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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, October 31, 2014

Happy Halloween

Story via Tweet. (Pic unrelated!)

Thursday, October 30, 2014

The Railway Man

Caught a bit but could not get into the film and the book is written in a way that fits the author but not something I could read thru either. Still, read parts and it is powerful stuff of someone who suffers torture and imprisonment in WWII and decades later (the film starts with a meet cute; the book is more linear) meets a translator from back then, obtaining some sense of closure and release. Hard to imagine humanity's cruelty and survival at times.

A bit more on that Stay From Execution ...

I noted the USSC granted a stay of an execution. It, with Sotomayor dissenting, denied another from the same person that challenged the state's planned use of a made-to-order execution drug produced by an unidentified compounding pharmacy. I link to a news article since you can't tell from the USSC website. This continues the justices, though more than one dissented in various cases, not saying a word on the latest execution drug controversies.

And More: The opposition to medical involvement in lethal injections adds to the cause of use of inert gas or firing squads, that is, if we use the death penalty at all.

"Justice Samuel Alito on the Bill of Rights’ meaning here and globally"

Linda Greenhouse's latest had a look back to the undocumented schoolchildren case of Plyler v. Doe and compared it to the recent voting rights case out of Texas.  John Roberts as a young member of the Reagan Administration supporting reining in statutory voting protections and also was not a big fan of Plyler.

Alito's conservative bona fides also show themselves early.  Still, there is some common ground, as seen in a recent meeting of Yale grads (Thomas, Alito and Sotomayor; the other six -- though Ginsburg has a footnote -- are Harvard alums).  Also, Alito gave some words honoring the Bill of Rights, showing in a broad sense, we are united more than we are not.  He connected the Declaration of Independence and the BOR:
The seed that became the Bill of Rights was planted here in Philadelphia in 1776 when the Continental Congress adopted the Declaration of Independence,” he said. “The Declaration of Independence proclaims the every person has a certain unalienable rights that are precious to us. The Bill of Rights codifies the promise of the Declaration of Independence., it codifies unalienable rights that are precious to us as Americans.
 And, he talked about how government power and rights go together:
And today we can see that both of those groups were perceptive. On the one hand, the government has grown to a size that the founding generation could never had imagined, and the Bill of Rights is vitally needed to keep the federal government and the state governments in check, to make sure they do not violate precious individual rights. At the same time, however, without the governmental structure that the Constitution created, the Bill of Rights would be like an arm without a body. Constitutional provisions protecting individual rights are worse than useless if they are not backed up by a governmental structure to enforce those rights.
Alito also spoke about how human rights were honored globally. And, he ends with how ultimately rights are honored in our hearts -- Hamilton once noted that words on parchments alone is not enough. The opponents of the Bill of Rights were wrong to not accept that though it might not be enough, it helps. Alito spoke of judicial review, but also overall recognized that the courts are not the only way rights are protected.

It often is not even the most important way.  

Wednesday, October 29, 2014

Game 7 -- is pitching a god fair?

Game turned on an infield single basically ... and Madison "baseball god" Bumgarnder. Five innings of nothing (or 4.2 than a last bit of hope). Unbelievable etc. etc. Oh hell with it. What a boring World Series that was mostly bullpen with a bit of starter (Shields finally had a good six but then you know Madison and the KC pen deciding to suck). Again, blah.

One way to celebrate National Cat Day ...

Her opening is imaging yourself at a dinner party and eating a delicious stew. You ask for the recipe and it turns out it is dog meat. This horrifies you, but then the host laughs and says she was just kidding. It's "only" beef. Well, that's fine.
My previous remarks about Dr. Melanie Joy and her discussion of carnism (quoting the Amazon summary of her book -- "the belief system that has conditioned us to eat certain animals and not others"). It goes beyond speciesism. Our selective concern of animals (happy National Cat Day) fits in with our broad ability to draw lines that do not always seem logical but then we are talking about humans, not Vulcans. So, we are very concerned about let's say carriage horses (at least some people) but not so much factory farmed "food" animals. 

This came to mind when -- after making a Halloween themed joke about "Kit Kats" on another topic -- when Stephen Colbert last night talked about some NRA involved pressures in Pennsylvania. Put aside a litigation friendly measure (lawsuits are okay for us), the particularly notable action is a move to stop sales of dogs and cats for human consumption. On some level, you know, this seems curious -- we kill lots of them for purposes of population control, so it seems wasteful and all.  The ultimate purpose was to protect pigeon shoots, but the whole thing does sound squicky. 

Now, breeding them merely for that purpose is different, yes -- not a big fan of  specialty breeds for adoption either with so many strays.  Likewise, eating roadkill probably would be humane. At any rate, by one count, forty-four states allow the personal consumption of dog and cat meat. And, some people think it bad when people eat cat food. The state of New York prohibits "any person to slaughter or butcher domesticated dog or domesticated cat to create food, meat or meat products for human or animal consumption."  Note the qualifier.  Legal research: determine what "domesticated" adds to the equation.  Yeah, will get right at that.

There is some concern that use of cats and other domestic animals will lead to some negative results involving pet owners. So, perhaps use of them for research will lead to some neighborhood pets to be wrongly seized.  It's a relatively minor concern. The real matter is that people have an emotional connection to dogs and cats -- articles about this story, e.g., have pictures of cute dogs and readers imagine eating them. Now, this doesn't faze a lot of people when dealing with animals society eats overall.  Remember those Starkist commercials where the fish is upset about not being taken to be eaten?  See commercials now with cutesy cows promoting milk and cheese.  Find them a tad creepy.

Still, Dr. Joy's presentation comes to mind. Logically, why is it a problem to breed etc. cats and dogs for human consumption?  The basic reason is that we respect them too much as "persons" or something close to them to find that appropriate. I asked the author of an animal rights book about consumption of animals who die from natural causes and she concluded that it still was immoral.  The matter is complicated because if you allow it, there will be promotion of other usage of animals for consumption. But, even independently, it would be bad because it demeans them. We don't after all think of eating naturally dying humans.

The additional respect given to certain animals that are not treated like food is not somehow totally horrible.  I realize this, so let's put that aside. But, still, there is a certain disconnect here and arbitrariness. This is part of why ultimately I became a vegetarian.  If we are going to respect animals and care about animal welfare (and perhaps even not like fur or veal), allowing millions of animals to suffer for our palate seems wrong to me.  Big fan of pussy cats myself -- hey Yogee, Simon, Paris et. al.! -- but not so much that mistreatment of pigs, cows and so forth suddenly don't matter to me.

As Mark Kelly and Gabrielle Giffords recently wrote in Enough, the NRA is rightly um "targeted" for various reasons, and doing so here is fine. Plus, it's clearly comedy gold.  Still ... 

Tuesday, October 28, 2014

Last Execution of Year in Texas?

