Third Amendment and the Limits of Narrow Interpretation

And Also: An Onion article in honor of the (summer) season finale of The Fosters, the marriage episode. A problem with the court scene. And, don't really like the cliffhanger -- poor Jude will be crushed! I can accept it, but it still is pretty stupid on Callie's part to run away like that. Still, she is sixteen.

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now, in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says,

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Justice Jackson in a separate opinion in Youngstown Sheet & Tube Co. v. Sawyer is one of the few citations of the Third Amendment found in the Supreme Court opinions. Griswold v. Connecticut provides it merely as part of a string cite of various protections of privacy found in the Bill or Rights. The dissents in Poe v. Ullman cite it along with the Fourth Amendment as part of the protection of "the privacy of the home," so it is not seen only a "guarantee of the preference for the civilian over the military," but also a privacy protection.

The only apparent ruling that truly relied on it in the federal appeals court is Engblom v. Carey, a ruling only about thirty years old, and the claim was so novel that qualified immunity applied. The opinion and the amendment came up when a more recent case that might have Third Amendment implications was addressed here. The post suggests that it should not be incorporated, that its reference to "soldiers" in fact only applies to the federal government. That is not the fundamental freedom that should be incorporated into the Fourteenth Amendment.

The matter was addressed in comments by me in particular, but this is a case where the limits of originalism pop up. The professor in question has focused on original understanding before, writing over fifty page papers that others dispute to determine what "seems" to be the meaning of such and such a thing. Come on.  [See also, this on the reach of federal equal protection, something a few smart alecks sometimes lash against, since contra to long-held precedent, doctrinal or textual niceties allegedly make federal substantive equal protection review moronic.]

I am not, you know, a scholar about these things, but after a couple decades, yeah, do sort of know some basics. At least, enough to know there are complexities and it is often a choice where to take things, especially pursuant to current understanding. The piece, e.g., argues that "troops" and "soldiers" implies a federal reach, since states don't have "troops." But, put aside that Art. 1, sec. 10 is not an absolute bar.  Why shouldn't "soldiers" here be interpreted broadly?  The Engblom opinion in fact doesn't do much heavy-lifting at all.  But, how about U.S. v. Miller?

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

The Third Amendment works applied to modern day police (which act more like soldiers did in that era) and state guard type troops. Why would even civilians serving a militia role have the ability to quarter in someone's home? The civilians are acting like "soldiers" on that occasion.  "Troops" is not the word used. If a case about the militia and Second Amendment can use the word "soldier," we can here too. What is the point of being so literal and specific?  Being forced to keep state agents in one's home probably can be seen in most cases at least as a sort of "seizure" of the home or a temporary "taking" or a violation of the privacy of the home protected by the substantive due process.

Or, we can honor the spirit of the Third Amendment.

Colibrí

I found this book about a kidnapped Guatemalan girl, and though it is written for a middle school audience (in the voice of the twelve year old protagonist), adults can appreciate it as well -- at times, it seems like she is narrating from when she is older, though it is written as if the events occurred recently on an ongoing basis (tense is sort of strange in fiction that way). Good book with a flavor of the place and culture. Bit scary for kids.

"How Not to Convince Republicans to Address Climate Change"

Prof. Adler a conservative/libertarian who supports the need to address climate changes criticizes a response by some old time Republicans (who he wonders should even be called that any more).  His support is appealing, makes him seem approachable, but his mind-set still is problematic. It is like his concern for blocking judicial nominees and refusing (even when one of his fellow bloggers used the word as I pointed out more than once) to use the word "filibuster" for some of the actions.

I responded myself,* including addressing an update. One thing I noted, e.g., are that the people in the op-ed are Republicans, replying to someone else that they had various leadership roles in the past.  Also, putting aside Adler's concern about the river matter (see below), the op-ed didn't only reference that.  The link above can be used to read my responses.  An update led me to respond again, which will be re-published here, since I think it might be the most important part of the discussion on my end:

"The Right" (I stereotype here a bit akin to suggesting the op-ed writers aren't really "Republicans") doesn't really appear to "believe climate change is a problem" that is worthy of much concern, that is, one that would require them to focus on as compared to other things, or even understand it is one of those things government power should be used to address, akin to abortion or use of executive power against national security threats. So, that's an uphill battle.

For instance, a carbon tax is suggested. But, the current Right in the House of Representatives are of one mind -- taxes are bad. This is one reason why any hope for a bill seems to require some sort of pork -- in reality, Republicans in the House still care about that sort of thing. So, realistically, though Prof. Adler would on principle find this distasteful, it very well might realistically be part of a bill, if I thought there was a real shot at any sort of legislation in that department. And, like the PPACA, the first step might be imperfect. But, like health care, climate is a long haul. You need an opening & it will be a decades long journey. Any legislation unless we change how the Congress works will particularly be imperfect.

Some have put forth a bit of hope, since there are some of a conservative mind-set who see climate change as a religious issue -- it is part of God's duty to us to take care over those things we have dominion over or some such thing. That would to me be one approach: find allies among the Right's base. It would be helpful, yes, to use the Right's usual buzz words. For instance, a nod to "statists" or some put-down of "Science" (you know, Al Gore types). As to "demands tangible results to actual problems," the op-ed actually addressed that, even if one of the examples might be a trope. That is, something more symbol on some level than fact. But, tropes are used and a successful argument for the "Right" is likely to include one or more too. So, whatever works there w/i reason. I'm being a bit cynical, but yes, while pushing for solutions, flag possible bad ways to do things. Say there needs to be something done, and don't you want the "right people" to do it? Do nothing, and you know who will do it!

But, ultimately, you have to convince the Right that there is an actual problem worthy of some sort of real government regulation. Some here simply don't think so. Once you think there is a real problem, let's say crime or education, there is room to compromise and work on solutions. So, maybe vouchers will be part of the government's answer. The thing to do, I guess, is find some sort of entry level. Again, some use religion. Another path would be to suggest it is a way to attract certain types of future voters. This has influenced some to think immigration reform is necessary. Some, as some on the left already are doing, suggest there are free market advantages to addressing climate change. etc.

[end] I have read up on climate change some but don't claim expertise on the matter or the best approaches to address it, either scientifically or as policy. So, it is useful to read about the whole thing and try to understand as much as one can. Those in the comments, perhaps a tad overly cynical, suggesting "the Right" (apparently "Republicans" might not be members of it) are not really listening have a point. The concern that you have to speak about it to them in the right way is correct. But, it is not as much as talking about "statists" or something. It is ultimately about convincing Republicans that there is a reason, pragmatic or otherwise, to do something in the first place.  And, the result will be imperfect.

Prof. Adler, however, continually taking selective potshots at PPACA, including how it was passed without a planned conference effort to iron out difficulties, makes me doubt his awareness of the big picture. The posts never really address the reason why Congress acted as it did there. The Republicans, with the unfortunate addition of Scott Brown, blocked any ability to pass a new amended bill! And, he here takes a potshot at one of the op-ed writers for opposing Scott Brown in lieu of Elizabeth Warren.  Why are old-time Republicans supporting such people?

Adler is ideologically opposed to PPACA, but here is more sympathetic to the ultimate cause. Fine. But, the big picture is on some level the same.  The procedural and ideological roadblocks of the Republicans (and others, to be fair and complete), not merely arguing the case the wrong way, must be addressed.

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* A shorter response in the comments addressed someone who (assuring us that s/he accepts the mainstream position that climate change is happening) thinks there is so much "political capital" invested in defending it that if evidence arises the other way (mind you s/he doesn't think there is), the scientists will not accept it.

The concern is ironic, since without partial blinders, it doesn't make much sense. The scientists already put their work on display, skeptics and others who or whatever reason support them (see also, tobacco companies) will be there and there surely won't ALL not honestly and ethically examine new evidence on global warning.

It also was pointed out the attacks are seen as attacks on science itself. This is true on some level -- it arises in any number of contexts and has some degree of merit in many of them -- but overall, you have to rely on the things noted to be safeguards. Only something of a conspiracy theory approach really works here unless there (not present here) is some reason to fear significant information is blocked or hidden by some small group.

