Next Step?

June 2009 was about Sotomayor, 2010 Kagan, 2011 was a break, 2012 is PPACA ... will 2013 be about same sex marriage? To close the PPACA comments, Sam Seder's podcast was pretty good.

Supreme Win For Women

In short, [the PPACA] will increase health-insurance coverage for women, lower their health-care costs—and end the worst insurance-industry abuses against them.

Thanks to Democrats. Republicans said "NO!"

Human Rights

These treaties reveal a longstanding global recognition of the human right to health. We must evaluate the Supreme Court’s ruling in light of this significant body of international law: an important step forward, but only one step on a long journey towards full human rights for all.

Governments, federal/state, have the power and duty to protect it.

Scalia Joins Liberals (Moderates)

After the final orders, another order was posted that looks a bit strange.  It seems to be addressing this habeas writ grant, here four of the conservatives (minus Scalia) supporting a stay of the order.  Five being needed, the grant was upheld for the time being.

The Missing Constitution?

Those online ignore the message here freely, but as Glenn Greenwald noted once, sometimes the person you are responding to is not really the point. They voice something that others are thinking too. And, of course, it feels good to hear yourself talk and school someone. Oh, and you know, maybe each side will learn something.

Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.

Roberts uses the Constitution of the Republican Party while the four dissenters (it is curious that they labeled their opinion a dissent when in effect they joined the holding on various points; it seems a bit counterproductive on precedent grounds) are Tea Party types.  This is a somewhat simplistic summary.  The ruling does not say that "any national problem" that is resolved by something not "utterly idiotic" is constitutional. This caricature falls by noting there are many constitutional provisions that limit the federal government without making it "utterly idiotic" for Congress to invade them.  And, the means here was specifically a commercial regulation. Ginsburg does not ignore the principle of "enumerated and limited" powers.  

As to Roberts, since I don't recall military commissions in Gitmo during the New Deal, the New Deal is not really a limit on federal power -- only in certain areas, apparently.  And, even in respect to non-military areas, such as abortion regulations or protections of religious liberty, Roberts will accept broad federal regulations. Even the dissent is not quite that suspicious, especially Kennedy -- I doubt he is really a "Tea Party" type in various ways, including the fact they tend to be socially conservative.  And, though it might be true to the others, even someone like Alito isn't overly pure about the idea in various respects.

What might be called the Move-On or Progressive Constitution is missing from this debate entirely. ... The post-Civil War Amendments, most notably the abolition of slavery and the equal protection clause, were designed to ensure that all persons would have the rights and resources necessary to live lives as democratic citizens (or some other phrase). Persons need rights to health care in order to function as democratic citizens. Therefore, the individual mandate and expansion of health care are legitimate exercises of congressional power to enforce the rights protected by the Thirteenth and Fourteenth Amendments.

It is not as if Ginsburg et. al. are not open to this sort of thing, if given a realistic chance.  Tennesse v. Lane, e.g., was a limited win for those resisting current state immunity doctrine because it was found the due process rights of the disabled to access of the courts were being addressed. This Fourteenth Amendment right is recognized while generally speaking burdens on the disabled need only meet a rational basis test.  Ginsburg concurred separately to defend Congress' ability to broadly protect the equal justice for the disabled.  She also used equal protection of defend abortion rights, not the traditional privacy rationale alone.  She has to work within actual doctrine though.

I think it quite reasonable to say that the PPACA is necessary to protect equal protection and it has been defended various times with rhetoric that promotes that overall meme.  I myself defended it as from the beginning, though some people was totally turned off by that idea.  That is, it allows everyone (or much closer to that reality) the ability to not be denied a basic necessity because of inability to pay, conditions beyond their control and so forth.  Art. I powers can be used to promote such ends, so all the same, I wouldn't use that by itself. I think the anti-slavery connection is more of a stretch, though the desperate state of those without proper health care and disproportionate affect on certain groups does bring to mind being not quite free and a racial angle.

Two things.  First, Art. I. itself has various powers that deals with such issues.  For instance, taxation for the "general welfare" -- that is, for everyone, not for some specialized group.  Medicaid is a case in point; not defended by reference to the 14A, but as an appropriate use of the tax power in a way that advances equality.  The commerce power has similar value as clearly seen by the Civil Rights Act of 1964.  A strong exercise of such powers will protect equality and the blessings of liberty for all. 

Also, the measure is a federal one -- the 14A in particular generally concerns states.  It is true that it also references national citizenship and some argue it should be used to protect a broad vision of that term nation-wide, both in federal and state jurisdictions.  And, since there is just one national citizenship, not grades of it, it has an inherent equal protection component that applies to each citizen, not just against state action.  But, that isn't how doctrine works these days and in fact (like those who can't understand why people don't see abortion rights as a basic Thirteenth Amendment issue) not broadly seen that way.

It would be nice to have a strong left leaning voice on the Court, a latter day Thurgood Marshall, that would consistently be able to promote such views as if this was the early 1970s.  (Judge) Goodwin Liu and others might have some opportunity in the future to do so, perhaps, some of his writings recommended.  From time to time, on certain issues, we will hear it.  But, when the federal government itself did not raise such an argument, it is a bit much to expect some voice on the Court to independently bring it up.  I agree it is somewhat unfortunate and that the Roberts opinion will help to restrain the "Overton window."

Such are the continuing effects of 2000. 

SCOTUS Final Orders

The final moves of the term included not accepting cert for various outstanding PPACA cases and the "wardrobe malfunction" case. Roberts had a playful concurrence there while Ginsburg noted the government can think about overturning their "Pacifica" policy.

Meanwhile at the SC ...

Today, the full Court vacated that temporary order and denied a more durable (or permanent) stay, with Justice Alito dissenting.  This means that citizens will be able to register in Arizona for this cycle’s elections without first having to produce specific documentary proof of their citizenship.

Details here.

Crying Wolf

Some kept on saying it wouldn't be passed and then many said it clearly was doomed in the courts.  Others said the tax argument was a joke.  It did pass and it was (mostly) upheld.  And, via taxation.  Oh well.  Oh, like Ezra Klein noted on Maddow, each time some provision is put in place, this "very unpopular" law is supported.

PPACA Ruling (or just read Ginsburg)

Dear Joseph,

Just heard the Supreme Court's ruling -- such exciting news.

We don’t know all the details just yet, but this hard-fought battle was worth it. The Court’s ruling means we can expand coverage, lower out-of-pocket costs, allow students to stay on their parents’ insurance until they turn 26, and end insurance industry abuses like denying coverage based on pre-existing conditions.

I’m so proud of President Obama and so many of my colleagues in Congress who did the right thing -- even when it wasn’t easy. Please join me in telling President Obama that we stand with him.

Click here to sign my message to President Obama now.

And I’m thankful for all of you who gave your support.

Kirsten

This was an email I received from my senator right after what one NYT account called "a striking victory for the president and Congressional Democrats." Replacing the other one -- Arizona v. U.S. and the individualized sentencing for minors liable for life imprisonment to provide a pretty good week.  Yes, there is the Montana campaign finance ruling, but that was a holding the line thing that was basically "you were wrong."

