PPACA In Action

My recent birth control discussion is connected to new rules pursuant to the PPACA requiring it to be part of health insurance plans. Another discussion, accepted by two who oppose the "mandate" on policy grounds, provided in depth discussion on the fiction of the "novelty" of the inaction/action distinction.  An opponent again wrongly noted that everyone who resides in the U.S. is covered by the requirement.  The official Maddow blog also flags an account that shows the good things that have occurred thanks to the law:

The health care law (1) is combating fraud and abuse, which in turns saves Americans quite a bit of money; (2) has brought coverage to 2.5 million young adults; (3) is delivering major savings to seniors on prescription drugs; (4) is giving a boost to small businesses through ACA tax credits; (5) has slowed the growth of Medicare spending; (6) has provided new treatment options for cancer patients; and (7) has offered new coverage protections for those with pre-existing conditions.

This is but an incomplete listing of things now in practice, more due to kick in eventually, including the actual "mandate," which even if it was struck down could be replaced before it was due to kick in. An extended debate is possible there, since it is due to begin in 2014, and then only the first installment.  I continue to find those who belittle what was done here because political realities made a better law unlikely at best woefully misguided.  Push all you want, but realize the good that was done too.

Tax season

Tax season begins and NY has a new "mandate" for those who use "software" (a bit vague as to if use of fill-in forms on the state website counts there) and have broadband internet service -- e-filing. The more simpler two page form is also no more.  Tedious business.

"Ruling on Contraception Draws Battle Lines at Catholic Colleges"

The Obama administration relied on the recommendations of the Institute of Medicine, an independent group of doctors and researchers that concluded that birth control is not just a convenience but is medically necessary “to ensure women’s health and well-being.”

-- "Ruling on Contraception Draws Battle Lines at Catholic Colleges"

It is striking that birth control is in 2012 a dividing line. The leading Republican presidential nominees support "personhood amendments" that would declare fertilized eggs "persons" with legal and constitutional rights of unclear breadth.  I have spoken about the absurdity of this, something even voters in Mississippi agreed with, and it is [insert adjective here] that this is a major issue.  The fact that one side realizes that this is not merely a matter of personal choice and is quite different from abortion is appreciated and draws a line in the sand.

The Catholic Church is woefully misguided on this question and many who are deeply observant are well aware of the fact, have been since its tragic decision to reject proposed reforms in the 1960s.  This is not a matter of saying pregnancy is just a "disease" or about not respecting life.  It is about reality and reality is that the perfect can be the enemy of the good, akin to not lying to kidnappers.  

Some Georgetown professors question the wisdom of the university’s current policy. “I wish Catholic institutions would have more open conversation about how bans on birth control can increase abortion rates among students,” said Robin L. West, a law school professor. “Both are contrary to Catholic teaching, but abortion as I understand it is the graver of the sins, and certainly the greater injury to the fetus and the woman.”

The article, however, notes that when the matter was discussed in one forum, a head in the sand approach was followed. I am particularly supportive of the woman who organized a one day clinic after the health clinic at the  law school at Fordham University  would not prescribe her birth control pills.  I like her was "raised a Catholic and was educated at parochial schools," this sort of b.s. not focused upon.  In fact, to the surprise of my mother, a teacher noted that evolution is accepted doctrine. Apples and oranges?  I think not -- their position on birth control is as nefarious as creation science, more so in many ways. 

Fordham University (I passed the college just last night) isn't what many would think of as a Roman Catholic institution, at least one which would be so strict as not to prescribe birth control to law students.  I myself find too many Catholic doctrines misguided, but respect the religion as a whole in various respects too much not to be disappointed that contraceptives is treated like this.  But, the religion has just too many issues with sex and related issues to be surprised really. 

Anyway, harder questions about discrimination laws as applied to teachers and so forth, when students cannot get prescriptions in this fashion, some line has been crossed.  To make THIS a religious freedom issue is misguided in the extreme people.  If you want to follow this counterproductive doctrine, okay, but the Administration is correct.  Contraceptives are a matter of health, not just doctrine.  Cases like this underline the need for some sanity and if leading Republican presidential nominees refuse to be sane on the matter, they should not be taken seriously as credible candidates. Contraceptives should not be a Republican issue.  Serious Republicans realize this. 

As do quite a few serious Catholics.  Even some who would accept to some extent Catholic bigotry (insert nicer word here) on homosexuals draw a line here.  Including many with less children than necessary to draw up a baseball team. 

What's Wrong With CU?

Citizens United is the new Lochner, a somewhat misused symbol for the times.  A discussion raised an important point (Monica Youn) that I have made myself -- people might not be focusing on the right thing, even if they are on the whole correct (shades of Lochner, sorry David Bernstein*)  to be wary about the whole thing.  Ms Youn opposes the cocksure nature of the opinion ("remiss in performing its duties" if they didn't take the case then and there etc.), particularly on this:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

That is the money, if I may, quote.  Not only, as noted shortly above that legal conclusion (that pitcher didn't have a perfect game ... it sure looks like he got that 27th out, but the umpire didn't call it, so he officially does not), the "anticorruption interest is not sufficient to displace the speech here in question."  This would be strongly opposed by many, not limited to the majorities in state (the opinion notes twenty-six restricts the expenditures addressed here, using the figure to show the "limited" concern in place) and federal legislatures passing laws with this in mind.  This is so even if -- like many things -- you can't "prove" it in a court of law or such.  But, to not even be there at all?  Really now.

I continuously note, and Ms Youn calls out to Congress et. al. to do what they still can, that the opinion leaves open regulation.  But, as she notes, if it doesn't "give rise to corruption," what is the explanation for banning non-citizens to contribute here, particularly for certain subjects like US-Cuban policy in the upcoming Florida primary?  What is the point of disclosure law anyway if there is no real concern for corruption or its appearance?  It contributes information, sure, but why? It is a "less restrictive alternative," but it is a burden and to some degree limits associational privacy (see Thomas' partial dissent).

Scalia is more blunt and sees it as a necessary evil, just as speech hurts people's feelings and promotes nefarious ideas that has real harm:

It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics—if not indeed human nature

If this be "corruption," it simply is not the sort that the First Amendment allows to be barred by this method.  By his lights.  We hear of the power of the well off individuals controlling elections, but there is nothing novel about this. Chris Hayes this morning as much as another contributor on the panel I linked to above cited the billionaire (not a corporation) who is a if not the primary reason Newt Gingrich still has funds, but did rich individuals not do the same in the past, if in some different fashion? And, are we actually upset about it here?  People on my side LOVE the fact he is out there railing against Romney, providing an entertaining as well as educational means to challenge the presumptive nominee who otherwise would have much weaker opposition.  We rather a different conduit, but any port in the storm, if the real alternative in nothing much. 

Still, regulation in this area is valid and corruption and the appearance of corruption is a major reason why.  This cannot override First Amendment protections and even the dissent knows as much, supporting limited means, means that do not simply give no protections to "corporations."  The path to the right destination, however, is not to be taken under misguided assumptions on either side.  The majority is correct to respect First Amendment values, even when corporate spending is at stake, but getting there the wrong way still has problems. 

Life is complicated. 

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* In a new book, promoted at the blog he contributes to -- Volokh Conspiracy (fix the comment issue, please!) -- is promoted by him at times as a means to address stereotypes concerning Lochner v. NY, not some sort of substantive defense of its result.  That is, he puts himself out there as some sort of agnostic on the opinion while just concerned with opposing the stereotype of its opponents then and now. 

This isn't credible given his overall approach, down to the very title of the book: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.  Fact is, he is a libertarian and shares the overall sentiments of the opinion, though its authors did a lot less at the time for non-economic rights than he would.

The fact the criticism is off doesn't mean it is totally wrong and we should not miss the forest for the trees though if you miss a tree, it can be a problem.  Just ask those who drive into one.  The result is not pretty. 

Jane By Design

This new show about a teenager with a secret life as a Devil Wears Prada like assistant is a bit like a somewhat more mature True Jackson V.P.  It is a pretty good bit of wish fulfillment/teen angst, some pretty nice aspects if the usual bit too pretty boy characters.