Pioneering civil rights attorney Julius Chambers dies

A civil rights hero, who lived the history and fought to point it in the right direction. He was from North Carolina and worried about new restrictive voting laws. The fight continues and his style -- quiet, smart, powerful -- is an important means to address it.

Mets v. KC etc.

Mets split two trudges vs. the KC Royals thus far -- you know, their usual rivals. In both games, KC pitchers got a hit, one key to a three run inning. Chen did pitch in the NL, but still. The relievers got 18 of 19 out today. The one the winning run in the 12th. Oh well. Meanwhile, can A-Rod go away? Some, apparently seriously, say he is being mistreated by MLB. Sorry, not buying it. MLB aren't saints, but of the two ...

August Doldrums

So goes the Mets. Their closer's neck hurts and he has been out for a few days. Their All Star 3B got hurt racing for first, hurting his achy hammy, the throw airmailed anyhow. Led to their young newbie starter, Zack Wheeler pinch running. It was bound to happen eventually with the team struggling for runs, every base counting, but the immediate cause was a blown save by their fill-in closer. Another reliever is out for the year, probably.

Criminal Justice Quickies

Another article about states running low on execution drugs. I think some solution will be found for Texas at least. Others states might let it go; Texas likes executing people too much to not manage a means to get in their quota. "federalist" here really lets go against the California prison order. Such venom is a wonder to behold. Have been a victim of it, but apparently, down to an octogenarian Supreme Court journalist, I'm in good company.

Supreme Court Watch

Couple notable orders, prisons and adoption.

Imperfection is a feature, not a bug

Were the drivers involved in these cases, to one degree or another, knuckleheads? Absolutely. (I include myself.) However, the world is full of knuckleheads, and if fixing mistaken directions can save them from themselves, it seems incumbent on the navigation companies to fix them.

Exactly. Any system has to take into consideration humans are human, including per a recent debate I had, the idea that the pope can be totally infallible about anything.

In the Family

Birth, genetics, who looks like or acts like whom doesn't matter. A family is a group of individuals who love, hate, trust, question, need, console, and depend on one another as they grow and mature and learn how to give a little more, take a little less ... all in the same environment, whatever or wherever it may be.

-- "The Lives Behind The Lines ..." [Lynn Johnson]

The ABC Family show The Fosters, as does the network as a whole in a fashion (Gilmore Girls was an earlier show a "family friendly" group, usually a code word for conservative, supported*), suggests the breadth of the term "family." It involves a lesbian couple with the biological son of one, two twins they adopted and the two foster kids they recently took in. The drama includes the father of the teenage son and recently his grandfather.  It is rightly getting kudos as a gem of the season.

The title film is basically about something a 1970s Supreme Court ruling about an extended family reminded us not to do -- "close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter."  It was suggested to me by a reader some time back, but it has recently been available on DVD (had a short run locally, but missed it), so checked it out.  First time the DVD did not only have two discs (extras basically discussing the style of the film and its creation) but an oversized pamphlet that didn't fit in the case of essays by others. 

Very good film, the talent underlined by the fact the star ("Joey," which has a backstory to it) also wrote and directed.  It is amazing what goes into even the crappiest film out there, so a 169 minute effort like this is on another level even without it being so good. I admit to not watching it straight thru -- short attention span with the Internet and all -- but was never bored or anything. The film has a set pace, in effect as low key (if "low key" had a picture next to it, this guy would show up) as the main character. Little music and no montages that I can recall -- we get a feel of the characters raising from watching them have breakfast [the very title of another film on a related subject] and similar things.  Lot of quiet empathy.

The film not only underlines the complexity of family (the lead himself was the product of a foster home, he adopted the name of the person who became his dad), but of sexuality. The lead is a contractor of sorts and met his partner while working on the house of his and his wife (pregnant at the time). The wife dies and he is there to help the guy thru his pain and somehow something happens and they become a couple.  It occurs the other way too, of course -- a person running for mayor of NYC (you know, other than the jerk) is married to someone who at the time considered herself a lesbian.  Sexuality is not black/white, fitting here too since this is also an interracial romance -- Asian and white -- in Tennessee yet.

The sense of place (strangely, the credits has it being filmed in NY! did I read that right?!)  is important to the film, since it adds flavor to the process. An Asian with a Southern accent? Who knew such a thing occurred?  The film takes place in the early 2000s, so you think he would not have as hard of a time finding a lawyer after the aunt takes their son away (his partner died in a car crash, but never re-wrote his will, since people don't expect to die in car crashes). I would note that the scene felt like it might have been a mistake -- the way it happens makes her look like a total, I'll be crude, bitch. We don't see it, but it must have been very traumatic for the six year old son.  There was other ways to go that would still be pretty bad without a glorified form of kidnapping. You can understand why it was done that way, but it felt off when it occurred, dramatically so.  I guess there is more than one way to read the situation.

Anyway, check out the film to see a powerful (and heartbreaking at times) story and act of film-making. The top link can get you some background.  Lots to like, including his comment, amazed, that anyone would doubt he was the kid's dad. The supporting cast, mainly (I recognized one person in a small role) non-big names, were also excellent, especially the person playing the young son.  The guy who eventually becomes his lawyer also has a plum role and some plum dialogue. I can see the person who recommended this film saying something like he did. Thanks for the heads up.  Oh, since I know a couple, the scene in the classroom is great too.

ETA: The lawyer's little speech to Joey is a key moment in the film and an excerpt is even used in the trailer. The scene is excellent for various reasons, including how Joey is shot with a focus on the expression on Joey's face as he listens. It is a highlight of movie-making.

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* The show had some conservative aspects, which on some level should not surprise, since it is about a teen that not only had her baby, but who became a major success story through hard work and continued to pine for the father of the child.  I liked the story a lot in its early years, but in time, did feel it cheated the audience. And, the slut shaming of Paris really rankled. The character also became something of a caricature though overall that happened to others as well, including at times the leads.

Ariel Castro

Some people lack a certain amount of humanity, including those some might call "monsters," particularly sociopaths. Some seem poster children for the death penalty, but it won't only apply to the "no doubt cases." And, including when there is no death, there is a basic moral [comment] and legal rule. One even those whose life is to protect children have supported. Dissent is apparent and understandable. Glad he pled and we avoided the specter of a trial.

Rizzoli & Isles

AfterEllen loves this show for its lesbian subtext and TV Tropes notes various things about it can let people look past the writing. Yes. TNT is filled with mystery shows mostly about characters ("characters welcome" doesn't only apply to USA), just too much to expect the scripts to be consistently good. Monday's episode was though, the mystery's wrap-up still a bit lame. Surrounding parts done well, Rizzoli a bit less annoying than usual.

The Girl

A good film concerning a desperate young Texan mother who loses her child to foster care and tries smuggling Mexicans across the border, but it goes tragically wrong, and she has to deal with a young girl who lost her mother. "Making of" segment narrated by director. From the producers of the also very good Maria Full of Grace. Abbie Cornish (an Australian actress sounding quite Texan, speaking Spanish too) is excellent in the lead.

“Teaching Controversial Topics”

This short paper by a guest blogger at Concurring Opinions is an interesting read with various applications. Certain topics do have to be carefully discussed and "outliers" can be a problem, especially in the educational context. It is amazing how social expectations are so important in some cases. Note sometimes the "outliers" aren't necessary wrong.

Trade Deadline

Pretty dead really with few trades overall, so it is far from shocking or concerning that the Mets did not find anything worth giving up Byrd, Parnell or anyone else for. Closers aren't a dime a dozen anyway and Byrd (a bargain) helps team compete and youngsters develop now. Meanwhile, Lagares has great "d" and showing some "o" at CF. Nice surprise.

"Openly Gay Justice Nominee Goes Off Script to Thank Partner, Kids"

A bit old news, but it was re-aired on C-SPAN today. Also, with filibuster battles and all, let me note that I would seriously consider a great reduction on necessary up/down votes when dealing with assistant positions like this. OTOH, if truly an "officer," it is constitutionally necessary. So, stopping filibusters here is particularly important.