And, well, there's the fact this ruling -- turning on CJ Roberts doing a CJ Hughes impression vs. a joint dissent who thought they were signing on to a latter day Cooper v. Aaron apparently (when did justices each sign on to a dissent like that?  Scalia's name came first, but it was Kennedy's baby) has various possible landmines.  "This is the first time the Court has ruled that federal spending legislation is impermissibly coercive."  And, for some reason Breyer (who never finds a federal law that he doesn't like on federalism grounds) and Kagan signed on to that portion.  The result might be certain states [I said "wingnut" originally, but find taht word unduly divisive though in this context, if nothing else, it would be pretty deserved] will deprive poor people of the Medicaid expansion since they get to do so since the feds paying for it unduly "coerces" them somehow under lines Justice Ginsburg (with Sotomayor all alone on this point) shows is hazy. 

This is but one of the consolation prizes the Volokh Conspiracy "libertarians" have and it will at least lead to more litigation, if not problems with current law.  Next, the majority (Roberts thinks it isn't dicta since it is why he winds up with a taxation ruling that might not otherwise be necessary to save the statute)  actually accepted as constitutional law some of the ... sorry ... stupid arguments.

[And More: Some like John Dean appreciate that he showed some judicial restraint here, particularly the end result, which to be fair is somewhat right.  And, in a fashion, the "I know it when I see it" nature of artificial lines drawn is basically loyal to the nice sounding (to some) but skin deep federalism jurisprudence of the last fifteen years. You appoint a Rehnquist clerk, you get that.  But, I can only go so far on the bus, since as applied, the reasoning is still lame.  Sometimes, it's a game of lesser evil.]

Now, though Ginsburg notes even with it (her opinion is great with lots of quotable gems) the "tests" aren't violated, we have an "activity" vs. "inactivity" rule for the Commerce Clause and somehow (at least here; cf. jury duty, militia service, tax preparation etc.) it helps make the means (quite necessary to regulate interstate commerce pursuant to the scheme at issue) "improper."  Also, people here are being compelled while doing "nothing." No, they aren't.  Also, unlike past precedent suggested, even nearly inevitable future conduct cannot be used to justify the commercial regulation at issue.  Finally, it's okay to be somewhat wary of novelty and Roberts admitted this was only a possible red flag, but being able to apply new solutions to changing problems is a feature not a bug. 

[And More: I'll add one thing here -- "The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power."  This is silly, since the Congress isn't inventing the problem, they are addressing an existent one.  Dealing with the resulting legislation is not a problem.  The NPC section also is based on such dubious premises. The weakness of the reasoning given the breadth of the move is unfortunate, the fact the same thing is upheld all the same just makes the whole exercise look silly.]

Again, read Ginsburg's opinion which covers all this ground, there is no need to cover yet again such talked to death in various places.  My only point here is to note that on some level I don't think she goes far enough. The absurdity of the "doing nothing" brigade is that there simply is no practical way people will not be "active" in this context.  The relevant universe is not just specific people needing health care, though sure, this helps to show (along with enumerated limits and the democratic process) how upholding the law on Commerce Clause or Necessary and Proper grounds doesn't open up unlimited federal power.  It is interaction with others who use health care, involvement in a market where insurance is a significant matter, it is dealing with the results to the national economy we all are part of medical bankruptcies etc. 

Anyway, as a type of joker, Roberts said the PPACA is saved (mostly -- the Medicaid provision is hurt somewhat given its enforcement mechanism is weakened) because the only thing that happens if you don't get insurance coverage (not ... per the headnote ... "purchase insurance") is what functionally looks and acts like a tax. Not enough to block the USSC deciding the issue now under the Anti-Injunction Act, something suggested by some (including a few judges below) as reasonable, so he gets to do his part to promote maximalist doctrine via a minimalist opinion.  But, remember, President Obama asked for a ruling now too. 

The tax argument wasn't really taken too seriously though I personally (hey look it up) continuously thought it reasonable as did a few judges below in separate opinions.  In fact, a comment by Ginsburg during oral arguments made me think even the liberals weren't that gung ho about it.  The overall idea is that Roberts is using it as a political sort of savings clause and isn't really serious about the whole thing.  He is not game to throw the baby out with the bathwater.  I'm pretty surprised, especially with all the juicy new doctrine, that Kennedy didn't go along here.  The majority protected "liberty" by finding mandates of this sort unconstitutional, noting taxes here provide more flexibility and do so without making people criminals.  The tax doesn't go so far as to be unduly coercive and it isn't a direct tax.

The whole section is actually pretty well argued and touched the bases I have cited in the past online when talking about why the tax is acceptable.  I'm in fact okay with being somewhat wary about "mandates" though again they aren't unconstitutional in general or even here.  If something, e.g., "substantially affects" interstate commerce without being it, and a mandate of this sort is "necessary" as part of a comprehensive scheme, there is no real good reason to not allow it unless it violates some other constitutional provision or general principle.  But, fine, be wary of them, require a greater test.  Even then, as Ginsburg notes, the insurance coverage requirement is particularly necessary ... without saying so, she in effect says it meets the rational basis with teeth standard suggested by Kennedy in his U.S. v. Comstock concurrence.

The five here is akin to the person here that has a curious way to apply the tax power. Art. I, sec. 8 provides three reasons for taxation, and "revenue" is not the only one. I'm not sure where this need for "an effort to generate revenue that would replace the money that the feds will lose as a result of private persons' failure to buy insurance" is found in the text, ditto the limits now the law of the land given how the Constitution's meaning develops over time, much affected by political events, including who picks the people making the final decisions.

Well, bottom line, a constitutional law passed by a supermajority using a conservative approach barely survived.  How much all the dross will affect constitutional law etc.* is left to be seen.  One more reason for vote Obama and the Democrats in general in November.

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* For instance, there was a split among the SCOTUSBlog team, one thinking it would hurt in the short term given the anti-tax mentality of the current political universe, while another thought the law is atypical enough that it would not matter much.  

PPACA Tweets

Minor league Mets pitcher Collin McHugh worried about free lollipops and his wife thought it "way selfish" for Obama to hog naming rights.  Actress Elizabeth Banks retweeted that it is pretty funny the "right wing outrage" came from a Republican idea.  Like that woman.

Stolen Valor Case

I discussed the case here and here's an opinion summary.  The ruling was pretty bland though it starts out saying "Lying was his habit."  Four see it as an illicit content based provision (I agree), two as too broad and Alito leads the dissents in thinking it acceptable.

SCOTUS Update

Quick reaction: sheesh.  Whew, but this will cause some problems.  The Stolen Valor case was in effect decided on narrow grounds.  Scalia thinks token laws about lying are okay, while limits on selling violent video games to minors are not.  More later.

So little love

First Am. Financial Corp. v. Edwards ... it feels left out.

[A potentially important case, it was dismissed without comment as improvidently granted.]

Posner Speaks

[And Also: A sentencing policy blog has discussed the cases in detail and has a good post challenging Thomas' originalism dissent, including the assumption that mandatory life imprisonment obviously follows from mandatory death sentences of the Founding Era. But, that is not necessarily true.  Life imprisonment might be worse.  Some "volunteers" do want to die, including one case in NY some years back that split the siblings of the victim.] 

