive letter of support for the next Republican President who wants to nominate him to the courts.

And, it was "it's law all the way down," less about how justices aren't really just fungible law appliers. Sure, she is politically a progressive, but don't suggest this means she will be a "progressive justice." No wise { } here, even if she does eat Chinese on Christmas day! See end of this essay too.]

Kagan has various First Amendment articles setting forth her views, but the subject doesn't appear to have really been addressed except to cover Citizens United in various respects. Her well spoken of article about "presidential administration" was not addressed, though some wanted her to reaffirm (putting aside when "original intent" or conservative issues are threatened under the modern state) the importance of due deference to the elected branches. Talk of Youngstown, but what about laws that both Congress and the President agree upon but are unconstitutional all the same, like stripping of habeas? Less remarked upon.

One trope of some Republicans is that President Obama supports "empathy" for certain people, not an evenhanded application of the law to all. No reference yet, apparently, that this is in effect settled law -- "prejudice against discrete and insular minorities" gets special concern, Madison himself noting the Bill of Rights protect the minority from the excesses of the minority. OTOH, some are struck by their opposition to Justice Marshall, as if it is based on Brown v. Bd. His belief in a strong liberal jurisprudence ala Brennan is well known and reasonably opposed. Fear of use of "foreign law" also came up, the usual "American law" is the final determinant (but sometimes, foreign sources might be of some use, such as defining "ambassador" in common use) defense given.

So, is this all a waste of time, something that is mostly vanilla theater, which seems to be Dahlia Lithwick's basic sentiment at Slate? Yes and no. The discussion does inform the general public and even informs us about Kagan now and again. It addresses -- in some form -- some of the senators' concerns. But, it can be much more substantive. As noted, and this applies to people like Specter who are supposed be adults here, there is possible ground to cover (like her speech writings -- in passing, some comment on legislative history was made ... more on that please). Leahy even started things somewhat on the right foot in his somewhat haphazard way.

I still think 1990s Kagan, in that well written book review, would be somewhat upset (if understanding) of what 2010 Kagan went through here.

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* This op-ed, including this, is much more convincing than Sen. Sessions here:

In my opinion, Kagan's positions never affected the services' ability to recruit at Harvard. Behind the scenes, the dean ensured that our tiny HLS Veterans Association never lacked for funds or access to facilities. Recruiters simply could not use the school's Office of Career Services. Does this demonstrate an "activist" streak, as some have proclaimed? I don't think so. The school's policy against discrimination was akin to black-letter law. If anything, Kagan was an activist in ensuring that military recruiters had viable access to students and facilities despite the official ban. A Boston-area recruiter later told me that the biggest hurdle he faced recruiting at Harvard Law was trying to answer the students' strangely intellectual questions. But, a lot of special pleading that allows for a lot of dancing doesn't really tell us too much about the candidate involved.

[recruiting in fact went UP during all of this]

The writer, a captain in the Marine Corps and 2008 graduate of Harvard Law School, is serving as a legal adviser to a Marine infantry battalion in southern Afghanistan.

Sessions focus and passion is instructive.

McDonald: Something of A Disappointment

[And Also: Some analysis of the flawed use of history; I like it in particular since it is a bit more restrained than some but makes a good case. Again, the opinion can be defended as to result -- Thomas' concurrence also has some good stuff -- but it is just too simplistic. Leahy and Feingold both today supported an individual right's view, at least per Heller, underlining judicial conservatives aren't the only parties that can play here.]

The gun case can be found here along with the others from today's sitting. The well awaited patent case was decided somewhat narrowly, the expected author (Stevens) writing a stronger concurrence. An appointments case was split 5-4, but its ultimate effect is unclear or rather of little real note. Breyer did the surely rarely done double dissent from the bench thing today. Ginsburg is pretty sharp in CLS, repeatedly nasty footnotes against Alito. Why isn't similar "pay our way or be called discriminatory" (see dissent) applied to abortion funding et. al.?

All the opinions come out to over 200 pages, so I only skimmed them, but they are somewhat depressing. It is 5-4 with Thomas joining but supporting the Privileges or Immunities approach (Scalia probably would too, but he rests on precedent). The majority by Alito is a relatively short opinion (shorter than Heller) that largely rests on history and the usual norm (except in jury cases) that federal and states have to follow the same rules respecting the Bill of Rights.

I don't quite understand why -- especially since Roberts and Alito are not as doctrinaire on analysis as Scalia and Thomas -- why the majority could not include a section -- precedent appears to make this relevant -- discussing how modern understanding recognizes gun ownership at home is a fundamental right. The opinion referenced the fact but only in passing. Instead, it basically stops at 1868, so the dissents can (rightly) say "hey, that's not how we really do things." Also, the Court doesn't seem to explain why states can have non-unanimous juries, or even no juries in civil cases, but the rules have to be the same here.

Precedent? Precedent until now didn't incorporate the Second Amendment. It begs the question to rest on that alone, doesn't it? The opinion notes that the Supreme Court in effect split in half on the jury question -- half thought unanimous juries weren't required for both, half thought it was required, with the tiebreaker (4-4-1) going to Powell who thought it only so for the federal government. However we reached the point, however, that's the law. Juries were deemed by the framing generation as an essential, unanimous juries also an important way to protect minority voices. If we accept a state/fed split there, why not here? OTOH, Heller dealt with a local ordinance. A law with national scope would be different too. But, no one wanted to split the baby.

The Second Amendment in part was concerned with the national government using its power to invade the discretion of the states, so -- again in part -- there is something to treating a local D.C. ordinance differently than some national law that restrains the discretion of all the states. The original dissent in the lower court in Heller did just that, Dellinger brought it up in oral argument, but neither side one the Supreme Court seemed to really take it seriously. When the First Amendment was first applied to the states, there was a more 'go it slow' approach. Cf. the criticism given to the more 'let's decide things broadly' approach of Roe v. Wade.

Thomas rests on Privileges and Immunities (which works in theory, but courts don't usually "start from scratch") but also appeals to history. But, historical study has determined there was no clear public understanding at the time regarding applies the Bill of Rights to the states via the Fourteenth Amendment. Yes, some thought that, but it actually rarely came up, though there is a stronger case that it was deemed important for free blacks to have a means to protect themselves. Also, he -- of course -- rejects "substantive due process" as inane, but reams of scholarship has shown -- even regarding thought before 1868 -- that this is untrue.

