Girl At War

I am about 2/3 thru this fictional account of a girl's experiences during the war in Croatia in the early '90s and its aftermath and it is a successful pick from online reviews. It isn't a direct veiled account of the author's life but stories she was told and learned about. As with great fiction, this does not rob it of basic truth. A well told story that is a promising debut.

Update: The ending is a bit open-ended, as it should be I guess, but last 1/3 good as well.

SCOTUS: Term Finale

Update: For whatever reason, SCOTUS announced mid-afternoon (did they forget about it before?) that for now the Texas abortion opinion is stayed with four justices dissenting without comment. There is an outstanding cert. petition involving a Mississippi case (see cert. watch at SCOTUSBlog) that is likely covered by tomorrow's orders.  

Also, there is an order (with only Sotomayor dissenting without comment, making it unclear what her issue is) involving an ongoing dispute involving the contraceptive mandate and religious exceptions.  Notable is that it says the order does not affect the ultimate ability of women to get contraceptives though the truth of that might be questionable especially along the margins.  It seems overall fairly contraceptive mandate friendly.

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Well ... The SSM did not end the passion at the Court, that's for darn sure. FOUR justices made statements regarding the lethal injection case (announced by Alito -- like in the Hobby Lobby case, certain parties surely were like "had to be him, huh?")  with Sotomayor with the main dissent, Breyer (with Ginsburg) on record now as being doubtful the death penalty is constitutional and Scalia (though Thomas wrote a better reply with less snark; he did as with SSM join Scalia) there to reply to Breyer.  I will not provide links -- see SCOTUSBlog, Election Law Blog et. al. for commentary and the SCOTUS website for links as well. 

The lethal injection result is not really surprising though Alito (he of "guerrilla" abolitionist movements) getting five full votes here is notable.  The particular means (with Sotomayor providing a strong dissent) is not clearly a problem, the district court findings here of special import. This still leaves some discretion to district judges that find differently. An added wrinkle is the idea that if a method is opposed, the claimants have to show that there is an alternative available, since the death penalty has long been held unconstitutional.  The majority rejects the implication this means any horrible means is warranted if there is no alternative.  So, there must be some limiting principle of sorts there.

But, Sotomayor makes a good argument as to the logic of the majority's opinion and is right that the state is under no compulsion at all costs to execute in the first place. Some states don't have the death penalty, after all, so it seems to be a matter of policy discretion. The majority, some members in particular (Kennedy is part of an ongoing movement to restrict it), appear to think the state is obligated to execute certain people. And, the argument that the Constitution specifically provides procedures regarding depriving "life" does not end matters.  It has to be done with "due process of law" and the Eighth Amendment is another check as is things like equal protection of the law.  If such things are not met, no, executions are not allowed.  And, overall, as to the Due Process Clause, execution is not the only means of taking life -- e.g., use of lethal force to catch convicts or use of drones in military conflicts. 

I cannot assume to be able to judge who has the best case in the dispute over the evidence here but will simply note that it is likely close enough that even a tie should go to the dissent.  Justice Sotomayor (with Kagan) in effect (Breyer/Ginsburg join the full dissent but the other two don't join his) assume the death penalty is constitutional, but isn't that enthusiastic about it ("but see" Breyer's dissent). Plus, it ends with the suggestion that some defendants here would rather the firing squad (nitrogen gas too novel to mention?) though noting it also leaves something to be desired. Net, this doesn't sound too supportive of capital punishment overall.

There were some orders before this though not anything to do with abortion (there will be more tomorrow).  There were dissents from denial and action involving cases similar to some decided.  And, with Kagan again recused, the Fisher affirmative action case is back again.  Let's see how this goes. Sotomayor might have to use that dissent she allegedly wrote after all. After tomorrow, there are scheduled order days during the summer.

The remaining cases -- Arizona redistricting and EPA regulations -- also were 5-4 with Kennedy joining the liberal and conservative blocks respectively.  Concurring Opinions Blog has various posts about this where the law professor went back and forth. Overall, this to me suggests that we should give the state discretion over the redistricting scheme and in the process I agree with the majority. The dissents overall seem to be somewhat academic "you might have a point" type arguments at best.  Kagan's dissent in the EPA case is probably correct though unsure how important it is -- some barrier to regulations, but how much? 

BTW, some first day by Steven Matz, including three hits!

Some More Before The Term Finale

And Also: John Oliver covered the weekly SCOTUS developments and his main segment covered trans issues. Nice to see Carla Gugino, a favorite actress of mine, has a small part (so far) on The Brink, which continues to be pretty good.

There are various discussions (and go to Slate for more etc.) that honor and discuss Kennedy's majority opinion's characteristics. This includes its use of liberty and equality, its overall tone and rhetoric plus its evolving tradition approach that (oxymoron it might be to some) be called "evolving originalism."  The idea is you have basic purposes (here of marriage) but how they apply change over time as our experience and knowledge changes.  Overall, there is a lot to praise, especially if you give it a chance.

There are various things I might have tweaked though as one of those discussions note, ala Brown v. Bd., the approachable nature of the opinion (and I would include here it's overall positive tone, which a more full-fledged equal protection and/or animus ruling could lack) is important given the broad potential readership here. The brief history of marriage and development of changing views of homosexuals is appreciated. The framework of marriage and equality/liberty synergy worked for me. The material was there -- he used it to provide an appealing overall approach.

Nonetheless, I would have added more on how rights of homosexuals grew there as the sticks of marriage grew for the couples involved. Also, I would have noted how same sex marriage in some fashion existed for quite some time, if only to show the potential once we accepted the possibility.  Same sex marriage is not just something that was invented twenty years ago. And, yes, I would have added a bit more on recent state DOMAs etc. to show animus and/or how democratic decision-making was blocked.

[Note: The changing minds on the question clearly factored in here but it does warrant adding that the majority opinion does at one point basically note (as has been the case in the 8A context and so forth) on some level ultimately it is up to the Supreme Court to apply constitutional principles. Here there was a circuit split making it particularly important though they at times don't require that.  Ultimately, basic constitutional principles, not nose counting of some sort, was at stake here. But, the USSC just acting solely on its own on these issues is rare. There is surely shall we say some free will going on here; it just is a combination of factors.]

As one discussion links notes, the majority opinion is overall positive and politely shows respect for dissenting religious and secular views on this subject. The dissent doesn't buy it -- the majority opinion is clearly same sex positive and rejects "demeaning" same sex couples by denying a constitutional right to marry. But, it is speaking in constitutional tones. Also, would the dissents be as concerned if racism was at stake and a general vibe of positivity involving racial equality is provided even though some people reject that sort of thing?  I seriously question this.

Finally, there was a way, especially Chief Justice Roberts, to dissent without being so bitter about it, without comparing a ruling protecting same sex marriage to overturning a maximum hour law or freedom provision. The dissent could respectfully note that homosexuals did have a history of discrimination, say that the argument about the synergy of equality and liberty has a point and some barriers here would be illegitimate. There was room for some common ground there without him sounding like one or two of the tools in dissent. Thomas, e.g., let us remember dissented in Lawrence while here assuring us same sex couples just can go about their lives. Plus, when the majority says they respect dissenting views, go with it. Don't send the message that it was really a wink wink and they won't be respected as a matter of law.

You might lose three votes here, but accept Lawrence v. Texas. And, finally, perhaps suggest some rights to couples are required though not yet  marriage. Perhaps, recognition (why was this even brought in? it was barely mentioned) or acceptance of out of state divorces or stopping a total ban of adoptions on account of sexual orientation.  Meanwhile, you say the right to marriage is too big to recognize now, things are still developing and the usual conservative line. And, tone down the Lochner stuff but use a bit of that and Washington v. Glucksberg etc. about concern for error.

Still wrong (he should know). And, one final summary.

Mets Update

After dropping under .500, a two game winning streak pushed them over. The two hits in last night's game doesn't lead me to be that relieved. Murphy will be back eventually but the only real change so far is the rookie putative ace Matz coming up. He appears to hit well at least.

