Odds and Ends

Some good music; a piece on one of the singers. Valerie Plame liked this criticism of Israel. Israel provides a safe harbor in the Middle East, so I understand the U.S. giving it special treatment, but it is a coiled snake all the same. A letter from Obama in response to a black teen's concern for his community's safety. Favorite dictionary gal does "shit."

Police Chief Tells Pro-Cop Critic To Respect Protesters In Powerful Letter

Sanity. It isn't THAT hard.

"I, ROBOT"

First the blogs came for the trolls, but I did not speak up because I am not a troll. Then they came for for the spammers, but again I did not speak up as I was not a spammer. Now they come for me. Will Net Neutrality be next? Perhaps not with this robotic poetic license: SWISH! Nothing but net ... neutrality To asure Internet equality. [Source.]

Giants 6-10 and Other NFL News

NYJ head coach and general manager out. Oh well. I'm not really sure Geno Smith, with the right coaching and team around him, is not the answer. Can't believe it has been so long under Rex Ryan -- actually forgot about two of those years! Two championship games and 8-8 with a rookie QB mixed with three subpar years. Meanwhile, two QBs out and Seattle not able to lose made Arizona into a Wild Card. As usual, Chargers were inconsistent/choked.

A Gift From Bob

This latest in James Bowen's cat series sort of is akin to a "best of" album -- you had the stuff really in the earlier ones. But, his story of dealing with drug abuse, homelessness and more is a success story and a reminder of how "the other half" (or whatever) lives. And, darn if Bob is cute. No "with" co-author credit either -- he tells a tale in a good "voice."

Rev. Joe: A Christmas Carol

"Forgive me if I am wrong. It has been done in your name, or at least in that of your family," said Scrooge.

"There are some upon this earth of yours," returned the Spirit, "who lay claim to know us, and who do their deeds of passion, pride, ill-will, hatred, envy, bigotry, and selfishness in our name, who are as strange to us and all our kith and kin, as if they had never lived. Remember that, and charge their doings on themselves, not us."

-- A Christmas Carol

The background of the story and author is interesting, Dickens himself having a rich biographical background, including his time as a journalist and observer of the U.S. shortly after Tocqueville's more well known journeys. Some years ago, I read a book on Christmas over the years and it was suggested that the story is a type of establishment middle class view of things, which given his background (son of a government employee, if one of lower middle class means), is not too surprising.

And, Dickens was a big part of the Victorian nostalgia over Christmas, a holiday with mixed expressions over the years. Dickens started a holiday tradition of sorts himself by giving readings of his work, the beginning of many versions of the story. I myself have seen various ones, including animated (e.g., Flintstones), but never read the original until now. The usual versions are basically loyal to the text, though when the spirit of Christmas present shows him various people (usually of the middling sort) celebrating, I think the movies tend not to be as complete, focusing on Fred and the Cratchits.

The original is a bit overly verbose at times though it provides many intricate word pictures of events. Sometimes, it has a nice sense of humor:

Gentlemen of the free-and-easy sort, who plume themselves on being acquainted with a move or two, and being usually equal to the time-of-day, express the wide range of their capacity for adventure by observing that they are good for anything from pitch-and-toss to manslaughter; between which opposite extremes, no doubt, there lies a tolerably wide and comprehensive range of subjects. Without venturing for Scrooge quite as hardily as this, I don't mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

Dickens also includes support of being in trying to keep in good cheer, even when life is hard, and the value of having a sense of humor that I concur in:

Some people laughed to see the alteration in him, but he let them laugh, and little heeded them; for he was wise enough to know that nothing ever happened on this globe, for good, at which some people did not have their fill of laughter in the outset; and knowing that such as these would be blind anyway, he thought it quite as well that they should wrinkle up their eyes in grins, as have the malady in less attractive forms. His own heart laughed: and that was quite enough for him.

His nephew and clerk both were poor but had happy lives, including good cheer and families who loved them. Dickens was in no way complacent about such things, biographies noting he never forgot about his own father being in a poorhouse and what that meant to the family. But, it does provide perspective that applies to many things. You might be wanting but still have a good head on your shoulders and view things in the right fashion.

Happy Holidays -- we are in the midst of Kwanzaa.

We Are Going To Nationals!

The fact I watched Robert Carradine a few nights ago on Lizzie McGuire (who grandpa?) along with this shows my range, really. The first ten minutes is the best in the t&a department and a few members of the cast are game (especially the goofy one), but this is best seen in small installments. A bit too bad -- on a low expectations level, didn't need much more.

NYPD Turn Their Back On Their Clients

Mayor Bill de Blasio was something of a surprise since City Council President Christine Quinn looked to be the next mayor of NYC and had the support of three term mayor Bloomberg (seen as a negative by many -- lesbian or not, she was seen as a more conservative and establishment choice), but he won and won big. He was seen as something of an Obama figure, a reasonable liberal sort, also with sort of mixed background (his wife is black).  He previously with in the City Council, was public advocate and previously worked in the Clinton Administration. 

The mayor looks to be comparable to President Obama in other ways as well.  He will be seen as too moderate by some on the left, especially since we are talking NYC here, while doing enough to make others find him some radical socialist type. I guess such opposition from both sides provides both cover and is a sort of symbol of reasonableness. Meanwhile, things like settling a stop and frisk lawsuit and expanding spending (including in education). Returning Giuliani Era police commissioner William Bratton to that role was one of many ways he tried to balance things out.  He was a safe choice in some ways though his clashes with RG shows that Bratton's service there should come with an asterisk. 

"We will all work hard to identify why is it that so many in this city do not feel good about this department that has done so much to make them safe — what has it been about our activities that have made so many alienated?” Mr. Bratton said, speaking to a packed hall at Police Headquarters in Lower Manhattan.

This is the sort of thing that motivated many who voted for de Blasio over his competition, including in a landslide victory (over 70%, after squeaking over the 40% plurality line in the primary among a large field) in November 2013 (has it been over a year?).  But, this includes the mayor not always supporting the police 100% against the concerns of the citizenry.  When someone dies in an illegal choke-hold during an arrest for selling illegal cigarettes or talking about how he and his wife fears his black son doing something "wrong" when around the police,* sorry if some police officers might not like everything he says. He is the mayor of ALL New Yorkers, including those who protest wrongful killings.

The police turning their back -- predictable really after the head of their union tried to get them to sign letters telling him not to come to their funerals if they were shot on the job -- here was horrible. The family of Eric Garner, who their murderer used to give some sort of meaning to his violence (which -- this only most recently -- included shooting his girlfriend in the stomach and later killing himself), voiced sympathy.  The idea that the mayor has blood on his hands here is fucking asinine. You simply aren't helping, you assholes (this act of protest warrants the plural).  Police lives matter? No shit. All lives matter. Who other than the murderer here and a small number of people with overheated rhetoric here disagrees on the side of those protesting more than one wrongful police shooting?

Again, the FAMILY of Eric Garner and Michael Brown -- to bring him into it too though there are moving from NYC (the murderer here isn't some resident who was mistreated by the NYPD ... his shooting of his girlfriend in the stomach wasn't some sort of protest) -- opposed the shooting.  Let me quote them a bit for emphasis here:

"I'm standing here in sorrow about losing those two police officers. That was definitely not our agenda. We are going in peace," Garner's mother Gwen Carr said at a news conference today. 