Bradley Manning

The "aid the enemy charge" was overreaching as probably is discretion-wise some of the other charges. The charges he pled guilty for provides enough chance to punish him along with what already occurred. It's gratuitous. His treatment was probably wrong there, if not as horrible as some say. What he did is rightly seen as criminal on some level.

The Fosters

Stef was shot, but is okay, and it brought forth flashbacks and a marriage proposal. Very good episode. There is, of course, a little wrinkle on the shooting to cause some drama.

PSA: Donate Blood ... It's Easy & Rewarding (with free snacks!)

"Let the Supreme Court Handle Appointments to the FISA Courts"

One little known tidbit is the role of the Chief Justice in staffing FISA courts and this suggestion that this is constitutionally (and otherwise) problematic is convincing. The Chief Justice is not akin to a President and here doesn't even have the advice/consent check. The solution in this case is open to debate; Senate confirmation might be best.

Disney "Flash Forward" Theme

A few Disney shows last night "flashed forward" in various ways to show the future of some characters. Not the first time they had a [yup!] united theme like this and like before mixed bag. Cute actress for teenage Charlie; the episode was okay. Shake It Up might have been the best. Still not liking Debby Ryan's new show.

Weekend Break

First, a quick cite to a 3CA ruling that rightly realizes for profits are different in respect to religious liberty than individuals. Even if you don't draw the line the exact same way, the result is sound. I just worry the USSC won't treat the contraceptive mandate quite so sanely.

Smashed

This was one of those films on my DVD list and found it on demand. It's about a young teacher who handles her alcoholism. The lead is very good and the film overall is decent, but seems a bit underdeveloped. Megan Mullally has a play against type supporting role and looks uncomfortable though that also is the nature of the character. Worth a look.

"Self-Defense" Laws

I think the Zimmerman verdict is probably correct and even your garden variety leftie have felt bad hinting otherwise. Still, not only should we not go the other direction (e.g., assume Martin is guilty), but it does raise serious questions, including on line drawing for use of lethal force. Then, there is someone who feels a car is worth more than a thief's life.

Weiner

Key problem here is that unlike say President Clinton, his record overall isn't that impressive. What did he really do? So, personal issues and respect [Julia Sweeney, e.g., was on Twitter in effect saying he comes off as a jerk.] is that much more important. Other than name recognition, not really sure why I should support him for mayor over a City Council President or other possibilities. At least, Spitzer (running for comptroller) was AG/governor.

Huh ...

Rosanna also has two brothers and two sisters (used to be three brothers and one sister) in show business.

Explanation. Just saw Tim Hudson get hurt in a freak injury in the 8th in the midst of him cruising during a 6-0 Mets game. [Suffered a right ankle fracture when] he didn't step out of the way covering first base. Don't recall seeing something quite like that during a game.

The Fosters

I'm up to date now, watching the latest episode, which was somewhat slow going until a violent cliffhanger. But, even here, the actors played their parts well, which is a telling sign of something good. The show's [Recaps here.] habit of ending while something is ongoing is a nice touch that usually works well. I know you: you are from Crazy Like A Fox!

Selling Caskets Not Quite Akin To Personal Traits

Some monks won a lawsuit involving a policy "granting funeral homes an exclusive right to sell caskets" and the state is asking the USSC to take up the case. The first link included various types supportive of the ruling, but I disagreed there (and here) -- in fact, it might lessen regulation, since various things encourage funeral homes to act properly here vis-a-vis anyone out there being able to sell caskets. Rational for 14A purposes.

Ohio Officials Ordered To Recognize Gay Couple’s Marriage

The matter has been dealt with here, especially in comments, but to summarize: states that selectively target same sex couples in ways not done for minors or first cousins are pretty easy 14A calls. Windsor dealt with the feds, but equal protection is a general concern. These rather sympathetic cases are the ladder pegs to full SSM recognition.

Mixed DC Circuit ruling in suit against FDA allowing execution drug importation

Big questions generally have a lot of small ones that can affect them -- look at the Prop 8 litigation and standing. So too the death penalty, discretion of the FDA to allow importation of drugs an example, given shortages. I think ultimately a way will be found around this, especially given there being no overall shortage of production of lethal items.

Supreme Court Watch

The Supreme Court scheduled three days to release orders over the summer and today was the first -- nothing seems notable. No, I'm not "Joe Doe." Death penalty orders continue as necessary and/or and special situations. John Paul Stevens also commented on Shelby. Now that Helen Thomas (RIP) has died, he has to up the "over 90" commentator role.

PS

The recent episodes were on demand, but found the first on YouTube, not the second. The DVD I just watched had a PSA against against pirating, including downloading indie films. I understand that, but question how far to take it, especially with television shows like this. Know about copyrights. Full low budget films and stuff sold for profit are pretty easy calls. Targeting kids for music downloads? Not so much. Still annoyed with all those false hits.

The Fosters Cover All The Bases

Catching up some more on The Fosters, issues covered include the morning after pill (including id problems), transgender kids, religious beliefs (a Catholic couple supported SSM, but slipped up -- contraceptives is the example to point to regarding dissent from doctrine; otoh, their teenage daughter was there) and biracial families. Checklist anyone?

Nice Girl Plays Bad

Maia Mitchell's new Disney movie reflects my image of her -- cheery girl. So, bad language alert, when her character in the series premiere of The Fosters not only was beaten up in juvie but notes the lead couple are "dykes" and references the "real" (not adopted) kid, it was just downright amusing. Sort of seeing Debby Ryan as a drug addict on Private Practice.

Letters from Skye

This is a poetic epistolary novel -- like an 18th Century creation, it is made up of letters. It involves a love affair surrounding WWI that affects things two decades later in WWII. Overall, I enjoyed it, but did not like an important plot point. Didn't ring true. But, very good first novel as a whole. Good sense of inner life, mystery, love and adventure.

Bloomington

I stop at a library weekends while checking some cats and stuff and often find a good DVD. Barely made it today, but was rewarded with this above average indie about celebrity, college student/teacher romance (with a bit of a twist) and more. Well done all around. One of the leads sorta seems familiar, but a check makes me think it's someone else I thought of.

ABC Family Continues Its "Different Kind of Family" Motif

Only know MM from promos on Disney, so surprised about her role in this more serious ABC Family with some other familiar faces. Saw two episodes so far and it's pretty good. 

"How Stand Your Ground Relates To George Zimmerman"

I dislike absolute language, especially when it clouds the situation, and suggestions that SYG had "nothing" to do with the verdict is an example. [I should read that guy more.] Sen. Durbin's scheduled hearing is a good move. Gun ownership requires due care, reasonable regulations and balanced self-defense rules. SYG rules skewer things.

Dick (No Not That)

An amusing and smart satire ("you have been talking for 18 1/2 minutes!") about two teenage girls that get caught up in Watergate with a slew of familiar faces, including a young (1999) Ryan Reynolds. It loses a bit after awhile, as these things tend to do, but overall fun. There is a commentary track, but the overly sedate tone put me to sleep.

Elizabeth McGovern

Delaying the Employment Mandate

I do not find this "blatantly unconstitutional" or horrible, especially given the reality of the situation. Given some accounts, this is a good voice of sanity.

A couple things ...

An interesting angle -- discussion of the federal Community Relation Service's role in the recent Florida drama. The conservative/libertarian blog Volokh Conspiracy has had some good kumbaya posts on how slavery isn't libertarian. Note to neo-confederates. A bit of snark, but appreciated; still, with the Shelby ruling etc., let's remember the Civil War also led to expansion of federal power and other changes where agreement is less prevalent.

All Star Game

And Also: Got to say that Colbert has been a bit rough the first two times back, with two extended 'eh' segments.  The Fox News bit last night was amusing.  Syndicated t.v. watch -- great episode of Rules of Engagement at midnight (my time) on WGN, Timmy going to the psychiatrist to help Russell find out about himself and Jeff upset about someone eating off his plate. Jen also had a good bit involving a stripped shirt.  