Reactions to Reactions

It bothers me that various people, including over at Lawyers, Guns and Money, are provided tired and/or unsubstantiated criticisms of the SSM opinion and unwarranted respect for certain dissents. There are the expected potshots at Kennedy's prose (I'll survive and the dissents were deep down worse unless you are only judging on style points*) and the alleged lack of clarity of what "the law is."  I reckon the law is that same sex marriage is protected.  Since marriage is deemed a "fundamental right," heightened scrutiny would seem to be followed unless the justices sub silento changed years of precedent.  Granted the opinion -- contra Heller -- doesn't have expansive dicta on other subjects.

Some, e.g., wanted the opinion to decide the level of scrutiny for sexual orientation, which is not necessary. It would have been a more activist and wide ranging opinion for a Court constantly favoring a more modest approach.  Also, some reference to use of "animus," which was raised in the "People's Brief," which I signed along with a mass of other people (thus it's name).  The use of state DOMAs to block legislative developments here can be cited as I have in the past to show how most if not all of the states still with bans had that extra layer of bad. And, as noted here, such provisions block the democratic means Roberts et. al. promote and support reflected in poll numbers. It is likely, especially given legislative bottlenecks generally, certain states still would not authorize same sex marriage. Telling point though.

Anyway, the opinion did focus on "dignity," a special concern in the animus area.  But, overall, as in Lawrence v. Texas, the approach used here is more comprehensive. And, animus cases -- see Windsor -- suggest the laws in question are in effect special burdens. This was more general practice. Finally, use of a more inclusive "part of a greater mosaic" approach is more welcoming overall and was a strategy of many in the marriage movement generally. In more "not just Kennedy" news, the movement has been known to use sentiment, including regarding the human interest stories / burdens of those being denied rights.  Is it really surprising that the opinion seems to be emotional there? 

There was also opposition (comments) to the use of substantive due process and arguments (comments; repeatedly conclusionary) that Roberts and Thomas did a good job challenging the majority on the point.  I get the general sense -- though one person kept on saying Kennedy didn't show his work (here regarding due process and equal protection synergy) though he clearly did (paragraphs worth) -- the criticism is more a matter of disliking the technique itself.  If you read the opinion, it provides clear analysis (using precedent) to show how the right to marry was long protected and in an open-ended way.  It was "presumed" that it involved man and woman marriage (but see Powell's concurrence in Zablocki, concerned about how regulations involving homosexuals might be struck down given the open-ended nature of the majority opinion). An evolving understanding however showed that the actual principles involved apply just as well to same sex couples.

Now, if you want to do away with years of precedent, fine, but it is unclear how the dissents challenge this in any other way. Washington v. Glucksberg won't save you either; it spoke of "new rights" and the "right to marry" is not that. Nose counting suggests the reach of potentially expansive dicta is limited especially once a range of cases are examined. And, the majority has a better case on how that right was expansively applied.  The idea that marriage was only about procreation or the only "core" aspect that simply could not be changed is man/woman does not stand up to scrutiny. How exactly is Roberts et. al. arguing things well by making the same specious arguments? If the courts can significantly change gender relationships in the 1970s given changing understandings (reflected by societal actions, expert knowledge, laws, judicial rulings etc.), why is this different?  Why is this supposed to be the act of merely five justices as compared to any number of other things?  Repetition of error doesn't make it less erroneous.

Some are concerned (accepting the ruling was a "necessary evil") that the opinion will be a "setback" including because now  "instead of having to defend anti-gay policies on the merits, [some] can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question."  Not seeing it as I say there -- is that the case with abortion?  Nor does the ruling settle each and every GLBTQ issue though it surely helps one side.  This is why so many were ecstatic in part because it will be used as a weapon for further success.**  A tipping point has come and as with abortion there will be backlash (with rights protected) either way.  How much longer should they wait?

The ruling, as was the case for Lawrence v. Texas (intimate association protected generally), has a broad reach.  For instance, the argument used here is partially about gender equality too, even if gender equality itself is not used as an argument (it is favored by some; not by many courts).  It is also about the right to make a range of marital choices just as freedom of religion includes not having one (many say they are "spiritual" instead; this might confuse non-hippies like Scalia). There was some pushback on Kennedy's pro-marriage language and I won't dispute he laid it on thick (he or a clerk might have seen it as a nod to their spouse).  But, like the reminder that marriage is only partially about procreation -- and choosing not to procreate is fine (btw must have missed Roberts et. al. explanation about the elderly marrying here)  -- more choices here includes the right not to get married.  Anyway, sometimes one forgets Kennedy is still some sort of conservative, even if the type many liberals can live with.

One discussion wondered why Kennedy would leave affirmative action but not same sex marriage to the political process, a reference to his opinion in  Schuette.  It is noted that Breyer also joined the result there though a reader might miss this in the analysis.  Also, the quotations aside, it is not as if Kennedy actually totally leaves the question of affirmative action to the electorate. He has rejected certain race conscious programs that they chose as unconstitutional.  Furthermore, affirmative action is a means to racial equality though some might believe it is a necessary one.  At issue here is a direct barrier on fundamental rights and equality.  No, the test is not that you only trust the voters when they are likely to vote with Kennedy.

The same sex marriage debate repeatedly leads to references of polygamy and incest, largely by opponents but at times by defenders with some sort of libertarian bent or desire for neatness. Line drawing as with development of the law is often not neat and we have survived, even if the rules followed seem somewhat arbitrary to some people.  Appeals to originalism here have been shown to be weak; complete trust of the democratic system rightly rejected.  OTOH, for those like Thomas who do care for such things, marriage has long been held to be a liberty.  If he wants to call it a "privilege or immunity" be my guest.  He argues "liberty" is about freedom from government action.  Marriage was just that -- it provided a realm of privacy to do things you otherwise could not do, including cohabitation.  Finally, not only spousal immunity but things like guaranteed widow benefits show how the "p/i" would work here. Plus, the distribution of benefits cannot be done in an invidious fashion.

Anyway, the majority did list "two-person union" as one of the four principles of a right to marry though Roberts in effect noted this was an arbitrary limit as compared to man/woman marriages.  The majority did not spend time discussing why polygamy is different. The core reason is that societal developments have recognized same sex relationships, which even the states accepted on some level.  Polygamy does not have such wide recognition and for good cause.  The majority might have said a bit more about that but this concerns few, including those who are open to expanding marriage to include them.  Monogamy was part of marriage precedents; the issue at hand is same sex marriage and time shows that they fit the ends of marriage.  Incest seems to have been avoided.  If such cases arise in the future, and they likely will in some fashion, the specific concerns can be examined. 

I'll be interested in seeing further developments here. As noted near the end of the opinion, the marriage "debate" is far from over even if it goes on now with basic rights protected for the group in question. This is true in general -- the push to look "beyond marriage," protections for non-marital relationships for all types of people has been ongoing for years. And, there are a range of interests to gays and lesbians, not even including trans issues that are far from fulfilled by this ruling.  After all, Loving v. Virginia did not end things for race.  For now, congratulations.


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* A low point was when Chief Justice Roberts, yes the Chief Justice of the Supreme Court of the United States, told same sex couples to "by all means celebrate today’s decision ... [b]ut do not celebrate the Constitution. It had nothing to do with it."  The bitterness is dripping.  Precedent for over a hundred years protects a right to marry as a "liberty" protected by due process and equal protection is right there in the text. So sorry. The Constitution has "something" to do with it.  And, "Lochner!" And, for added effect -- Dred Scott!!!  Equal rights to same sex couples, as we know, is akin to the non-personhood of blacks or stopping wage/hour legislation. Not like? Declaring unconstitutional PPACA or voting rights laws.