A tweet informs me that Tom Goldstein thinks the ACA will be upheld, not fully convinced, but on balance sure enough to make a position. Not really worth linking to the SCOTUSBlog post on the matter and you know, "fwiw." Still, my heart says "yes," and my head says "that is a reasonable thing to say." Anyway, a tweet (another way to spend time online, as if there aren't enough) links Judge Posner's take on the individualized sentencing for minors ruling yesterday. In part:

The analysis part of the opinion begins with two quotations from Supreme Court opinions, one that the cruel and unusual punishments clause "guarantees the right not to be subjected to excessive sanctions" and the other that the clause "flows from the basic 'precept of justice that punishment for crimes should be graduated and proportioned." These propositions have no basis in the text of the Eighth Amendment (imprisonment is not cruel, and mandatory life sentences for juvenile murderers is not unusual, at least in the United States) or the English legal history that lies behind it or punishment practices in 18th century

Posner takes up so much that one can forgive some weak reasoning, but really, this is thin gruel. [He's okay with the ruling, btw, just is sorta upset about how they got there.] The opinion is not about imprisonment itself being "cruel," it is about life imprisonment for minors without providing individualized treatment of all the factors. Wrongful imprisonment can violate the clause. Reliance on history also is not a "textual" matter. And, as I noted, just because something is not "unusual" doesn't necessarily mean it is saved under the clause (e.g., I can hate jam and ham, and still hate jam alone). Finally, what exactly is "unusual" in this context? If 1% (one number cited during the oral argument) is involved?

"the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law

Why not? It isn't totally evolved, yes, but that is akin to saying a sloth is not fully evolved vis-a-vis a human. Our penal system in various ways is better than it was in the days when Posner was a boy, when there were less due process rights down to the ability of the poor to get counsel (however flawed) at all in many states. Later, he says that he wishes (channeling Colbert) that he wished (I can hear a Disney song in my head) judges could do more than rule by their "gut" in cases like this. They do. As in many cases, something that might be called a judicial gut might very well be the final factor. Still, that isn't the only thing used.

The discussion overall among the participants is fairly interesting, including various remarks Posner made. But, I find this lazy.

Some Books

Last year, I caught up with Jane Austen. William Deresiewicz in A Jane Austen Education did so while in graduate school, later becoming a professor.  The book is part memoir, part overall examination of Jane Austen's live and works. Her "bad girl" novel not included, nor the one she started before she died.  WD was a bit of a brat apparently in his twenties, a bit insufferable, though it's good that a real person (who has sex, smokes pot, etc.) comes through.  The chapters ramble a bit, but overall have enough commentary and content to make it a worthwhile read for Austen fans or the interested general reader.

It is in no way a complete look at each novel, but a method to teach some life lessons. Emma taught him to see the charm in "everyday matters," including in novels that others might think trivial in nature.  Pride and Prejudice taught him about growing up, the need to make mistakes and learn that your point of view / feelings aren't always correct.  Mansfield Park taught the importance of being good, even if it seem boring and the alternative at first glance better.  Persuasion, the value of true friends.  And, Sense and Sensibility, the need to fall in (and learn how to) love the right way, including having self-knowledge and knowing the full nature of the person involved. 

"Jennie" also gained some "experience" in Higglety Pigglety Pop!: Or There Must Be More to Life, a favorite book of Maurice Sendak since it reminded him of his own dog.  Jennie had "everything" but wanted more.  In an amusing but insightful account, the fluffy dog leaves home in search of that something more, eventually finding happiness on the stage.  Never read the author as a child, but can see why so many of all ages love him.  The book has a great way to fill the inside binder -- it quotes an early review, not some advertising sounding pap. 

Sendak gave an extended interview to Stephen Colbert earlier this year and Colbert made a joke about writing his old children's book.  The book that resulted was I Am a Pole (And So Can You!), the title a takeoff on Colbert's previous book on being a America.  "It is the heartfelt tale of a pole searching for truth and meaning in its life" and Sendak, in a blurb to die for, said: "The sad thing is, I like it!"  A short amusing picture book not quite for kids (he tries to be a stripper pole at one point), the proceeds went to a veteran related charity.  Good to see him diversify.

Remember, it is "Caldecott Eligible" and prime for film.  

Release of Scalia/Ginsburg Bench Statements

Lyle [Denniston]: Justices Scalia and Ginsburg routinely release to the press and public the oral statements they make from the bench, whether in the majority or in dissent.

Lyle Denniston, veteran USSC reporter, is getting some notice himself.   But, this comment was of interest, since it is the first I ever heard of such a thing. The press (and the public?) immediately obtain transcripts of  statements from the bench, statements not found on the USSC website and at best eventually winding up at Oyez.com months later? So LD said during the live blog at SCOTUSBlog yesterday.  Such facts, like President Obama alluding to drone strikes during a Q&A before an official announcement, do at times come when you don't expect them.

I eventually asked the head of SCOTUSBlog about the matter.  Seems, and this is far from surprising given past concerns about recording devices at speeches and such, Scalia releases them with a promise that they won't be published.  This is silly on some level -- the remarks are public and if the press wished, unless there is some other rule I'm not familiar with against it, just take notes (if necessary, via shorthand) of the remarks as they are made.  This might lead to errors, so the policy can be counterproductive on that level, but so be it.  Still, that clarified it some, though one wonders if even them getting the printed remarks is secret too.

But, what about Ginsburg?  She is not known to be as secretive, posting transcripts of her speeches at times on the Supreme Court website.  Upon asking for clarification, I was told that he didn't know if they ever asked.  This was the third email -- I asked the question, got a reply about Scalia, asked about Ginsburg and then had to remind that even if she didn't give a statement that day, the comment referenced the past. So, I didn't belabor the point, but that's a bit strange.  Isn't such an oral statement of some value, such as her dissent from the bench in the Ledbetter case?  It shows a bit of lack of initiative to not press the point. 

And, I would find it curious if Ginsburg cared, since again, we are not talking about anything private here, but a public statement.  And, unlike her pal Scalia, she isn't a bit of an ass about it.

TV Watch

Bunheads was again pretty insufferable -- Gilmore Girls on steroids in a fashion.  I saw a cute episode of Shake It Up, however, that provided the cast a chance to dress up in a "flashback" to the 1950s. 

Some Are More Equal Than Others

I noted last week that it looked like unions and corporations, the arguments of some aside, were being treated differently by the Supreme Court. John Nichols flagged the point here.  If we want to be "libertarian" here, we should be consistent. 

SCOTUS Update: Liberals Mostly Win

No health care ruling yet.  A case who's mother is the only one that cares about at the moment and the Stolen Valor case remains.

SCOTUS summarily handled an interesting looking voting rights case (presumably, it was a mandatory appeal) that split the civil rights community (Rep. Donna Edwards on the "anti" side) , a brief summary with link to a more expansive news story here.  Election Law Blog summarizes result here.  The primary concern was that blacks were being lumped together and this would result to vote dilution, but various legislators (the law was signed by a Democrat) etc. thought the final deal acceptable.  Also, a provision that "purports to correct census data for the distortional effects of the Census Bureau's practice of counting prison inmates as residents of their place of incarceration."  The court below in effect said not enough there.  The home address law, a first, was praised here, though some were concerned with those without one. 

A cross case was avoided, Justice Alito noting there wasn't a final ruling below.  The Montana Supreme Court case that was thought of as a "fu" to the U.S. Supreme Court was summarily refused in a paragraph given there is "no serious doubt" that Citizens United was breached.  Four justices wasn't quite as sure, but in a slightly longer opinion noted that it was a red flag of the problems the opinion wrought and it should have been taken.  I'm not really surprised but the way the USSC keeps on rushing through these opinions (see also, the affirmance without comment of a case involving foreign money) is disconcerting if perhaps pragmatically the best reformers can hope for.