I myself accept the result here but the reasoning leaves something to be desired.* But, even if I did not, I don't think the dissents are all that good either. As far as they reject the simplistic analysis, they have a point. All the same, and overreliance of the Second Amendment as compared to a general "liberty" to own firearms at home (the ultimate issue here) doesn't help, it seems to me that the better path would be to accept some right to self-defense via weapons, but argue that the law in question provided an acceptable middle path. After all, Heller itself left open lots of regulations. On that front, this case does little to clarify what exactly is allowed; after all, it basically applies Heller to the states and Heller did not firmly even state if strict scrutiny is required. And, even Stevens admits there is some right to self-defense.

I also think precedent alone made this a simple case. Why would the law in D.C. be unacceptable and not this similar one? But, precedent is strengthened over time,** and Heller was just decided. It will be interesting to see how the justices vote in a later case. In a sense, this ruling is limited, applying a Heller-like provision to another type of locality. See also, the carefully narrow ruling in the CLS case also decided today.

Kagan allegedly is supposed to be a consensus builder. This case cried out for some middle ground and some was possibility -- many liberals accept an individual right to own a firearm at home. But, the justices (including one more Scalia v. Stevens sparring match) took another approach. I question how much Kagan will really serve that role, but this is a case where it would have been much appreciated.

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* On one level, Heller settled the immediate question of protecting handgun ownership at home. But, a careful dissent could ala Breyer in Heller explain how all firearm regulations are not the same. In fact, Heller did just that.

I think the sentiments here basically match my views, including regarding Scalia and Thomas. OTOH, as noted before, Thomas is the inconsistent one in Doe v. Reed.

** The conservatives disposed of precedents quickly at times too -- see, e.g., Payne v. Tennessee.

Intimate Association etc.

The last entry notwithstanding, one of these days I'm going to get a Kindle device, since there are so many online documents to download. I like easy access away from the computer, but the Kindle will provide that. Many of these are provided on .pdf formats that can be so downloaded. For instance, Justice Blackmun once noted:

The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980)[.]

I was able to access said article, a quite interesting one that basically connects intimate association [readily recognized (see Section II) a few years later] as connected to three basic rights: First Amendment (self-expression, association and some shades of religious freedom), equality and substantive due process. Denial of benefits is discussed as a major way such a right is wrongly denied. Also, the article notes that current understandings of morality might in some way (realistically if not totally consistently; in theory, it holds some forms of adult incest as protected; not going to happen in real life ... ditto less extreme examples) affect judicial holdings. So, it looks to the future but also has a realistic aspect that is always appreciated.

Anyways, I was able to download the article in .pdf form but if I wanted ready access away from my computer or in my hands (I find this convenient, including to mark the copy up), a printed version is necessary. But, printing out 70 pages is likely to use up my printer ink pretty fast. So, I'm tempted (as I did for a longer works) to have it printed out at Staples or something. This is fairly cheap (under $10 for this article), but it's not something I want to do each time. Kindle would allow me to download it for free and perhaps there is a notes function too.

But, I'm not there yet -- it does cost something like $200, right? Anyways, recently covered a Roe related lower court case where the connection between feminism and the right to obtain an abortion was closely joined. It turns out Roe itself is a similar case, which is why the whole context should be provided:

We wanted to distribute the provider information to the newspapers, but we were worried that we might be charged as accomplices in abortions — which was an actual threat back then — if we spread the word. When I went to the library, to see exactly where the laws stood, I started finding cases challenging the anti-abortion statutes in various states, including the Griswold case. And we decided we would file a lawsuit challenging the Texas statutes. Lots of people ask me why the case fell to me. It's because this group decided we wanted a woman to take it, and we also wanted someone who'd do it for free.

Women were active providing abortion information for those who need it and as part of that effort used the law to protect their interests. Again, to restate a theme, we are not just talking about a broad "liberty" here or even a "right to privacy," but tend to have an interrelated set of interests like those touched upon in the Karst article. For instance, homosexuals associate or express themselves in a certain way, but are singled out, based on selective morality with strong religious overtones in a burdensome way. Inequality alert. As usual, the context of the case is not only pretty interesting, but necessary to get a full sense of the right result.

Anyways, pretty good article (though why not include an appendix listing the "fifty or so" post-Griswold cases referenced?). Oh, and Dawn Johnsen ... love that voice!

Value of Newspaper Over Online Copy?

Why? Nice to hold, turn pages, see hard copy, etc. Focus on one thing, not multiple stuff online. Not everyone has portable online capacity.

Bad Inning Does It AGAIN

If Santana isn't going to be able to pitch, the Mets need to get a Lee.

Hypatia of Alexandria

Following Agora, I read up some on Hypatia, including two books by Mary Dzielska and Michael A.B. Deakin (both entitled Hypatia of Alexandria). She is Polish with a backing in Roman History, while he has mathematics background in Australia, suggested by his use of mostly encyclopedia source material for much of his historical/religious background material. Both are fairly brief accounts, her book little over hundred pages plus various notes/source information. They do the job, but I might have wanted a bit more in depth discussion of the times she lived in.

Dzielska is largely influenced by a pupil, Synesius of Cyrene (Northern Libya; gospel connection here), who later became a bishop. He is portrayed in the movie version. A third of the book is focused on her portrayal over time, particularly in various literary works as a type of archetype of the end of ancient learning.* The elitist nature of her work also suggests why she might have be an easy target by some forces. The second work focuses more on her mathematics, while providing analysis of her life and times in a more down to earth manner. Original source material is also conveniently provided. He has extended notes, often provided in a pleasant down to earth sort of way.

She is an interesting subject as are the times she lived in. The fact that a student became a bishop and -- her murder by forces in some fashion connected to the church notwithstanding -- was look upon as respectable by pagans and Christians alike. One sympathetic account, written not too long after her murder, was in fact a Christian chronicler. The reason is spelled out -- Greek philosophy, especially when not mixed with religious rituals, was intimately connected to Christianity. "The One" was a Platonic concept that many -- including Synesius -- saw as a ready parallel to God. A Jewish Platonic philosopher probably even influenced First Century Christian writings, including the opening book of the gospel of John.

