SCOTUS Watch: Texas Abortion Law

And Also: See my back/forth with someone here who compares the burdens of pregnancy to being hit by a pebble or wind. On the issue of not serving people in public accommodations, the person is a strict libertarian sort. Forcing people to be a good Samaritan here? Eh.  To allude to Glenn Greenwald, the person is not special himself -- it is that the sentiment is sadly not atypical. Selective concerns are key here.

abortion clinics in Texas whose physicians do not have admitting privileges at a hospital within 30 miles of the clinic were forced to cease offering abortions.  And it means that women who were planning to receive abortions at those clinics were forced to go elsewhere—in some cases 100 miles or more—to obtain a safe abortion, or else not to obtain one at all.

After a federal district judge in a limited way blocked Texas' new restrictive abortion law, some noted the weakly reasoned nature of the appellate court's removal of the stay.  The logic expressly got support of two justices (Scalia/Alito), three aiding it by inaction -- it was left to the four liberals (led by Breyer) to explain why the original stay order was correct. Scalia argued that the dissent didn't really make their case.

All involved used a balancing test that took into consideration various concerns. It is not apparent that each prong has to be met, so not sure how Scalia shows the dissent fails. For instance, yes, the likely success of the provision on appeal was one factor, but ultimately it is left to a "balance of harms" test.  The closing down of clinics provide direct harms to those who currently need them in a "permanent" fashion. A stay that stops the state from enforcing the law is only a temporary burden.

This puts aside the fact that the district court ruling was probably too narrow. Interfering with lower court procedures in these cases is something the Supreme Court really never seems to do, so this result is far from surprising, even beyond the abortion context. The vote was as close as it was because the move here was particularly dubious.  The USSC has not shown any desire to actually take any abortion restriction cases, though the slew of efforts in recent years just might force their hand eventually. Given Kennedy is the swing vote, this might be benign neglect.

[Added] Rick Hasen, who usually blogs about elections, discusses the order as a matter of remedies.  He notes that is unusual for there to be an opinion in such a case at all, how it is a red flag that the case is a loser (at this stage, unlike Bush v. Gore which was cited, I think that's a bit premature) and noted that it used to be that the status quo (clinics not closing etc.) would be a concern. This has changed of late:

Justice Scalia’s rejection of the status quo represents yet another change in injunction practice before the Supreme Court, part of a broader change I plan to write about soon in which injunctions are harder for plaintiffs to get and easier for defendants to get blocked or overturned.

Such nuances often have major effects.

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* I  first read about this via Twitter, the reporter not just informing us about how "Sotomayor says she wears a continuous blood testing device for her diabetes. It beeps during her speech- so she asks for a sugar cube!" or Sotomayor's opinion that "people w/ defense backgrounds or civil rts or small practice or solo practice.” Still, nice sentiment -- again, thanks Obama, for two good justices.

As to lower court judges, it is time to end the filibuster there, or at least seriously alter it. Obama should take it up a notch. On that front, the moronic quote from the day, usually reasonable sort edition:

Sen. Carl Levin (MI), a consistent Democratic opponent of filibuster reform, said the GOP's recent judicial blockade hasn't changed his mind. "If the majority can change the rules, there are no rules," he told reporters.

Great logic there. 

Enrollment On The Rise

It would be helpful if all this "Obamacare is failing" coverage took more time to explain the logic of the policy and what Obama is trying to do (however imperfectly) and the problems with the status quo (that the other side does nothing really to fix). Oh, maybe realize it takes a bit of time to address. Not merely a month! The "disaster" is also overblown.

MNF: Horror Movie Monsters Are Easier to Stop Edition

After beating the Saints with about a minute to get a TD, the Pats (with three time outs) tried to do the same with :59. In what might be a sort of record, they got in 12 plays. After three incompletions, with the help of a penalty, they marched down to the 18 with three seconds left. Interception in end zone; flag picked up. Panthers win.

Supreme Court Watch: Order List (Death Penalty)

There were two dissents (Alito/Scalia, Sotomayor/Breyer) and one statement (Alito )included in an otherwise ho-hum order list released today. Like an interesting end-note or concurring opinion, this stuff can be interesting to us nerds. One concerned a habeas matter. The solo statement concerned a district judge's personal affirmative action campaign where he wanted evidence of law firm diversity in some cases he heard. Sounds like the judge's heart is in the right place, but not sure if this is a kosher bit of judicial discretion. 

Of the 32 States that currently authorize capital punishment, 31 require jury participation in the sentencing decision; only Montana leaves the jury with no sentencing role in capital cases. In 27 of those 31 States, plus the federal system, the jury’s decision to impose life imprisonment is final and may not be disturbed by the trial judge under any circumstance. That leaves four States in which the jury has a role in sentencing but is not the final decisionmaker.  In Nebraska, the jury is  responsible for finding aggravating circumstances, while a three-judge panel determines mitigating circumstances and weighs them against the aggravating circumstances to make the ultimate sentencing decision.  Three States—Alabama, Delaware, and Florida—permit the trial judge to override the jury’s sentencing decision.  [cites removed]

The other dissent is one of Justice Sotomayor's few but notable efforts to red flag troubling criminal defense issues. Also on the death penalty front, this year in review from California is the latest of interesting essays on that subject at Verdict from Paula Mitchell.  The issue here is the practice where the jury determines if a defendant deserves the death penalty, but it is merely advisory. As shown, this is the practice in only a few states, only one that have actually done it since 1999 (the one time that it occurred in Delaware was overturned on appeal). Justices Breyer and Stevens flagged this issue in the past, noting if you are going to have a death penalty, the jury should be the ones who decide who gets it.

The "unusual" nature of this procedure is duly noted by numbers alone. The trick is to determine if it is constitutionally so.* I think the death penalty is wrong as a matter of policy and constitutional practice, but do think granting its legitimacy, requiring juries make the ultimate choice here is appropriate for the reasons these justices suggest. The jury is the ultimate representatives of the people in the criminal justice system, only more so in this most sensitive matter. The case here adds a further problem because the judge was influenced by additional facts that the jury itself did not have available. This appears to violate current doctrine where facts that increase punishment has to be determined by the finder of fact (that is, the jury when it is used). 

And, to the extent that the overrides were influenced by the judges being elected also is troubling.  An argument can be made that this is legitimate since the people of the community thus has a chance to influence justice as they do when they vote in legislators and such. But, as a general matter, judges are held to be somewhat above the fray. Having judicial questions of life and death, especially when it overrides at divided or even unanimous votes of mercy (as noted in the dissent, to the extent judges override the jury, it is about 10:1 against votes of life, only a few times were death sentences overridden by this procedure), based on electoral concerns leaves a bad taste in one's mouth.

An election -- and the judge here might be concerned about upcoming elections not just following the will of the electorate that voted him/her in -- provides an at best flawed "expression" of the conscience of the community here. The jury has a special role -- they are representatives of the community, the people, who specifically examine the facts of a specific case and defendant. This is different from some general sentiment on how the criminal justice system should work. The "guilt" necessary to  die is ultimately only partially an objective matter, ultimately a subjective matter that a jury -- representing various views -- would be best able to make, as far as anyone could. It is seems to me unjust to have one judge override their judgement in this fashion. 

On some level, this is just yet another means to remove responsibility, the jury now only advisory on this basic matter, quite unusually here. 

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* My understanding of "cruel and unusual," somewhat reflective of practice, is that the 8A term is a term of art.  More controversially, I personally think both things might be banned -- something cruel as well as certain things constitutionally unusual. The text does allow this -- I can like/dislike two things and use "and" without both being required.

A punishment need not necessarily be both cruel and unusual to violate the amendment, e.g., if it violates current standards of decency. A headcount might suggest such and such is not "unusual" in some fashion, but it violates the amendment if it doesn't meet that test. A headcount is less important as well when what is at issue is not simply a ban, but the sentencing procedure. This might be partially because due process of law in general, not merely the 8A, is at stake here.

