Anti-Prop 8 Amici Briefs

I discussed an amicus brief in support of Prop 8 while noting the notable fact that many states did not join even when their own practice would seem to merit it two weeks back. A few more notable briefs were released today opposing Prop 8: thirteen states (including four states without even a civil union/domestic partnership regime*) and D.C., the state of California (leading with an argument against standing that might be the path ultimately taken) and the U.S.** As a whole, largely predictable, covering now familiar themes; few thoughts below.

First, it is interesting that a few states in effect joined a brief that goes beyond the current law of their states.  Second, the states brief does something not seen much in the various briefs though addressed in the district ruling: a direct reminder that sex discrimination is involved:

Proposition 8 similarly restricts the right to marry by drawing distinctions according to gender and by using that personal characteristic to define an appropriate category of marital partners.

I personally think this is a strong point, but for one reason or another, the various parties focus on sexual orientation discrimination. The Obama Administration brief is in promotion of just that -- it argues that sexual orientation deserves heightened scrutiny and Prop 8 does not meet that test.  Its DOMA brief added a few pages to note that "rational basis with teeth" also is violated, but does not appear to go that route here.  Other parties would gladly go along but also wish to point out that rational basis  fails too.  The Administration might be wary on that front in respect to state marriage laws given the potential reach of the results though does note that "particular circumstances presented by California law" (e.g., broad rights to same sex couples)  make this specific case something of a narrow question.

The states brief uses the gender point to deny the arguments set forth by their opposite members that striking down Prop 8 will make marriage regulations too hard to come by -- "a personal characteristic, unrelated to one’s qualification for marriage" is the problem here.  For instance, age is not an "intrinsic trait," but a changing, temporary barrier.  Incest rules are based on the "nature of relationship" (in practice, it applies to certain blended family relationships not based solely on blood). Consent is another proper concern, one not merely based on "personal relationship."

The California brief argues that it is sensible for Art. III purposes to only allow actual government officials, not merely private parties to defend ballot measures, especially because there is a democratic check on the officials involved.  I am not really convinced since the net result here is that a means specifically set up as a popular check is somewhat nullified [but see edit] if the state is not going to defend it as it works its way up the courts.  Not a big fan of the proposition system but as long as it is deemed legitimate, the state supreme court (accepted by the 9th Cir.) standing approach (based on reading of state law) seems valid. Still, the argument [edit: this brief provides possible ways to defend the concern I cited, only making the argument stronger] might reflect current doctrine, at least enough to be used to punt, and it has some valid aspects  The state adds an argument on the merits, including -- contra the pro amici -- noting that marriage equality (to cite a subheading) "Furthers California’s Interests in Ensuring a Stable Home for Its Children." 

The matter will be argued late March.

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* Prop 8 is a problem in particular because the right in question was removed without proper cause, violating rational basis review in the process.  Still, the overall tenor of the briefs go beyond the limited question and honors the unions in question. At the very least, the states brief has arguments that call into question the laws of the states that signed on whom have no specific means to protect the interests of same sex couples.  Latter day state DOMA laws come to mind here.

** As noted at the link, even though it did not appear to necessarily be what would happen, the brief deals with a narrow question, not addressing the standing issue. The federal interest is more apparent on the merits (equal protection) than respecting standing in respect to state ballot measures. Still, it could advance its arguments to support the state's argument regarding the proper advocates in court, including against the claim the U.S. should not have standing even in the DOMA case since it supported (though still enforcing the law) the lower court ruling.    

"Justice Stevens Tries to Rehabilitate His Unpopular Record"

Reason is a libertarian leaning publication and from time to time I read stuff there that is of interest and value. SCOTUSBlog flags an article entitled "Justice Stevens Tries to Rehabilitate His Unpopular Record."  Not being aware that he had one -- unless we are talking about various cases that one or the other side didn't like, but isn't "his" specifically since they tend to be joined by other justices (not really going to defend his flag burning dissents though) -- this caught my eye. 

The SCOTUS website has a tab for speeches and basically he dominates with a few from others such as Justice Ginsburg.  Two things immediately come to mind before even reading the piece -- (1) The guy is over 90, so come on, give him a break (2)  He always liked to talk and/or make his personal opinions known, noting in fact that on principle he thought it important to make his own views public record.  So, defending unpopular opinions is not what first comes to mind when I notice he is going around a lot, giving speeches and all.  The speeches are on various subjects as well though it makes sense, especially on guns, that he talk about a few noteworthy ones that involve controversial subjects.

But, let's check out the article, since hey, reams of stuff has been written about Stevens (a couple hundred pages of a law review, e.g., on his jurisprudence) since his retirement, so why not more, covering a somewhat different perspective at that.  That's fine.  Won't necessarily be right, mind you, but that's fine.  For instance, contra a linked piece, don't think it undignified for him to continue to do what he did when he was on the Court, often by separate concurring opinions just for that purpose (the comparison to presidents is inapt on that front), namely, dispute Scalia's or whomever's views on the merits.  Scalia probably likes it.

The article, with nice use of ellipses, early on notes:

In the 1937 ruling which voided the liberty of contract doctrine, West Coast Hotel v. Parish, Chief Justice Charles Evans Hughes declared that because “the Constitution does not speak of freedom of contract...the legislature is entitled to its judgment.” 

In other words, according to West Coast Hotel, if the Supreme Court protects an unenumerated economic right, it is engaging in an inappropriate form of conservative (or libertarian) judicial activism.

The two things connected here are separated in the actual opinion by seven pages of analysis!  The first part in context includes this:

In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

So, the overall argument is that "freedom of contract" specifically is not addressed, but a more open-ended protection of "liberty."  Is it "engaging in an inappropriate form of conservative (or libertarian) judicial activism" to  protect the unenumerated economic right in question?  Not quite. It means that ultimately the Supreme Court is protecting "liberty" and that substantive due process leaves open more discretion in such cases -- and not just those "economic" in nature at that, when the law (in a constitional sense) is not "arbitrary or capricious."  The specific law in question was deemed appropriate but any law?  Another question.  It was not really, contra the Ninth Amendment, a disparagement of unenumerated rights, but putting the "liberty" at issue in a broader context.  Something that was arguably done even for enumerated liberties in early 20th Century. 

And, Justice Stevens has protected economic rights, including in an early separate opinion regarding the type of relatives a person can have in her home.  After all, the Due Process Clause includes the term "property," and repeatedly the Supreme Court as a whole (including in the Heller gun case, if there as an "extra plus" sort of way) noted that the home in particular warrants special protection here.  Economic and non-economic rights are also often hard to cleanly split.  For instance, the right to buy, in public places, contraceptives. The speech does support giving legislatures more discretion to set economic policy -- economic policy as a whole arguably has a "public" nature that certain more "private" matters might not [this is ultimately a matter of constitutional theory and there was a shift in the 1930s there]  -- but only up to a point.

Anyway, the article notes that the Kelo case (the specific issue at hand), however, dealt with an enumerated provision, one incorporated by the Fourteenth Amendment. Not noted, but I will note it, Stevens is atypical in arguing that incorporation should not take the BOR and fully apply them to the states, appealing to Justice Harlan. Stevens argued that in McDonald v. Chicago, a justice noting in oral argument that perhaps he might want to take Harlan's views on other Warren Court rulings (such as his dissent in Miranda?) and it does have certain negative implications.  Implications he didn't really fully address, especially since other than certain aspects of jury rights and obscenity,* the USSC has not in recent years generally accepted the principle. 

But, the speech's point is that the Takings Clause, in both cases, literally is rather narrow.  It does not say that the government can only take property for public use ... it literally only says that when it does -- and only that is addressed (as if perhaps public use arguably might not justify payment since the person is getting value or has some duty or something) -- that payment must be provided.  Stevens then notes that any greater principle is ultimately a matter of substantive due process.  The same held true when applying limits to property to the states too at the end of the 19th Century, the first time a provision was "incorporated."