Her death arose from a power struggle between a more assertive religious leader (archbishop, Synesius was appointed by his predecessor; they were not of the same rank) and the secular authority. The film has him being a former student of Hypathia, but as with much fictional accounts of her life, this doesn't appear to be based on fact. At least, neither of these books made any suggestion of the point. The bishop by the way died before she was murdered and did not visit the city any time around that time either. Also, there is no evidence he supported the idea that Hypathia could not speak in public ala pseudo-Pauline epistles. Nor, is there talk of her teaching rights in any way diminished after the destruction of the Serapis in 391.

A word on that. The film in its first section portrays the destruction of what appears to be a center of learning/library. Historically, in 391, influenced in some fashion by the local religious authority, the emperor ordered the destruction of the pagan temple in Alexandria. A successor of Alexander the Great established Alexandria as a great city and center of learning as well as establishing a new cult of the god Serapis. Dzielska touches upon his worship and how the attempt to close the temple was resisted but not by Hypathia herself, who did not practice religious ceremonies. This appears to be clear only by implication though it is somewhat more clear that she did not join into astrology, something she was accused of doing.

There was a "Museum" (center of learning) connected to the temple, the last leader being her father, and it too appears to have been a victim of the closing of the temple. The books are a bit vague on the point. Nonetheless, the movie -- with some dramatic license (Theon's accepted of armed resistance in protecting the temple is not noted by Dzielska) -- fairly represents these events. Christians were pressuring to close the temple/museum, some pagans (if the word is not derogatory) strongly opposed that (some hints of force) and this was used as a reason for the final order to destroy the temple. But, the movie doesn't really help us realize that a pagan temple was really the ultimate concern here, not the library, which was not the "great" library of antiquity.

The slave character as well as Orestes being the one who wanted to marry Hypathia (but not the use of a menstrual pad to diminish her suitor as concerned with the body over the soul) are dramatic inventions. The movie is vague about how many years past after the destruction of the temple, but it in effect jumped ahead twenty years. Also, Hypathia herself was probably closer to sixty when she was murdered, not forty-five as earlier accounts suggest. The movie appears to lean toward the latter and have her killed in her forties -- vaguely, it appears about ten or fifteen years has passed in the interim. Again, there is no evidence her ability to teach was as restricted as noted in the movie.

The movie's portrayal of the final events, putting aside the visit by the bishop, is fairly on point. The reference to a band of religious enforcers that bring to mind the morality police in Iran or even the Taliban does seem to be something of an invention. They did reflect an actual group, officially to serve the poor (as an early scene has them doing) but probably also a militia for the archbishop. Anyway, a new archbishop that clashed with secular powers and local Jews reflects history more or less. There is no note of him (Cyril) referencing her in a sermon or requiring the local officials to bow down to him. And, the former slave in effect making her death painless by smothering her first is a fictional device.

So, mixed bag, probably. The problem with the film -- other than perhaps slightly treating Christianity unfairly (even Synesius fails her in the end) -- is that after a pretty good first part, it is pretty vague about Hypathia. She in effect seems to be off center stage, which doesn't seem to reflect history (she remained a greater teacher to her death, some reports saying her popularity drawing Cyril's jealousy), and you don't really get a good sense of why exactly she was seen as such an importance personage. The film has her struggling over the earth's orbit, even perhaps imagining its elliptical nature, which again seems to be a dramatic creation.

As at least one review noted, it seems the writer/director couldn't quite handle the weight of the subject matter. I still think the film is worthwhile because of its attempt, flawed as it might be. But, viewers would be best to read more about its primary subject -- history here, as sometimes the case, more interesting and complex than its portrayal.

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* One 19th Century work provided this eloquent passage, comparing Christian religious shallow thinking to the glorious nature of her ancient philosophy:

Cyril: Your gods are reduced to dust, at the feet of the victorious Christ.

Hypatia: You're mistaken, Cyril. They live in my heart. Not as you see them- clad in transient forms, Subject to humans even in heaven, Worshiped by the rabble and worthy of scorn- But as sublime minds have seen them In the starry expanse that has no dwellings; Forces of the universe, interior virtues, Harmonious union of earth and heaven that delights the mind and the ear and the eye, That offers an attainable ideal to all wise men and a visible splendor to the beauty of the soul, Such are my gods!

Quoted here. The movie would have done well tossing something like that in. Saying she had doubt while others rest on faith is a bit of a poor substitute.

Rays No Hit Again

Well, at least they got walks this time. Really, this is amazing.

David Weigel "Resignation"

And Also: A key moment that helped turn the game yesterday was a failure to take ball three, making it 2-1 with the bases loaded, not 3-0. But, not sweeping the Tigers is acceptable, especially with a great month overall. Dare we really hope? I do think merely renting an ace for a few months is a bit dubious.

[More: Some of the comments were negative but GS calmly noted things like "I said I wanted him to say, right?" Actually, he says at one point that he thinks DW thought he could not do his job effectively any more, and if so, he was "right" to resign. Apparently, as long as the guy out of some misguided sense of honor or something -- in no way pressured by the paper, of course! -- submits his resignation, things change. Others noted other conservative writers etc. did what he was accused of doing, but hey he resigned, so it's different! The paper had to accept his selective resignation, right?

Again, doesn't this simply encourage assholes? GS simply avoids the point and I continue (even with Glenn Greenwald praising him on today [6/27] -- see my comments there) to find his response lame. Weak tea (followed by 'I don't see why you are upset' feigned or actual cluelessness) is part of the problem these days. It is hard to see how he "opposed" much when he writes that DW is probably "right" to offer his resignation. In effect, he thinks everything is unfortunate, while the reporter ("dumb") gets more criticism than the paper, whose hands are not as clean as he implies. Yeah, I'm annoyed at this b.s.]

I don't keep track of the debates over the nature of the Washington Post,*, but this sort of thing is what its detractors are talking about:

Conservative movement journalist and blogger David Weigel just resigned from the Washington Post, following an apparently coordinated campaign to humiliate and discredit him by forwarding and posting his private messages to a listserv to unfriendly media outlets. I'm reasonably sure Weigel quit -- as far as I know, he wasn't fired or forced out -- but it's still an embarrassment for journalism as a whole.

Weigel was hired to report on the conservative movement, his libertarian background seen as a qualification there, though apparently some confused** him with some conservative hack. The nature of that group, who were behind the pressure that led to his resignation, is suggested by this account by Weigel. I note that his approach to that incident was more temperate to the kneejerk ARREST HIM!!!!! approach by Glenn Greenwald, who appears to put not arresting some older guy for grabbing the arm of someone pointing a camera in his face akin to not investigating torture claims seriously or something.