Either way, both are involved here -- it is rarely applied (basically one state) and "cruel" in not following the appropriately humane process. The fact that it matters mostly in overturning life sentences also is notable:

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Leaving open a judicial veto can go both ways, however.

More of Same

Giants beat another iffy QB and Jets cannot win two in the row -- the rookie QB didn't help, but the shellacking was a team effort. Jets now seem to be tied with Miami for that "one and done" final playoff spot with Miami actually winning. TB also won again. [KC finally lost.]

Finding your voice to say 'I had an abortion' [click photo]

It continues to amaze and trouble me that actually having an abortion is such a taboo subject though it is now and then at least referenced in popular culture. Is it really so surprising that access continues to be threatened? These things aren't just symbolic.

Rev. Joe: Understanding The Hebrew Bible: A Reader's Guide

While not finding a good book length discussion of the Qur'an as of yet (the "very brief" book was of some value as were others to touch upon a few themes) yet, did find this helpful account by Elliott Rabin. Have long found the Bible an interesting work, both as text and story. Personally, I think a full understanding that goes beyond literal belief the best policy.

"Why Scalia Should Have Voted to Overturn DOMA"

Not quite Andrew Koppelman -- fails a bit at the end, when it clouds Scalia's position on the 14A (basically it only covers race, some open-ended comment or two he made notwithstanding), but the rest is pretty good. And, it underlines the makeweight nature of DOMA, sec. 3 unless (such is the case) we have blinders. Great formatting.

Speak

The t.v. movie version of this classic modern day teenage novel about a frosh who deals with the aftereffects of being raped was pretty good though the translation to screen was a bit imperfect -- her not speaking much didn't quite come thru. The book is a bit different at times, but also works better on that given its medium. Both worthwhile.

Fernandez v. California (4A) Orals

Issue: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.

The previous case (5-3, Breyer concurring) concerned a husband and wife being present at the premises, with no special circumstances, and there being a conflict on consent to entry that led to obtaining evidence.  Breyer concurred noting possible special circumstances warrants some sort of "totality of circumstances" rule.  The majority noted it was just deciding this case -- "a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive." It argued "customary social understanding" warrants not allowing a person in when there is a debate between the two co-tenants, even given the assumption a married couple would more than some others be able to speak for the other party. Stevens concurred as well, noting how social custom (e.g., men having veto power) change.

Here, opposition by a co-tenant was shown, but the police got around it because he was then arrested.  Hour later, they come back, get consent from the live-in girlfriend (and possible victim of domestic violence, who also generally might fear consenting in front of her  boyfriend).  These are not sympathetic facts, but not sympathetic to whom?  Me, I wonder why they cannot simply obtain a warrant -- they had an hour and by all lights had more time to get a warrant while the person was in custody.  There is also an exception for "exigent circumstances," if they had to enter to protect the girlfriend, perhaps, or because there was an ongoing crime.  Finally, it is not like the guy was in custody for a long time.  The question can be asked so broadly that it seems dubious -- as if someone in jail for over a year as trial is ongoing, no consent.  Though there a warrant seems pretty easy.

The state, however, set forth this rule:

JUSTICE GINSBURG: [I]f Fernandez left -- he's made known his objection and then he says I'm going to pick up something at the drugstore. The minute he leaves, can the police then say to his cohabitant, do you consent? She says, yes. Police come in?

MR. KARLIN: Yes, Your Honor, it would.  When a person leaves a residence, and this was the linchpin of Randolph, when a person leaves the residence, social expectations change, they change dramatically. You're not faced with the situation of pushing past someone who is saying "stay out."

I strenuously oppose someone coming in. I make my opinions known.  I step away for a minute.  Dramatic change!  Hey, come on in. Have a party.  Seriously?  The precedent does help, but admits to "formalism" and appeals to "practicality":

So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.

Jeffrey Fisher, criminal defendant advocate voice extraordinaire, admitted upon questioning from Sotomayor that pretext is not shown here, and furthermore (a bit too far here) accepted that pretext is looked with disfavor by the USSC in Fourth Amendment cases. So might be true, inviting it, but Randolph specifically flags it. This bit of dictum is a problem, even if the reason he was absent was the government itself taking him away (a concern for a few justices).  It allows for a narrow ruling by let's say Kennedy (who joined Randolph) though it arguably violates the ruling's spirit.  There is no "occupant" here any more, but if an arrest can trump opposition, even from an hour before, there is room for abuse.  Still, we can see some value with that sort of line -- an arrest requires some degree of probable cause etc. too -- without Karlin's bit of silliness.  The proviso does answer Breyer's hypo where the police might by pretext (a phone call) get the person away from the house, which is totally likely to happen in some cases.  Such trickery is not unknown.

In the DNA case, Scalia noted that conviction could trump the right to avoid a search. The majority thought arrest did as applied.  This can be the rule here -- arrest might be a special situation.  However, the state actually noted an arrest doesn't waive privacy here.  The question is what rule should apply. The "the moment I leave" rule seems ridiculous, at the very least, when it is clearly known (here because the person said so an hour before!) that the person doesn't want entry.  There is "customary social understanding" on the point.  To my understanding.

Anyway, the case is likely to be decided on fairly narrow grounds, while providing a scenario that provides a good window into common sense application of constitutional principles.  

Gov. Kasich delays execution to explore organ donation

Some analysis/reactions here. I oppose the death penalty, but if the person truly voluntarily wants to donate, not quite sure we should paternally deny him the option -- if it's possible, that is. Not sure why it would take so much time to determine.

PPACA Enrollment Is Going Better Than You Think

And Also:  Not saying the optics of the thing isn't an issue or there is no problem. But, even beyond reminding people what else the law does (it's like dealing with the troubles of DMV and reminding people you get this very useful id, a chance to register to vote and the ability to drive in the bargain), the problems with this specific matter has been overblown. Still, Daily Kos has a reasonable take on the Landrieu bill that on some level seems to be a bad idea and an act of chicken little legislating.

Yep. There's no running away from Obamacare if you're a Democrat. So put all the pressure you want on Obama to get things fixed, but you'd better stick together even if things get tougher than they are now. If you don't hang together, you will surely all hang separately.

Kevin Drum, sane liberal. This after some pushback about his earlier piece in which he voiced concern about the "rollout"-- it has been around a month!!!!! -- after noting he wasn't sure what would happen, but then didn't know the result of the upcoming football game either, so why not opine?  The continue blather to me is a sort of sky is falling mantra that I find it hard to take seriously -- so there is some sort of problem (aided and abetted by certain states -- dare not make it partisan! -- not joined exchanges) with the website. Fine. It's only a month in. Chill a bit!

"The figure of 40,000 disclosed Monday did not include Medicaid sign-ups. At least 440,000 people have signed up for Medicaid through the health-care initiative, according to Avalere Health, a consulting firm that has been tracking sign-ups. Budget forecasters have projected that in 2014 there will be a much more even balance between private insurance and Medicaid participants."

This is one comment to his earlier post that starts to frame things a tad bit differently. Just one of six good signs.  Even this discussion, however, is off, in a basic reason that continues to drive me nuts. There is talk of "progress in implementing" the law. First, I still refuse to use the term "Obamacare"-- the law was crafted by Congress and the President left them much discretion to do so. And, it is for the whole country.  It is misleading and dubious branding to make something so tied to the leader of one side's political party. Is Social Security "FDR Security"? Is the Civil Rights Act of 1964 to be named after LBJ? No, it is for everyone, Democrat and Republican. I realize the arguments of some. Don't buy it as a whole.

Anyway, the law was "implemented" since 2010. Why don't those implementations count? Now and then, particularly when dealing with the contraceptive mandate (which doesn't just cover that), we are told about other aspects of the law. But, repeatedly, it just is not made clear what exactly is involved here. Blame whomever -- the media, politicians, the Obama Propaganda and Bottle-washing Service. It is just plain insane.  While commenting about this issue while waiting for the KC/Denver game, maybe Kevin Drum from Mother Jones' can do a bit of that?

