Mapp v. Ohio

Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.

The Landmark Case this week regards a case that applied the so-called "Exclusionary Rule" where illegally obtained is excluded from the evidence allowed in a trial.  The case is a famous Warren Court ruling, but has a somewhat atypical author -- Truman holdover Tom Clark, former attorney general, who dissented in various of these cases.  Clark, however, was particularly concerned about the right to privacy as well as generally going along in religious and race cases.  He took a basically middle of the road position to "one person, one vote" cases, which will be next week.

Justice Clark believed that the only practical way to deter illegal searches and seizures (exclusionary rules also apply to confessions) was to exclude the evidence.  Relying on prosecutors to punish them was unrealistic and often against their interest in using the evidence.  It also was a matter of judiciary integrity.  This was dealt with in the decision but one other thing was that the matter was not really new.  Federal prosecutions had followed the rule for around fifty years.  Right before Clark came on the Court, it was decided that the Fourth Amendment applied to the states, but not this enforcement mechanism.  But, only by a divided court though Black was a special case here as his later actions show. 

Five justices a year before applied the rule to materials obtained by states and used by the federal government though curiously Clark joined the dissent most supportive of the old rule. Justice Stewart did suggest there were grounds to apply the rule only to the federal government, but the opinion comes off as supportive of the rule overall. Likely the rule would be applied to the states at some point, especially as special rules for the federal government in civil liberties was looked at with disfavor by many justices, all on certain issues such as racial justice and some Bill of Rights matters such as religious liberty.

Like another famous case not covered by this series a few years later involving the right to an attorney, this has a feel of the justices reaching out to use a case to decide something they were looking to when the right avenue came along.  A major concern of the Supreme Court, now that they have near total control of their docket (more so than even back in 1961) is to settle disputes of law.  It is not just a matter of justice for specific parties and it often is bad news for the winning party if the often apparent leanings of the justices go against them.  But, this seemed to be taken up as a First Amendment case, the material seized pornographic materials.  Search and seizure did not seem to be the point, surely not overruling Wolf v. Colorado.

A summary of the events with some useful links to documents tied to the prosecution and an obit (she died last year) provides some useful background including events after the case and a link to oral arguments (see also, Oyez.com).  The colorful events are of some relevance here. The police invaded a woman's home to search for evidence without a warrant, seized some sort of paper out of her bra when she shoved it down there after they refused to let her read it and arrested her on charges unrelated to the crime (a bombing) they originally was there to investigate.  She was known to be involved in gambling but that wasn't what they prosecuted her for either.  It was for some pornographic materials of a former tenant that she was legally held to have possessed. So, they spent three hours (according to one of the guests here) searching and was punished for a totally separate matter.  This makes the whole thing quite blatant.

There are various accounts how the Supreme Court reached out to decide the exclusionary rule issue (four justices strongly challenged the move, one still deciding to overturn the prosecution on First Amendment grounds) though Justice Douglas separately tried to justify it.  Listening to the oral argument, the first half hour of the extended argument (longer than an hour) did largely concern the details of the search itself.  The lawyers were as a whole hedgy on what exactly was wrong with it, but there was some implication that it crossed the line, even if a complete overruling of Wolf v. Colorado [in a bit of foreshadowing, this involved getting evidence in an abortion conviction] was not sought.  For instance, at one point her lawyer suggested that the Rochin v. California case (forced vomiting of pills as a shock of the conscience) should apply. State law allowed use of illegally obtained evidence unless some egregious behavior was involved.  Some loophole seemed to be sought there too.

So, though it would have been good judicial policy to at least re-hear the case with a special examination of the search and seizure issue, overall the matter was not completely taken up out of left field. The fact the First Amendment and the home was involved was in some fashion supposed to help here. This would turn out to be the path taken by the Supreme Court in Stanley v. Georgia -- at least in the home, even obscenity is protected. And, even the ACLU lawyer that took part granted the material here was obscene. And, given the breadth of the statute and the fact she merely possessed it without apparently knowing what was involved, there might have been a unanimous vote to overturn her conviction on 1A grounds. In fact, the possibility of up to seven years in prison for this "crime," opened up a credible Eighth Amendment claim.

Again, assigning it to Justice Clark, who ultimately was a conservative on obscenity as well, suggests the simplicity of matters.  But, Clark voiced his distaste for not consistently applying the exclusionary rule over five years before, and was looking for a way to do so. According to Warren's autobiography, he suggested using this case as a means at the elevator one day.  The majority were game.  The only tricky one was Justice Black, who actually joined the Court back in Wolf v. Colorado. He later was a lone dissenter in not applying the Fourth Amendment to listening devices since words did not seem to be the sort of tangible things it covers.  Nonetheless, taking a 19th Century case (Boyd v. U.S.) to help, he decided this was really also a Fifth Amendment case -- Mapp was being coerced to testify against herself.

[The opinion in 1960 cited above and forthcoming actions, including a post-retirement law article, shows Stewart did ultimately agree with the rule applied.  Justice Stevens' dissenting opinion (see third and fourth sections) in U.S. v. Leon  provides a good analysis here.  It is somewhat curious the others that dissented from the 4A ruling here didn't concur on 1A grounds, especially since apparently up to eight of them at least was going to do that originally.*] 

Mapp v. Ohio is an attempt to protect overall constitutional principle even though it might not seem the text explicitly demands the approach. Some even then spoke about exclusionary rules as a sort of technicality, a way for people to get away with things because the police blundered. But, of course, they did not here -- there was an intentional plan to avoid obtaining a warrant, here almost gratuitous fashion since one would think there was evidence to do so if it was actually necessary. The resulting invasion of privacy is aggravated given a warrant requires a certain degree of particularity, which helps avoid fishing expeditions.  And, as a matter of principle, crime shouldn't pay, even if the criminals are the government.

The ultimate burden to law enforcement here is greatly debated but the net results of the studies suggest it is not really much of one, particularly outside of vice crimes where obtaining warrants might be tricky.  And, how do we balance the cost/benefits here?  Are not things such as respect for privacy and the honor of law enforcement (see, e.g., Justice Brandeis' famous Olmstead v. U.S. dissent) / judicial integrity benefits?  The many exceptions to the rule, some valid/some probably not, also limits the reach.  But, there remains some bite here, including as a way to protect disfavored groups, particularly those tied to certain crimes such as drug matters.

These cases also helped provide a basis for a "right to privacy," which traditionally was a major concern -- not merely some property right or such -- in Fourth Amendment matters.  (The Self-Incrimination Clause also cited as a zone of privacy.)  Boyd v. U.S. argued that ultimately privacy was the point here.  Griswold v. Connecticut, protecting use of contraceptives as a form of protected privacy, quoted that case:

The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence -- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.

The Fourth Amendment starts by saying: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  Criminalizing certain acts that take part in these private zones was seen as illegitimately stopping certain private acts, not "public offenses." Tellingly, Justice Clark was the only one who joined Justice Douglas' opinion here without adding more.  Allowing the state without good cause to prosecute private acts violated general constitutional principles just as use of illegally obtained materials did in this context.  The Fourth Amendment alone did not provide the basis on the constitutional right to privacy (or "liberty") in Griswold et. al., but there is a major overlap here.  Again, Mapp herself would have been a beneficiary of Stanley v. Georgia which relied on both free speech and privacy grounds. 

Mapp v. Ohio was an early example of a range of cases where the Warren Court restrained the police, including by applying various rules to the states. The addition of Justice Goldberg (and Fortas who replaced him) helped obtain a "fifth vote" in many of these cases though here was a case where an existing fifth vote was present to do the job.  Mapp herself later got in trouble with the strict NY drug laws, the Fourth Amendment not helping her much there.  Her rule gets mixed respect these days, especially in fictional accounts where private investigators or the police have little respect for it, but the overall honoring of privacy and the integrity of law enforcement continues to be quite important. 