[And Also:  Some background on the law that doesn't seem to have some racist senator (see Thomas' opinion in Citizens United) to taint it or anything.  The Montana ACLU (the national ACLU supported Citizens United) believes corruption in the context of the law, as compared to general say-so without context, provides a compelling state interest to justify it.  I'm an outlier, perhaps, but think there can be various shades of corporate regulation and think it deserved at least a hearing.  Breyer et. al. probably reasonably enough didn't think the other five were listening.] 

A 5-4 ruling, somewhat surprisingly given it is of some note written by Kagan, held it unconstitutional to apply mandatory life imprisonment in non-capital cases for minors.  It did not decide if it never could be applied, even after individualized sentencing, since they did 'not consider if the 8A "requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger." Two justices thought it likely one of the two people here did not intend to kill, so on that ground would not be liable to be executed.  But, the two are not out of the woods yet, it actually conceivable for the same sentence to be applied on remand.

To recap" minus cites:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors(including on a plea agreement) or his incapacity to assist his own attorneys.  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Roberts accepted individualized sentencing in capital cases (though not a complete bar) so he was a maybe; no dice there. The substantive reasoning of the majority is as usual more convincing that the nose counting to determine "unusual" and it basically says so at one point.  National limits on criminal sentencing of this sort is a bit concerning, but the narrow nature of the ultimate result (even if, as Roberts notes, it potentially benefits a lot more than many 8A rulings)  reassures.

[And More: It is notable here that "and" in the "cruel and unusual" provision is not interpreted to mean BOTH have to be present.  If crucifixion suddenly became popular, it would one assumes still violate the clause.  The USSC has taken up a policy in recent years to "count noses" to help them determine what violates the provision, in effect to determine what is "unusual" and help determine what was "cruel and unusual."  But, if the test is "that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense" (Weems v. U.S., 1910), again, the numbers games is only so important.  Robinson v. California, which applied the 8A to the states, also didn't count noses. It found criminalizing addiction as a problem and not only because it was rare.]

In basically a 5-3 ruling (Alito agrees on two of four; Scalia/Thomas on one), the Obama Administration (in hopefully not a consolation prize way) mostly won (writ large too on some level; see here) in the "papers please" law, though ironically the one partial loss involved just that provision.  I commented on the orals here, a couple links touching upon some key issues. The majority (by Kennedy) notes that it is too soon to know if that section will be applied so strictly that it would be a problem.  Pre-emption the only issue, racial profiling concerns are a separate matter -- though as some noted, that factors into why the feds was so concerned about the law, given the foreign policy implications etc.  Also, the opinion itself notes in passing:

Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s].”

The mandatory system established (the opinion notes that this might violate federal enforcement policy, but is not clearly barred by federal law) only aggravates this fact.  Still, it is overall a good win, Kagan recused. Alito as noted only concurred on that section and one other.  Thomas went his own way. And, Scalia went Grandpa Simpson, SCOTUSBlog informing us that he even had written remarks for the press and public (apparently -- though I honestly never heard about this until now -- Scalia and Ginsburg has done this in the past; why not post them then?).  Alito dissented from the bench as to teenage life imprisonment, Scalia here.  SCOTUSBlog's live blog informed:

As part of Scalia's statement in dissent, he is commenting on the president's announcement about suspending deportation of illegal immigrants who came to the U.S. as children -- something that was not part of the case.

Scalia,* citing pre-20th Century opinions that later were at least partially reversed, started off noting how one of the "defining characteristic of sovereignty" of states is to keep non-citizens out.  In effect, he demanded a strong clear statement rule that he argued was not met. After all, "citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”  And, "we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone" Does the executive department of the U.S.?   Scalia has no "papers" either, apparently.

Fairly busy morning, but one big event remains.

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* In full, FOX News and Grandpa Simpson fashion, Scalia inspired a good amount of commentary today as he did with his PPACA orals performance etc.  For instance, LGM has some snark here.  This is the bridge between conservative and "can't take this guy seriously."  It's embarrassing.

The Newsroom

First episode is pretty phony. I like a few of the actors, including Ms. Pill, have a bit of Mr. Smith in me and hope it gets better.

Gnomes

Seems as best as any reason why videos are suddenly not working on Firefox for me while it's okay on Google Chrome, which I don't like as much. Good Luck Charlie was okay. It's a boy.

Depressing This Is Even A F-ing Debate

I find the arguments against the PPACA specious in the extreme. It just isn't that I'm against them. I can sorta respect arguments against abortion rights, even if I oppose the premises. But, the arguments here are simply specious. When (see near end of clip) you have JAY LENO understand why it is a "good thing," it is underlined.

Change for the better: Marriage Edition

I hope same-sex marriage changes marriage itself. I hope it changes marriage the way that no-fault divorce changed it. I hope it changes marriage the way that allowing women to own their own property and seek their own credit changed marriage. I hope it changes marriage the way laws against spousal abuse and child neglect changed marriage. I hope marriage equality results in more equal marriages. I also hope it offers more opportunities for building meaningful adult lives outside of marriage. We must do more than simply integrate new groups into an old system. Let's use this moment to re-imagine marriage and marriage-free options for building families, rearing children, crafting communities, and distributing public goods.

I agree with MHP.  "Traditional marriage" has changed, as it has for centuries, and it tends to be a good thing overall.

"Liberty" and Judicial Review

The PPACA arguments has resulted in loads of comments and analysis, some on the anti side defending their approach as if "liberty" itself was at stake if they didn't win. This gets tiresome as does some of their concerns (I'm looking at you Randy Barnett) that somehow "liberty" was suddenly given a cold shoulder sometime c. 1937. I keep on asking one person, e.g., what his ideal moment of judicial interpretation is, since many groups don't think the early 20th Century is that ideal. Said person ignores me. The below was posted in response to one such move. 

The principle of presumptive constitutionality of legislative action -- action that is a result of the republican process in which the people vote for representatives who swear/affirm to uphold the Constitution and via Madisonian dynamics (or the less pure form present in the real world) settle upon public policy -- goes back to the 1790s. Judicial review was deemed a principle of constitutional government, but overturning legislation, particularly on substantive grounds, would only occur in the clearest cases.*

The 1930s reaffirmed this principle but noted that in various cases that a more guarded eye would be present. Carolene Products, FN4 is the seminal summary. The courts then did much more to look at free speech, criminal protections, equal protection, etc. Such cases was rare before then. Before the New Deal, e.g., the 1A was rarely given much of a look by the USSC. After it, a slew of cases can be listed that overturned legislation. In such areas, "liberty" was not given a more limited look -- that is, if we define it to entail closer judicial review. Thus, e.g., concerns that minorities did not get proper representation warranted less restraint over the majority process than certain economic matters as did private rights over more public matters. This has long roots too in early discussions of judicial review though there has been some changing views on the contours.

Lawrence v. Texas did not merely look at "liberty" but cited precedents that fit into the liberty interest in question. If something else was at stake, let's say the liberty to be a hairdresser w/o a license, such precedent would not be readily available. The case therefore does not look as open-ended as the OP argues [btw, I saw a form of this article by him in the Cato Supreme Court review of the case almost a decade ago].