I have not read the guy but have seen him on C-SPAN panel discussions talking about the tea party movement (the article cited above says he voted for Rand Paul) and on Maddow talking about some issues. Seems a smart and temperate person, a -- as he noted in the column link -- "journalist." One respected by voices on the right as well. That person reminds that part of his "sins" are remarks (instigated by b.s., see here) made on what he thought was a private message board. Things like calling those who oppose gay marriage "bigots" also factors in somehow.

Thin skinned assholes, really, especially given some of the remarks made on the right. The pressure on good journalists in part a result of them freely speaking in allegedly private avenues, journalists that are equal opportunity critics (thus, in effect defending Palin against a charge on Olbermann [see penultimate link] of all places) has to be firmly opposed. I find Greg Sargent's response -- he works for Washington Post fwiw -- a bit weak in that respect. Weakly responding to b.s. like this aids and abets it. First:

Yes, The Post accepted his resignation, so in this sense he was let go. I would have preferred that he stayed. But my sense is that this decision was initiated by him and him alone. If I thought or knew otherwise, I'd say so. You may not believe me because I work here; if so, well, so be it. And if it's proven otherwise, I'll gladly admit I was wrong.

He underlines the point: "I have no reason to believe" he was pressured in any way. Others disagree. The Post has already fairly recently let go a valuable political blogger, which was the subject of much well deserved criticism. The paper is not really acting with totally clean hands when it simply "accepts" his resignation, a resignation that came as a result of unfair criticisms. It seems rather weak to imply that the paper was simply acting in a totally neutral way here as if "well, what do you expect them to do"? In effect, they didn't have to agree (as GS sort of implies) that the actions of some in the conservative movement (not all in the least, see above) make his ability to report successfully untenable. And, the PTB at the paper has shown its conservative side in the past, so who's to say no pressure came from within? How does GS know that?

Also:

To be clear, I think it was dumb on his part to pop off in those e-mails, if only because it risked giving the right ammo against him. But I don't believe what he did justifies the right's calls for his firing. And those of you who know me should know that I believe that it's possible to have opinions and to care about what happens in politics -- to prefer one outcome to another -- while still doing journalism with integrity.

It might be helpful if GS actually explained the nature of this "pop off" stuff. Isn't context important? What does "caught disparaging prominent members of the movement" mean? Does criticizing them for crossing some line count? Isn't that what fair journalists, including those there to voice opinions, do? The comments printed here really don't amount to much given what others say:

"This would be a vastly better world to live in if Matt Drudge decided to handle his emotional problems more responsibly, and set himself on fire."

•"Follow-up to one hell of a day: Apparently, the Washington Examiner thought it would be fun to write up an item about my dancing at the wedding of Megan McArdle and Peter Suderman. Said item included the name and job of my girlfriend, who was not even there -- nor in DC at all."

•"I'd politely encourage everyone to think twice about rewarding the Examiner with any traffic or links for a while. I know the temptation is high to follow up hot hot Byron York scoops, but please resist it."

•"It's all very amusing to me. Two hundred screaming Ron Paul fanatics couldn't get their man into the Fox News New Hampshire GOP debate, but Fox News is pumping around the clock to get Paultard Tea Party people on TV."

Really? Does anyone really take Drudge seriously any more? The comment about his dancing (at a wedding of someone some on the left don't like, btw) doesn't seem to "disparage" anyone in particular. He has defended Paul in other contexts and one article cited here says he voted for him! The York bit is a pretty lame thing to cite and it would be helpful to know what led him -- again on a private list -- to say it. "Watch what you say" is the new watchword for journalists for that?

Likewise, the emails were supposed to be private. Reporter or not, is it possible to have some degree of privacy or rather be a serious reporter without sometimes making some sharp comments not meant for public viewing? How "dumb" is it to have some forum where you can be blunt (including against those who make remarks about you dancing at a wedding) that again is supposed to be private? Is that impossible?

GS says there is no firing offense here and defends DW's integrity but if so, he should also be against the resignation. Giving in to thin skinned assholes who hypocritically criticized him will only make it harder for real journalists to cover them. We are talking about a libertarian here who has some bona fide support of conservatives on various issues. And, we are losing his voice for some remarks he made in a private discussion group and for an opinion regarding the bigotry of not supporting equal rights for gay people? Come on. That's bogus, and GS should say so.

I might be reading too much into it, but GS' opening also isn't too promising either. In response to various criticism of the treatment on liberal blogs -- part of his beat -- he felt: "I thought I should say something." He doesn't appear to say that generally when he discusses issues of the day that pop up in that forum. It seems like he felt somewhat pressured to do so, as if he doesn't have much enthusiasm. The same thing that led DW to apologize (like here, totally on his own, I bet!) for something he said that really didn't so require.

I'm sick of people being such big babies and the wrong people suffering for it.

---

* I'm upset enough to see how far gone the editorial pages of my local NY Daily News has gone with conservative editors and people like Charles Krauthammer having dominate space each week. The sane stuff is usually off the center pages (like Juan Gonzalez) and various guest contributors, you know, the sorts that provide solace for NYT readers tired of reading the resident gossip columnist in the op-ed pages or the like.

** This underlines that I don't really buy GS' comments below that he sees no reason to believe that the resignation was purely DW's choice and not a subject in some fashion of internal pressure.

Olbermann commented on the "resignation" (a major general "resigned" recently too -- totally on his own?) in his Worst Person segment today and referenced just this -- the belief on the paper's part that DW was really just a conservative, like Charles Krauthammer, not an independently minded libertarian voice. Criticism from thin skinned sorts from the conservative side would very possibly trouble them, influencing their decision here.

Doe v. Reed: To be continued ....

The Washington State law that requires the name and addresses (important to add that part) of those who petition to put a referendum measure on the ballot be supplied was upheld 8-1 today. In a rather thin opinion of barely thirteen pages, and over fifty pages of concurring/dissenting opinions, the Supreme Court narrowly decided the question:

The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so.