This was seen as perhaps the start of the activist period of the Warren Court, but activism is not a bad thing if done correctly. As the show noted, the case had a race angle as does criminal justice in general. Likewise, other at risk groups are particularly protected, though so are we all.

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If original understandings of the Convention existed, we cannot retrieve them. Indeed, hours after the Convention ended for the day, Madison could no longer recover it precisely for himself.

There is a lot of words used to try to determine the proper approach in Fourth Amendment cases, including what history teaches us here. Madison's Hand examines the trouble with relying on that, at least with Madison's Notes to the Constitutional Convention.  It is a major act of scholarship, if a bit cumbersome to read.  All the same, it helps my conclusion that we are left with trying to understand the words of the Constitution today, history serving as a guide, but not a straitjacket.  This is particularly the case as we apply criminal procedures in a different world than two hundred years ago, where things like qualified immunity as applied today, modern police forces, changing litigation realities etc. has made things significantly different.

This aside that just how exclusionary rules were applied back in the day is a matter of scholarly dispute anyhow.  Samuel Dash's The Intruders, e.g., provides a good expert analysis of things up to 2004, one extended end-note disputing the findings of another scholar.  Orin Kerr, who blogs at Volokh Conspiracy and in some ways is a mild conservative on certain matters, is but one who challenges various accepted "law office history" on this topic.  Ultimately, perhaps, it is up to us to determine the best path with history potentially providing some unexpected assistance.

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* I live tweeted (Joe Paulson) a few comments as this episode was going on, the show inviting comments as well via #LandmarkCases along with Facebook and live calls. Audience involvement is a major concern of C-SPAN.  I flagged the curious fact that (as noted at one point up to eight justices thought the law here overbroad on 1A grounds) only Stewart noted in a special memorandum that he would strike down the conviction on that ground. In various cases, justices hold for a litigant, but on a different ground. That is, they only concur in judgment.

My question was actually taken on the show as the sole tweet question (unless I missed something while I was online!).  My question: "why didn't dissenters in Mapp v. Ohio concur in judgement on 1A grounds? Stewart's memorandum basically did that." (I added a reply citing Stanley v. Georgia, where justices did hold for Stanley but splitting on rationales, but it wasn't cited.)  For some reason, this confused both guests, noting the majority opinion only ruled on the 4A. Yes!  That is why they would concur in judgment alone!  Oh well.  Appreciate the attempt.  Lol.

Order Day

Update: A discussion at SCOTUSBlog flags one interesting case that the federal govenrment was asked to comment on. 

SCOTUS is back though nothing too exciting is going on. An employee rights cases being heard today might be important to various workers (the timing of wrongdoing / relief reminds me a bit of Ledbetter) while the other has a description that puts me to sleep. The orders also aren't that excited though they rarely on. A dissent adds some flavor.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal courts from granting habeas relief unless the state court’s decision “involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.”

Three justices thought the 6CA has yet again ignored this limitation, the law as one conservative blog noted while examining Judge Sotomayor's actions under it "is bitterly resented by many federal judges precisely because it was enacted to curtail their ability to lord it over state courts and because it rejected the notion that their judgments are inherently superior." Well, that's one way of discussing the role of federal courts to provide federal constitutional oversight per their more independent position as those with life tenure without political and other restraints that state judges have. Ironically, given KS there thought Sotomayor applied it fairly, turns out she is not a great fan of the law.

Meanwhile, we have another troll (don't like the term but at some point it might fit) litigant back again, one who has target so many justices that there isn't a quorum. This by statute lets the lower court opinion hold. The abuse of the courts is a serious matter but can result is some amusing claims and/or motions such as this one targeting Thomas. Kevin L. Smith has been at this for some time, as seen by this decision by the 10CA back in 2007. In fact, a bit more searching lead me to this, suggesting he has been at this in some fashion for over fifteen years.

Appellant, Kenneth Smith, was awarded a Juris Doctor degree from the University of Denver College of Law in 1995. He applied for admission to the Colorado Bar in January of 1996. Pursuant to C.R.C.P. 201.7 and 201.9, the executive director of the Board of Law Examiners recommended that an inquiry panel be convened to determine questions of Mr. Smith’s mental, moral and ethical qualifications for admission to the Bar. The inquiry panel conducted proceedings and ultimately concluded that probable cause existed to believe that Mr. Smith lacked mental stability, and hence recommended that his admission to the Bar be denied. 

One gets an idea after a while that the panel was on to something.

Pretty Boy Loses

NYG and NYJ play each other next week; on same time this week. NYG didn't wait to end of game to blow it this time. Lack of scoring until 4Q did trick. Jets had an easy game vs. Miami. Pretty boy tied it against Denver (back-up QB in) in the snow at end of regulation, but huh, went nowhere in OT and lost the game. Steeler/Seahawk game also pretty interesting.

Quick Reviews

Alone atop the Hill is a very good condensation of the autobiography of a black female journalist pioneer, the first half a look at growing up in the early decades of the 20th Century Kentucky for an educated black woman. The scholarship of Madison's Hand, on Madison editing his famous constitutional notes, is great; not as a good as a book. Alex of Venice is somewhat thin, but is a well acted indie headed by the star of Smashed, another indie I liked.

Addendum: The book covers a lot of ground, explaining perhaps why it originally was three times longer! One striking thing is the author's continual concern for personal "dignity" or "prestige" or some related principle. Brings to mind Justice Kennedy's use of that term. She also briefly noted advocating for birth control. Did so in action: two marriages, one kid.

Another Shooting. Another Attack On Planned Parenthood.

Update: Credit to Gov. Mike Huckabe for calling [on Twitter etc.] this domestic terrorism that he opposes as a "pro-life" individual. To be careful, as some will want, his recognition of the dangerous nature of the rhetoric used etc. is limited. But, as noted below, there is a basic floor here and it must be upheld. Others had somewhat less compelling first impressions.

This shooting is at least the fifth high-profile crime at a Planned Parenthood clinic since the release of the Center for Medical Progress’s undercover sting videos this July. In early September, a fire at a Planned Parenthood clinic in Pullman, Washington, was ruled to be an arson. A second arson at a clinic in Thousand Oaks, California, came one month later. Two other attempted arsons have taken place at a clinic in Aurora, Illinois, and at one under construction in New Orleans.

The events are still raw, thus I woke up today with reports of an additional death, but to assume it is related to abortion is not exactly a reach. As Irin Carmon notes, Colorado is both pretty pro-choice in respect to laws and a major focal point of battles.  The divisions in that state was also seen in the Romer v. Evans case, where local pro-gay policies were attacked by means of a state-wide referendum.  The battle over Planned Parenthood isn't new either as seen by this four year story that easily could have mostly been simply republished after the latest controversies.

Abortion along with other things for which it is but a part (e.g., women's equality) has long been a major political football, the book Linda Greenhouse co-authored arguing that it is wrong to blame Roe v. Wade in particular, especially since the effort started before the opinion was handed down.  Put aside that abortion is not the only area where rights are enforced by the courts, rightly so, and it results into political controversy.  Abortion has gone national yet again, the latest the let's be blunt, asinine controversy over fetal tissue. Again, nothing really new, as Lepore's piece noted in 2011: 

The fury over Planned Parenthood is two political passions—opposition to abortion and opposition to government programs for the poor—acting as one. So far, it has nearly led to the shutdown of the federal government, required Republican Presidential nominees to swear their fealty to the pro-life lobby, tied up legislatures and courts in more than half a dozen states, launched a congressional investigation, and helped cripple the Democratic Party. What’s next?