After a late appeal was rejected (for some reason -- we have no grounds to be told -- Breyer did not take part), Miguel Angel Paredes, whose bio suggests his fate was far from surprising, was executed. Don't find this overly useful myself. Update: With lots of former judges etc. pushing for it, USSC does stay an execution 6-3. No need to wait this long. And, given the rarity of it, how about a damn short opinion explaining why?!

Just a Reminder ...

More here. Meanwhile, Obama's "war" on whistle-blowers. And, this really makes me find the institution pathetic. Do you LIKE promoting abortions this much? Again, I will say it over and over again, if this level of purity is sooooooo important to you, you have to be consistent and support pure separation and practicably impossible to uphold broad exemptions. You do not.


The author of the (in)famous Heather Has Two Mommies wrote this book for teens that realistically provides us the voice of an outcast girl from 1971 (dedication implies based on someone; was written in 2000s) who has a relationship with an older man. Nothing profound, story a bit thin at spots, but deals with a touchy subject pretty well.

Want to Change Your Carrier? No? Have A Blessed Day!

I was reading in a public place recently and some Mormon missionary gave me a card and Starkist, but had no sample DVD of the "we're Mormon" documentary she spoke about. Bad planning. Ended, like someone referenced here and a person that I spoke to on the phone earlier with "have a blessed day." Like a comment there, no, I don't mind that. Thanks to changing evangelical minds on LGBT. And those nurses/doctors who ministered EBOLA sick? Talk about "Christian" duty! And, talking about EBOLA, compare Obama with Reagan.

Monday, October 27, 2014

Obama As Sign To Vote "D" Next Tuesday

I personally from the beginning thought Obama was too restrained even if in some respects he appeals to my inner core but it is good to remember that in various ways he was well worth it. One reason to show up (reducing turnout leans conservative) and vote Democrat.

Sunday, October 26, 2014

Sunday Sports etc.

Long day of football with a morning game from London (Falcons blew it) though not too many surprises. One sorta was how horrible Jets played. Cards win over Eagles best game overall. Oakland still winless. Baseball - Shields actually did okay. But, hitting and relief did not. World Series pretty boring so far. Death Comes to Pemberley (didn't like book much) started pretty well if with a weaker final third. Old fave on tv -- Desperately Seeking Susan.

RIP Gloria Casarez

Leader in GLBT movement dies at 42.

Saturday, October 25, 2014

Election Day Posts

It's only ten days away and some places already ongoing! Sen. Gillibrand with Julia Margulies, a reason to protest vote against Gov. Cuomo, why arguments for voting id laws (a time when conservatives like regulations) don't add up & key NY re-districting ballot measure up in air.

RZ Comes Back After A Few Years, Not Looking Like RZ

If Ms. "You Had Me At Hello" wants it fine, though the "it's good living" bit sounds (looks?) lame, but as this article notes, there are negatives to using surgery to clear away what made you distinctive and/or familiar to people. Like Tina Fey -- she looks too glamorous. Jennifer Aniston too tanned and polished. Not going to lie and say never think some work makes a person looks better. But, it is far from always true. Also, moderation is often a good thing.

Friday, October 24, 2014

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

The Puerto Rico district court ruling upholding the SSM ban was one of those things so bad that I missed some of it. See here with some gems about "traditional marriage" as: “The husband must protect his wife and the latter obey the husband.”

Thursday, October 23, 2014

Obama On SSM

Along with the usual trolls, some on the left go all out on President Obama, which sometimes annoys me even more. They should know better, right?  

One lame attack is on his gay rights bona fides, along with a shot at him  "for it after being against it" on same sex marriage. After supporting it on a questionnaire (I never saw the specifics in the past, but here you go) when he was a local politician before SSM was found in even one state, he changed his views as society did as a matter of political reality and the art of possible.  Meanwhile, he supported more gay rights than many, and led the movement to do away with DADT and eventually to push for heightened scrutiny for sexual orientation as a matter of federal constitutional law.  

The "reality based community" should realize that as a whole he was great on this issue, unless "great" requires being far left.  The overall argument holds for other issues too though there are levels of how off base the criticisms are depending on the issue. For instance, I think he has been fairly horrible on transparency and trying to block lawsuits (which however great they are given current law would often fail if taken to trial) on states secrecy grounds or the like.  I think that is one of the areas where he does have something to answer for, beyond questionable pragmatism.

His book Audacity of Hope (2006, one state with SSM, maybe a few with some sort of civil unions) is pretty useful here and darn if few actually cite it even though Obama explains himself well. First, he overall says something I fully agree with -- liberals should own talk of "values," since that is a general way we talk and our values count too. Al Franken was a big promoter of this back when he had his talk show. Second, Obama comes out as a Christian who opposes relying on a few often opaque verses of the Bible to label gays and lesbians as immoral. 

More specifically, see pages 222-23, he is "not willing to have the state deny American citizens a civil union that confers equivalent rights on such basic matters as hospital visitation and health insurance coverage simply because the people they love are the same sex."  This was more than most places, including NY, consistently provided. The phrasing might seem a bit weak, but that just underlines the low level of equal rights for GLBT at the time.  A federal benefit providing even that, which admittedly is a bit thin and vague would have been a big step eight years ago.  And, in time, he did clearly support "civil unions," which again even when he first ran for President would be more than most states, including many fairly liberal ones, had.  

His pragmatism on this point was also underlined in the book. He argued that "in the absence of any meaningful consensus, the heightened focus on marriage was a distraction from other, attainable measures to prevent discrimination against gays and lesbians." And, again, he supported such things in ways that would have moved things significantly forward.  Now, this might -- like abolitionists who felt Lincoln was too pragmatic -- seem too little for some. But, it is a fairly realistic thing to support while still pushing the movement for equality forward. Many inside the movement itself shared such a "step by step" strategy as other movements have.

My personal problem with his remarks when I first read the book was his voicing his religious stance on the issue.  Whatever his religious views, we are talking about state definitions here. A person's religious beliefs on abortion is their own, but opposition there should not determine (though it is likely to influence in some sense) how they would let others have a legal right to choose. If he supported "civil unions" for same sex couples, as a matter of law, he either should support it for all -- end the word "marriage" -- or evenhandedly support legal marriage.  Basically, I felt he was singling out this one area to insert his religious views though yes, I also was bothered by them too.  But, he can have them, I guess.

Anyway, his religious opposition to same sex marriage was of limited concern, and any somewhat cynical expression of it to appeal to certain voters understandable politics. Why? Because on the whole, he was sound on this issue.  Particularly, Obama cited that he was open-minded on the issue, open to change. This reflects the stance of society on various social issues.  And, since as a politician and President in particular, "meaningful consensus" is significant here -- it also is as a matter of constitutional law -- the change would in part be motivated by social change.

Campaign volumes can be quite telling. 

Misogyny in Iran

“We do not want to propagate virtues by acid,” some of the protesters chanted, a reference to the Islamic obligation of “propagating virtue and preventing vice.” Others shouted, “Death to extremists.”
The current Iranian President denounced a new decency law as extreme. With the upcoming Rosewater film portraying the 2009 election, perhaps he is a small sign of progress.