The Closer

I am about caught up now, watching the sixth season, seeing the origins of a major subplot from latest one.  Started great with a new building and some amusing material, some familiar faces from current shows popping up along the way. Slips a bit mid-season.

Twenty Anniversary of Casey Preview

In honor of the 39th anniversary of Roe v. Wade, I listened to some abortion oral arguments, including Roe, Webster and Planned Parenthood v. Casey.  The latter of interesting for various reasons, including the website in question (not SCOTUS itself, which only goes back to last term; why not guys and gals?) includes the opinion announcement, including the Chief Justice reading a summary of his dissent.  Each justice but Thomas (though he asked questions back then) asked questions as well, so we got a bit of everything. 

The strategy of the Planned Parenthood attorney was to defend the strict scrutiny rule, not defend what she could under the somewhat lower protection that would remain from Webster. The appellate court determined the balance of the opinions there was an "undue burden" standard, rightly judging the ultimate ruling down to striking down (with Judge Alito dissenting) a spousal notification rule.  Kenneth Starr was on board to counsel the overturning of Roe and the state to whatever was necessary to uphold the law in its entirety.

The oral argument therefore started with a strange thing -- about seven minutes of the attorney talking about precedent alone, not the specifics of the Casey case itself.  Her strategy, especially with an upcoming election season, was a calculated risk and somewhat reasonable, since after all the law had stuff (waiting period and controversial informed consent) that the Supreme Court struck down already in two rulings less than a decade before.  The "informed" parental consent law was likely to be upheld, given parental consent was upheld with a bypass already, and was 8-1 (Blackmun, the sole justice left who voted against single parent consent laws, noting it was somewhat more intrusive than the ones upheld).  The spousal notification law was likely doomed too, since it had a paternalistic taint. The remaining medical emergency and record-keeping (even Blackmun accepted one of these) also were either of little importance or likely to be upheld.

There was a real chance too of Roe being totally overruled or a low level reasonableness test (which received three votes in Webster, Thomas providing a likely fourth; who knew about Souter?)  be put in place that would allow a slew of regulations.  Starr didn't want to go there, but could only say there would at least have to be a "life" exception.  No justice said as much, but the law at stake in Roe didn't have a rape exception.  Starr also basically bs-ed and said that the lower standard was reasonable since the right in question was novel.  As the ultimate plurality opinion noted, it surely was not -- both as a matter of choice in family life and as a matter of bodily integrity, it fit into a line of cases.  Each case had its own wrinkle, some including third parties, such as educating children or sex lives that are not ultimately limited to the two people in question. 


Rehnquist in dissent noted the difference (not anyone except White would have been a fan of the Griswold line generally) was the potential human life.  I suggest he ask Roman Catholics who oppose barrier birth control about that. And, why is potential human life a game changer given the breadth of the interest, including when cases protected privacy against things such as convicting alleged felons?  Past cases underlined that such questions of private morality could not do the trick, but again, except for White, they weren't a big fan of many of the cases anyways.  As to Scalia's appeal to tradition, various cases upheld the right to do things traditionally deemed illegal, down to purchase of contraceptives. After all, there was a federal law against sending them through the mails in place for years. 

The strategy was problematic because it made it harder to provide a true answer to provisions even under an intermediate test such as "undue burden." Gender discrimination, for instance, is looked upon with disfavor, even though it is not seen as problematic as race or when fundamental rights are at stake.  And, the spousal notification law fell on that ground alone.  As the opinions made clear more than previously, abortion as a whole is a matter of gender equality.  The "informed consent" aspect had First Amendment problems, particularly when applied (as O'Connor noted) to private parties like the women themselves.  It was coerced speech, though -- as the plurality noted -- the rules are looser there when it is a matter of professional regulations, especially if the material in question is "truthful" and not "misleading."

The PP lawyer in summary fashion spoke of the "biased" counselling and the problem of requiring some of it in certain situations (though information on the requirements of father could be omitted for rape victims, though that would require saying you are raped).  For instance, a previous ruling struck down a requirement concerning "the unborn child is a human life from the moment of conception," which is is more ideological than "truthful" per se.  The lower court here noted, however, that the law here* "is not an attempt to prescribe an orthodoxy in matters of opinion, and the information involved is reasonably related to the state's interest in ensuring that women have relevant information before having an abortion."  Justice Stevens noted separately here:

The counseling provisions are similarly infirm. Whenever government commands private citizens to speak or to listen, careful review of the justification for that command is particularly appropriate. In this case, the Pennsylvania statute directs that counselors provide women seeking abortions with information concerning alternatives to abortion, the availability of medical assistance benefits, and the possibility of child support payments. §§ 3205(a)(2)(i) (iii). The statute requires that this information be given to all women seeking abortions, including those for whom such information is clearly useless, such as those who are married, those who have undergone the procedure in the past and are fully aware of the options, and those who are fully convinced that abortion is their only reasonable option. Moreover, the statute requires physicians to inform all of their patients of "the probable gestational age of the unborn child." § 3205(a)(1)(ii). This information is of little decisional value in most cases, because 90% of all abortions are performed during the first trimester [n.7] when fetal age has less relevance than when the fetus nears viability. Nor can the information required by the statute be justified as relevant to any "philosophic" or "social" argument, ante, at 30, either favoring or disfavoring the abortion decision in a particular case. In light of all of these facts, I conclude that the information requirements in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i) (iii) do not serve a useful purpose and thus constitute an unnecessary--and therefore undue--burden on the woman's constitutional liberty to decide to terminate her pregnancy.

It might be a close case here, but are some cases where the "informed consent" rules would be problematic under the First Amendment.  Stevens also thought they were unconstitutional here under an "undue burden" test for the right to choose an abortion.  The waiting period rule also can be challenged on "undue burden" grounds, especially under various fact situations.  Stevens/Blackmun challenged the basic principle, since it presupposed the woman could not choose on her own to decide whether or not to have an abortion without more time.  This was a problem both on due process grounds and the equality principle to the extent it was targeted to women particularly.

The rejoinder would be that something fundamental was at stake -- the potential life -- but an additional problem on the other side is that for many locations, if you have to wait a day, it will be more than a day.  And, it might be hard and expensive (a matter of equality though wealth discrimination is generally acceptable to the USSC except in limited cases like getting a lawyer) to get to that clinic or hospital, in a few cases the only one in the state, even once.  The plurality opinion left it open in particularly burdensome cases that a waiting period might not be acceptable.  A few lower cases took that opening while others did not, especially when the law allowed counseling to be done over the phone, which should be quite possible in the age of the Internet more so today. 

In general, it along with "informed consent" was deemed a way to ensure the woman is fully informed and had time to think about the decision in question.  This has some logic though again the application can be problematic in various respects.  Some rule for abortion providers to be required to inform the client in a comprensive way is appropriate, since they are not all on the side of angels but are there to make money providing a particular service (though many providers are comprehensive), but also they should be able to have discretion to fit the counseling to the individual patient.  Without forced ultrasounds or talk of "unborn children."  These days of detailed warning labels and stock jury charges, flexibility is at times frowned upon, but abortion is particularly (wrongly) singled out in the health area. 

As with the gun laws in question in another set of controversial cases, however, the specifics of the matter was not given as much time as might be appropriate.  The justices were not free from blame here -- Kennedy and O'Connor was annoyed at the PP lawyer for her strategy, but nothing stopped them from asking her specific questions to force her to change gears.  Counsel is often given hypos that ask them to assume things they rather not assume and she could have been asked to defend (if possible) her side under an undue burden test.  Her basic sentiment appeared to suggest that they realized that would be a loss as a whole, which might be true to some extent, but as shown by the opinions, not totally so.  After all, the plurality spoke of "truthful" consent -- what about ideological or arguably misleading materials? The state attorney was asked about the coerced speech test and O'Connor was annoyed when the lawyer brought up a case involving advertising.

