"Does Elena Kagan want to ban books? No, and she might even be a free-speech zealot."

[Richard L. Hasen, the expert on campaign law, wrote the title article. This is a reply I posted over at the Slate fray.]

Since free speech matters is one area where Kagan has something of a track record, it could be useful to use her writings and advocacy as something of a window into her philosophy and possible actions as a justice.

She will likely try to limit the questions in various cases because of her role when advocating the various positions, including as solicitor general. The article does this somewhat itself, including arguing that she was new to the job and was coming into an active case. OTOH, her roles here will be used to provide not only bona fides as to experience but also assurances to those on the left (and elsewhere) who are worried about her positions (or lack thereof). A bit of having your cake and eating it too will occur. See this very article -- the idea she might join the majority in Citizens United will not please many Obama supporters.

The banning books matter provides a ready soundbite, though one of questionable value given (1) the popularity of the legislation at issue and (2) Stevens dissented in Citizens United. As with the keeping military recruiters off campus/hate the military soundbite, it is also misleading. This doesn't quite take her off the hook. As she noted in oral argument, books were never targeted and if they were, it would be a good "as applied" challenge. OTOH:

Chief Justice Roberts: But we don't put our (.) we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

General Kagan: I think a (.) a pamphlet would be different.

A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.

So, no Federalist Papers in book form, but the individual essays ... Okay, but are we talking "ban" here or not? The article notes:

But to these justices, requiring the corporation to set up a separate fund to pay for corporate election-related spending was a "ban" on speech, because PACs impose administrative burdens on those who run them. And thus the idea that the government was ready to ban books was born.

Lots of concerns are raised regarding "freedom of speech" that does not directly go to "banning" the speech itself. For instance, the Court determined anonymous pamphlets by individuals was protected under the First Amendment. Freedom can be burdened without directly banning the specific matter. And, so is the case here -- this regulatory regime is complicated and expensive. It also in various ways prevents corporations and unions directly to speak, indirect methods set up, particularly PACs. It "bans" them in that respect. We then determine if that's okay.

It is quite true that we can only take so much from what Kagan advocated as solicitor general, though I'm inclined to believe that taking that position (or the role she had under Clinton) means she is generally sympathetic to the views of the administration as a whole. We are not just talking total hired guns in such political positions, are we?* There is some debate on what her First Amendment views, including in the political campaign regulation context, truly are. Thus, the "blank slate" quality of her nomination.

Articles like the "private speech/public purpose" one that are tasked as 'descriptive' of Supreme Court case law do only so much to help fill in some details. She provides an extended analysis to argue that illicit motive is a primary concern in Supreme Court cases in this area; it isn't the only concern, but it appears to her the major one. Is this a good thing? She doesn't really want to make such a normative determination, her role understanding what the Supreme Court decided (which now will be her new role). For instance:

Democracy demands that sovereign citizens, through each generation, retain authority to evaluate competing visions and their adherents to decide which ideas and officials merit approval.

So a law with a motive that invades such choices would be wrong. But, how much of a "zealot" is she? Any number of "motives" might be considered that seem not to invade such democratic decision making (e.g., to protect animals by not portraying their harm -- at least, this can be claimed; I'm not supporting it here). Hasen notes that "she is deeply concerned about incumbents passing laws to protect themselves from competition." But, is a law concerned with legalized bribery (as some say) okay? Kagan in FN143 here suggests the problem with the case overruled in Citizens United, but it is unclear to me if she supports the recent ruling or felt some other governmental interest should have been used to uphold the law.

Free speech along with presidential control of agency decision making seem to be the two areas where Kagan actually has some significant scholarship to her credit (though the latter is specifically focused on one seminal article). Where she falls is unclear, though a fair bet would be a type of Justice Breyer.** Focusing on her support of "banning books" won't be helpful, but when "regulating pamphlets" might be okay ... well, we might have an opening.

Some more discussion of her views can be found here. Bottom line, a confirmation hearing should somehow be a chance to determine how a specific candidate is different from another -- they aren't all fungible, even if pablum hearings try to convince otherwise.

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[footnotes added]

* To the degree Obama is not liberal enough, or whatever, his nominees will in various cases be somewhat upsetting to critics.

** This is an educated guess determined by such things as her purported pragmatic tendencies, her support of Justice Breyer's approach in that department in her "presidential administration" article (certain executive action is appropriate if it advances certain ends; this seems related to the "motive" analysis of free speech, where a restrictive law might be legitimate if it furthers certain ends) and Obama's use of him as a model in his campaign biography.

Another Way in Arizona?