Carr stood alongside Rev. Al Sharpton and her son's widow, each reiterating that while they want protesters to make a point, they must do so peacefully. 

"My husband was not a violent man, so we do not want any violence connected to his name," Esaw Garner said today.

I don't think the NYPD as a whole should be blamed for the protest here, but people will do so -- I have seen the at times expletive laden replies on Twitter. This is to be damn expected by this act of crude shameful disrespect.  A killer of a doctor who performed abortions murdered him in a church, which to me should have been seen as profane even for those few who cheer such people on.  This was an event for remembrance and healing, not one to further divide and instigate.  As a life time resident of New York, if it matters, white, and as someone in general who doesn't like making things worse, this saddened and aggravated me. 

It took deaths and murders to really flame emotions and protests but the anger and despair builds over time with much more minor incidents. Police are basic to a safe society and their jobs require them to go into sensitive and at times dangerous locations.  My brother was very upset someone was stopped for going a bit over the speed limit and told to get out of the car and deal with the full brunt of a police stop.  He couldn't believe that was justified.  He, a white guy, was also in the car when police came while his friends were merely in the car inside a suburban complex and at least one of the police drew a gun during the stop. This happened a few years ago and it still scares our mother when she thinks about it.  What if the police felt something was wrong and shot the person with my brother nearby? 

This underlines that both sides here need to react with some levelheadedness, even when some mistake or arguable overreaction arises. This turning their backs does not help.  The mayor supporting non-violent protest after a teenager is killed is not an incitement. The other side can be flagged at times too.  But, yes, public servants should at times be put to a higher test.  This photo is a sign of irrationality. 

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* He recently told an interviewer that he has told Dante, his teenage mixed-race son, not to reach for a cellphone around officers because it might put him in danger as a “a young man of color.” John Marshall had a powerful discussion on the police response to the mayor as well.

Voice Aside, No That's Not Melanie Griffith

3D? Well, it was great in 2D DVD! You can't take this movie too seriously, but when you see a cameo of Kathleen Turner, you know the film can't be all bad. Caught it because of this and good catch -- though the last fifteen minutes of her going on a rampage was a bit much.

Into The Woods

After enjoying Wild and having Chinese, I enjoyed Into the Woods and had Chinese "Kagan-style" (at a restaurant for Christmas dinner -- a family tradition now including the problems with the wait). Saw a version of the fairy tale musical on PBS years back. This version is excellent from the sets, acting/singing (almost every character is like a perfect fit) and (mostly) overall story. Fractured fairy tale t.v. shows make it a bit less novel.

Merry Christmas

Rev. Joe: Jefferson's Bible

And Also: R.I.P. Joseph Sargent, whose best known work might have been Taking of Pelham One Two Three (the original!), but also many more. This includes some good television movies and some duds (Jaws: The Revenge!). Got to take the 6 train in his memory!

It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own.

I read about the so-called "Jefferson Bible" (actually "Jefferson Gospels") in the past and found a version put out by the Smithsonian that is particularly attractive (if not as easy to read regarding the Bible part). This version has some introductory material and gives you a look at how the original looks with Latin/Greek, English/French versions side by side.  Again, this might look great (especially with the old fashioned look) but it is harder to read (the first link provides the text as well as letter to Benjamin Rush, Rush's encouragement to Jefferson to express his religious views perhaps the original impetus of this project). 

Jefferson was a rationalist/deist, who believed in some form of God and perhaps a future existence (recall a reference, but it might have been more of a hope -- a scientific mind like his after all would not know for sure).  He spoke of an admiration, if some disagreement (e.g., "I am a Materialist; he takes the side of Spiritualism"), of Jesus and saw his overall morals (particular as understood to be more universal than Judaism) as very beneficial. Thus, the "Jefferson Bible" tried to get to the heart of his message, which Jefferson deemed to be corrupted by those who wrote it down years later (no fan of Paul).  He compared this to Plato, who he also deemed to have corrupted Socrates' own words with personal sentiments.

The result in in effect Jefferson using a razor blade to cut and paste those portions of the gospels he deems rational, removing miraculous material such as related to his birth, miracles and his alleged resurrection. Later scholars have determined even some of the remainder did not actually happened (e.g., Jesus probably was born in Galilee and there was no grand census at the time of his birth as cited by Luke) and even if they did not, they have some meaning and value as other myths do. But, his was a worthwhile effort of finding the good even if it is thought to be mixed with some bad (in his words, "diamonds in a dunghill"), being an early case of a self-expressed "Christian" many might not think so.

Such mixture tends to be found quite often.

Some films

Barbara Stanwyck and Fred MacMurray made a good team in Remember the Night, which is basically a Christmas movie about a pair of cynical sorts with a soft underbelly. 

Its compact package might have made Christmas in Connecticut, WWI era corn -- though Stanwyck alone requires at least some spark -- somewhat better.  You knew where it was going, which is fine for a genre flick, especially at the holidays, but really -- it DRAGGED.  I had to shut the thing off half-way out of pure boredom.  It had a few charms, other than the female lead.  Looked good -- down to the city walk-up or whatever "Elizabeth Lane" was really living in. The joke arising from wartime daycare had a feminist touch.  And, the black bit players were not treated like moronic comic relief as in the first film. 

Skipping to the present, though if you want another pretty good Christmas movie check out Die Hard, Wild with Reese Witherspoon was very good too.  A few didn't think she really sold the part -- still looked like a movie star and all (unlike the actresses playing her friend and mom) -- but I think she did overall.  She looks appropriately worn down and regular basically.  It's basically part of a few films recently made where she shows more than her "Ellie Woods" from Legally Blonde persona.  I wouldn't be surprised if she is nominated for an Academy Award here. 

The film mixes her long wilderness check with the life she used it to move on from well too. Not a classic or anything, but it is something that is worth even full price (but I found it at $6!), which is a good selling point. And, don't know how much a double was used, but we see a decent bit of her. As noted by one comment, we also see how a single woman alone sees things at times -- each guy she meets in "the wild" is a potential threat. 

To toss it in, Hot Shots! Part Deux has been on a few times in recent days. It is one of those films that work well on television and without any explicit sex or language, works on basic cable too.  It is impressive how much was thrown in here -- the gag refrigerator items in the opening scene alone took some doing. Hasn't been this quality "everything and the kitchen sink" comic ribbing of genre flicks for a while though various people tried,. This shows why -- it's not easy. 

Forced Ultrasound Law Struck Down On 1A Grounds

And Also:  While Rust v. Sullivan is a problematic ruling, a more recent opinion did hold that: "United States may no longer compel US-based AIDS funding recipients to oppose prostitution as a condition of receiving federal funding." Though I wonder how the case discussed below would have come out if there was a forced ultrasound law without the coerced speech so blatantly required (e.g., a printout of the ultrasound has to be provided with a state pamphlet), again it's a promising approach.

This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina.

A conservative 4CA judge wrote the unanimous panel decision, and in the process  clearly causing a circuit split (the opinion explicitly rejected the approach of the 5CA, e.g.), overturned a NC forced ultrasound law on First Amendment grounds. Since the law "requires physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions," to me it also is problematic on substantive due process grounds. Forcing unnecessary medical treatment is a problem there, especially when it requires inserting probes into sensitive areas.