And, the issue has gone down to f-ing birth control.  In the past, multiple Presidents, including Republicans, supported birth control. Michelle Goldberg wrote a good book, The Means of Reproduction: Sex, Power, and the Future of the World, which covered some of the history here. George Bush (41) was a major supporter too.  This was in the age where being a pro-choice Republican wasn't such a courageous act.  Again, Lepore, who is one of the best popular historians of the day:

Before the mid-nineteen-sixties, birth control had largely been privately funded; clinics affiliated with Planned Parenthood ran on donations, grants, and fees for service. “I cannot imagine anything more emphatically a subject that is not a proper political or governmental activity or function or responsibility,” Dwight Eisenhower said in 1959. “That’s not our business.” But by 1965, as concerns about overpopulation, worldwide, began to dominate policy debates, Eisenhower had reversed his position on family planning, serving with Harry Truman as co-chairman of a Planned Parenthood committee.

There is and must be some common ground here. There are ways to deal with women's health, unwanted pregnancies and other matters for which a strongly anti-abortion individual (use that term advisedly, since some might accept the choice) can find room for agreement with a pro-choice individual who accepts abortion as moral in various instances or simply thinks it is a woman's choice.  There is also a more minimal line in the fucking sand.  The line that opposes use of violence.  A co-pastor died here. That is just a blatant fu to religious people, akin to the doctor murdered in the vestibule of a church.  Is there no shame here?  No room to voice the horror of tactics even if abortion horrifies you?  Simply saying you are against violence isn't enough. We are for/against various things and blandly say that.  It's easy.  It is something else to firmly, strongly say something and show you mean it by act and deed. At some point, ENOUGH.

Those who support abortion rights can and must do more. For instance, when so much time is spent/wasted on fake controversies, even a special committee set up to let's admit it -- death makes one take the gloves off -- troll (some honest opposition is involved here too, but as the heroine in that Nigerian novel noted, even "good" motives doesn't cover the bad sometimes), what about some effort to deal with clinic violence and related issues?  Equal time at least would seem warranted.  To show some that anti-abortion isn't just -- and I don't think it is though it's infected by it -- anti-women hypocritical actions infused with a retrogressive religious belief.

We will never totally stop the unhinged in this country but there are things we can do. Each incident like this also brings to the fore the issue of guns. What more regulation can do here will be a matter of seeing all the details, but as in other areas, there is an overall effect here. Each action, like each action of our lives, need not directly do something.  But, in some fashion they can matter.  Careful responses (see, e.g., the House bill after the Paris bombings regarding Syrian refugees) should be the name of the game in the promotion of all policies, even ones "we" think good ones.  Nonetheless, enough with this lame need for specificity, as if unless something clearly would have stopped "x," it is pointless.

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The below is part of the whole thing here, since I think it is representative of a wider issue, but tack it on at the end here since it might seem personal. The personal provides our direct reactions to things that touch upon wider issues and should not be unduly belittled.  I do remain a bit wary about such things and try to not cite personal examples in my discussions.  This is partially out of privacy, but also since it is somewhat limiting.

I recently noted (in response to this article) that in the battle of two anti-choice candidates in Louisianan, a lesser evil might be the end result.  For instance, noted (as did Mother Jones, after he won) how Edwards supports Medicaid expansion.  He also is better than Vitter (yeah that guy) in other ways. Ann Northrup on Gay USA, after her co-host Andy Humm noted he won and noted the Medicaid issue, simply noted in an "of course" tone agreeing he would be better. Someone was upset though -- she seemed to think I selectively wanted women to settle here though I over and over again tried to show (1) as I do loads of times at the blog, support abortion rights (2) the basic concept of lesser evil and how it applies to everyone.

Not listening, it was a lost cause, even when I tried (but for some reason why I was asking was apparently mysterious) to suggest a hypo pre-Roe v. Wade where both candidates often were against abortion.  Someone who is usually supportive of me argued that I was somehow selectively using examples that burdened women (multiple cites to gay men, e.g., or how Medicaid expansion helps women to no avail) particularly since abortion only "affected women."  At some point, a tad pissed off, I added that when a man's daughter is denied rights here being argued to be the most important of them all ("bodily autonomy" in general now not as core as women's autonomy, I guess).  The person did not apologize or say "I understand what you are saying but" ... she is left wondering how I can say gays might themselves suffer in ways lesbians do not. IOW, this is the only case where women particularly are harmed at this level. 

One of the articles cited above noted: "Alan Guttmacher had watched a woman die of a botched abortion, and had never forgotten it." It deeply affected him and he felt it was his life's work to address such issues.  Men died yesterday. When a girl or women doesn't have an abortion she might otherwise choose to have, men are affected.  They for one thing become fathers of children who are born and out in the world.  It is patently obvious that abortion specifically affects females and some other matter affects some other group.  But, doesn't just affect them. 

Among other things, this mind-set is tragic, in part since it helps promote what the people hate -- an idea that something is really important to only "them," and "them" might be a bigger group than some might wish to think. RBG, for instance, has noted that abortion rights are particularly a class issue.  Limits particularly harm those without the means. So, even those who might need an abortion at some point (not covering all women) might belittle the importance of this issue. Fill in the blank there too.

This goes back to the lesser evil thing. Anti-choice rhetoric, for instance, is threatening in various respects.  But, there are degrees there, just as there are in anything of great importance.  Sometimes, the best we can do is limit the damage.  So, when anti-choice individuals and group in some serious way strongly oppose violence, it matters.  Some will sneer.  They will (rightly) think these people are still doing a lot of harm.  But, we do not live in utopia.  Limited advancements are still advancements and some strange bedfellows will be in place.

And, some bare minimum here is very important. 

Christmas Display Litigation Season Begins

 
Some time back, I started to read Supreme Court cases (now lower court cases are easy to access too) regarding holiday displays and have done so here as well.  Ten Commandments monuments and other displays also have been a long term matter of court dispute.  These are more blatant in a fashion, especially compared to holiday displays that try to include a range of religious symbols or water down the one (creche) with wishing wells and other stuff.  This is part of a range of things that might broadly be deemed "ceremonial deism" in some fashion along with national days of prayer, "God We Trust" on currency or in court rooms and so on.

I try to keep perceptive here that there are more serious concerns among matters of religious dispute, including burdening people's access to health care or marriage licenses that are the same as those of everyone else because of the religious views of some people.  Also, we have ISIS, an international example of a group giving "religion" a bad name. And, the term is used advisedly, since this discussion is correct.  There is a link there to President Obama saying that no religion "condones the killing of innocents."  Have you checked your history, Mr. President.  If you want people not to denigrate Islam or religion for extremists who self-represent as Islam, fine.  But, let's not have Presidents try to define "Islam" or "religion,' especially not in such a naive fashion.

But, every dispute is not of grand importance, and smaller ones can touch on major issues.  Denying someone the right to read some "trashy" book is a big deal, even if it is only a matter of keeping out of the local library, the person able to get it various other ways.  It's topical anyways since Thanksgiving is addressed in cases like Lynch v. Donnelly, including the dissent separating its religious and secular components, and the plurality opinion in the next major case noting that over our history, some Thanksgiving proclamations (which Madison and Jefferson deemed a problem, but then I'm not for appealing to history as much as some originalists) were blatantly sectarian in nature.

[Talking about Thanksgiving, some point out the whole pardoning the turkey deal -- cue appropriate West Wing scene -- is moronic, and insulting really given how few people are pardoned these days. I think one can argue that the President has helped prisoners in various ways, including in respect to getting them out of prison, but the argument has bite.  Would not take it that seriously though -- there are going to be stupid rituals.  So, use them to do something productive such as addressing human prisoners. 

Another topical issue (three football games now on Thanksgiving) would be the rather lame idea that its name led to officials being tougher on the Washington Redskins.  Whatever it takes to change the damn name, I guess. Finally, there are various ways to enjoy the holiday without eating animal products. Many already don't really do the whole turkey deal and personally back in the day pre-vegetarianism, I preferred chicken. Some chicken substitutes actually are rather tasty, but no, this is not merely a matter of Tofurky. There are range of foods for thanks giving meals.]