In a bit of irony, the law was in part defended as an anti-fraud device (!), voting fraud cases cited.* The Court (via Roberts) left open an "as applied" challenge geared to specific referendum measures that might cause harm, but only Justices Alito (concurring) and Thomas (dissent) really seemed open to the idea. Five justices (including Stevens) joined various concurring opinions that did not suggest much sympathy. Only Alito among the majority directly addressed some evidence that the litigants here have some concrete reason to fear retaliation.

Scalia was the least sympathetic, appealing to history and guts ("the Home of the Brave") to show there is no constitutional right of anonymity in these cases, even if we were talking about some anonymous pamphlet. This goes too far, since a type of legislative act is different, voting to ratify the Constitution was different than anonymously writing the Federalist Papers. As Scalia noted: "When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator." And, legislators -- see e.g., the openness required for the U.S. Congress -- are not anonymous when legislating.

What about the actual voting? Well, even if the secret ballot is a good policy, Scalia says it is not required by the First Amendment. This seems patently obvious -- the alternative would make town hall type voting unconstitutional. And, I think this gets to the heart of the question. I think supplying home addresses of those who sign such petitions is probably a bad policy. The justices were a tad too cavalier about the negative effects in controversial cases. It will in a few cases likely lead to harassment, made easier by the Internet. But, this doesn't make it unconstitutional.

[Elsewhere, a state resident informed me that he does not recall requests for address information, but the opinion and law does appears to so require. It is something of an important point, even if computer indexing can link names with voting precinct information to often get similar results.]

There is a tendency to belittle the possibility of harassment, and in scope, this is a valid point. Many of those crying harassment now do little when it pops up in other contexts; one person I debated with online even belittled the concern of harassment of children in school ("no one likes that but"). Some "harassment" is protected actually activity, such as disparaging speech and boycotts. But, I see no need to argue that there will be none. For instance, during the Prop 8 battle there were documented cases of vandalism against places of worship.

Thomas made it into some associational right. The ballot, however, moves it from private association to public policy. We have privacy over our associations, but when it affects the public, some of our privacy is lost. For instance, marriage is very private, but marriage licenses are public records, and the state is not acting unconstitutionally by making the names and addresses of those married public knowledge. Will this cause problems in some cases? Yes. But, to take a trite line from the conservative handbook, everything that hurts isn't unconstitutional.

Will this policy also make it somewhat more difficult to speak out as well? Sure. I don't know how much. 137,000 signatures were collected to put this on the ballot. Will the average person among this lot be targeted? The likely targets, and the ones I think brought up, would be those who are already publicly on record (perhaps by donations of more than trivial value that are on record via disclosure laws) including those in some fashion a significant voice (e.g., a church official or someone who wrote to the newspaper and was required to submit information by rules set forth by a private institution or a major hotel owner). But, again, signing on to a public referendum is a public matter that (constitutionally) can be open.

This does not justify illegal harassment, which can be targeted. For instance, the Prop 8 battle lead to some indefensible vandalism. Some legal methods often might be offensive or hard for the people involved (like boycotts), but protected all the same. This includes some collection of public information that might be used to illegal ends. We saw this all too well in regard to targeting of abortion doctors. The incitement to violence of some "want ad" websites might have crossed the line, but the mere listing of people involved did not. I speak legally; morally is another debate. And, that involves businesses, not public referendum to change the state constitution.

This ruling was correctly decided.

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* Thomas in his solo dissent noted that open disclosure was not necessary to protect against fraud. Probably so, and even the Court noted here that it very well might not be the strongest argument for the law. OTOH, state issued identification isn't necessary to protect against voter fraud either; why wasn't Thomas as concerned about the threat to fundamental rights there?

Also, it is interesting how Scalia and Thomas part company here, only the former resting on history and explicit textual restraints. History is on Scalia's side here. Thomas doesn't appear even to address it. A tad selectively, he rather rest on "associational privacy" precedents that are not quite on point and broad principles.

Little Jerusalem

By the writer/director of The Wedding Song, this is her first film that addressed female sexuality through a Jewish lens. The first part is a bit too slow for me, but still a powerful and explicit examination of desire in two very different sisters. The men also get a nod.

Can the true judicial activist please stand up?

May I have your attention please?
May I have your attention please?
Will the real Slim Shady please stand up?
I repeat, will the real Slim Shady please stand up?
We're gonna have a problem here.

-- Eminem

Justice Kennedy recently gave a speech, accessible at C-SPAN's website, where he said that "judicial activism" is basically a matter of not liking the results. The term can have a meaning; it just is not used consistently. Let's look at some rulings from the past week or so. Can the true judicial activist please stand up?

RENT-A-CENTER, WEST, INC. v. JACKSON is but an example of the "Citizen's United" technique of reaching out to do controersial things, pretty "activist" even if you support the ultimate reasoning:

In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.

And, then there is STOP THE BEACH RENOURISHMENT, INC. v . FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION where all justices taking part held there was no taking, but four justices reached out to raise the possibility of a novel "judicial taking" which would get the federal courts involved with complicated common law state property disputes. Justice Kennedy would use the Due Process Clause to address any problems, but along with Breyer, conservatively didn't want to address the issue.

Four justices (one not taking part) warned about that and noted that the question simply didn't have to be examined at all. Justice Scalia (who, by himself, was annoyed when the Supreme Court referenced privacy concerns not immediately at stake in a text messaging case) railed against them, including accusing Kennedy of being "Orwellian." For fun, he also took a swipe at substantive due process, even though incorporation of the taking clause to the states (the very thing judicial takings in this context would involve) is itself just that!

NEW PROCESS STEEL, L. P. v . NATIONAL LABOR RELATIONS BOARD held "the Board was unauthorized to resolve the more than 500 cases" it decided, resting its ruling on a questionable reading of the text, perhaps based on dealing with practices "not ideal." A rather activist result, perhaps, one written by Stevens joined with the four more conservative members of the Court. Is it a fair reading of the statute? Such is the claim of many things called "activist" by conservatives.

Meanwhile, HOLDER, ATTORNEY GENERAL, et al. v . HUMANITARIAN LAW PROJECT isn't activist, by some definitions, since it respected congressional/executive policy. OTOH, if the dissent is correct, which it very well might be, it disrespects First Amendment freedoms. IOW, it is not "activist" enough, unless that term only means, again, "a decision you like." Or, maybe, "the right one," though that makes "activist" a pretty meaningless term, a confusing one that isn't used when the courts are acting in a pretty activist sort of way.