A Slate article today suggested allegedly neutral checkpoints might provide a means better than the current infamous "papers please" law passed:

If Arizona truly wants to identify undocumented aliens in a way that does not undermine legitimacy, it should try randomized checkpoints. Checkpoints are widely used by police to enforce drunk-driving laws and other routine safety checks—such as seat belt laws—that save lives.

To the degree that concerns are cited that the new law invades the federal realm regarding regulation of aliens, this solution seems of limited value. The same basic possible state invasion of a federal regime seems to be involved.

Second, the interests cited here underline that such checkpoints have been upheld for limited regulatory purposes. Having the general public being randomly checked, as compared to drivers those at borders or certain transportation hubs and so forth, seems to me "unreasonable" under the relevant precedents. Also, visual checks for alcohol or seat belt use is not quite the same thing as checks for immigration status, which involves racial characteristics and requests for identification. The likely effects in practice and social effects as well are different. The latter has some troubling self-incrimination concerns as well. Finally, one thing appealed to by many of the rulings is that one basically could avoid such stops by not driving or the like. If that was the case here, the value would be much decreased.

Police can do a good job finding offenders without having to play their hunches. Policing agencies are required to have a good reason to set up a checkpoint, of course.

It would interest me what this would be.

But once a checkpoint is set up, individual officers don't need to exercise their discretion. In fact, they can't under constitutional law. In the absence of discretion, the harm of being publicly targeted dissipates. And when officers don't need to invest in looking for individual offenders, but rather stop people on a routinized basis, they treat them equally and—we can hope—with more respect.

The discretion would be determining where to set up the checkpoints and having the proper authority to do so, the extended time and effort necessary not to be wasted when the courts determine they were acting illegally. Outside of border areas (and then core cases focus on federal action), has it been decided that such checkpoints are allowed? If so, why haven't they been used? Perhaps, like some sheriffs who oppose the new law, they find them relatively unhelpful to deal with the problems at hand?

It is questionable if such regimes will in action be as neutral as suggested here. Their legitimacy might still be questioned. But, their value as well. The reason for so many undocumented aliens is basically because the powers that be like the idea of a cheap labor force and support policies that encourage mass influx of people -- legal or not -- from Mexico. This is one reason current federal laws regulating hiring such people are so weakly enforced. Avoiding the point with makeweight solutions will be as useful as past measures that do not address underlining concerns, though when dealing with such mega issues, this admittedly might be all that is possible in the current climate.

Checkpoints might be of some value, I guess, but I'm doubtful.

[Update: Over at the Slate fray, I was told by a resident that the feds have such checkpoints. At one point it was noted primarily in the southern part of the state. It was unclear to that person how additional ones -- if the resources were really there to staff them -- would be that much more useful. Perhaps, if there was no more 'drug war' -- well, yes, that is one influence on the problem anyways, including a major increase in violence and disorder in certain major Mexican cities.

Another person basically reaffirmed my suggestion that in practice they would be carried out in a discriminatory way while being deemed intrusive without the limited possible (at least in the public's mind) value of a sobriety checkpoint. Some reference to employer/employee checks also were made, one person suggesting there might be constitutional limits to that (don't really buy it -- Congress, e.g., has power over interstate commerce and immigration matters, which can in that limited way include some identification requirements).

Again, the limits inherent in the system are apparent. As to national id cards, much debate on that in the past, privacy and technological matters raised. I'm left again with the idea that the supply and demand is high enough to suggest some panacea is not likely, if even we as a whole really want to make the real efforts necessary to do it. This "solution" in particular is dubious.]

Mets Do Good

Though giving fans heart palpitations in the ninth, the Mets aces did their job with some help, the home series against a weakened Yanks won. Now the (new) back-end has to face the Phillies.

The Wedding Song

Filmed with subtle eroticism and dreamy intimacy, the girls’ bond becomes a compelling love story that will be tested not only by personal grudges but also by anti-Jewish propaganda and inflamed animosity for the French colonists.

It is the eroticism and intimacy, so rarely truly provided in film, that is particularly striking. The rest is good too.

Mets' Hell: What's on the Plate Today?

Takahashi and Vazquez trade zeroes for six, the former working harder at it. Two runs (one earned) score after an error sets it up, some nonentity doing it. Wright gets last out, tying run on second, after striking out with two on in seventh. Can't watch that shit.

Rand Paul Again

Even people not bothered by his position allowing discrimination are bound to react badly to his dodging a question for a whole interview and then trying to pretend his position is different from what it clearly was. He looks like simultaneously a dodger, flip-flopper, and extremist. Just one day after the primary, wow.

