The Autobiography of Malcolm X

I read a book about Roots, which was written by Alex Haley, who wrote an extended epilogue to this volume. My copy also had a foreword by Malcolm's oldest daughter. The book as a whole was quite readable, if somewhat repetitive. Don't trust all of his citations of ancient history. Tragically, he was assassinated right when he was taking a more open-minded approach. But it was like it was fated. 

DALLAS v. STANGLIN

Stanglin was released on April 3, so was part of a list of cases on a website that provides day-by-day summaries. The case involves a law that "authorizes the licensing of 'Class E' dancehalls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation."*

I have written various posts on this blog dealing with privacy-related cases, particularly involving birth control and abortion. This case came up a couple of times, including a review of a book on dance. 

The challenger ended his oral argument in this case on a privacy note, though freedom of association was a key issue. The lower court cited precedent to show that "social" association is included there.** 

The right to freely associate is not limited to "political" assemblies, but includes those that "pertain to the social, legal, and economic benefit of our citizens."

The Supreme Court overturned. It cited a recent case limiting "intimate" association to small groups (the dance halls had hundreds of people). The case, the majority by Chief Justice Rehnquist argued, also did not expand "expressive" association to social dancing. 

Rehnquist applied "social" narrowly to mean "nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics." That's dubious. 

Justice Stevens (with Blackmun) agreed that the law was legitimate while noting in an opinion concurring in judgment that:

the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere — is an aspect of liberty protected by the Fourteenth Amendment.

He did not provide an analysis for this conclusion, but it is correct. We have a right to marry, for instance, and that entails meeting people in various contexts on the road to marriage. 

(I'll toss in that even non-expressive athletic dancing is important to personal wellness to a degree that it is not a trivial aspect of personal freedom.)

The opinion is partially concerned with limits. Anything -- we saw this with the conversion therapy case -- might involve expression. 

We express ourselves in some fashion by basically anything we do. Dance halls are also not the first thing you think about regarding the "right to association." 

Nonetheless, people go to dance halls quite literally to associate. They meet people and interact. They express themselves. Dancing, including "social" dancing, is a means of expression. The importance of dances in Jane Austin novels comes to mind. 

A social gathering at a restaurant is also not what many people would associate (ha) with the First Amendment. But it has some of that character. We meet and talk. We associate. We share ideas.  

I found it troubling years ago, and still do, that Brennan and Marshall just went along with the open-ended language of the majority opinion. The concurrence provided a way to underline that there were constitutional interests involved. 

They probably thought the case was not worth worrying about. Easy cases, if this is one, however, leave open the possibility of troublingly open-ended legal conclusions. The ability, if sometimes taken too far, to regulate minors was a way to uphold the law.

Likewise, the regulation of business establishments, including those with a large number of people, might warrant freer rein. The law did not deny teenagers the ability to dance with adults. It regulated a certain type of for-profit establishment of a certain size. 

Stevens argues that this law, if anything, furthered the constitutional rights that the class of teenagers had. No need to say they have none (other than some general right against arbitrary treatment) in this context. 

A question by Rehnquist suggests a red flag. Could the government (when this could be criminalized) ban two men dancing to advance anti-same sex sodomy laws? Limits of gay bars, including bars with large clientele, had First Amendment and right to privacy implications. Social activity = rights.

Social dancing should not be treated on the same level of constitutional scrutiny as the regulation of eyewear and other "rational basis" cases. The case is a troubling overreach and unnecessarily so. 

Justice Brennan was careful not to even let cases involving alleged child pornography (e.g., Osbourne v. Ohio) be used to limit the right of privacy and other constitutional rights. His silence here was dubious. 

 ==

* The enterprise appears to have arisen from another daily SCOTUS history project, which provides single moments involving various subjects. It always not case specific. Some key cases are not chosen.

I comment there now. A recent comment on a school prayer case received more than usual attention. I stopped replying since I think I said enough. 

** Griswold v. Connecticut cited free speech and freedom of association cases to help show how privacy is necessary to protect constitutional rights. Multiple cases also protect, if to a somewhat more limited degree, the constitutional rights of minors. 