Justice Scalia is just too easy of a target -- his dissent is redundant in respect to the "leave this to the people to decide" message since Roberts already covered that. It was mostly a gratuitous chance for "Scalia to be Scalia" and be joined with Thomas in so doing.  I will grant that some of his remarks might be funny -- partially to save time -- like you would think some slightly deluded outrageous elderly family member might be.  But, seriously now, this guy has passed some tipping point. RBG? Isn't it about time to have an intervention? Or is it your crafty way to degrade the brand?  Alito here is bitter without the wackiness.

** Andy Humm (Gay USA) on his Facebook page: From the great gay journalist Steven Thrasher: "Just got off the phone with Roberta Kaplan, who argued Windsor, who explained to me all the legal ways today's case is pretty much everything we wanted, and lays the legal framework to prevent discrimination across the board in many arenas beyond marriage. 'There is nothing in it I am worried about. It states in no uncertain terms that gay people are fully protected in a manner of equality protected by the Fifth and 14th amendments. And that's what this movement has been fighting for now for decades, and for the 20 years I have been involved. This is the pinnacle of our success so far, and it is hard for me to see now that any court, anywhere, state or federal, could possibly tolerate discrimination against gay people on any basis.'

Same Sex Marriage

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The majority opinion in the same sex marriage cases is basically as expected -- by Kennedy, in poetic language and resting on basically an "evolved over time" view of constitutional rights, a "synergy" of equal protection and liberty here given more expansive reach than in Lawrence v. Texas.  The nature of the right, history of discrimination and a citation at one point of the immutability of sexual orientation was cited but no specific level of scrutiny regarding equal protection was used. This is fairly typical of recent case law.  Marriage is a "fundamental right" and was always treated in an open-ended way.  Originally, it was assumed to be different sex, but over time, same sex couples were understood to be included.

I am somewhat surprised Roberts didn't find a way to concur somehow, perhaps on recognition or the possibility some sort of civil union or domestic partnership rights are required and the force of his dissent.  The other three, including their concerns, not so much.  OTOH, not really sure why Alito didn't join Roberts' dissent -- it covers all the bases.  Each justice dissented, Scalia and Thomas joining each other and Roberts (with Scalia/Thomas) and Alito (with Scalia/Thomas) provided their own. 

There is "no difference" (of constitutional moment -- but the message that the majority opinion means in general clearly rubs the dissent and others the wrong way) between same sex and different sex marriage.  As I think warranted, the nature of a constitutional right to marry was discussed.  A pure equal protection ruling is favored by some, but there you need to show why the two groups are the same for relevant purposes. I would add like some sex discrimination argument (which has only had limited reception in lower court opinions) and/or more of a focus on equal protection (including "animus") would require more going into the weeds, while this approach will likely be more "popular" in nature. The SSM opinion by Judge Posner has its charms; it's out there for those interested. This more "poetic" (which really turns off some people) approach has its own value.  Anyway, four general purposes of marriage:

• right to personal choice regarding marriage is inherent in the concept of individual autonomy
• two-person union unlike any other
• safeguards children and families  [childbearing is only one]
• keystone of our social order 

"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."  The opinion spells out how marriage changed over time regarding sexual roles, premarital intimacy, financial issues (like child support) and so forth.  But, for the dissent, that doesn't really matter.  The "core" of the definition of marriage remains one man and one woman. The fact that "human society for millennia" (to cite Roberts) would find many of our current marriage norms, many treated as constitutional rights, absurd is ignored.  Core?  Who says?

Well, as Roberts argues:

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.

This is a piss poor summary of the complexity of marriage over human history.  Marriage norms came about and developed over time, different in various ways in different cultures, by a range of reasons.  The case could have used a concurring opinion discussing sex roles, including how singling out marriage between a man and a woman, even though the overall reasons (not just procreation and raising children) didn't require it, and how this makes a sex discrimination claim a strong one.  A history of same sex relationships over human existence would have been helpful too. Yet again, I am concerned with the idea same sex marriage or even same sex relationships developed sometime in the mid-20th Century or later.

Alito, whose short dissent was in effect a warning about the possible negative effects of same sex marriage, alleges that the majority "focuses almost entirely on the happiness of persons who choose to marry."  Roberts noted the claims made seemed to generally be about how "marriage is desirable and petitioners desire it." But, dislike its tone or not, the majority recognizes a certain sacred nature to marriage, it is not merely something "desirable." And, claims made by individuals would logically focus on personal happiness.  But, the "keystone of our social order" is clearly not just about that.  Marriage is not just about procreation or personal benefit. A full protection of equality is a value for all, which is after all clearly shown by the discussion of children and their needs. 

The dissents are full with such lame arguments, down to the usual canard about judicial activism, a bit weak coming from people who wanted to overrule PPACA and major civil rights legislation.  A drinking game might be created for every time Roberts cited Lochner or Scalia (who mind you, doesn't really care much about this specific issue) said something stupid ... I mean snarky (hippies, tall buildings etc.).  Roberts also argues that a right to privacy provides "no support" -- not "not enough" -- to the claims here. Privacy is protected; there is no criminal burdens here either.  But, the right to privacy includes the right to make certain intimate decisions and marriage rights (and the majority ends with a reminder only "civil" marriage is at issue here) protect them in a variety of ways.  Loving v. Virginia would not have been decided differently if no criminal charges was at issue.  Stick with the "go slow" approach. This stuff is weak.

The summary of the core aspects of a right to marry to me is fairly obviously right.  Scalia can sneer at some right to intimacy and spirituality (the word seems to confuse him), but it is a well recognized thing.  The majority's citation of the special nature of the "bilateral" (Griswold) nature of marriage could have used more discussion, given the usual concerns about polygamy.  But, Roberts claim (backed up basically with a single cite of the oral arguments, not any of the numerous briefs) the claimants didn't differentiate is b.s. As is Thomas (who spent much time criticizing substantive due process) claiming same sex couples basically can "in peace" raise their children and so forth.  Deny different sex married couples the rights arising from marriage.  See how that goes.

The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.

The general argument that the majority preemptively is stopping political debate over this topic is answered by citing various recent developments. I think more could have been shown how rights of gays and lesbians (and "couples of the same-sex" generally) developed over recent decades. Appendixes were provided listing legislation and lower court cases. The "First Amendment" rights of those who believe differently was noted. This again didn't impress the dissents, which might be understandable on some level -- the side of "right" here is apparent.  OTOH, consider this from a 1880 opinion, regarding racial discrimination:

At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected.

Such references to  "positive dislike" (and more could have been shown here how state DOMAs grew out of this -- the background of the provisions, not just some general legislative choice to not recognize -- is one more thing that could have been helpful here) suggests the Constitution plays favorites here. Makes certain choices, even though many in 1880 still believed that race justified special discrimination (if they even would accept that framing) quite as passionately, often with natural law arguments.  Thomas here cannot even accept the laws here really "demeans," in part since people retain dignity.  So did blacks at that time.

We will see various people -- I already did -- complain about various aspects of the opinion.  It could have been written better in certain ways.  But, overall, it is a good opinion that mixes the developing nature of the history of our liberties with concerns for the equal protection, particularly dignity, of gays and lesbians. Contra the dissent, the Constitution "says" something about such things, no less than it does about the "dignity" of states to the degree a major part of national voting rights legislation, passed by the people, was declared unconstitutional.

The time for it has come.  I'll add one thing -- Scalia argued this debate has been declared closed by the majority. Obviously not.  The debate will continue.  What the majority did, like his majority in Heller, was protect a constitutional right while the debate continues.  Did they lose something too?  So, we are talking about a certain type of discretion, one limited by constitutional law.  There is and will always be a deep divide there.  This doesn't mean one or the other side is not applying the law though on some level we are a government of men (or people), since who else runs things? (I can say more, but will end there.)

The "Other" Ruling

After Kennedy announced the 5-4 (sigh on the closeness) judgment supporting same sex marriage as a constitutional right, Scalia had a personal moment of his own, announcing 6-3 (two of them agreed on statutory grounds; only Alito totally dissented) an important federal criminal provision as unconstitutionally vague. Three left for Monday.