Casey as a whole is a good ruling in that it upheld the right to choose an abortion and provided a defense that is more comprehensive than in place under Roe. The lower level of scrutiny is problematic but generally workable if applied correctly.  Of course, the problem with a looser standard is that it won't always be.  The "trimester" scheme of Roe was replaced, but changing medical realities made it somewhat outdated as to safety (abortion much safer even into the second trimester) and as long as it did not override health concerns, some state recognition of the embryo/fetus is present throughout the pregnancy. Under Roe, that by itself could not be the purpose of a regulation until after viability, but it could be in cases of funding.  This in reality is a more serious burden than talk of "unborn children" during any abortion, even if that is problematic on its own.  Not being able to have an abortion at all because Medicaid doesn't pay for one remains much more of an "undue burden."  And, the basic message that unborn life has value is a major concern here. Some ways it is shown is problematic, but it's acceptable to take that into consideration before viability.

Interesting listening and reading, the issues will continue on for thirty nine more years and beyond.

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* The informed consent law here [Stevens and Blackmun split on what exactly was problematic]  is relatively mild though some of the written materials that must be provided on request might be problematic upon inspection, at times providing factual details that providers here might deem (correctly or not) untrue as well as containing various ideological content that they wish not to provide. For instance, would a wedding provider have to provide material counseling that divorce is sinful and providing a questionable parade of horribles as part of a "full disclosure" law.   The relevant section providing information on  alternatives:

(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.


"(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.


"(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.

As Blackmun notes, the way this is required to be provided can be an issue too, such as some sort of forced slanted film or requiring people to watch an abortion being done.  Again, the very term "unborn child" is a red flag for various people; does that specific term have to be used? 

Obama Quickies

SOTU: Didn't listen -- not big on speeches and economic stuff depresses me these days. But, the actual alternative is not a strong progressive, but tools. Meanwhile, Obama and the Democrats brought significant things for gays, health care, getting rid of Osama, etc.  (trial? be nice ... so would a NY v. NY Superbowl).  Overall, I'll take it.  Net, he did more than Clinton without being a butthead.  Meanwhile, the Supreme Court presence:  Elena Kagan,  Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and Chief Justice John Roberts.

Jan Brewer Gets Miffed: Gov. Brewer and Obama had a bit of an exchange. She should be appreciative since he after all basically gave her the job, she getting a promotion after Obama took on the previous governor for Homeland Security. Curiously, I never hear this mentioned.

Meanwhile, very emotional day at Congress with Rep. Giffords retiring, her friend (and glad to have her on the party's side) reading her retirement letter with great emotion.  The humanity of the situation is there either way, but it's particularly so when it truly seems she is a nice person and one of the rising political stars who could (will) do this nation a service. 

Dr. Pepper Ten

Who, I wonder, thought up this thing?  Hey, men, it's too fattening for women -- it's 10 calories!  An alternative to light beer, perhaps?

Roe Turns 39

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.

-- Roe v. Wade, 1/22/73

The GPS ruling and a discussion of abortion rights on Rachel Maddow last night reminds that a new anniversary of Roe v. Wade has passed, though these days, Citizens United (leading to misguided agreements like this) is the birthday boy of choice.

The main opinion in the GPS opinion noted that "invasion of privacy" is a central concern when determining the presence of unreasonable searches and seizures while Sotomayor noted how the monitoring "chills associational and expressive freedoms." And, as I noted yesterday, Alito's concurrence reflects his respect of privacy rights in various contexts.  There is a clear majority for the sentiment that the "privacy" in question is not merely a matter of direct invasion of a property interest or the "person" of the individual, but something more comprehensive. This is the "right to privacy" Justice Brandeis (and his earlier law article self) was thinking of and the basis of Griswold and Roe.* 

I think Roe largely turns on religious liberty, the question ultimately a matter of conscience.  The two young women involved in arguing the case is a telling example -- Sarah Weddington is a minister's daughter (Methodist) and Linda Coffee (who you hear little about) is a Southern Baptist.  Southern Baptists were more liberal on the question back then, guardedly accepting it as a religious liberty issue, if only supporting abortion in limited cases.  As one discussion notes:

W. Barry Garrett of Baptist Press wrote, “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.” Southern Baptist, Linda Coffee, commented, “Legal personhood is separate entirely from a moral or religious view of personhood...the Supreme Court decision does not absolve anyone of individual moral or religious responsibility.”

Rick Santorum can have his faith; just don't push it by law on the rest of us. This is something missed at times -- e.g., that same sex marriage doesn't force people to accept marriage any more than Catholics need not accept second marriages that they deem invalid per their understanding of Jesus' sentiments.  It might appall some that the government does not disallow what you deem sinful, but helps if one remembers that addressing sins by government fiat is not often the best path.  Selectively trusting the government here is a form of religious establishment and the best and more constitutional policy is to leave it to private choice. 

The opening quote, just one of many nuances missed by people who stereotype the opinion as shoddy without apparently reading it, also shows  the balance the right to abortion includes. Many abortion regulations, especially under the Casey loosening of its restrictions, are invalid or ill advised constitutionally and/or as good policy.  Regardless, the opinion does not allow "abortion on demand."  It was an attempt, probably too comprehensive at that point (on that level, Justice Ginsburg's past criticism is valid), to balance privacy rights with state interests such as health and protection of embryonic and fetal life. 

The ultimate balance will be left to debate and changing politics, but the basic ruling remains correct and of fundamental importance.  Basic control of one's body, decisions involving the family (including when to have one), matters of conscience, privacy, ones of particular importance for sexual equality and so forth are all involved, all not applied in an unlimited fashion, but in a balanced and reasonable fashion.  It is not surprising that it is the unreasonable party at the moment that rejects it.

Many attempts are made to weaken it, but the core of the ruling stands all the same.  Rights that are sorta "self-evident" do hold up. 

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* Three liberals joined Alito's somewhat troubling opinion, unnecessarily leaving open too much discretion for the government, but Breyer and Ginsburg at least, and surely Kagan, are clear supporters of a general liberty interest that honors privacy rights. Sotomayor is the most privacy protective justice in this case, providing one of the forceful opinions she has from time to time that makes my side go "yeah." 

Kennedy might have joined Scalia here and in some other limited view of the Fourth Amendment cases, but he does as well.  Alito accepts certain zones of privacy, dissenting alone in a recent denial to take another look at Doe v. Reed, Scalia not thinking much of associative privacy rights there at all. Roberts has accepted that to some extent but not quite so expressly.  Thomas was concerned about associative privacy in Doe and Citizens United, but joined Scalia in calling out Alito for taking for granted privacy rights in a government employment privacy case and has made clear he rejects any general constitutional right to privacy. 

2012 Oscars

The nominees are out. There are exceptions (see, e.g., Moneyball and an actress from Bridesmaids; The Help, sorry Melissa, too), but lots of somewhat obscure films there.  A few more to see, including Midnight in Paris, but many don't really interest me much.

Remember Citizen Padilla?

Padilla lost one of his suits for damages via a "use of military force" free card regarding constitutional liability there. Meanwhile, another prosecution for disclosing classified information (charging for the id of the agent is most defensible), which is harder to stomach when the Administration blocks suits like Padilla.  Limited disclosure.

Pan Am

Watched this on demand, the game over after it began.  A busy episode that ended with everyone finding out that JFK got shot.  The subplots as a whole worked pretty well, a funny bit including a character concerned she is sending off vibes that she is a lesbian.

Earlybird Women's History Month Reading

Supreme Court Decisions and Womens Rights by Clare Cushman (I read the 2000 version) provides a face to women's rights cases over the years though at points it is a trudge to get through the doctrinal stuff.  The best parts are the asides discussing individual litigants, such as a man raising his son after his wife died. Skim worthy.

Supreme Court Watch

A few notable opinions handed down.  See here and its own website, noting the .html links to the former for some reason recently lacks many opinion footnotes.  Why my traditional source for opinions that doesn't require me to open .pdf files that also don't allow me to follow links to cited cases suddenly has this problem is unclear. 

The important case decided today provided at least limited protected against government use of GPS devices, which was held to be a "search," though determining if it was "unreasonable" was not specifically addressed.  Orin Kerr, who imho wrongly thought the person had a weak case because of the public nature of the activity at issue (the travel of a car in public), has various posts at Volokh Conspiracy discussing the matter.  Another 4A case was a per curiam overturn of a 9th Cir. (joined there by libertarian Judge Kozinski) opinion not accepting police entering a home when a parent didn't want to have them come in regarding a matter involving her high school son and alleged threats involving guns. The police was said to reasonably had a concern about impending violence, but I think the lower court had the better argument. 

