A recent hit went to my comments on the 1980s film Personal Best, and it is an example (see last post) of a mature and complex view of sexuality.
There has been a lot of attention to Justice Sotomayor's (first) oral dissent from the bench [audio forthcoming at Oyez.com some months hence]. The overall issue of oral dissents is touched upon here. A law professor praises her style here, particularly how it influences the public at large. Justice Kagan has her own personal opinion style that also has a down to earth flavor, but Sotomayor is notable in particular for her public appeals. Sotomayor's autobiography and public appearances show this.
Sotomayor's opinions for the Court, unlike Kagan's, generally come off as rather dull and dry. She has her moments though they often are in dissent. A conversation with Linda Greenhouse pointed out some examples, including the rare dissent from denial from certiorari. The conversation is a bit ironic in that Sotomayor seemed to dismiss bench statements as entertainment for the press* though ultimately the press can (though they do so through their own prism) transmit it to the public at large. This seems to be a factor in Sotomayor choosing to do so here.
The conversation with Greenhouse provides Sotomayor providing an excellent explanation on why she chose to use "undocumented immigrant" instead of "illegal alien." I think the latter term misleading myself since "illegal" has a special taint. The "alien" part very well can be a problem too, since that itself has various connotations. Anyway, I have had people tell me that the term "illegal" is accurate. But, Sotomayor is quite right that it is used here very selectively. For instance, to take something I'm familiar with given family connections, certain trades legally require certification. Many do not have it but still do it quite well, but in that respect they are "illegally" doing that sort of work. They are let's say "illegal plumbers" or such. We don't normally say that.
Let me provide a long excerpt, which might seem familiar for those who read Sotomayor's dissent, on why (to cite LG) she does not use the "ugly phrase" in her own opinions:
After all, we might have up to four of these people for another twenty or so years, given how these things tend to go. Relatively speaking, 1994 was not that long ago.
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* Justices at various times suggest that we read their opinions to know their beliefs and arguments, but few do of course, even those fairly aware often relying on summaries and reporting. This is a pet peeve of mine at time regarding certain bloggers -- well, it came up from time to time at Volokh Conspiracy -- the value of blogs is to give people a thumbnail sketch, including of extending law review articles that often get referenced, but few really read. One guy found it hard to summarize the main points of a book that (with notes) is less than two hundred pages.
Bench statements are not officially registered though Oyez.com has provides transcripts to opinion announcements and dissents, more completely in recent days (see, e.g., the 1990s case U.S. v. Lopez, where Rehnquist's opinion announcement and Breyer's dissenting statement is provided in audio and text form). So, the press is basically the only one who has access to that. Along with anyone else who might be present, including lawyers. The general public often only is there for short stints.
A few justices -- SCOTUSBlog alluded to this a few times -- provide bench statements to the press. Apparently, from what I can gather from a personal email when I asked someone at that blog about it, such statements are "off the record" so are not posted.
** I originally said "acceptable," but that might be too generous.
Jeffrey Rosen, in a piece linked by the article cited above, said that the ruling was "constitutionally unsurprising and almost certainly correct." First part is true, the second perhaps a bit too strong. He also says people should "embrace Breyer’s reasoning" (recall it supported the political process theory, just not as far as the dissent). If so, Rosen has to explain why Sotomayor's reply to his concurrence, including as applied to "elected actors" was wrong. Breyer's concurrence comes off as lame.
And, if the ultimate compromise path is to let the voters decide the problem, something that Kennedy et. al. has not consistently done, fine. Sotomayor explained that this can be done. The measure here inhibits normal political processes in that respect and does so in the way that singles out certain protected groups in a way that makes it harder for certain voters in effect to decide the question. Ultimately, it underlines that neither side really just treats individuals simply as individuals.
Democracy and individualism in a pure sense is not our reality.
There has been a lot of attention to Justice Sotomayor's (first) oral dissent from the bench [audio forthcoming at Oyez.com some months hence]. The overall issue of oral dissents is touched upon here. A law professor praises her style here, particularly how it influences the public at large. Justice Kagan has her own personal opinion style that also has a down to earth flavor, but Sotomayor is notable in particular for her public appeals. Sotomayor's autobiography and public appearances show this.
Sotomayor's opinions for the Court, unlike Kagan's, generally come off as rather dull and dry. She has her moments though they often are in dissent. A conversation with Linda Greenhouse pointed out some examples, including the rare dissent from denial from certiorari. The conversation is a bit ironic in that Sotomayor seemed to dismiss bench statements as entertainment for the press* though ultimately the press can (though they do so through their own prism) transmit it to the public at large. This seems to be a factor in Sotomayor choosing to do so here.