Both are a problem independently of some liberty interest in abortion choice and it is helpful to view things -- especially given anti-abortion sentiments including on the Supreme Court -- in that fashion.  The abortion issue involves a range of matters, including various constitutional provisions, which is basically why the matter intrigues me so much.  The Supreme Court, putting aside the wrongly decided Rust v. Sullivan case, however, has largely avoided such things.  An exception would be the spousal notification provision in Casey, which was struck down partially as a threat to gender equality.  A circuit split might require a chance of pace.

The issue of physician-patient relations has been addressed in various cases though again it was treated as a privacy matter. After having a whole section on the free speech issues involved in his dissent in Poe, e.g., Justice Douglas did not highlight the issue in Griswold.  Later cases challenged certain required scripts as unduly biased and burdensome though the breadth of such rulings were themselves challenged in Casey.  The opinion left open the power of states to include some requirements, even if merely to promote a certain view of life, but the matter was only briefly addressed. A case the directly deals with this issue could be more helpful there though given the membership of the USSC ...

The 4CA discusses the normal informed consent law here, which doesn't go as far the law here. It's a rather curious law really since "rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening." The idea there is partially to provide an out to the patient who doesn't want to listen, but it sets up a somewhat absurd situation for the woman on the examination table. The state admitted the information is "intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation." The state is allowed to promote that viewpoint and Casey suggests even do so by requiring the doctor to provide certain types of literature, but doing so in this fashion is "fraught with stress and anxiety" for the patient.

Unless there is an "abortion exception" to the First Amendment, this is problematic.  But, there is something of one already with Rust v. Sullivan, which allowed a content based alteration of the normal medical process, even when rules of constitutional avoidance at the very least counseled otherwise.  We saw it too when the state is allowed to single out certain moral views with clear religious overtones (see the "conscience" portion of Casey) to deny Medicaid funds even in cases of rape or serious health issues (not that the average pregnancy lacks some).  And, if certain courts can determine a forced ultrasound doesn't violate the 5A (due process), why shouldn't the 1A go to the wayside some too? 

Biased coerced speech requirements that are performed in such an intimate and invasive fashion provide a means to show that - contra Scalia - the Constitution does have something to say about abortion in various ways.  The "Woman’s Right to Know Act" is a somewhat Orwellian label, since it includes not only the "right to  know," but the obligation to do things even when one doesn't want to know. Likewise, as noted in the Cruzan discussion, the usual selective rules apply. Should women be forced to undergo this process to see malformed fetuses to inform them fully to help them determine if they wish to bring their pregnancies to term?  

Anyway, small Christmas gift for choice using alternative route. A few times, vagueness was used to help freedom of choice. This provides another route as well, one that in some cases has a chance.  It also has been used against regulations of "crisis pregnancy centers," so can be a two-pronged sword.  Ditto with regard to clinic protests.  But, this time, it was used to help those inside the clinics too. 

Family Planning (Donald Duck Assists)

NFL Week 16

For three quarters plus quarters, the NYJ looked good, even the second year QB. But, an interception led to the go ahead score and later a 52YD potentially go ahead field goal was no good. Lost 17-16. Last time it was by two. Eh. NYG actually played well against a decent team. Buffalo lost to Oakland. Carolina/Falcons playing for post-season next week.

Long Goodbye: The Deaths of Nancy Cruzan

And Also: The Eagles (against a bad team) and SF just wanted to lose yesterday, didn't they?

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated.

The title book is a very good account that could have just as well been a fictional narrative of a family -- particular a sheet-worker from the Midwest named "Joe" (a nickname) Cruzan  -- dealing with a horrible tragedy.  As noted here, the book does cover the legal matters very well, but ultimately it is a personal story with Joe Cruzan at the center. The book was written by the pro bono lawyer that took their case, thinking it would be a fairly simple probate matter.  It was written over a decade after the case cited above, providing time for contemplation.  He later wrote a general book on end of life issues, which I plan to read soon.

In the early 1980s, a twenty-something woman (his daughter, then married) was in a car accident.  Though a few of her caregivers claimed to see a few cases of recognition and even tears from a Valentine Day's card, all other appearances (including by doctors and the family, who took her home for Christmas at the end of the first year) she was in a permanent vegetate state (PVS).  As a dissent state judge noted later on, even if she was not, some form of recognition of her state would be a form of "living hell."

After a few years, treatment not doing anything and transfer made to a state hospital known for long term care (earlier special treatment paid by insurance she obtained via her job), it was determined that it would be best to end her life. This is what in effect what would happen by taking out her (to quote the USSC) "artificial feeding and hydration equipment."  Note that by this time, the state was paying for her care, but in other cases such fiscal concerns might be an issue. Also, there was the ongoing trauma to the family of dealing with her horrible existence.  It is unclear -- though here it seems enough -- if merely her own rights and dignity should factor into the decision-making here. IOW, if somehow, the family's well-being was part of the decision process, but it still was found to be in her own best interests, the former should not be disqualifying.  This so even though it is granted obviously that such third party concerns can in certain cases result in pressure to do things of a dubious nature.

The problem was that she did not provide any sort of living will, and (not noted by the book) akin to NY, Missouri had stricter rule -- as interpreted by the Missouri Supreme Court (4-3) (or, perhaps I should say, going by the book, on how the USSC interpreted what that court did) -- "clear and convincing" evidence had to be provided.  By this time, her parents were appointed guardians (her husband accepted a petition of divorce on her behalf and apparently basically exited the picture), but special concern for "life" per state policy required more for even this sort of third party to remove such treatment. This so even though the guardian appointed to represent Nancy Cruzan and the probate judge long involved in her case agreed it was in her best interests to do so. The USSC upheld the state supreme court 5-4.

This was one more loss in a series for the family (the book centered on the trio of the parents and her sister; a third sister was mostly off-stage) over the 1980s.  But, this is one of the many cases -- such as a criminal case where relief is later obtained in state court -- where the "loss" was mixed. First, the Cruzan opinion did grant, at least for sake of argument, a constitutional liberty interest to refuse treatment. This included the artificial nutrition provided here, something the state challenged. Five justices recognized this as a fundamental right (O'Connor plus the four dissenters).  The opinion was a narrow one -- a clear and convincing standard was an acceptable rule in a case like this, even though the family were the decision-makers.  If Missouri, e.g., refused to even allow this if she stated her desire for it via a living will, that would be a separate case.

The dissents by Brennan and Stevens (Scalia concurred to say that even the majority went too far) were eloquent and Stevens in particular is good reading for those who like that sort of thing.  Stevens in effect said that the state can't have a bare interest in defining life that allows them to override those who have different understandings. The guardian appointed to represent the patient's interests and fact-finding by the judge here provide safeguards. Use of Nancy Cruzan in effect as a means here is "unconscionable."*  And, note there is some argument there -- for instance, many (by no means all) of her caregivers were strongly against removing her feeding tube. The mind-set is understandable, especially for those whose job is to care for people like herself.  But, would they feel much different if some signed living will popped up? I think not. 