SCOTUS: "Whew"

And Also: There is obviously a lot of commentary, including from the usual places I go, about these two cases. One discussion spoke about how disparate impact deals with "unconscious prejudices."  Another on the ACA decision highlights a portion that suggests a signal that the justices are getting tired of challenges.  Some call out the inconsistency, shall we say, of Scalia.  Notable as well is a portion in the copyrights case dissent by Alito on the difficulties of congressional action. Seems easier now, huh?

This is the sentiment of many, and not just on the left, regarding the two opinions today involving health exchanges and disparate impact in respect to a fair housing ordinance. Scott Lemieux has blogged a lot, believing the "Moops" argument as to exchanges had a good chance of winning.  I'm sure he is glad his pessimism was wrong -- Roberts wrote a 6-3 opinion upholding the lower court that accepted the government's argument. Kennedy, as expected, wrote the FHA opinion though this time 5-4.  This was probably considered a nice birthday present to Justice Sotomayor.

The health exchanges ruling on the whole was sane. It made some potshots at the apparently special problems (including "secrecy") as to how the legislation was made (a citation to an old law review article and cartoon reminds one of the infamous Pelosi comment). This is b.s. though perhaps the old citation reminds it isn't so novel after all. (edited upon reading the linked discussion)*  It says the specific text is "ambiguous" (arguable) and the challengers have a "strong" case on that but that taking the law as a whole (particularly its purpose; might be a "Breyer" friendly opinion -- see his books), the government's interpretation is correct. In fact, so-called Chevron deference is not applied (at least it says this), so a later administration cannot even decide to use Scalia's "absurd" reading.  Scalia accuses the majority of more creation by interpretation, suggesting "Scotuscare," which might be better than Obamacare -- SCOTUS did make the Medicare expansion voluntary, more power than Obama himself has. 

The ruling is a defeat for banks, insurance companies and other business groups that claimed such lawsuits are not explicitly allowed under the Fair Housing Act, the landmark 1968 law that sought to eliminate segregation that has long existed in residential housing.

Given seniority, Roberts announced the case last (Scalia announced his dissent aloud, as usual, without audio or transcript; Obama had a good statement about the case and ACA itself later on as well); the first case announced was the housing case.  This was a significant case that went beyond the specific claim.  The opinion suggests the claim itself (regarding placement of certain housing) was weak.  Those who wanted the case to be heard, at least some of them at least, were aiming for bigger game -- to take away as a matter of statutory interpretation (though the dissents seemed to be as concerned with alleged negative policy implications) -- to deny disparate impact is covered by the law in question.

This is big since intent is a lot harder to prove; it is easier to start with impact, even if you have to show evidence the policy in question caused that impact. Scalia in oral argument raised an example -- the fact the NFL has a lot of black people does not in itself mean the NFL is "discriminating."  But, the fact that there is a lot of a certain type of people by color in certain sports is fairly telling.  It is likely, though it can be rebutted, that race had something to do with it.  History -- as cited by the majority here in the context of the creation of the housing law (the setting and purpose behind ACA also was cited in the other statutory case) helps show this.  Disparate impact therefore is a useful tool in policy-making.

Kennedy rarely references dissenting opinions (he did so in his concurring opinion in the contraceptive mandate case and those in the know should have seen it as notable) but here speaks of the "well-stated principal dissenting opinion" by Alito (Thomas concurred as well separately).  This might be because Kennedy is sympathetic with the overall concerns with use of race when invidious intent is clearly not shown, including in the area of affirmative action and school integration.  But, Kennedy repeatedly leaves open -- if as here with caveats -- some room for maneuver.  Some ability to take race into consideration when appropriate. 

Kennedy in particular refers to the example that Alito leads with -- "No one wants to live in a rat’s nest."  This refers to a lower court opinion in a case that was settled before SCOTUS was able to decide the matter.  In some fashion, it's not advisable to trust Alito's framing, the lower court held that enforcement against code violations that fell the most on certain housing was discriminatory under the law.  Kennedy noted it is unclear, especially given the majority's language regarding proper governmental interests acceptable even if there is some disparate impact such as dealing with "rat nest," how the test in the opinion would be applied there. Net, disparate impact is likely to benefit residents as an additional tool. Anyway, precedent also made this an easy call.

A careful opinion that made things somewhat harder for people who feared a full loss and a sane ACA opinion with a few potshots. "Whew."  Five opinions left.  Expect the SSM on Monday.

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* The idea there was not a normal sense of "care and deliberation" in legislation that had much more attention given to it than usual is annoying. There was some difficulties regarding the lack of expected editing, but the context there should be recalled -- Republicans simply would not let that be done, even if no substantive changes were made. Even there, I reckon legislation had some problems in the past because of late developments. The size of this legislation made it an issue here but only so much.

The Real Reason #SCOTUS Justices Don’t Want Live Broadcast of Opinion Announcements?

Release of opinion announcements is an especially prickly issue with the justices. The announcements are summaries written by the justice who wrote the majority, and the other justices in the majority don’t sign off on the wording.

So, reportedly (though I never hear them asked about it myself), justices don't want them broadcast. But, they are reported on and Oyez.com includes them online eventually. And, do they sign off on headnotes? A disclaimer is enough there. So, sorry. No sale.

Confederate Flags

How is that race war going? Instead got the victims' family forgiving you and South Carolina (is this the "end of the war" moment discussed on C-SPAN Civil War analysis over the weekend? special Juneteenth event?) et. al. removing the Confederate flag from statehouses and such. The SC process is convoluted and the governor had to paper over some things in her statement. But, impressive. Not sure about all these retailers, even when third parties sell them, barring sale though. Public endorsement is my concern; don't like shutting off private options, which will in various ways offend. A bit on the U.S. flag.

"Casey and the Clinic Closings: When "Protecting Health" is an Undue Burden"

The draft title article by two supporters of abortion rights is a convincing brief to not apply Casey merely gratuitously to burden women's health, but think more should be added to cover acceptable regulations. For instance, ultrasound laws allegedly have a mixed purpose of health and promoting fetal life. Where do they fit? Is the problem with some the fact they are not truthful? 24 v. 72 hr. waiting periods? Other laws? They aren't fans of Casey, but want to apply it fairly. This is often tough, if necessary -- real life requires compromises.

The "tender-hearted" SCOTUS

I will say some more about yesterday's opinions that have received some commentary including regarding the importance of the takings and administrative searches (hotel guest registry). One discussion on the latter noted that the decision states: 

a clear doctrinal rule requiring an “opportunity for precompliance review” for virtually all governmental inspection programs. While the decision on the specific Los Angeles statute is close [5-4], the Court does not seem divided on the fundamental principles. Thus the Court appears to fulfill one of its primary functions: stating general rules that can be relatively clearly implemented, to guide governmental and litigant behaviors on a national level.

While we can debate the substantive merits of such opinions and quibble over language, this is an important bottom line, including when talking about stare decisis (an issue in another case yesterday, once that again split Scalia/Thomas, this time Scalia was the one assigning things to a liberal justice).  These cases are important partially because they retain some basic limits that should relieve the hearts of liberals who are inclined to generally deem the Roberts Courts a bunch of retrograde fascists.  The split might too often be too "close," but there is enough there for hope, especially since it provides the tools for willing (and even some wary) lower court judges and others including the victims that now have more tools to fight back.

Though I'm still inclined to think the raisins case was overblown, the basic idea that we should be concerned about the government taking all types of property illegitimately, including without just compensation is part of this whole affair.  A comment here, e.g., suggests the possible breadth of Sotomayor's "if you don't take all the property interests" rule.  And, though I really question she would apply it to seizure of 1/3 of a hotel's rooms, the concern has some merit as a matter of principle. Yesterday, therefore should be seen as in some small way protecting various constitutional rights, especially given the breadth of administrative power, those detained in the criminal justice system awaiting before being found guilty and so on.