So, when Stevens says (while noting he was wary of the specific policy at issue) he believes that the legislature should have broad power to regulate property in this context, this is what he has in mind.  He does not think that even here that the legislature has unlimited discretion, e.g., providing a solo dissent against Prop 13.  I think Kelo was dubious as applied to private homes (he cites an article by Prof. Amar on the point), but his overall argument has bite.  The provision is not a grant of power.  It is a specific limitation on such a grant though the overall implication that only "public" use is allowed is a reasonable penumbra. There is a certain limited value to this -- the government overall should always act in "public," whatever it might do.  But, the concept seems valid.

So, the concern about Stevens' respect for constitutional liberty is a tad overblown.  I also think it is a matter of not actually reading the text that closely, akin to the selective citation of Parish.  The problem is not novel.  This blog post is ultimately using the specific example as a platform to make a wider point.  Still, it's pretty confused.  Anyway, back to the title, which I realize is often added by editors. What "unpopular record," exactly?  Heck, take Kelo.  I know it is unpopular, if we take some of the public reaction, but it upheld something local legislatures, including in some pretty conservative and libertarian states (which very well could have applied stricter rules if they wished, as some later did), passed.  And, as Stevens noted, the argument was broad, applying to public lots too, not merely a private home. 

Keep up the good work Stevens. 

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* There are probably a few other things that can be cited here, but if anything Stevens is something atypical even in the limited cases involved. First, he generally rejected the obscenity exception to the 1A. Second, he repeatedly opposed taking cases to decide criminal justice matters when they basically could be decided by state courts, even when there was some federal constitutional hook.  The pledge case is basically deemed a way for the Supremes to punt, but for him personally, the avoidance mechanism. was on some basis fairly principled. 

"The Lawfulness of Section 5 — and Thus of Section 5"

 its opponents claim that targeting some states and not others goes beyond Congress’s powers to remedy discrimination

And, then we get an article.  This deals with (with cause) the broadest claim.  The narrower one is that they can but there has to be a suitable fit, which allegedly no longer requires (allows) the preclearance provision as written.  Not sure if this always comes through.

Are Sea Shephard's actions "piracy"?

Jesus' take. [Well, not that one.]

Rosa Parks

Grandpa Scalia probably had this in mind. This is Black History Month and she would have been 100 earlier this month, but huh, her statute is unveiled the day of the VRA argument. Huh. This book suggests she is a role model for the VAWA too. Or, just everyone.

Blah blah blah

It took a horrible tragedy to make guns a national concern, sharing time with budget theater. The whole thing is theater and hearing liberal leaning talk shows talk about how it is doesn't help too much -- it still dominates the conversation, like filibustering nominees runs out the clock. So, less time for voting rights, criminal justice or something not ... theater.

Two Things: Humility and Incarceration Rates

Collin McHugh is a minor league Mets pitcher that so far hasn't shown what it takes to survive on the MLB level, but his tweets and blogs alone make him just another Met who is easy to root for. His latest are ten ways to stay humble, other than I guess pitching for the NY Mets: 

1) Listen. 2) Do things you aren't very good at. 3) Surround yourself with people who do what you do...only better. 4) Learn to say "I don't know" 5) Encourage others. 6) Drive used cars. 7) Call your Parents and Grandparents. 8) Learn to apologize 9) Hold a new born baby. 10) Get caught singing something embarrassing everyday.

Each is clarified a bit, such as #8:

Don't just say "I'm sorry". Think about how what you did makes someone else feel. Empathize and apologize. Then figure out how to do it differently the next time (the conundrum of marriage). Apology does not equal weakness. Apology equals humility.

Good stuff. Meanwhile, interesting analysis of a recent report on changing incarceration rates, numbers for blacks falling and women rising, with changes in treatment of drugs offenses playing a major role:

[No] single factor could explain the shifting figures but that changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women.

Black women numbers dropped, but not white and Hispanic, while white men rose, if by less significant amounts (under 10%).  Still:

Over all, blacks currently make up about 38 percent of inmates in state and federal prisons; whites account for about 34 percent.

Like racial equality (except maybe in the eyes of some justices), drug law changes having a long way to go, but "same old, same old" is not an accurate summary of reality. Talk about the need to handle things with humility. 

VRA Orals: Badly Tailored or Not, Rhetoric Was Worse

Scalia attributed the repeated renewal of Section 5 to a “perpetuation of racial entitlement.” He said, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Grandpa Scalia is back in "fine" form, striking the perhaps uninitiated as really unhinged. It does, I guess, address the rejoinder that representatives of these states by their votes (or amici, including NYC) adequately (even if done by messy politics) replied to Kennedy's concern about "trusteeship" like Alabama is akin to Micronesia or something at the moment.

The Court and the Voting Rights Act

Big day on voting rights with the Shelby case being heard. LOTS written, but for the pessimistic, we have a bit of Roberts history and sympathetic but very wary (he warned them back in 2006) Rick Hasen. Various defenses here and here. Preclearance at risk, not the voting rights law as a whole. It's important, but not quite as apocalyptic as some suggest.

Running on Empty

After watching a somewhat similar German film, I re-watched this one, and was again impressed. The scene in the restaurant with the mom and her father is muy powerful. One of those "price of admission" sort of things. The leads all were very good, including Martha Plimpton as the son's girlfriend.  In both films, love was a powerful (and dangerous) force.

“No matter what, I’m still Catholic” [well, not "me"...]

Saw the above via a tweet by Christian Amanpour.  See also, Gary Wills new book (he was on Colbert recently -- show is like Book TV)  on how the whole priests thing is a failure, but I'm sure he's still a Catholic.  Hey, whatever self-definition you want, it's your call.  Still, at some point, it does seem a bit silly.  For instance, if you are not for hierarchical decision-making, why you wish to be a member of the Roman Catholic Church is unclear to me. The first person says things that suggest "Christian," maybe, though the talk about inclusion leads me to think more "Unitarian."  You cannot get more inclusive than that. 

Choice of sect repeatedly is not about doctrine anyhow. It is often a matter of culture and other such things.  I think there should be some degree of honesty here -- the failure of the Catholic Church is let's be blunt, is partially a matter of the membership sticking with it in various instances -- but "religion" is cultural.  Been down this road before and will stick by my inclusive definition of the concept. Also, am not overly egotistical about those who share beliefs and practices that I find dubious.  In time, my overall limitations only provides more reason for humility.   Religion as a whole is a result of human need, after all.

This is why I am not a fan of those on the left who ridicule religion or talk about fantasy gods in the sky or make sarcastic allusions to spaghetti monsters and the like.  That's fine up to a point and there is a lot of hypocrisy and harm to others out there, so yeah, some of that is deserved. But, the average person doesn't dwell on the metaphysics of God.  Religion as a whole is not about that.  It is practice and ethics. It's like those who scorn those who dwell on gossip over the more important things in life.  Heck, life is tough.  Dwelling on stuff like that, stuff most of us cannot do much about at all, is depressing.  It's easier to read gossip, sports scores and the like.  We cannot just do that, any more than we should just eat junk food.  But, come on, the reason is understandable.

The average person, I think, also cannot think gigantic picture, the meaning of it all, the metaphysics of God and all that.  They focus on something more easy to comprehend and imagine, something more concrete.  These things are a form of representation and symbolic method of addressing bigger things. It's like ancient idols. That stone representation of a ram was a symbol, a means to focus on something bigger.  When it was worshiped and religious prayers were said, people had a means of interacting with that something bigger.