The range of horribles about killing the mentally retarded and the like had a certain ironic tinge.  One of the people who testified at the trial was wife of Paul Brophy, whose treatment was also removed. She supported the Cruzans.  She was a nurse for the mentally retarded.  Nancy Cruzan herself worked as an aide to care for the mentally retarded. In fact, the "new evidence" -- a key reason why the USSC opinion was not a total loss -- that ultimately was recognized as "clear and convincing" came by her two co-workers there.  [Another witness was added too, but the lawyer thinks he was much less important.] They reported her saying that she did not want to live like that.  Another remark made regarding her grandmother to her friend was not deemed enough, nor the family's general ability to understand her wishes. But, Nancy Cruzan's comments, in particular about a young girl that she bluntly called a "vegetable," here did the trick.

So, the state bowing out of the case after the Supreme Court ruling, the Cruzan family could finally after seven or so years have closure. But, showing in a different context how an execution might not do that (I do not think this was an "execution" -- it's a "different context"), the father did not truly move on.  A few years later, he committed suicide.  The mother died of cancer a few years later.  And, such stories continue, including when some wish a more active form of euthanasia, like the young woman who recently ended her life in Oregon.

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* [ETA] The questionable biased assumptions here are also found in the abortion context. Special burdensome measures, such as counseling, is repeatedly only required when abortion is chosen. A person might arguably in various cases be making a questionable decision to have a child, but that is not deemed to warrant special state involvement.  A "state interest in life" or some such is cited there, but that's debatable. Who is to say that  such a state interest at least would warrant counseling in all cases?

Re-reading Brennan's dissent, the Cruzan case has a similar issue. If anything, it might be the case that most people, even without living wills, would want their guardians to do what the parents did here. But, non-action that would clash with this desire did not require special safeguards, a special hearing to reject the interests of the parents. Only removing the treatment did.  More so perhaps than in the abortion context (a child is surely not the "status quo" any more than an abortion), I can understand the different standard up to a point. But, the second guessing here is problematic all the same.  He has a point.

End of Eras

The Colbert Report ended with a gigantic sing-a-long with guests from the likes of Jeff Daniels to Henry Kissinger to the Cookie Monster. Nice and self-indulgent, but the add-on with Santa Claus and Alex Trebek was silly and not really funny. Craig Ferguson ended the next day with an opening that had a bunch of people and a takeoff of the dream ending of Newhart. The latter is a bit derivative (homage?), but he did his lesser job well.

Fuman v. Georgia and the Death Penalty

Aikens v. California is alphabetically a quick get at Oyez.com and led me to look over Furman v. Georgia again as well. Anthony Amsterdam had multiple arguments so used Aikens to largely set-up his general arguments. In the end, the California Supreme Court declared the death penalty unconstitutional on state grounds (unclear why the USSC heard the case almost simultaneously -- the opponents argued in front of the state court less than two months before).  A Wild Justice (The Brethren being perhaps the first one) provides an examination of the history there. 

The USSC held the death penalty as applied in the cases granted unconstitutional 5-4, but only two believed it completely so.  This set up Gregg v. Georgia a few years later in which the death penalty was upheld 7-2 (Stevens replacing Douglas), but mandatory death penalty still in effect not (Powell/White switching places). Multiple justices on both sides thought the death penalty would be done with the first time, but Justice White did not -- he rested on it being applied too little to be rational. Something like thirty-five states raced to try to figure out a way to execute and the Supreme Court tried instead to "tinker with death." Still, aside from a few states, White's original concerns weren't really answered.

Justice Stewart also rested on the death penalty not being applied in a rational way, deciding later the new laws provided better safeguards. He also probably simply accepted that the country still strongly expressed a desire to have a death penalty.  Justice Marshall, though ultimately noting it wouldn't enough anyway given the death penalty was still disproportionate, appealed to "the opinion of an informed citizenry," the sort of "reasonable observer" that pops up in First Amendment cases, particularly during Christmas display season.  He has at least something of a point there, partially since we have a strong ability to assure ourselves certain things are true.  Burger and Powell do provide pushback.

The dissents are pretty strong and well written. Burger/Powell provide a broad based reply, Blackmun provides a more emotional one given he personally was strongly against it and Rehnquist rested on judicial restraint and trusting the people (this not being some affirmative action program or something). Not that majority opinions aren't strong either (White and Stewart had more of an essay approach, the others more in depth -- the whole affair would amount to around two hundred pages). The whole affair is rather intriguing reading.  The one thing I would call out the dissent on in particular is any suggestion the 8A did not deal with disproportionate punishments.  Justice Powell himself held otherwise a few years later.  

I believe the death penalty is both unconstitutional and bad policy -- digs of some, people like myself do not always think that is the same thing. Bad policy can be inspired by things that either violate the Constitution or at least its general principles. On that front, I mean that the document influences various things that might be a matter of policy -- let's say the nuances of criminal justice -- without compelling some court to strike down the "wrong" one. When Furman et. al. was decided in 1972, for instance, I'm unsure it was correct for the USSC to strike down the death penalty nation-wide. If fully honest, I think Blackmun was right at the time. There were corrections and tinkering around the edges (e.g., holding it unconstitutional as applied to rape or perhaps mandatory sentences*).  [Should add, that I don't quite agree with him in Gregg v. Georgia, where he dissented from a more restrictive approach, but he soon accepted that.]

On principle, I would have shared the views of Brennan and Marshall.  But, like same sex marriage in the 1980s, it is different when trying to use the USSC to declare something unconstitutional. Constitutional law there develops over time and requires some development of society in general. It also is appropriate to work up. The basics of speech protection came before the hard cases.  There was a lot of things to deal with in the death penalty context before a full frontal attack. And, twenty years later, there was enough water under the bridge for Blackmun's saying "enough" to have gain serious traction. Stevens' similar move in Baze v. Rees was a concurrence to an opinion upholding the death sentence.

I'm not a member of the Supreme Court, however, and never shall be. From my vantage point, and at this point in history, I think the death penalty is unconstitutional writ large for the various reasons cited in the Furman majority opinions et. al.  Meanwhile, it is proper for the Supreme Court to attack the punishment from various angles, including openness of the lethal injection process and things like the mental stability of those executed. Finally, this effort should not interfere with the many many more who are being mistreated in some fashion in our quite flawed criminal justice system.  This includes Obama's -- for whatever reason -- paltry use of the pardon power. 

See also, Mark Osler's Jesus on Death Row.

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* Justice Douglas in his separate opinion basically rested on equality, overall arguing that "cruel and unusual" punishments in particular as applied here was a ban on arbitrary application.  He left open the question of mandatory punishments, which basically weren't done with few exceptions, noting however that they too might be shown to be applied unevenly. Powell argued the evidence for this was not present and in effect the nature of things will result in some people more likely to commit crimes. 

Brennan/Marshall argued that the death penalty was not needed for deterrent or other purposes. A passing note as to killing in prison etc. argued that even there that the death penalty was not necessary, but the matter was not dealt with in depth. Simply put, if the penalty is so problematic, we will have to deal with the extreme cases. And, anyway, it will not only be applied to them. 

"Justice Department Will Now Support Transgender Discrimination Claims In Litigation"

Now, Holder wrote, “the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”

As noted, an outlier prisoner case should not let us forget the many other interests of transsexuals. GLBTQ indeed.