The most important thing here is to respect religious diversity in this country, which leads to what some might think of as lame but still praiseworthy attempts to cover various bases in public schools or other public celebrations of the holiday season. The courts continue, after all, to be more sensitive when young children are involved, and various Jewish children in the past had let's say at best mixed feelings regarding school Christmas pageants and the like. Take a basic thing. Saying "Happy Holidays" is ridiculed as anti-Christian, when it really amounts to a reasonable approach to cover everyone.  Some celebrate Christmas in some fashion or don't care, but they shouldn't care either if you say "Happy Holidays." Note too the inclusive presidential proclamation for Thanksgiving as to compared to more religious ones of the past.

Thus, the most troublesome cases is where one holiday or religious symbol (like one form of the Ten Commandments) are publicly endorsed by the government or even by some major employer (if not a First Amendment issue, respecting religious liberty in other contexts still is important) is some blatant fashion.  This includes celebrating the holidays of some majority group and not even in some fashion recognizing those of other faiths.  Now, religious diversity (e.g., the whole "Judaeo-Christian" deal) can have its own issues. But, even-handedness is generally better than one-sided endorsement. Basic respect is not really a trivial thing.

Litigation can seem to be about trivial things. Thus, we have holiday displays that have a creche, which is a representation of the miraculous version of Jesus' birth. The difference in a fashion between Jesus and Jesus Christ, Christ not just being his last name. Notice, e.g., the presence of an angel in the linked example. To many, the creche might just seem a relatively bland symbol of Christmas, a holiday many (hey, me included) celebrate without believing in the whole affair.  But, public endorsement of religious symbols is touchy.  It is not too surprising minor differences led to great disputes, down to Catholic schoolchildren being hit for refusing to use Protestant Bibles.  Minor or not, this is a type of "establishment" of religion, favoring one form over another.  Shouldn't be a majority rules either.  The fact so many are Christian as compared to Jewish or Christian of the type that might actually oppose use of such symbols (there is also division among Jews regarding the menorah) shouldn't determine things.

The cases ultimately split depending on how blatant the display involved. A creche in a wider display without some special governmental connection or blatant intent to promote religion allowed, a freestanding creche in a key government location not.  This was a close call, 5-4, with four justices annoyed the creche was not allowed both times, four would have denied the creche both times and three others upset a menorah (and even a Christmas tree in a display of religious symbols) was allowed as a representation of religious diversity. And, given the changing membership of the Court, the staying power of this rule is somewhat unclear. Justice Kennedy would have allowed the creche and generally supports public displays, except for something blatant like a permanent cross on top of City Hall.  Likewise, as part of an open public forum, especially if a notice is present that no governemnt endorsement is present, a freestanding creche or cross or menorah can be left alone on public land.

I'm inclined to follow Justice Stevens' rule, which very well have at best two votes* on the current Court, that "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property." Leave religious symbols, putting aside things like museum showings and such, to private parties.  There are ways to acknowledge holidays with religious components without using symbols that many deem holy.  I realize there might be hard line drawing issues there, but as a basic rule, it seems sensible.  It is not the current federal constitutional rule, but good policy is not always a clear demand that is enforced in the federal courts.

Local areas should at least have the option of having a special rule here as applied to public fora. The only way to avoid allowing unattended symbols here would be a general ban. This might work in some cases, but in others, it would make sense to allow some unattended displays. The same applies in other contexts. A public college might want to fund all college club newspapers, but funding a religious publication is not the same thing since required funding of religion is a specific wrong religious liberty should avoid, granting some hazy lines.  Not according to current precedent. This leads to some controversy when some group pushes for equal time, the ultimate case the Supreme Court decided involving a KKK group wanting to include an unattended cross if menorah was allowed. And, perhaps some Pastarfarian or whatever group wants their symbol included when a locality sets up a holiday display with other symbols.  Again, the government generally has broad speech powers, but when religion is involved, it isn't quite the same. 

This would also counsel against freestanding displays on public land that people reasonably associate with the public in general.  A religious event in a public park can be associated with the parties involved.  A big creche, even with some disclaimer many won't see or be able to read unless they go up close, in a park reasonably might be deemed a public message.  The Establishment Clause makes religious displays a bit different than other types of expression, governmental endorsement selectively of concern.  This goes both ways -- the First Amendment specifically respects religious beliefs by protecting free exercise of religion; non-establishment also does so by equally not favoring some over others.  At least somewhat more care is warranted.

Such a clear line might not be present in various cases, but the power of symbols and the importance of holidays again warrants special care. Everyone is not likely to be happy -- I recall Nat Hentoff once being concerned about use of a Christmas tree in a public school or library some such.  It was after all a "Christmas" tree ... was there a Hanukkah bush available?  I personally think a Christmas (and the very word) tree often has a secular connotation at this point, but hey, grew up Catholic, so biased, right?  Still, cliche or platitude it might be, some common sense and basic respect for fairness and even-handedness can be useful here.  This includes public officials taking notice of the diverse celebrations around this time of year, Christmas itself but a late Christian form of longstanding end of year celebrations.

Context ultimately matters here and again recognize there are degrees. I don't think holiday displays are quite as "passive" as some make them out to be in these cases, especially when there are various degrees of governmental involvement.  And, a "passive" sign that says "In Jesus We Trust" would not be allowed.  It still is not as bad as some other things, especially when part of displays that do honor various holidays (though there is a tendency to favor some here, thus "Christmas" season brings in other holidays, holidays that might be relatively minor to the religions).  Plus, there are ways to show basic fairness.  Happy holidays!

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* Justice Breyer was okay with a disclaimer, Ginsburg was concerned with the flimsy nature of the disclaimer (but joined Stevens' dissent in a later case with the rule) and Sotomayor once joined a dissent regarding a cross display.  Kagan had a good dissent in an invocation case involving a public meeting, but separated it from legislative prayers generally.  Inclined to think she would at best be a vote for endorsement concerns, not Stevens' strict rule.  She argued the cross case for the government but that isn't really determinative.  So, who knows.

BTW, the video is not exactly supportive of my p.o.v., but is a good representation of some people's ideas about the question. Concern for certain particularly religious symbols and so forth is anti-Christmas etc.

Happy Thanksgiving

Christmas Before Thanksgiving?

A bombing plot led Supergirl's Thanksgiving episode to be pushed back from this week. But, one week early is pretty on time as these things go. Meanwhile, a special Young & Hungry Christmas episode was on earlier tonight. The main show is its hiatus now. Anyways, the episode was pretty lame, the only notable thing was two recognizable faces as guest stars.

Brown v. Board of Education

I spoke about this case (cases really) earlier in the month after reading the oral argument transcripts of the first two arguments; there also was a third for Brown II: Relief.  Noted that I might have some more to add and do have a few things. (One thing to add as well: taped oral arguments available at Oyez.com start sometime early in the Warren years. Chief Justice Warren has this voice that really adds authority as he opens the argument.)

The episode seemed to need to cover too much material in the time period and if anything did so with what seemed like a bit more time for calls than before. I say "seem" because maybe it was the same time but the span of time and material covered in a compressed time was a bit telling in this case. The episode had some clips with Linda Brown and Thurgood Marshall as well as something on the famous doll studies plus some photos used as exhibits in one case. But, I think it could have used a bit more in the video segments on the original plaintiffs.

I think it would have helped too if it was clearly noted that even John Harlan himself separated social and civil equality, putting public school integration in the first category.  One of the guests noted that the ruling showed Harlan as a prophet, but this was someone that not only wrote an opinion a few years after Plessy that upheld segregated schools but didn't even honestly uphold the "equal" part of separate and equal.  This is a case where the seemingly absolutist words of the Constitution are a bit less so, which is generally true, but a particular learning experience here.