"Religion" has an implication of adherence to something, a type of worship. This all mattered, including what was deemed sacred, even if the specific gods were not real. They serve the purpose of a flag, anthems and other patriotic ceremonies. Or, a ring on a finger. It is a concrete representation of marriage, just like a marriage ceremony provides a sacred meaning, a connection to something bigger, community and so forth.  What is important can be lost along the way, sure, but the basic truth of the matter seems to hold true.  Such is what all that ceremony, doctrine and all the rest is ultimately about.  It is a means to connect to something, an "ultimate," which is different from the profane.

Something to keep in mind while a new pope is selected and all.  Hey, we can debate the means here. I think the means of the Catholic Church has lost its way, if it ever was an ideal way of going about things.  Personally, have a Protestant mind-set, bottom up, individual based, even if all that pomp and circumstance worked for me (it's a means to honor the sacred, but the biblical dinners at people's homes has more charm, though a community meeting time has charm too and is too big for a dining room).  But, we should look beyond that to the core and understand all that ceremony and stuff has a purpose.  It pops up in other places too.

Me?  Am I'm still Catholic?  Well, I don't feel Catholic.  I think the Church has just too much baggage and as noted there is too much there for me to really reasonably still say that.  You know, even beyond the God stuff.  But, it's each person's call.  I will just try to follow the words* of Micah 6:8:

To act justly and to love mercy and to walk humbly

it adds "with your God," but trying to be good is hard enough, so I will stick with that for now.  

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* In a favorite episode of the show Daria, the main character is tasked by her teacher to write a story, but she has problems. He helps her by setting a boundary, adding that sometimes limits are empowering.  They can be.  It is all well and fine to note that there is a lot more out there than the Bible, but it is what many here were taught or with which they are somewhat familiar.  It is something to which many can relate. 

So, it can serve as platform, especially if -- as was the case from ancient times -- like good books, we can get different things from it.  This scares some people, who say a Bible or Constitution or whatever has no real meaning if we do not (artificially) pick some "right" interpretation that was "originally" there.  Life isn't quite like that.  Meaning is there and it changes, however you try to resist with artificial boundaries.

Sec. Hagel

The vote was 58-41, with four Republicans joining the Democrats in backing the contentious choice. Hagel’s only GOP support came from former colleagues Thad Cochran of Mississippi and Dick Shelby of Alabama as well as Mike Johanns of Nebraska and Rand Paul of Kentucky.

Republicans continue to depress me, but hey, how about a Paul/Judd (KY) coalition?

RIP: Koop

Kudos for someone who let science and good policy trump politics and personal morality.

Windsor Brief

Good brief, a few arguments given some nice touches (e.g., regarding the shallowness of and fear behind DOMA), but the key addition being the personal history touch.

Clapper v. Amnesty International

The union/corporation double standard alone underlines that the Roberts Court support of free speech has limits as does today's 5-4 rejection of standing to even argue the reach the legitimacy of a surveillance law that harms reporters, advocacy groups and lawyers among others.  Breyer's dissent is one big "oh come on, we know, let's not pretend."

Rules of Engagement

Though it was at the same time when the Mets showed the most life in their Spring Training game (baseball is kinda back), another good episode -- pretty good given the downturn of the last season or so. There was even a nifty C-SPAN bit. Gail O'Grady btw still hot. Only thing is that (if you saw it) logically Timmy would go with the daughter too, right? Still good.

"I hope never to see a case like this again."

Justice Sotomayor wrote in conclusion that the prisoner had presented a substantial question of whether his treatment amounted to cruel and unusual punishment in violation of the Eighth Amendment. “I cannot comprehend how a court could deem such allegations ‘frivolous,’” she said.

Linda Greenhouse comments here on a solo dissent from denial  that as I note here shows how she sometimes interprets facts differently than others. Her opinion style is often dry but there are times where her personal voice shines through.  Dissents from cert. and today a statement (joined by Breyer) concurring in such a denial is one way she has even in a short period of time done this.  Today's statement is similarly personal, ending with: "I hope never to see a case like this again."

“The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when the prosecutor asked, ‘You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money.  Does that tell you — a light bulb doesn’t go off in your head and say, This is a drug deal?’ ”

There is some power when a former urban prosecutor looks at such questioning and responds: "It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”  And, that the defense did not (which helped make the case not cert-worthy) challenge it when it did occur. Judicial statements like these are fairly rare and interesting (at least for those who look for such things) when they do occur.  OTOH, it is sadly not likely that use of race are not ever found in prosecutions throughout the country in various ways.  This does provide a chance to remind the problem with them. 

I somewhat doubt btw that Justice Ginsburg didn't agree with the overall sentiments and it adds some force when a justice is able to make such a personal statement.  Still, it would be nice if one of the conservatives* -- including those who are so concerned with use of race that "benign" affirmative action is offensive to them -- would have concurred.  After all, there is a conservative and libertarian hook to this case as shown here:

[L]aw enforcement officers also testified that they discussed the drugs with Calhoun immediately before they broke cover to arrest the group, and that Calhoun had a gun when he was arrested. In his defense, Calhoun testified that he was not part of and had no knowledge of his friend’s plan to purchase drugs, that he did not under stand the DEA agents when they spoke to him in Spanish only, and that he always carried a concealed firearm, as he was licensed to do.  It was up to the jurors to decide whom they believed.

Criminal cases often touch upon various constitutional liberties, including of a First Amendment caliber, down to the use of recording devices.  Second Amendment issues in the post-Heller world also will get more respect and those who strongly support the right to concealed weapons should find this case notable as well. The application of basic rules of fairness and liberty also is problematic when certain sacred cows arise, be it abortion, gays or guns.  Cases of this sort reaffirm to me that the RKBA is part of the mix here and has potential racial implications.

Anyway, keep up the good work, Justice Sotomayor!

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[added] * After all, as cited by Sotomayor herself, a B43 appointee concurred separately below to criticize the statement:

Haynes also chastised government lawyers for understating the gravity of the language in question in their brief to the 5th Circuit and noted that the government had not issued an apology. “The Government’s brief calls the question ‘impolitic’ and states: ‘even assuming the question crossed the line,’ as if that is in doubt,” she wrote. “Let me clear up any confusion - the question crossed the line. An apology is in order, and I do not see it in the briefing.”

The link provides some helpful responses from each side.

13A

Lincoln and a discussion by the screenwriter on C-SPAN over the weekend led me to think how revolutionary it really was. When slavery ended in my state (NY), it was over a span of time and a state matter. The 13A made it instantaneous, a federal matter and of such breadth (@2) that it lead to two more amendments to reaffirm congressional power.

Oscars

Only saw a bit of the Oscars ... a few nice speeches (e.g., Anne Hathaway; nicely thanking wives seemed to be the thing), a range of winners with a few surprises (such as supporting actor) and fairly boring mid-show host chatter (cute Sound of Music bit)-- keeping things interesting with ad libs there is a sign of a good host. Overall, fairly typical.

Judge Liu on Justice Harlan

Good summary of recent remarks. Replacement for Ginsburg in '15?

Lame Duck Manager

Some think Terry Collins should have some margin of error but this analysis is reasonable -- not sure if he earned that yet. The team fell apart in the second half in '12. That is partially on him. He, as much of the team, has something to prove.

Art. IV Pops Up

Grandpa Scalia showed up again, loudly asserting he remembered the open government movement at issue in this novel litigation and knew it didn't help the challengers here. I find it curious why the Court was as a whole so unsympathetic to the challenge to the bit of pretty gratuitous state favoritism at issue. Neither advocate seem to impress them, admittedly.

Beyond the law ...

Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens. Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

The case has bite in the real world. George Will is sane on solitary confinement.