It is appreciated all nine realized that attaching devices on cars raises Fourth Amendment concerns, though the justices closely split on reasoning with Sotomayor using both Scalia's (majority) "property" approach and Alito's (with the other three "liberals") expectation of privacy approach.  Sotomayor's concurrence is my favorite, including her suggesting (given how much information is shared these days) the misguided if long time rule that sharing information with third parties suggests no right to privacy over it as a constitutional matter when the government gets involved (such as bank records or Internet files). 

Alito’s liberal pals tour continued.  In certain contexts, Alito appears to be a pick-up for privacy rights. Doe v. Reed (the anti-gay petition case), accepting privacy rights in the government employment context, reference to associational privacy in his ministerial exemption concurrence and his opinion here suggests as much.  Alito also again noted that modern day realities requires a non-simplified application of 18th Century expectations.  The "Scalia wants to know what Madison thought about video games" thing again.  The liberal/libertarian these days has to find victories where they can, and that’s something, but I'm with those who find his concurrence here a bit too open-ended, though honestly, "reasonable" leads to that sort of thing without artificial limits like Scalia's very small constable. 

The justices, continuing its mid-term supermajority theme, unanimously held that a state animal protection law was pre-empted.  It also, 7-2 (pals Scalia and Ginsburg dissenting) supplied a defendant win while interpreting a federal sexual registry law.  I provide no opinion here.

The orders handed down included a somewhat interesting quirk about Kagan recusing herself regarding them turning down Freedom Watch's (who challenged her right to hear the cases at all) request for argument time for the health law cases.  Randy Barnett, btw, opened comments for his views on federal power and the PPACA law as a whole at Volokh Conspiracy.  Don't know why he suddenly did that, but kudos.  His arguments, like I and others suggested, still leave a lot to be desired. 

Super Bowl

Glad the NYG got there but not so much as to the Pat.  Notable how some teams had sloppy play in the playoffs, including SF shooting themselves in the foot. Super Bowl might be smoother though who knows with the Pats defense or some possible NYG slip-up.

Well a Manning Will Play In Indianapolis

Close game turning on SF mistakes on punts (hitting off leg and muff in OT) and a 1.5 minute drill at the end of the 1H that gave the NYG three.  Never saw a QB quite that dirty by the end of the game.

Giffords to Resign

For the past year, Gabby has shown the world the person I have always known – an extraordinary woman of fierce drive, determination and courage. Gabby made the right decision for her and her family, but this is just the beginning of the next chapter of her story. I know that Gabby will find other ways to fulfill her calling of public service and continue to lead and inspire the nation. I feel blessed to call Gabby Giffords a dear friend and look forward to supporting her in whatever she decides to do next.

-- Sen. Gillibrand (NY), friend of Rep. Giffords

Giffords will resign from Congress shortly.  She was a rising star, the moderate politician who had the ability to go far, cut down but not destroyed doing her job, meeting with the public.  One example of what she brought was her first "date" with her husband -- she was going to a prison as part of her attempt to think over her position on the death penalty.  Another friend in Congress is Rep. Wasserman Schultz, a great fighter for the party, who used her own struggles with breast cancer to note the importance of health care rights. 

Her decision probably was in part a means to give her possible Democrat replacement (hers being a swing district) some time to establish themselves  before needing to (months later, it seems) run again for a full term.   A bit curious really.  Well, maybe I'm being too practical -- her decision might be purely a matter of what is best for her.   Good luck.

iCarly

Decent episode with a subplot with a Dick Van Dyke Show hook. Carly taking a bath and worrying about being naked is about as PG-13 as you will get on Nick.  We also learn Canada is not "like Idaho."

Ravens Choke

First, a penalty helped to stop a scoring drive near the two minute mark, then after a stop, kicker missed a mid-range field goal.  The Ravens had a shot at a score even before that.  NY/SF tight so far.

Let's Stretch This Thing Out

I'm watching Chris Hayes talking about the South Carolina primary (MSNBC and Current TV alone will cover this stuff to death), and though tired of the whole thing, agree there is something interesting there.  Listening to the crap these candidates say is pretty telling. 

Staying Too Long On The Stage

It is sad and a bit tragic that Joe Paterno had to end his days like this; even retiring a year earlier would have been rather different. Yes, he made his bed, but it still is sad. Well, now, it is time to worry about the survivors, many apparent victims among them.

Life on Top

The t.v. show (S1) made some better plot choices, including fleshing out some characters, but the book is better regarding the action, even tossing in a gay scene.  Safe sex friendly.  The show had decent acting and all, but after a pretty good first episode, it was more boringly standard in that department.  Pretty safe, really. 

Moneyball (The Philosophical Baseball Movie)

The assistant character is largely based on someone who now works for the Mets, but I'm not able to fully analyze the "concept" Billy Beane used.  As a film, it's pretty good, Brad Pitt portraying someone who does pretty good, but wants more.  Middle portion drags a bit. The daughter character has a few nice scenes.  [Yes, it's her voice.]

PPACA In Action

The Obama administration said Friday that most health insurance plans must cover contraceptives for women free of charge, and it rejected a broad exemption sought by the Roman Catholic Church for insurance provided to employees of Catholic hospitals, colleges and charities.

Sorry, Mr. Santorum

Happy Anniversary!

An interview on Colbert with Justice Stevens was more helpful in some ways than many analysts provide, including those who speak of "unlimited" funds that corporations now can provide. Basic point: corporations are persons for certain purposes, but in various contexts, persons of different types can be regulated -- even as to speech -- in different ways than others. Artificial persons don't, e.g., have self-incrimination rights, which allows for more coerced speech. An op-ed on the two year anniversary (tempus fugit):

Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans.

The ruling ultimately rested its concern on the rights of humans, which it argued was assisted by various means of self-expression, including by corporations (e.g., NAACP).  As the op-ed noted:

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

The ruling also left open various regulations, specifically disclosure and disclaimer rules, while a recent ruling summarily upheld limits on foreign citizens. Again:

There are ways to address inordinate corporate power in politics that avoid razing the house to rid it of termites. Many ramifications of Citizens United can be addressed with more aggressive disclosure rules, limits on political involvement of companies receiving government contracts, or mandates that shareholders approve political expenditures.

The attempt to draw up constitutional amendments that allow Congress broad powers over corporate speech or suggest corporations don't have free speech rights is misguided besides being pipe dreams. They are likely to be woefully overbroad, it will be an uphill battle to even get it through Congress and powerful individuals and companies will retain power.  If the Koch Brothers act as individuals, do we suddenly feel okay? The best path includes limiting power of corporations, small entities not as dangerous when they speak and spend:

The cure for this is more democracy within businesses — more participation in corporate governance by workers, communities, shareholders and consumers. If corporations were themselves more democratic, their participation in the nation’s political debate would be of little concern and might even be beneficial.

Silencing "corporations" will not do the trick. Stephen Colbert is doing great showing the silly nature of SuperPacs, but ultimately his point is that he is not really independent of the organization, not that Colbert Inc. is not.  Again, powerful individuals and non-corporate entities (putting aside media corporations) are involved here too. It's silly to try to answer every wrong-headed person on the Internet like that famous cartoon notes, but some memes need to be addressed.  The problem here is real, but if we don't know the nature of the problem, how will it be addressed?  It's quite distressing, but misjudgment didn't start in 2009. No lie.

Steven Colbert Shines

Great show last night with a bit of everything, including Justice Stevens (where won't he turn up?) noting the problem with Citizens United was corporations were given too much power, not that they are never persons or have no free speech rights.  Also, a song duet and an art lesson (with Carrie, not Charlotte).  Plus more.  More SC.

Underdogs ... Got You Where We Want You

The Patriots are one step away from feeling Super for the fifth time in 11 seasons. And yes, last week they were impressive. But let’s not forget, it was the Broncos whom they shellacked, not a real NFL team. Even God bet against Tebow, or so I heard.

