Hayes and MHP

Interesting shows this morning (the "blessings of liberty" bit below hits upon Prof. Amar's 14A hook) with health care and women major foci.  Listening Ms. Kerber? Another good "Did She Say That."

Linda Kerber

Long term historian (re-reading Federalists in Dissent) is "liberating" herself from her position at IU.  Good luck!  I also enjoyed her No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship and her "republican motherhood" idea was intriguing.

Paul Gross

Good in the '90s show Due South, recently I saw him in Slings and Arrows.  I saw him in a few movies, lately Gunless (overly coy satire) and the somewhat overly precious but decent ensemble piece Wilby Wonderful.  The comedy/drama Men with Brooms too had some charm. Aspen Supreme was a more forgettable effort.

TV -- Nothing Special

Rules of Engagement was back, the "okay time-waster" Rob replacement away for now.  NCIS has a "very special episode" for the dear leader there.  Body of Proof was tedious again. Tone it down. Army Wives okay.  The Michelle Obama episode of iCarly was okay. 

One more PPACA Post For Now

It is time to move past the PPACA cases for the time being,* the next step the opinions in June, perhaps a separate volume for the various opinions likely to be in place there.  What is the under/over of the justices who will not have a single opinion? Three or so?  The contraceptives issue underlines that this doesn't mean some PPACA related subject will not arise before then. Chris Hayes will have a show on the matter this weekend.  Others will continue to talk about it.

My hope was that at least one conservative justice would be sane on the matter and vote to uphold the law.  Dahlia Lithwick and others think they have bigger game and/or Kennedy/Roberts are worried about the limited capital for judicial activism, so they will save their moves for other things. Who knows at this point.  One thing that many LOVE to bring up is the "notorious two-some" to underline the Court has no shame -- Bush v. Gore and Citizens United.  It's like the courts, you know, every other year decide elections and overturn seminal congressional legislation.

Bush v. Gore shocked some people, even those who knew the participants and saw them work for years (Rehnquist since Nixon days and before), because it was not "business as usual."  I was around then.  I don't speak from naivete here, I think.  It was a rather special case, a messy election, a virtual tie and chances are Bush would have won in the end.  Congress was split and the tie went to the state count, the state run by Republicans.  This doesn't make the ruling okay.

But, it doesn't make it overturning a major piece of legislation that was debated over a couple years etc. either.  In fact, cynics can look at insurance companies, who might be thought of as simpatico with conservatives.  They agreed to the law.  Of course, they can just toss out the whole thing.  Eh.  This Court, since the days of Rehnquist, don't like to toss the baby out with the bathwater.  They like to find some middle path, even if it isn't a great one. Kennedy probably would be loathe to toss out the whole thing.  The result doesn't help insurance companies, does it?

Take CU.  I don't think the result there is horrible, since I'm of a libertarian bent on First Amendment issues, and don't think there is a "corporation" exception there.  Also, that wasn't some unprincipled ruling on some level.  It was "activist," yes, but the four conservatives for years voiced their opposition on constitutional grounds.  Unlike Scalia voting to uphold the pot ban in Gonzalez v. Raich while finding this law so bad, they were consistent for years. Also, seriously, just what did the law do?  Money finds an outlet.  And, they didn't just knock the whole law down.  They upheld the disclose and disclaimer aspects plus the foreign money part, the former leaving open -- some real chance for regulation.  Campaign finance laws are not dead.

Maybe, I will no longer have much to hang on to if they overturn the PPACA as a whole.  I'll just have to wait for Republicans to get into office, so they can pass RomneyCare with the right magic "tax" word included, but with more anti-women measures and more watered down reforms than the 1970s era moderate Republican measure that was passed today (note, that I'm not saying it is Republican TODAY; this is akin to using the past to suggest the Democrats are the racist party) .  Other than the fact the ruling will be STUPID, one thing that will grate (I'll "actively" deal with it, while I "just exist")  will be the almost gleeful "told ya sos" by both sides.  One will the "great threat to liberty" brigade, the other will bring up the usual cases, the New Republic types tossing in Roe v. Wade.  And, some will calmly look from afar, with their comfortable health care, or perhaps, just dealing with the status quo the best they can. 

Then, it might be time to get the liquor. 

---

* I need to so that I can avoid analysts from Scotusblog, already subject to criticism from me for misstating what the law does, argue that "conservatives were well ahead in their explanations to the public for why their interpretation is the better one," though in a piece strongly criticizing a RNC twisting of oral audio.  It is arguable that the SG had some trouble on Tuesday (but see) and overall did well on some level. Still, "well ahead" is a bit much.  Anyway, Charles Fried, a "conservative," was no big fan of what they were doing, so let's use a bit of care. Or just move on.

Oops

Good Colbert interview with Emily Bazelon, SC suggesting at one point it is fun to one-up the S.G. (he did okay days one and three, really).  Well, I do know the justices (like Roberts on Lochner or Alito on insurance or ...) repeatedly were open to challenge by us peons.

Orals

The second day orals were a bit lackluster for the S.G., certain basics barely mentioned. This is really more for the viewers' benefit, the general public's instruction (justices too, if they were truly listening), though some rare oral could influence a vote or two.

"Supreme Court May Kill ObamaCare"

AOL News headline.  Murderers!

Bottom Line

The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.

Cuts to the chase.   At best, it is a crude "defense of selfishness."

PPACA Day 3B (Medicaid)

I find this argument of "coercion" absurd (don't give us money if we don't like the strings!) and the concerns set forth are blatant political questions.  I know the SC is "political," but there should be a "limiting principle."  The SG ended on an eloquent basis, for what it is worth:

In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem. ...

That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.

Paul Clement replied that "can simply give the States an offer that they can't refuse" is a strange sort of "liberty," but (as with various other things this advocate so many think so great* said)  this isn't true. The states DO have the right to refuse. They just do not want to do so because the alternative is that they would have to handle the health needs of the poor (which they once largely did) alone or just watch them suffer.  Also, he argued that something that "forces somebody to purchase an insurance policy" isn't "liberty" either.  First, yet again, this is not what occurs here [truth is of limited value, but it remains of some].  Second, yes it is, if it is part of an overall system that benefits all.  One might say "forcing" people to pay taxes is a liberty threat too, if we -- like the "Tea Party" -- have a myopic view of how government works. 

Meanwhile, the SC handed down a few opinions that don't appear to be too important, but might be of interest in context. 

---

*  Check, e.g., here or various comments by Dahlia Litwick in the past etc.  This is not to say he isn't an excellent advocate overall, especially given the marathon here [he did one better than the S.G., the morning argument today left to an assistant of the S.G.].  But, and I listened to the orals here and others he made, and my impression was mixed.  The same would be said for his briefing.  Of course, he has to brief imho weak cases. 