Prop 8: Respondents Respond

The opponents' merit briefs can be found here and are discussed here. Both have very good opening arguments and the bit about the pro-Prop 8 brief not mentioning "love" once and referencing "a sociologist who advocated 'zero population growth' while fathering four children with three different women, including a son at age 79" are highlights.

Katyal on Executive Oversight Of Drones

He argued the Hamdan case, so his attachment to Obama is not a total red flag. Overall, he makes some good points.  I comment there as well. [Goldsmith responds.]

Koch on the Death Penalty

Though it outraged liberals and "progressives" among the nation's esteemed "intelligentsia," Koch's essay reflected the convictions of most Americans, then as now, as opinion polls have consistently shown a substantial majority in favor of the death penalty. 

Back in the day, I read an op-ed by Ed Koch supporting the death penalty and rejected its premises, but either way, the opening quote is not a convincing type of argument. Such arm wavering annoys me whoever does it and is a continual source of aggravation in my blog reading. Anyway, a quick summary of my reply to the analysis in the first link, since Ed Koch does do a fairly good job citing the main arguments. 

[1] Lethal injection does address to some degree the "barbarism" involved in past methods of execution, but killing people is not going to be fully clean no matter what method used.  Since so many jurisdictions do not have a death penalty or very rarely uses it, however, the need he cites to not tolerate murder etc. does not seem to actually exist. 

[2]  Studies also suggest that the death penalty does not do much to address the specific violent crime in our country, especially given how little -- even in places like Texas -- it is actually used.  This aside from the argument that such violent means aggravate the overall situation.  Ultimately, the death penalty is best defended as a matter of moral retribution, not as a deterrence mechanism. 

[3]  Ultimately, the chance of error -- including wrongful application of the penalty even if the person did the act -- is a complex judgment call that is a question of line-drawing.  Overall, I and others do not think it worth it.

[4]  Koch here relies part on the value of deterrence, which as noted, is greatly open to doubt. Ultimately, again, this is a judgment call -- how do we best value life?  The flaws in the system helps the abolitionist case.

[5]  In effect, he admits there are problems of discriminatory application, but that the punishment is worth it even with the risks. Again, it is a matter of balance of options -- after all, we cannot end all punishment because of discrimination. Death however is extreme and there are alternatives. As to his extension of the penalty argument, that turns the telescope around -- many oppose the penalty in various cases but apply it in a racial discriminatory matter etc.  The reasons to oppose it need to rise or fall on the merits.  If acceptable, they are not illicit discrimination.

[6]  True enough that we allow some forms of killing -- the commandment might be better phrased as "thou shall not murder."  But, not killing is a good rebuttable presumption and the arbitrary killing of a select few via the death penalty, especially multiple states and most nations manage not to do it [take murders in prison, a very hard case -- how do these other jurisdictions prevent such things or handle them?] seems wrong.

[7] As with the drone strike opponents, calling it "murder" bothers me too, since the term assumes the premise. "Murder" is illegal homicide and in some cases, governments do things that can be understood that way, even if technically authorized by some sort of law. The Nazis murdered and it is not an abuse of the word to say that. In a few cases, the evidence that a person might not be guilty or is legally not liable enough to execute (mentally retarded or whatnot)  warrants some harsh term. 

But, application of the term here is problematic. I understand how states planning executions and the like can be understood to be barbaric and on some level, I agree that it is. Still, there is a line here.  IF the state purposely executes (by lethal injection etc. ... I don't mean drone attacks or abortion or whatever)  someone known to be innocent, that would be "murder."  Perhaps, a lesser word like negligent homicide is appropriate in some other cases?  I'm game.  Use of "murder" is too much for me.

Various

O'Donnell's interview with Stephen Colbert's sister running for an open seat in SC was pretty trivial, but more here.  Interesting stuff about history of sex workers and "rational basis" (USSC sniping alert!).  The Americans dealt with the Reagan shooting last night -- interesting take on the Russian view of things.  Effect of children on the characters also is notable.

Kagan Does Her Thing

[I felt the dog sniff ruling decided yesterday generally sound, but wish to reaffirm that the overall use of dogs as a means to search cars is a problematic enterprise. I agreed with the two dissenters in Illinois v. Caballes and even if the dog is not "wrong" in that s/he smells something that was there, such smells should not always warrant a search of a car.  Passing thru a park where people were smoking pot or the like could provide probable cause to search a car.  But, the ruling decided a narrower question and I think it was a reasonable ruling on that level.]

Yesterday, there was an interesting split of Scalia and Thomas, Breyer joining Alito and his pal in dissent. Today, Kagan and Sotomayor (who wrote a 8-1, Alito dissenting, opinion herself on a narrow double jeopardy issue) split on the proper rule for retroactively applying a rule (more Teague fun).  Don't really wish to determine who is correct (Ginsburg joined Sotomayor in dissent), but either way, Kagan's straightforward talk showed up:

The separate opinions in Padilla objected to just this aspect of the Court’s ruling. Dissents have been known to exaggerate the novelty of majority opinions; and “the mere existence of a dissent,” like the existence of conflicting authority in state or lower federal courts, does not establish that a rule is new. But the concurring and dissenting opinions in Padilla were on to something when they described the line the Court was crossing. “Until today,” JUSTICE ALITO wrote, “the longstanding and unanimous position of the federal courts was that reasonable defense counsel generally need only advise a clientabout the direct consequences of a criminal conviction.” Or again, this time from JUSTICE SCALIA: “[U]ntil today,” the Sixth Amendment guaranteed only “legal advice directly related to defense against prosecution” of a criminal charge. One need not agree with any of the separate opinions’ criticisms of Padilla to concur with their view that it modified governing law. [some cites omitted]

I particularly like the "on to something" bit.  Along with CJ Roberts, Kagan has a refreshing down to earth style.  Alito and now Sotomayor has a more workmanlike style, Sotomayor relaxing it when writing her autobiography, noting the two media follow different rules. Kagan has already showed her verve, including in dissent, not as blunt as Sotomayor at times can be (seen mention that Alito and Sotomayor are in effect the "enforcers" of both sides) but in her own Manhattan Jew sort of way.*

Thanks for theses justices, President Obama. Anyway, another day, another bunch of some narrow rulings, some helping defendants a bit.

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* I am from NY and have my own ethnic connections, so think I can say that.  The "Jew" part might sound stereotytpical, but come on -- she does have that sort of schtick at times.  Seinfeld and Nanny Fine would understand.

Warren Lee Hill: Execution Stayed

[Realize this whole thing is far from comical, but still ... the USSC just denied a request to vacate the stay of execution of the 11th Cir. To my understanding, that is fairly novel -- that is, denying a request to vacate a stay.  Usually, now and then, there is a denial of a stay of execution.]

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

              --  Atkins v. Virginia

But, is this an "empty promise," since there is a good chance (though his execution was stayed by the 11th Cir. minutes before the execution) Warren Lee Hill will be executed?  This followed another case in Texas, cited in that article* though state does not have the "beyond a reasonable doubt" standard that is uniquely in place in Georgia.  That is, the defense has to show beyond a reasonable doubt that the person is mentally retarded.  Atkins itself allowed local discretion on procedures to determine retardation, citing an earlier case involving rules to determine insanity.  This path to an "empty promise" was written by that lax civil libertarian Thurgood Marshall, who added:

It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity.

Doug Berman at Sentencing Law and Policy voiced concern about the Hill case, including this level of discretion, not himself being an "abolitionist," a mark of soemone who cannot neutrally talk about death penalty issues to some who contribute at that blog. I raised a few questions on the case there, including the proper rule ("clear and convincing" might work) and what to do (federal habeas relief?) when -- as here -- the original experts recanted.  It's a hard case and it very well might have been a good one to take to clarify the process.