This is almost as annoying as those "shockwave" error messages.

Women’s Health Protection Act

The purpose of the new bill is to force states to prove that the dozens of measures ostensibly aimed at protecting women’s health actually do that.

Kudos. Abortion is a health care matter. States want to burden health in promotion of certain anti-women religious laden views. Let's go on the offensive against the offensive!

DC Circuit Vacancies

Norm Ornstein, a congressional expert at the conservative American Enterprise Institute, told TPM that the GOP's mass filibuster of D.C. Circuit nominees is unprecedented and an attempt at "nullification." If Republicans don't let up, he said, then "then I don't see much other choice" for Democrats other than to go nuclear.

No no. Both sides are at fault! Like the NLRB business, this is worse than usual. When something imperfect like filibusters are used, best not to be really stupid and corrupt.

Gettyburg Address

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.

Stephen Colbert is one of many who took part in a recitation of the words for the upcoming 150th Anniversary. It is altogether fitting and proper that [they] should do this.

Now, who will beat KC?

They blew a fifteen point lead, but the karma got to Miami in the end, so Tampa finally won -- right after the other no win team did. So, the only question is who will beat KC? Denver.

Women's Barracks

This book from the feminist pulp series is appropriate reading today -- an "account of life among female Free French soldiers in a London barracks during World War II." The author based in on her own experiences. The vignette style gets a bit repetitive, but it is well written and thoughtful with good supplementary material.

Honor veterans ... promote peace

Happy Veteran's Day. I might not agree with all they are required to do, but it's fitting and proper to honor them. Holidays help focus on things that should be clear daily (e.g., moms are special), and this is one such day. Be well.

"Looting" = buying stuff as authorized by the government

Truly "stranger in a strange land" territory here, including opinions that the Taking Clause authorizes "theft," disagreement with the term = "you have no problem with it," and Best Buy selling stuff akin to a private party being forced to sell private items. And, you know, Hitler.

NYG Win Badly Again

Fans will take it. Jags also will take their first win and the opponents of the Bears/Packers will accept they didn't beat in the end the primary (or even back-up for the Packers, sorry Giants) QBs. Rams had an upset -- and unlike TB last week, didn't blow it. Meanwhile, Admission sorta sucked -- Tina Fey needs better material.

"Con Men Prey on Confusion Over Health Care Act"

Article in today's NYT. No, it is not (but could be) about Republicans.

Rev. Joe -- Parental Practices World-wide

For some reason, the book trailer video to How Eskimos Keep Their Babies Warm doesn't come up via a search here, but the author's video here is interesting too.  As is the book that promotes the universalism "Rev. Joe" does. H/t this blog. As if I don't have enough to read!

Town of Greece orals

Along with the Bond orals, I was somewhat depressed by this, though the arguments (including by the deputy SG who finally got another chance in front of the big boys/girls) generally were better as a whole.

Again, the "liberals" came off the best though to be fair, Alito and Roberts at times add something useful to the affair in these cases. They both often (when Roberts doesn't go the light route) are rather harsh or sarcastic, but have a pretty good track record ... at least as compared to Scalia, who seems to be slumming it of late (this time, he noted how his question at one point had a nice alliterative flavor).  Still ...

Kennedy at one point wondered (darn assistant AG following the test set forth by precedent -- Marsh -- again) how chaplains could be asked to not proselytize -- what is the point of them being there? Well, putting aside that (as the ACLU brief cited last time notes) many legislatures do counsel general invocations to be inclusive [the challenger's attorney noted that was done back in the day too, but it just was that inclusive then was bland Protestantism], "tolerable acknowledgment of beliefs widely held among the people of this country." They are not their to preach their particular religious faith -- they are to serve the interests of  the group.

There was not much interest -- other than maybe from Breyer -- to compromise much here or note the special nature of the small town meeting context here. The fact there might somewhere be teen pages in the gallery in the U.S. Congress -- to allude to a bit noted by the town -- doesn't really make it the same as a town meeting which is a more small and contained group, including those there to petition right there. It was left, of course, to couple of the liberals to note such things.

Alito basically used current religious diversity against the challengers. The usual argument here is that diversity makes establishments more problematic, since there is more of a split of views. Here, there are so many diverse views, there just cannot be a truly non-sectarian prayer. I covered this already, so won't belabor the point, but that is a sort of nice Catch 22. Finally, as even the town lawyer noted, there have been non-religious (or atheist/humanist/whatever) invocations made. It's possible to have a system where a majority of the prayers aren't Christian in nature. 

Bets on how many opinions there are -- pretty sure Ginsburg/Sotomayor/Kagan will write a separate concurrence or dissent.  Justice Sotomayor joined Stevens in Salazar v. Buono, a military display case that Kagan argued. Ginsburg also has generally been a separationist here.

Bond orals

And Also: Owners of construction company and vehicle safety systems companies  in a "closely owned" corporation was deemed likely victors in a contraceptive mandate case in the 7th Cir., a split ruling with a lot of verbiage.  This sounds like a possible compromise approach, though I still find the whole thing specious.

The person who help establish ScotusBlog has been a repeat player (again this week), but former SG Paul Clement has been the sort of modern day Daniel Webster in this field. Those who might disagree with his conservative bona fides still praise his abilities. I'll buy that. But, in various orals, so sorry, he comes off as a jerk, and one whose arguments are lame. I thought so -- on points -- in the DOMA case.

And, did so in Bond, even though the majority basically being with him makes the matter somewhat moot.  It might just be that his voice annoys me -- still listening to him was pretty tiresome -- the major theme was that the crime here was just sooooo obviously local and thus was not a proper enforcement of the treaty power.  Lopez and Morrison was cited, but they were not really on point -- those cases held certain activity was not "commercial" for purposes of the Commerce Clause.  Printz would have been a better cite -- it covered the "proper" nature of enforcing the power.

A major problem for me was that the clear lines his tone deemed so obvious turned out -- thanks from questioning from the women justices (Breyer was dubious about the government's position, trying to find some compromise position, such as citing the annex of the chemical weapons treaty in question) -- turned out not to be so clear. For instance, the very same act -- domestic as it might be on some level -- could be prosecuted if the chemical was completely banned (e.g., sarin). In fact, the very same chemical could be targeted, if used in a different way -- e.g., if a terrorist put it on the doorknobs of lots of homes in a certain location.

Gonzalez v. Raich was cited -- there a complete ban of marijuana was being enforced.  Unsure how the growing state legalization policy (one in which the feds accept somewhat by limited non-enforcement) factors in here.  Still, the overall line doesn't seem to work. Scheduled drugs, e.g., are in various cases highly regulated, but not completely banned. Misuse (and marijuana itself is not completely banned, to be technical about it) can be a federal matter, even though medicine has traditionally been a state power. [As an aside, Scalia raised a family law hypo and noted how that is simply not a federal concern. This is hyperbole -- it is/was in various ways, including DOMA, sec. 3, which he would uphold!.]

The SG was not in the mood for fine tuning, but it seems to be the carefully regulated chemicals in question are of apiece. Opiates, e.g., are not akin to aspirin. And, the administration of such a rule need not be a matter of some set list as long as some general reasonable rule is in place. Though I found the other side here dubious on the merits, to be fair, this flags a concern -- the SG did not (even when pressed by Breyer, a red flag) want to provide much of a "limit" to the Treaty Power in the sense of something that violated federalism concerns though briefly nodded to there probably being one. Since I think the facts of this case are not the outer limit of the treaty power, this hesitance was strategically risky.

His overall argument was that this treaty was agreed by both sides to be valid, so enforcement would be as well. He did not want to go into the idea that certain "self-executing" treaties might be acceptable, but not certain enabling legislation.  The justices -- other than obviously thinking this prosecution inane -- were worried about the breath of certain modern treaties, which cover broad concerns, such as the fate of women or overall well being of the population. At times, the U.S. doesn't ratify because some fear it will lead to intrusive requirements (the home schooling movement, e.g., is concerned about one involving disability rights) though they might just be "self-executing" -- hortatory without teeth.