And, overall, though I realize it is not the same, the merits repeatedly are crap (see also, his promotion of liberty by support of Gitmo detention without habeas or promotion of DOMA, which has an added federalism "benefit" of harming states who support SSM). His dry business like approach there has benefits but also (to be honest) aggravates, since the dispassionate promotion of crap leads to a lot of well you know. 

PPACA: Day 3A (Severability)

I'm inclined to see the reasonableness of the government's position, but found the "mandate only" discussion today rather reasonable too. (Sotomayor: let Congress decide!)  Might just be the approach taken.  The orals were impressive, particularly the appointed advocate for the third approach. [Update: Cf. here and here.]

Thought That

Scalia gets it wrong.  Not alone. 

Limiting Principle

The "limiting principles" are enumerated powers (not "plenary police power," plenary within the powers), politics, textual limits (Bill of Rights etc.) and implied limits (like forcing state legislators to pass laws).  Not enough? We can make some more up.  Still not enough?

Helpful Government

The local government has helped me in three respects recently: a refund for a transit card (though it took a while), friendliness at the court to deal with a matter and help with a library concern. Appreciated with the clear numbers of people involved here.

Eighteen Acres

Written by a Republican insider best known for her dislike of Sarah Palin, this involves a female President, her female chief of staff and the newswoman who is having an affair with the first husband. Pretty good but loses some steam by the time the Palin stand-in comes in. Could use a bit more bite at times, but easy reading.

PPACA: Day 2

The S.G. did start off badly, but got better.  Really, probably deserved better though.  I don't know why they needed two hours. It didn't seem like that much productive was done with the extra time.  Little on the tax power.  The "it is clearly a direct tax" argument was just tossed there.  No one really cared about the blatant b.s. that it was so crystal clear that Hamilton/Madison would have thought a tax based on income and choices you make regarding behavior is a tax "directly" on people.  The third advocate seemed particularly gratuitous.  The conservative four started at the S.G. early on with various talking points that were refuted ad nauseam various places long before now, Scalia really coming off as lame. 

Some thought Roberts (some real questions for the opponents) and Kennedy are goners, but I'm am not ready to sign them both off.  Sotomayor was helpful (Breyer was strongly pro-government here, rightly so, but on some level, who cares? we expect him to be).  Kennedy at one point noted -- perking up the S.G. on what I see as a core irony (among other things) -- that if the government could just do basically the same thing via the tax power, it makes some sense to give it flexibility. I still don't see what difference it makes if the same thing is done via a tax break. Why exactly will it concern people if not having insurance will cause the same monetary burden under a different name?  It's moronic really.

Ginsburg raised Social Security, noting many didn't want to be "mandated" to get that either. Alito badly played insurance analyst.  There was little evidence he was much of a "yes" vote.  Thomas didn't ask a question.  I think a supporter would be quite worried early on; things got more cloudy later on.  This makes tomorrow's severability argument (ninety minutes) of particular importance since if merely the individual requirement is overturned but not guaranteed issue, it would be limited f-up time. There are various methods used to spread the cost and insurance pressure might exactly result in Congress finding an alternative by 2014, even some form of tax measure that you know does the same thing with the right "magic words" used. 

I'm sort of with the person here in noting that part of what the confusion is about is that  -- as Sotomayor noted was noted by Marshall back in the early 19th Century -- the commerce power is plenary in itself.*  Trying to form a "limiting principle" is like trying to limit the war power (btw is a "police action" not really a "war" under that?)  by saying you need one or you will attack major nations that didn't attack you. This still isn't a "plenary police power," since it has to be tied to commerce, which this very well is.  Not that the S.G. didn't offer other limits, besides those found in the Constitution (Bill of Rights etc.) or political in nature. 

Anyway, things end up with the sleeper Medicaid issue. 

---

* So, it is not necessary to limit things to "cost shifting" for individual users of health care.  Health care is like 1/6 of the national economy and it affects things in any number of ways, though not all as directly as individuals purchasing care themselves.  It is folly to pretend that the feds do not have the power to act as they did here, even if (like defense) the result is a whole lot of regulations, potential or otherwise. 

Doubt

Good film.  Agree with various that Viola Davis had a great scene as the mother.  Good DVD extras. Ultimately, contrary to the opening sermon, you are still alone in a key fashion with your doubts. 

Nature Upon Us

A recent member of the family, Clyde is not a cat per se but cuteness in a cat vessel.  One family member has long been a "cat person."  Now, others are.  Soon the idea will be to just get cat presents for all.

Cats like dogs have a symbiotic relationship with humans though as thinking beings, we should respect that they are not mere playthings.  Justice Douglas saw the instrumental character of nature as a whole, and even his famous dissent arguing that standing should be given to inanimate objects was somewhat instrumental in nature:

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.

This -- in a fashion -- reflex what was done yesterday.  The USSC brought in an advocate for a side that neither the federal government or challengers wish to speak for.  This wasn't a matter of theoretical interest. The USSC wished to cover an argument that held that they didn't have the power to do something because that was allegedly what the law demanded to limit the breadth of judicial power.  Nature too has a value, but sometimes no one has its back.  This includes the animate parts.

This need not be a matter of "standing" as decided by the courts, but also an interest recognized by the people overall. For instance, having animal welfare groups given the power to carry out and protect the interests of animal welfare laws as "private attorney generals" do in some contexts.  Also, of course, there are groups in general interested in protecting the well being of nature, animals and so forth.  More power to them all.

I also would reference Nature's Justice, cited earlier, that includes discussions by William O. Douglas about how he believes nature has a cleansing function and also one that brings a certain degree of humility regarding our place in this world.  Like animals, I think we need to remember that it is not just about us.  Plus, there are various issues involved, ecological matters a balance of many things. For instance, at one point, he ironically suggests nuclear power would be a means to limit the use of other more ecologically threatening means of power. 

I live in the "urban jungle," but my opening standard "cat blogging" sentiment shows that "nature" has some place even here.  One part of that is the much maligned in some parts pigeon, which is after all just a plebeian word for a dove.  At a nearby park, I appreciate the goings on of our leading urban aviary member, them also have entertainment value in their own fashion.  For instance, a local store sells small bags of sesame sticks, a tasty and nutritious snack. Watching what occurs when you toss a piece or pieces out in pretty interesting.  And, like an advance party, one swoops in and then a few more.  See also, bread and pretzels. 

Anyways, read Douglas reference the NYC subway while waiting for one and though it has its ups and downs, a trip on a NYC bus or train has its pleasures as well.  A half-hour trip on the bus recently was nice with various urban scenes occurring outside.  Urban life might not be for him, but it is not that bad.  There are even some signs of nature.