Ravens played 1/2 (defense) a real football team. 

Baby steps

I'm a microwave sort of guy and various attempts to use a rice cooker didn't work well. On the other hand, simmering (prepared) rice on the stove has worked twice recently.  Still using my microwave pasta maker.  The left over "broth" makes good soup or well, broth.

21st Century Brings New Voting Limits

NYT ended free unlimited articles last year, though some was able to continue to obtain them for some time longer. But, at least in my case, that free period ended, except for twenty articles per browser (e.g., AOL or Firefox) a month.  However, I was told (thanks WB) that using a RSS service (such as Google Reader) would allow you to get more than that. By that method, I read Linda Greenhouse's latest and a report cited included this striking tidbit:

Prior to the 2006 elections, no state required its voters to show government-issued photo ID at the polls (or elsewhere) in order to vote.

Seven states signed photo id laws during the 2011 legislative session (elections like 2010 have consequences), only two having "strict" (to get a sense there, all but Rhode Island of the new set requires government issued identification; thus, a school or work id might not work) laws of that sort before. Again, NONE required voters to show government-issued photos before then to vote.  Photography existed long before the middle portion of the first decade of this century.   As the report notes:

To put this into context, 11% of American citizens do not possess a government-issued photo ID; that is over 21 million citizens.

Also, to put things in context, the Bush Administration (including over the recommendation of its voting rights division as to Georgia) supported such laws, including in front of the Supreme Court (Stevens dubious opinion there, see the article, left something to be desired, if being limited in scope)  while the Obama Administration rejected preclearance in South Carolina while Eric Holder made a special speech in support of voter rights.  [Federal civil rights laws require preclearance for certain states with a history of discrimination while other limits on voting must be addressed after problems are shown in an actual election.] The report notes the partisan nature of such laws, the one law (Rhode Island) that had significant Democratic backing being more mild than the others. 

There is some concern that the PPACA has this revolutionary threat to liberty and federalism, but this concern for novelty is as with federalism, somewhat selective. The report also notes:

Until recently, no state has ever required any voter to produce documentary proof of citizenship—or age or any other component of eligibility—to participate in elections.

I talked about the Arizona law here being found to be partially pre-empted by a panel including Justice O'Connor [Scotusblog has an interesting discussion on her legacy here.] serving in her appellate judge role. As Mark Field over at Volokh Conspiracy noted in a thread on this question a month or so ago, the burden is on the supporters of these novel restrictions on the right to vote.  Laws that make it harder, more expensive (to the voter and state) to vote and divide along racial and party lines in the process.  But, it is particularly striking (about as such that Rick Santorum of all people is out there supporting felons getting voting rights back -- hey, you go boy)  that these laws are so new.

A hundred years ago, we had grandfather clauses, literary and understanding tests and other means to burden the right to vote, particularly harming certain racial groups as well as some "poor white trash." This time around we have new novel laws, defended by people who make out as if nothing special is going on. If so, why did the laws suddenly pop up about five years ago?!  Things that make you go "hmm."

Life on Top

Contrariwise, I also received this cheap and so far it is pretty good.  The tv show based on it, at least the first season (less so the second), actually is better in some ways, the "Maya" character handled somewhat better, e.g.  But, half-way through, nice light read.

Laboratory of Justice

After not being able to find a library copy, I bought this book cheap off Amazon and as I said there (three stars), disappointed.  The law has a bit of everything, including changing scientific thought (see, e.g. here), but this book is not a great analysis of the whole thing.

SCOTUS Upholds Reduction of Public Domain on SOPA Protest Day

The main opinion relied very heavily upon a prior opinion written by Ginsburg — the Court’s 2003 decision in Eldred v. Ashcroft, upholding Congress’s power to lengthen the terms of copyrights while they were still in force. The new case was different, involving the grant of copyright to works never protected previously under U.S. law, and thus not previously restricted on use or performance in this country. The Court majority, however, insisted that the guiding constitutional principles were not different.

I was no fan of the original ruling and this one (Breyer again provides a good dissent, mixing history, purpose and pragmatics nicely; Alito joined him) and this expansion is I guess ironically ruled upon on SOPA protest day. Here too Congress limits the free dissemination of knowledge to address ends that could -- if necessary -- be done with much more finesse. It is bad policy and given what is at stake, I'm inclined to go with the two here on the constitutional issues.  At best, the majority opinion is overbroad.

Today was Justice Ginsburg's day, handing down three rulings, each following the supermajority rule (7-2 and unanimous) of recent mid-term opinions. One statutory case will interest few another (see Alito's eight part perfect storm concurrence) addressed one of those various pratfalls that death penalty defendants deal with from time to time. As with the New Orleans prosecutor case, the orals basically made the final result expected -- even Scalia in dissent realized something hinky went on here. The result is -- again per usual -- is limited as this conservative leaning blog notes. As to blame, if the state leaves open such happenings, yes, the buck ultimately stops with them. The court stepped in because of constitutional protections, not some sort of civil liability arising from bad agency/client relations.

Prof. Volokh uses the SOPA protests to somewhat slyly make an issue of critics of Citizens United as to corporate right of speech. As I noted, he has a point, but Google -- as a special type of content provider -- can be differentiated even by CU critics. 

SOPA

Many websites are going dark or (see Google) doing something else to call attention to the problematic SOPA legislation. As Chris Hayes noted last weekend, there has not been much media reporting on this issue and honestly I am not fully informed about it either. But, it does look problematic and I am wary of any heavy-handed approach that burns the room to roast the pig. I'm not for roasting pigs either.

TV Watch

After some bad ones, a pretty good episode of Body of Proof with Ms. Tom Hanks (Rita Wilson) as a guest star. Pan Am was a bit stupid though it had its moments when away from Russia.

What A Tool

Jon Huntsman, after just continually reaming the guy, endorses Romney for sake of unity, after losing a single primary. You know, since it's so very important to have a winnable candidate to beat Obama. So says the former ambassador to China. At least, now.

Championship Round

A weak "Go Ravens" since the Pats are like rooting for the establishment. NYG will have a second crack at SF. Go NY, but SF is a pretty damn good team. If NY loses, definitely my Super Bowl fave.

I have a dream ...

You are all sons of God through faith in Christ Jesus, for all of you who were baptized into Christ have clothed yourselves with Christ. There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus. If you belong to Christ, then you are Abraham's seed, and heirs according to the promise.

Martin Luther King Jr. applied the biblical lesson to our society, dreaming of equality for all. The struggle continues.

Republicans Keep Things Somewhat Interesting

Chris Hayes discussion on Saturday of attack from Gingrich of Romney's business dealings that sounds downright populist suggests as with Ron Paul's criticism of federal power that the field is worth paying attention to even while Huntsman gives up as the only sane alternative to the frontrunner. Gitmo is also discussed.

Refs and Commentary

Some bad calls and good analysis are discussed here. I think the FOX guys are good but do wish more on all stations would explain more about some of the happenings in the huddle. A lot happens that isn't explained much. Baseball analysts provide more clarity at times.

Road Warriors Win Again

It's colder in NY & NY was better vs. a out of sorts Packs team. A questionable penalty kept them alive but then NYG went ahead by 17 again. Pretty surprising and so we had two good games so far, this one not that good really as a whole, except, well for NY fans.

Final Stretch

Messiness all around so far -- Packs repeatedly missed catches & an onside kick (& a questionable 4th down), refs missed a turnover, Giants missed a FG & a TD shot and the Packs D missed a stop at the Half. Three points so far in the 2H with under ten minutes left.

Houston D Impressive

Down to the last, after a second bad throw cost the offense during a promising drive late, down 20-13. Come on Yates, double coverage there! The Ravens offense better play better against the Pats.

Our Father ... Why Is This Even An Issue?

I was thinking, and I will repeat this when they come up for oral argument, the PPACA lawsuits are on some basic level ridiculous. The constitutional arguments are not only bad, but they are almost insulting. But, being right isn't enough sometimes. Sometimes, a lot more still is required. Just ask Jessica Ahlquist, a public high school student opposed to a banner up at her school:

Our Heavenly Father.