The split is still too close at times and it is troubling that Chief Justice Roberts continues to at times join broader opinions as seen both in the passport case and now in a prison excessive force ruling. Again, Alito found a way to avoid the broader argument while Kennedy this time joined the majority upholding the liberty interest at hand.  Thus, Roberts' join of Scalia (and Thomas) again seems gratuitous. Usage of a federal statute in place to protect federal civil rights (even though there was generally also state means of relief too given state action is involved) is a "tender-hearted desire" to federalize tort law.  The "tort" here alleged excessive force against a person in criminal custody, but still legally innocent. Scalia's dissent argues that: "The Constitution contains no freestanding prohibition of excessive force. "The Fourth Amendment not at issue (Alito relies on this), allegedly the only thing left is an "intentional infliction of punishment."

The majority, correctly and more logically, holds that the Fourteenth Amendment's protection of "liberty" is more stringent. As one opinion cited noted: "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose."  Not only is use of force in a prison without a legitimate purpose in effect assumed to be "punishment" for constitutional purposes, one would think obviously there is some bare minimum standards of treatment in government detainment. 

The opinion here holds that the force must be judged "objectively," not merely trying to show the specific officer subjectively intended to hurt the person. The added requirement is more appropriate in the 8th Amendment context where such intent has been deemed necessary.  This has application in a case of current notoriety.  A reliance on subjective intent can be much harder since even if objectively something is unreasonable, a particular actor might be able to show the lack of the guilty mind needed to obtain satisfaction.  We should not have to rely on the unreasonable assumptions of state actors at some point -- at some point, when finding fault and/or the need to provide damages, a general sense of reasonableness should be enough.  This is particularly the case where criminal allegations are not at issue but civil right claims. 

The Court is not only "tender-hearted" to raisin brokers.

SCOTUS Watch: Clearing Way For Finale

The wait continues. A few notable cases (see SCOTUSBlog etc.) but nothing really big. Kagan has a bit of fun with a comic book case, limited strings put to searching hotel guestbooks, some protection for a person in detention (with Scalia along with Roberts again providing a narrow view of liberty) and a return of the "raisin case" that the conservatives seemed to take a tad too seriously as some big threat of government oppression. That was 8-1 (Sotomayor) though the other three liberals questioned the lack of "just compensation."

"John Oliver's Internet Misogyny Rant is Satisfying As Hell"

John Oliver had another very good main segment last nite. The Brink, which is in the Veep time slot, starting fairly well. A lot of "huh, I know that person" faces, including at the Cabinet meeting. Too soon to judge how good it will be overall.

Empathy in Judging

The idea that Obama, along with other things (such as her long service as a federal judge), selected Sotomayor for her "empathy" received criticism. I then and now think empathy is part of judging and the criticism sadly confused. And, darn selective, since they often don't mind when their own do it. Thomas might have been alone there, but the others have their moments. It is not empathy but how it is used. Happy Father's Day.

The Story of Jane Doe

This is the true story of a woman raped in the mid-1980s who successfully sued Canada for mishandling the investigation including failure to warn a serial rapist ["Jane Doe" does not name the rapist in the book] with a "type" was on the loose. This is a critical account of the whole process, at times in the voice of police involved, from the rape itself to the lawsuit. "Jane Doe" is still fighting and unsatisfied as this article five years after the book suggests.

"Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?"

As I noted in reply, I think not. Also, the governor and former governor wants to make this about a lone deranged hateful person. "Absolutely" (as multiple victims already are talking forgiveness; this might not necessarily imply they are against executing him, but inclined to think so) not. Jon Stewart might be right to think "here we go again" -- latest horror, then we forget, until we are horrified again. Without doing anything to change things.

Origins of the Bill of Rights

This look at various rights is by the great constitutional writer Leonard Levy. Not comprehensive or overly novel; still useful, including for diversity purposes (it also supports an individual right to RKBA, this some years before Heller). One theme is the haphazard creation of the bills of rights at the time, including saying things that are based on created history, "originalism" not just starting in Reagan's day. Could have used a bit of editing.

SCOTUS: Criminal Justice Day

No SSM stuff yet -- no kidding -- but this sounds like a good book on marriage including a concern about polygamy that isn't textbook expensive like a past book discussed on that blog.  The general "don't criminalize, admit complications but still specially honor monogamy" sentiment seems correct to me.  I'm all for flexibility involving arraignments, but the "don't care, just license polygamy" sentiment is not for me. 

Various opinions handed down, including those in some fairly significant cases, if not the ones many are focused upon.  Those two blogs have and will continue to have coverage with a special focus on criminal justice matters noticeable.  There are also two free speech cases (signs and license plates) with interesting splits. The theme today might be concurring and dissenting opinions.  SCOTUS watchers will have some "fun" today as noted by someone during the SCOTUSBlog live blog.  They have competition now with Oyez.com sponsoring their own and others live tweeting.  I will cite the cases by name; they can be found here.

Ohio v. Clark unanimously held remarks from a three year old did not cause Confrontation Clause problems.  Justice Alito wrote the opinion and annoyed Scalia (with Ginsburg) and Thomas (with his own unique views) with certain reasoning and/or dicta that seemed in Scalia's eyes to "shovel dirt" on reason confrontation law. The use of an uncontroversial case to have "Easter eggs" (to use slang for hidden things on DVDs and such) is not unknown and to me somewhat tedious.  It also wouldn't be surprising since Alito et. al. aren't big fans of the breadth of recent cases here with Sotomayor/Kagan generally okay but a bit more wary than S/G.

Brumfield v. Cain was 5-4 opinion upholding a claim regarding intellectual disability in regard to a death sentence.  Justice Thomas dissented, adding one section that Alito and Roberts didn't join (though they thought it rewarding reading) comparing the success of the victims of the murder with the murderer. [Correction: Scalia did not join the statement by A/R but also did not join that section either. Also, Thomas provided a videotape of the confession to the website, only the third time a justice did that.] The basic idea to me seemed rather comparable to him calling out welfare moms or something for complaining given he managed to fight poverty to grow up to be a justice and all.  He added a picture of the victim. The case is about the rights of defendant, who might be executed. When Thomas decided such a defendant has a good claim, will he include a picture of the victim too?  What is special about this case in particular?

Davis v. Ayala involved the alleged harmless error regarding racial based challenges, which split the Court 5-4 with Sotomayor dissenting.  The particularly notable thing here (foreshadowed by a question posed at oral argument) is Kennedy's eloquent concerns for long term solitary confinement in a solo concurrence.  Kennedy concludes with a quote from the author of Crime and Punishment that how we treat prisoners tells us something about how we treat everyone else. Thomas gratuitously responds that the guy in solitary murdered people, so is better off than his victims. 

McFadden v. U.S. unanimously required knowledge that a certain drug was covered by the statute in question.  CJ Roberts added a brief concurrence and included a quick "pop quiz."  How much this will matter is unclear in this case, but it is one of many cases where SCOTUS in some fashion tempered potentially broad criminal statutes.  It is on that level appreciated.

Reed v. Town of Gilbert unanimously held a local sign statute (here with religious liberty implications) was unconstitutionally content based.  The confusion here was to set forth a rule that would not be too overbroad, since all regulations are not going to be "one size fits all."  This split the justices.  Three justices (the unusual Alito/Kennedy/Sotomayor trio) concurring with the majority but argued it wasn't as broad as it might look.  Three (the rest of the liberals led by Kagan) disagreed and only concurred in judgment.  Thus, we have another "simple" case that is somewhat confused.  Seems like there should be a way to avoid this.