Mets fans very well might see the team going thru five year cycles, more or less, with the 2000 World Series long gone.  Many, especially since we are reminded of it every time the guy pitches when the Cardinals come to town, might recall 2006.  Then, there were the two years of the season ending on the final day (cf. 1999, where the team needed an extra game to get to the playoffs).  And, a bunch of downer years where hope for the playoffs disappeared, though first halves had a tendency to be okay.

The team appears to be going in the right direction now, costly contracts finally coming  off the ledger, no really stupid moves made (a few expensive relievers were signed last year, but relatively speaking, not akin to money tossed down the whole for the likes of Bay or Perez or Castillo).  Likewise, each year appears to have some highlight. First, though he ended on a wimp move (leaving game after an at bat), Reyes ended his Mets reign with a batting title. Then, a two-fer -- first no-hitter and a Cy Young winner (not even the same person!).

And, now an All Star Game and young phenom coming into his own -- Matt Harvey, who started it at his home park.  The first pitch was made (after some stretching) by Tom Seaver, who had a health scare recently, and later had a nice little interview.  Harvey might have had a bit of nerves, giving up a hit and hitting a batter, but then settling down for a good two innings of work.  There were only three hits by the NL (mostly boring game), two by Mets (one former -- Beltran -- one by Wright), the third by Paul Goldschmidt, Votto's replacement.  Note more than one local whined about Harvey skipping a start for an "exhibition game," as if it mattered he skipped and game. A co-host of a local sports show today noted that the game was probably the second most important start of his life thus far.  Yeah.  So, yeah, skipping a game vs. the Pirates didn't matter.

As noted, the game as a whole was pretty boring, the pitchers not giving much up at all after Harvey's starting hiccups.  A few moments, including Rivera's 8th inning appearance (remember, he started as a set-up man), are notable.  One pretty impressive was -- after chubby (Fielder) chugged a lead-off triple -- Grilli holding the AL scoreless in the 9th.  Kimbrel btw had the weakest inning -- three hits, one run. Lee didn't have a good inning either. The AL pitching was impressive. A great play by the third baseman (I believe Machado).  Rivera, the sentimental choice, was MVP, but winning pitcher Sale (two innings, no hits) might have earned it.

The Mets or NY fan was more interested in the start and finish, Harvey giving you two and Rivera giving a finale.  AL gets home field advantage.

Cutting The Mustard

I have overall enjoyed (found her latest a bit weak) books by the author of this examination of an employment dispute at BU, which in a two hundred page tight package told a personal story of personal conflicts while mixing in basic affirmative action theory and legal goings on.  Written in the mid-1980s, it is still quite relevant, especially as a defense of AA. An important catalyst in the (mixed blessing) story recently died.

‘Stand Your Ground’ Laws Expanding Protection for the Aggressor

Worthwhile read.

Free Quran

A recent hit to my blog went to a discussion to "religion," so it was apropos that my free Quran came today. Yes. I have never read the book, though have read books and took a couple classes that dealt with it and the religion as a whole. So, it was useful to find a website that provided free Qurans to converts/non-believers. The translation has received bona fides and it's a nice pocket sized version with helpful footnotes.

"Nuclear Option Averted"

Who really thought the "nuclear" option would actually be used? At best, mildly enthused here though let's see who the two replacements are. The abuse of the confirmation process opened up a possibility for real change. Mild win, but Rs already got a lot. See links for more.

"What Happens When We Actually Catch Edward Snowden?"

An interesting analysis.

Downton Abbey: S2

I have seen all but the Christmas episode and found it a good watch. Got your soap opera, WWI drama and comfort food (overall these are nice people). A few interesting extras. [Saw the final part ... a key thing finally happened after like eight years. If nothing else, characters here have a lot of patience. Colbert had an amusing parody.]

Rev. Joe: Complexity and Informed Knowledge Regarding Sexual Matters

This thread involves various attempts by myself and someone else (who I don't agree with exactly: an early abortion is not always, e.g., a "tragedy" imho) to explain the complexity of the abortion/adoption issue on moral grounds. The need to understand seems "bizarre" to some people, the overall tone and approach to me counterproductive. I find it sad.

What's On? Oh ... Zimmerman verdict

Especially with Florida law, I early on (before the trial and concerns about how the prosecution handled it) thought it possible that Zimmerman would be declared not guilty. Deep down, yeah, sorta think he's guilty, but being found so in Florida court is a bit different. It's a horrible case and hopefully something good will come of it. Ultimately, it is one case, if a recent archetype of various things. AMC had a Death Wish marathon on.

ETA: See, Richard here. I think that's quite possibly true.

Matt Harvey Drama

Reportedly, the Mets phenomenon and All Star (played at his home park this year) had blister issues and anyways the plan is to limit his innings. So, the management is skipping a start vs. the struggling/still leading Pirates. BIG DEAL. Everyone know the Mets aren't playoff bound. And, yeah, it's a big deal to have him nice and ready for the ASG, hopefully to start. At Citifield. The "message" sent is just that. No major disrespect to baseball purity.

Spitzer Gets Signatures for Comptroller Race

See my comment here and the matching article. More here. Spitzer is a schmuck. The main competition looks like an experienced pol well qualified, not doing it as some sort of personal crusade. I'm also not a big supporter of Weiner for mayor. He didn't do much last time and really doesn't appear to amount to much more now. He has name recognition.

Need a Lot? Get Rid of A Key Thing You Have!

There has been some talk about trading Mets' closer Bobby "the beard" Parnell, but not really sold. The Mets need many things. They have struggled with closers for years. But, one thing they seem to have is a young cheap one under their control. Let's trade him! For you know, a maybe. And, then we will have to find a closer again. Eh. Better wow us.

True Concern for Women's Health Is Good Public Policy

An article in the NYT and this discussion underlines that regulation of abortion providers is a real concern, but the selective anti-choice path of some who use Kermit Gosnell in a troll-like way (see, e.g., various posts at Mirror of Justice, to which I responded repeatedly with some spleen) is not the answer. Neutral medical regulation, not bigger game, is best.

"Senate Republicans Ratchet Up Fight to Block Obama Nominees to D.C. Circuit"

This sort of blatant partisanship makes the current breed of Rs distasteful to me.

The Note (I & III)

I liked The Note, a Hallmark film that ultimately relies on how much you like the two leads. I did and think they add to a mature superior drama. The third film is a bit watered down, but including a good performance of the struggling young mom to add a bit of realism, it is not bad. Basically a hour worth of good material in a ninety minute time though. Music a bit eh.

Pennsylvania Marriage Equality Case

The latest federal lawsuit raises the now quite familiar arguments (gender equality is included) and personal stories. The state appears to be one of the remainder without a constitutional amendment bar as such though legislative repeal seems unlikely. Unlike some, no fairly equal [possible limited win?] civil union option like NJ, if likely friendly in other ways. An outlier in the SSM friendly NE. Think a state amendment might be a better case. ETA: AG won't defend, but governor etc. still can.

Ramadan

Began yesterday. The most sacred month of Muslim calendar.

Camera in the Courtroom

I support the cause, especially the bipartisan nature, but might be biting too much to chew. How about starting with decision days or some such? What is the problem there? Or, a suggestion or requirement to test it out for a few cases?

PS

Well, last episode had dark. Almost gratuitously so.

Downtown Abbey

I am up to the final episode of the first series & the second is on its way. The third will take a bit of time, but in time for the fourth early next year. Can see why it is so popular. It's comfort food -- nothing really bad happened yet -- cushions some blows. Might do with more bite. Believe S2 will. Fan of Elizabeth McGovern in the past and nice she has a plum role here. She's around fifty and looks good -- good to have some maturity.

"When Leon Trotsky Agreed to Testify before the House Un-American Activities Committee"

Interesting historical trivia, including an expansive comment. Meanwhile, the U.S. Conference of Catholic Bishops supports voting reform, showing it doesn't just corrupt its brand via backward sex stuff. Really, keep with the stuff that matters people.

New Book Panel

I'm having problems finding a book that will "stick" the last week or so, but did find some good ones in recent months, a few found on the updated side panel. As expected, The Other Typist is being made into a movie. Keira Knightley will star. A few choice roles to fill.