Lost Girl

There was a marathon on late night over the weekend and I caught parts of a few episodes.  Seems promising. Has a core sexual theme given her nature and one episode I saw was fairly explicit for non-pay cable on that end, including a lesbian sex scene. 

CJ Roberts Makes Sense

“It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”

Yeah. It "doesn’t seem to make much sense."

Anti-Injunction Orals

I originally felt this was a means to punt the PPACA case for the time being, but apparently no one (including USSC) really wants that, and it overall is a matter of prudence. Okay. Some justices also didn't seem so keen that a "tax" was involved. The S.G. did a good job there.

SCOTUS Watch

Stay frosty thats what the preacher man said
Stay Frosty
his words still racket in my head
Can't control your future
cant control your friends
in a world without ends...
Stay Frosty!

-- Van Halen

"Stay frosty" (which I first recall hearing on the show Reboot) basically means to stay safe but also on guard for danger.  It came to me in another context; the song has a general value.

This is PPACA (as with "mandate," I'm not with the slang) week at the Supreme Court, today being a sort of prologue with tax injunction arguments being made.  Per Holmes quote, this is an important set of cases in respect to the breadth of the law and principles at stake, but  not so "great" in that the bottom line is that the law is clearly constitutional.  One would desire a closer case with less partisan corruption to settle such matters. OTOH, I'm sure you can show me many cases that are far from perfect in that respect, so you take what you get.

With 26 states challenging the president’s signature piece of legislation, it is not inappropriate for the Supreme Court to schedule six hours of argument to ensure all points are thoroughly considered and vetted, given the complexities of the statute and the number of claims made against it. But the strength of the challenges do not justify the length of the argument. The Constitution’s text and history, as well as Supreme Court precedent from the founding to the present, clearly support Congress’s authority to pass the Affordable Care Act, including its “individual mandate.”

The general sentiment at the NYT Room for Debate blog is that there is value in spending so much time on these issues, though Elizabeth Wydra sounds a bit conflicted and someone else sees it more cynically.  I myself think this is a major case and deserves extra time. Don't think six hours.  Does the injunction and severability issues really need so much time?  Particularly since, let's be honest, the former seems a bit of a loser? Abortion was handled via two cases in a couple hours okay enough and it too had both procedural and substantive issues.  But, the nation is split on this issue, at least the parties, so the die is really cast. 

Meanwhile, the Supreme Court handed down a couple opinions, one a brief unanimous one (if equally split, Roberts not participating, on one issue), the other something of a punt.  The latter involves:

Stepping into a significant test of the President’s foreign policy powers, the Supreme Court agreed on Monday to decide whether Congress had the authority to dictate how the Executive Branch makes out birth certificates for U.S. citizens born abroad — in this case, in Jerusalem, a city that the U.S. government does not recognize as an official part of Israel.  At issue is the validity of a nine-year-old law in which Congress aimed to acknowledge Jerusalem as the capital of Israel.

SCOTUS held (Roberts speaking for the Court, doing his Marshall impression, Breyer dissenting alone) that the lower court was wrong to hold this was a political question, remanding it for them to decide the merits.  Sotomayor (Breyer agreeing with her standards) thought the main opinion was a bit too permissive, but as with Alito (in a brief concurrence) thought it was not a problem here. Some might see this ruling being handed down today as a symbol that the courts have the power to decide what the law is, even in controversial cases.  Maybe.

I myself, though Sotomayor's opinion is interesting [e.g., political questions include those not "judicial" to the degree courts are not very able to decide them per traditional legal rules], am wary of the political question doctrine unless it clearly entails a question left to other branches. Thus, I'm with the Souter/White here.  This seems to be a clear case, particularly given the two branches disagree. Seems an apt tie breaker. Prudence is a central concern here and usually some other technique can be used to get to the same end.  Anyway, I think Breyer should have let the lower court make its case and then note his position on the political question issue.  He could have briefly noted, unlike Sotomayor, he was currently agnostic about it.

Anyway, interesting that Sotomayor and Breyer were somewhat more of a voice of "judicial restraint" today, though of course just what that means is usually up in the air.  And, limited win to a long active advocate.

Rev. Joe

Good discussion of atheism on Chris Hayes and then the lady who said "I don't think Barack Obama's going to win the American Presidency in 2008" back in 2007.  Well, so did I. Just not on Bill Moyers.

Stand Your Ground & Florida

I think this is helpful in spelling out what to me seems to be a complicated issue. How would the reckless use of force play out without the recent law?  The shooter is Hispanic. A Hispanic suspect would be treated badly in certain cases too.  Lot of questions.

Dharun Ravi Verdict

A local hate crime prosecution related to a gay man that committed suicide gave many pause, underlined by the opening segment on "Gay USA" this week.  The hosts are okay about hate crime laws per se, but find prosecution here very troubling.  I'm wary about both (Hayes today references this) though respect their arguments.

The Way

[The footnote has a spoiler as to a supporting character, though nothing that will ruin the film for you or anything.]

"The Way" takes place on the Camino de Santiago, a thousand-year-old pilgrimage route across France and Spain. [Martin] Sheen's character, Tom, is a doctor living a comfortable life in California who decides to make the trek after his son is killed in a freak storm while on the pilgrimage.

The Way is written/directed by Emilio Estevez (his son), who has a small role as the son of the leading character, and it is an impressive effort.  Estevez is probably best known The Breakfast Club and other like roles, but he has directed before, his film about Bobby Kennedy perhaps the best known. Still, mixed bag, and I didn't take him as a quality director or anything.  I saw parts of the BK film and it looked decent though. I don't believe I saw any other works by him (well, maybe, Men At Work, but didn't impress much), including various t.v. dramas he directed.  An aside there, television provides options for many to try directing (or producing and perhaps writing) out some. 

This film is probably the best work he done though and it is an impressive piece of work. He has a lot helping him, of course, from his father (best known for West Wing, his acting chops go way back), a killer setting, powerful themes and an excellent supporting cast.  Deborah Kara Unger is perhaps the best of the three pilgrims "Tom" here hooks up with,* but all are very good as are a few people met along the way, including a priest/cancer survivor and sympathetic police officer.  Good use - of all things - an Alanis Morissette song - and a comfortable pace. 

Sheen chimes in: "Unfortunately, so often, religions, vis-à-vis dogma, separate us. But spirituality unites us in our common humanity, and that is, I think, the major theme of the movie."

NPR article/interview.  As I have noted in the past, "religion" is one of those things that interests me, including how the term is used.  At one point, someone notes an important event he spoke about is not about "religion" at all, after Sheen's character notes he isn't a very religious person.  Me, I think it must be in context -- the sacred moment and the meaning given to it is eminently religious, but the quote (see also, the article cited in the opening) is telling all the same. The word has a certain implication, particularly an "institutional" one. 