I can see how some of these treaties, if taken too far, can result in federal legislation on all sorts of things that would otherwise be of local concern. The treaty power intentionally was left open-ended, since some international agreements will affect otherwise local matters, such as debt collection, land matters, and back then, slavery.  We can also entrust the structural limits and political process -- President makes, 2/3 of Senate required to ratify and then the usual process to pass enabling legislation such as law involved in this case. But, if some limit, including if something is not deemed truly "treaty-like," is necessary, so be it. The specter (the horror) of some treaty that requires the U.S. to end the death penalty or micromanage school lunches directly to promote the human right to adequate food might lead to such concerns. I get that.

Still, to repeat myself, chemical weapons are an international concern, and the treaty here is appropriate. The specific application here is also proper, including given the details of the case, down to (as Ginsburg noted) the behavior of the local police. The SG also should have underlined that the chemicals were not just run of the mill, but carefully regulated by the feds, and not of the caliber of chocolate for dogs or adding too much cleanser and poisoning goldfish. Such things, along with the not so clear lines of Clement when pressed, was not apparently much of a concern for a majority of the justices.  They wanted more limits. We shall see.

Vikings Win In the U.S.

The other win was in London. They have had a policy of scoring some points but blowing it ... almost did that here, even after coming back from a deep hole. But, they had a goal line stand and helped the Giants fantasy playoff hopes. Turned out to be a decent game.

More on Legislative Prayer

Joan Biskupic (who wrote a bio of O'Connor and Scalia and last I heard is doing something about Sotomayor) wrote a piece on the legislative prayer case (the automated links aside, "Greece" is not the country, it is a town in NY).  One theme was that the justices found it hard to imagine clean lines here to draw, suggesting a desire to just let the legislatures to deal with the details. This is the basic realistic stance of this analysis from a Catholic friendly blog, since the alternative (an across the board ban) is just not going to happen -- it didn't happen with the Burger Court.

As noted by the brief cited here, I don't believe it impossible to set some standards here.  A comment to yesterday's post supported a straight rule that would cover "under God" or messages on coins along with the court crier asking God to save the honorable court -- or is it more a statement of opinion and appeal for agreement?  It would to me be better to avoid such things and Mr. Newdow had a point.  Still, there are shades of wrong, and even Scalia in the Ten Commandment cases realized "Under Jesus" would be a problem. So are legislative prayer practices that advance that.

The direct precedent here is Marsh v. Chambers, which appealed to history (unlike litigants, justices need not respect precedent, so the town's reliance on that only went over so well with the justices).  If anything, that was a more problematic case since it concerned a long term chaplain of one denomination, not a system of constantly changing clergy. As noted here [they discuss the oral arguments here], however, the nature of town board meetings complicate things more than invocations in front of some legislatures (including the U.S. Congress).  There is thus various ways to decide the question narrowly though that might require some willingness to police things.

Anyway, Marsh does not say historical practice is all that matters; it does say it is a strong thing to go against, especially "unambiguous and unbroken history of more than 200 years" (putting aside the dubious nature of that sentiment looking at the details ... still, as noted earlier, the town had a moment of silence policy until recently). The opinion also noted the concern of sectarian prayers, but could avoid the question, since the practice there no longer was deemed to have that character.

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

Some lower courts have required the prayers to be non-sectarian and this is what a leading expert on religious freedom, Douglas Laycock, argued in support of the challengers here. And, this is what got negative pushback, since it was unclear to various justices what that would mean. But, again, even Scalia noted "discriminating against other religions" and "publicly honoring God" are different for First Amendment purposes. As suggested by the majority in that very case, even honoring God is a religious act that can be problematic when it obtains the endorsement of the state. Nonetheless, in for the calf, does not mean we need to be in for the cow, even if being vegan is best overall.

And, such in the case here. The town, after all, argues that the intent of the policy is inclusive. They don't want to merely invite or promote Christianity, even if the lower court held that was the ultimate effect. At the very least, the Court should reaffirm that the effort is required here, even if it requires some degree of oversight. Making sure that legislative prayers aren't just each and every day in promotion of one faith is content based policy, but it is proper here to respect the beliefs of all at the bare minimum.  The prayers here are not merely speeches on the floor or the voluntary choice of a President to say "so help me God." They are the product of an established policy and current reality warrant such a rule.

Marsh can be read to not require this if there is no bad intent or "exploitation" to advance certain religions. But, at some point, the effect prong of either the Lemon or endorsement test should have some bite here.  (See also, Windsor v. U.S., where the effect of DOMA, sec. 3 mattered).  It is this reading of Marsh -- non-sectarian and concerns for effects that was honored a few years later in dicta, even managing to get five justices in a case that overall was split numerous ways.  Problem is the dicta was directly in response to a dissent written by Kennedy.

They should have left the moment of silence in -- the change, even if the Court majority very well might not think so, seems to me a means to "exploit" a chance to advance a certain view of religion, the one not honored by Jesus -- he suggested praying in private. Then, he wasn't big on oaths either, so like selective citation of a few unclear comments about homosexual behavior, that just is more of the same really.

At any rate, if we will have certain minimal establishments, they should be cabined.*  The alternative is, e.g., some locality not allowing Wiccans to give an invocation, or (as the ACLU brief noted), thinking better of inviting imans or other unpopular types. Even if the rules seem equal.

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* Something like this came to mind while watching Pan Am -- a stewardess did something distasteful as a CYA move and another let her know her actions were known and not supported. This made her feel somewhat guilty, which is only a limited restraint, but one all the same. 

Legislative Prayer Case

I can see why Justice Kennedy would not think history alone should be our guide (see, e.g., Lawrence v. Texas), but the ongoing reasonableness of the practice in today's world. Also, McCreary might be our guide -- New York moved from a more inclusive (moment of silence) to problematic (prayer) rule quite recently. As to the problems of judicial line drawing, see Bond, this appears to be a variable concern for some justices. Finally, Justice Scalia, public meetings with established rules and a private dinner? Not quite same thing.

Election Results

Mostly expected locally, except that the judicial retirement ballot measure, which the NYT noted is somewhat controversial for various reasons (part political), seems on its way to defeat. The Democrat appears to have won in the Virginia governor's race, the libertarian beating the margin of victory. Meanwhile, congrats Illinois on SSM.

Bond, Carol Anne Bond

And More: I can understand someone wondering why a personal dispute of this sort should be a "treaty" concern, but quite honestly find it dubious to strike down this prosecution, especially given the law itself has "limits," contra some implications.

Carol Bond obtained particularly dangerous atypical chemicals, not ammonia or something, via interstate commerce, for the particular purpose of harming someone.  It isn't even the 'domestic use,' since it was admitted by Paul Clement particular chemicals (e.g., sarin gas) might be barred even here.  If the exact same chemicals were used by a terrorist, I would think it wouldn't surprise most people that it is prosecuted to advance the treaty.

Chemical weapons are dangerous enough to international well being to go a bit overboard, even if this is that, but apparently there is some chance the USSC will rule not quite like this. Well, the devil then will be in the details. I'm wary about that.

This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis-covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a criminal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.

Pretty obscure dicta in an old case was applied to block a claim, but after the feds agreed the woman had standing, the USSC unanimously agreed -- given the very judicial power to decide was involved, the government admitting error on the point was not enough. The matter is back to cover the merits, specifically an as applied challenge to the treaty enforcement mechanism at stake. Orals was today and justices were concerned about limits, which popped up a bit the first time around too.

[ETA: The link above to various materials include this short amicus -- of a piece to others by him -- that is well worth a look.  Marty Lederman says more about the case here, including discussing Breyer, who might be open to "lose the battle, win the war" on this issue here.  But, including see Lederman's conclusion, is that really appropriate? As to Alito's crossing national borders rule, so the speak, will he apply things as strictly regarding drugs?  Cf. Gonzalez v. Raich.]