We're gonna have a problem here, I think.

Nikki Haley

Per a C-SPAN aired debate: Don't worry! Her parents might be Sikh, but she found Christ, so she's safe in that regard! Julia Sweeney's Letting Go Of God is on cable these days. Looks like she has had a revelation of sorts -- the value of privacy. To our detriment, I bet.

Supreme Court Watch

The most significant ruling handed down by the US Supreme Court today is mixed at best:

For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on Monday ruled decisively in the government’s favor — but still stopped short of providing an unqualified victory. The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

What is involved here? The dissent (Breyer, Ginsburg, Sotomayor) noted:

The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'

Scary stuff, huh? Breyer, who read his dissent from the bench underlining how important he found the matter, continued:

In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech.

More here. Meanwhile, Justice Stevens alone dissenting (Breyer not involved, his brother the district judge, whose ruling was overruled), a win for bioengineered food producers which will matter more for future regulatory action. Workers also didn't come off that well today in this 5-4 arbitration case. Finally, the American Constitution Society had some good speakers, including Al Franken and Dawn Johnsen. See here.

[More: A positive environmental spin on the GMO decision here; various perspectives on the arbitration ruling here. The former case yet again shows that the breadth of a ruling is very important.

Sometimes, it is a matter of getting what you can, and avoiding big losses. A Kagan vote, as well as a potential removal of a Stevens to provide a counterpoint that can move majority opinions even when he doesn't join them, therefore has to be judged beyond a simple matter of 5/4 majorities.]

Summer

New season starts in the morning though the weather has led the way for a few weeks at least now. Army Wives (pretty low key) was decent, Drop Dead Diva good (character and legal stuff) tonight. Another split Subway Series though the Mets aces didn't do that well this time around. Made for tedious games.

Companion to Democracy in America?

Marie, or Slavery in the United States is a melodramatic work of fiction combined with social commentary written by Tocqueville's traveling companion. The author notes he speaks in generalizations, but even in that respect he lays it on rather thick. Still, interesting.

The Vice

Taking on another show with Caroline Catz of Doc Martin, The Vice -- about a vice squad -- is good so far. I saw two two part episodes and (aside from the more freedom respecting boobage in the UK) the plots are interesting while the characters and settings gritty and something to sink your teeth into. And, Catz again is good.

It is Done

And Also: Linda Greenhouse has an interesting blog on DeShaney and Kagan's minor role in it while clerking. It's one of Kagan's "defensive" memos but reflects a liberal sentiment, though she has ran away from that in this context before.

The attorney general tweeting his acceptance, the execution of Ronnie Lee Gardner (he had the three name thing down) commenced. He earlier talked with a bishop of the Church of Latter Day Saints, suggesting perhaps his desire for a firing squad reflecting "blood atonement" beliefs shared by some members of that faith. It is a major reason why states like Utah and Idaho (until recently) retained that method of execution.

Family of the victim had earlier joined an attempt to obtain a reprieve, suggesting the victim opposed the death penalty, and would not want his death answered with an execution. A person shot in the escape attempt that led to the murder did not share similar feelings; Gardner was in court at the time on a charge of murder during a robbery.

A "troubled life marred by drugs, sexual abuse and indiscriminate violence" suggests that the deterrence effect of the execution is questionable, given such a life leads to reckless acts no matter what the possible consequences. Various potential problems with the case led it to linger for over twenty years, the apparent reason why Justices Stevens and Breyer supported (citing earlier quest to hear case where person lingered on death row for decades) taking his case down to the very end.

At this point, Gardner's death appears to amount mainly as retribution, defended by the Supreme Court a few decades this way:

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law. ...

[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

Justice Marshall disagreed, arguing that total destruction of the human person by the state robs diminishes the value that the Cruel and Unusual Punishment Clause protects while also constitutionally excessive since alternative punishments are available. In part:

Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But the fact that some punishment may be imposed does not mean that any punishment is permissible.

We require someone to commit a wrong to punish (mere safety doesn't warrant prison; you need to commit a crime ... safety might warrant a mental institution) . In some way, this is more mere deterrence, a type of "retribution." See also, "punitive" damages that punish, not just compensate. But, even if we accept that, and look past the dangers of our imperfect system of justice [which I cannot -- life only taken by due process of law], taking a life is a step beyond. We don't rape rapists, maim those who maim, and we shouldn't kill those that kill.

To the degree vengeance or more carefully applied "retribution" requires it given the realities of society today, it is a force of power, not rightful law.*

---

* Justice Chase, signer of the Declaration of Independence, put forth the basic principle over two hundred years ago, a few years before Marbury v. Madison expressed the principle of judicial review: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority."

As to the technique itself, in respect to pain and safety, it seems marginally different from lethal injection. That isn't the only way to judge modern standards of decency, however, and the spectacle of it all might be deemed barbaric as well. But, as suggested before, lethal injection isn't that grand in that department either. Still, arbitrary culturally accepted standards just might past muster, especially under Baze v. Rees ("dignity of procedure" is a legitimate purpose for perhaps risky paralyzing agent).

Ronnie Lee Gardner

Having three names and all, he is due to be executed in a few hours, after final appeals (including with support of family of the victim) failed. He killed trying to escape while at court for another murder. S/B would take his case since given the length of time on death row.

Supreme Court Watch

As noted, the end of the term cases are starting to be handed down. These continued some interesting match-ups including one where Stevens joined the conservatives to reject a two person quorum for NRLB hearings and discussion of "judicial takings" where one part of the decision was rejected by four justices (Stevens not taking part) including a Kennedy/Sotomayor concurrence. This desire of Scalia to cloud the waters (via a section only 1/2 the Court signed on to) makes his solo (not even Thomas joining) "typically exaggerating" concurrence in the text messaging case a tad bit hypocritical.

ONTARIO v. QUON dealt with a broad issue (workplace privacy and privacy over modern communication devices) by a narrow decision that managed to get eight votes with Scalia joining in some parts of it as well. This was done by not settling a major debate involving the proper test to apply for workplace privacy and assuming a reasonable expectation was there in this case, but the search was reasonable all the same. Scalia didn't like the asides that in effect seemed to him (reasonably) to hint what it did not actually hold.