Finally, I agree that federalism and enumerated powers protects "liberty." It works both ways (see, e.g., the term limits case, Kennedy concurrence) -- IF Congress has a power, it can protect our liberty to properly let it carry it out to protect the public good. This is how SG Verilli ended his oral argument and it is how supporters of the PPACA think it ultimately furthers liberty. But, it is curious to me how courts that EXPANDED judicial review in fact in many areas is seen as less liberty protecting. The reality of the situation is the judges have a certain amount of capital. When the modern Court expanded its reach over civil liberties, they restrained it over other areas. And, even pre-New Deal, the strictness of review was at best mixed, some periods of particular concern to justices, and even then not in all areas (cf. Lochner v. NY and Plessy v. Ferguson) 

Kennedy does in a fashion have a broad view of "liberty" but the net result is that the exact line is hazy. Lawrence itself is a case in point. It cites fundamental rights cases but some argue it is merely a rational basis case. This would water down the protection as Casey did to Roe.

 ---

* Thus, Justice Chase in Hylton v. U.S.:

it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case

And, only two federal laws were struck down until the 1860s.

New Leader of Egypt

Mr. Morsi is an American-educated engineer who received his doctoral degree at the University of Southern California. Just doing our part to promote Islam. Is Obama to blame? FOX will be on the case!

Rev. Joe (The First Crusade: The Call from the East)

About 3/4 of the way through the title book, which intends to given a more "eastern" viewpoint (Byzantine) of things. On the whole, it is interesting and written well. Lose track of all the names at times.

David Blankenhorn Changes His Mind About SSM

David was concerned that marriage for same-sex couples might dilute this core purpose and re-orient marriage toward merely satisfying adult desires for love and companionship.

The horror! Still, good for you.

Maddow Again Tells Half the Story

Rachel Maddow again last night basically signed off the whole Fast and Furious controversy as some 2A conspiracy theory. This is a sad failure to do her job, since a decent analysis can both show the ideological posturing AND real problems starting pre-Obama.

Roger That

Necessary Roughness

Another pretty good episode, the actor who played "Smash" on FNL playing a different football playing character with some issues here.

PPACA Preview

[And Also: ACS is having its national conference and  various videos, including a great speech by Judge Liu taking a speech by Martin Luther King Jr. as his subject matter, can be found at its website.  A panel on the Arizona case, including a Utah AG showing how the prosecution side can be reasonable here, was also interesting.]

I am a bit tired of people trying to read the tea leaves (e.g., comments in Scalia's new book, Ginsburg making broccoli jokes or talking about value of dissents, polls of former clerks) regarding the PPACA ruling.  Understand the sentiment and the predictions, at times voiced with resignation at those darn conservatives.  I have done it myself. For instance, the idea "mandates" will result some sort of "rational basis with teeth" requirement for Congress akin to regulations that burden certain classes of people like gays.  This would be Kennedy's approach.

Turns out that there is evidence beyond Kennedy's sentiments during oral argument that requiring positive acts require a different calculus when applying the Commerce Clause and the "proper" nature of a regulation necessary and proper to advancing its ends.  U.S. v Comstock is a telling case in this area, a 2010 ruling handed down after the law was passed in which Breyer (with CJ Roberts joining without comment -- in fact, he is the one who assigned the opinion) applied the NPC for a "federal civil-commitment statute [that] authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released."

Breyer provided five considerations that on balance justified it, noting how the specific law is narrow, but overall he's the one to go to give the Congress broad discretion over their own powers.  Thus, Kennedy and Alito concurred in judgment. Kennedy noted (and CJ Roberts suggested this in the PPACA orals too, alluding to the "problem with Lochner") that the "rationally related" test that justifies a power not expressly enumerated but necessary and proper to the advancement of a power given to the federal government is not as easily met as the "rational basis" to uphold a state law under the Due Process Clause.  States have general police powers; the federal government has more limited power and a too loose use of the term would not provide enough of a check.  To wit:

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more so

He then alludes to the Spending Power, which is the joker in the PPACA cases, noting "limits upon the spending power have not been much discussed," a red flag of sorts that some justices are ready to discuss them.  Kennedy accepts the regulation as being a "little intrusion upon the ordinary processes and powers of the States."  It doesn't demand state action, relieve "the States of their own primary responsibility to enact laws and policies for the safety and well being of their citizens," nor do so much that it "intrudes upon functions and duties traditionally committed to the State." The PPACA can fit at least some of these though a more general requirement is obviously not as limited as something that is only applied to those in federal custody. 

Comstock involves a narrow class of people who were already in federal detention so can be distinguished from the PPACA though such is often the case, especially if you want to do so.  Alito, who is seen as a lost cause here, accepted the law as necessary and proper to carry out the clearly legitimate power to have federal crimes, itself (except for a few cases) an implicit power.  The class here in effect is a result of the federal government's own actions.  If power can arise from legitimate but not "absolutely necessary" federal crimes, why not from legitimate but not absolutely necessary regulation of insurance companies?

A defender of the PPACA can quote Alito:

The Necessary and Proper Clause does not give Congress carte blanche. Although the term “necessary” does not mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a power conferred by the Constitution and the law enacted by Congress. See McCulloch v. Maryland , 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id ., at 423.     

The law in question here satisfies that requirement. This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underlying the federal criminal statutes and the challenged civil commitment provision. Here, there is a substantial link to Congress’ constitutional powers.

The insurance coverage provision -- which like the commitment mechanism here overall arguably helps the people and states whose power is delegated to Congress -- is not in place for a trivial reason, one that is "merely possible" necessary to further the regulation of interstate commerce.  It might not be "indispensable," but Alito reminds that is not required. I'm shifting gears here, of course, since I'm using his words against him in a way (unlike in the case of Kennedy, who is a more reasonable chance to vote the sane way) somewhat unlikely to be used the way Alito would use them. And, he also referred to the clear long history of federal criminal law, when some note the supposed novelty of the PPACA. 

Still, the provision here in a narrow sense is novel.  The majority pointed to the long (back to the 1940s) concern of the problem, but the same could be noted about national health insurance.  Anyway, an approach can be imagined that recognized that a "rational basis" standard here would have some teeth, the fact that the "problem" to be addressed is partially a creation of the federal government's own making [guaranteed issue etc.] is not a barrier, the things it does not do to invade state interests can be cited and it is not "too attenuated."  Other "mandates" might be.

Well, along with other matters, we shall see. 

SCOTUS Watch (Not Yet)

The Supreme Court still did not hand down the cases most people are concerned about, namely the health care cases, the Arizona case or the juvenile life imprisonment case. It did hand down a few somewhat important cases, including one many were interested in, the fleeting expletives case. However, though Ginsburg concurred to say she would do it, seven justices (it from Sotomayor's old home, she recused herself) rested on narrow vagueness grounds. Something of interest did occur.  This might have been a reason the ruling was narrow. 

First, in the criminal justice arena, defendants again found that at times they can win one. The "Apprendi" rule involving jury determining the facts used to convict was applied (in a 6-3 ruling by Sotomayor) to criminal fines. Breyer dissented in an opinion about 2x as long with Kennedy and Alito. The majority did not keep "the reader in suspense" regarding "pot-ash and pearl-ash" (see FN7). That is, something involved in some ancient cases that the dissent apparently thought relevant.  Meanwhile, Breyer wrote about the "six consideration" that justified applying new rules on crack v. powder cocaine to old cases.