The excerpt (in an opinion by Kennedy) hints that some justices thought this was a dubious use of federal crime enforcement. A domestic dispute leads to "a minor state charge" and the victim "suffered a minor burn." Justices noted the possible range of enforcement against chemical weapons, including one purchased on Amazon. Chocolate, noted Alito, can poison dogs. Household chemicals might become a federal prosecution matter if not used in the proper fashion in a cleaning run. More widely, any local matter might become a national one if the right treaty was involved.  My kingdom for a "limiting principle"!

The issue here involved chemicals obtained in interstate commerce, a car was involved (another federally regulated item touching upon that) and the mails were affected (though she did not plea guilty to misuse of chemicals there). As noted here, perhaps the Commerce Clause argument is waived, but as Marty Lederman notes, that doesn't end the matter -- if the concern is appropriately national, even in the treaty context, an as applied challenge can fail.  Note the woman should be out of prison now, was also charged with a separate crime, but lingering effects still continue.

The link ("back") provides various materials, including the (to me) convincing lower court ruling and the brief of the government. Various important matters are addressed there. Why was this made into a federal case? After repeated attempts to handle things locally, which included being told the powder involved might be illegal drugs, her mailbox became an issue. The local officials counseled her to call the feds and the post office got involved. The feds also turned out to be more aware of the nature of the chemicals involved, both regulated federally because of their dangerous nature. And, only one was easily obtained by the general public, contra a quip by Paul Clement (yes him again) about Amazon.

Somewhat like the ACA cases, the limiting principle concern is misplaced here. As was the case in the seminal case on treaty power, Missouri v. Holland, the claim is not that a treaty can trump everything. It cannot breach constitutional no noes, including structural principles, though on that front, the ruling did note the case might be harder. Treaties are by design national and there is no "subject matter" provisions there, that is, even things usually local (like property claims) can suitably be found in treaties. The Treaty of Paris that ended the Revolutionary War is a case in point and a central concern was to have a federal means to enforce its terms.  One can probably imagine something not a treaty (e.g., not with a nation state), but the chemical weapons treaty at stake is not that.

Contrary to petitioner’s contention, her repeated use of highly toxic specialty chemicals to harm Myrlinda Haynes was not for a “peaceful purpose.” That commonsense proposition is confirmed by the statutory definition of the term, which is limited to socially productive, non-malicious activities. 

The concern here is that a purely local domestic dispute is involved here, either not covered by the terms or not a "proper" enforcement of the treaty in question. Misuse of chemical weapons is an international concern and this involves protecting against their misuse domestically.  There are limits -- “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes” and self-defensive usages (e.g. mace) are not included. But, she admitted to using the chemicals as weapons. The harm was thankfully minimal, but they are deadly chemicals, including when touched or inhaled. Her child was nearby. Carol Anne Bond was a microbiologist, just the sort of person the feds should have special concern about here. The locals misconstrued the situation. 

The quote above from the government's brief is on point -- it is improper and bordering frivolous to have the courts strike down this application of the law in question. Some narrow definition of "peaceful" is possible, but is far from necessary to "limit" federal power here. The statute is by its own terms limited. The concern, as with ACA, is that it is not limited enough and this is translated into "no limits," mixed with an opposition to the overall merits of the policy as a whole. It is far from clear that even as a matter of discretion that this prosecution was misguided.

There are likely specific applications of treaties that are problematic, including those that deal with matters that should be left to the states. Even there, unless some individual right or other express constitutional demand is involved, this should likely be a political question except perhaps in a crystal clear case. To quote Holland,* "a national interest of very nearly the first magnitude is involved" (chemical weapons) here. Migratory birds might be more national than misuse of chemicals, but necessary and proper here but "national action" is significantly essential here all the same. The facts of the case underline that leaving it to local action here was and is a dubious proposition. If nothing else, the legitimate discretion is there and Bond should therefore lose.

Wider specters however complicate things.

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* Justice Holmes had to deal with a more restrictive era when it came to federal power, but still obtained a 7-2 vote. He noted:

The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.

So is the case here -- the "radiation" is required when the amendment involved leaves those powers not delegated to the U.S. (e.g., the Treaty Power, power to regulate the rules of nations and anything necessary and proper for the same)  to the states or people minus those not otherwise prohibited to the same.  Is there some "activity" rule for treaties?

My Positions [No Labels!]

Cheers for Democrats, voting for judges is stupid and along with the judges, few voters will know about most of the ballot measures, except perhaps the casino gambling one. The voting guide received at least talked about the measures; even if I think judges should be voted on (maybe for housing judges etc.?), the lack of info on them makes that a joke.

Election Day

The vote to end the "Bloomberg Era" is today along with some other local offices, including judges (and a new line -- War Veterans Party?) no one heard about. A few ballot measures -- obscure property matters the people have to vote on, allowing casino gambling, increase retirement age of some state judges to 80 and expansion of disability benefits for vets.

"The Appearance of Impropriety and Partiality"

More on a dubious stay on a local stop/frisk ruling.

Pan Am

This was a short lived series concerning four Pan Am stewardesses and a pilot/co-pilot in 1963. Lots of subplots and world travel. Mixed results though as a whole it was an enjoyable way to end your weekend. The DVD puts one episode in its right place (though another seems out of place) and adds some interviews by actual stewardesses of that era.

MNF

Rodgers hurt early, so it is a battle of back-ups. Packers "D" looking pretty bad at the moment, Bears going ahead 24-20 and now driving after going for it deep in their own territory at 4th and inches (Packers had a shot at stopping them). Pretty pathetic ending.

In the courts ...

Given the likely result of the mayoral race tomorrow, the stay on an appeal of a now infamous (for some) stop/frisk ruling is probably most important for other judges. The USSC punted after the Oklahoma Supreme Court deemed a state law on abortion drugs an undue burden. Meanwhile, the 5th Cir. went out of it's way to stay a limited victory against the new Texas anti-abortion law. The USSC also released a slap-down per curiam.

Quickie Book Reviews

June Dwyer has an interesting little book discussing Jane Austen's novels -- not comprehensive, but good read. Garrett Epps' American Epic book on the Constitution was an interesting small volume approach but had one too many errors. The "Very Short Intro" on Islam was too boring. Falling Into the Fire was an interesting look at psychiatry in action.

Week 9

It's time to see what baseball teams do in the off-season, including the Mets -- the time is now with two big contracts off the books. Jets show something by beating the Saints, if with some stressful moments. Tampa still winless, blowing a 21-0 lead. Redskins help Jets by beating a final playoff slot rival. Bengals look bad, Viks let Dallas off hook.

Rev. Joe Gets Vapors At Blog Post Headings

Ask someone who has actually struggled to get healthcare and now can, and wasn’t really put off by a couple hour wait to finally get coverage:

This. I'm taking a week blog comments post hiatus.

Walter White (S1)

The group cast/crew commentary on the first episode was pretty good but did not like the next two episodes -- too drawn out both realistically and dramatically. Would have worked better if the material was combined into one episode.

"Due Process and Targeted Killings: A Law Professor’s Suggestions for Enhancing Procedures"

I have clashed with some who I think exaggerate the problems with the Obama Administration's approach, but repeatedly note that there is a reason for some concern. The "issue brief" (a great resource generally) here provides helpful discussion.

Walter White

Seeing hints (including an article marked "spoiler") about some big/controversial thing happening on Downton Abbey, now running in the UK. Killing Matthew isn't enough? Meanwhile, giving into the crowd, saw the first episode of Breaking Bad. Guy does drama as well as he does goofball comedy. Like the one shot of breasts -- hey we are basic cable!

"Government Takes A U-Turn On Warrantless Wiretaps"

Verrilli told the Court, would have standing to challenge the wiretapping. However, Verrilli later learned that, in two recent terrorism cases, prosecutors had not made those disclosures.