Either way, though it might be a bit too long, overall an impressive film, the sort of "independent" film that one imagines that thing would entail. One last thing I would say is that the film felt shall we say "adult." These all were characters at least approaching middle age (the son was "almost 40" when he died) and was dealing with things related to that.  The film had a maturity that would impress certain viewers.  Surely, so does other films with younger actors, a few films about teens quite mature too. 

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* The character starts off as a fairly angry sort and we learn that it was earned -- she had a bad marriage and when she found out that she was pregnant, had an abortion because she didn't want a child to come into the situation.  She was sad about it though, thinking of what might have been.  This is not novel.  It also doesn't mean she made the wrong choice or that she shouldn't have had the choice to make. 

Many understand this fact and it's appreciated, but it is sad that so many do not.  I heard this morning about how each Republican candidate for President was "pro-life," but so is Kerry -- he's a Catholic, and apparently follows that as his personal faith. The issue, however, and these hypocrites claim to defend it in other contexts, is if the state should prevent people from following their own path there. 

Anyway, one thing I have voiced is my annoyance that abortion is not addressed more in popular fiction, and I thought the incident was handled well here.  It was like many abortions -- a complex situation.  She wasn't raped.  She wasn't a teenager.  She wasn't sick.  It was a lousy situation, but she could have left him, etc.  Still, on the whole, she chose like some choose in cases others might not to have a child.  This is real life. 

Nature's Justice

Re-reading this Justice Douglas collection, he had a way with words, though a little sagebrush stuff goes a long way.  As to critics, yes, apparently an asshole, and somewhat a lazy opinion writer.  But, he often had the principles right, and as with privacy, a complete look at his writings suggest what more diligence could have offered.

"Obamacare" Adopted by Obama

[Today is the two year anniversary of the PPACA.]

I was never fond of that name -- the health care law, it seemed to me, was about us and our ability to seek quality care we can afford, not about the president -- and it's not like anyone was running around referring to Medicare as Johnsoncare or Social Security as FDR Security.

I agree but also understand Obama's strategy. Meanwhile:

From where I sit, there's no real doubt that he is. Much of the Affordable Care Act won't take effect until 2014 -- assuming it survives until then -- but several provisions that have already been implemented are having a positive impact.

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.

There is a thought that the USSC conservatives will upheld the law for pragmatic reasons, in part since striking down Republican themed legislation is not the best use of limited capital and it will look too political.  I think that is a real reason to be reasonably hopeful of a 6-3 or more ruling upholding the law.  But, another theme is that the Dems need to do a better job defending the thing.  I saw them doing so yesterday on the television, for instance, and there is a lot of stuff there.

This matter has been getting loads of attention for a couple years now and the same few things keep on being focused upon, the same myths promoted.  It does get tiresome.  Some polls suggest "the people" are against the law.  They aren't.  They are against a misguided limited idea of it.  When the things covered are pointed out, there is strong support. Such basics tend to win out.

Founders' Key

I received The Founders' Key free via the Book Sneeze program in return for my review.

The book interested me because it is advertised as an explanation about how the Declaration of Independence and Constitution are connected but "progressives" today do not realize this fact. This is misguided and threatens our liberty.  This not being my understanding -- see, e.g., A New Birth of Freedom by Charles Black (and, humbly, my own writings), plus the matter is of deep interest to me, I chose this volume for my selection.

I appreciate the intent of this book and to the degree it makes you think about the subject matter, including by reading and contemplating the documents involved, all for the best.  A full third of this not too large volume are reprints of the Declaration, Constitution, various Federalist Papers and Madison's essay on "property." Such things can be found online, so spending so much space on them is a bit questionable, and selecting a few Madison papers can be misleading.  Still, worthwhile. 

The book starts on a bad foot, however, by quoting Rep. Pelosi's now (in certain parts) infamous answer to a reporter who asked the who asked the constitutional basis of the PPACA.  Linda Greenhouse -- in a recent NYT blog piece -- cited it to underline how ridiculous it was to assume the question was debatable.  Others, such as the author of this book, cites it to show that she and others have forgotten the limits of the Constitution.  Such has not been shown, nor the argument provided that she has "disconnected" that document from the Declaration.  In fact, the right to "secure" the liberties of the one is in part provided for by the powers found in the other.

The book continues such a shall we say two-headed theme.  There is an implication that many people, including "progressives," do not believe in the two documents.  Selective statements by some that some aspects of the Constitution are problematic or disagreement on its meaning do not show me proof of this fact.  The book -- as many of this sentiment do -- provides interesting and valuable discussion on the various principles involved in the two documents.  Specific aspects can be debated, but that isn't too important here.  The problem is that there is some conclusion that disagreement over details means the other side misses the importance of the overall principles.  A talking past takes place.

Nonetheless, I respect the effort and respect for the principles, some common ground possible there.  So, I think a mixed rating is appropriate.

The Case Against Liberal Dispair

Back to Real Threats to Individual Choice

This incubator is overused because you`ve kept it filled
The feeling good comes easy now since I`ve got the pill
It`s getting dark it`s roosting time tonight`s too good to be real
Aw but Daddy don`t you worry none `cause Mama`s got the pill
Oh Daddy don`t you worry none `cause Mama`s got the pill

-- Loretta Lynn

This was controversial thirty years ago, but seems like it still is, huh? In The Means of Reproduction: Sex, Power: the Future of the World, Michelle Goldberg explains the history of federal funded women health efforts here and abroad. This included birth control and reproductive health in general, the bipartisan nature of the affair shown by the efforts of the Ford Foundation and support of Rep. George Bush (B41) to overturn the 19th Century federal law against birth control.  At least back then, during the Nixon years, he was for an individual woman's right to choose whether or not to have a child. 

The basic idea is rejected by many people. As a whole, the nation accepts the basic idea that a woman has the right to choose in some sense. Many are not comfortable with the idea, particularly when it is done "wrong," but only a few wish to take the power away ala Rick Santorum. A large segment still is uncomfortable with the idea all the same, or the whole Sandra Fluke as slut idea (kidding on the square) would have been so ludicrous that it wouldn't have been raised. This segment helps to vote for legislators to in effect establish as the official understanding that an individual's right to choose is not really their own. And, to some extent, the Supreme Court has allowed this, even when it de facto seriously burdens women's health.

The federal government has refused to continue the funding because Medicaid clients have, under federal law, the legal right to seek care wherever they choose

Texas wants in effect to establish certain religious beliefs and hurt women in the process; again individual moral choice is NOT the point.  This is what "conservative" means these days and one of the biggest spin jobs is when those who promote these policies pretend to be libertarians concerned about the government on your backs.  Their success, like with the use of "Obamacare," is shown by the very need to waste time and effort to refute them.  The success is shown by acceptance, as realistically the best we can do, the denial of health care when "abortion" is involved.  The line drawn in the sand by the federal government on contraceptives and other health funding, however, provides some good news. 