Wednesday, October 22, 2014

Embattled Rebel: Jefferson Davis as Commander In Chief

James McPherson was the one volume Civil War history I had as a text book. This is rather more slim, underlined by margins of a teenager trying to fill up pages. Guess it tells us the basics, but especially putting aside all its summaries of events and characters, it isn't very deep. Plus, at times it seems to be geared to high school students prose-wise. Okay.

Vanita Gupta (and drug criminalization)

After a controversy largely arising out of a controversial client ended one path, the new nominee for chief of the Department of Justice’s Civil Rights Division should please voices on the left. Some conservative voices don't like her comments against drug criminalization, a term clarified here. I added a comment on the effect of drugs on crime.

Challenging the Status Quo (Beyond Voting)

I am not a big fan of the guy cited but the thread went interesting places: 
Voting is the only tool that people have to challenge the status quo other than violent revolution? The court system, collective bargaining, street protest/strikes/pickets, the building of alternative social institutions, community education and organizing…they all count for nothing?

“Voting is the only tool” strikes me as being nearly as oblivious as “violent revolution is the only tool”.
A response by "JL," who then provides an extensive list of his/her own efforts in influencing the status quo beyond voting.  Also, "gmack":
If voting is something we do only as individuals, then we’re doing it wrong. If it is to be a political activity, voting is something we have to do together, as part of a group oriented around common opinions. In other words, I don’t think it’s a good idea to view elections simply as an opportunity for individuals to register individual preferences. That way of interpreting voting ends up collapsing into Brand’s position: If my personal preferences are not satisfied, I just abstain. Voting instead is part of an organized practice, and thus not altogether different from, say, building alternative institutions, engaging in collective protest, etc., etc.
The results of the actions of single persons do sometimes seem to me to be of unclear value though like one drop of water joining others the fill a glass, the ultimate ends can ultimately be seen by the actions of individuals.  For instance, people change their minds about things, in part by listening to others and reading things say say. Who's to know how even one person's input here will not matter, especially if addressed to major distributors such as members of the press?  At least, I feel compelled to do so here in various cases, including when things are said wrong. I'm a bit of an evangelist in that sense, feeling a need to preach and promote.

Such is but one way to change the status quo. Take high school. If just a few people, especially those with some social standing, oppose certain types of injustices -- including harassing certain types of people -- it will be significant.  It can change the status quo.  Sometimes, it's a matter that few really give much of a thought about something.  Just one person, or perhaps a small group, can change minds by bringing it to light. 

On the mega level, I have noted in the past that the courts alone doesn't define the law, in fact, it is influenced by other factors. This is true even if the judge involved rests on originalism.  Some give courts too much credit here. The same applies to voting. It is obviously very important, but just one tool, including to change and influence society. 

"girls played hooky from school and tried to join ISIS"

Good articles on ISIS' attraction to some in West.

KC Loses For First Time Since Late September

Bound to happen. After a long layoff, with "small game" James' record in the playoffs and the unstoppable force of Bumgardner (James Garner's original name!), good time as any. Wipe off the dust and win tonight! He's bound to lose eventually too.

Tuesday, October 21, 2014

Puerto Rico SSM Ban Upheld

When same sex marriage cases are discussed, repeatedly we hear of "states" and D.C., plus perhaps in some cases (given DADT especially) the military and other federal agencies. But, I repeatedly -- including from the usually on the ball on this issue Chris Geidner -- don't hear about federal territories. I myself was reminded once that the 1st and 3rd circuits include Puerto Rico and the Virgin Islands, so are not free from worrying about this issue giving state and D.C. action. I reminded someone this this very day. And, what happens? A federal judge out of Puerto Rico (1CA) upholds its ban! A Carter nominee at that.  Told ya so!  

The ruling spends the key middle portion arguing, with an appeal to a 1CA DOMA case in particular, that Baker v. Nelson is still binding. When the 6CA decides to finally announce their rulings -- and wouldn't be charming if we have a two-fer here -- if Judge Sutton is the deciding vote on the side of inequality that odds are that he will too.  He has a harder job of it being on the appellate bench.  Won't belabor the point on how I and others find Baker non-binding. The 1CA ruled before Windsor, but let me note that it is not beyond reasonable (if far from compelling) to read it to apply here too.*  It was a fairly conservative opinion.  If pressed, wouldn't bet the farm that the circuit will join the other four.  Would also note that Puerto Rico is not really a great fit for the New England 1CA. 

The 1CA overread the doctrinal breadth of the Baker summary affirmance to my eyes and makes it broadly about "same sex marriage" though (cf. footnote) in its holding mixed federalism concerns along with a test that "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form" as applied to sexual orientation. Wikipedia, which already has reference to the ruling, tells me that a referendum blocking civil unions and domestic partnerships did not pass.  This helps the government's case -- as compared to a majority of places, the matter is up to simple legislative process that can be replaced I assume by a simple vote tomorrow in the legislature.  Still, the 1CA rule very well might not justify various types of denial of protections of benefits less than marriage. This underlines Baker v. Nelson, especially as applied in the current day with current realities, is of limited concern. 

But, the district judge here doesn't really just rest on Baker v. Nelson. The last third of his opinion makes the reading in fact look almost pretextual. He talks about "traditional" marriage, quoting Alito's dissent in Windsor. How the "very survival" rests on the procreative aspect. Give me a break. That would call into question even Griswold. The "ingenuity and imagination" of the four appellate courts that ruled the other way is cited and polygamy/incest raised.  We hear talk of "minimal marriage" (new one!)  and the Schuette case (involving something concededly allowed) is cited to support the political process.

Its a tour de force of backward b.s. It's "DISMISSED WITH PREJUDICE" grant is not just legal language. It's a substantive description.  Think it is fair for a district judge here to hold the line. But, he couldn't rest with that. He stacked the deck and embarrassed himself.


* I can be convinced that this gives the judge too much credit, especially when he cites the first portion of the opinion and notes state control of marriage "led" the USSC to decide as it did. This papers over the equal protection portion of the opinion. Guess the one group loathe to cite Scalia (though he cites Alito) are those who want to uphold SSM bans.

And more: SCOTUSBlog is on the case.  It's summary cites the "tribute" given to "traditional marriage" (good use of quotes; again ... coverture? what?) and underlines my stack the deck conclusion:
If anything, he added, “Windsor stands for the opposite proposition:  it reaffirms the states’ authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”
Putting Windsor and Baker together “in tandem,” the judge declared, those rulings “emphasize the states’ historic and essential authority to define the marital relation free from federal intrusion.”  He quoted language in the main Windsor opinion saying just that.
Except that it underlines that there are constitutional limits here, something the Court found repeatedly as well. Marriage is a federal question. There is a difference between there being no substantial federal question and a win on the merits, especially with the help of the fairly recent 1CA ruling's direct language regarding Baker.