Gettysburg: The Love Letter

A twist on celebrating the 150th anniversary of the battle -- an old Hallmark romantic fantasy about a miraculous correspondence through time with the battle as an important plot point. Jennifer Jason Leigh particularly adds some dramatic weight. Meanwhile, I'm late to the party, but liking Downtown Abbey so far. Hey, Elizabeth McGovern!

One out of Two Not Bad

I enjoyed The Riddle of the Labyrinth, a book about the deciphering of an ancient script, but found the author's first book (Talking Hands: What Sign Language Reveals About the Mind) much more of a trudge. The travelogue of sorts of a deaf friendly Arabic town was okay, if a tad repetitive, but the language discussion seemed more geared for specialists.

Rev. Joe: Mere Assertions

I liked Shadowlands, but only saw a bit of the Narnia films (didn't read them). Not impressed with this work. Not a fan of weak argument that draws webs from poor foundations. The stuff about marriage etc. also seems more than "mere" Christianity. [Agreed: even for a believer, this could be a trudge.] More criticism. [A few good bits, easy to read, but "cotton candy." At some point, bad argument is hard to read.] Might work for the choir.

Beating A Dead Horse: Selective ACA Concern

Distasteful metaphor but so it goes -- yet again, tried to get the contributors to face up to the selective nature of concerns about the contraceptive mandate. Hard not to just be snide, especially when petty potshots about Obama poll numbers are blithely ignored. Yeah, quite right you only addressed part of what I said. Such is the bloody problem.

Residential Tourist

For the holiday yesterday, I took a trip downtown to the Staten Island ferry (free), and staid down there long enough to see the beautiful sight of the harbor at night. A nice trip, including seeing some rental bikes, the East Coast Memorial, some nice on the eyes concert folks and so on. Few fireworks seen though. The bows that lit up were particularly cute.

Gettysburg (and Vicksburg too)

First off, can do without this heat. Anyways, as shown repeatedly on C-SPAN weekend, we are in the midst of the 150th anniversary of the Gettysburg battle and the fall of Vicksburg, part of the fight against slavery (the "but for" cause -- h/t a comment at the link -- of the Civil War). And, some on Seneca Falls, which is not totally unrelated. And, Happy 4th!

"Implementing Health Reform: A One-Year Employer Mandate Delay"

The difficulty of keeping all the balls in the air regarding an imperfect piece of legislation in the face of a recalcitrant House would cause problem for the best of Administration. Can't really fully judge but discussions like this lead me to be okay with the delay, even if it might be not a great move. Discretion here is not shockingly unprecedented either.

"Physician Participation in Executions"

This is a good article regarding the problems of strict principle here -- if executions will continue and error that can harm the person can be reduced, it seems ironic to refuse any participation even if the inmate asks for it. The other side has a point too.

"A Restroom of One’s Own"

Transsexuals are among those hurt by barriers to same sex marriage, but raise various tricky issues overall. I again recommend a couple books by Cris Beam on such issues.

Anthony Kennedy Does Ted One Better

Jonathan Rauch had a good commentary over the weekend on Kennedy's Windsor opinion and his skill at being at the median of things, though being labeled as a "politician" might suggest why others don't like him.  Here, at least, I think his opinion was very good, especially it highlighting the feds traditionally letting states develop marriage. The feds suddenly blocking the way is a special problem, even if SSM as a whole should be protected.

"Hobby Lobby Wins Before En Banc Tenth Circuit"

I find the idea that the contraceptive mandate is a thread to religious liberty absurd and find the whole thing aggravating, including the plain hypocrisy (and stupidity) of the Catholic Church focusing on this.  The same f-ing church -- yes, at some point it pisses me off -- that ignores that its own members are breaking the marriage sacrament in their eyes.  I simply don't understand how they can blithely let people who do this take communion. Or, do all those Catholics have two or so children because of the rhythm method?  For-profits seeking an exemption is truly stupid:

So the legal requirement that the plaintiffs pay for a health care plan which, among *many* other things, covers contraceptive services which may or may not *actually* be abortifacients, and which will neither be used by the plaintiffs nor given directly by them to employees who may choose to use them, is a violation of plaintiffs' religious principles.

How does this possibly rise to the level of "religious exemption"? I have to agree with Joe_JP that this is a tenuous argument at best for organizations whose primary purpose is actually religious, and utterly absurd for a commercial establishment (even one that's selling religious paraphernalia, and Hobby Lobby at least doesn't even have that excuse).

A post from "Scott" in this thread with various (same old) arguments from similar minds, including myself.  What really annoys me is that people like Prof. Adler refuse to explain how broad these claims are. They simply are not applicable to contraception though stretching the "abortion exception" (which is a policy exception, not a constitutional one) to include morning after pills is bad enough. If this is a problem, birth control pills overall and IUDs (maybe more) also might act this way.  No, it would apply to any single religious problem an employer, even a for-profit selling hobby supplies, might have with any health choice. Trying to drown us in minutiae won't change this. 

I find the concern of various religious affiliated schools (including those like various local ones that many might not deem "religious," like Manhattan College) dubious -- janitors should get to use their health care as they see fit.  But, when corporate for-profit hobby stores raise claims, it is nonsense on stilts.  So were claims against PPACA.  Yeah. I stick to my comment over there -- taking things this far really waters down the religious liberty and exemption brand.  It truly harms both overall.

The Chaos

This book uses West Indies myths and a good amount of surrealism (things just suddenly go crazy) to deal with a mixed raced teenage girl's self-discovery.  She is sassy, talented and comfortable with her sexual power, but troubled too.  I liked this as a whole but thought it rambled on too much about the surreal things going on. Could have been shorter.

Weekend

I will take the next few days off from blogging unless something special arises.

SCOTUS Term Ends

Update: Surprisingly,  the stay was lifted on Friday and same sex marriages (including of the lead plaintiffs) started, though an emergency request was later made to Justice Kennedy to stop them.  [Rejected.] Justice Alito also held that the Indian adoption case should go into effect next week.

A few more words about the same sex marriage cases. I again do not find criticism to Kennedy's majority opinion too convincing, especially the idea that it is so very hard to determine what it says. As to the novelty of same sex marriage, there are preludes, and same sex couples lived as married couples already in this nation clearly at least for decades. State sanctioning these unions would be the cherry on the existing pie. And, yes, it is a lot clearer now than in 1996 that it is unconstitutional though DOMA would be problematic even if a state could criminalize sodomy. If it does not, why shouldn't the federal government recognize the marriage?

The division in the two cases regarding standing is also not as confusing as one thinks, since really only three justices split (Breyer and Kagan plus Thomas), Alito particularly for standing in both. It is sort of surprising to me given the orals that Kennedy and Sotomayor wanted to take Prop 8.  But, there are reasons, including pragmatic (and B/K are the ones who joined the Medicaid portion of Sebelius, after all) for the split. Thomas' federalism views particularly would appreciate Kennedy's dissent.  Again, I think the Dellinger approach reasonable, if problematic. 

Moving on, the USSC did a few things today of some note. It granted a couple cases and sent a notable abortion law back to the state court to clarify the reach of state law as to two drugs used for abortions. There were a few opinions regarding various orders, including Justice Thomas wishing to take a case to re-examine an old case that held a federal law can be applied to "deny military personnel the ability to recover for injuries."  Right at the top ... hey, it's Wendy Davis!  A ruling from Texas (which she argued was now moot) was sent back per Shelby. Note the current Twitter hero (among other things!) enabled to block a supermajority in Texas pursuant to a lawsuit under VRA that tossed out a redistricting plan that would have made her winning the seat that much harder. 

As discussed here, today's orders also avoided further involvement in the SSM debate, including rejecting other DOMA rulings (not just sending them back, which leaves some lack of clarity as to scrutiny and federalism questions). A same sex benefits win in Nevada also was rejected, so the breadth of state requirements in this area is still developing.  This is as expected -- the law takes time to develop and the road here involves multiple questions, not just the final question of SSM. As it should be.

And, thus the term ends, though not to worry -- there might be emergency actions and at least three summer order lists. 

Same Sex Marriage Rulings (and Extortion)

Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes.