Another split among the liberals arose in a union [not the "a" before a vowel] fees case.  Sotomayor joined with Ginsburg to (1) snipe a bit at a majority opinion by Alito for in effect being activist (they both are the "enforcers" on each side) and (2) provide a more limited way for the unions to lose.  Breyer/Kagan was in dissent, Breyer reading his dissent orally. Let's hope he doesn't have to do something like that again.  SCOTUSBlog suggested the opinion might in the long run be significant. See also, here.  [And, here.  Can shareholders or those whose money are invested via pension funds etc. have the same "opt out" privileges as the employees do in this context?   SG Kagan raised the issue during the CU orals ... or do unions have second class rights here?]

When Justice Harlan, a patrician, wrote Cohen v. California, his opinion noted wrote: "Fuck the Draft," not "F- the Draft."  When Stevens wrote his dubious "seven dirty words" plurality in Pacifica (good opinion announcement though), a verbatim transcript was included.  But, when the words of the "singer Cher" and "a person named Nicole Richie" was cited, we get things like "f**ing." This prejudges that the words are forbidden.  The latest in a long drama on this issue -- even though last time Thomas (as quoted by Ginsburg) et. al. suggested the constitutional dubious nature of the old rule -- again was decided narrowly.  The rules were too vague.  Will this lead to another case to settle the issue?

There will be at least two more opinion days [or, at least, Monday won't be the last day of the term].

"Actually, it's been extensively covered"

in various print media, such as the Washington Post and even Business Weekly. It's just that most of us have our own lives to lead, and simply don't have the time to keep track of it all and stay current.  

See here.  Another person complained at Volokh, cites to both CBS and FOX not enough to show the "MSM" did not "ignore" things. 

Executive Privilege

I'm not a big fan of executive privilege overall though think it exists to some extent. I don't think much of the oversight chairman who thinks Obama is the "worst" President. But, if his administration is overreaching on their executive privilege claims, I wouldn't be shocked. I'll let the political processes play out.

There is SOME smoke there

Rachel Maddow went on and on about how the whole Fast and Furious scandal is a conspiracy theory but darn if her guest noted something actually DID go wrong.  The minority report doesn't deny this.  It went back to the Bush years, it was at least partially addressed and is not some conspiracy to deny 2A rights.  But, it isn't all b.s. 

Summer Has Arrived (7:09 EDT)

Also in the news: Vegan Becomes Vivisectionist

Some atheist bloggers have noted they lost one of their numbers -- happens a lot more the other way -- to Catholicism. I'm with those who note that Catholicism is not the one I'd choose especially if as a liberal feminist. OTOH, some are more hopeful.

Juneteenth

This is the holiday celebrated to honor June 19, 1865, the day slaves in Texas were told they were free under the Emancipation Proclamation. State courts later held the EP only came into effect when the U.S. gained control over Confederate territory. Slavery totally ended at the end of the year with the ratification of the 13A.

On T.V.

Crazy, Stupid Love has been on t.v. recently. After his night with Tomei still bothers me, but overall, good movie. The ensemble cast, including giving commentary, was very good on Army Wives (S1). Emmalin was a weak character, but worked later with a new actress.

Plea for TV on health care ruling

The chair and ranking members of the Senate Judiciary Committee have asked the USSC to televise the opinion announcement.  About as likely to succeed as the media request, but appreciated.

Less Approval, More Realistic?

Michael Dorf has a perspective spin on the drop-off of public "approval" of the Supreme Court.  A realistic stance reflects badly here, perhaps, but maybe he's right to think it was a useful compensation to in effect a mythical view.  Scalia still can be a boob.

Bunheads

Liked the first episode of this new ABC Family show from the Gilmore Girls school of television, but the episode after a surprise death was dull dull dull.  I stopped watching Drop Dead Diva this season after two episodes of lousiness, so watch out!

Army Wives DVD

I am watching the first season DVD as the show is in mini-hiatus and it has a lot of good stuff on it, including multiple commentaries with cast and producers etc.  The episodes on the whole are pretty good. 

R.A. Dickey

Wow.  Batters must be like "okay, he's a freak of nature, let's be glad it's over with."  He again served his "stopper" role, the Mets in the midst of a run of the 1/3 of the league that actually are good.  And, not doing well.  Most are mediocre, so they have a shot at doing okay.

The Legacy of Luna

Julia Butterfly Hill (born February 18, 1974 as Julia Lorraine Hill) is an American activist and environmentalist. Hill is best known for living in a 180-foot (55 m)-tall, roughly 1500-year-old California Redwood tree (age based on first-hand ring count of a slightly smaller neighboring ancient redwood that had been cut down) for 738 days between December 10, 1997 and December 18, 1999. Hill lived in the tree, affectionately known as "Luna," to prevent loggers of the Pacific Lumber Company from cutting it down. She is the author of the book The Legacy of Luna and co-author of One Makes the Difference.

I referenced a book about trees recently, noting their importance.* The book is by an environmental reporter/writer and discusses various issues, but the core of the story is about basically a shade tree farmer who had a life threatening event that included a religious experience that lead him to tree activism. Hill also was guided by this path though with evangelistic parents, she sort of had the divine and preaching the truth in her blood:

As I recovered, I realized that my whole life had been out of balance...I had graduated high school at 16, and had been working nonstop since then, first as a waitress, then as a restaurant manager. I had been obsessed by my career, success and material things. The crash woke me up to the importance of the moment, and doing whatever I could to make a positive impact on the future.

She was in her early 20s and decided to travel to find some meaning, an opportunity soon opening up to go to California with some people. There she felt a special connection to the redwoods and a need to do something to honor them.  Hill has what perhaps might be called nature religion belief in the connection of all things, of life, and her spirituality plays an important role in her story.  Like many, I guess, Hill ("Butterfly" a name from childhood, many in the movement taking aliases)  started here not out of some special knowledge, but what she felt deep down was right.

A need to do something to help the environment and the trees in particular led her to take up a call out to stay a few days in a tree, the "Luna" of the title.  The usual thing being for people to spend a few days in such trees, the time spent on a small platform that would be considered small as compared to many prison cells.  She did her time but went back up, this return engagement destined to last over two years.  She had communication, various visitors and early on, some guards trying to get her down, but  spent much of the time alone.  One thinks of some sort of crazy eccentric monk or holy person of the days of yore.

The book touches upon the important of proper management of trees, including their value for wildlife and as flood barriers, the book starting with a community destroyed as she tells it because of too much harvesting.  But, the book is not by an expert or about explaining in much detail the specifics here.  Overall, it is about her drive to protect the tree and environment and the special connection she had to it.  It is more of a spiritual book though its narrative is as a whole one that tells an interesting story.  I think it repeats itself a bit, but then from the text, it appears she was writing if as she was up there -- the end is dated a few days after she left!  One review at Amazon was upset at this lack of specialized detail but she provides "further reading" and it isn't really the point of the book.  She is an important symbol and spirit in the movement.

One thing that comes to mind is that she was after all performing a continual act of civil disobedience, one that cost the company in question thousands of dollars in profits.  She doesn't quite see it that way: for one thing, the company broke a lot more laws than she did, with all the write-ups and did not seem to suffer much of a loss for doing so.  Also, basically, Hill thought she was doing what was "right," and protection nature and nature's right to be honored.  This is the mind-set of many civil disobedience movements and it boils down to a question of line drawing.  Still, when elementary students act to support her by collecting stamps, what would teachers and parents tell them?  What did they tell them about a woman that after all was breaking the law?