Sex of Comments

People commenting online often either have masculine or neutral-sounding handles. I generally assume, especially if they are assholes, that these people are men. But there are enough shitty people who are not men that I probably assume too much.

Sigh

I enjoy commenting online. I have done so for decades now. But some people repeatedly cannot handle discussing things reasonably. They often, sarcastically, "translate" what you have to say in ignorant ways using a biased translator. They make snide remarks based on ignorance. They don't want to or have the ability to honestly engage, no matter how much you work at it. It is so tiresome. 

SCOTUS Watch

Order List

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

After a brief order list, Sotomayor (with Jackson) spends some time explaining why the justices should have taken a criminal justice case. Finding troubling criminal justice cases that suggest the arbitrary nature of the criminal justice system is her thing.  

(The opening link provides more details) 

Opinions 

Happy Trans Visibility Day, which once was allegedly an anti-Easter plot or something, since it coincidentally overlapped that year. By chance, the justices decided the conversion therapy case.

Justice Gorsuch, having the opinion (which, like multiple other opinions he had in cultural war cases, was procedurally dubious), was a bad sign. Worse, only Jackson dissented. It was a good dissent. 

(Jackson used a Calvinball ruling -- see Breyer's angry dissent -- to her benefit. Okay. But realistically, that is how it is going to be. Selective application.) 

The conservatives upheld anti-trans care policies, even though such policies clearly have ideological motivations. This time, when trans people are protected, the regulation is suddenly thought control.

The law involves the regulation of people with a state license to practice medicine and only covers minors. So, it is not about the conversion therapy of adults or therapy by unlicensed people, including clergy. 

Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Not good. Kagan (with Sotomayor) concurred in full, citing an alleged limitation. But, as Jackson noted, the limitation in context is fictional. If they concurred strategically, Gorsuch's language is far from restrained.

The opinion says strict scrutiny is required. Some misleading coverage aside, the Court did not strike down the law. Colorado has a higher test to meet. 

But that is usually an uphill battle. Gorsuch's rhetoric, as SCOTUSBlog flags, is also not reassuring:

But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

The possible Robert Kennedy Jr.-ing of medical care is not ideal. I say that even if the opinion leaves open a way to uphold this law (strict scrutiny met) or to craft another policy that will protect children. 

Kagan, in the past, disliked "Lochner-ing" or the weaponizing of the First Amendment. Blah. 

Upcoming

The conference was on Thursday, given the Easter weekend. Monday will be an Order List. They then take a two-week break until April 17th. 

A media advisory regarding an oral argument that will likely have more demand for sitting flags the change at the top of Homeland Security. 

(ETA: The SCOTUS PIO released a statement on a news story involving Alito going to get checked out -- he is in his 70s, so this wasn't that notable on its own -- but didn't post it on the website. Yet again.)

Birthright Citizenship Trivia

Trump showed up for the birthright citizenship oral argument (left after the solicitor general was done), which would be the first time a sitting president did so. Notably, he picked this case to do so.

Talk about this being an "attempt to intimidate the justices" seems a tad overblown. Separation of powers? Eh. Members of Congress show up. 

Nixon and John Quincy Adams argued cases. Lincoln, too (a more forgotten detail). Not while in office, of course. Taft became Chief Justice. Ditto. 

John Marshall served as Secretary of State briefly after becoming Chief Justice. The Constitution does not -- unlike for members of Congress -- clearly ban that sort of thing. Justices also served in diplomatic roles. Robert Jackson was a prosecutor at Nuremberg.

Two Books, Same Author, One Better

I mostly enjoyed this book that combines the anti-war activism of Coretta Scott King with the ultimately tragic story of a Medal of Honor winner (PTSD and a tragic death). Quick reading, smooth narratives.

The King story did sort of peter out. Her anti-war work was important. The author's discussion about it did become repetitive at some point. And then, the war is over, and we basically skip to her dying. 

I found the subject matter of this book interesting.

The publication of Roots and the airing of the miniseries in the mid-1970s were major cultural moments. Alex Haley was also important for his work on the "Autobiography" of Malcolm X. 