The  judge here, along with his "tribute," did the evenhanded conservative a disservice.  He placed a thumb on the scales. If you want the USSC or at least the 1CA to decide the issue, fine, but really. Again, if this is taken to its logical conclusion, Griswold would fall -- it struck down a state regulation of the contours of the marital relation.  It is "simply" hyperbole.

Sports Weekend

Jaguars won, Seattle lost & each NY team lost, the NYJ in painful fashion. Overall liked the Joan Biskupic Sotomayor book -- in fact, wanted a bit more (e.g., it mostly skipped the hearings!), a nice crisp read. Getting a lot of love from the Court watching community.

Monday, October 20, 2014

Ginsburg at 92Y

Supreme Court Justice Ruth Bader Ginsburg and former President of the Supreme Court of Israel Dorit Beinisch joined NPR’s Nina Totenberg yesterday, adding to Ginsburg's latest public appearances. Sotomayor private let her know that she might be overexposing herself. Seriously, it does seem Ginsburg is putting herself out there a lot recently. And, her comments continue to be somewhat blunt and a bit controversial though those in the know are by now familiar with her standard replies. 

I listened to the very beginning of the appearance and was somewhat annoyed with three of her answers. Totenberg started with the Saturday morning voting rights order/dissent and Ginsburg explained that the matter came at the last minute and it took time for her to write a reply. The general assumption is that she was sending a message here and the timing underlines the point. I really don't see why it couldn't, e.g., not just wait to Monday morning.  The USSC could have just stayed it until then. 

The more dubious comment was in response to a question regarding the by now much criticized slew of unexplained actions "by way of injunction, stay, unsigned order, and wordless denials of cert petition"  Dahlia Lithwick suggests -- as might be understood by people who recognize the technique in less marble tinged locales -- such silence can "hide a multitude of conflicts."  Ginsburg noted that these orders etc. can be a result of last minute appeals that require quick responses and there isn't time for more. 

Oh please.  There is time for a brief explanation especially as applied to same sex marriage cases which they had for some time and was not compelled to deny right away.   She also noted as to the SSM cases, there is no circuit split, so the Court wouldn't generally take one.  Good to hedge a tad, since if you look up the guidelines here, we have this:
a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
This is the third "consideration governing review" on cert, putting aside some debate on just how without conflict we truly are. Now, I have said here and elsewhere that waiting if reasonable, but in the spirit of another recent comment, it might not be quite as easy as all that.  The question of a split itself is only so clear if we deal with a post-Windsor world, since older cases in both federal and state realms rejected the claims. Every case the USSC does not take in effect builds the momentum with them granting stays sending a signal to appellate courts they should not either. 

The final answer that bothered me was in response to calls for her to retire. I respect the prudential concerns of others -- personally 2015 looks like a good time to do it -- but surely she has every right to stay on as long as she thinks proper. The annoying thing is when she starts saying things like there being a low likelihood that someone as good as she would be confirmed in this atmosphere. Well, the fear is that with a Republican Senate or even worse a Republican President, the replacement would not be ideal.  So, yes, the people promoting this viewpoint thinks we would get a better choice -- by their likes -- if she had retired in 2014 or did so in 2015.

I personally find it unlikely that even if Republicans gain control of the Senate -- a prospect that is depressing and might be settled with runoffs and challenges for months -- her replacement would not be a perfectly reasonable sort who at the end of the day will vote like Obama's other two picks.  They might not be as flashy as Sotomayor or a newcomer to the bench like Kagan, but let's take Judge Wood.  Now, she would be 65, which might seem a bit old. Ginsburg was over 60 when she was confirmed.  Would is really be unlikely -- especially since her age might be a "plus" for some since she would on the Court for somewhat less time (though given recent trends, could be there twenty years) -- for her to be confirmed?

RBG has a bit of a high opinion of herself here. She clearly was a civil rights great, but at the time of her appointment was seen as something of a moderate.  There must be at least one option that will get at least enough support from a few Republicans to avoid a defeat. I'll believe a true filibuster here when I see it -- the last time that took place on this level was to block Fortas for Chief Justice, a guy with some baggage.  At best, this would require Obama not to pick someone who can be tarred as too liberal. This probably isn't really his inclination anyway. 

Judges have to be judicious in comments made publicly, but at some point, we have a right to call "b.s.," even of the Notorious R.B.G. Might want to tone it a bit down.

Moderate Opposition

One response here in particular felt for those who thought about it and aren't self-interested it is blatantly simple to oppose criminal punishments for drug use. Such overkill bothers me -- people aren't just wrong, they are either biased and/or unthinking. People can be wrong without this, especially for complex questions. Likewise, they (such as "conservatives") are usually not simply bad people. Strong opposition is fair, but sometimes people go too far.

SCOTUS Going to the Dogs?

Meanwhile, Oyez.com (since SCOTUS doesn't) has most of last term's opinion announcements with a few dissents from bench up and (normal time) SCOTUS itself had an orders day.

Sunday, October 19, 2014

"other considerations"

Reading the Sotomayor book, mention was made of a 1950s USSC ruling involving exclusion of Mexicans from juries in Texas that recognized Hispanics are protected by the 14A:
Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'—that is, based upon differences between 'white' and Negro.
This runs counter to people, down until today in things like same sex marriage, who say the 14A Equal Protection Clause -- the text aside -- only concerns itself with blacks. The application to "race" generally, which widely would include alienage and religious groups ("Arabs" and "Jews" originally considered as racial groups, e.g., and such was the case even into the 1980s)  is a fairly uncontroversial, at least now, application. 

But, "distinct class" rule is wider.  A half-century before that ruling:
Of course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes.
Note how "color" and "race" are set forth in a list, so it is not even that they deserve special concern.  But, even granting that, the "arbitrary" rule, the "no legitimate state interest" rule widely applied for over a century.  It helped when dealing with federal legislation, since without a federal equal protection provision, equal protection was often protected as a matter of due process. An "arbitrary" (discretion not based on legitimate reason) law was seen illegitimate, not an appropriate legislative practice. "Substantive due process" continues to be seen by some as an oxymoron, but various accounts show historical practice honored this rule as well.

The test as expressed, though this was in 1900 after all, sounds a bit easy to make -- "no possible" isn't that hard.  The courts had a low bar for reasonableness in that era even in the area now seen as fundamental rights. Meyer v. Nebraska, an important early precedent for privacy rights, e.g., noted in the 1920s:
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.
The phrasing suggests the complexity of the rule -- something can have a "reason," but it might not be an appropriate purpose. For instance, it might interfere with parental decision-making over education without be justified by some "emergency" or other strong interest (citing an "emergency" as not being present suggests the test is not quite as weak as it sounds -- it might be thought that something much less would do the trick). 

The rules in certain ways are stronger and classes of scrutiny has some logic (race remains more clearly wrong than let's say occupation) but some basics stay the same.  Constitutional protections are not in place merely for the central reason behind their births. It bears noting that even there the 14A was originally also there to protect non-blacks, such as Republicans and others felt to have been mistreated in antebellum times and later. Anyway, the language is general, was intended to be so, and clearly is appropriately so today.  The need being a question of fact.