Grant us each day the desire to do our best.
To grow mentally and morally as well as physically.
To be kind and helpful to our classmates and teachers.
To be honest with ourselves as well as with others.
Help us to be good sports and smile when we lose as well as when we win.
Teach us the value of true friendship.
Help us always to conduct ourselves so as to bring credit to Cranston High School West.

Amen.

The court (it is perhaps required to note per a Reagan appointee) took forty pages, though around fifteen pages dealt with facts (an interesting matter, since these cases are ultimately about real people), to explain why the school was wrong to oppose her request. A citation of a thirty year old case involving the posting of a Ten Commandments at a school (not overturned in either recent public Ten Commandments display case) should have done the trick. I know they have law clerks and all, but really, it took over five pages to explain how she had standing, partially because at one point she noted she wasn't "offended" by the banner.

Opposing a specific banner that appeals to "our heavenly father" ... not even the right of a teacher to hang it in a class or having it as a collection of banners ... seems like an easy case. The most interesting part of the account provided is that we get to listen to that actual student. It's not always endearing, but sometimes in cases like this, it does make us feel like the future has a shot. It is also striking to listen to how much "hate" she is getting. This type of thing is a more striking matter of religious freedom than the recent Supreme Court case giving churches the right to deny their teachers rights other employees receive.

Good job, Jessica!

Halftime

Houston down by four, the difference a result of a short field provided after baby QB makes a bad decision. Let baby throw and see what happens! Baltimore clinched the game in the 4Q last time, but still, not bad half by the underdogs. Texas history on C-SPAN.

Let's Play Some More Football

The Giants fan will add a third, but so far, there have been two very good games in the NFL postseason, Tebow time and the game that came thanks to (let me stop laughing) the New Orleans Saints being beat by a two win team (not at the time) (Rams) and another who shared first place with a win and then lost ten straight (Tampa). SF was a bit of a joke last year (in fact, their coach was one, him or some look alike doing a "crazy nut coach" routine on David Letterman), but no longer. The Giants still rather face them than the Saints at home, where they would have been without those two losses (the other against the Packers).

Last week had various baby QBs, two of whom won, though one against another newbie. This week, like when the 7-9 Seahawks came back to earth after beating the Saints (the road team because, yeah, the Seahawks won their division), the expectation was those two will lose to the big boys. A back-up newbie QB and a third stringer going against #1 and #2 teams, the latter favored to go to the Super Bowl by many accounts (I have no love for Baltimore, but like the Pats less -- at least the Red Sox has Bobby Valentine as manager now ... yeah, that's still strange to write) really shouldn't have a chance. Or, shall I say a prayer?

Before I even finished watching the ending of the first game and listening to the talking heads being amazed at the ending as much as most viewers must have been, the Pats were up 7-0. I only saw a few minutes of the game, enough to see them go up 14-0 after a mistake and a questionable call. Then, Denver showed some life, making it 14-7. But, a quick three and out, and then it was 21-7 (the next I checked). Phil Simms than said that Denver should just try to keep it there with less than three minutes to play. Well no. Not only did the Pats score once, they scored twice. That's a shame. Hopefully, Houston falls with a bit more respect.

Meanwhile Focus on the Family had a commercial with various kids quoting John 3:16. The organization had a mild ad last year that was not as blatantly religious, but this one was fine really. And, Tim Tebow's presence made it almost expected that something like that would be shown. The thing that annoyed people last year was that the network didn't want to show a pro-gay rights ad or some other "controversial" ad because of its ideological nature. Something of a double standard. The bad feeling from some quarters (and not only from non-believers in his God) of Tebow's style of profession of faith shows this sort of commercial is not without controversy. Let this in from an anti-abortion organization with a certain definition of "family values,"* let in other ideological ads.

I think the Giants/GB game should be a good one and somewhat surprisingly there is a certain sentiment that the Giants have a good shot at winning. They did lose against them at home by three points (not quite the same, but shades of losing close to the Pats a few years back ... a rematch would be a tad boring ... the other likely option a rematch for those who remember the Giants looking bad a decade or so ago) with some questionable officiating (hey, not me, more than one analyst said so). We shall see. I also hope Houston isn't embarrassed. They lost even with their real QB, so really tough game for them.

Anyway, I'm rooting for Tebow, since he seems to be a gamer and the league has only a few elite QBs, the others have on and off years. So, why not try it with him, who with some seasoning, good coaching and good support around him can do pretty well? Meanwhile, "Smash" from FNL, who popped up in a pretty good role in Pan Am (good episode last week, each young woman maturing a bit, though I didn't really like the Bridget subplot ... Dean is so blah) got some religious training of his own.

Smash's mom would be proud.

---

* On the radio today, a tidbit was referenced that some prostitutes in a legal brothel in Nevada is collecting money for Ron Paul. Why prostitutes should support someone against a woman's control of her body, equal rights for gays and the power of federal courts to stop states from passing religiously based laws that violate the First/Fourteenth Amendment? Someone who ridiculed Lawrence v. Texas, which upheld the basic liberty of sexual privacy from state intrusion is unclear. But, who knows these things, hearing about "libertarian" Paul? Basically, he is a lesser of evils. Great. I'll support the guy who is for equal rights for gays and sexual privacy. Republicans stuck with that bunch can vote for the lesser evil.

SF Now Root For The NYG

SF got points early and then points on defense. Then, it is up to the D to hold until some late back/forth craziness with four lead changes in last four minutes. SF ends up winning it 36-32. As with Denver last week, the higher seed was the underdog. In your court now, NYG.

Privacy Book

[Somewhat related to below, along with another bite at the right of ABC to show Andy's butt on NYPD Blue, the most interesting oral argument turned out to be one on the Family and Medical Leave Act.]

Question: If people don’t want privacy or don’t care about it, why should we care? 

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

Anita Allen (wearing some strange red thing around her neck) talked about her new book on privacy. I enjoyed her essay in the What Roe Should Have Said book and plan eventually to read this one. Her balanced approach from the left might be suggested from a previously book, "Why Privacy Isn't Everything: Feminist Reflections on Personal Accountability."

Some don't like to frame things as "right of privacy" (constitutional or otherwise) since "privacy" arguably only takes you so far (let's say funding). My post here responding to a left leaning critic has just received another hit, for instance. But, I think the word, as well as the whole Griswold-type approach (as understood in Lawrence) there is useful. The use of something so open-ended like "liberty" is rather unhelpful without more. Privacy is particular is important for a variety of reasons and (as shown in the ministerial exemption case, as a "penumbra" of another right in particular), some with a constitutional dimension.

Looking "inside" over at Amazon and given her past writing, this book looks like an interesting account using different situations to address the issue both in theory (I don't recall seeing the word "aretaic" before now) and in real world cases. The Q&A gives a flavor of what to expect.

Fifth Circuit Overrules Partial Abortion Rights Victory (Forced Sonograms)

We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.

-- Walter Dellinger

The court of appeals, in an opinion written by strong anti-Roe Judge Edith Jones, overturned a a partial victory against a forced sonogram law.  The biggest problem with the law was that it interfered with the doctor/patient relationship, particularly in such a way that it requires forced medical procedures.  Justice Douglas in Poe v. Ullman noted the importance of free discussion between doctors and patients,* noting the privacy concerns in Doe v. Bolton: "The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship."  Some regulation is involved here, and allowed under precedent, more post-Casey (too much, probably), but sonograms take things to something of a new level.  As do various other laws by Republican legislatures these days.

The appellate court thought that district court wrong differentiated what Casey allowed, citing another appellate court's acceptance of a law requiring a woman be told that an abortion would "terminate the life of a whole, separate, unique, living human being."  Well, yes, it's better than that.  If that is what "accurate" means under Casey, the word (notwithstanding the appellate court rejecting its use here) is being used in an "ideological" way.  Still, Casey concerned a law requiring the "physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the "probable gestational age of the unborn child." Also, the physician is to tell the woman, if she wants to see it, "the availability of printed materials published by the State describing the fetus and providing information."