The USSC term is not quite over -- there remains some orders. Today had three opinions. The penultimate one was a unanimous ruling (6-3 on reasoning; Scalia for majority, Alito with Kennedy and Sotomayor concurring) rejecting an application of a federal extortion statute. Very exciting to about three people.

First came DOMA -- 5-4 on equal protection grounds with a dash of federalism by Kennedy ("the gay justice") with three dissents that both rejected jurisdiction and supported the law on its merits. Last came Prop 8, struck down on lack of standing with the interesting (if explainable*) dissent allotment of Kennedy (author), Thomas, Alito and Sotomayor. The result if not the vote count was hinted by CJ Roberts' dissent that suggested they disposed of Prop 8. The dissent being upset the majority even ruled upon DOMA is a bit surprising and a tad hypocritical, especially the day after Shelby. 

Scalia being upset at such an "assertion of judicial supremacy" is almost comical.  Alito has a more limited take on that subject, but dissents alone there; Thomas joined Alito's merits discussion, though my reference below as to him stands. Alito notably (alone among the dissenters) would have granted standing, though had a more limited view of things. When the President refuses to defend a federal legislation (even where, like here, the legislation is still enforced), Congress has standing (even one branch) to do so.  I find this a bit curious (part of the whole?) and the majority opinion did not find it necessary to decide the matter.  T

Some have noted the "dog's breakfast" shall we say nature of Kennedy's opinion. Well, we should be used it by now. I think the overall nature of the opinion is fairly clear though if one looks closely, some confusion might arise, especially if you are not sympathetic about his approach. The opinion basically honors state discretion over marriage though noting obviously the federal government does have the power to regulate in the field. Perhaps for that reason, it does not rest on federalism, but equal protection. The jurisdiction discussion, both overall and prudentially, also was sound. A request for benefits was denied and whatever the Administration's sympathies, it wasn't being granted. It basically adds, just don't' make a habit of this sort of thing.  

Still, various points of the opinion has that caliber -- it is particularly notable that DOMA in an unusual way (sort of the Sebelius/Shelby principle again) restrains states in an area they traditionally (yes, tradition was ironically cited in this context) have mostly free reign. This is a sort of red flag along with evidence of a bare desire to harm ala Romer/Moreno etc. No intermediate scrutiny for sexual orientation generally per the request of the Obama Administration. The expected "rational basis plus" language with a new "unusual" wrinkle. Still, when explaining how the federal government is hindering states, it uses language that logically can be applied against other states too:

DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.

The opinion says this in the context of states that chose to sanction same sex marriage. The ability of states and the people therein to do this was noted. It is a strand of the opinion. See also, Jonathan Rauch's Gay Marriage, which fully supports the legitimacy and morality of SSM, while pushing for a state by state recognition approach. But, as with Lawrence v. Texas not addressing marriage specifically, even more so, drawing the line there will not be possible at some point.

A likely next step, especially as we run out of states that can pass SSM by simple legislation, are attacks on state DOMAs using such language. Are they not too on some level "unusual" burdens per usual state practices in respect to marriage? Andrew Koppelman, e.g., in his book noted that even interracial marriages in the Jim Crow South were not as broadly blocked from recognition as at least some state DOMAs require at least if applied literally. And, do they not violate the 14A for the reasons cited? The national DOMA, however, is particularly problematic, and it is a principled and sound argument to focus on it specifically.

One curious thing here is marriages in D.C., which has same sex marriage. The ruling struck down Sec. 3 of DOMA (Sec. 2 allows non-recognition and is largely redundant though has a few troubling applications and is bad symbolically**) without any indication that D.C. marriages or marriage recognition by the military etc. would be treated differently. It was not an "as applied" matter, even though the logic of the focus on the states would seem to make it such. This is a problematic aspect of the ruling just as ignoring the dissent below in Heller, the dissent that noted D.C. is different for 2A purposes because it is not a "state." Federal regulation of D.C. firearm regulations are different in various respects as national laws affecting the states. Same here though it still would be a problem for equal protection reasons. Would a DOMA federal law only applied to D.C. or the military be treated differently by the USSC?

One more thing. Justice Thomas silently went along with the dissents in each case. He concurred separately in the Indian Adoption case to note that constitutional doubt as to state control over domestic relations required the specific interpretation of a statute with various possible meanings. Federalism was raised as a reason for some otherwise sympathetic with his overall jurisprudence. This is where the rubber meets the road. He remained silent. To be fair, cf. Gonzales v. Raich.

I provided a few thoughts on the Prop 8 case in the footnotes. Gov. Brown set things moving to issue marriage licenses to same sex couples once the injunction in place was lifted. Will there be any more complications in that department?!  For instance, will an appropriate party arise that will challenge a same sex marriage at some point?  Notable there that Prop 8 has limited legal effect given protection of domestic partnerships, but perhaps one can be found.  The ultimate end of this story, especially given the drawn out twists and turns that have occurred already, is a clear reversal of Prop 8 by the people of the state.

And, how will the DOMA ruling influence same sex partner benefits in the immigration arena?  To be continued all around.

 ---

* Let me say that I'm sympathetic to the dissent, especially in light of the possible negative results of the majority opinion overall. Honesty dictates that prudence as to the merits is a factor here (likely a motivation for at least some of the justices in the majority, even if they disagreed on the merits), though sure sure, we are supposed to be concerned with legal principles. Still, the development of the law, including on same sex marriage, is a factor here, prudence a legal principle as much as any other. Also, Walter Dellinger's brief explaining why standing should be denied was to me honestly quite convincing. The majority very well might not be on the same ground as his reasoning in all particulars, but really, I did find it convincing. I have a liberal view of standing and jurisdiction overall. The majority does reflect current more conservative rules all the same.

The breakdown of the dissent -- one more time for Scalia/Thomas to break apart -- can be explained in various ways, along with the overall idea that they disagreed with the majority on the merits of the standing question. The dissent does not address the merits of the constitutionality of Prop 8. The four justices probably don't agree on them. The dissent honors state discretion in ways Thomas would find appealing, he also more open to "judicial activism" generally than Scalia. Alito's dissent in DOMA showed no love for the district ruling, so even without going into the merits, he might have be loathe to in effect allow it to be the final word on the question.  Also, he actually supported jurisdiction in DOMA.

** For instance, if non-recognition is allowed even for judgments, it could lead to various complications. Also, there is a minority viewpoint that even though Congress has the power to determine the "effects" under the FFCC, they must do so in a "general" way that could be violated here. The reasoning might be somewhat along the lines of the majority opinion.

CJ Roberts in his dissenting opinion by the way suggested the title of the legislation was not really worth of note as if the "defense of marriage" act that singles out certain types of marriages to the detriment of same sex couples is a trivial thing. Alito's strong dissent underlines that you can't have it both ways here -- an important thing was done here from the title on down. And, that is why for me the whole did is unconstitutional, it is as a whole a violation of equal protection and the right to marry.

Knew There Was Reason I Liked The Mets ...

Bravo to the demise of #DOMA and to @WendyDavisTexas.  I'm inspired today for the system working like it should.

[Twitter: KBurkhardtSNY]

He is the Mets field reporter on SNY and great he supports same sex marriage [more later] and abortion rights. Not totally gung ho about a filibuster even for a good thing, but kudos.

Any Day Now (Spoiler)

This film was a long time coming, based on a story in development for years, involving (in some fashion; a bit of searching didn't find the "true facts") real events in some fashion of a same sex couple (drag queen/lawyer) taking care of a Down Syndrome child while his mother was in prison.  This being the 1970s, they run into roadblocks. It is somewhat contrived, but the talent and humanity overall does win out. Things don't all work out. Update: Some notable "I know him/her" cameos, including the interviewer from social services.

Decision Day 2: Voting, Indian Children and Property

Rick Hasen of Election Blog (who is looking a bit wrong on the IRS "scandal" as more details come out) warned Congress that current doctrine would make the equation used to apply the preclearance provision to certain areas but not others suspect. 