Ultimately, the tree itself along with a buffer zone was protected by an agreement set forth.  The movement Earth First!, who was involved with the tree sitting though Hill did not know upfront that they were the ones behind her going up, agreed to provide the company involved the $50,000 collected.  The money went to an "agreement for research into sustainable forestry."  Hill herself, as one can see on her website and videos on YouTube, continued her activism and is an eloquent speaker on the importance of activism with a humanistic face. She often in the book noted her desire to keep positive, even when dealing with "the enemy."  A good philosophy, even moving past the non-violence as a whole.

Overall, an eloquent book with a handful of powerful poems.


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* The author wrote an article on "Why Trees Matter":

We have underestimated the importance of trees. They are not merely pleasant sources of shade but a potentially major answer to some of our most pressing environmental problems. We take them for granted, but they are a near miracle. In a bit of natural alchemy called photosynthesis, for example, trees turn one of the seemingly most insubstantial things of all — sunlight — into food for insects, wildlife and people, and use it to create shade, beauty and wood for fuel, furniture and homes.

More at link.

Constitution For All

"We the People" are the ones who allegedly have the ultimate power. The Constitution and law are upheld any number of ways in practice, not just by a few court rulings, which are influenced by the ever evolution of the law and society anyways.

Confrontation Clause Case

Looks like a few justices trying to find a way to distinguish a precedent they didn't like with Thomas agreeing for his own idiosyncratic reasons that isn't productive here to do what the USSC does -- set forth broad guidelines. Just calling balls and strikes.

USSC Watch (No Cursing, Health Care or Lies)

Still, Kagan's dissent in a 4-1-4 Confrontation Clause case, the net result hedged enough to be unclear, is worth reading for its down to earth tone.  Not a total fan of so much snark, but she has a refreshing style.  Sotomayor has two solo dissents -- one from denial of cert.

Talk Nerdy: Prayer

Interesting series here covers the power of prayer from a science perspective.  Religion often is as much about the natural as the supernatural, god(s) often not the ones who need the support though sometimes people like to say so to make themselves feel better. 

Still Upset About Him Winning In '06

A few more months of this tool.

Myths of Equality

One point Chris Hayes makes promoting his new book is that if we don't try to promote equality of results to some degree at least, equality of opportunity realistically won't be truly possible.

Father's Day

A shout out to all the dads out there. The seed of/to insanity that leads to people to feel compelled to have children has its benefits.

Rev. Joe (Environmental Spiritualism Edition)

When God's Creation is in the process of being destroyed, what do you do? Julia Butterfly Hill's story of love, compassion, resistance, and persistence is a powerful testament to how one dedicated individual can change the world in the face of growing violence.

Religious faith helps guide her. Book is good so far.

Dream Act Not Quite Deferred

The "Dream Act" move by the Administration looks to be a good move politically and as an imperfect matter of executive policy. Cato and some conservative evangelicals seem to agree. It isn't "illegal" or "dictatorial" (see here) though a law is better. See, Broken Branch.

Trees

I can't get into the book itself but The Man Who Planted Trees does early on list the various benefits of trees including as heat shields, carbon dioxide sinks, flood barriers, providers of wildlife, neutralizing various pollutants etc. Local trees have a nice smell too.

She needed a warning ala Anatomy of a Murder

The comment on Jewish religious beliefs on abortion underlines this a matter of conscience. The real problem, of course, is she said (sotto voice) the "v" word! [The subject line.]

The Help

MHP was not a big fan, but as seen by the comments, many blacks do not agree with her.  I thought the movie was decent, but it didn't feel like an "event" or anything.  The approach of the book appealed to one person I know, who let's say is a Bill O'Reilly fan. Flawed or not, this teaches some truths to an "alternative" audience.

Plea to allow health care broadcast

[One other thing that sort of annoys me is that there is a section on the USSC website for opinions from chambers, which are handed down from time to time (see here), but you never see them on the website.]

A long list of news organizations on Friday asked the Supreme Court to release, for broadcast, the Justices’ oral announcement of the coming decision on the constitutionality of the federal health care law.

See here for details. I find it curious that the author, a dean of the Supreme Court press corps, does not note that this sort of thing is not merely available (if perhaps a better part of a year later) at the "National Archives in Washington," but at Oyez.com.  For instance, McDonald v. Chicago -- the state Second Amendment case -- is found here.  This includes the opinion announcement -- a summary of the majority and Breyer's dissent included -- which is the sort of thing that the news organizations want available immediately.  More recent cases also are available, including (if not totally comprehensive) opinion announcement material.

As the discussion notes, current practice is for the Supreme Court to wait to the end of the week to release oral argument audio, which along with labeling the justices who ask questions and even having a website at all, only has been begun in the last few years.  Before they did this, the USSC in a few cases (such as the Solomon Amendment case involving military recruiter access to campuses that got Kagan in a bit of trouble) chose a few cases for same day audio.  That is, even though they didn't play it live (as C-SPAN does for congressional coverage), it is a sort of "live on tape" deal.  They can, of course, do this as well for the opinion announcement (and quite possible dissent from the bench) here too.  If they wished.

Although it is not unprecedented for the Court to do something it has never done previously, the chances that it will grant this request appear to be remote to non-existent.

This amuses me a bit, especially since the PPACA is supposedly "something ... never done previously." There really is not real good reason, if you are going to have argument audio, not to also have audio of opinion announcements.  They are done publicly and be they not binding like opinions, they have clear value like the also not binding headnotes found in each slip opinion.*  Some federal appeals courts (at least, I know the 9th does it) deign to give the public warning beforehand when a ruling will be handed down, not having them be on pins and needles each and every time opinion day comes. The USSC merely needs to release a transcript and/or audio of what the people there already hear.

The justices repeatedly tell people to read their opinions to understand their stance on specific issues but the practice of providing summaries during opinion announcements suggest they are willing to do more.  These tend to be a few minutes long though can be over five minutes in length; but, we are still not talking that much time.  The gun case was well summarized by Justice Alito in a way the general public could understand.  Other highlights would include Planned Parenthood v. Casey (twenty year anniversary) or Lawrence v. Texas, each with a dissent from the bench.  Why not this too?

The Supreme Court is sometimes said to be a teacher of republican values and has in recent years done some important things to fulfill this duty, down to writing books and making public appearances to different forums.  Immediate release, instead of a wait of months to it is available on a still largely unknown website, of the opinion announcement of the PPACA cases would be in this spirit.  It need not be live.  They can even wait until the end of the week.  Instead, the public will be left with a shorthand version through the medium of the people making this request.

That's just silly.   

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* Each opinion with such comments has this disclaimer:

Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

The USSC provides a summary of the case when announcing it for "the convenience" and guidance of the audience too. 

Necessary Roughness

Decent episode from my USA show. 

Gravity

I recently quickly referenced the teen fiction novel Gravity and will say a bit more about it here. Upfront, I guess she "can write."

It takes place in 1980s Canada* and involves an Orthodox Jewish family that express their beliefs in different ways. The mother, for instance, once thought about being a nun, but found the Orthodox path right for her. The way she felt in touch with the divine (the "gravity" metaphor arises from her) is by singing. This gets her in a bit of trouble when others think she overdoes it while reaching another plane in the midst of singing at synagogue.  The father also is Orthodox, with deep feelings, but does not express them in such emotional ways. The grandmother is largely a secular Jew though goes to Reform synagogue now and again. 