The district court notes that Texas already had a law that covered this sort of thing.  Requiring a sonogram and the woman to have the resulting image explained to her is a step beyond.  Casey barely dealt with the First Amendment implications of the law at issue there, which the two courts here used to their advantage in contrasting ways. This includes recognizing on some level that the issue here has an ideological cast, so that coerced speech must be carefully examined.  Casey leaves open some degree of lower court discretion, discretion the Supreme Court as a whole doesn't want to handle.  This includes determining being required to on record say you are a victim of rape and incest before you are able to avoid this sort of thing.  Ditto dispute over the vagueness of a myriad of at times confusing laws that at some point results in an "undue burden" on the right to have an abortion.

The lower court did not rest on fact that a forced ultrasound is an infringement of liberty in itself, an illicit "intrusion upon the individual's dignitary interests in personal privacy and bodily integrity."  The logic of the appellate ruling would entail it being a legitimate medical test to promote state interests, including to help the patient decide whether or not to abort an embryo or fetus at a certain state of development.  Still, the character of the requirement underlines that First Amendment of vagueness concerns, both of importance, is not ultimately what upsets people here. Having read discussions of this sort of law, the specific requirement of a forced medical procedure particularly appalls.

---

* "The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion."  The limits to this right is raised in various contexts, including the right of a physician to discuss with a patient the medicial value of marijuana.  When the limit is ideological in nature, red flags arise.

NYM Off-Season: Low Expectations Help

Now, Martinez is heading to Houston while the Mets are moving forward without him. Their farm system is entering a new era, with three talented pitchers -- Matt Harvey, Zack Wheeler and Jeurys Familia -- leading what the organization hopes to be a long pipeline of talent heading to New York.

The spare part reliever that the Mets got as part of the K-Rod trade/salary disposal last summer got through waivers, opening up two spots on the forty man roster.  The two spots were spare parts line-up moves -- Scott Hairston was re-signed as the vet/back-up OF/bat and Ronny Cedeno (reasonably so, especially if you don't use it merely to cry about management)  as a back-up infielder.  He's no Reyes, and is not supposed to be.  And, even the article there, critical as it might be, suggests he is fairly "average" as middle infielders go.  Boring but safe. 

The Mets' minor league roster in both respects are a bit thin -- F-Mart just the most injured OF and the infield, even Ruben Tejeda who is the assumed Reyes replacement, are all pretty green.  A few months of Beltran gave the team Zack Wheeler. A few months of K-Rod gave the team salary relief and a couple toss-in relievers.  Reyes saved money, partially used to pay for a new closer (Frank Francisco), a set-up man some think is a pretty good pick-up (Ramon Ramirez)  and a more questionable pick-up (especially at the salary) that might have some punch (Jon Rauch). 


The off-season was not a total bust, though losing Reyes put a big pall on things, basically due to ownership money issues.  The relievers, including a low priced but reasonable for the time being closer, help the team. Andres Torres provides a good presence on the team, possibly some speed and defense and helps move Pagan, a change of scenery in his cards.  Torres doesn't give you much bat and along with a fifth starter, that would have been something helpful.  I personally want mental case "inning eater" Pelfrey gone too, but that seems not to be.  And, there still is time to find some garbage heap fifth starter type to serve as a safety valve now that Capauno is gone and Santana is a question mark. Old man Miguel Batista (el poet) also can give you some starts. 

The team is clearly in "wait and see" mode with various prospects waiting to be seasoned, some young players (Davis, Niese, Duda etc.) on the major league roster now.  Instead of getting a vet back-up for catcher, the team for now is going with defensive catcher Mike Nickeas and hoping the hardworking young main catcher will thrive given another year.  Money problems and bad ownership is a problem, though some want to use Sandy Alderson as a target.  The worst that can be said there is that maybe they could have found a bat or pitcher to take a risk on.  They still can.  It is only January and will they keep Bobby Parnell when they signed a new closer for two years and two other relievers?   I don't know.

The honest fan would say that even the best moves would make the Mets longshots given the leaders of the division and the up and coming studs on the third place Nats and Miami's current penchant to spend money.  Did the Mets do much more any time in the last few years?  Spending over 50M on a four year contract for Jason Bay was risky, another misuse of money and without doing enough other things too.  The best moves were internal (Murphy etc.) and surprises (Dickey). Both might still occur. They apparently stopped digging the hole.  I like that.  

They still are in the hole though.  Particularly without Reyes or Beltran (Torres has potential there and hopefully Santana will return with something), '12 will be tough.  I'll be watching. For now, go NYG!  And, Houston, SF and Denver. 

OLC Opinion on Recess Appointments Released

The release runs counter to assumptions by the likes of Bruce Ackerman that Obama only relied on White House counsel and "fiat."

Supremes Are Pretty United

[Update: Some analysis of the ministerial exemption case can be found here (linking Dorf) and here. Thus, avoiding mystical Kennedyesque language is possible, though the end result isn't much different.  The second link actually isn't that helpful but it is a bit curiously bland coming from Marci Hamilton, a strong opponent to giving special exemptions to religious groups.  An atypical conservative on that point. A liberal separatist suggests the ruling is harder with the current double standard in place here. Yes. If religions are treated differently by the First Amendment, it does work both ways, doesn't it? ]

The Supreme Court handed down some opinions this week, favoring 8-1 counts, though a few justices concurred here and there for whatever reason.  The opinions in various cases are carefully drafted to decide things narrowly enough to get such unanimity.


For instance, with only Sotomayor dissenting, Justice Ginsburg wrote an opinion rejecting an attempt to open up more judicial determination on the accuracy of eyewitness testimony.  The majority said that this only should occur as a matter of federal due process of law  -- though trial judges and state courts will have discretion in various situations -- when the police create "suggestive circumstances."  CJ Roberts, with only Thomas dissented, summarily schooled New Orleans prosecutors, perhaps partially to make up with last term's 5-4 affair going the other way.  Breyer led the way in another case to avoid a federal suit when alternative state means are present to deal with alleged problems in a privately run prison, Ginsburg this time dissenting alone. 

CJ Roberts also led the way in a narrowly drawn unanimous ruling (Alito/Kagan and Thomas concurring to expand things somewhat) on the ministerial exception.  The opinion said that a case involving religious use of peyote didn't mean generally applicable rules should be equally applied to religious conduct in all cases because such "outward physical acts" are not the same thing as “internal church decision that affects the faith and mission of the church itself.”  The inability to practice your religion at all would seem to be a threat to said mission too.  The First Amendment protects free exercise, not only religious institutions themselves.  Nonetheless, special concern appears to be given to religious associations in particular as compared to individual religious practice; as Alito noted in his concurrence (shades of Griswold?):

Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.”

The opinion cited various concerns raised by the government, whose position it deemed unreasonable, such as inability to freely notify the government in cases of child abuse (might this be a violation of internal church decisions?) but in effect avoided them:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Why the opening paean  to religious institutional independence would be any different in such cases was not explained.  This after all is the hard part when dealing with religious exemptions -- drawing lines that balance different interests.  For instance, when reporting alleged abuse to children, is that sort of like the "outward physical acts" business, here a way to protect third parties?  Not clear.  Perhaps, the opinion is helpful to deal with a specific concern, leaving the way for others to deal with more.

On the other hand, like Sotomayor notes in her eyewitness dissent, perhaps some clarity must be sacrificed for such judicial togetherness. 

Sunday TV

Once Upon A Time and Pan Am are back from break.  Pan Am was pretty good though had one too many romantic triangles.  I did not see OUAT yet and overall am disappointed with it, particularly the pretty tired "modern day" segment.  Might have lost me.

Monsignor Quixote

A long time ago, I read the book and probably saw the PBS version of this take on Don Quixote that allows Graham Greene to seriously address some religious themes in a serio-comic account of a simple parish priest and his Communist friend on the road.  I read it again, very good, with an intro by John Edwards' Four Trials (!) co-author.

Division Round

Enjoy your wins guys. Other than the Saints, none of you are favored next week. I am for the underdogs, the Giants and 49ers (both are likely rooting for each other) having decent shots. The other, well, one hopes for good games at least. Texans have the better long shot.