(The guests did agree that Plessy reflected the times as compared to leading them -- the acceptance of segregation already long in place by that point. This recognition of the times a case is decided in is important as compared to an ahistorical treatment that relied on principle alone. Again, as Justice Souter noted in his Harvard address, the justices at the time probably thought their rule sensible and an advancement of the state of the law they grew up experiencing. After all, as applied to schools, even Justice Harlan accepted the rule that ultimately was seen as obviously wrong.)

It was also noted that it was Frankfurter's idea to use "all deliberate speed." He would be a logical person, especially after the death of Robert Jackson, to promote such a conservative go it slow approach. Still, reading the oral arguments, the Eisenhower Administration itself  referenced that very concept when discussing proper remedies.  The government's brief was also influential in the opinion's statement that original understanding was not conclusive one way or another - basically the re-argument was a useful delaying mechanism, the issue of remedy (part of the questions presented) to be re-argued in Brown II given now the parties knew the outcome.

One more thing that comes to mind was a reference to Parents Involved, including a quote from Chief Justice Roberts plurality opinion. They could have used a clip from the opinion announcement to use his own voice.  C-SPAN was perhaps too polite to note that his appeal to Brown was a tad ironic since Thurgood Marshall himself supported race based affirmative action of the sort rejected here.  He did not write the opinion, of course, but seems his views would be a tad notable. It also shows how later generations can interpret things differently. Using the opinion to reject race based affirmative action is not quite as much of a stretch as appealing to original understanding to oppose school segregation, but this passage from Brown has bite here too:

This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.

Thus, the 4-1-4 ruling. Harder questions these days, I guess.

Pennies Are Pretty Pointless

I agree with John Oliver that pennies really should not be still a thing. Just round off. Can even use the extra for some good cause. Think new Muppets show is at least okay, so that not a great shot. And, do pick up pennies, in part to avoid getting back more when something is like thirty-one cents or whatever. And, dogs can eat other coins too. But, no segment bats 1.000. The ability to reject pennies is true but not limited to them.

A Principled Stand: The Story of Hirabayashi v. United States

This is an interesting and powerful edited version of personal writings of Gordon Hirabayashi, who challenged the curfew and removal order of Japanese as a loyal citizen of the U.S. and man inspired basically by a Quaker faith. His view from inside of prison is particularly powerful. Gets a bit repetitive late, after we get the gist of his sentiments. It ends with a personal summary of his later work and overturning of the convictions.

Jane the Virgin

I caught the first two episodes of this takeoff of telenovelas and can see how it has addictive qualities. Darn the lead is hot. Plus, she's actually over 30. So it's okay.

U.S., not ISIS, Values

“President Obama and Hillary Clinton’s idea that we should bring tens of thousands of Syrian Muslim refugees to America—it is nothing less than lunacy,” Ted Cruz said on Fox News, the day after the attacks on Paris. If there are Syrian Muslims who are really being persecuted, he said, they should be sent to “majority-Muslim countries.” Then he reset his eyebrows, which had been angled in a peak of concern, as if he had something pious to say. And he did: “On the other hand,” he added, “Christians who are being targeted for genocide, for persecution, Christians who are being beheaded or crucified, we should be providing safe haven to them. But President Obama refuses to do that.”

As noted here, which links to the New Yorker article, drawing religious lines like this makes us less safe. It also is an ugly approach that violates our basic values. Sure, there is the time old value in a negative fashion to such divisive tactics.  Nothing new under the sun there.  This is seen here, particularly in the comments, where the recent troll is rooting for Cruz and the reasonable one (aka Mr. W) agrees the strategy is both productive to certain ends while still being reprehensible.  My hope is that Cruz is too divisive and too much of an asshole to win the nomination, but then, the best case scenario seems to be that he will get a lot of delegates and influence all the same. 

It is in the air. The "sane" candidate (whenever this is suggested, others quite sensibly point out various things he did that are horrible) put up a flag regarding using our government to help people learn "to be a part of a Christian-Judaeo society."  Loads of state governors now are saying, though it is clearly unconstitutional to do it in any real way, they would refuse to help with Syrian refugees.  This is a time old reality contra the opinion of Justice Scalia in Arizona v. U.S.  Compare:

"Sense of Congress-- It is the sense of Congress that the United States should (1) continue to recognize and promote diversity in the Armed Forces; and (2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces."

There is some sharing of blame here and not just regarding the internment curious. This is seen by the apparently veto proof House measure that was rushed thru in nice kneejerk fashion to add requirements before Syrian refugees are allowed in.  To be clear, the fact less than fifty Democrats signed on doesn't show "not a dime worth of difference" here, here. Also, a helpful summary of the rules in place.  But, wrongdoing requires assistance and looking the other way, and this remains quite troubling. And more. A layer of disgust should be present.

Just what to do in these cases as a matter of long term policy is to be a bit weenie about it very hard. I think, as a whole, President Obama provided a reasonable approach though surely criticisms can be applied, including his supporting long term troublesome assumptions like the value of force in various instances. For instance, I have argued the drone policy is not akin to murder as some without rejecting those very concerned with it as applied and as a matter of basic policy overall.  Basic rules should be applied though.  Talk of only bringing in Christian refugees? Kneejerk bills like this?  Promoting Judaeo-Christian values on the government's dime? Uh no. It isn't THAT hard, is it?

The concern, by the way, some Syrian refugee will leak thru that is a terrorist is not horrible. It is human nature.  But, think it through. First, it is not like we don't have home grown terrorists, including those that shoot up movie theaters.  Second, will not terrorists come from some other part of the region? Should we then not allow any from the Middle East? But, the Boston Marathon bombing showed the limits of that approach too.  Finally, just how productive is it to block some people feeling from oppression here, especially since helping is a basic human and American thing to do? After all, there is a lot of vetting already, and if anything they might be somewhat less likely to be one in the process than from some other region.

This sort of thing is why I scream during football games. So much simpler. Jags won the loser bowl last night, btw.

Under the Udala Trees

I enjoyed Half of A Yellow Sun, which took place during the Biafra War. This novel starts there too, heroine's lesbian path starting as a result of war time displacement. The book covers various themes including mother/daughter relationships, education at a girls school, religion, self-doubt and how good people can still do horrible things. It was very good while using both universal themes and things specific to the time and place.

Two More Executions

Justice Sotomayor flagged a problem shortly before someone was executed. As noted in last link, a second person wanted beer for his last meal. This was refused and he also was executed, claiming innocence. No justice dissented or made a statement.

Mets Blog "new and improved" (as if)

The changes to Mets Blog (on my blogroll) reminds me of my negative feelings when Slate changed its "fray" and then ended it, but worse since the overall look of the blog has changed too. The visual look is cluttered and the comments (a prime reason I go) harder to use too. I liked Oyez.com (scrolling harder now, e.g.) better before but much worse here.

"Equal Dignity"

Obergefell v. Hodges (SSM) continues to have academic discussion over at Harvard, part of the argument it is a type of "game changer" of sorts in constitutional analysis. I think Prof. Tribe is correct to downplay the change somewhat as portrayed in the first analysis though both are worthwhile to examine the overall principles involved. Tribe rightly argues that the opinion "represents the culmination of a decades-long project that has revolutionized the Court’s fundamental rights jurisprudence."

There continues to be a battle on the contours, but we are not talking about some novel principles that suddenly came out contra, e.g., Roberts being so very confused in his dissent. The first article sees Obergefell (destined to be one of the most forgotten precedent case names) as de facto overruling Washington v. Glucksberg, a major substantive due process precedent. The majority (via Rehnquist) tried to cabin unenumerated rights here but just how much the reasoning actually does that is up to the reader. An honest realistic counting of noses here shows three actual votes for the full approach.* O'Connor concurred separately in a fashion that suggests she was more concerned with the specific issue of physician assisted suicide than some broad attempt to limit substantive due process.