These types of efforts are the other side of the coin. As shockingly a majority of the states go out there in some form (a few with Democratic attorney generals went around them, the governors acting on their own) to argue against that big threat to liberty, the PPACA, remember several of them support diminishing personal choice locally.  Legislation that uses free market principles to help more people have a real individual shot at health care should -- like Ford and Bush in the days of yore -- be something with bipartisan support.  This is why the right of privacy and personal liberty obtained support from REPUBLICAN appointees.

When those using the pill are "sluts" and jokes are made about putting aspirin between your legs and all, apparently we have a long way to go. Until otherwise shown, only one party, at least nationally, is seriously credible on this issue.  Push them as much as you want, but for those who go the "two peas in a pod" route, what is wrong with you?

I still think the tax argument is pretty good

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United State

The PPACA covers all three.  The CC argument is fine too.

Tebow

I still think this is a strange trade and that the Jags would be a more logical fit down to the faith angle but this new version of the post will accept it as a given and try to see it as a positive change.  But, it still seems to be asking for trouble, down to the QB's confidence. 

SCOTUS Recognizes the Reality of Plea Bargaining

And Also: Nature's Justice: Writings of William O. Douglas is a good introduction to the idealistic side of this controversial justice. You can then read Wild Bill, a bit of an over-correction.

As we await the high point of the term, the PPACA orals, some other matters of note continue to take place.

Scalia dissented from the bench today respecting two opinions, written by Kennedy (joined by the "liberals"), providing protections against ineffective counsel in respect to plea bargains. There were various complications involved in the case including proper application of habeas and the "broken egg" problem (a pre-trial plea bargain based on various things that no longer are present, including avoiding trial), a point focused on by Alito's separate dissent.* And, the reach of the rulings are unclear given certain limits set forth and leaving lower courts much discretion to unscramble those eggs as they deem fit.

Of primary importance is that the majority realized that nearly all prosecutions are plea bargains, so it is important to apply due process rules to the procedures. Scalia [in a section not joined by Roberts; Alito dissents separately) goes all holier than thou:

In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Sadly, he says, the Supreme Court no longer finds it "somewhat embarrassing" but a "a constitutional entitlement." Oh please. Plea bargaining has been in place in one form or the other for quite some time. I read Samuel Walker talk about the fool's errand of those who tried to prevent plea bargaining in Sense and Nonsense About Crime twenty years ago. The majority doesn't make it a "constitutional entitlement." The government sets up the system in such a way that it is a major part of how things work. Just as police and prosecutors have loads of discretion to arrest and charge, only a game of "let's pretend" can avoid realizing it is a major part of the system. Like property that need not be allowed, once it is, it cannot be taken away or used in a way that violates due process.

Scalia is the one with a cheap view of criminal justice here. Four justices, including the Chief Justice, puts forth a limited view of the right to counsel. It rejects the reality set forth in the majority that it isn't just there to ensure the trial itself is fair and the person is convicted correctly in that sense. The right to a lawyer is one that is important as a whole. That's why Miranda rights speak of a "right to a lawyer" even before you step into a courtroom. Real life is not the pretend version of the dissent, one where one might imagine liberty and property taken away only after a trial. Often, the key moments are elsewhere, including when you surrender your rights via a plea bargain.

Four justices wish you to believe that the mere form of a "full and fair trial" is all you need, though one the majority keeps on trying to make "too long, too expensive, and unpredictable" [ironically, a core reason for plea bargaining is to avoid this sort of thing] per their misguided attempts at "perfection," which defense lawyers will be surprised to learn about after the limits put forth since the days of the Burger Court. The state sets up plea bargaining as THE major means to dispose of cases. It has responsibilities to ensure it is done right. If it wants, it need not use it, but as noted above, good luck with that. As with illegal confessions obtained in the station-house long behind that trial which can taint that conviction, even if the person is factually guilty and the jury so holds, mishandling plea bargaining -- which can result in (gambling or not) significant less time in prison and at times escape from death row -- taints the judgment.

If plea bargaining is so horrible, the path is not to avoid it as distasteful, but address its application. The dissent doesn't seem to want to end the practice. It wants to avoid dirtying its hands in trying to find some sort of rough justice. The important aspect of the case to me seems to be the realization that plea bargaining requires various safeguards, the overall principle more important (if not for these two defendants) than the results in the specific cases here.

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* See also, his separate concurrence in a procedural ruling, speaking of people who have to "dance to the EPA’s tune" and other "unthinkable" things, at least when property rights are at stake ... another example of "angry Alito."

Atheism: A Very Short Introduction

I have read a few books (including history, Koran and this one) in this series and find them as a whole enjoyable. Linda Greenhouse just wrote one on the Supreme Court. The atheist volume, a good read, supports the "positive" brand of atheism I prefer.

Intimate Life, Judicial Review etc.

The Sodomy Cases by David A. J. Richards is the "Landmark Cases" volume for Bowers and Lawrence, providing good background, if you could get pass the trudge of the introductory chapter.  It provides some general principles (the author working on them at least since the 1970s) in helpfully summary form.  A basic one is that "sectarian" legislation is constitutionally problematic.  "Sectarian" in this context means "internal to a moral tradition not based on reasons available and accessible to all."  A mid-1980s law review article expanded:

general goods are those goods whose nature and relative value is free of sectarian disagreements so that all persons, irrespective of religious or philosophical convictions, could reasonably agree that the criminal law should protect those goods from harm. But because there are sectarian disagreements about fetal life, it is not reasonably understood as a "good" in this sense, that is, as a good whose protection is an adequate justification for the application of criminal law to choices protecting reproductive liberty.

This suggests the "secular state interests" Justice Stevens referenced regarding birth control, abortion and euthanasia contexts or the "ethical and moral principles" of Lawrence v. Texas and the matters of "conscience" left to personal choice in Planned Parenthood v. Casey.  Originally, the forbidden zone would be a more homogenous matter of religious dispute, now it is a more open-ended affair, though some might still see it in First Amendment terms (see, e.g. U.S. v. Seeger).  Just how broad "sectarian" should be defined is open to debate -- I myself do not quite know how broadly Lawrence did so beyond cases often deemed "privacy rights" in nature and doubt (contra Scalia) it wanted to end all "morals" legislation as such.  There seems to be some "public morality" that is accepted and Kennedy himself sees fetal life as such, one that can limit reproductive liberty to some sense, particularly after viability. 