SCOTUSBlog links to the NPR story and has a five part series interviewing him as well.

"The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners"

Good guest column examining the effects on the "other" parties involved.

I Spit On Your Grave

I have seen this, including the inferior remake (did not see either sequel) a few times over the years, and still think it a serious effort (the original title: Day of the Woman). In one "director's cut" DVD, Joe Bob Briggs provides a mostly serious commentary and respects the effort though has some appropriately snarky moments. The director also reflects/provides a commentary. An interesting diner scene is not included in this cut.

Seminoles Agree To College Football Usage

The tribe helped university boosters create the costume for the Chief Osceola mascot, approving the face paint, flaming spear and Appaloosa horse that have no connection to Seminole history.

So it was in 2005, and so it is today, looking at today's paper. The practice to me and some of the tribal group is offensive, but the local tribe consents. That's their prerogative and it makes it different from the Redskins, including the offensive nature of the name itself.

Looks Like It Will Win 2-1 but ...

C-SPAN was airing audio from DC Circuit orals on the argument that for profit corporations can deny -- because of the religious beliefs of individuals behind them -- employees the right to use their own money for contraceptive coverage which in effect forces those individuals to give up a bit of their own rights. I find this argument so aggravatingly wrong.

Not taking them off the hook but ...

Former Vermont Gov. Howard Dean (D) contended Thursday that Republicans deserve some of the blame for the Affordable Care Act's bumpy rollout.

Has a point. Like Prof. Adler over Volokh Conspiracy being a bit of an asshole sniping at problems caused by PPACA not going to conference without telling us why (59 senators = filibuster), only one side being grown-ups causes problems. Sorry, it's not wrong to note this.

A New New Testament

I saw this in the library and am intrigued by it -- it is in effect a modern translation (by some accounts a bit too sex neutral -- "person of humanity" over "son of man" type stuff) and an addition of ten books, looks like basically gnostic works. Anyone see it?

Website Horrors!

First, let us remember PPACA has been on the books since 2010 and various things have in effect already has been "rolled out." As to the problem with the website for a key part, it's troubling, but I'm not horrified by it. People have a while to sign up and glitches are not shocking. Realize it is a f-up and looks bad. Perspective please.

"Citizenship of Haitians in Dominican Republic for decades threatened by court ruling"

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

One result of another path, perhaps wished by the "anchor baby" crowd exception to the 14A, is discussed by here today. The column doesn't pick up the comparison. Meanwhile, his paper shouldn't have included photos of an alleged 17 year old criminal in a sensitive case.

‘Muhammad Ali’s Greatest Fight’

Caught this dramatic account of the inner workings of the Clay v. U.S. proceedings mixed with actual footage of interviews with Muhammad Ali and the like. Some recognizable faces, including Maria's hubby as Justice Harlan, a sort of hero of the piece. Mixed bag that at times seems like a chance to throw out some good lines. Justice Douglas comes off particularly lame here. Good try and wouldn't mind other attempts like it.

Online Blues

In a discussion of "designer babies," I made what seemed to me a bland statement as to due care, but it suggests the perils of that online. First, the inference was that I was saying more than I was. Second, I had a tedious back/forth over just what being "careful" means and what "concerns" I have. I provide a long reply and that STILL isn't enough. Give me a break.

"Can Corporations Pray? The Next Big Fight over Obamacare"

I don't know if the USSC has to go as far as the principle (e.g., there is no substantial burden and there is a compelling state interest) stated in this well argued "issue brief," but it underlines why the challenges to for profit business corporations are so weak. A related if somewhat more expansive argument can be found here. Concerned about this case.

World Series -- Yawn

When a local morning sports guy polled the office, so to speak, about the WS, the general sentiment was little or no interest. He also agreed the Giants played poorly though his partner did note the defense played well. Vikings sucking there did help.

NJ Begins Same Sex Marriages

[As I type this, in a pretty badly played game -- though the Giants showed some more life in the Second Half -- the Giants finally won, finding a team more inept than themselves.  The 10-7 score at the half was a bit scary.]

Governor Christie’s office said that the opinion released last Friday by the state supreme court “left no ambiguity about the unanimous court’s view on the ultimate decision in this matter.” While the governor “strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people,” he said that the court had now ”spoken clearly” on New Jersey law and he would carry out the ruling through state agencies.

The "elected branches" voted for same sex marriage already, let us recall, and he vetoed it, saying it was public referendum or nothing.  So, any cry of judicial activism is a bit weak.  Gov. Cuomo (Sr.) blocked a legislative move to re-establish the death penalty, but didn't claim he was just doing it so the "people can decide" or something.  I would note there that when the legislature's action was upheld under Gov. Pataki, the law was struck down by the state court of appeals, the legislature never getting around to correct the provision that caused the problem.

Someone I know was upset at the turn of events here, though accepting (like many, a change from not that long ago) the idea of civil unions. I think the person's understandings is important here, in part because that is how it is supposed to work -- that is, in our republican democracy, the understandings of the average person is important. The understandings are going to be imperfect (someone at Volokh Conspiracy wrote a book on political ignorance and made various somewhat confused/drawn out points on the matter in recent days, but the basic idea of political ignorance, including it being in various cases rational as a matter of limited time and resources is not that profound), but we should try to do our best to make it as sound as possible. It's an uphill battle.

The basic logic of the ruling is that the NJ Supreme Court eight or so years back held that NJ needed to provide equal benefits to same sex couples as different sex couples, but marriage is not necessary. Shades of Vermont back at the start of it all. This was somewhat reasonable given the state of affairs at the time, if not really enough as to equal protection, less so as over ten states now have same sex marriage.  It is somewhat dubious, especially given it was a split vote then, that the NJ Supreme Court would rule the same way now -- it very well would do what the Connecticut Supreme Court did and require same sex marriages.

Anyway, after Windsor, state marriages now will have federal benefits, even in various cases when the persons reside in states that do not recognize them (as long as the marriages were performed where they are).  So, civil unions are not enough.  Now, there is an argument to be made that the federal government should treat NJ-like full civil union regimes like marriages for federal benefits (William Baude at VC has talked about this issue), either as a matter of policy (as the laws are written now) or as a constitutional matter.  I'm iffy there -- civil unions are imperfect creations and are not marriages. They might not be recognized by various states.  If the feds provide benefits to civil unions, I think they should change the laws first. And, since civil unions are not marriages, there is a reason to not provide the benefits under current law. And, unlike DOMA, sec. 3, it is not that the feds are denying benefits out of their own animus.

But, this is a state court case and under state constitutional law the courts do not have some ability to force the feds' hands. They are left with the situation at hand -- same sex marriages get federal benefits, same sex civil unions do not. This is not equality under the law pursuant to the state constitution per the earlier ruling.  If you accept, like the person I mentioned, same sex couples should get equal government benefits, what is the right move there?  I guess pressure Congress to pass a new law supplying benefits to civil unions.  This still won't truly supply equality, including as a matter of social understanding, which is partially important in various situations involving rights (at the hospital, e.g.).

The person, however, if forced to consider the point, probably would accept some problems given that "marriage" just doesn't mean same sex couples.  Why?  Well, the person was explicit -- God does not want that. That cannot be a grounds for the law under the First Amendment. There has to be a secular reason. But, many people ultimately oppose things on what amounts to be religious grounds, including here and in the abortion context.  The person did not want to accept that various religious groups, including Christian in nature, accepted same sex marriage.

As Mayor Booker, awaiting his swear in date for the Senate, marries same sex couples, my overall concern here is for people to understand the basics of this litigation. First, the NJ legislature, not the courts, were ready to recognize same sex marriage.  Second, without federal action, state civil unions are not equal to same sex marriage. Even if you don't like it, if you support basic equality of benefits, there is no easy solution there. At the very least, you should, on principle, push Congress to support a civil union benefit law, which Obama did when running for POTUS. 

I think that is not true equality, but it's better than nothing. Which same sex couples had as to federal benefits, underlining the court was right.