Thus, a narrow case -- pagers given to governmental employees with messages examined to determine if the use was truly work related and done in a careful (even if a more privacy protecting way might have been possible) way -- provided hints:

Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

The "self-expression, even self-identification" tidbit is common sense (ask any teenager) and the free expression friend Kennedy is an unsurprising person to toss that in there. The shall we say "passive aggressive" nature of narrow decisions with suggestive dicta is not that uncommon and provides a signal of sorts to lower courts to be careful when deciding questions. Shades of Souter's commencement address, the opinion also was careful in dealing with developing technology, a move Scalia didn't like, but is a sensible "we might see this differently with more experience" path:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Such prudence and balancing is known as "judging," and along with some interesting justice splits, it underlines simplistic analysis of the job at hand is foolhardy. Something comparable might be considered with the refusal to hear Arar's lawsuit, Sotomayor not participating because of her involvement below. This means even if Kennedy joined the "liberals," a 4-4 uphold would be quite possible, five justices at least giving some succor to the lower court travesty as well. Not taking the case on some level is horrible, but on another, is it not perhaps appreciated?

---

* Wikipedia summarizes his case:

The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Further, Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.

More with some of the usual avoidance of the humanity involved for typical avoidance techniques here.

Supreme Court Quickies

Justice Kennedy's speech accessible here provides a reason why we should be happy he, not Bork, became justice. It covers various subjects, including activism, empathy and political appointments. Meanwhile, more rulings today, more interesting splits.

Lethal Injection

It's easy to find psychologically stable, trained professionals with experience shooting to kill.

-- "Shoot Me Now: Are firing squads a better means of execution than lethal injection?"

Interesting. Who are these people? The people who would have such experience would have it in contexts not quite on the same level as shooting an unarmed person in this context unless we are importing executioners from other countries or something. The military (and firing squads would be a logical execution technique in that place, especially if the execution had to be done "in the field") would be a logical place, but soldiers do not have much experience, do they, killing someone quite in this context. "Shooting to kill" changes when you kill an unarmed American like this.

An early ruling on the 8A concerned execution by firing squad in Utah. The technique has special significance there because of the idea of "blood atonement" and perhaps partially as a desire not to mistreat the body. See this story. This is interesting symbolism that might very well reflect beliefs of many who support the death penalty in some fashion. The importance of a "clean kill" is also reflected in the slaughter requirements of certain religions, which this would be an analogue. Is allowing it as an option here of First Amendment significance?!

Firing squads might seem to some to be uncivilized and/or out of date. As an opponent of the death penalty, I do find the argument against them as a means somewhat weak. The humane kill lethal injection model -- shades of putting little kitty to sleep I assume -- is problematic. If firing squads are not more painful (and methods like electrocution and gas has problems in that area in particular; lethal injection is not free from problems either), the main benefit appears to be to make us feel better. This separation from the event [those shooters are ultimately our agents] is not totally ideal and use of a 'medical' technique when involvement of medical personnel is unethical is problematic as well.*

If we are uncomfortable with the firing squad, it is likely largely because we are uncomfortable with carrying out the death penalty itself. Lethal injection allows us to separate ourselves from the process. It might be (marginally?) better in some ways, but in others, not so much.

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* The article linked at top cites various cases where lethal injection was problematic in practice, but the benefits of the firing squad on a pure "less pain" basis is open to question. One study cited suggests lethal injection might be better. Justice Stevens cited another in that opinion regarding use of the gas chamber. But, the firing squad is so rarely used and the limited value on the pain front is clouded by the other factors discussed.

Context

The Deepwater Horizon disaster is as organic a product of human processes in the Gulf as Hurricane Katrina was a product of natural processes. Shipping, flood control, and natural resource extraction have taken a nearly century-long toll on the coast. The Gulf has been abused, exploited, fouled and taken for granted for so long and with such consistency that the shock and horror over this one incident becomes in its own way a salve for our consciences.

Hmm. How often has this long haul look provided?

America and the Pill: A History of Promise, Peril, and Liberation

This book by Elaine Tyler May is a nice summary of the development (less on the science) of the birth control pill and its effect on society. Diverse resources and avenues are analyzed and care shown to note it is not a wonder drug, but still a quite significant milestone.

TV Online

A miss did not hurt since I saw both Army Wives and Drop Dead Diva from last night online. AW jumped ahead six months and was a very good episode, good character interactions. Diva was pretty good; sad case that was a loss. Barely recognized Rickie Lake!

Sotomayor Suggests Complexity of Situation

Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand."

The complexity of this matter is suggested by Justice Sotomayor's concurrence to a unanimous opinion handed down today involving a federal statute in which she noted:

Subjecting EAJA fee awards to administrative offset for a litigant’s debts will unquestionably make it more difficult for persons of limited means to find attorneys to represent them.

The concurrence notes that the text and court precedents compelled the result all the same, but it is unclear that Congress actually thought about the problem when writing the law involved, in fact, the result goes "undermines the estimable aim" of the law in question. Sotomayor (joined with two others) wrote separately to flag the problem, since Congress "has just cause to clarify beyond debate." It was her first concurring opinion.

If the text and precedent wasn't so clear, would this result in the opinion possibly going the other way? Is the right to have an attorney to protect your rights and interests something that the courts in particular would worry more about in close cases? How much of this is merely "facts" of the case as compared to more of an at least somewhat subjective judgment call, in part based on your overall judicial philosophy (e.g., Scalia's focus on text alone is not a patently obvious path to take, as shown by his usual partners on the Court not always agreeing with him on the point*).

Or, is the bottom line that looking at the "facts" and "the law" a balancing of interests, a complex enterprise as discussed by Souter, one that applies whenever the Constitution is applied? So, even if we take her test as our guide, the actual application is not as simple as it sounds.

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* This suggests that lines sometimes are not so easily made, a truly strange bedfellows line-up.

Perils of Extreme Laws

Petitioner Jose Angel Carachuri-Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail. After this second offense, the Federal Government initiated removal proceedings against him. He conceded that he was removable, but claimed he was eligible for discretionary relief from removal under 8 U. S. C. §1229b(a).

Why did this case get so far in the first place?!

Believe in Me

A film based on this book (and a true story), an uplifting one about coaching a small girls basketball team in the 1960s.