"Religious" as a line drawing device

Andrew Koppelman provides a response to a criticism of use of "religion" as an accommodations classification (see, e.g., her last comment here -- one that is rather weak and uses "impose" to cover way too much ground to be helpful*). The discussion raises some interesting points, such as this:

Religion is an adequate proxy for multiple goods, some of which are not ones that can directly be aimed at. “Religion” denotes salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and much else besides. Each of those goods is, at least, more likely to be salient in religious than in nonreligious contexts. The fact that there is so much contestation among religions as to which of these goods is most salient is itself a reason for the state to remain vague about this question. Because “religion”—or, at least, that subset of it that is likely to come before American courts—captures multiple goods, any substitute that aims at any one of them will be underinclusive.

The Supreme Court is loathe to define "religion" much though a few times there is a nod to there being some limits.  Sometimes, I have seen people be upset that "religion" get special attention, but so it does -- see the First Amendment. Other things can get special protection too, putting aside related things like "conscience" that is particularly "religious-like" though can be defended in other ways as well.  Still, "religion" is special, both for (free exercise) and against (establishment) in our system.  The extended quote above helps to show the word has a range of connotations, which range beyond "fantasy sky god" or the like. 

It's tricky and debating lines is fine.  Helps, however, if we don't use the level of naivety that comes off at the end of his commentary:

The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. This will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.

If filling out forms or corporations allowing employees to choose their plans akin to how they choose to use their salary in general will be "a heavy burden" (it really isn't; his assumption there is far from clear), a consistent application of this rule will not merely result in "administrative headaches." This crap from a liberal who supports the mandate is tiresome.  For profit corporations with employees of various faiths are not in the same position as non-profits often likely to be smaller and/or more fellow travelers. The two situations are different. Stop promoting ignorance.  Over and over again the other side does. Et tu, Brutus? 

So what could have been a disaster for women’s equality suddenly became a victory. Justice Alito noted in his majority opinion that the burden of the required accommodation on the women involved “would be precisely zero.” They will get the same free contraception that the challenged rule would have provided. Religious objections such as Hobby Lobby’s will be accommodated if and only if that continues to be the case.

The fact Alito says something doesn't make it true.  Even without taking into consideration some other Administration might do things differently, at best resulting in drawn out litigation or the like to put a stop to unwarranted burdens, the accommodation makes things harder. Personal example. I didn't know for some time that the health insurance provider I chose (nearby office / constantly saw ads for it) was Catholic based and does not cover various things. It has no direct concern for me but doubt I'm alone not looking at that too closely.  If I suddenly needed coverage, there would be lag time as I obtained another option -- if I had the wherewithal to do that.  The mandate in place in part is an incentive. 

Under those circumstances, religious accommodation, even of their peculiar beliefs, does not seem too much to ask.

So, even where there is a for profit corporation given special privileges in part in return of equal access and being separate from the personal individuals involved, there is no "substantial burden" (various people spelled out that test would not be met here) and because we are supposed to trust Alito (or rest on Kennedy, who is supportive on birth control, but who know about something else ... of course, nearly every case will rely on at most appellate judges of a mixed variety) that "precisely zero" burden is at issue here.  Koppelman wouldn't believe him there in various cases if police conduct was at stake, I gather.  Yes, the opinion could have been worse.  Making it out as a big win the other way is silly. I have covered this ground a lot here. But, ignorance is wickedly persistent.

A more minor disagreement. The article earlier on discussed a case where the Supreme Court decided 6-3 that it did not violate "free exercise" to open a public road in a way that interfered with the exercise of the religion of certain Native Americans.  The article notes:

Nonetheless, the Court, evidently persuaded that exemptions had to be based on conscience, held that there was no constitutionally cognizable burden, because the logging road had “no tendency to coerce individuals into acting contrary to their religious beliefs.” This result was quickly reversed by Congress, which evidently was not in the grip of this particular theory.

I think this discussion is somewhat misleading since the exemption involved the internal control of government property. In that context, every hindering of religious exercise (which surely doesn't just include conscience and/or belief in God but also things like rituals) is not the test when determining if the "prohibiting" of "free exercise" was violated. Meanwhile, O'Connor (who wrote the opinion) relied on compelling state interest, not merely that "coercion" was involved, when concurring in the Smith (peyote) case.  She realized more was involved.

Anyway, this is a tricky area, with a high volume of "wait a minute" fodder.

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* How much does many a religion "impose" on others exactly? What does that word mean in this context? The reply answered a question regarding an employer imposing on an employee by denying certain types of insurance coverage. My favored line drawing here in part arises out of this being in a "public" context where restrictions are more appropriate.  But, if all religions "impose," what are we talking about?  Impose on believers who agree to join? On unwanted observers to even things like wearing religious garb? Pretty unhelpful word choice.

The Founding Foodies: How Washington, Jefferson, and Franklin Revolutionized American Cuisine

Got this as part of a food related gift box for someone and found it somewhat wanting. First, John Smith is more appropriately in the subtitle -- Franklin is barely covered. Jefferson is treated a bit too politely (big friend of slaves, was he?) too. OTOH, it was a decent book on a lower expectations level, giving some sense of early American dining. This a tad harsh. But, the book surely didn't show how even Washington or Jefferson "revolutionized" much here.

Border News

Over the dissents of three Justices, the Supreme Court today rejected Arizona’s request to allow it to deny driver’s licenses to young undocumented immigrants who have been permitted by Obama administration policy to remain in the United States. No prize if you guess the three dissenters. Meanwhile, certain Republicans whining about the sane Cuban policy move. Sen. Marco "I'm a little boy" Rubio especially sounded lame.

It Isn't All Bad ...

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

With this, moves to reestablish relations with Cuba and Cuomo to ban hydraulic fracturing, I take we only need five more Hanukkah miracles. Can Mets getting a new SS be one?

"The Eclectic Reader"

My result in this test. Seems fitting.

"Conflicted Emotions About Kosilek Case"

Petitioner is a transsexual who is currently serving a 20-year sentence in an all male federal prison for credit card fraud. Although a biological male, petitioner has undergone treatment for silicone breast implants and unsuccessful surgery to have his testicles removed. Despite his overtly feminine characteristics, and his previous segregation at a different federal prison because of safety concerns, see [lower court opinion], prison officials at the United States Penitentiary in Terre Haute, Indiana, housed him in the general population of that maximum security prison. Less than two weeks later, petitioner was brutally beaten and raped by another inmate in petitioner's cell.

This was from a passionate concurring opinion by Justice Blackmun in a prison rights case (with a mixed result as this article marking its twenty years anniversary notes). It shows that sometimes transsexual rights arise in the prison context though someone there for credit card fraud is more sympathetic than a murderer.  As the article notes, ironically Justice Souter in the more restrictive majority opinion avoided pronouns while Blackmun used masculine ones ("him").  The use of the feminine by the defense was still notable though these days insisting to use "him" there would be mostly left to conservative voices.

Michelle Kosilek's long and convoluted journey continued today when the First Circuit* decided en banc (showing its size, the ruling was 3-2) to overturn a ruling that allowed her to have sex reassignment surgery (SRS).  The Reagan appointed district judge had determined that given the facts of her case and the decisions of the institution's own doctors, that was compelled by the 8A. The details are pretty blatant -- including a suicide attempt -- and your garden variety transsexual might not have such a compelling argument. One dissent noted this -- we trust district judges with fact-finding and the decision was reasonable. Such would be my feeling. The other dissent was more passionate, ending with a comparison to Korematsu and Plessy. 