The particulars changing from "time to time."

Sotomayor & Adoptive Couple

You need not be from the Bronx to read Joan Biskupic's latest on Sonia Sotomayor -- aimed to be about more than Sotomayor but also a cultural study for which she is a representative -- but it helps. For instance, one vignette involves the 5 train, which I took but the other day. She went to Cardinal Spellman HS, which was on my short list. The Puerto Rican / projects angle is not my experience, but you cannot have anything. Still, my sister-in-law has both, so there's that.  

Anyway, found her Scalia and O'Connor biographies serviceable if a bit bland at times, perhaps my familiarity with the subject matter raises my standards, but the book is pretty good at first glance. The conclusion, though not using the name, suggests Sotomayor will be a sort of "William O. Douglas" justice -- concerned more about being right than convincing others, willing to challenge others and (though he was more shy) having a large role off the Court (he had political inclinations and later was a world traveling author, she takes being an ambassador to the public very seriously, especially regarding children).  I think there is a place for that.

An example of her style was Adoptive Couple v. Baby Girl, a tragic case involving the adoption of a Native American child given federal policy that gives a special role to protect Native American culture.  The Wiki entry provides important background (with links -- a key value since the entry itself at times can be iffy).  As with many child custody matters that are subject to extended litigation, and many that are not, there was no easy answers here to ensure the best interests of the child.  She was strongly on the side of the birth father, who eventually challenged the adoption, and she made it know by strong questioning. To the degree that Roberts and Scalia each once told her to the advocates finish what they were saying.  Sotomayor seems to have toned down her questioning a tad lately.

Scalia (who joined her dissent along with Ginsburg and Kagan) at one point noted that we aren't always strictly concerned with that -- or we would arguably have a need to take away many parental rights. Still, even putting that aside, the case was messy.  Note how the case was decided 5-4 with one of the majority (Thomas) saying both interpretations of the statute were reasonable, but constitutional avoidance (he has a more limited view of the Indian Commerce Clause) put a thumb on the scales. Also, it might be useful to get a sense of the father's side of the story. 

Custody cases are tricky and the outsider should take each side with a grain of salt, but background does color my thinking here. The "sperm donor" hypo here or concern that the dissent's view would result in removal "at any point in a child's life without concern for that child's welfare" contrasts with the actual details of the case. This was no one night stand -- the biological parents knew each other off/on for years. This is a key matter -- the father had a reason to not take a break as permanent. As cited as well by the state court below (if child custody matters being largely state matters is a factor, should not state courts be respected too?) -- link found on the SCOTUSBlog case page -- the alleged "abandonment" of the birth parent here is complicated too.  

The birth mother, at least there is reason to think so, seems have made a concerted effort here to stack the deck there down to maybe even trying to complicate the tribal rights here. The adoption was started -- going by the state supreme court -- days after the birth (the adoptive parents at the birth) but the father (in the military and about to go overseas) was only notified months later.  He claims, and it is not clear this was disputed, to have not known an adoption was taking place until being served the papers. And, once he did, he immediately rejected the idea. The father thought he was giving custody to the mother, not giving up any right to see the child.  No "sperm donor," no "years" later.

The messy details suggests just the sort of thing often taking place in the real world, particularly in the lives of various minority groups.  Some justices were upset that Native peoples were getting special treatment. Duh. (The article was wrong to be optimistic regarding him obtaining custody.)  Their disrespect for biological parents is also troubling. One thing highlighted when the case was going on was the father's small amount of Native American blood.  Who else should we disqualify for rights arising from being members of tribes?  And, yes, states generally have discretion over domestic matters, but the federal government has special power over Native Americans. Federal supremacy here over states is well warranted given overall history though it was not always used wisely.

We are left with statutory analysis that might favor the majority -- especially without Thomas' caveat I am left a bit dubious -- but it does seem like a thumb was placed on the scales here in large part based on a few justices' personal biases.  Such things are always going to be part of human judging, but it still is useful to keep an eye on them.  Overall, I'm glad for people like Sotomayor and Kagan to keep an eye out. Thanks Obama.

If useful, will update my opinion of the book later this week.

Saturday, October 18, 2014

Ipse Dixit USSC Texas Voting Decision In Wider Context

Update: Rick Hasen talks about Breyer's silence, offering some reasonable possibilities. The "dissent without saying" option seems lame, especially when Ginsburg was on the record.  Even if he could officially do that, it surely doesn't come off that way. People ignored when he actually publicly joined Stevens' (along with Ginsburg) dissent in Bush v. Gore. They actually aren't that wrong to not assume he dissented here
The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.
From time to time, the justices in effect brag that unlike some people, they explain their rulings via opinions. At times, they point to them when asked about certain subjects, the justices standing on the opinions.

This was always somewhat overblown, especially to the degree that the opinions were not really always a full account of what was going on. Justice Brennan, e.g., in Eisenstadt v. Baird rested on rational basis review in striking down a ban on contraceptives that applied to unmarried couples but dropped language hinting at a possible right to choose an abortion. It also noted that wider fundamental rights issues need not be decided, given the law was irrational, but covered such things in dicta anyway. 

This sort of coyness at least is somewhat explicit. The Supreme Court also denies cert or appeals, including in death penalty situations, usually without comment.  As noted here, it was even more complicated before recent days, when mandatory appeals actually meant brief orders expressly made law though a "summary affirmance" generally were given less respect.  The use of Baker v. Nelson, as alluded to there, shows, however, that the opening for broader implications were possible if desired like a loaded gun.

From time to time, justices dissented from these orders / denials, or perhaps added some sort of concurring statement noting a denial of cert. shouldn't be taken to have legal precedential significance and (maybe even if they thought the issue important) there was a reason not to take a specific case.  Likewise, I have seen a few opinions by individual justices writing "from chambers" about appeals to them directly in their role as circuit justices that explains why they did not grant a stay or some such thing. There are thousands of appeals to the Supreme Court annually and most deserve quick treatment. The practice of not even noting actions by individual justices (noted from time to time at SCOTUSBlog with links) is a bit much.

Nonetheless, from time to time, there is a case for more substantive comments. As expressed here, e.g., the to this somewhat more than causal observer striking number of without comment (with a few dissents) stay or cert orders of special significance this month involving the death penalty, abortion rights, voting and same sex marriage. Election Law Blog, e.g., provided ongoing coverage of various lower court rulings involving voting id and procedure laws that to me unfortunately wound up being deciding weeks before the election.  They should find a way to avoid that sort of thing, perhaps postpone new voting rules for a year and a set of appeals.
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study.
As noted here, regarding the latest "ipse dixit" voting law stay, the Supreme Court did set up a rule that looked askance at late minute judicial changes of voting procedures.  The three dissenters here, however, argued that the contours of the rule are unclear.  Does it apply when the district court ruling convincingly finds the law discriminatory and overall problematic on statutory and constitutional grounds?  Particularly looking at how they treated providing the more strict ids. Now, we can say, though now we might add a few names, that "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court," but it's best to do so based on an opinion, not (accurate it might be) tea leaves reading of orders. 