Foreign Money Ruling Made Without Any Fanfare

Scalia/Alito debated with Sotomayor about the Supreme Court not taking a fact based habeas case, Scalia calling out the Ninth Circuit in particular (citing a few cases, some split decisions, over a span of years) for going out of its way to second guess state courts. It's one of those interesting windows into the Supreme Court among mostly boring looking orders.

The same can be the case when the Supreme Court doesn't take a certain case or affirms a lower court ruling without comment. Consider the fairly important affirmance of Bluman v. FEC. As Scotusblog notes:

Specifically at issue in the new case was a complete ban on contributions and on any independent spending in U.S. elections by foreign nationals, even if they were living lawfully in the country. In challenging the District Court ruling in a Supreme Court appeal, two individuals contended that the decision was based precisely on the identity of the spender, something that it argued directly contradicted the Citizens United rationale. The lower court, the two individuals’ appeal argued, departed in every way that it could from Citizens United.

Citizens United specifically noted that the ruling did not deal with this issue, leaving it open. As with disclaimer and disclosure law, the Supreme Court provided here a limited means to regulate campaign finance. To cite the summary of the lower court, which again the Supremes affirmed without comment, from the FEC:

The court said these cases provide a straightforward precedent: “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.” For purposes of First Amendment analysis, the court stated the United States has a compelling interest in limiting the participation of foreign citizens in such activities, and “thereby preventing foreign influence over the U.S. political process.” The court found that political contributions and expenditures are a vital aspect of the process of American democratic self-government. The court said the ban on foreign election spending was also in line with the 2010 Supreme Court decision in Citizens United v. FEC, 130 S. Ct. 876 (2010).

The ruling does not concern limits on all "foreign citizens," including long term permanent residents, but the opening is there. More:

Benjamin Bluman and Dr. Asenath Steiman (Plaintiffs) are both foreign nationals who lawfully live and work in the United States. Both Plaintiffs wish to express their political views by making contributions to candidates for office in the United States, including federal candidates . Current federal law and Commission regulations prohibit foreign nationals (other than those who have been admitted to the United States for permanent residence) from “directly or indirectly” making “a contribution or donation of money or other thing of value…in connection with a federal, state or local election;” making “a contribution or donation to a committee of a political party;” or making an “expenditure,” “independent expenditure,” or “disbursement for an electioneering communication” in connection with any federal, state or local election in the United States. 11 CFR 110.20. A knowing and willful violation of the foreign national ban is punishable by a civil penalty not exceeding the greater of $10,000 or 200 percent of any contribution or expenditure involved in the violation. It is also punishable criminally by up to five years’ imprisonment. 2 U.S.C. §§437g(a)(5) and (d).

This is pretty extreme, particularly the "other thing of value." There might be various limitations to the regulation, but someone here for let's say a few months and wanting to donate use of a car to support a local environmental measure would seem to be covered. It shows to me the need to have perspective. Kramer Inc. can be a "corporation" but we should be less worried about it than the influence of the Koch Brothers acting as individuals. The same applies to foreign nationals. Spending large sums of money would be a problem. Some small amount, maybe not.

Still, this is an important ruling, especially with the concern with foreign influence, including China. This was an issue back to the days of Clinton and Gore, for instance. Will this ruling be noted or will -- like disclosure and disclaimer limits -- be ignored, the Supreme Court Five allegedly open to all unlimited campaign funds? We shall see. Meanwhile, Rick Hasen argues this way of ruling on the matter let the Supreme Court set up in effect arbitrary exceptions to CU, well, arbitrarily.

[Update: Someone more of a fan of CU, disagrees, but moves between "citizens" and "residents" a bit much. And, what about foreign media corporations? Do "press" protections -- however that term is used -- apply differently to non-citizens too?  How much?  Seems worthy of full review.]

Snap Out of IT!

Interesting as it might be at times, the talking heads like Rachel Maddow being concerned about the presidential election gets depressing after awhile. It is so sad really that so much time is spent over deciding among such an inferior crew. We are left with worrying about them since you know Obama isn't a lock of anything. The fact this is true doesn't make it much less sad. And, lack a Greek play, the ending (Mitt winning the nomination) is deemed preordained by most.

We are left with trying to find some pearls among the swine, like truth coming from the collision with error (what a mess). Chris Hayes over the weekend played a bit of Ron Paul answering a question about his infamous newsletters by (such a truth teller!) changing the subject by talking about his opposition of the drug war. Look at me, I'm really a friend of the blacks! Such is the best we can do -- someone sane about federal power on a few key matters, but then ruins it by not being on others.

To keep perspective, now and then, we see lists like this one:

Top ten reasons that claims that conservatives love freedom and small government are unpersuasive in the reality-based world:

10. Government surveillance
9. Starting unnecessary wars
8. The war on drugs
7. Regulation of reproduction
6. Government secrecy
5. Whittling the Fourth Amendment
4. Regulating the bedroom
3. “Your papers, please?“
2. Censorship
1. [choose your favorite among the other contenders, such as corporate subsidies, defense spending, the guilt-optional death penalty, deficits, earmarks, red state parasitism, regulation of disfavored businesses and professions, school prayer, prison policy . . . ]

And, people like I (fwiw) remind that even Paul wants to regulate reproduction, repeatedly is anti-gay, is lax when various things that threaten liberty involve state power etc.

Meanwhile, per a book review over the weekend, we are reminded that all is not lost:

It seems to me that a Democratic president who gets us health care reform and tough new financial protection for consumers, who guides the economy through its roughest period in 80 years with moderate success (who could do better?), who ends our long war in Iraq and avenges the worst insult to our sovereignty since Pearl Harbor (as his Republican predecessor manifestly failed to do, despite a lot of noise and promises); a president who faced an opposition of really spectacular intransigence and downright meanness; a president who has the self-knowledge and wisdom about Washington to write the passage quoted above, and the courage to publish it: that president deserves a bit more credit from the left than Frank is willing to give him.

It is like when people how things used to be (both sides at times do this, including dreams about what the Founders cared about) and forget about various things that were worse. To continue from the book review:

Frank may also be a bit overly impressed by what the right has achieved. Evelyn Waugh complained that the British Conservative Party had failed to turn back the clock by a single second. Have the Republicans done much better? (Waugh was speaking long before the Margaret Thatcher revolution, which really did change British society enormously.) Conservatives have dominated the debate, and usually the government, for three decades now, yet they haven’t managed to abolish a single cabinet department or eliminate a single major entitlement program. Nothing big has been “privatized.” Somehow or other, against all expectations and despite a conservative Supreme Court, abortion rights and affirmative action have been preserved. Gay rights are advancing so fast that the Republican Party itself is probably ahead of where Democrats were a generation ago. The Constitution has not been amended to require a balanced budget or forbid flag-burning.

True, they’ve pretty much killed the union movement. While they are not to blame for the effects of globalization and technology on income distribution, they’ve done nothing to mitigate these. And then there are tax cuts — especially tax cuts for the wealthy. That we have had. In spades. Actually, all this tends to confirm Frank’s contention that what Republicans really care about, politically, is money, and all that other stuff is just prole meat.

So, they have done damage, but not as much as one might think from the rhetoric. This isn't quite of "they are starving in Africa" variety, but it might not impress some people deeply hurting at the moment or who rail against flying man killing drones from the sky or something. Still, it does help keep the knife away from the throat. To end with something, I was skimming Disturbing the Peace, a Q&A of Mr. Havel (RIP) from the mid-80s. He was not a big fan of political parties. Havel's ideal was to have parties as a type of debating society, but have individuals run on their own. Their party origins might be known to get a sense of their beliefs, but they wouldn't be so tied and restrained as if there was two or more parties in place.

An interesting idea, though who knows if it would work well. Our Founding Fathers didn't care much for "factions" but soon enough they manage to settle into two.

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* The title is from the movie, which was on last night, Moonstruck. Another great line was from Nicholas Cage's character, after Cher's noted that it wasn't his brother's fault that an accident happened, one that created a rift between the brothers:

I ain't no freakin' monument to justice! I lost my hand! I lost my bride! Johnny has his hand! Johnny has his bride! You want me to take my heartache, put it away and forget?

What's dry logic next to that? Sounds apt in many Internet discussions.