Walker v. Texas Div., Sons of Confederate Veterans, Inc. had the unusual line-up that allowed Justice Thomas to assign the case..  Breyer wrote it; Thomas was the senior justice over the four liberals.  Still waiting for that chance for RBG to assign an opinion, Alito joining the liberals.  (Don't think this happened yet -- asked more than one court watcher and they didn't know of such a case.)  This was the tricky license plate case where the state has a rather broad range of vanity plates but rejected this one.  SCOTUS upheld it as a government speech case though the Alito dissent, which Breyer didn't engage (don't like that), made some good points.

[A connection to last night's horrible shooting is that the Confederate flag still flies over the state capitol in South Carolina.  (Update: As seen here, it is not on the capitol dome, but on statehouse grounds; all the same, the overall effect is that it flies high, "over" the capitol. The improvement - it was taken down from the dome in 2000 -- is appreciated but limited.)  Some have argued that this is a special "badge of slavery" that violates the 13A, which applies to private action, but has special concern here when the government is involved. 

On that level, perhaps, a message on a state license plate with particular constitutional concerns would be a special category.  Mere "government speech," such as in support of capitalism, might be different from messages deemed racist, especially a former Confederate state where others very well might reasonably think the state in some fashion "endorses" the message here. At least, an easier case. Then, perhaps, a person might say a disclaimer alone would be enough, but not sure if it really would be.

Anyway, the overall concern might be enough that a limited content classification in this respect would be acceptable. ] 

Meanwhile, in Germany. 

The Ever Wary Mets Fans

Some exciting Mets game of late with a couple hard losses (they were no-hit and in another case a misplayed double play was key to blowing what looked to be a great win). There is some exciting young pitching and new closer and mixed offense (and defense!) that is sometimes lacking. Seems somewhat familiar. Do think we need another player or two and nothing is guaranteed this early. Also, fear the Nats will at some point return to form. Not doing enough when the season is there for the taking will come back to bite us.

Further Constitutional Thoughts

Interesting look at voting rights (including of blacks, sorry Taney) in 1780s N.Y. I covered the DOI book in the past; interesting discussion of her technique, which might be called "Danielle's Eclectic Thoughts."

Decision Day & Other Constitutional Concerns

Update:  Talking Points Memo, etc., has some good coverage on the racial identity story discussed below. SCOTUSBlog has a view from the courtroom segment that covers a bit of amusement that we have missed given there is no audio or video of opinion announcements.  Again, what is the reason for that? The reasons applied to oral arguments do not really apply, especially since there we have transcripts.

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First, I appreciate the citation of my comment in another blog post regarding the use of per curiam opinions. As noted, it is the use in that specific case that really concerned me. The usage in general is another matter and the discussion cited and expanded is of academic interest generally speaking.

As to the merits of the abortion opinion itself, this video is helpful.  It is of limited relief, but it should be noted that the opinion is not a total loss -- the district opinion rulings is upheld in a limited way to help abortion providers.  This underlines the breadth of the law in question as well as the rearguard efforts in dealing with them -- some success is better than nothing in most cases.  As are denials, such as the ultrasound law struck down on free speech grounds with Scalia (for whatever reason) being the sole dissent.  Again, an underused approach on the SCOTUS level (leaving aside Rust v. Sullivan),  Casey briefly dealt with this:

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. Cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

The opinion there on substantive liberty grounds notes that "If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible" in respect to various information required to be provided.  The woman can be assured that "the full consequences of her decision" will be protected, which is also used to defend waiting periods.  The same thing is alleged to be the reason for use of mandatory ultrasounds, but the lower court here thought it just was too blatant here.  The limits of this rule is unclear, except that it is somewhat more flexible then earlier cases.  Still unclear. 

Moving on.  Today was another Decision Day for SCOTUS though the "big" cases aren't quite here yet.  SCOTUS trivia seekers will note today is the day (unless not joining a footnote counts) that Justice Breyer dissented for the first time this term.  Double action -- in a bankruptcy ruling and one involving the proper procedures required to be on notice why a non-citizen spouse [is not allowed a statutory right to stay in the country.  ScotusBlog etc. can be accessed for more information, but my immediate concern is why Chief Justice Roberts felt a need to join Scalia's overly restrictive due process "liberty" discussion plurality opinion (not even controlling, given Kennedy/Alito had the most restrictive to obtain the votes position).*

Finally, though it is somewhat separate, I'll include Veep and John Oliver here as well since they do touch upon constitutional concerns.  Both were good episodes though sorry John, that mistaken map joke is getting old.  Veep ended with an apparent Electoral College tie though we just might have the possibility of court challenges and even disloyal elector opportunities.  The possibility of the v.p. candidate becoming President was offered and if no presidential candidate is chosen, he does become acting President with the next step somewhat unclear.  The veep being a member of Cabinet is also interesting. A member of the legislature (shades of Cheney's claim?) cannot be, but who took Cheney seriously anyhow.

As to Oliver's torture segment, very good, including some wicked use of Helen Mirren narration (the Peter Rabbit bit ... ROFL). It added the usual argument that torture simply doesn't work. I don't believe that. It very well might in certain cases. Let's be honest about that. There are ways to show this -- people have via torture told information that was found out to be true. Let's say a mobster using it to get information.  This doesn't make it right. It is still wrong & the fact that as a whole it doesn't work well even on a sociopath pragmatic ground is true enough. The examples given by John Oliver here show this. It also causes blowback. So, along with it being against our basic values, torture doesn't "work" in the end.

Finally, John Oliver made a passing reference to this controversy, which until then I missed -- just too many "things" out there, you know?  She has stepped down though has yet to admitted her overall choice to "be black" is a problem.  As the article suggests, however, she doesn't appear to have been truthful in the specifics and it is unclear just how consistent she has been.  Still, it wouldn't be the first time a "mixed" person identifies differently in different situations. And, I'm unclear exactly the "rules" here.  OTOH, as this NPR story notes, this isn't merely the case of a very light person with a black grandfather or something.  She rather blatantly "became black" in certain ways and there is clear evidence that she did so in deceitful ways. 

The matter provides much fodder for discussion and her family outed her when she made an allegation of being a victim of a race based hate crime.  But, she seems a rather atypical cases, so don't know how much we should really rely on her to send some sort of message. If some college does not want to count people like this when determining "pluses" for placement, which will come up in some other context as well, fine.  No rule is going to be totally "clean" there and other cases of people in leadership roles of various types, liberal or conservative, with created identities can be found. Still, just what does "being black" mean?

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*  The distaste the plurality has with around a century worth of substantive due process protections really makes me surprised that Chief Justice Roberts signed on to the opinion given Alito did not.  The breadth of the plurality leads me to feel it warranted to add on this footnote, partially as a reminder of the alternative vision out there from Scalia-land

Was such a broad rejection of the "liberty" in question so necessary when a narrower way to deny relief was necessary, Chief Justice?  Scalia speaks of a "artificial world of  ever-expanding constitutional rights" that "this Court has seen fit" to protect and have "indulged a propensity for grandiloquence when reviewing the sweep of implied rights."  And so on. 

There was some suggestion in the commentary [as Chris Geidner noted on Twitter] that the plurality did not recognize a "right to marry."  It did note "right to marry" precedents and argued that the right to live with one's non-citizen spouse in the U.S. did not fall within its contours. And, Justice Thomas most probably would deem it a privilege or immunity of citizenship (how much the non-citizen spouse changes things is unclear), while I have no reason to think CJ Roberts doesn't support a right to marry either.  But, the plurality did define the "liberty" historically protected by the Due Process Clause narrowly to basically mean freedom from restraint, not marriage itself.  In effect, bare precedent saved the day there and overall concern of "stretching" is clearly shown.

Finally, the much repeated rejected Scalia narrow historical approach was sadly joined by CJ Roberts here.  For instance:

While noting that modern "equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Such a narrow approach in which decades of practice is "all too recent" to matter for due process purposes is rightly rejected by current precedent.  Again, especially with Alito not joining in (he more strongly against a right to same sex marriage in Windsor), how much this tells us about the upcoming SSM cases is far from clear. And, the right to live with your non-citizen spouse in the U.S. (or to have a right to notification on reasons why you cannot), non-trivial as it surely is, is different from not having the right of to be married at all.  Still, makes you go "hmm."