Kennedy didn't speak separately but joined O'Connor years before to "not foreclose the unanticipated by the prior imposition of a single mode of historical analysis."  She cited Poe v. Ullman, also favored in the Casey abortion decision, the favorite approach for the Obergefell developing history approach. This underlines the perils of trying to selectively use one opinion or even parts of one (such as the federalism aspects of Windsor) without putting it in a wider context.  It's important that a firm five votes supports a broader view here but this "what about Glucksberg" query is not new anyhow -- see the opinions in Lawrence v. Texas.

The two articles here in more helpful for me to summarize a general approach at any rate. The same applies to the substantive due process and equality "synergy."  This is not new. I don't know what the confusion here is. Loving v. Virginia shows how the two interact as did various other opinions, at times some justices viewing things in an equal protection mindset, some in a substantive due process fashion. An earlier overlap would be Griffin v. Illinois speaking of "equal justice"  or the two school segregation cases, one a due process matter (federal), the other equal protection (state).  And, again, Lawrence v. Texas spoke of the connection:

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.

The majority opinion used substantive due process while the concurring opinion relied on equal protection. The articles can also be used to show "dignity" is not just something Kennedy came up with as did various articles in the past.  The general idea that concepts such as "marriage" change over time as new information and societal developments occur isn't new either.  The debate here is basically on details.  This does not belittle the ultimate scope of the opinion here, including the value of bringing various strands together, but the novelty of it all is unclear to me.

A final thing here is "what about Lochner?" Chief Justice Roberts sets up a drinking game there by repeatedly citing that case. Again, we are talking degree here.  It is not apparent that he is against a "right to marry" as such and we are back to "what about coverture" etc. regarding the current scope of such a right.  The problem of Lochner, or a primary one at least, was its breadth. Some "right to contract" was not disputed by at least eight justices.  The Supreme Court could have rejected the couples' claims here and still have to face the continuing problem of the proper contours of constitutional limits and the Roberts Court is not that minimalist there. Shelby, anyone?

The favored approach by the writers here is to think of some "anti-subordination" principle or something to show why equal rights is appropriate in this case. So maximum hour laws were valid to protect the unbalanced relationship between employer and employee. Others would use some economic/non-economic liberty approach. Or whatever. I find the whole thing somewhat tired since there are various reasonable ways to differentiate here and again difficult questions will arise requiring value choices and so forth to be made.  "What about Lochner?" was raised in Griswold v. Connecticut too and even campaign finance cases.

Anyway, like many an article, the journey here is worthwhile even if certain details are not of my liking. And, the SSM opinion is a landmark case, including one where certain basic principles are expressed well with likely long lasting effects.  But, be sure, some future case will try to cabin things as even this case did regarding "marriage" as compared to some other "liberty" covered in Glucksberg. As the first article notes, this wasn't overly convincing though even there probably somewhat so (easier to expand on "marriage" than something like physician assisted suicide though some general right was appealed to there as well -- see, e.g., Justice Breyer's concurrence). Again, nothing new under the sun.

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* A somewhat unbalanced  artificial approach might get you somewhere else.  On that level and regarding the same case, see here, an example to me of the unreasonable commentator.  This is a pet peeve of mine, one arising out of general concerns  The basic problem being that a person in strident tones assumes a questionable strong argument is being made and ridicules it.

A better approach would to provide a more sympathetic interpretation, especially since just what is intended is unclear and at times the response is the party that comes off as more unreasonable.  That is, misreading the person as well as wrong on the merits -- a double whammy.  The reader is left to examine both sides (and comments) as applied here, but the professor imho is not a first time offender here and is of the type that stridently keeps on digging.   Pushes my buttons.

Odds and Ends

This is prime '40s family fare that you can honor for the skill of the effort including the woman who plays her mom (deserved that Academy Award). Yeah, that rather tall looking older sister is Angela Lansbury. Lovelace seemed okay but bored and turned it off half-way thru. Checked out the audio of the "lost" Harper Lee novel since Reese Witherspoon did the honors. Good choice but not really interested in hearing the whole thing. Still, first part of novel again was pretty impressive. Best part along with some anecdotes.

Steel Seizure Cases

 
Have had a lot to say about past Landmark Cases and already had an entry for Brown v. Bd. Somewhat less to say about this one though it is an important case, of course, and the segment was overall interesting and well discussed. The Vinson Court itself is somewhat of an also ran, a time of transition from the New Deal and WWII / the Warren Court.  There are a few important cases there, including the opening gambit of the modern day Establishment Clause cases, race cases like the restrictive covenant issue and key Communist cases. But, like more than one Truman appointee (Burton and Minton are particularly forgettable), think many don't give too much concern to this era.

Anyways, the basic conflict here was that Truman deemed it necessary to seize steel mills during the Korean War because he feared an inability to settle a dispute would lead to a strike dangerous to the war effort. Justice Breyer discussed the matter in his latest book, providing a look at the President's mind-set.  It turned out that after Truman lost that a strike did occur, but the parade of horribles Truman feared did not seem to appear.  Still, how was Truman to know?  Hindsight is 20/20 and all that.  And, Truman figured he had a strong case, various appointees on the bench plus the others were Democrats and Vinson reportedly told him it was okay.  Imagine his shock when he lost 6-3.

Justice Black wrote the opinion of the Court but each justice in the majority wrote his own opinion while the Chief Justice wrote for the three dissenters.  Black felt it fairly simple:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.* 

 Justice Douglas appears to have had an opinion most comparable. He argued that the seizure of property was a legislative function, particularly since Congress needs to provide the funds to compensate. There might be special wartime seizures in connection to military operations but that would be a different matter. The other justices, as Justice Frankfurter noted, felt "the principle of separation of powers ... more complicated and flexible than may appear" from Justice Black's opinion.  Their approach was more tied to history and the fact that Congress specifically addressed the matter at hand, in the eyes of the majority, they specifically decided not to give the President the right to handle labor disputes in this fashion. Thus, we have Justice Jackson's now famous three tier approach applied here "at the lowest ebb," since the Congress didn't leave the matter open.

And, unlike something like directing a battle, this is not something where the President has solitary power. As Justice Burton argued: "controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency."  Justice Clark said somewhat similar. The dissent argued that the President as commander-in-chief could seize the mills to successfully address a wartime emergency.  Various precedents, contra Justice Frankfurter in particular, were comparable.  There was an opening or the President did have executive power to even meet Justice Jackson's third tier. 

As noted in the recent DeShaney post, ultimately, this is a matter of judgment, line drawing in separation of powers.  More than one justice, with an eye on WWII in particular, was concerned with the limits of executive power, here in a specific domestic sphere and not even in the midst of a declared war.  In time, the power of the President seemed to be paramount, Congress not defending its sphere as much as here. In fact, in various cases, Congress seems to want to give the President more power than he (so far) might want. The detainee cases in recent years was a matter of the judiciary overruling not only the President but ultimately Congress to some degree.  Some limits for internal matters can be found such as Bond v. U.S. limiting the reach of the chemical weapons law or the consular notification death penalty cases.

Well, I did have a decent amount to say after all. A final word -- among those arguing the case was John Davis, who defended segregation and Arthur Goldberg, who later was on the Court plus had a later infamous oral argument post-career that people found rather horrible. Here, however, it is said he did a very good job.

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* Apparently, going by Justice Black's opinion a few years earlier, said "job" does include deciding to detain over a hundred thousand presumptively loyal  Japanese residents, 2/3 or so citizens.

Tom Coughlin Has To Go (either way, NYG Redefined "Loser" this season)

Creature from the Black Lagoon

Pretty good Svengoolie film last night though the victims (humans did invade his territory -- how did the woman scientist figure the creature was a "he" though? before he carried her away?) were standard -- two natives and two ethnic members of the crew plus the too greedy scientist. Another extra guy of no real interest was just hurt. Nice b&w look.