This is essentially not a question of personal "preferences," but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

So argued Justice Burger in his concurring opinion of Bowers v. Hardwick and  such is the sentiment of Justice White's majority opinion.  Some still have this point of view in this area, arguing that such "moral" questions be left to the legislature, Madison's factions (Federalist No. 10) dealt with there.  White is an interesting character there in that he -- unlike Scalia or Thomas -- supported Griswold.  His Bowers opinion, however, was foreshadowed some years before in a dissent respecting a zoning law blocking a grandmother's living arraignments with her grandsons. It supported a substantive due process, evolving understanding of "liberty," but only so far.  Not comfortable with the whole thing.*

Richards is more comfortable and would apply the principles in a more evenhanded fashion. Judicial review is a positive in that it is "grounded in arguments of principle" that is less possible in various respects than political decision-making tied to elections and partisanship.  The latter spoken of at times in Prof. Dworkin's writings.** A reasonable and consistent approach to the "contemporary understanding" approach to judicial review, one that still is loyal to the basic principles of the Framers (and often honoring open-ended provisions found in the text such as "privileges and immunities" or "due process")  would honor a right to "intimate life."

[Thus, Prof. Jack Balkin and others argue for a type of liberal originalism, apparently to not just approach things via a common law approach ("living"), but -- see that link -- navel gaze on what exactly what the original meaning, now more open-ended, means exactly. That is, the "originalism" part.  I jest.  Sort of. ]

As Richards notes in a later book challenging "fundamentalism" in law:

Like the right to conscience, [the right to intimate life] protects intimately personal resources (thoughts and beliefs, intellect, emotions, self-image, and self-identity) and the way of life that expresses and sustains them in facing and meeting rationally and reasonably the challenge of a life worth living -- one touched by enduring personal and ethical value.

There is a clear overlap there with freedom of expression and conscience, The Sodomy Cases arguing that the Supreme Court had to first strongly secure those rights, including opposing sectarian state religious establishments, to be ready to fully secure a right to privacy.  Nonetheless, intimate life is firmly a basic "inalienable right," one honored in the time of the American Revolution, if selectively denied to certain groups, particularly to slaves.  Therefore, it would be wrong to hold that it has "little or no textual support in the constitutional language" (particularly the Ninth Amendment) or history.  Unless one was selective about it.  There is a key equal protection issue there and the author ties gay rights to racial and gender equality.   We see this today in bullying.

On some basic level, these principles have broad acceptance, but they continue to be challenged in various respects.  Partially, it is a matter of selective respect, like Republicans who suddenly oppose free market friendly insurance policies when Obama signs it into law.  Sometimes, it is based on "sectarian" sentiments that are colored by racial, religious or other biases that are suspect.  It also might be a somewhat conservative approach that wishes to go only so far, but the lines drawn can be somewhat curious and on closer review, a bit too arbitrarily drawn.  

Consider Prof. Ely, who supported abortion rights legislatively, but was very wary of some "right to privacy" judicially.  But, his political equality approach to judicial review fully/equally applied very well might cover this ground, and even he thought there was a principled approach to strike down the unequally applied law in Griswold and opposed class based abortion laws like Maher v. Roe. And, eventually, even Roe as a matter of precedent.  One thing Ely cited in a famous law review article criticizing Roe was that fetal rights can be seen as a "minority rights" issue, but embryos and fetuses are not constitutional persons.  It is quite true, he too is a vegetarian, we protect animals, but requiring women to be vessels for their growth akin to a joey in a kangaroo is again not something done.  The ruling addressed that, including with a long look at history. 

And, other challenges are made as well. We will continue to be "sectarian" on some level there.  The best thing one can hope for is some protected sphere, equally and fairly applied as best as we can, continuously tweaking the exact nature of the whole affair.

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* This explains the overall nature of this much disliked opinion and underlines the importance of authorship.

Justices Burger and Rehnquist were never gung ho about the basic principle of a "right to privacy" while Justice Powell was, but basically had a block as to gays (ironically, he had many gay clerks, liking a certain "type,"one eventually arguing Lawrence v. Texas, though he first went through a heterosexual phase). He later admitted error on the point.  O'Connor's vote is a bit more curious though -- like society -- she too "grew" on the matter as shown by her later votes and actions. 

Lower courts, however, cannot psychoanalyze, and needed to follow such a precedent, though it was a poor fit as Lawrence eventually held.

** The Constitution specifically obligates political actors to swear or affirm loyalty to its dictates, constitutional review ultimately more likely to occur in practical ways outside of the courts.  Like it or not, however, people tend to entrust the courts with a special duty here, its very make-up honoring the assumption they will look at things differently. 

Supreme Court Watch

Some notable cases this week, including life imprisonment for non-capital offenses committed by minors. Also, important patent case and a notable family leave regulation was decided today, even Scalia rejecting (wanting to go further) the congressional second guess of the plurality's rule. Good dissent.

Peyton

So, looks like he going to Denver.  I guess they want more of a sure thing Elway than Tebow, who I think can thrive in the right place, no Eli or Tom, but surely has the passion and hard work down.  Maybe, down South will work, his faith a plus for many fans there.

Pelfrey

It is the lazy choice to keep this guy and will add insult to injury in what promises to be a bad year as a whole.  I'm tired of him and rather some retread short term.  Will he suddenly be okay?  Maybe, if we close our eyes and wish real hard!  Innings eater, they say.

Brian Lamb Stepping Down As CEO of C-SPAN

Item. He's one of the good ones -- keeps things smart and fair.

The Adventures of Johnny Bunko: The Last Career Guide You'll Ever Need

Isn't life a bunch of "WTF" moments? Don't know about that subtitle, but this manga style book is worth a read all the same. The outline:

1- "There is no plan."
2- "Think strengths, not weaknesses."
3- "It's not about you."
4- "Persistence trumps talent."
5- "Make excellent mistakes."
6- "Leave an imprint."

I don't read much of this sort of stuff, but if it isn't "novel," it still packs some informative stuff in an accessible format. And, I too agree with Diana when she says that “this isn’t just career advice, guys. In some ways, this is what it means to be alive.” After all, the "career" need not be business; even life counts.

Overall, I like the graphic novel format. I even read one of Pride and Prejudice as part of my Jane Austen period last year. One on the health care law (I'm sooooo tired of people talking about the lawsuits ... six hours of this stuff next week ... sheesh*) is on my list. The illustrator of this one illustrated a fictional one (Lost Girl) that also looks good. There is a sci fi t.v. series by that name too. And, a D.H. Lawrence novel.

Colorful.

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* Partially because I think the other side is so  lame.  One comment underlined the point by referring to a two hundred year old case that showed the connection between having insurance and protecting interstate commerce.  