Taking it as quite possible that the nature of the condition here motivated the majority opinion, thus it is a black mark for transsexuals generally, I think comparing it the nation-wide segregation or the interment of a hundred thousand or so people is a bit much all the same.  The case is pure tabloid fodder -- paying thousands of dollars for a sex change for a convicted murderer. But, there is a minimum standard of care required when you imprison people.  The doctors themselves deemed this required. It wasn't just a prisoner saying "he" wanted to look pretty or something. Tabloid reaction alone shouldn't be grounds to overturn expert findings.  Seems arbitrary and discriminatory.

I have read a bit about transsexualism and won't claim to be some sort of expert on the matter. The flexibility of gender is pretty clear to me. The next step where you actually have a sex change operation is the big one. But, secondary sexual characteristics are not the only reason, I'd think, that I am a male.  It does ultimately seem to arise in the brain.  The matter is somewhat fascinating to me -- the complexity of the human animal and all.  Anyway, the medical experts here should be trusted.  Sorry, Sen. Warren. IOW, the details have to be taken as they come. Chelsea Manning in some fashion might have  different issues.  Case by case. 

Hard cases are said to make bad law. We should not let cases like this color too much the fight for transsexual rights generally.  Sex change operations are the most extreme issues here in an area with a range of concerns, including the right to voluntarily transition, live as a gender that does not match your apparent sex and so forth. Same sex marriage is one area that arises here -- for a subset, transsexuals are involved, including those states that legally deem chromosomes to be the test.  In some states where SSM is not recognized, this has the somewhat crazy result of a de facto SSM being allowed, since one party is legally not the sex most people think. Life does have its absurdities.

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* The 1CA basically covers New England and its small size probably explains why Puerto Rico was tossed its way, even though that area to me seems more appropriately combined with the Second Circuit (NY etc.).  It at times appears to be somewhat conservative, so it is not totally apparent to me if it would in fact overturn the anti-SSM Puerto Rico district ruling.

Scalia/Kagan Watch (Ginsburg Jealous?)

And Also: In the world of football, local teams beat subpar opponents (the NYG showed already this is not a gimme -- see Jaguars game ... this time, they still had to win from behind, but sealed it in the Second Half)  though it took something for the Jets to win. An unsportsmanlike extended the drive that clinched it though the Titans were given one second more at the end of the game and nearly hook and lateraled it home.

Given this hurt the Jets in the "picks" race, not only some Titan fans were upset about this result.  Only works against Buffalo, perhaps, who today upset the Packers.  Ex-Jets QB lost last night to hurt the Eagles playoff chances. If New Orleans loses to the Bears tonight, the Panthers (using a back-up now) will actually lead the NFC South.  On their second (third?) back-up, especially given how Seattle is playing, Arizona is hanging on to first place with their fingernails.  Did clinch a playoff spot yesterday. 

Though Scalia generally sides with conservatives on the court and Kagan generally sides with liberals, the two have built a friendship around hunting. Kagan has said that during her confirmation process, she received many questions about hunting and asked Scalia to teach her. Kagan said during a talk at Princeton University in November that she and Scalia would come to Mississippi in December, in part, to hunt ducks.

Yes.  On the live blog over at SCOTUSBlog, we were informed that they were present for today's session/opinion announcements, but it was noted that hunting wasn't the reason.  This report suggests that even if they aren't hunting today specifically, it still is part of their trip.  I'm more a favor of Scalia and Ginsburg's love of opera than a means for Kagan to chuckle at public events over Scalia/Kagan's love of shooting defenseless animals. Not a fan of arming the ducks, mind you, though it might be more sporting. Or, perhaps, only really intelligent ones -- trying to hunt Bugs Bunny shows in that respect that there is at least a real sporting chance. 

Scalia wrote the dissent (which Kagan et. al. joined) in the jurisdictional dispute but did not deem it so important to be one of those rare cases where you announce/read it from the bench.  Kagan/Ginsburg, to add a bit, wrote a brief concurrence to the 4A ruling, highlighting in part that a reasonable mistake regarding an opaque traffic law doesn't mean police have no limits here. Meanwhile, a per curiam decree regarding a boundary dispute was released as well. 

SCOTUS Watch

Lower court case striking down limits on "medical abortions" left standing. Kagan splits with the liberals in a jurisdiction dispute, but it was 8-1 to uphold a stop based on a ("reasonable") mistake on the traffic laws at stake. Sotomayor's dissent, including concerns about "human consequences" of community relations with police given stress of stops, was appreciated. But, as a national rule, the majority is both unsurprising/probably acceptable.

Judge Souter on Begging

I am not aware of Justice Stevens doing so, but O'Connor and Souter continues judicial service on appellate tribunals. Doing a search, a recent NYT article flags the latter in a case involving "aggressive" begging. Troubling breadth to the law upheld, including merely begging at night and/or in fairly broad areas (a twenty feet from a bus stop, e.g., is pretty far). Aspects of the law might be okay, but there is a difference from let's say limits of begging inside a subway car and half a block down from a bus stop. Doubtful the USSC will take it.

Rabbi Joe: Hanukkah

In response to a Slate article, I spoke about this holiday in the past, which is coming up in a few days.  Looking at Wikipedia and elsewhere (including my handy Oxford Companion to the Bible) provides some background, including the usual realization that the holiday as celebrated today includes various things that were added on over the years and/or adapted from other things.  II Maccabees (there are four books here, related in subject, but not a true series)  itself references an earlier "dedication" (what the holiday means) that they were apparently patterning it on.

It is sometimes good fun for some to do things like note that the original Pilgrims were not great people in some ways, particularly somewhat after the events we usually celebrate (one person, e.g., referred to their involvement in the Pequot War, which happened fifteen years later than the landing of the Mayflower; things significantly had changed by this point).  We can play this game with the Maccabees, who might have been fighting for self-rule, but it was in large part just another of many power struggles before Rome stepped in to take over the field. 

Basically, after Alexander the Great, the area in question was fought over by Syrian and Egyptian forces (III Maccabees actually takes place earlier than the first two and involves an Egyptian leader). This led to various factions trying to get on the good side of such and such leader, which factors into the preview of the events here.  Also, money was involved -- targeting a priest (shades of Henry VIII) looks to be more as a ready source of funds than some disfavoring for religion specifically. 

Finally, "Hellenizing" (taking on Greek culture) was done by various factions.  It isn't clear that anyone was particularly trying to deprive the Jews of practicing their religion until events led a Syrian (Seleucid) king to do so more as a way to show who was boss (from Persian times, the end of the Hebrew Bible, a sort of local option approach was the norm). As I noted in my earlier discussion, "moderation in all things" might have been the best policy there.  This added fuel to the "Maccabean Revolt" (the name meaning "hammer"). The original Hanukkah was an eight day celebration to honor the rededication of the Temple; the miracle of a little bit of oil lasting eight days a myth added later. 