The conversation with Greenhouse provides Sotomayor providing an excellent explanation on why she chose to use "undocumented immigrant" instead of "illegal alien." I think the latter term misleading myself since "illegal" has a special taint. The "alien" part very well can be a problem too, since that itself has various connotations. Anyway, I have had people tell me that the term "illegal" is accurate. But, Sotomayor is quite right that it is used here very selectively. For instance, to take something I'm familiar with given family connections, certain trades legally require certification. Many do not have it but still do it quite well, but in that respect they are "illegally" doing that sort of work. They are let's say "illegal plumbers" or such. We don't normally say that.
Let me provide a long excerpt, which might seem familiar for those who read Sotomayor's dissent, on why (to cite LG) she does not use the "ugly phrase" in her own opinions:
LG: So I attended the very interesting symposium that the Yale Law Journal put on today and there were many interesting points brought out. One was, Professor Cristina RodrÃguez reminded me, that you made quite an impact in an immigration case by, instead of using the phrase, the ugly phrase, “illegal alien,” you referred to an “undocumented immigrant.” And that that really had an impact on the language that the country—maybe just the elites, but in any event—uses in talking about immigration. So I’d just be curious what your thought process was in deciding that it was time to make that rhetorical move.There is a lot of ways to express things, even if the overall point is agreed upon generally speaking. Choice of language is important. How things are decided is as well, and as I suggested, the overall result of the ruling the other day is tolerable** -- even if one disagrees with it. As Kagan noted as Solicitor General in Citizens United, there are different ways to lose. And, there are different ways to be a justice. Obama picked two very good choices here, putting his own personal stamp going beyond simple safe votes on an ideological basis. They also show the value of diversity.
SS: Almost everybody breaks a law, whether it’s a speeding law, a traffic law, shading your taxes a little bit. I used to use the example when there were payphones—who goes to a payphone, and there’s a quarter inside the return, and you walk away with it?
LG: That’s a crime?
SS: Yeah, you’re stealing property from someone. [Audience laughter.] That quarter belongs to the telephone company. How many of you have taken a pad home from work? You’re stealing company property. When your kids are using it for their homework that night. We don’t think of you as criminals, we don’t perceive ourselves as criminals. There are crimes and there are crimes. There are the violent breaches of societal norms—killing, assaulting, stealing violently or even stealing in frauds. Those are criminals. But regulatory laws—there isn’t a company anywhere in the United States that doesn’t regularly break one of those laws. Whether inadvertently, or because of a lack of attention, or sometimes not even knowing the law exists. To dub every immigrant a criminal because they’re undocumented, to call them “illegal aliens,” seemed, and has seemed, insulting to me. Many of these people are people I know, and they’re no different than the people I grew up with or who share my life. And they’re human beings with a serious legal problem, but the word “illegal” alien made them sound like those other kinds of criminals. And I think people then paint those individuals as something less than worthy human beings. And it changes the conversation when you recognize that this is a different—it’s a regulatory problem. We’ve criminalized a lot of it, but it started as, and fundamentally remains, a regulatory problem, not a criminal one. And so that’s why I chose my words.
After all, we might have up to four of these people for another twenty or so years, given how these things tend to go. Relatively speaking, 1994 was not that long ago.
---
* Justices at various times suggest that we read their opinions to know their beliefs and arguments, but few do of course, even those fairly aware often relying on summaries and reporting. This is a pet peeve of mine at time regarding certain bloggers -- well, it came up from time to time at Volokh Conspiracy -- the value of blogs is to give people a thumbnail sketch, including of extending law review articles that often get referenced, but few really read. One guy found it hard to summarize the main points of a book that (with notes) is less than two hundred pages.
Bench statements are not officially registered though Oyez.com has provides transcripts to opinion announcements and dissents, more completely in recent days (see, e.g., the 1990s case U.S. v. Lopez, where Rehnquist's opinion announcement and Breyer's dissenting statement is provided in audio and text form). So, the press is basically the only one who has access to that. Along with anyone else who might be present, including lawyers. The general public often only is there for short stints.
A few justices -- SCOTUSBlog alluded to this a few times -- provide bench statements to the press. Apparently, from what I can gather from a personal email when I asked someone at that blog about it, such statements are "off the record" so are not posted.
** I originally said "acceptable," but that might be too generous.
Jeffrey Rosen, in a piece linked by the article cited above, said that the ruling was "constitutionally unsurprising and almost certainly correct." First part is true, the second perhaps a bit too strong. He also says people should "embrace Breyer’s reasoning" (recall it supported the political process theory, just not as far as the dissent). If so, Rosen has to explain why Sotomayor's reply to his concurrence, including as applied to "elected actors" was wrong. Breyer's concurrence comes off as lame.
And, if the ultimate compromise path is to let the voters decide the problem, something that Kennedy et. al. has not consistently done, fine. Sotomayor explained that this can be done. The measure here inhibits normal political processes in that respect and does so in the way that singles out certain protected groups in a way that makes it harder for certain voters in effect to decide the question. Ultimately, it underlines that neither side really just treats individuals simply as individuals.
Democracy and individualism in a pure sense is not our reality.
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Thanks for your .02!