Massachusetts Pastafarian Wins Right to Wear a Colander in Driver’s License Photo, Thanks to Humanist Group

ETA: The Supreme Court in 1985 heard a case involving a woman who refused to have her picture taken for her driver's license on religious grounds, but ultimately was evenly divided. Thus, her own claim was upheld, but it had no precedential value. The question probably arose under state or federal RFRA rules by now. 

Interestingly, the vote was originally 5-3 against her and a draft majority opinion pre-Oregon v. Smith that provides more moderate approach was written.  The public nature of the license, lack of a criminal penalty and non-individualized exemption (cf. unemployment compensation) were factored in.  The neutral and non-"hybrid" rule not the only line. Intriguing approach.

Miller said, "As a member of the Church of the Flying Spaghetti Monster, I feel delighted that my Pastafarianism has been respected by the Massachusetts RMV. While I don't think the government can involve itself in matters of religion, I do hope this decision encourages my fellow Pastafarian Atheists to come out and express themselves as I have."

Massachusetts generally bans head coverings for driver's photos except for medical or religious reasons.  The manual linked there notes that even there the covering must not hide facial features, leading me to wonder how they handle veils.  This led to a member of a group that is often more of a parody of religion (the reference is often made online in comments to ridicule religious belief or claims for exemptions) but let's grant that lines can be hard to draw there to ask for an exception to wear a colander on her head in the photo as an expression of her own religious belief.

Her request was open to some ridicule, which is not surprising, but I'll take it seriously.  For one thing, it is fully benign in this context -- the colander she is wearing does not cover her facial features and does not even cover all her hair (she wears in long).  Compare this to the third party harm and bother that is now back in front of the Supreme Court regarding contraceptive mandates as to employees or various cases involving prisoners etc.  Religious exemptions for "serious" religions are myriad too and can cause a lot more difficulty than as applied here for reasons that might to many of us seem somehow absurd. 

The exemption does seem to apply to her.  It is true that it does not seem to be mandatory to wear it as compared to what some think about a yarmulke or such.  So, for purposes of "substantial burden," again if we apply this seriously on both sides (e.g., someone might pretend that it is a big burden on their sense of principle when it really isn't), it isn't the same thing.  But, the exemption does not seem limited by that and the "facial features" limit shows not much is really at issue here. Some do not like religion being singled out, but sorry, that's old news given the First Amendment. And, religion is a core aspect of human society and such, especially if seen in a broad sense as conscience and belief.  Respecting her can help others respect that principle.

The woman argued for a sense of equality since other religious faiths were allowed an exemption. On some level, this is a bit too much for me. Again, for them, it is likely that they usually wear some sort of head covering. It is not like someone by choice wearing certain religious garb or symbols like a crucifix that they might also choose not to wear or take off at certain times without an issue. Atheists and others without beliefs some think of as "religion" have certain beliefs and practices that can fall within "religion" in some sense and it is important to respect it. Thus, e.g., couples have ceremonies to marry that have a sacred character even if God isn't involved. And, these ceremonies might have aspects some find silly, even perhaps a Pastafarian aspect.  But, it is a special thing -- a way for them to carry out a special life event their way.  Such is their right.

Wearing optional garb in a driver's license photo is not quite of that caliber and it isn't religious favoritism to say so. The point holds again if someone wanted to wear an optional religious head covering of some other sort or a cultural one for that matter.  The same applies if some public school had a uniform though I'm not that gung ho about school uniforms as such for public schools in general.  Perhaps, a person likes to wear their cultural colors.  And, generally speaking, they should have the right to do so, including at jury duty or something.  But, this is not quite the same thing as a conservative rejecting a school uniform as not covering enough pursuant to proper obligatory religious guidelines for women (or men in certain instances).

So, kudos for her right to wear her religious head garb of choice here, but let's have a bit of perspective about the whole thing. 

RIP "Poor Joshua"

Whatever childhood Joshua DeShaney might possibly have had ended at the age of 4, in the early spring of 1984, when his father delivered the semiconscious boy to Mercy Medical Center in Oshkosh.

The Supreme Court deals with law and we are sometimes told that "natural sympathies" should not factor in here. This is a somewhat exaggerated statement of reality in various respects.  Humans, not machines, decide the law and nonrational aspects of human decision-making is involved here. The article in fact argues that such aspects might advance reasoned judgement; regardless, law applied by humans will involve such things. It won't merely be the artificial purity some argue, often selectively so. We saw this as well with the debate over empathy when Sotomayor was up for confirmation as if that sort of thing was suddenly part of the equation c. 2010 or only something liberals do.

True enough that applying the law is not just emotion and requires some hard choices that go against our sympathies. It remains true that the Constitution, for instance, speaks in its Preamble regarding "establishing justice," not merely "law," so the talk some time back of "law plus" is a bit confused.  We are concerned with "justice," a complex matter.  For us, the LAW of the land involves some degree of justice.  It is not an either or affair as some might argue, using at times a tired "it's unfortunate but true" tone, as if they sadly are being forced to do something they are choosing to do.  The choice might be correct but it is not totally compelled.

This commentary is inspired by the death of Joshua (DeShaney) Braam in his mid-30s as noted at the top of the page, best known perhaps as "poor Joshua," in the words of Justice Blackmun. Before the days of ready-made Internet opinion access, I got a taste of this case as part of Peter Irons "May It Please The Court" series (we are talking cassette tapes here) in which the lawyer for the mother also added a few words in the introduction tape (Sarah Weddington of Roe also was involved there). We now have easy access to the whole opinion and oral argument (link provided).

If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.

This was a tragic case. Joshua was a young child who was a repeat player in the child protection system and it was alleged that the state should have known at some point that he was liable to be severely injured by his father as he eventually was. It was not merely that the state did not provide protection but a "special relationship"* of some sort was formed and in effect he was under some degree of state oversight comparable enough to a child in foster care or a prisoner for liability to accrue. The Supreme Court (6-3 with Stevens concurring without comment) disagreed -- the child was merely put back where he was taken temporarily.  Bluntly:

The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The dissent argued this is a bit too blithe -- the state set up a child protection system and state law in fact entrusts them with the protection of the child, not merely self-help. And, once "the State actively intervened in Joshua's life," a certain responsibility arose here.  If nothing else, and this is where Justice Blackmun's more personal dissent comes in, a choice is being made here.  The bare text of the Due Process Clause is not clear on what is demanded and "may be read more broadly or narrowly depending upon how one chooses to read them."  Some of the questions in oral argument suggests the possible horribles there.  The logic of the state case would be even returning Joshua when the state should have know a crazed killer was in the house at that moment would not breach due process or police officers blithely watching a rape.  At some point, lack of state protection goes too far. 

This very well might not have helped at the end of the day -- to get the federal courts involved enough to truly interfere and/or accept money damages  some high level of wrongdoing is warranted here, but opening the courthouse door is another issue.  The federal government had time to speak to that -- it cautioned that this was not an ideal issue for the federal government to handle.  And, that is a respectable statement up to a point.  The state tort system is of some help though it only would offer a small amount of money for what here would be a lifetime of expensive care (the obituary notes that eventually a third party adopted him). But, like prisons and other state agencies, at times a basic federal floor is warranted.   

And, natural sympathy will be involved here too, putting aside that it is more acceptable when a separate dissenting opinion makes the point (such opinions traditionally more likely to be personal).  Reading court opinions for some time now leads me to note that they are not purely some sort of Vulcan rational process with no emotional sentiments about the parties and issues involved.  The care not to let us be wrongly misled here also often tends to have a selective character, something for the other side.  Such judges repeatedly (people like Alito, Scalia et. al.) show their sympathies and empathy.  On some level, this is to be expected though it's a matter of degree.  Within proper limits, appropriately so. 

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* This case was particularly clear because the state harmed the parent/child relationship enjoyed by the mother though as the opinion notes the father had custody here so if the state kept the child from him wrongly, HE could have sued.  