Whatever the origins, the holiday can still be seen as a remembrance of the importance of religious freedom. Some might use it to help the cause of Zionism or Jewish nationalism.  Many just use it -- like many cultures -- as a type of late year celebration event.  The menorah, like the creche, loses a lot of its spiritual and religious significance here and is just a symbol for the holiday.  I'm with the justices here that this doesn't mean it is so secular that official displays are no longer controversial. But, that's perhaps an argument for another day.*  Doing so using your own personal cultural and religious (or whatever) flavor is fine enough. 

I put it out there that Madeira wine could be a Christmas gift, noting it has historical significance given CJ John Marshall and others drank the stuff. One person didn't find this an overly sensible reason to pick a wine. Find that a bit lacking fun and such myself, but it's a way of looking at things. Some might not be overly concerned with deep looks at the holiday season either.  But, how I look at things, it can be of some interest and insight.

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* Christmas display cases are not in various ways deeply important, but as I said in the past, it matters to some degree:

Display cases remind us about such issues [e.g., things like "under God" provide mild but still sectarian benefits] as well as the value of not getting the government too involved with religious symbols and messages. Individual government agents might express their own views, including President Obama citing his views as to what good religious belief promotes. Religion is part of whom we are and influences political positions. But, when the government as a whole is involved, strict neutrality should be our guide. Christmas clearly has secular components, its very timing arising from pagan practices, but its religious aspects are basically none of the government's business (again, collectively speaking).

But, then complications arise, like perhaps Jewish groups want a representation of their holiday (e.g., a menorah), while others rather not. This leads me -- again without forgetting there are bigger problems out there -- to think big displays of creches, menorahs and so forth should be left to private parties.  Trying to remove every speck of religious significance from any governmental display is something of a fool's errand, but there are lines, and something like that seems to cross them.

Update:  Interesting recent article on this matter from a Jewish perspective. The debate apparently continues.

"political differences"

Update: For some reason, Justice Scalia thought it a good idea again to opine about how torture can be constitutional. I agree with Stevens/Ginsburg/Kennedy in Chavez v. Martinez, but even the controlling majority understood coerced testimony not used for a criminal case or punishment (though de facto, it probably was here too) was actionable at some point. 

Someone flagged Eric Posner's discussion regarding (allegedly) "the legal and normative problems with prosecution" as well as a potential additional barrier arising from the Detainee Treatment Act of 2005.  He can be used as a sort of example for a trend of thought, which is the usual value of such references on blogs, Twitter and the like. Glenn Greenwald, who is a tool but has some good points, once noted this and it helps answer the "it's just one person" response.  We always are making selections here.

[For those who rather read sentiments from those who seem likely to actually support restraint of executive discretion in this context, this blog might be a good place to start.]

Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value.  He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against.  But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing. Also, as Lederman and Barron wrote etc., there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.  

Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics."  But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture.  This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.

As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, especially given what was known by those involved.  At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess perhaps only us peons don't have an "ignorance of the law" excuse. Finally, regarding the "they are just hypocrites" philosophy, various nations actually seriously have upheld such norms, including Great Britain and Canada in recent years.  And, we should try to lead, not follow. Maher Arar is a sad example.

Ultimately, things are often wrong for various reasons -- pragmatic, principle and proportionality (extreme arguments) might be one way to think of it.  The report is powerful in that it can be used in more than one fashion.  If something doesn't work or leads to negative blowback, it often is easier to respect principle.  I think ultimately our own souls here are very important, even if we don't care about the bodies and lives of others. 

Kory Stamper Alert

The picture isn't quite as fun as some of the looks in some of her videos or pictures, but fun (just her voice is very playful) and informative interview. More about her, plus a recent "go to" about the word "serious." She tweets and sometimes blogs.

"Why the Founding Fathers thought banning Torture Foundational to the US Constitution"

Juan Cole. Fifth and Eighth Amendments particularly.

This Film Isn't That "Blue" Either

Yesterday's quote is somewhat related to later watching this 1950s French film (aka "The Lovers") that was the subject of the case where Justice Stewart famously gave his test for hard core pornography ("I know it when I see it").  Perhaps getting digs about that even then, Stewart shortly after provided a bit more detail on what that sort of thing entails (mostly skipped over by those who use his line as evidence of some "test" that is totally subjective).  But, mostly anyone watching this film would agree with him.

The only thing that is hard to believe is that three justices actually held that a state could determine showing this film warrants anyone being "fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid."  In 1964.  Justice Harlan basically rested on federalism (the case cited yesterday was a federal prosecution, where he was stricter) -- let the states decide. Warren/Clark didn't actually comment on the actual film really -- the dissent basically suggested they didn't want the responsibility to deal with this stuff, it basically speaking in generalities better applied to some of the other films handled. 

The film basically has no nudity.  I have to say "basically" since a guy does take off his shirt and if you look real close, you might get a glance of "side boob" in one scene.  Though adultery is in the air (but the film does a switch on with whom late), it only is carried out in the last reel.  Even there, half of the extended scene (which again, to me comes out of left field -- the guy does not seem like a love interest at all until then, except perhaps that he made her laugh -- ah, foreshadowing in hindsight) involves them walking around in a field and such.  There eventually is a love scene, followed by a quick bit in the bath, but that scene in From Here to Eternity with Burt Lancaster and Deborah Kerr rolling on the beach is more sexy.  Plus, this film drips with class and art ... if this film doesn't have enough "social value" to count, don't know what would.  The idea this film is "prurient" as compared to lots of Hollywood films in the '30s and '40s is ridiculous. 

On the merits, the film was pretty good -- the lead actress dripped of class, it had style and kept your interest.  I think the last reel was somewhat silly really, but one has to respect the time and place.  A couple years later, after allowing Fanny Hill (earlier, Tropic of Cancer and another French film, this one sounds a bit more risque also met the test ... along with the "beefcake" magazines of a homosexual nature in the case cited yesterday, though three justices rested on a procedural point*), the Court upheld convictions of three written works more risque than this film. It was a shoddy effort by Justice Brennan that basically invented a "pandering" charge -- apparently, "borderline" material can be prosecuted for that reason.

On the same day, the Supreme Court also upheld prosecutions (providing a helpful reading list) of some fetish magazines (Douglas talked about them in the last case; Black didn't watch the stuff ... Douglas as seen by his off Court activities was more into the sex thing) described as "relatively normal heterosexual relations, but more depict such deviations as sado-masochism, fetishism, and homosexuality."  Justice Stewart, in a brief opinion this time, just said they weren't hard core enough to count.  This underlines Brennan was somewhat more of a prude than one might have though.  It took him a while to give up on this obscenity thing -- he didn't even go along with Justice Marshall at first in Stanley v. Georgia, which upheld the right to at least possess it in the home.**

The die was cast at this point though -- and "The Lovers" was an important point in the process along with the "utterly without redeeming value" tossed in when they dealt with Fanny Hill (didn't read ... did check out some of Moll Flanders -- she was okay with most everything, except for incest with a brother she never knew she had).  Some of the stuff that they handled (earlier it was The Miracle) was about as "PG" at best rated, others more pornographic.  You can imagine some line between this stuff, but the fact this sort of film (and others not much worse) was felt to be on the wrong side is telling.  Plus, the fact some late nite soft porn and the like is in some fashion "garbage" is not really a good reason to make an exception to the First Amendment anyhow.

Anyway, it was interesting to see the film and the oral argument regarding it (and other cases) can be found here. 