[ETA: As I heard suggested by one commentator, a thoughtful approach would leave open an equitable solution that struck down the provision but left the old rule in place for a limited time so that a solution can be found.  I think this is an equitable power the Court has ala "all deliberate speed" in the school segregation cases. This seems fairer.]

For partially political reasons, the map in question was not brought up to date. On some level, this is troubling, but this does not mean the 5-4 ruling striking it down was the right move. Congress has the power and responsibility by "appropriate legislation" to enforce the 14A and 15A. The word "appropriate" has some limits, but what they are are hazy, and it really should be seen as overall a basic political question. At least, a co-equal branch should not be struck down 5-4, even without the supermajority that was behind this law. Political concerns, the problems with starting from scratch as compared to working off what you have and the legitimacy of continuing to work with the areas with past problems all counsel against that.  [See, e.g., here.]

The ideology of the opinion's author was well known, though his "facts" at time might be off. This open one up to cynicism, but it's expected -- new nominees change things and Ginsburg (who again provides a good dissent to Roberts' majority opinion on a major piece of congressional legislation*) et. al. had a past too. Anyway, Chris Hayes (Twitter) et. al. already have been saying that it is unlikely that this Congress will agree on a new up to date map, particularly since instead of sticking with what they had, it could such and such a representative admitting in 2013 that his or her area warrants extra attention because of discriminatory behavior. Who wants that? We shall see what happens.

For me, an ideal world would involve an up to date map. But, we don't live there. We live in realistic world. In fact, even if this was a few years ago, this decision might not been as problematic. It is harder to imagine this passing though who is to know that even then what would happen if new coverage areas would have to be worked out. The best of all worlds would be to cover the whole country. The 15A didn't and doesn't just cover the South. The North had discriminatory laws and still have some practices with discriminatory effects. If an id law will be a problem, it might be a problem in Indiana as much as South Carolina. Section 2 is still there, so suits can be done after the fact.

As noted in a footnote, the ruling "immobilized" a major part of the Voting Rights Act. But, the VRA is not dead. As AG Holder noted today:

Finally, we need to be clear about what happened today.  Part of the Voting Rights Act, but not all of it, was struck down.  The  constitutionally protected voting rights of all Americans remain fully intact.  And the right to vote, free from discrimination based on race or language, requires our vigilant protection.  We know from many decades of long, hard struggle that the best way to defend a right is to go out and exercise it.  So no one should conclude that today’s unfortunate decision has rendered her or his voting rights invalid, or has made attempting to cast a ballot on Election Day futile.

There were other rulings. Scalia split from Thomas (who did another one man originalist lesson) in an Indian Adoption case, Scalia dissenting (main dissent Sotomayor; Scalia disagreed with a small point, while adding a comment on parental rights) while Breyer concurred to split the liberal bloc again. Alito again had two opinions -- this one along with an important Takings ruling that was something of a surprise 5-4 loss for the government. Kagan had it out again with Alito;** well, actually, she agrees with the majority on a key point.  The property owner in effect has nine justices on his side at least in part, but wins 5-4 at the end of the day. That's probably notable, especially if you know more about this area of law than I. The potential for local land use to be affected seems serious. Still, especially with Kagan in part focusing on facts, how much is unclear.

[Update: The property case has raised various "federalism" responses.  Perhaps, land policy is not quite the same thing as race or religion or crime control in some fashion?  Different views there, clearly. More on the adoption case, including a reference to the fraction Native American that sometimes popped up.  Tribal membership is not merely some fraction of blood.  Also, I would add that F16 of the dissent also brought to mind something I did -- what about the Treaty Clause?  Thomas' separate opinions are sort of comparable to William Douglas: interesting in a fashion, especially if you take them with a grain of salt.]

There is one more case few care about and the marriage cases. They are in effect the season finale and it rubs me kind of the wrong way that the Supreme Court is doing things that in effect make them the finale. Scalia et. al. are annoyed that some single out certain things or stereotype, not looking at the big picture.  But, they are putting a lot of emphasis on two cases that underlines that some things are more important than others. In a big way. Now, this is certainly true on some level. The VRA case or the PPACA cases or these are rather important. And, the time it takes to write, plus them being heard fairly late in the term makes the placement here appropriate enough. Just saying.  Let's hope, as has occurred recently, there aren't any cliffhangers.

The grants are a type of "in upcoming episodes" deal.

---

* One difficulty with the PPACA ruling was (as Federalist Society hero Judge Sutton noted earlier) the presence of a myriad of appropriate applications of people clearly "active" in commerce, thus a facial attack should have failed. Ginsburg notes here that the specific litigant at least is a somewhat lousy choice given the area's voting rights history.  An early footnote provides but one of many good money quotes: "The Court purports to declare unconstitutional only the coverage formula set out in §4(b). [cite]  But without that formula, §5 is immobilized."

There is a certain breed of judicial activism here, including not accepting Congress' fact-finding and judgment that it was not working from scratch, but from a continuing history and remedial framework, which has to be seen as a whole to fully understand the legitimacy of its approach. Upholding the law would be on that level a fully conservative thing to do.  

** Sotomayor opened her Indian Adoption dissent (also against an Alito majority) this way:

A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result.

It was a messy case from the sad facts on down. Thomas concurred to note how constitutional avoidance influenced his reading of text that could go either way. Breyer concurred to temper the breadth of his join too. But, guess that is what the USSC is there for.

Supreme Court Watch

The prelude was handing down orders, including a per curiam "bad boy" to the 9th Circuit.  You know, rather normal.  More importantly, they (as most expected) granted the Canning recess appointment case.  Wonder how the situation will be politically by the time it is argued/decided. An abortion protest case was also granted -- devil will likely be in the details.

Onward to the main event. The general sentiment was that conservative justices were going to be writing most of the remaining opinions, Alito deemed likely to be the author of a major employee rights case. So it was.* Per SCOTUSBlog (tweet): "Major 5-4 victories for employers and losses for employees in discrimination rulings today."  Expect to find some cynical blog posts like this one on how business tends to win.  Not always, but more so these days.  Conservatives picked more justices after all.

Breyer did write an opinion, again writing for five (while two concurred) as to the reach of a federal law (this one related to the military) covering sex offenders after they leave prison.  This time, Alito also concurred, but Roberts (not Kennedy) was the second concurrence.  Breyer's last ruling here (U.S. v. Comstock) was seen by some as a broad reading of the Necessary and Proper Clause that might imply a win in the PPACA cases.  Roberts concurred to warn against an reading too much into the opinion no federal police power, no “great substantive and independent power” of that sought enumerated or implied. See also, his opinion in PPACA. Scalia/Thomas dissented, Scalia concurring in part to note Thomas went too far for even him.

SCOTUSBlog also summarizes: "Drug companies prevail in suit over inadequate drug warnings. Claims are preempted by federal law. 5-4."  Usual suspects. The big ticket case decided today is the Fisher affirmative action case.  They punted.  You can tell by the 7-1 vote.  The solo dissent was a brief one by Justice Ginsburg that has some good lines about how race is going to be addressed somehow, so let's not be overly coy about it.  Also, the program is okay, no need to send it back because the lower court allegedly didn't apply strict scrutiny.  If the matter had to be put to a head, her opinion would probably be the right one. 

But, especially since (as Scalia noted in his concurrence; Thomas reached out and said he would overrule) the petitioner didn't ask Grutter to be overruled, this is a way to handle things. Taking this long to say pretty little (some want to read more into it; maybe) is curious, leading to some likelihood that the Court was more divided on the question originally. Kennedy's ruling makes some degree of sense -- the lower court very well might have been too lenient about scrutinizing though doubt it was totally unreasonable to applying Grutter.  But, a dissenter is now the swing vote.

So, the employee cases are losses, but the left yet again (see Arizona voting rights case) got more than one might expect.  We still have VRA, the marriage cases, a tricky Native American adoption case and a Takings case. And, maybe something else of interest, including orders.

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*This essay supports the dissent, but makes a telling point: the majority rejected the stance of the EEOC.  If a matter of policy and reasonably open to dispute, deference should be given to the administrative agency. 