Reading comments about it online, a few were concerned that they took liberties as to the style of basketball played and such. If you are going to have a film about a somewhat specialized sport (or even a run of the mill one like regular baseball), it is important to worry about such things. I'm curious actually since they actually had the coach this was based on as a consultant. This leads me to wonder if some of the changes (an old style might look wrong to today's viewers; trademark concerns about uniforms etc.) were done knowingly for a reason.

All the same, the specifics is not the important thing for me, admittedly someone who is not familiar enough about such things to care much. To me, the weakest part of the movie was the "underdogs win the regionals!" (shades of Glee?) type of thing, the 1960s conservative small town environs making it ever more Hoosiers without the desperation on the side of the coaches. That part of it was done professionally enough, rah rah spirit and all, but it was fairly predictable. Bruce Dern also played the heavy a bit too one note, especially how far he took it at the end which seemed over the top (something like might have happened, I guess, but it seems rather dubious).

The charm of the movie, best seen in earlier scenes, reflects the title -- "believe in me," which is not a religious thing in particular, but a matter of believing in the girl basketball players. This was before Title IX and the woman's movement did not quite reach rural Oklahoma or wherever either. This included a teen mother, who we are reminded was not alone when someone tells her one of the mom's of the students was a teen mom too, and she says (with some shade of sisterhood) "welcome to the club." Empowerment among other things is why sports is not just about playing with games.

The film is also about the young coach (hey, yeah, he's on Burn Notice) and his wife (Samantha Mathis, one of those actresses out there who you see and say, "hey, she's good"). He's just a regular boy, a vet, and wanting to be a head coach somewhere and taste the joy of victory (a few good moments where you can see him salivating over the possibility). He also is ashamed that he is infertile (I saw the last regular episode of the second season/series of Doc Martin, where that was part of the plot -- aww Mark), knowing how much his wife wants a baby. She, who played basketball in school herself, is a rock by his side.

The film is also about the town itself, starting off suffering a drought, just an ordinary town that can get around a local team. The film probably could have did a bit more to let us know these people, the few tastes (especially of a few of the players -- one moment they loved was when they had a meeting to plan a training regime ... just like the boys team!) were appreciated. You are glad that they have the pleasure of watching the girls team win it all, memories like that quite special. But, like the end of Whip It!, it is useful to remember what is really important about the film.

It's ultimately not winning the game; more like how to play it and who does the playing.

Why So Thinly Argued?

Though there were useful exceptions,* often in concurring and dissenting opinions, the Supreme Court often did not go into much detail when discussing why there is a constitutional right to privacy. This addendum will suggest a few reasons.

First, Griswold v. Connecticut reflected Douglas' standard policy of thinly argued opinions that were often conclusionary. This did not mean he couldn't spell things out. In fact, he repeatedly did, including on this very subject (if not as expansively as the now seminal dissent of Harlan) in his Poe v. Ullman dissent as well as in other writings. It is sometimes suggested Brennan encouraged him to take the approach in Griswold, but a lecture he gave a few years before had the basic idea, down to the use of "penumbra." A more careful thinker might have got more than personal value from opinions that toss in comments like (in a ruling shortly before Roe):

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

Second, Blackmun was just starting out when he wrote Roe v. Wade, and was not much of an opinion writer either. Accounts, such as The Brethren, suggests he insisted to work on the opinion mainly by himself, and the emphasis on history and medical matters reflected his comfort area as a lawyer for the Mayo Clinic. As noted, his excellent Bowers dissent that flesh out the right to privacy was greatly the work of Pamela Karlan. The material was there for a better opinion in Roe as well, even with amateurs leading the way (Sarah Weddington was in her 20s), especially given various briefs help out.

Third, there was a certain charm in thinly argued opinions that had some key broad phrases since fleshing things out might cause problems (as one lower court opinion noted, the basic idea of Griswold was agreed upon, even though the reasoning was split). Relatedly, the Supreme Court was pretty results orientated in the 1960s and early 1970s, so reasoning was not really its thing. Brennan, a leader at the time, did not really care about specific details. Douglas' more expansive concurrence in Doe v. Bolton had an outline that reflected a memorandum give to him by Brennan [see Liberty and Sexuality] but Brennan never wrote or joined an opinion that expansive in detail. This is unfortunate since one duty of the judge is to explain their reasoning, and if some of it is only implied, the value of opinion writing is reduced. This always occurs in some fashion, of course.

And, once the basics of a "right to privacy" was established, as it was in Griswold, further in depth discussion of its origins and specific constitutional backing was apparently not really deemed necessary. This is unfortunate, since it was a big step (if one that -- as I have repeatedly said here and elsewhere -- with firm grounding) to firmly announce such a right. It bore repeating how freedom of expression, conscience, association, privacy reflected in the Fourth Amendment, freedom from self-incrimination (in its broadest form), liberty related to basic freedom and freedom from slavery leads to the right to privacy. Equality is interconnected here as well, one essay in the book referenced last time underlining how freedom to make private family matters often is essential to black women in particular.

Griswold said as much in bare bones form, but since few seem to deign to read its reasoning (focused only on result -- leading Scott over at Lawyers, Drugs and Money to suggest few really care about judicial reasoning, a bit exaggerated, but true enough to help explain things), the point clearly warrants further emphasis. This is true also if one wants to focus on "liberty" over some "right to privacy" in particular, which is the preference of some and the emphasis of Justice Kennedy in particular. The tools are there as is the audience: many are quite open to the results, so providing some analysis would be welcome as well.

Again, I don't mean to exaggerate and say that the rights in question were not analyzed at all. But, people criticize the opinions with some reason, and it is useful to get the whole story out.

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[footnote added]

* In an otherwise minor case upholding a prescription drug database, Justice Stevens authored an opinion a few years after Roe joined by all justices that provided a useful summary of the "right to privacy," at one point quoting this analysis:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

"Private" doesn't simply mean anonymous; the public knows various things about what you do or who you invite to your home, which is "private" property. I stick to my feeling that the concept has merit, "liberty" too open ended, things like "autonomy" a bit too obscure. And, to the degree some need help to fully enjoy their rights (e.g., funding), that just means it is not a one note thing. Does needing help to enjoy a family mean decisions involving it are not basically private?

Justice Stevens expands on the concept [FN11], but "how he will live his own life" is his bottom line, which sounds like "privacy" to me. Sure, equal protection etc. factor in, but few rights stand alone. On the Fifth Amendment, see also here, FN12/13 and surrounding text, cited by Stewart in his Whalen concurrence.