Good subject matter.

The book, which is shorter by over one hundred pages than the most recent one (putting aside many photographs), however, is harder to read. I also was left wanting, including regarding a short chapter summarizing the book as compared to a more detailed (up to a point) chapter of the miniseries.

The book got too into the weeds of Alex Haley blathering about how great the book would be. The book was okay, but the subject matter warrants a better presentation. 

I never read either book or watched the miniseries. 

ETA: I found Strikingly Familiar (plagiarism) interesting and written in a down-to-earth fashion.

The book there is an uplifting book about a gay couple who adopted a child. The book does not explain why it was published nearly 15 years after the end of the events covered. The baby was found in 2000, so he must be in his mid-20s by now. 

Another version of the story was released in 2020. I suppose that makes some sense since it would be shortly after Kevin is an adult. That book is not referenced in this volume. I find it all a bit weird. 

SCOTUS Watch: Sotomayor Dissents a Lot Edition

Order List

There was a long order list today. This implied an unsigned opinion and/or dissent. We had both. 

A brief, unsigned opinion (per curiam) held that a lower court incorrectly didn't provide qualified immunity in an excessive force case. The justices argued that precedent did not settle the question. The liberals disagreed.

Qualified immunity is a major concern. Congress can and should address the situation. Too often, even that ability to try is removed. 

This also should be disfavored from a historical point of view. Things have changed over time, so I don't just rely on that. But some judges allegedly rely on that a lot. Allowing juries to decide would also be democratic. Now, judges too often close things off.

Sotomayor had all three dissents. She also argued for the liberals that the justices should have taken a case involving DNA evidence in a capital case. 

DNA evidence isn't magic. The government fears people will demand DNA evidence, here perhaps tainted in some fashion, and too much will be made out of it. But DNA evidence can also be powerful. A possibly tainted execution is also a tiebreaker. 

A third case involving denial of cert of a case involving alleged retaliation against an online journalist was a solo effort. That case had some support from conservatives below (Judge Willett was cited). Sotomayor provides a sympathetic reading. She also flags an apparent circuit split, making it a helpful "vehicle" for SCOTUS review.  

I'm not an expert. I don't do "deep dives" in these cases. For instance, in the capital cases, arguments are flagged that might not hold up. 

I cannot tell you if she is right that the circuit split is "cert worthy." It is important to note that the Supreme Court is more than a "court of error correction." A circuit split is a major reason for taking a case. 

Sometimes, there is a case that troubles one or more justices on the facts. They might flag that the case is not "cert worthy" while still noting their concern. They might also note the case raises issues that the Supreme Court should take up in a different case.

Meanwhile, Alito and Gorsuch did not take part in cases addressed in the Order List. As usual, we don't have any official explanation for why. Only Kagan and Jackson do that. The others should join them.

Oral Argument

Some of the conservatives were on vibes during the oral argument regarding the regulation of mail-in voting. This time, some Republican Southern state defending their discretion to regulate had a more sympathetic hearing from the liberal side. 

Rick Hasen has more.

Upcoming

We should have one or more opinions on Wednesday.

ETA: Sotomayor also appeared to be on the dissenting side during the oral argument in an asylum case. 

Gorsuch had his first opinion (only Alito dissented). Thomas wrote a copyright opinion (Sotomayor concurred in the result with Jackson). 

... and we will have another opinion day next week.

More Illegal Boat Strikes

The ongoing illegal monstrosity that the Republican Congress is just letting Trump unconstitutionally carry out in Iran should not lead us to forget other things.

A U.S. military strike on a vessel suspected [SUSPECTED!] of hauling drugs prompted the rescue of a sole survivor, the second known instance of a successful recovery in a campaign that has killed dozens of people.

U.S. forces struck a “low profile” vessel Thursday in the Eastern Pacific transiting a common smuggling route, according to a post on social media by U.S. Southern Command, which oversees the ongoing boat strike campaign against alleged smugglers in Latin America. The strike was the 46th since early September, officials said, totaling 159 people killed.

This is still going on. 159 people killed. Murdered.