Hansel And Gretel: Witch Hunters

Fairy tales have resulted in some mixed results in recent years (Tangled was pretty good) and this looked promising. And, though it wasn't so great that it held my interest to watch the whole thing, low attention span these days, this version is pretty fun.  It has a sense of humor about itself and the leads ("Gretel" has been good in a few things already) are fun.

Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America

[A preview though it is far from a gimme that the same sex marriage rulings will be handed down today.]

Two are better than one,
    because they have a good return for their labor:
 If either of them falls down,
    one can help the other up.
But pity anyone who falls
    and has no one to help them up.
 Also, if two lie down together, they will keep warm.
    But how can one keep warm alone?
Though one may be overpowered,
    two can defend themselves.

-- Ecclesiastes 4:9-12

I read this book (written in 2004, after the Massachusetts Supreme Court ruling, but apparently before it was applied) as a type of preview to the upcoming same sex marriage cases (to me still the most accurate label & William N. Eskridge used it in his 1996 book).  It was well written and covered a lot of familiar ground.  A few times, e.g., it cited a book on marriage by E.J. Graff though she in the end comes off as more activist.  The homosexual author is also a common thread in all three of these books.

The book has two basic notable aspects -- much of its case relies on marriage being a good thing and explaining how same sex marriage will if anything strengthen the institution.  For instance, if you don't have same sex marriage, cohabitation and various "marriage lite" official alternatives will be used, in part because society is growing in its acceptance of gays and lesbians, and supports some rights.  But, this watered down marriage is not the same thing and will seem attractive to many different sex couples, if anything, probably more number-wise in the long run.  Likewise, marriage will bring positives to same sex relationships, though the discussion here is mainly regarding gay men.  Overall, the argument is an equal protection one (though marriage is also seen as a basic liberty of freedom), not an open-ended argument for sexual liberty.  Marriage is explained to be a social institution -- society expects something from the couple as much as vice versa. -- particularly as a matter of caring for each other.  See, e.g., the vows, which don't focus on sex.

The second notable thing comes in the final chapter (before a type of postscript) -- somewhat suddenly, federalism is promoted.  Marriage equality is argued to be basic fairness and good policy, but this is not a constitutional argument as such -- he says at one point that he is not making a constitutional claim for the right to gay marriage.  This is a bit curious in that equal protection is a constitutional principle, one he notes goes back to the Declaration of Independence.  Rauch, however, is from the "Roe v. Wade was a tragedy" school and has Burkean leanings.  Especially in 2004, it was a bit soon to rest on constitutional grounds here.

Anyway, we are left with news that it might take decades for same sex marriage to pass nation-wide.  Really now.  Loving v. Virginia is barely mentioned.  Why is equality a national demand in one place but not the other?  The problem with a couple being married in one state but not recognized as such in another is barely covered -- this is a basic part of one's life.  You cannot turn it on and off.  The glaring bit, given the upcoming ruling, is Section Three of DOMA is not even mentioned.  It has to be.  It inhibits state discretion by not being evenhanded as to federal benefits.  The take it slow approach is reasonable, I even suggested usage of civil unions in MA back in 2003 (sorry Jonathan), but he doesn't do enough heavy lifting.

Putting aside a somewhat weak final chapter, the book as a whole is very good, a sort of warning to conservatives.  His take on the Prop 8 orals can be found here.

Summer Is Here

Not a big fan personally. Like more temperate weather or even cold. Summer is for kids or those who like the beach or something. Sweat is overrated. Anyway, enjoy the first day, and I'm taking the weekend off here unless something compelling arises.

Red, White, and Muslim: My Story of Belief

And Also:  I read this book along with The Riddle of the Labyrinth, a linguistic mystery (one of the leading players was herself a fan of detective novels) about the meaning of Linear B.  That is, an ancient script used in Crete and elsewhere over three thousand years ago.  Did not quite catch all of the linguistic niceties, but it is geared to the general reader and focuses on three personalities while providing enough specifics to explain things. Brisk enjoyable read, helped by a large font! 

For Hasan, being a Muslim is not merely a matter of birth, but it is a matter of choice. In seven chapters, she presents seven reasons why she is committed to Islam and why it is a viable spiritual option for anyone. 1. Because I was born Muslim. 2. Because Islam gives me a direct relationship with God. 3. Because Islam has a rich mystical tradition in Sufism. 4. Because Islam allows and expects me to make mistakes. 5. Because Islam is ethnically diverse. 6. Because Islam is a woman's religion. 7. Because being Muslim makes me a better American (and being American makes me a better Muslim).

This is how Amazon describes her first book on "Why I Am A Muslim: An American Odyssey," and this volume is apparently a type of reworking of the same basic material. It is a very positive, upbeat volume that is appropriate for the general reader but would likely appeal to teenagers as well.  The author is well educated and is a lawyer, but is not particularly an expert in the field.  The book was vetted though and writers in the field like Reza Aslan (his book on Islam is on my list) provide praise. 

The teenager bit is probably a mild dig -- it is a bit too gung ho, a bit too positive, a bit too lacking in nuance. Truly good things are imperfect.  Islam here seems to be promoted as perfect if carried out by the imperfect. The author promotes a liberal brand of Islam, one where the individual chooses his or her way, but this is helped by that fact that apparently all is hunky-dory -- Allah provided for all here and even if something looks a bit off (some rules of women), it isn't really if we look more closely. Also, as noted earlier, things like what the Koran said are taken a bit too much at face value. Like the Bible and other religious works, you have to take it with a grain of salt.  It is after all the product of man, 7th Century at that.

Still, as an apologia (using the term in its traditional sense), it works fairly well.  It sets forth her personal beliefs and love for the religion in down to earth style and helps explain how we should not have a stereotypical view of what a typical Muslim believes or what the religion stands for.  It also is a strong brief for a liberal interpretation, there perhaps helped by her acceptance of the Koran and basic Muslim doctrine on face value.  On that level, it was a good read.  Still, would not have minded a bit more salt.

The author was born in the U.S., but her parents are from South Asia, Pakistan, her sister also a naturalized citizen.  She blogged the 2008 election; apparently, Obama was reading.  You can read her take on Sufism here to get a taste of that chapter of the book. Overall, again, would recommend the book, even if it seemed a tad Pollyanna to me.  Wonder if there are a collection of books like this -- liberal friendly accounts of religious belief. 

SCOTUS Drags Things Out Some More

This is a bit silly. Only three rulings today: an arbitration case (see Kagan's "in a nutshell" dissent), a criminal/statutory matter (8-1, Kagan wrote the majority) and a 6-2 (Roberts majority, nice Barnette reference, Scalia/Thomas dissent) that is a 1A win regarding limits on aid funding. Not to diminish their importance, but why such back-ending?

Stephen Colbert Eulogizes His Mother (Very Touching)

Not noted: His mom went to the March on Washington while pregnant with him.

Promised Land

This movie received a positive review from my local paper when it first came out and hoped it would provide an interesting view of a salesman of sorts who had a change of heart on fracking. Turned out to be heavy-handed with the idea of an environmentalist craftily coming in to muckrake apparently downright shocking to someone previously portrayed as blithely realizing the right price to pay off local pols. Apparently got worse, but shut it off.

Valerie Plame On NSA Scandal

Mike Sacks (previous known for his law student birds eye view of SCOTUS) had an interesting conversation with her for Huffington Post. She provides a careful middle of the road sort of view and her concern for giving so much authority/money to contractors (raised by Hal Sparks on Stephanie Miller's show too) was important.  Spy book due this Fall.

Juneteenth

Today we celebrate #Juneteenth, commemorating the end of slavery & fulfilling the promise of freedom & liberty for all. - Sen. Gillibrand (tweet).

Collin McHugh also tweeted that the Rockies traded for him as a birthday present. McHugh sounds like a good guy but didn't do well in the majors. Let's see if Young is an upgrade from Cowgill (DFA). Decent sign the Mets can get something for their cast-offs.

Future Preview

Two young pitchers -- Matt Harvey and Zack Wheeler -- started and helped the Mets sweep (though it was nail-biting late again, though only for a short time in the nightcap) the doubleheader today. Nice bounce-back; long 24 hours during which three games were played.