Nonetheless, I can understand -- especially with this Court -- some desire for state flexibility.  It is tricky to set some one size fits all rule for insanity or mental competency, something the USSC was loathe to do even back in the Warren Era. The "beyond a reasonable doubt" standard here does seem excessive and there seems to be a need for some oversight when in effect the facts change on the ground.  Still, the doctors here, at least now, agree he is "mildly retarded."  His IQ is said to be around 70 (we are told in one article it is "below" but than it links to another that has it "at" -- these things are not exact anyway).

I'm for deciding on the side of life, including here, but this is not the glaring injustice a skin-deep look at the case might suggest. And, though the open quote still stands, the fact he killed while in prison for murder doesn't help, does it?  As I noted at Berman's blog, there is a report that the family of the victim (a fellow inmate that apparently sexually harassed Hill) opposes the execution. And, even in prison, there is a way to take away privileges and maybe even some harsher supermax existence. (At some point, we are left with not being able to punish more, even an execution doing so much if someone kills on death row.)  Still, are we surprised (or even outraged?) that five justices didn't agree to a stay? 

Death penalty abolitionist here. I think the penalty violates federal constitutional standards, even though the law is not there yet (so, it was a nifty move that Stevens concurred in Baze v. Rees). But, the facts of these cases repeatedly seem to have some shades of gray.  Principle leads me to decide on the side of life, but a mildly retarded person in prison for murder who will be executed for killing in prison?  Not a great avenue.

[Reporting also cites a state court stay regarding lethal injection protocols even though the state supreme court appeared to already reject such a path.  Lethal injection protocols continue to be a matter of adjudication years after Baze v. Rees.]

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* The fact he "couldn't understand how to use a phone book and sucked his thumb as an adult" really doesn't seem determinative to me though knee-jerk reactions can be found on both sides. See, e.g., the reactions when I discussed his case here. I continue to be surprised at the tenor of some of the comments at such a specialty blog.

Alderson's Bargaining Ability

Old but valid analysis of Dickey trade that references things I repeatedly don't see -- all that the Mets received for Dickey (a 38yr old they controlled for a year), the pick they got for losing Reyes (same type that got them Wright) and the value of Alderson's "hard bargain" approach. Some have noted Reyes was hurt at the deadline, but that too.

"A sniff is up to snuff when it meets that test."

Defendants split today in the USSC: seizures away from the home not allowed as a means to hold people while their residences are searched (6-3, B/A/T dissenting), but (in a crisp unanimous opinion by Kagan) a search/seizure on the street via dog sniff upheld, the state court required too strict of a test for competency. Other sniff case not decided.

Rules of Engagement

Funny episode down to the last bit -- Liz's presence usually helps.

Cameras in the Supreme Court

... of the UK (also Canada).  Good sidebar piece on the issue, including how S/K decided to be less supportive when they got the job. Shades of Kagan's change of heart on questioning nominees. Audio is great, but really see no very good reason to bar video.

Mississippi Ratifies Slavery Ban After ‘Lincoln’

Reports that Mississippi has finally formally ratified the 13A might be seen as just a symbolic act, if not just a reason to make jokes about how backward they are.  But, it gives us a chance to respect the history, breadth and continual application of this amendment.  The fact a movie inspired the event also probably can have its own conversation. 

"By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." Civil Rights Cases, 109 U.S. 3, 20. Whether or not the Amendment itself did any more than that -- a question not involved in this case -- it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Ibid. (Emphasis added.)

This was noted in a 1968 ruling upholding the use of @2 of the 13A to address private housing discrimination. The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment, edited by Alexander Tsesis [covered in the past] has various accounts that suggest the possible reach of this power. Cf. this analysis that opposes such breadth (ironic from an author who thinks the federal draft has 13A implications).

The reach goes beyond the self-executing first section, just like federal voting rights laws can go beyond what the 14th and 15th Amendments expressly block (literary tests might be okay, but a federal law against them because of the tendency to apply them in a discriminatory way is acceptable).  Since the 13A, somewhat uniquely, reaches private conduct, this enabling clause has potential broad reach.  For instance, federal hate crime laws against private parties have rested on the 13A.  The essays in the cited book and others provides broad possibilities here, including union rights (needed for true freedom), child abuse (see, e.g, writings of Prof. Akhil Amar), attacks on Confederate displays and broad attempts to protect general liberties of freedom.*

Just taking basic civil rights laws, including federal hate crime laws, state endorsement of the 13A touches upon matters still having some force. Slavery and involuntary servitude, especially for some undocumented aliens, also still lingers to this day.  Finally, consider that the amendment makes a special exception for involuntary servitude as punishment, which continues to have a disproportionate racial connotation.

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* I think some of this stuff can be taken too far and somewhat foreclosed by the 14A, which was passed in part because the open-ended possibilities of the 13A was rejected. I think reading them together is often helpful. Still, the reach of federal power on private action here can be taken too far. For instance, some broad federal child abuse law that micromanages the issue is problematic even if we accept child abuse can in some fashion be a sort of "enslavement" of the victim. 

I'm sympathetic to the idea a federal draft clashes with the 13A, but am led to remember the Civil War Congress authorized one where "involuntary servitude" was not allowed.  Still, it does make the draft particularly questionable, except when there is a compelling need, though if we are talking about a general civil service requirement, I am pretty sympathetic to the idea. 

Silent Tom (Not Just A Stereotype, News at 11)

More on Justice Thomas not asking questions, but being more personable than you might think (another event with someone with quite different views) has an interesting tidbit about his friendship with Breyer. Not asking questions furthers his insularity; he can put forth true believer opinions without asking a single question to get some feedback from advocates. Sort of sad, even if you respect his p.o.v., which I do up to a point.

Die innere Sicherheit

The State I Am In (shades of Running on Empty, but somewhat darker) concerns a close knit German couple on the run for unclear past crimes and their teenage daughter, who is starting to rebel, especially when she meets a boy. Meanwhile, they must deal with a crisis that hits their seemingly comfortable existence. Well acted and put together.

Rev. Joe (New Pope)

Unlike perhaps the last one, the quite elderly pope has decided to resign instead of waiting for death or something to force his hand. That's nice. Shouldn't be as impressive (first time in a half millennium!!!!!) as it is made out to be, but hey, mild kudos. As the sister on the panel discussed noted, this act showed some responsibility that looks beyond the personal to the needs of the Church overall. 

[MHP covered this issue too, including more directly focusing on needs of inclusion and better priorities.  Her husband is Catholic and they go to mass .. um her second husband.] 

Chris Hayes covered the matter today, he and his panel of Catholic speakers mainly focusing on the child abuse scandal and how the elite hierarchy did not do enough to handle it. This was said to be a primary driver of dissatisfaction and often abandonment of the laity. One journalist for a Catholic publication noted that the Church focuses so much on sexual purity (me personally, I think the focus on the contraceptive mandate, said by some religious leaders as some grand line in the sand for religious freedom should have been addressed here -- it is a glaring symbol of the problem) while not properly handling this one.

A member of the clergy noted that the pope's official statements on the faith often were quite beautiful, just not very topical.   He also noted that there were various things that could have been the focus of the conversation for which there could have been more disagreement. After all, the conservative writer took a line many liberals might -- little chance the new pope (with the same hierarchy, appointed by them in fact) will change things in the short term.  First thing you have to do to show you mean business is to take the offices away from top officials who enabled things, allowing some of them to be arrested for their crimes.

It is helpful to focus on a point of agreement and the discussion hinted at wider problems.  I was raised as Catholic (Irish-Italian) but though I went to Catholic school because it was deemed the best education available locally (well, it was better than the not totally safe public school options; I went to public elementary school), the faith part wasn't really drill in me.  This is fairly common and not just for Catholics. A religion often is as much a culture as a matter of doctrine* and that is surely the case here.