More here. The fact the wife is a naturalized citizen and Afghan refugee only adds insult to injury.  As noted here, but not apparent in lot of coverage (hate that -- so often to me obvious questions are left unanswered), they continue to live apart, as they have since 2006.  Sanctity of marriage indeed. 

Sunday TV (After Mets Made Up For Yesterday)

Good finale with some touching moments actually that ended with a 269-269 tie (hey! it's the booster from FNL as the other candidate!). John Oliver was good too, including using some Helen Mirren audio in a torture segment that ... seriously ... was ROFL funny at one point (had to do with Peter Rabbit, going horribly wrong). Good material, but you know, it might actually work. Sometime. Unclear when. With blowback. And, it's still wrong.

Fleshing Out The Rationale For Privacy Rights

One concern for me over the years is that we have a "right to privacy," but there aren't too many cases where it is discussed in depth. The matter is basically taken as a matter of course, precedent cited, maybe a quote from Brandeis' dissent in Olmstead.  I don't think the substance of the matter is even talked about that much in Fourth Amendment cases, which tend to be a matter of applying some rule or dealing with some fact situation.

The 1920s cases of Meyer and Pierce are early privacy cases, part of various cases with related concerns involving educational regulations that were motivated by WWI and other topical concerns. This includes preventing certain schools from teaching in a non-English language or requiring parents to send their children to public school.  These might now be understood as freedom of speech or religion cases, but  they were expressed as general liberty cases:

Without doubt, ["liberty" in the Due Process Clause] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Various cases were cited though other than economic liberty cases am not aware of  cases where state laws were struck down by the Supreme Court as a violation of such liberties before that time.  Nonetheless, it was not novel to deem marriage and raising children as "liberties" protected from state violation by court review if the regulations were too unreasonable.  The two cases, as usual for Justice Reynolds opinions, are not overly expansive.  But, Pierce does summarize:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Meyer contrasts what another regime set forth:

In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.

This has shades of Justice Douglas' dissent in Poe v. Ullman.  It suggests a type of structural concern, here not separation of powers, but of liberty itself.  "Liberty"  in this country provides for a certain zone of freedom, including for parents in the raising of future voters.  This is not just a matter of freedom of speech or religion, but a matter of parental rights that also reach to individual liberty generally.  They are not mere "creatures of the state," but have a zone of privacy and autonomy that the government must not violate without good cause.  As noted:

It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.

This is somewhat conclusionary at best and two justices dissented.  But, the value of showing your work here does not negate the wider point.  As Justice Douglas wrote more than a decade before Griswold regarding the "liberty" of a right to privacy:

The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.

And, just like Congress has a "necessary and proper" clause to help them out to further enumerated powers by doing things not expressly allowed, the Ninth Amendment reminds that rights are present that go beyond those enumerated.  When determining what these are, you can use various techniques such as  "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (pursuant to changing developments), those necessary to further enumerated rights and general rights that are fundamental to liberty.

Privacy overlaps here.

Loving Day

Today's the 28th anniversary of the recognition of the right to marry an interracial partner and the eighth of the surviving Loving supporting same sex marriage equality. And, a few days from NC allowing religious exemptions to state magistrates in carrying out marriage laws. Religious exemptions shouldn't burden third parties. The law doesn't just apply to same sex marriages, but the timing shows that was the concern. Problem either way.

Please Give Blood

It's easy and you get free juice and cookies.

Texas TRAP Law Upheld

Through § 9, the State would prohibit the most commonly used abortion procedure in the country and one that is safer, with respect to maternal mortality, than even the continuation of pregnancy until normal childbirth, and would force pregnancy terminations by methods more dangerous to the woman's health than the method outlawed. As so viewed (particularly since another safe technique, prostaglandin, is not yet available) the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional.

This was but one provision at stake in an early post-Roe (its companion case starting the ball rolling) that the Supreme Court had to decide was legitimate. As noted in the Justice White post, one criticism was that the Supreme Court was setting itself as an "ex-officio medical board" or something.  The argument had some force -- the lower courts had loads of cases where they had to judge medical decisions usually left to the political processes.  The problem is that there is clear evidence of lack of clean hands here -- special rules are put in place for abortion specifically with the clear intent and effect of burdening what is a constitutional right.

Planned Parenthood v. Casey loosen the strings with an "undue burden" test as well as replacing the trimester scheme (only basic medical regulations in the first trimester and only medical related regulations in the second, children and funding treated somewhat differently) with just a viability line.  This as intended open the gates to lots of more regulation, including regulations particularly targeted to abortion providers (TRAP laws).  Such laws under current law are not presumptive unconstitutional (like "invidious" discrimination, sometimes you have to remind people of this fact -- saying it is "constitutional" full stop is like saying pre-Brown segregation laws was such) but can be if an "undue burden" on abortion rights.  "Undue burden" is "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."  The "effect" part is of particular importance and the same duo concern was cited in the Windsor ruling striking down the federal DOMA.

The test should have some teeth and various lower court rulings did strike down some laws.  SCOTUS (as seen at Oyez.com) dealt with a couple laws by per curiam, but only two cases really applied the new rules. Two different courts, depending on if O'Connor was there, struck down/upheld barriers to a particular abortion procedure without a health exception.  The latter case left open as applied challenges if health could be shown to be seriously threatened. The other case made sure a state law involving parental notification did not have an exception for emergencies.

The current slew of TRAP laws, abortion a prime target for Republican legislatures that for whatever reason are found in a majority of the states (a depressing thought we are sometimes reminded of when these things or voting rights matters come to the fore ... and ACA battles) though by now you would figure they would have run out of new options. Nah.  We have 72 hour waiting periods, ultrasound laws and various laws veiled as health measures that overwhelm clinics with asinine requirements that would have in another day repeatedly been struck down.  Much harder these days and the fact the justices stayed part of a Texas law is pretty notable though really of limited value.

Said law was basically upheld the other day in a per curiam ruling, it being unsigned something of an insult to injury.  The effects this has in respect to real life access to what is after all currently a constitutional right of some importance is suggested by this:

The only remaining legal abortion providers in Texas are located in Houston, Austin, San Antonio, and the Dallas-Fort Worth area, with no legal abortion providers able to provide care in the half of the state that lies west of Interstate 35.

Texas has a population of 27 million and has the highest percentage of uninsured adults in the country.

A person in the comments to one of those links noted this will lead to people dying, which a reply noted is thankfully not likely given illegal methods (including abortion drugs, I gather) are safer.  The reply thought the increase of "more children needing state assistance, often unwanted and potentially neglected children" was the more notable concern. Perhaps, but sadly, I'm not convinced the law will not lead to some deaths, and some unnecessary harm to women's health, use of illegal abortion pills and so forth not foolproof.  And, the result will lead to some horror story that will be used by anti-abortion choice groups, very tear-eyed, as proof that abortion is just so unsafe and more regulations are needed.

One issue here, which helped to lead another court to strike down some comparable provisions, is that the law will basically require many women to go out of state (or country, I gather, in border areas -- fear not! Mexico allows abortions in various cases).  This was cited as a reason the law was not an "undue burden" in that case but (such as was the case back in the day regarding integrated law and graduate schools) the court held that each state has an obligation to protect constitutional rights. A state "may not shift its obligation for established constitutional rights of its citizens to another state."  That is sort of the point of the 14A -- national rights though some seem to miss the point.

The matter will be appealed though the chances they will have in the en banc court as well as the Supreme Court is unclear.

ETA: It's a calculated gambling in regard to appeals in part because a Mississippi law struck down (one clinic in state so might be even more blatant) raises a conflict and is coming up for review (for possible action) by SCOTUS. So, you have a split of some sort and if SCOTUS is interested, they would take it either way.  And,  showing them (particularly swing justice Kennedy) how serious the regulations are can be educational.  OTOH, it's hard to tell, and they have mostly avoided abortion cases except for a federal law with particular emotional valence for years. 