The older sister in effect follows in her footsteps and has long dreamed about escaping the confines of the family.  The main focus, Ellie, also feels trapped, dreaming of the sea.  The parents feel they have reached nirvana when they travel to Israel, a place for Jews, but Ellie feels nirvana while on vacation with her grandmother, near the water.  Ellie, who is fifteen, also has her first true love -- a girl she meets while on vacation.  The strength of this love, the physical nature that she cannot ignore, the desire to do things like touch her hair, is well expressed.  I think many romances do not truly provide such basic aspects of what love and lust and so forth is all about.  The confusion and emotional shocks are key points here.

Ellie has a crisis of faith given that Orthodox teaching has negative things to say about homosexuality and if you ignore one thing, the slipping slope to nothingness seems so easy to slide down.  But, God and religion still eventually seems right to her, just in her own way.  She also believes in her right to be happy, including breaking up with her true love when she does not seem to properly care for her and her feelings.  One review in a gay publication suggests she is transformed a bit too fast: one moment she doesn't want to wear a two piece, then she is secretly making out with her new girlfriend, for instance.  Maybe, a bit.  I think it works okay. 

Meanwhile, each member of the family makes compromises, recognizing they need to care for themselves and the people they love. The parents let the older daughter go to college away, the mom finds a new place to worship and so forth.  Also, nirvana does not occur: the book ends with only her sister knowing about her being a lesbian, for example. Thus, it is a realistic, insightful look at religion, young love, being different and being true to yourself.  Many themes, providing a rewarding read overall.

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* The book was published a few years ago, so it comes off as a type of memoir in this sense, the author herself Jewish who grew up at that time with a gay brother, so some autobiographical details might be suggested.  There is no real sense of time period as such though except for the lack of things like cell phones or personal computers. 

Flag Day

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Honor the day by honoring "for which it stands."

Heather Vandeven

A comment at a legal blog led to a hit and the thing that apparently was of interest was my quick comment on this actress. Must be her military background. She's no Korey Stamper though.

Supreme Court

Reading Linda Greenhouse's "Very Short Introduction" volume on the Supreme Court. Basically does the job. Made me wonder about a six vote rule for the USSC to declare a (maybe federal only) statute unconstitutional. 5-4 seems a bit off at times.

Trip to the Fruit Store

I may be a vegetarian but I don't eat as many fresh fruits and vegetables as I should. I had some fresh papaya, but didn't care for the seeds. Maybe, if I had parasites.

Colbert -- Voice of "Good Catholics" Everywhere

I respect Catholics like Stephen Colbert and these nuns who see the good stuff but the hypocrisy that results from this stuff is pretty sad.  The Church is more hierarchical than others, making it worse.

Gravity

Jewish week -- first a Jewish atheist, now a work of teen fiction somewhat based on fact (the author's brother is gay) involving a Jewish family. Like most good media, it is about a few things and overall was a good read. I learned about it via a NYPL tweet.

Chris Hayes

Saw him locally promoting his new book, Twilight of the Elites, which is "in transit" to my library. I think he would approve given his support of the public sector. Not sure how much his mega-theories will wow me, but I am impressed by the intelligence of his show. He noted he is a Cubs fan, thanks to his dad, though is a Bronx boy.

Loving Turns 44

More here.

Bunheads

Liked Gilmore Girls until it got old so Bunheads with a more jaded "Lorelai" and the same actress playing the deeper than she looks mother looked promising. Good first episode, pretty risque for "ABC Family" and darker than one might think along with the fantasy.

As The Nomination Wars Turn

The D.C. Circuit Court currently has three vacancies, but there is continued opposition among some Republicans in the Senate to filling those vacancies. One of the open seats — formerly held by now-Chief Justice John G. Roberts, Jr. — has been vacant since Roberts was elevated seven years ago. The other two seats have been vacant four years and one year, after sitting Circuit judges took senior status, while remaining on the Court for some continuing service.

This sort of thing concerns me more than judicial term limits.

Words Are What I Want Them To Mean

The atheist book I just read had a motto of reasoned debate. In response to a 9-0 habeas ruling involving an unpleasant murder, one comment elsewhere spoke about how the Supremes are ignoring state sanctioned "murder" here. That is, the death penalty. Some place else, such free use of legal terminology can apply to abortion or killing OBL. Such is the path to ignoring what legal terms actually mean.

Heather Vandeven

After graduating from high school at age 17, Vandeven served in the United States Army for two and a half years, where she worked in food inspection. She has a degree in Education from Southern Illinois University and was working on her masters in Nutrition in fall of 2006.

And, then she became a porn star.  

Wait, this is MSNBC, Right?

MHP has a book with barbershops in the title so today's multiple segments (with an all black women panel) on black women's hair  is not that big of a surprise.  With so much overlap out there, she at times has different points of view and a variety of hair styles! 

Rev. Joe (Candidate Without a Prayer)

Herb Silverman fits the bill of a "character," a PH.D. math professor, who only wears suits to class on Halloween (his choice clothing is t-shirts and shorts, probably sensible in South Carolina) and is the sort of person that likes to invite Jehovah Witnesses into his home.  As a favorite t-shirt notes, smile, there is no hell!  This is a great face for the Secular Coalition and atheism in general -- has the brains to reason, but the pleasant personality that even your garden variety evangelical might like him.

I am half-way through his new book, a pleasant nice guy biography explaining his upbringing (Orthodox Jew with a controlling mother**), path to adulthood (such as learning how to change a light bulb) and public exposure as a leader of the movement (including his run as governor of South Carolina to challenge its religious test; he lost, so was deemed not to have a claim, but did finally get his notary license, long after the issue seemed to be settled in the courts*).  In the process, he freely talks about both religion and sex, the easy going summary of various relationships in its fashion as liberal minded as the religious ones.

It is a pleasant read that teaches as well in a gentle way that often leads to the best results. He is a math professor and even provides a bit of education there in his usual down to earth way.  His sense of humor is even seen in the table of contents -- he skips Chapter 13, noting there are three numbering systems -- English, metric and hotel, choosing the third.  Overall, it shows that you can be an atheist who evangelizes in one's own way without being of the sort that turns me off, the aggressive type that appears to me to ridicule believers.

Respect is a better approach.

---

* The author notes that the religious test is a blatant violation of Article VI, but that provision concerns federal offices ("under the United States," like the President has pardon power regarding offenses "against the United States") and clearly didn't moot every state religious test, particularly in the states remaining with established churches. 

The Fourteenth Amendment led to states having the same requirements, however, which also went the other way -- ministers could not be barred from office either.  The true liberty position, one the author shares, would honor both sides of the coin here.

** The family dynamic adds a human angle.  Finishing the book, I found the math chapters a tad boring.  I find math okay -- liked doing proofs. Overall, I recommend the book.

Citizens United Is Not THAT Powerful

Chris Hayes today in passing noted that Citizens United didn't have much influence in Wisconsin. State law either way allowed much spending before the Dems picked their (boring) nominee. Then, a comment about millionaires and CU was noted, but only an appellate ruling (Speech Now) actually covered that. Millionaires are not "corporations." As noted elsewhere, the margin of victory was high enough that money alone probably couldn't explain it either.

Natasha Trethewey

Prose is more my thing but I respect the power of poetry.

Item Becomes More Cloudy Upon Review

Blog Post: "Oscar-Winning Schindler’s List Producer Disinvited from Giving Speech at High School Because He’s Too Conservative." An "intolerant" treatment of conservatives? In Montana, huh? Local news account puts a different gloss on it. I realize not Hollywood Reporter.