This morning's action -- my leaving open mid-afternoon the chance the USSC (akin to "take out the trash" Friday politician news) would have late day orders was prescient if not quite expecting one early morning Saturday (when did this EVER happen?!)  -- does take the cake.  The best case is that this fits in to the "don't change rules late in the game" rule that has thus far (if again without explanation) applied to appellate rulings that went in both directions. This is so even if as noted by the dissent that such "foolish consistency" is ill advised. But, guys, at least explain yourselves.  Justice Breyer's silence (see also in the post-Hobby Lobby order) is particularly annoying, if perhaps part of his long term prudential strategy.

I have noted that not taking SSM cases is defensible and recognize how these orders/stays policies work.  Nonetheless, there is a point when it is taken too far. I was annoyed when the dissenters didn't state why they were for a stay of more than one execution recently, at least once probably because of concerns with protocols. It wasn't just one case. At some point, even if the USSC won't take the case, the dissenters should have made their concerns know. The importance of voting rights, including public opposition to Citizens United, makes this a special case too. 

The break of dawn timing adds to what I see as a black eye to the Court. Enough!

Then They Came for Me (aka "Rosewater")

The Iranian-Canadian journalist Maziar Bahari took part in a joke segment for the Daily Show, not knowing it would be used as part of the "case" against him by Iranian authorities after the 2009 elections. Jon Stewart later directed the akin to a novel account of Bahari's four months of hell in prison, a film coming out next month entitled Rosewater.

Friday, October 17, 2014

Scotus Watch

Cuomo challenger Zephyr Teachout argues this week's dentist case raises important corporate power issues. She also opposes the proposed re-destricting commission on the ballot as not truly independent (seems less constitutionally problematic than a case USSC will hear) in NY this year though I doubt many know it (just found out myself). Also, a border dispute and two other technical cases were heard. Let's see if we have another late day order.

Enough: Our Fight to Keep America Safe From Gun Violence

Click photo for recent article on duo, here is their sane gun policy organization and I liked their recent book though wish there were some sort of end notes.

Gradualism Has Its Place

Update: I appreciate this nice crisp four page opinion dealing with SSM in Arizona -- once the 9CA ruled, no need to belabor the point.  Cf. A twenty-something ruling from Alaska. Hopefully, other district judges, as needed, follow the lead. Cf. today's a sixteen page Wyoming deal.

Various people sympathetic to same sex marriage are concerned that the USSC didn't grant cert, Prof. Dorf taking a somewhat different tack here though noting in comments that he also thinks the importance of the issue or as I quoted from their guidelines:
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
Another professor merely provided a quote on the "vices of passive virtues," leading to an extended discussion on various issues including racism. The citation of Naim v. Naim -- a much criticized punt by the USSC in the 1950s when it wasn't ready to decide interracial marriage. This led me to add a few words. The below is a somewhat edited version.

I think the "common law" idea of case by case development of constitutional law (Judge Ginsburg supported this during her confirmation hearings, using an example of how her circuit did this to decide 4A questions bit by bit), to "‘get it right’ and ‘keep it tight.’" Bottom line, though at some point the USSC should take the SSM cases, but push comes to shove, one year after Windsor, it is not horrible that they are not.

Gradualism can leave in place in the short term horrible law. But, Brown v. Board et. al. showed turning horrible law around is akin to turning a tanker. Also, though we see racial discrimination as a united whole, it simply was not in the past. For instance, even Justice Harlan, the dissenter in Plessy, felt public school segregation different:
"Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."
BEREA COLLEGE v. COM. OF KENTUCKY (racial integration in a private college not protected).  And, as Justice Souter noted, this is both not surprising or even shocking on a basic level. The law develops over time as society does. Justice Jackson in an unpublished concurrence to Brown noted that over time education became so essential to citizenship etc. that the old path was no longer sound. It was no longer mere "social" in nature. And, even there, as seen in Loving v. Virgina, "social" discrimination was no longer seen as acceptable. The original understanding on the whole, with limited dissent, was that interracial marriage was not covered. Harlan went along with the sentiment that "evenly applied" race based laws were acceptable there.  As were certain race based programs.

There is also the prudential concerns about the strong public reaction to overturning such bans (miscegenation perhaps first came to the fore as a major public bugaboo during the election of 1864, used against Republicans, most of whom joined with Lincoln in denying they were for the right to that sort of thing).  Constitutional principle might eventually lead to broad decisions but it is not inappropriate for the Supreme Court, especially with its discretionary doctrine, to not decide all things at once.

Or, one year after they decided a more narrow ruling.

See also: on the "okay to wait" side though it overargues the Roe point. Still, though question just how much it would have changed things, there is a strong argument to be made that they should have went somewhat slower.  As to the second point, I say again -- if the USSC took a case, probably the matter would be on hold for eight months. Wonder how newly married SSM couples in various states will feel about that. 

Thursday, October 16, 2014

More on Reproductive Health News / 1A Issues

So when the Supreme Court said in its opinion that the Administration could extend a religious accommodation and that the effect on Hobby Lobby employees would be “precisely zero,” the Court was wrong—its employees are likely being denied coverage right now. Although that gap is probably temporary, it could result in serious, irreversible financial and personal harm to women.
Just to "update" how Hobby Lobby burdened employees (and their religious beliefs -- they matter right?) because their employers in the public sphere have a different religious belief.  As cited in an article linked in the piece, a law "restoring" things to past law would seem to guard against this sort of thing, since:
“[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.”
But, other than trying to paper over the burden, the majority here (though Kennedy's opinion clouds things) makes past case law somewhat irrelevant. The Religious Freedom "Restoration" Act really isn't about returning to past law even though "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests" is cited in the law itself.  Just what the law overall requires is unclear, but on balance, pre-Smith case law is a sound guidepost here.

The above is posted as a reminder and also because of a recent post at Balkinization, which also has an interesting ongoing series on public health and the First Amendment.  I agree with the argument that commercial speech deserves protection though intermediate scrutiny might be warranted in some cases where ideological or other questionable grounds are the "purpose or effect" of regulations.  A recent post addresses a shift in abortion law where conservative medical facts (court "facts" are troubling things) are cited as "objective and neutral" things, somewhat different from the days of Blackmun authored opinions.  The "abortion regret" issue is cited. Putting aside that, yes, facts can be ideological, the bottom line there to me is that we sometimes regret choices we have the right to make.