But, and let me say that there is a strand of Catholicism that is great and all, especially the individual members and clergy, really -- I find chunks of their doctrine as ... dead wrong.  So, do many average Catholics, which is why when you piss off (e.g.,  a clip on the show involving a report from Ireland on the child abuse cover-up) on such a basic issue as protecting children is liable to be the straw that breaks the camel's back.  The Church ALREADY is not concerning itself enough with really matters while making things that quite a few Christians (the conservative writer cited the empty tomb etc. -- that isn't what makes one a Catholic, specifically) think not very important at all lines in the sand. Contraceptive mandate?

The Catholic Church, sadly to many liberal Catholics, comes off as something Rick Santorum would love.  Birth control.  Divorce. No women priests. Homosexuality. All of these things in some way seems to turn around sex, both the act and the gender.  I find each of the positions dead wrong or at best missing the forest for the trees. Take marriage and divorce. The Notorious Elizabeth Tuttle (see a few days back) noted how Puritans in New England had for the time a liberal view on marriage, seeing it as a civil contract and some members of the clergy defined the divorce rules loosely. So "abandonment" can in effect be "constructive" abandonment,  that is, even if the spouse was still around, s/he might make the marriage so hard that they "abandoned" their spouse.

Would the Catholic Church take that tack? I think it reasonable, for a religion, to put up some degree of barrier of entry and exit to marriage.  Also, to favor it (given it is also a sacrament,** the union ultimately of concern not just to the couple, but to the faith community as a whole) as the ideal for a couple, including for raising children. And, the Church has moved on -- marriage is not just for procreation, some would not be, but also (underlining why SSM fits here) for companionship. See again the book cited, which (back in the 1600s) showed how Puritans understood sex as an important part of marriage for both parties.

Anyway, not supporting all the lines drawn, the due care there is fine. Problem is when it is taken to wrongful conclusions like not supporting artificial contraceptive use (as seen in the 1960s, this was in no way compelled even if you accept Catholic doctrine) or divorce once it is clear the couple no longer can happily be married. Also, women in the priesthood and homosexuality. A literal reading of Pauline epistles could lead to not allowing sisters from speaking in church and that is allowed to my knowledge (as I recall, it was done).  Some scholars will also point to evidence of women leaders in the early church from references in the New Testament. As to homosexuality, the couple verses involved can be gotten around just as a few others troublesome ones. 

But, the show went beyond such sexuality issues to the basic elite nature of the Church, its separation from the laity. This is particularly questionable though the New Testament justifies some degree of hierarchy. [Note though that the clearest references, such as in the Timothy and Titus, probably came late -- the epistles were likely not actually written by Paul.] Jesus' ministry was known for its popular appeal.  The church grew in large part because it served the needs of the disenfranchised. Its ethics, including sexual ethics, helped, yes, by showing its purity.  But, there were ascetic philosophies and religions out there.  Its appeal was in large part its appeal to the masses.

In time, as it grew in size and importance, it set up a hierarchy and complex organization, one copacetic to their new benefactors -- Roman Catholic Church -- and, it provided an independent means of survival and means to thrive.  Nonetheless, in time, the masses felt they were too separate and isolated.  This is not unique when elites are involved, but a major problem here is that there was less of a means of redress.  We in some fashion have power over political officeholders -- we vote for them, after all.  But, the Catholic Church doesn't allow that sort of thing.  Problems arise.  A major moment in church/state relations was Henry IV standing in the snow asking for forgiveness to ensure a lifting of excommunication.  What power do the laity have to force a comparable act here? 

Moving path matters of doctrine (not just sexual; not a big fan of papal infallibility either), this is a major problem I have with the Catholic Church. And, I am not alone.  Other religions find a means for the laity to have more control over the hierarchy, but I guess this is a bit too "Protestant" for the Catholic Church.  In fact, it is not merely the power to vote.  Surely not in my diocese when I was younger, there does not seem to be a means for the laity to state their opinions. It is my understanding the the laity does have a role in the Church per the doctrine, some (I must say) opaque means to influence the doctrine.  There needs to be a more direct role for the laity, even if you are not going to give them a vote.

The child abuse scandal was just a blatant result of this separation of the laity from the hierarchy. I am sure that it is not the case in all areas and that the separation is not as total as might be inferred from these comments.  Parents at a parochial school, e.g., have means of feedback, especially as they pay the tuition. Still, I really don't recall that being encouraged when I went there.  Maybe, that has changed -- if so, there should be a major effort to make it clear.  Show the laity and the community at large how members are involved in the day to day matters.

Statements that the PPACA contraceptive mandate, one with various compromises to balance interests, is some sort of religious tyranny doesn't help me have much faith that the hierarchy have their perspectives straight.  Either way, if the Church wishes to have a successful future in this country (and elsewhere) it needs to change. I know it is a conservative institution, but it has changed repeatedly over its history.   Never going to be totally onboard, particularly since I don't agree with its theistic doctrine, but for the well being of millions of its members, sincerely wish it would change for the better.  Will the new pope help?

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* Ronald Dworkin (RIP) gave a series of lectures on a "religion without god," religion here ultimately a position on the basic questions of life, one of ethics and values. I agree with the sentiment but think he undersold somewhat the ceremony aspect.  His definition of "religion" focused on a person's beliefs, but ceremony/practice is also part of the equation.  See, e.g., the concurring opinion here. 

It is my understanding (from reading  a draft) he supported the Smith ruling, acceptance of neutral regulations that burden some faiths.  But, religion involves not just belief but action, even if you define it broadly.  A broad definition does require some line drawing on action, since at some point the alternative is unworkable. Still, peyote use there was an individual private ceremony that provides a concrete symbolic practice of faith.  Such things are a basic human need in some sense and a "freedom of religion" should take it into consideration.

** Marriage as a sacrament is an example of the above note -- many give it a religious, sacred, meaning.  But, specific ceremonies and other concrete actions/symbols (down to the wedding ring) are important. Those who ridicule those who believe and/or feel a need for such things, beyond some acceptance of impersonal principles and standards have a certain lack of empathy about the human condition. "Religious" here need not just mean a priest or rabbi, but something more than just "a piece of paper." 

It also is not merely the word "marriage," but the overall enterprise. So, I am somewhat confused by those who want to "take the state out of the marriage business."  What?  Deny the couple as a couple specifically benefits? A few say this. Others focus on the word as if calling it a "civil union" will suddenly satisfy everyone, even if the state continues to give benefits to a union so many provide with sacred significance.  It won't.  This is why most states do not give equal benefits to same sex couples but call it something else ("equal" here means "not quite equal" but will let that go for the moment). "Marriage" is used by the government because that is society's understanding of the union.

The "religious" meaning given to the word is a result of society.  The word is not inherently religious.  One person who offered the idea agreed that even if the government didn't use the term, ultimately those with a government civil union license who did not undergo some other ceremony would be considered "married," since the two groups basically look the same.  Exactly!

Elliot Loves

One of the films picked up at the library to see if it sticks, this is a mixed bag. It is well made and likable, but personally thought the childhood/mother scenes better than the adult ones. Found the adult character a bit hard to take. Pretty good commentary.

Ashley Judd

I realize the ideological difference, but if Rand Paul (against the wishes of McConnell, who really comes off as a tool) can win in KY, why not? The NYT article didn't mention that she was Global Ambassador for YouthAIDS, which is a bit more than being "outspoken" on the topic. Anyway, her opposition seems to think she's serious. Interesting times.

Quickies

I liked the first and third Die Hard, the second okay, but (shades of Indy and Terminator) it eventually got stupid. Now, the lead looks like a cartoon & I have no desire to see the film. The Sotomayor autobiography didn't do it for me at the moment. Her open-minded reasonable approach is copacetic, but couldn't get into it. Not into Pitch Perfect.