Jets Win in OT

I actually only saw the Jets kneel and play for OT, but that was fun too, including the missed FG/first application of new penalty/making more reasonable FG. Also missed a good SNF game where Manning's replacement won. KC had a shot to lose too, but a bad team let them off hook. Redskins/Bears was a score-fest/Bears QB hurt. Giants tonight.

World Series Sucks

The Cards are like some sort of playoff machine, a somewhat cheaper form of the Yanks, and then we have the Red Sox ... the beards alone (sadly, no Beard World Series, the Dodgers out) are annoying. Beltran (former Met) going as a Cardinal is also annoying.

SSM New Jersey (Pretty Much)

The NJ Supreme Court somewhat dubiously held civil unions were equal enough, but with Windsor bringing forth federal marriage benefits, it was on weaker ground. The legislature would have likely passed a SSM law by now without Gov. Christie using it conservative political football.  Everyone should just deal with the likely futility of further fighting here.

Kiss Me First

The idea of examining life in the world of the web, including created identities, is an intriguing one for fiction and the book here has some amusing (intentional?) satirical touches. The lead character is a bit much, not very pleasant either. Not that the somewhat exaggerated comments on the book jacket are quite right (e.g., making it sound like a scary thriller; the cover image is curious too). Overall, too long and in the end not very satisfying.

Persons Day

The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.

This is from an interesting Linda Greenhouse piece on "Persons Day" (10/18) in Canada, which honors a ruling that determined that women were "persons" for purposes of  eligibility to serve in the Canadian Senate.*  It can also be -- as Linda Greenhouse clearly means to do -- seen as as honoring living constitutionalism.  Scalia v. Kennedy is discussed here, but as the piece suggests, Scalia's brand of "originalism" (see, e.g., Shelby) leaves a lot to be desired even if we take it as a credible approach.

Repeatedly, I have seen this being sneered at (up to Justice Scalia) as akin to making shit up.  But, what I and others have called a type of "common law" constitutionalism to me honors not only overall republican / democratic values, but the true spirit of the founders. As Chief Justice Marshall noted, if for the purposes of determining the contours of the "necessary" and "proper" means of carrying out congressional powers:

Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Yes, the Constitution is "living" -- it "endures."  Why wouldn't it? If we look at how it actually was crafted, play in the joints was the very point:

In the draught of a fundamental constitution, two things deserve attention:

    1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

        2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

Just what "interstate commerce" entails or "equal protection" would be a matter of fact and analysis that is determined by current understandings based on the wisdom gained from experience. The application will be done by the various institutions set up or referenced by the document -- the three branches of the federal government, the states, the people, the press, religious groups and so forth.  They will in some fashion be limited by those "essential principles" and "general propositions," but just what they mean -- the individual branches of the tree -- is not set. When the document makers wanted to remove such a thing, they used more specific language, such as the age required to be a President or senator. This doesn't answer specifically how the courts should operate, such as when to determine popularly passed laws should be declared unconstitutional.

The basic principle, even when applied in a system where parliamentary supremacy gives more complete power to the legislature (and thus if anything might warrant more judicial restraint, given legislatures can "update" as necessary), is shown here as being of long standing. A ruling in the 1920s is just one sign of many that the approach is not some latter day means to "make shit up" but to faithfully apply the law.

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*  One issue here was the common law principle in place at the time that held "women were eligible for pains and penalties, but not rights and privileges." The inequity of this can be seen and it also influenced the women's right movement in this country. Citizenship brings with it both duties and benefits, equal rights feminism respecting both.

Strip Club Denied Again

Stephen Colbert had a segment regarding applying an artistic tax exemption to exotic dancing, which turned out to be a close question.  The USSC denied review.

Dodgers and Detroit Win

With Kershaw, even down 3-2, Dodgers have a shot to take this the distance. Detroit held serve or something. Mariano Rivera was on Charlie Rose!

Hey, Losers?

Can you stop screwing with the country for your performance art shit? Thank you. And, screw you to all their enablers while others have to play adults, who, both parties aren't the same # whatever, seem mostly to be Democrats. We need a better second party.

Rev. Joe -- Russell's teapot

Passed upon this just now. Not claiming either is alone is enough to make the case, imho "Why I Am Not A Christian" convinced me more than C.S. Lewis' "Mere Christianity," which to me was poorly argued and a bit of a trudge. Update: To give Lewis a second chance, reserved his book on grief and "The Great Divorce" one. Not into Narnia.

Red Sox Win 1-0, Up 2-1

Lost 1-0 and came back late via a grand slam to win ... this round is about pitching.

Schuette v. Coalition to Defend Affirmative Action

A voice from the past, one Beverly Mann, was cited in the SCOTUSBlog round-up today with an analysis on how consistency (without hobgoblins?) will require upholding a lower court ruling that struck down an measure that inhibits certain types of affirmative action. We shall see, especially with Mr. "guarantee equality to all people" Scalia. [My view.]

Still ... Jets Won (Well, in Hockey)

NY Daily News coverage has a basic "Geno Smith messes up" theme, but sounds like only one mistake was blatant and the end result probably could have been just a less lopsided loss. A 19-16 affair would look nicer, but it still would be a loss. A mistake-free outing might have done it. Didn't happen. Disappointing, especially after a good end of the First Half.

"The Liberty of Free Men"

And Also: A "don't get too big for your britches, boy" (no racist overtone) game/loss for the Jets. One earned run in two games last night. Cards, ugh, up 2-0. Ugh to Boston too.

Finally, the record of the past in which all battles are decided and many pains forgotten whereas the most distinguished characters, actions, and works stand out more clearly and in a more final form than they did in their own time, may lull us into a false security and indolence in view of the pains we have to suffer, the decisions we have to make, the actions we have to accomplish, without yet knowing the outcome.

— PAUL OSKAR KRISTELLER: The Classics and Renaissance Thought. [qtd. by Chafee]

Zechariah Chafee, who we saw in a recent book on Justice Holmes' Abrams dissent, knew a bit about that.  He was a leading scholar/promoter of the liberal view of free speech in the age of repression back in Holmes' era and was still around when McCarthy came to town.  The quote introduces a collection that looks to the historical origins of constitutional rights, but with a bit less humility, it applies well to Chafee (related to the politicians and somewhat similarly of the old school New England Republican school of that name) himself. 

I have a book that collects Chafee's lectures on "three human rights in the Constitution" (legislative freedom of debate, barrier to bills of attainder and the freedom of movement (quoted in Kent v. Dulles; the whole thing is available in the above link) as well as a second boo, The Loyalty of Free Men for which he provides an introduction. This book is by Alan Barth, who in his time also had a reputation for promoting civil liberties, here -- in 1951 -- in effect dissenting from the McCarthy Era as it barely had begun as well a passing denunciation of the "basic stupidity" (or some such statement) of Japanese internment.

Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.

-- Justice Holmes

Prof. Chafee cites this early statement of a recurring theme of Holmes, but  even when judicial restraint is appropriate, he does so to remind us that "liberties and welfare" must be protected by "the people" and their representatives.  For instance, he argues that just because the Speech and Debate Clause provides broad discretion to legislators, even to say things that might be deemed slander elsewhere, this doesn't mean they should be left off the hook. Maybe, if we thought litigation was the only way to protect the rights of others. But, here Congress is given the power and responsibility of self-regulation -- including expulsion.

The ultimate responsibility of liberty comes in various forms, which is something to remember as one reads Barth's book, which provides a basic instruction book of freedom in a perilous time. Concern for loyalty campaigns, academic freedom, free expression of scientific and other things deemed sensitive, punishment by publicity and the perils of the growing power of the FBI (including surveillance*) has applications for today. Liberty and due process for Barth was not only essential for basic freedom, it had pragmatic value. So it was in 1951, so it is today.