The answer there was that fully informing the woman, not removing the right to an abortion procedure that at times would be the right legal or moral choice (the latter tellingly noted in passing in one of the oral arguments).  It can be a tricky thing, especially in the context of regulation of professional speech, to hold that certain things are violations of the First Amendment (or the right to choose).  This is true even if we are talking bad policy. I do think the ideologically slanted nature of these things are problematic on speech grounds, even if Casey held the state can favor life here.  This is so even though I agree with Stevens/Blackmun there that "informed choice" and slanted coerced physician speech to push the choice in one direction favored by certain abortion views is not the same thing.

Things like forced sonograms are a problem (icky teeth image) for other reasons too, including adding costs and any physical invasions required.  One concern cited is the psychological harm to some women and Prof. Colb, who is somewhat sympathetic to some sort of informed consent rules, finds this in particular makes forced sonogram images unconstitutional. The costs of various requirements, especially early in the pregnancy, is a problem here as well.  Nonetheless, especially given current law, requiring clinics for second and third trimester abortions to provide the option would be different. Some abortion clinics do this anyway.  It would truly add an objectively neutral criteria for true informed consent and promote "life" in the process as well.  There are ways to do this that are not inappropriate.

Finally, to remind, the Supreme Court temporarily stayed part of an oppressive abortion regulation from Texas (Linda Greenhouse provides hypos) with reproduction rights advocates rightly hesitant to be overly excited.  The lack of good faith here as to applying neutral medical rules or applying precedent for that matter is telling.  The ideological nature of the legislation underlines that even commercial or professional speech and other regulations at times should be taken with a grain of salt.*


* It is notable that in Casey as well as the gay rights cases, we hear tell of "purpose and effect" of governmental action.  This was seen as notable over a hundred years ago in the Yick Wo case, where an allegedly neutral law was applied in a discriminatory way.  It is a realistic way to uphold rights.

Wednesday, October 15, 2014

R.I.P. Elizabeth Peña

Two gems -- Lone Star and Shannon's Deal. R.I.P.

You're Not You

The NYT review was mixed as was the Rotten Tomatoes & the leads were intriguing. But, Hilary Swank has had great/serviceable/bad & this is more in the last column. The actresses deserve better material in this MLS drama though hey look Ed Begley, Jr. has a neat cameo.


Interesting photos of various body types.

Tuesday, October 14, 2014

Legal Quickies

Replacing lethal injection with the firing squad, perhaps along with nitrogen gas, unwanted for various reasons, but perhaps better as a method. You know, it still being wrong and all. USSC policy to ban speech on its front lawn was flagged as hypocritical and the application to buttons etc. suggests, yeah, critics have a point. Abortion rights without apology.

USSC Orders

 And More:  Checking Twitter, which is getting a bit too addictive, I see that at least for the time being, Texas' anti-abortion law -- in part -- was too much for Kennedy (three justices dissented from a partial stay, but surely his vote was key here). One is wary hoping too much here, but it's something, especially for the thirteen clinics that can re-open though given it once had forty-one (per Scotusblog) suggests only so much.

The biggest news this USSC term was the decision not to hear any SSM cases, which sneaked under the radar via the Order List that provides a list of cases they have decided not to hear. If we go to the link and check out today's orders, there is nothing quite as exciting, but a few of some interest. 

 A major change -- at least in form (the actual effect on sentencing results is debatable) -- in recent years is the requirement that juries determine facts used in sentencing.  The "Blakely/Booker" line of cases.  The result was a bit confused since the USSC split on the question (Breyer/Kennedy was no big fan of the change while Ginsburg supported it, but joined in a somewhat confusing split the baby solution) and Stevens/Souter leaving the Court matters since they were on the "pro" side.  As with other matters, the conservatives are split and Sotomayor/Kagan might not be as supportive.  Thus, this denial is not surprising, nor the Scalia/Thomas/Ginsburg dissent. More here with a note on another significant criminal rights denial.

There is a SSM related denial today.  Yes.  A guy with past history in this sort of stuff tried to intervene in the Utah case because he wants to marry a machine. The last link provides the actual brief -- one hopes this guy, a lawyer, is not serious with this crackpot type stuff.  It would be a lot less fun if this guy was just some sort of unhinged person though this Duck Dynasty defender also has been charged with harassment, so maybe so.

The USSC also rejected a challenge to a California law against the sale of foie gras, the sort of food like veal that even meat eaters probably often are strongly against. The strongest federal question was that it somehow interfered with interstate commerce in part since in burdened out of state producers. This and other challenges were denied with no "liberty" interest in consuming the stuff raised, going by the opinion.  As noted by Justice Blackmun, who supported the RFRA friendly approach to free exercise, animal welfare laws can stand even in the face of such claims.  His clerk that flagged that issue?  Sherry Colb, who later wrote this

And, there are other footnotes, but those might be highlights. And, now to scintillating orals involving border disputes and this:
Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants
Oh, the 6CA still hasn't handed down their SSM rulings. 

Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment

I gave three stars to this book [extended "e-notes" provided] over at Amazon.  As a whole, a lot of good material on founding thought, meaning over the years and an overall (to me seems a bit non-germane to specific purpose) brief against the death penalty. It could have used an editing job and at times was too heavy-handed, but good used book pick-up. Meanwhile, good summary of race based polices in the Civil War Era (if an easier call -- see comment here) helping to show affirmative action isn't per se unconstitutional.

Sunday, October 12, 2014

SSM Comes to Alaska (Click For Opinion)

NFL Sunday

Dallas upset Seattle, Eagles currently crushing NYG and Pats won against a team with a shot at beating them. Great. Jets had a chance to tie, went three and out and Denver gratuitously tacked on a TD in the last 1/2 minute after a failed pass gave the Jets "a shot" with under a minute. There was a tie (normal range FG missed at final buzzer) and there still are two unbeaten teams (close games, one with onside kick, but a LONG FG was blocked). TBC?

So, a Columbus Day Parade is going on down the block ...

John Oliver's video doesn't come up, but others called out Columbus Day. The best path might be to use it to ponder the complications of the situation, of 'our' history. It is also wrong to single out "Columbus" here, but can be a symbol of the excesses of the times. Any half-way credible description of the history is at best unpleasant, if not quite as extreme as the perspective expressed here. The "dog food" bit is news to me, but often cited.

Saturday, October 11, 2014

The Trouble with the Truth

Lea Thompson/John Shea shine in this in effect two person play of a movie -- good DVD find! Other than a "fuck," not sure why it is "R" rated. Also, the Icelandic film Astrópía about a cutie who needs to work in a comic book store but gets into RPG etc. was pleasant. Good use of animation and a nifty (if somewhat confusing) finale imagined as LARP.

Friday, October 10, 2014

"The gay marriage cases and federal jurisdiction"

I appreciate the gender discrimination argument etc., but in Ivy tower originalism news, this is pretty ... well silly. The idea that Loving itself would not have been properly decided if it was only a civil ban (like custody matters?) is telling. Like the federal power argument in Windsor, the gender argument (if much stronger) got little support in the courts.