Party of Tools

So, the delay of the Hagel nomination is basically gratuitous. The Republican Party continues to look like a clown show. Four senators didn't involve themselves in this stupidity.

Mets OF: At least a wash

Especially without Michael Bourn, which with the fifth year option was a pretty risky move all things considered (potshots at Mets and Alderson will still come), some have noted the HORRIBLE Mets OF.  Compared to '12?  No depressing Bay, mediocre Torres or home run (but no longer cheap) fourth OF Hairston.  A few new maybes, at least one who might thrive.

RIP Ronald Dworkin

I have been waiting some time now for Ronald Dworkin's "Religion Without God" lectures to be released in book form. The basic idea, see also U.S. v. Seeger, is that there something "answers to moral questions or instill the universe with a glory it would not otherwise have" that we can define as "religion" and a deity is only a possible source.  He also alluded to this in Freedom's Law and other books as a means to defense personal decision-making in life and death cases like abortion and euthanasia.  The idea seems sound and descriptive of our society.

Not sure if the book will ever come given the author has died.*  I have long enjoyed his writings, including in the NY Review of Books, though have not gone into the weeds of the deeper philosophical aspects of his thought.  As one review noted some years back, Dworkin perhaps tried too hard to provide an overarching philosophical understanding of things like the constitutional meaning of the First Amendment. I think he assumed his premises some, but that's a common thing.  The most important thing is that the journey was worthwhile.  I think -- don't claim to have attacked his most learned writings -- I am basically in agreement with his major sentiments, including the fact that the law, including constitutional law, has a certain moral basis, constitutional values if you like.  And, these develop over time, judges having a duty to apply them. 

“We have the same basic philosophical issues facing us. What is the role of the judge? What rights of moral independence do people have? When, if ever, is it permissible to kill people as punishment? What is free speech about? And then Scalia says it’s American law that counts and that’s all. That’s mysterious. We’re not talking about precedent. We’re taking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say.”

The obit linked above itself links to a good article from 2004 (reference to the Kerry campaign) by the current NYT Supreme Court reporter (successor to Linda Greenhouse), an eleven page article with some pictures.  It discusses in part his clerkship with Learned Hand, including working with him to craft a famous set of lectures that (to his annoyance; the article has the great judge say "Fuck you") led Hand to be forced to admit under his view that Brown was wrong.  [Freedom's Law includes a similar account without the expletive.]

Dworkin was upset at this, since Hand didn't therefore change his vision.  Dworkin still thought Hand a great man, even though Dworkin's moral vision of the law clashed with his.  It also somewhat, and this was a problem for Hand too, clashed with Brown -- Brown in effect didn't go all the way, it was somewhat morally wishy-washy (see also, Naim v. Naim).  This might be a way to defend Hand, perhaps some might say he would have seen things differently after Loving v. Virginia.  No, some other now generally accepted ruling would still fall by the wayside, in part because of disputes over somewhat hazy line drawing in part moral in character. 

But, such is how law works in action.  Imperfectly with compromises that hopefully advance things in the right direction. Herculean applications of it are left to philosophers, like Ronald Dworkin.  R.I.P. 

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* With the recent death of his nemesis, Robert Bork, it is almost expected.

Marriage: Not For Love, For the Some Children

And of the eight states that provide virtually complete benefits to same-sex couples under “civil union” or “domestic benefits” statutes — which include Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon and Rhode Island in addition to California – none has filed to defend the constitutional authority of a state to deny such couples the status of marriage.

This is striking in that you might think at least one of them would find the Prop 8 ruling important since it threatens their in-between stance.  That is, California provides broad rights to same sex couples, drawing the line at "marriage."  The ideal for some who support the anti side here is same sex marriage for all, but the median path is more likely that the Prop 8 law (removal of SSM rights per constitutional amendment tainted with animus) specifically is problematic, not any ban on same sex marriage.  A brief from one of these states to set forth this limited path would be sensible.

About half of the states that ban SSM and don't have such an alternative did sign on to an amicus brief, basically a bunch of Southern states with a couple add ons, Michigan signing a brief on its own.  One might think Michigan would have a fairly sane view of things.  OTOH, the state is currently controlled by Republicans, the two Democratic senators notwithstanding.  So, it is not surprising really that the brief is the usual anti-gay claptrap, state Republican control these days generally leading to one of more of the following: voting restrictions, refusal of Medicaid expansion per ACA, abortion restrictions and/or targeting gays.

The brief basically starts with support of sex discrimination: traditional sex roles should be endorsed in its marriage laws.  Problem is that if that is your argument, you cannot use reasonableness review. Sex classifications must be narrowly tailored and the range of marriages that do not involve child-rearing alone shows the lack of that. Not that social science lacks evidence that same sex couples raise their children as well or at perhaps even better.  The research is somewhat new and federal appellate courts very well might be wary at this time to rest on that.  But, the telescope is turned around with sex classifications.  The brief underlines the problem.

We are assured there is no "animus" here. Michigan denies children of same sex families basic rights (though the protection of children is cited as a strong state interest), not providing domestic partnership benefits or the like.  Whatever is "ideal," the reality is that same sex couples will still have children.  CA protects them in any number of ways, though not equally since "marriage" in law and fact offers more protection for all involved, including the couple and their children.  Michigan does not do even that, not just giving something extra to different sex couples, but significantly harming same sex couples.  This includes blocking adoptions.

The brief even brings up the specter of plural marriages. Where plural marriages have long been allowed, same sex marriages generally have not been (South Africa, which allows plural marriages for certain traditional followers of the practice, an ironic sort of "tradition" exemption, is the only current one that comes to mind).  Why?  The actual line is sex based: a stereotypical belief that marriage partners must be of the opposite sex.  This is the case for seniors and others where procreation is not the issue, plus where marriage is quite different from it traditionally has been.

"Tradition" is selectively favored in ways that harm same sex couples.  This is animus.  That sounds mean, but "animus" tends to be justified as legitimate, such as laws that burden felons or the like.  The dislike here however is illegitimate.  The selective nature of the enterprise is a red flag.  "Rational basis" can result in laws with a bad fit but (1) not sex discrimination (2) not blatantly so when they target groups that do not deserve it and (3) not for certain groups that have received extra protections (FN4 etc.) and sexual orientation should fit here.

The best approach here is a "go it slow" one.  Prop 8 is blatantly wrong and however somewhat messy (debatable) it might be, the lower court ruling provides a narrow approach.  Unless one of these other states has its courts rule the state constitution protects SSM (unlikely, given they repeatedly expressly say the opposite) and then by a similar approach (not even a Hawaii legislative discretion rule ... though there the courts never finalized its SSM protection)  took them away, the CA9 ruling need not harm them.  That is, if the circuits involved decide the same way, the USSC taking the case partially halting "percolation" in the courts on the matter.  The USSC didn't step in to block the CASC upholding interracial marriage decades before Loving, even though it partially used federal constitutional law.

Half of the states that do not have SSM seem to realize this and did not submit or join a pro-Prop 8 amicus brief.  Doing so is in fact somewhat counterproductive since it underlines the injustice of their policies and if anything might push us closer to SSM. Demeaning marriage by suggesting it is basically about procreation and a certain type of child-rearing is not likely to be appreciated by many whose lives and marriages do not fit the stereotypical mold.  So, such efforts are helpful in a fashion to equality. 

Happy Valentine's Day. Remember. Marriage is not really a bilateral loyalty for love and so forth, it is there specifically for the children. Unless the children are in the wrong sort of family. The others are lucky also-rans, again, unless they are not the right sex. 

God Said, 'Ha!'