I will now add some more discussion of Barth's book. One impressive chapter takes the time to fairly express the motivation of those who joined the Communist Party, being sure to  reaffirm the party proper is a bunch of reprobates and colleges would be within their rights to not hire (putting aside later questions of tenure or removal) communists since one has to be pretty misguided to seriously be part of such a party, at least after the 1930s. Also, especially by the time of the writing, the party is just too small in America to be a threat. It really is silly for let's say Hoover, who is deemed a reasonable sought overall, to take at face value, e.g., their allegations that for every one party member, ten are in the wings. They in effect exaggerated their membership, especially with fellow travelers and such techniques as groups with most "names" merely on the letterhead. 

Still, especially given the state of affairs in the early 1930s and the ability of Russia to mislead regarding their own totalitarian tactics, it was understandable some joined the party. Various reasons were give, such as their social gatherings, personal guilty of some for their good fortune, moral confusion, the idealistic ends they supported (such as racial equality) and overall their basically religious revival nature. The party had a creed, code of conduct, ritual and even the priesthood of sorts of a church with the evangelistic drive of those that sought converts in early Christianity. The "crusading religion" theme is also reflected by the beliefs of some that going against the party was really an act of heresy.  Such an approach can also be applied to other political movements, down to the Tea Party. One need not support them to say this.

The historical distaste in English history of test oaths was an important theme and an argument made in response to oaths demanded after our own Civil War was cited.  One folksy example made concerned a Quaker who told his dog, Tray, that he would not kill his loyal friend. But, he did give the dog a bad name and let Tray go ... "somebody else did kill Tray." And, putting a person in prison or making something a crime is not the only way to punish. When one's livelihood, perhaps one's long career, is at risk because of rumor or bad words, is this not penal? Is this not as much of a deterrent at times then a criminal sentence?

An early use of Godwin's law, much closer to the Nazis, is also cited. The fact that the FBI is not the Gestapo, nor generally has a malevolent purpose does not mean its actions are wrong or problematic. Insert appropriate quote from Brandeis' Olmstead dissent.  Also, it is noted that cops generally are not seen as heroic figures -- seems a lawyer, newspaperman or other amateur solves the crimes in popular fiction. But, the FBI is somewhat of an exception here. Today, people often similarly distrust the police in various respects, except when they do not.

In the chapter on the importance of open discussion of matters of science, it is noted that the public needs to understand the basics to be informed about public policy questions. They need not be experts in nuclear physics here. The same general thing applies to other matters, so enough with the humble pie "I'm not a lawyer" preface.  Washington was not a lawyer.  Also, in respect to the use of the nuclear bomb (or even killing a burglar), the basic principle that even if a serious act is right or rational does not mean one will have no guilt about it, will not second guess. This is only human given the stakes. And, the hubris of the idea of a "preventive war," and the trivialization of potentially nuking a few Soviet cities was noted. Finally, balance was deemed necessary -- total openness of nuclear secrets is not demanded to not overdo the secrecy overall.** 

Chafee in his introduction says Barth's book is important for at least two reasons -- it is a "fresh and persuasive presentation of the strongest arguments for determined maintenance of freedom of thought in a self-governing country like ours."  Others have done that, but it's useful to provide it in the language of the current era, using immediate examples. Barth does this with various quotable statements and examples. Second, he "tells us what has been going on." He is a "sort of war correspondent," the war here on our civil liberties.  You know, like blogs today.

Chafee has a bit of that in the book cited too, if not quite as smooth in its prose.  One good line -- "History should be a jailer to enlighten us, not a jailer to shut us up."  The Constitution "is the skeleton of a living nation," the words "for meeting the needs of our time," even if the history (as his account shows) is useful to know and understand. To finish the metaphor: "All of the Constitution grows while the life of a great community changes."  A "living Constitution" is no epithet to him.

The "Americanists" of today, good intentions or no, who are disloyal to our basic values would not likely be a surprise to either of these two distinguished characters of our past.  "Political discussion has been debased ... by shrill" people today as well, the "accusations of disloyalty" of only somewhat different sorts -- we even have McCarthy's double in Ted Cruz.  This basic lack of maturity includes those who apparently think park closings are the most important aspect to the current governmental shutdown.  Current voices, latter day Barths and Chafees, provide some light, but they will do in a pinch as well.

And, a special thanks to libraries and used book sellers from which I can get such items, even the ability to download Chafee's book for me not a great alternative to having them in my hands.

---

* The book cites a 1930s federal law that limits the power to divulge information, even if obtained by governmental wiretap to investigate and prosecute crimes.  Given the actual text of the Fourth Amendment, it is suggested, if not stated crystal clearly, that wiretapping per se would be unreasonable. This seems unlikely today, but on principle it sounds sensible -- by nature, a wiretap is a "general warrant" that vacuums up everything, not very "particular" (to allude to the 4A) to what it picks up.

** The tendency of certain classified or otherwise secret material, including files on certain people deemed security risks in some fashion, to be leaked was also addressed. This was deemed unfortunate, but total openness here was not demanded. How the author would react to current data dumps such as Wikileaks or Snowden is an interesting question.

Touch

These days, with so many options, movies do not have the same flavor for me as in the past when going to cinema was a special weekly event. But, film still has its charms, including indies like this that are enjoyable character studies. Loses a bit late, but has a realistic sensual feel, including hints on how to re-ignite a marriage. Meanwhile, checked out Dan In Real Life again, interesting commentary. A bit too precious, but enjoyed the film overall.

Note the cover

VP's name dominates with the co-author in tiny font. Then, we have the title and a reference that alludes to a series just beginning.  The cover pic is a bit vague with a James Bond-like silhouette. Somewhat generic, like the book, which is I guess okay for its kind.

Happy Halloween! (After Another NYG Horror Show)

Usual case of early Halloween episodes. This one was okay.

Blowback

It seems to have taken a while, but Valerie Plame's spy thriller (co-written by a genre writer with a goal for a series) is now out. Light (so to speak given its plot), quick reading largely has its now celebrity author as a draw. On its own, somewhat bland with trite elements.

Sports Thursday

Verlander shined again; the As starter was human this time. Series: Tigers. Giants were driving late down by six and then yet another turnover. 0-6. This is sad.

Pirates Lose

Two shots at it, but the Cards are like a f-ing bad penny.

Anna Chlumsky is All Grown Up

While apparently the whole pitching staff took part in a Rays 3-1 loss, watching Veep on DVD -- the first four episodes each have two commentaries (Veep/crew & rest of cast). Repeats have been repeatedly on, but never manage to watch parts of these episodes. And, darn, I remember My Girl. How you have grown. Oh, Tigers won a run-fest. Series tied.

"How Do Liberal Supporters of Citizens United Feel Now?"

Guess many deem me a "liberal," don't know if I'm a "supporter," but I warily at least thought the result was right in some respects. Still (as noted here) appreciate a clear understanding of what is at stake and don't think all campaign laws illicit (Kagan's dissent here seemed convincing). I'm unsure where I lie on this case. Meanwhile, remember Tom DeLay?

Supreme Court Begins -- Campaign Finance

This coverage underlines the difficulties of relying on school and work to provide health care. Talking about those at Jesuit institutions, the well named "Zephyr Teachout" is guest blogging, including about today's campaign finance case (various posts). She is informative and nicely is engaging with comments. Interesting on "corruption."

Baseball Playoffs

Some excitement -- Rays held on for another day, each closer blowing a save. Braves blew it -- got ahead of Kershaw on an error, Freddy Garcia pitching well, but after a failed sacrifice, a two run homer did the trick for the Dodgers late. They are the first team to advance. Pirates have one more shot at that. Go Pirates! Tigers aren't scoring, down 2-1.

Jets Win v. Champs

After a messy penalty filled win and a turnover fest loss, it was a fairly clean game with no turnovers on the Jets side. Down 17-7, the Falcons decided (no FG) to go for it twice at the end of the Half. The Jets won it by two via a go ahead FG after blowing a 13 point lead (soft scoring drive/penalty extending drive). Ha ha. Game the rookie and team can build on.