Tomboy

Not the French film about a girl acting like a boy, which was good, the 1980s flick. Betsy Drake's death being reported brought it to mind. Last half is fairly boring but first hour is impressive throwback. Cheesy, gratutious nudity (amusingly handled) and actually decent (both acting/likable) lead and bestie. The actress later had a small role in multiple Saw films.

Is it Spring Training Yet?

Daniel Murphy (a bit on his wife) rejected the single year "qualifying offer" as expected though took to the last minute to announce it. Made sense given his likely value, a value that leads me to think the Mets should re-sign the guy, especially with David Wright questionable, Duda streaky and 2B apparently now up to a rookie. Assumption is he is gone. Sad.

SCOTUS Takes Abortion Case

First order involved this striking 7CA opinion, but after the conference, the big news was taking the Texas abortion case. Mild interest given to districting case; none to earlier order appointing a special master. I'm somewhat optimistic (comments) and suspect some split ruling that is somewhat less earth shattering them some commentary suggests.

NYJ Blow A Gift Opportunity To Come Back From 22-3

Deserved to lose given how many gift points they gave up but just screwed fans who by now should know NY teams will play with them by being yards from coming back. Then, defense failed them at crunch time. Why am I still so aggravated? At some point, it's expected.

Ash vs. Evil Dead

I saw all three of the original films though couldn't get into the more serious remake so this is of interest. Nice to see Bruce Campbell and Lucy Lawless on Colbert & back together in general from their Xena days. LL wore some tight white Sharon Stone number that was rather attractive. Unfortunately, don't get that channel at the moment.

Free Speech In Its Forgotten Years

Other than a few matters, pre-20th Century discussion of Bill of Rights matters is few and far between. This helps by covering the period from 1870-1920s in respect to free speech. A bit too academic at times, it is an interesting and fairly comprehensive look with special focus on sexual matters (including free love), workers and WWI dissent. It was written in the 1990s; wonder if anyone took him up on the pre-1870 chapter of the story.

Best Way To Honor Vets? (see tag)

RIP Brittany Murphy

Today is the actress' (d. 2009) birthday. She was good in various things but her best role was "Luann" on King of the Hill, where she played the busty and naive niece of Peggy Hill, but with a good heart and some smarts hidden under a somewhat dim veneer.

Korematsu v. United States

The Landmark Cases episode this week focused on this case (Peter Irons and Korematsu's daughter as guests) though it is best to consider three (or four, one a companion case*) Japanese Internment Cases here. Irons has written much about the people involved here and later on had an important role in having the three prosecutions reversed in the 1980s. 

The overall theme here was a bunch of honestly progressive leaning judges (as Irons argued, Chief Justice Stone was first appointed by a Republican, but he wouldn't be one today) going along with a rank violation of civil liberties with some clear hesitance.  It might be seen as somewhat as stretch to add that last part, but reading the cases -- with various concurrences and in the lead one here three dissents -- there were caveats, attempts (rather hard to take seriously at times) to limit and various passages that could be used later on to protect civil liberties. The point holds that over a hundred thousand loyal Japanese Americans, more than three quarters citizens, were interned in concentration camps for around three years.

After Pearl Harbor, it was determined that the Japanese would have to be removed from the West Coast. This was a disputed matter including the head of the FBI being against the idea. Internal debate in the FDR Administration -- reflected again by various opinions written by his appointees to the Supreme Court -- helped provide Peter Irons evidence that convictions in the cases here rested on illegitimate grounds. As Justice Breyer noted in his latest book, even the brief to the Supreme Court in this book had a surprising footnote that the military report justifying internment was not being relied on except to state the facts of the process.

The first Supreme Court case in the bunch, decided in mid-1943, dealt with a curfew requirement. It gave the President a broad power to wage war successfully and argued it was reasonable to suspect the Japanese specifically.  The irony that racist policies furthered the insular nature of the group was not focused upon.  There were three concurrences.  Justice Douglas, who Peter Irons noted at first was going to dissent in Korematsu. spent a lot of verbiage to justify his vote, basically based on wartime emergency conditions. He suggested that individualized hearings -- when time allowed -- might be warranted.  Rutledge (who Stevens later clerked for) briefly noted he didn't think military orders here had total discretion, free from judicial review.  Murphy, who had to be talked into joining, spent most of the time saying how bad the action was. The companion case is noted in the footnote.

Korematsu itself accepts military necessity but tries to cabin the reach. Justice Roberts (of "switch in time, saves nine" fame) in dissent ridiculed the idea that only the assembly order was at issue. They were being assembled to go to internment camps (the majority felt "concentration camps" had an ugly connotation and it was unfair to use that term) and he had no right to go anywhere else here.  The majority introduced "suspect" classifications for race though denying racism was the incentive here:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.  ...

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.

Murphy disputed this on the merits.  Roberts had a nice firm and honest dissent on the rights of citizens.  Jackson spoke of the bill of attainder be applied here and didn't want to dirty the hands of the courts by legitimizing it.  Realistically, he noted, military actors will do nasty things in wartime that the courts can not stop, but here they were brought a case to decide.

Meanwhile, Frankfurter concurred to point out that various opinions showed that even in wartime the courts had the power to determine the legitimacy of governmental action, but it was proper here. This is worth noting with the "laws become silent in wartime" maxim and an idea that at least here it was true.  There was a kernel of concern even here, with past episodes including the Civil War noted, of judicial review being present. It might be deemed but an empty platitude here but cases can be found where that level of cynicism should not be taken all the way.

The shame of it all is aggravated because the case was decided late 1944, purposely after the election.  The FDR Administration already basically determined there was threat of sabotage etc. and was ready to start releasing the internees.  In fact, the Court also decided Ex parte Endo at the same time. Justice Douglas wrote a rather remarkable opinion (again Roberts wouldn't buy it) holding that on statutory grounds there really wasn't authorization to inter anyone loyal, which the government here did not deny.

On some level, looking at the bare words of the order involved here, it did not specifically authorize this, so perhaps this is not without some basis. The idea is that if they were going to deny liberty like this, it better be crystal clear. But, there is a level of absurdity here given everything involved, including funding that clearly was based on knowledge of what was going on. Murphy reaffirmed he found the whole thing unconstitutional and noted that Endo -- if she was loyal and all -- should be able to go back to California, but that was still blocked.

In Hamdan v. Rumsfeld, the separate opinion of Souter and Ginsburg noted a Cold War statute left open a repeat, but a later law repealed the open-ended law "out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry." The plurality compared its non-"blank check" rule with the WWII precedent. But the justices back then believed they weren't doing that either. The difference a matter of degree, if a serious level given the scope involved. Korematsu himself offered amici briefs in such cases to remind.  The opinion appears to be still good law, leading Peter Irons and others to ask the Obama Administration to use a standing case as a means to deny its staying power, which it did not do. 

We have our own issues during the age of war on terrors, enemy combatants and so forth.  The Japanese Internment Cases serve as a warning as well as something of a suggestion that even at our worse times, there was some concern for civil liberties. 

ETA: I added some more material. One ironic thing to add is that where the Japanese did directly bomb -- Hawaii -- was treated differently partially since the size of the Japanese population made internment so difficult.

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* The lower court had some strong things to say about the limits of military justice in wartime but relied on the person losing his citizenship.  It actually held that the curfew would be unconstitutional as applied to citizens.  The USSC noted his citizenship was not in dispute so sent the case back to address a punishment resting on that ground.

The Supreme Court here did not treat citizenship as different nor in Ex Parte Quirin (military commission for sabatouers, one or more who were American citizens). See also, recent detainee cases like Rasul v. Bush. But, there is some difference here though "persons" (see, e.g, the Due Process Clause) have enough rights to cover the tens of thousands of non-citizens (basically since they weren't allowed to naturalize at the time) being mistreated. Cf. Rehnquist's book on justice during wartime that suggested as applied to aliens the cases might have been correct.