My Week With Marilyn

The movie started with this boring Brit (the "my") and spent too much time on him for me to be interested. Bored, I turned it off to watch Army Wives. Later Vin Scully was doing a Dodgers game. Strange to listen to a ball game with a solo guy in these days of tag teams.

Army Wives

Another comfortable episode without any real bite but pleasant enough. Susan Lucci had a good cameo. CJ had some knowing looks.

“hearing to speech"

Nelle Morton coined the feminist principle of “hearing to speech.” Morton’s new understanding of hearing and speaking came to her while she was with a group of women who gathered to tell their stories. As one woman shared her story – a story which at times reached points of excruciating pain – no one moved or interrupted, everyone seemed to be holding their breath. At the end, when the woman finally finished, she said, “You heard me. You heard me all the way – I have the strange feeling you heard me before I started. You heard me to my own story.”

Morton recognized that hearing to speech, hearing all the way, was a “complete reversal of the going logic” in which a person speaks so that more accurate hearing may take place. What Morton was instead witnessing was a depth hearing, a kind of hearing that engages the whole self to the point of holding ones breath in order to allow the coherence of the story to form and come together. This kind of hearing evokes “a new speech – a new creation” – it enables one to be heard to ones own story, which then creates the possibility for new imagining, an imagining that contributes to the mutual empowerment and transformation of both hearer and speaker.

Scholarship is very personal in nature. I think people write and study because they care deeply about a given issue or circumstance and hope to impact it and make a difference for the better. If scholars would be mindful of that and keep it in mind as we engage with each another’s work, we may be more successful at bringing out the academic best in one another. We should of course point out the blind spots and shortcomings of each other’s work, but we must do so out of a sense of mutuality, with encouragement and respect, knowing that when we hear each other to speech we not only participate in another’s empowerment and be-coming, but also help tap into the source the of new imagining that can “break through political and social structures and imagine a new system.”

-- "Hearing Each Other to Speech in the Academy" By Xochitl Alvizo

The "hearing to speech" metaphor was referenced in Sodomy Cases and a search also obtain this UUA discussion of abortion:

What I see as the real challenge of the abortion issue is how we choose to be present with women in procreative crisis—how we choose to honor their needs and concerns. It is what feminist scholar Nelle Morton calls, "hearing each other into speech." It is what Gethsemane refers to as "the call to watch."

The lead excerpt's author also is connected to something known as "pub church," which I see has its own Wikipedia page, so it clearly arrived as a concept. The first Christian churches were often meetings at homes, so why not have religious meetings at pubs or cafes or other public places?

Anyways, I checked out what turns out to be the fourth (there is a fifth now) version of the UUA pocket guide, a sort of "very short introduction" affair. It was sort of a rambling affair, but it gives you a decent taste of the basics of the religion and its history.

Rev. Joe

I see value in a "Gaia hypothesis" of the earth as an interconnected entity and think there is a pragmatic and moral value in acting with that in mind. Nature religions seem to me to have a certain value there. It all does warrant a bit of humility on our part.

Cafe Blossom

After the one downtown was too crowded (seemed a bit upscale), the one uptown did the trick. Nice service, pretty good food (yummy nachos; "cheese burger" could use a bit more spice, but good; large piece of cake) a tad too expensive. Quantum Leap is a bit better.

Ethnic Days

Today's St. Patrick's Day (Irish), tomorrow St. JP Day (Irish/Italian) and Monday is St. Joseph's Day (Italian).  For the last, we have the 20th anniversary of My Cousin Vinny.  Tempus fugit!

Various

Interesting background to "lambda."

Looking over The Sodomy Cases again, the book is rather good, though it starts off with a bit too erudite sounding preface of sorts. Good material, but some might not like the style. I also still think that instead of spending two chapters on Griswold and Roe, that could have been one chapter, and one could have focused on pre-Bowers gay rights law. There was after all a chapter about the interim between the two sodomy cases.  Overall, the book is fairly down to earth and has some powerful insights that fits the issue into a universal context. 

As a political activist, a host here thought Game Change was a bit "didactic" and "basic," the other "cartoonist," though both thought Moore did a great job.   I went back and forth when first mentioning it, but again think the broader issue isn't to think as an activist.  And, as I noted, some activists actually LIKED it on that level.  Some truth all around.

Also, Logo is going the Bravo (used to be a PG rated IFC, just like AMC used to actually consistently show American Movie Classics, now the role of TMC) route: watering down its original purpose.  Will there have to be a "real" GLBTQ channel now?  here! can serve that function, perhaps, but it appears to be a pay channel (I get a lot of channels, but not that) of limited reach. Still, with so much niche programming, an opening is available for those who do not want a somewhat more gay Bravo channel.

Real Women Deal With This Too

Doonesbury Enters the Doctor's Office

Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual's freedom to make such judgments.

-- Justice Stevens

Doonesbury this week has a series with bite about a state that does not trust a woman and her doctor regarding such questions, selectively at that.  I talked about ultrasound laws here and here and it's useful to remember that a majority of the laws in place do not force women to have an ultrasound. They truly further autonomy in various ways, such as requiring ultrasounds to be an option (putting aside if this cost is medically necessary in certain cases) or to allow the woman to see information if one is done.   Even Texas makes certain exceptions:

A woman would still be subject to the sonogram but would not be required to hear an explanation of the sonogram images if she certifies in writing that her fetus has an irreversible medical condition as identified by a reliable diagnostic procedure and documented in her medical file.” Based on this reply, it seems that the torturous description I'd borne was just a clerical mistake.

Minors and rape victims also are made exceptions.  It is useful to know just what might be at stake here with a "transvaginal" ultrasound as compared to what many think of in this situation:

Note that, contra the rhetoric of the governor of Virginia, this is not just about the "right to know," but the insistence that you get it and listen even if you don't want to do so. In fact, there is some effort to keep you from knowing everything, including the obligation of doctors to provide certain information that might lead a few to abort troubled pregnancies. Again, where are the "they are commandeering us into buying insurance" (they are not) crowd here?  Anyway, doing a search for the transvaginal probe led to this more explicit image:

I'm sorry for something that looks pornographic, but that is a sample image provided for training purposes. [See also a link here; really, the visual is like a modern day clothes hanger.]  Justice Kennedy noted in the D&X abortion case that: "Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense." They also rather not have certain procedures when they are not medically necessary. This includes, selective religious freedom alert, not having the state force its morals into the privacy of your doctor's office and require medical procedures to so further.

The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.

Yes, Justice Douglas, but the state is trying to save the woman's soul here, putting aside there is little real evidence that this will do anything.

The "sodomy cases" were so important because they hit to the core of privacy and equality as well as personal moral choices. They were not merely about certain sex acts, but basic rights. The attack on women's reproductive freedom, down to contraceptive choice, is important ultimately for the same reasons though they also have immediate health effects.