Double quotes sometimes used too! Julia Sweeney has an upcoming book about motherhood (her second monologue discussed the adoption of her daughter) so re-watched the title monologue (which in part explains why she adopted). Enjoyed it again. Discussed her third monologue (the daughter made an appearance in person) here. My type of gal.

[Photo Not Included]

Had a freak accident recently that led to the need for some stitches in my arm and it underlines the value of insurance. If I didn't have any, the trip to the emergency room (no morphine for me, but I felt like an extra on ER, it being a teaching hospital) and two follow-ups would cost a tad more than $0. Ah, that is what exposed muscle looks like.

VAWA

Republicans are latching on to pretty trivial things to block the re-authorization, but rights of non-members accused on tribal lands seems to be a credible dispute. Uh, not really. At most, it isn't totally out there. If you choose to reside on tribal lands, being treated like tribal members would seem to be equal protection. Here, it's allegedly unjust or something.

Ashes to Ashes

So, what are you giving up for Lent? Me? Didn't really do that sort of thing.

New Chief at D.C. Circuit

U.S. Circuit Judge Merrick B. Garland on Tuesday became the new chief judge of the D.C. Circuit Court. He moved into that position after Chief Judge David B. Sentelle finished his term at the head of the Court. Judge Sentelle took senior status, and will continue to sit in that capacity.

Sentelle is a true believer conservative sort, while Garland was on Obama's short list to the USSC. Might not mean much, but interesting given the circuit's importance.

TV Update

Rules of Engagement is back -- the first new episode was saved by Liz, the second was pretty lame. "Jen" has a new look and still not much to do. The first episode of The Americans about KGB spies in 1980s U.S. was pretty good. Keri Russell has a good "don't f with me" face. Colbert (resident Catholic) last night was a good "pope update" viewing.

Pitchers & Catchers (but no Bourne)

The Mets have a bunch of also rans and maybes in the OF though if they got even one everyday type (like B), it would be okay for their needs and send a message the team isn't just waiting until '14. B. also would have gave them a lead-off guy. But, a first round pick (#10 at that) allegedly was [a] problem. [Whatever.] Didn't really want him.

Rev. Joe: National Prayer Breakfast 2013

Obama noted that prayer should transcend politics said the unity provided by faith often quickly goes away.

See here and here. Not a gigantic fan of "prayer" days [that are far from fully inclusive] or such that have a semi-official character, especially given the questionable sponsors. But, such nods to civic religion are expected these days and Obama seems to handle it pretty well.

Release the Actual "Kill" Memo

Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

Yes. Release the damn OLC memo. This Cliff Notes version is better than nothing, but heck, it was leaked first anyhow, so half a cheer at best. If there is real (he says doubtfully) bipartisan concern, how about restraining funding or something unless it is released?

C-SPAN or Civil War Channel?

It is joked by some that the History Channel is really the Hitler Channel for all the WWII coverage.  At time, it seems C-SPAN is the Civil War Channel, given the focus of weekend educational programming.  Last night (and now) is Gettysburg. Imagine how it will be in July, which is the 100th anniversary. There is a lot of other ground to cover in our history.

Actual Innocence

A comment at blog referenced earlier posted a worthwhile (if a bit tedious) article breaking down the number of wrongful sentences, suggesting the true error rate in death penalty cases might be 3 to 5%. One footnote alone is worth the skim:

I am not morally opposed to the death penalty. In fact, after reading the details of the underlying episode in 406 capital cases in a fairly short period, I am even less opposed to it on moral grounds than I was before. On the other hand, I do favor the abolition of capital punishment on a number of grounds: first, because I do not think a 3–5% error rate is an acceptable price to pay, nor do I think we are ever likely to undertake the reforms to reduce that error rate significantly; second, because I do not believe that the death sentence can ever be evenhandedly administered given the current nature of sentencing hearings, third, because the existence of capital charges distorts the incentives in plea bargaining in such a way as to raise the number of factually wrongful convictions by guilty plea; and last, because the existence of capital punishment draws all attention to the death penalty and away from the systemic problems and injustices of wrongful conviction in the non-capital parts of the system.

I am morally against the death penalty, but do not find those who are not reprehensible or anything, especially after reading some accounts of the murders involved. In a vacuum, the death penalty might be acceptable.  The reason to be fairly certain it is not arises when you look at how it is applied in real life. The final thought experiment in the article might look different even if the pool was limited to those who kill in prison or such, the very hard cases. But, of course, this isn't the case. And, actual innocence is but ONE problem of a glaring nature. 

The sentiment is raised in discussions of targeting killings of American citizens and drone strikes as a whole.  I am sympathetic to such concerns though still find claims constitutional rights are being violated repeatedly aspirational and am annoyed that the Obama Administration is being blamed for stating what the (flawed) law is at this time.  If you want to say as a matter of sane policy that targeted killings should be banned, you have a pretty good case.  Try resting on that. 

But, for those who do so while not trusting the judgment of the executive, the limit is limited.  At least, unless you do not expand it beyond citizens and say attacks on the base of operations as a whole is invalid too. Some honestly say this though even then sometimes drones particularly are cited (if we are going to be in the whack-a-mole business, they seem better than some alternatives).  Such is bigger game as is the idea the AUMF 2001 is unconstitutional (or is as applied) since we cannot in effect declare war on groups or even specific persons.  The latter does have a bill of attainder taint but military force against latter day pirates does not seem to me across the board unconstitutional or even wrong. 

A few people, including at Slate (the length of time the fray has been defunct suggests how long I've been talking about this) have voiced concerns that some of the above is overly legalistic.  But, we are a nation of laws.  What is legal should be at least part of the debate here, including when discussing the conduct of a person with the specific constitutional responsibility to faithfully execute not morality, but the law.  Good policy and public morality is part of the equation, obviously. And, I agree that getting overly concerned with legality can miss the forest for the tree.

So, though I think we need to argue this the right way, there is something to be said that bottom line wrongful actions are still wrong if legal. Admittedly, I am conflicted on just how wrong some of these actions are. At the very least, however, someone who is comfortable opposing the death penalty for cop killers needs to respect ire when he partially* defends the killing of a U.S. citizen without usual criminal process. 

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* Prof. Dorf's sadly realistic take on standing rules is but an example where I get off the bus -- chances are that even if the Administration agreed to standing, their argument on the merits would be upheld. But, it could have helped set clearer guidelines, guidelines set forth by an independent third party at that, a major concern of many critics. 

The Notorious Elizabeth Tuttle

This very well researched (with some reasoned supposition) bit of "micro-history" (small event used to discuss bigger themes) concerns the grandmother of the great divine Johnathan Edwards, in particular, the woman his grandfather divorced. It is in fact somewhat of a revisionist account of someone (if noted at all) seen as mostly "the crazy grandmother."

Amish Case / Response to Overkill Commentary

I find the federal prosecution (should be a local case) and sentences (crimes are serious, but not THAT serious) sought (update) in the Amish beard-cutting case troubling but appreciate this. This is somewhat personal, but the guy involved (not just your garden variety troll) has ranted and raved for a long time at the blog. He deserved this comeuppance.

Aspirational ---> Actual

The discussions regarding the leaked white paper (at times treated as if it is a full-fledged OLC memorandum, and one that covers a lot more than it purports to) often has an aspirational quality. That is, people insist certain constitutional liberties are being violated when it is far from clear that they are pursuant to established law. At least, as currently understood. But, "due process" etc. changes over time. Aspiration becomes reality.

Corporations/Unions -- Special Rules

In her Opinionator column for The New York Times, Linda Greenhouse discusses Knox v. SEIU,

including its judicial activism (the bad kind) and treating unions stricter than corporations. Meanwhile, for some strange reason, the 1A friendly sorts at Volokh Conspiracy doesn't talk about such things while perusing the world for upsetting incidents.