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* Later, it was noted that these obscenity rulings were important to help upheld sexual freedom generally, the first move allowing even talking about it. The oral argument in that case, e.g., is striking in its open expression of homosexuality. After upholding two obscenity convictions, but using the Roth case to put people on notice that much more sexual material will be acceptable, the Supreme Court also -- without comment -- voted to protect a homosexual magazine. This might be counted as the first homosexuals rights case won at that level.

**  Stanley, unlike previous majority opinions, also actually seriously addressed the rationales for obscenity prosecutions, finding them lacking except perhaps dealing with minors (but see the later violent video game case) and unwilling viewers.  Pandering might fit in there somehow, to be generous.  As with the privacy stuff, it's useful when the Court seriously takes the time to discuss this stuff.  And, this includes Douglas talking about the material. Black and Stewart speaking in generalities about how speech is protected is fine up to a point. It shouldn't matter. But, sometimes, it helps to show that something falls even if you go half-way with the other side:

Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some. Masochism is a desire to be punished or subdued. In the broad frame of reference the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated. Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat offbeat, nonconformist, and odd.

But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin. others like "rock and roll." Some are "normal," some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority.

But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of "social value," does it mean a "value" to the majority? Why is not a minority "value" cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the "written word" forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?

If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?

[space breaks inserted] True enough -- why isn't "crap" of some value for various reasons?  If talk radio has its value, somewhat "low" art does as well.  The importance "pulps" had to homosexuals and others (even today, romance novels provide a certain release, soap operas repeatedly were ahead of the curve on covering many issues)  has been well discussed. Something doesn't have to have a "deep" meaning to have some value to someone and the little things often are quite important. This pops up in various contexts, small wrongs often leading to major hurts.

Manual Enterprises, Inc. v. Day

MR. JUSTICE CLARK, dissenting:

While those in the majority like ancient Gaul are split into three parts, the ultimate holding of the Court today, despite the clear congressional mandate found in § 1461, requires the United States Post Office to be the world's largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained.

Definitely up there in great openings. One opinion notes "the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry." This is somewhat unsurprising given the nature of the photographs in them, if not too bad given the time period.

Wolf to Doe

Update: I added the section on torture and a link in memory of the recent death of the woman involved in Mapp v. Ohio.  Al Smith also has died, his alleged private right to practice religion as he saw fit relevant to my overall discussion as well.  The difficulties on talking about abortion was the subject of a recent blog post as well with notable comments.

Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society. as of any one time, even though, as a as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.

This is example of Justice Frankfurter's discussion of the meaning of "due process of law" and query if it is any less flowery or somewhat over the top than the language at times sneered out by Douglas or these days Kennedy. Justice Black didn't like such language -- he thought it was a sort of "whatever turns my stomach" test as compared to principled judging. But, Black was dissenting from standard language, not that it is the only way to do things. His First Amendment absolutism, which didn't stop him from dissenting in the armband and "fuck the draft" cases, shows broadly applying specific provisions can do the trick. It also shows that lines -- inexact and debatable in many cases -- will be drawn all the same, since few rights are truly absolute as all that.


The case itself -- Wolf v. Colorado (1948) -- is noted for at least two reasons given the last post.  First, it deals with an illegal abortion.  Second, it is one of many times where a right of privacy was cited in the years before Griswold v. Connecticut. 

The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society.

The problem for the physician here is that the ruling did not apply the so-called exclusionary rule to the states -- another case that also spoke of a right to privacy did over a decade later -- so the seized evidence was still allowed to be used against him. It was left to Justice Tom Clark, a conservative in various ways (including communism cases, obscenity and various criminal justice rulings)  to later write Mapp v. Ohio (RIP), noting that excluding evidence is the only realistic way to defend against wrongly seized evidence.  Justice Stewart concurred on other grounds, but later after he retired wrote a defense of the rule in question.

Wolf cited a case that is quite topical today with the release of the Senate report on torture. Brown v. Mississippi was a 1930s case, an era before the the Bill of Rights as a whole were applied to the states. Still, it held that "that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." The action found in violation here was "compulsion by torture." The concern holds today as well, since torture is illegitimate even when not done to obtain evidence eventually used against you in trial. A complete respect for basic constitutional rights here protects the suspect held in custody as well as the woman whose bodily autonomy is possibly invaded in another fashion.

Anyway, as noted, before deciding Roe v. Wade and Doe v. Bolton, the USSC dealt with U.S. v. Vuitch, which upheld the law, but gave a broad definition of "health."  In the long run, this was seen as basically a strategic victory on the abortion legalization side, except for some who was pushing for a legislative repeal strategy (the ruling made more restrictive laws with "health" exceptions -- which could rest things on the whim of the physician or hospital in question -- seem less extreme).  I don't know the numbers exactly, but four states before Roe passed some broad repeal, while some others had various exceptions. It took a governor's veto to save the NY repeal and Connecticut reaffirmed its ban after the first go around in the Abele v. Markle case cited, reaffirming unborn life was key to that state.

The Vuitch ruling particularly was appreciated by many physicians and the like since it furthered the moderate "reform" approach that allowed "health" exceptions.  The government even during oral argument showed a willingness to fit a rape or severely deformed fetus (an issue with thalidomide scares and the like) if "mental" health was affected. Again, early abortion was safer than childbirth. It might be seen as too much of a stretch to include all the personal reasons behind abortion as "health," though honestly I wonder, but it still could cover a lot of ground.* 

Events overwhelming this, of course, with Roe v. Wade answering a total ban (with merely a life of the mother exception, if one less restrictively applied than some countries') with a broad ruling for abortion choice.  Personally, I think the opinion didn't have to go as far as it did. Multiple lower court rules struck down broad bans, made a general statement that abortions had to be allowed early in the pregnancy, but did not set up the "trimester scheme" involved there. Still, the basics would still be necessary, so again, the criticism to me only goes so far.  A limited ruling, letting later cases deal with specifics would have been ideal though. 

Doe v. Bolton did require more since Georgia's law had various exceptions.  The "abortion is special" restrictions problem came into play here. Special accreditation rules, committee approval and two doctor involvement were found to illegitimately single out abortion and wrongly interfere with the private choice with her physician whether or not to have one. Abortion need not be "on demand." A "physician or any other employee" can even for "moral or religious" reasons not take part.** It should however not be treated unlike other medical procedures without proper cause. The opinion also is an early flag that such restrictions can burden abortion choice in ways the harm health.  The law also was found to violate the Privileges and Immunities Clause since it limited abortions to state residents.

The proper balance here continues to be the subject of constant litigation, the Casey ruling pushing things the government's way. 

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* Doe v. Bolton reaffirmed this by interpreting a provision in the Georgia law regarding allowance of "necessary" abortions broadly:

the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health.

I find this telling myself and later divisions of abortions into "therapeutic" and "non-therapeutic" for purposes of denying health coverage (e.g., Medicaid) to me is unreasonable.  Each abortion is "therapeutic" in some fashion. Some very well might not want to see this as merely a health issue, which is fine, but to me it in a significant fashion quite is.

** The opinion appears to be interpreting the "right" protected by the state statute here, but by implication, the woman's right is not being illicitly violated in the process.  Just how far these people have an independent state or federal constitutional right not to be involved is a separate question. And, what if it was a medical emergency?