Meanwhile, the USSC will soon spend six hours on that great threat to liberty, providing more equitable health care.

Thomas Thrives in A Friendly Setting Again

The importance of having Republicans on Maddow (and vice versa)  is to see the other side aren't aliens. I wish he would speak at oral arguments.  He has a p.o.v. and isolating himself is unhelpful.

Good to hear he isn't big on hunting (suggests it would be interesting if they arm the animals).  The Flagrant Conduct book also comes to mind.  Justice Breyer at one point in the argument asked the state to give a "straight answer" to a question and this received a laugh.  The author, who was there, noted that Breyer didn't know why they were laughing; Justice Thomas had to explain it to him.  Breyer said "oh."

I did not read Thomas' autobiography and have no real incentive to do so.  My impression is that Thomas is a complex individual with a troubled biography in various ways.  His life story has a lot of impressive stuff in it though I think he misses some things and is wrong about some too.  Very wrong in some cases. And, I rather someone else was nominated, even if a conservative had to be chosen.  Nonetheless, I reject those who just want to caricature him as this horrible person or a brainless sort who just follows Scalia.  Patently unfair.

Life is too complicated for that sort of thing.  I can strongly disagree with people without missing their complexities and good points.  It is partially why I am upset he isolates himself as much as he does.  The isolation is not surprising really and whatever it takes to make his life a success.  There is value after all about just being a justice. "Isolation" can be exaggerated, since he does do a lot of these events.  And, he comes off as a friendly sort of person, if a bit shy and reserved.  Someone who might be wrong about some things, but not an "other" you can simply dismiss.

I strongly oppose certain things and people but that sort of thing is a bridge too far for me.  Fairness applies to all.

[I read about The Wise Kids after writing this and it seems like just the sort of film we need about  religious faith that after all guides the lives of large chunks of people in many areas.  The same applies to Higher Ground, which for some reason is taking a long time to get to my library.  Meanwhile, I'm watching various other DVDs that come in.  In other words, films that show some that those religious sorts aren't all stereotypes, but complex people that make life as interesting and aggravating as it tends to be.] 

Rachel Maddow Has Republicans On

She actually is getting a few, and not only Meghan McCain and that gal who doesn't like Palin, to come on. Well, good to see they aren't all weenies. Really, why not?  Show the troops you are able to face up to the enemy. Don't be a bunch of incestuous cowards. See also.

More on "Flagrant Conduct"

For those who want some further reading -- other than the cases themselves -- to Flagrant Conduct, there are several books that talk about legal matters involving what might completely be called the GLBTQ community.  The Landmark Cases series has a book on The Sodomy Cases, which some Bronx book guy reviewed over at Amazon:

This is somewhat of a rambling account of the "Sodomy Cases," namely Bowers v. Hardwick and Lawrence v. Texas. An ironic name given the latter case reminds us that these cases are not about a particular sex act alone, but the right of privacy, equality and liberty for homosexuals and others that goes beyond "sodomy" itself. Or, as the author notes here, freedom over one's intimate life.  [more at link]

The series book on Griswold v. Connecticut is better and along with the more tome like work Liberty and Sexuality provides an overall look at privacy cases as a whole. Courting Justice: Gay Men And Lesbians v. The Supreme Court (as an earlier book shows, the authors are a couple) is a laywoman's comprehensive look at the issue from the WWII (when there was perhaps a gay justice) to right before Lawrence, the law of which gets a mention in another case. And, of course there are lots of books on various GLBTQ issues and history, down to Out Behind the Desk: Workplace Issues for LGBTQ Librarians.

Lawrence v. Texas gained strength from history and underlined that when defining the contours of the Due Process Clause that history is not fixed to the time of the framing of the Fifth or Fourteenth Amendment.  In fact, it set forth the last fifty years as the most determinative.  This "common law" approach, which recognizes developments in society and society's laws as an important factor in fleshing out "liberty" (and striking down certain laws or official actions violating the generally accepted understanding or an evenhanded application of it via federal judicial review) is not to the liking of everyone. This is notwithstanding (see, e.g., Seriatim, discussing the justices in the first decade of the Supreme Court and here) that many probably thought this was the way to go from the beginning.  Some would leave things more to the people:

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

Justice Scalia* also takes this approach as did CJ Rehnquist to large effect though both were less accepting of democratic and local decision-making when they felt the Constitution clearly compels the opposite, including when its very words does not expressly seem to do so to others. Suffice to say that I and others think it also limits legislatures when privacy and equal protection rights of this sort are at stake.  Nonetheless, particularly given that the courts often follows its lead (the book noted the strategy of reassuring the Supreme Court that it was merely following what the public has broadly accepted, not some broad open-ended thing like same sex marriage), the public and its legislators and state courts matter a lot.  When Republicans and state legislatures go too far respecting reproductive health and there is a backlash, it reaffirms:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Note, "necessary and proper" can apply to rights and powers as shown by the changing views of economic regulations in the 1900s. Also, societal practices -- such as in sexual matters -- can be a means to show the contours of these "truths" even if laws on the books, particularly if applied strictly and harshly, might be cited in contrast.  Early practice brought forth few laws and much determined by "common law," but practice continues to have some force even today.  The proper line there was always debated, as it continues to be, but few are strictly on one side or the other.  Ironically, even many (like the Tea Party) that appeal to originalism shows the truth of this dynamic.  There is some dissonance there in that original understanding and history is cited when the it doesn't quite take them where they want to go.  History is understood through the gloss of their own experiences and understandings. 

Reality can be denied but it is still there.

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* One thing that some appreciate about Scalia is that he actually responds to the opinions of other justices, be it via majority opinion, concurrence or dissent.  This is appreciated but it might be more so if he tried a bit more to actually walk in the shoes of the justices a bit more instead of viewing things -- like the most biased Internet comment on some blog -- firmly through his eyes, and often sneering while doing so.

His dissent in Lawrence is of this character and Thomas' brief dissent that he thinks the law is "silly" but that it still isn't unconstitutional (ala Justice Stewart in Griswold) loses some of its charm in that Thomas joins such a screed. The word is apt and it is a shame that such non-judicial temperament is found in a justice deemed the model for many people. 

The state was never really that gung ho about defending the law and the unprepared D.A. who did the oral argument (most of the work below was done by someone else) cheapened the affair (yeah, like the previous sodomy case, it turns out he was having an affair too)  by not providing even a half-way credible performance. If nothing else, Paul Clement should do a better job of it with the PPACA and DOMA. 

Obama (nerd style) Calls Out the Rs on Energy

I think I'll stick with the current model, Romney et. al.  We can instead spend time in "missing the forest for the tree" land.

Kory Stamper -- Tina Fey of the Lexographer Set

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