[I think I'm using "valence" right -- when you have a chance to use a word like that, darn, you have to take it.]

Missouri Executes Man Who Killed His Girlfriend And Her 2-Year-Old Daughter

For the brutal death of his girlfriend and two year old (likely the clincher), though four justices (yet again not saying way) would have granted a stay, Richard Morris was executed today. His daughter by the woman was three months old and was unharmed; she grew to love him. A clemency petition including words from her was turned down; she's a victim of the murder. Execution of this mentally unhinged person did not further justice much.

Mets Somehow Are In First Place

Pretty sad looking team at times. Being no-hit by a rookie doesn't help.

Justice White and Abortion

The 50th year anniversary of Griswold v. Connecticut has resulted in various discussions of the case on blogs, including concerning the importance of effectively securing the right by means of insurance and so forth.  I have discussed the case here over the years. The case and its principles is a key linchpin in various areas including reproductive liberty, intimate association and general privacy / autonomy.  The various aspects of the case and avenues (such as gender equality) largely uncovered by the opinions themselves provide much room for conversation.

Justice Byron White concurred, fitting it into the "liberty" of "to marry, establish a home and bring up children." Parental rights, including of unwed fathers, was reaffirmed by him for the Court this time in a 1972 case.  Quoting Justice Frankfurter, he argued that such rights "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements."  When the Supreme Court protected the right of unmarried individuals to have contraceptives, he decided the question on narrower grounds, but later accepted the point as a matter of precedent.  Cf. Justice Scalia who accepted the natural right to raise children, but not as a constitutional right that judges have the duty to protect over legislative denial.  Justice Thomas disagreed on that front.

Justice White was wary, however, in applying this overall right in various contexts. The most infamous is his majority opinion in Bowers v. Hardwick ("facetious" to apply it to homosexual conduct; I use the term loosely and a bit warily since it is fairly inexact but their is probably some value in it).  The opinion avoided the question of marital sexual freedom and the Court had no clear opportunity to address unmarried sexual conduct, avoiding various controversies in that area. But, he also dissented in a case involving a grandmother and her grandchildren.  And, abortion.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

Justice Rehnquist had a more limited view of "liberty" and "equal protection" than the others, so his dissent was unsurprising.  But, Justice White's brief and rather crude dissent (e.g., what women has an abortion "for no reason at all" unless that is code?), alleging he could "find nothing in the language or history of the Constitution to support the Court's judgment," is something else.  There is to the objective eye something of a personal distaste here.  It is a conclusionary piece of bare assertion, noting I don't like the word "assertion" when there is actual "arguing" going on.  If the scope of opinion and its progeny concerns him, okay; the minutiae and judicial second-guessing involved particularly regarding a range of medical matters is open to some debate. And, you did get a sense this sort of thing influences his vitriol (see also, e.g., The Brethren*). 

But, Justice White goes further, and unlike Justices Rehnquist and Scalia (and somewhat like Justice Thomas, whose support of parental rights can be explained by his originalist views)  does so while supporting various types of privacy rights, even in unconventional cases. Also, you wouldn't know it from his dissents, but some beyond the scene accounts of Roe v. Wade suggests he was willing to accept some sort of "health" exception and it very well might have applied to rape (fetal abnormalities? who knows).  White concurring in Roe (nothing but life exception) while dissenting in Doe (various exceptions) would have been much more reasonable. And, interesting for that matter.

He and Justice Stevens went at it more substantively in a 1980s case in which White provides a more nuanced argument.  As Stevens noted, Justice White is no originalist and recognized that constitutional values beyond bare text are at stake, values for which the particulars (see, e.g., segregation) might change over time.  Likewise, though his dissent at times hedged on the scope of his acceptance of precedent, White supported a right to access to contraceptives and related matters.  And, if anything (as RBG has noted), he was more supportive of gender equality in some cases. So, what is different about abortion, noting how the facts on the ground there changed over time?  Justice White:

However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. [Note expands on this.] Accordingly, the decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification.

Justice Stevens assumes, without discussion, that the only logical reason to treat a fertilized egg differently here is "theological," but on this front Justice White has the better argument.  In the Webster decision, Stevens deals a bit more on the religious dispute over this question.  Still, there is possibly a secular reason to draw the line there.  Stevens is right however to say there are "nonarbitrary" lines to draw all the same -- it's a matter of debate and deciding various matters.  He cites, e.g., the long section of Roe v. Wade that discusses history and so forth.  The fact that a fertilized egg "bears in its cells all the genetic information" of humans isn't by itself enough here.  Justice White in effect begs the question.  And, once you change this assumption, his argument that the viability line is arbitrary also loses much force.  The right to reproductive liberty continues to have force after fertilization forms "an entity" with human genetic form and continues to some point, however determined. 

White's dissent has various rhetoric popular here involving overreaching courts but again given his philosophy, it is really a question of degree. What is special about a fertilized egg here?  Is involuntary servitude generally acceptable to save a life?  Is some harm to third parties conclusive on denial of rights such as the right not to donate blood? And, the fact a constitutional "person" is not at stake here is of special importance too, since you have the additional burden of justification of burdening rights of constitutional persons to help non-constitutional persons.  Yes, rights can in various usually limited ways be restrained to protect animals or even property. But, would Justice White use bare rational basis scrutiny for a law that severely burdens health and more to protect a dog or tree?  This is not about a grandmother needing to move to raise her children together.  And, "Justice White" can be a fill-in for various others who accept some degree of privacy rights but draw the line here.

Justice White is correct to note that it is not inherently "religious" to protect human life, but that doesn't save the day.  The opposition very well has a sectarian flavor and the question greatly splits religions.  He notes it is unfortunate that the anti-abortion laws in effect favor certain beliefs, but given everything else, this underlines why the choice should be left open to the pregnant person.  There are constitutional rights here given to the individual, not left to the legislative process that can, if it wanted to, supersede the rights of the individual.  This alleged flexibility underlines (as Stevens noted) the interest in prenatal life here need not be deemed course changing.  And, why stop at conception?  We pass laws to protect the lives of humans before conception too.  Likewise, again rights affect third parties.  Raising children after all involves children. 

The "all or nothing" flavor of his position is not convincing. It would have been more so -- if still open to refutation since a person has rights that trump a Good Samaritan obligation of this nature as well as other concerns such as gender equality -- if he balanced interests.  Justice Stevens noted how it makes sense to treat a fertilized egg differently than an embryo, fetus, viable fetus and live child -- the developing entity changes in character.  How exactly this balance should run is a great debate but again various "non-arbitrary" reasons can be provided to show how the fundamental right of bodily autonomy etc. covers abortion rights at least early in the pregnancy.

This would require some value choices applied to our constitutional tradition but such is how things go.  Disagreement shouldn't warrant this much talking past each other.  And, the overall principles found in Griswold should have broad reach, not arbitrarily limited in part because of unfleshed out assumptions that do not withstand scrutiny. 

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*  Justice White is seen by some as praiseworthy as a pragmatic judge but such a person also from time to time draws lines not "arbitrary" as such but with refutable assumptions, not always clearly spelled out.

For instance, accounts note he rejected Justice Blackmun's original draft opinion in Roe v. Wade arguing that the law in question was "vague."  The law in White's opinion was not -- it clearly only allowed abortions for when the life of the woman was at stake.  Vagueness did not show up in the final opinion.  But, the court below did hold it vague, something flagged by Justice Douglas in another case, one where "health" was given a wide definition in this context.  The line between "health" and "life threatening" is arguably vague, especially for a doctor who by nature focuses on "health," not a certain unclear zone of "really serious health."

If White accepted some sort of health exception, where exactly would he draw the line there?  Would his line be the same ("no nonarbitrary") in the first week as in the last?