Thursday, October 09, 2014

Voting Litigation Update

See here. Election Law Blog explains certain somewhat opaque but now consistent USSC orders regarding last minute appellate rulings as well as a lower court ruling striking down a Voter ID law in part as a sort of illicit "poll tax." Given the costs involved, some (as do I) do see it that way, but it has gotten at best limited acceptance in various court opinions.


Got these on sale and pretty good -- I used a normal hot dog roll, spicy mustard from the Chinese restaurant and assorted vegetables (including a sliced carrot).  Microwaved it. 

GMO Labeling

[It is only somewhat tangential to the below, but this essay on how the Ebola outbreak (as applied to this country, "outbreak" is not appropriate, but there is one in Africa) shows how anti-government rhetoric can be dangerous is useful overall.  The author is an economist and notes how in society a "free market" still is one regulated by the government in a range of ways.] 

I disagree with the sentiment that GMO labeling laws are misguided because it gives "too much information" and misleads the public. As a participant at a blog in part concerning science issues noted recently:
GMOs have, at best, not been proven harmful, which is different from having been proven safe. GMOs have not been tested for long-term health effects, much less been tested with independent oversight, and each GMO is different, so each new GMO brought to the market must be tested. Plus this statement makes no mention whatever of the increased use of pesticides with many GMOs or the evolution of pesticide resistance in plants and animals as a result of that increase pesticide use.
As I noted in comments, even one of the links provided in the piece provided some reason to be concerned about GMOs, suggesting to me that it is acceptable if people wish to know about them being in their food.  Prof. Adler also was on the case, guess around a year ago now, and he provided links that again suggest at least for certain people GMOs might have negative effects.  They are still in their infancy and some precaution principle is appropriate.  The "has been around for centuries" bit:
true to a certain extent -- for example, a pluot is a human created plum-apricot hybrid -- it is misleading, both because the techniques of genetic engineering are different from those used by hybridists and because those techniques allow the introduction of genes from one species to a very distantly related species. 
One comment in response the original post made basically a right to know / democracy argument that is not merely answered by citing science. I think unreasonable labeling has problems as a matter of policy, but there is something to this.  Also, there are basic "right to know" issues here and GMOs are not just a matter of science, but value laden policy:

The reasons for developing GMOs in the first place were all value laden, whether you think those reasons were making money for large corporations and their shareholders, feeding the hungry, developing new and exciting strains of food, or reducing pesticide and herbicide use.  Furthermore, the question over whether to label is a question about the public's right to know what they are eating -- again, a value-laden issue.  Even if it turned out that GMOs were the best thing since sliced bread, citizens arguably have the right to the information necessary to decide for themselves if they want to eat them.  Does science tell us what our rights are or what our values are?
I have read up on this subject to some extent, including a few books for the general public, and my gut view is that GMOs as a whole are safe but that there are various possible concerns especially perhaps in certain cases (e.g., certain GMO products might have negative effects on health or the environment to some extent). The penultimate link includes a comment with a mini-bibliography.  And, the situation is still in flux.

Overall, seems to me, that labeling is acceptable, including mandated by the government. Voluntary labeling is suggested. That's fine, but doesn't seem like every company wants to do that or calls for this would be redundant and opposition a tad overblown. Labeling also would -- like kosher and halal labeling -- help those with moral or religious opposition. Why not inform those given safety is not assured, even if "safe" some restraints and pressure to do so might be helpful and it would help people make choices following their own personal values?

A libertarian might even support such laws since it advances freedom of choice though some might say the market should do the work there. So, even some of them might sign on! Anyway, I think labeling is a good idea.  It is at least not harmful.

Wednesday, October 08, 2014

"Of Meat and Manhood"

This post is an interesting discussion of how a law article led to a lawsuit and the value of academic freedom. The article itself is interesting -- how things like being a vegetarian can result in gender discrimination. Given I am both a male and vegetarian, you know ...

SCOTUS Ipse Dixit

SCOTUS makes two key voting rights decisions without comment except for note of four dissenting in one, an actual written dissent by two justices in another. I have seen probably more than one justice note that the USSC shows its work. Sometimes, not so much.

RIP Sarah Goldberg

Obituary. Meanwhile, the less common "coming soon" R.I.P.

"Scenes from Daily Life in the de Facto Capital of ISIS" (click for story)

Giants/Cards join Royals/Orioles

Kershaw is 0-2, both sides falling apart in the seventh, so Cards (sigh) are in. Nats knocked off too so the other repeat player Giants (it is an even year) sets up a probably good baseball but eh for me personally match-up. One good championship series is good enough, I guess.

Tuesday, October 07, 2014

9th Cir. Rules on SSM (Edited/Updated)

And Also: Continuing his trend of intellectual guests, Colbert used the First Monday in October to bring on a law professor's whose article on use of facts in amicus briefs have received some attention. Dare I say she also is pretty cute? The article and others can be found here, showing a past interesting in court use of facts.

It might take a little while, but a handful of states not directly involved should have SSM given they are in the same circuit as yesterday's denial. The same holds for any state not directly covered by today's totally unsurprising 9CA ruling. One count is thirty-five states now or will soon have SSM. The take down of the "traditional marriage" claim is my favorite part of the latest ruling.  It rests on equal protection though the concurrences also rely on right to marry and gender discrimination arguments.

It is not really surprising that Judge Reinhardt would "concur without reservation in the opinion of the Court," since he wrote it. True enough examples can be found where primary author dissented on some point.  His concurrence is brief; the gender concurrence is longer than the majority, perhaps because it is more unique (various judges offered it as did others, some of whom think it pretty obvious, but most do see it as a sexual orientation manner -- I think the two are connected). 

There is some facial obviousness to the gender argument -- you can marry a person, but only if they are the right sex.  You don't have to show love or sexual desire to marry. Some homosexuals, for whatever reason, along with bisexuals and asexuals etc., have married under the old rubric.  But, the specific harm and motivation is clearly largely a matter of sexual orientation. Likewise, gender discrimination brings with it a pre-set heightened scrutiny requirement.  Still, again, the concurrence is sound, in large part because the discrimination on sexual orientation grounds is also based on gender stereotyping.  Sex and sexual orientation are interrelated. 

Next up should be the 6CA and it looks close to some. Baker v. Nelson is a risible ground. Judge Sutton, if honest, shouldn't use that fig leaf.  I kept on saying yesterday (on Twitter etc.) that it seemed curious to me that the USSC ruled before the 6CA did, since that circuit might create a circuit split and should rule pretty soon unlike other circuits. One person told me online, without sourcing, that one opinion is that the USSC was sending a message to the 6CA to decide, the 6CA apparently possibly waiting for the USSC to act on the other appeals first.  Maybe.  If the circuit was reading tea leaves, even if denials aren't supposed to have legal effect, I think they or at least Judge Sutton got one.

I guess the logic of them eventually taking a case when a circuit rules the other way makes sense and in the long run is okay, but this shouldn't be it ... if Sutton is going to rely on the Baker v. Nelson "precedent."  Flimsy business.