See a comment here. As I said as he was speaking, this was the worst part of it for me. You can see what got him in trouble on the Rachel Maddow show here and here (legal analysis of his confusion), various analysts focusing on his views. And, that's fine. But, his refusal to be upfront about them should get more emphasis. It's connected as well since it is typically how horrible views continue -- they are believed and accepted, but not truly brought out in the open. In fact, when they are, the people who try to do so are blamed:

"I think what you've done is you bring up something that really is not an issue, nothing I've ever spoken about or have any indication that I`m interested in any legislation concerning," Paul told Maddow near the end of their long discussion about the Civil Rights Act. "So, what you bring up is sort of a red herring or something that you want to pit. It's a political ploy. I mean, it's brought up as an attack weapon from the other side, and that's the way it will be used."

Rand willingly came on Maddow's show, early (by some accounts) in effect announcing his candidacy there as well. He is supposedly to be respected as an independent voice, someone running against the establishment candidate. Yes, we might not some of his views, but like his dad, we should be happy he honestly stands by them, some of which can have cross-party support. This would include the opposition to so many foreign wars, though some suggest he is toning that down at tad.

Instead, he can't answer direct questions (basic questions about seminal pieces of legislation are mere "abstract" matters anyways -- aren't libertarians and such all for first principles?) and instead whines that it all as "politics" and gotcha journalism from the left. So f-ing lame. A real worthwhile candidate would be willing to be upfront about and debate their views. Query: okay, you mostly support the Civil Rights Act, so if your attempts to try to modify them failed, would you have voted for it? (After all the noise, he finally said "yes") Would you have supported a filibuster? What does regulation of public accommodations have to do with firearms, anyways?

"Well, there's 10 -- there's 10 different -- there's 10 different titles, you know, to the Civil Rights Act, and nine out of 10 deal with public institutions and I'm absolutely in favor of," he told Maddow deep in their 15-minute interview. "One deals with private institutions, and had I been around, I would have tried to modify that."

Maddow -- getting annoyed at his filibustering and avoidance tactics -- finally asked "yes or no" as to keeping blacks from Woolworths lunch counters. Again, he was all about how he wouldn't support such businesses (blah blah) but if you are against that you in effect are supporting micromanaging all private business, including (bugaboo time!) their right to have guns. Is this some guns in Starbucks deal? Anti-discrimination laws are still around, the current issue sexual orientation. And, if strong beliefs honestly defended isn't his thing, what is the point of electing the guy?

The basic premise is off, clearly, but he doesn't really want to talk about it, apparently. Justice Douglas once noted that a business (often subsidiaries of big corporations) is not the same thing as a private home:

But a restaurant, like the other departments of this retail store where Negroes were served, though private property within the protection of the Fifth Amendment, has no aura of constitutionally protected privacy about it. Access by the public is the very reason for its existence.

Yes, it is still in some form "private property," but the thing is that all property is regulated, particularly public businesses. "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." They are deeply regulated by the state, and just as racial covenants cannot be upheld in the courts, racial discrimination in this context is the state supported discrimination Paul says he is wholeheartedly against. The first Justice Harlan knew this back in 1883:

In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.

The Supreme Court never overturned The Civil Rights Cases, which held a 1875 civil rights act against discrimination in public accommodations was an improper use of congressional power to enforce the Fourteenth Amendment. The Civil Rights Act of 1964 therefore used a back-up approach: regulation of interstate commerce, which the Supreme Court upheld though Douglas and Goldberg noted Harlan's approach was perhaps better. Again, it was not merely "private" but the regulation of the economy. Douglas again:

Business, such as this restaurant, is still private property. Yet there is hardly any private enterprise that does not feel the pinch of some public regulation -- from price control, to health and fire inspection, to zoning, to safety measures, to minimum wages and working conditions, to unemployment insurance. When the doors of a business are open to the public, they must be open to all, regardless of race, if apartheid is not to become engrained in our public places. It cannot, by reason of the Equal Protection Clause, become so engrained with the aid of state courts, state legislatures, or state police.

Justice Harlan -- as discussed by Justice Goldberg's opinion in Bell v. Maryland* (a sit-in case) -- noted that the right to equally be served in public businesses is a "civil" right. It is not a "social" right alone, the argument of Rand Paul. Both Douglas and Goldberg in various opinions underlined that the responsibility of "common carriers" to serve the public equally has a long history. Justice Harlan's argument is that Congress surely has the power (mixed with the responsibility) to apply that rule to prevent racial discrimination. If "[t]here is one, if there be no other" right given by the Fourteenth Amendment, it was the right to be go to a public business without being stopped because of one's race (broadly understood to include one's nationality or even one's religious faith).

The other two justices went a step further -- even without congressional legislation, a state had no power to allow otherwise, enforcement of racial discrimination in public accommodations not "neutral" but illegitimate state action. Original understanding was somewhat mixed on that, but Goldberg provides some signs that it can be deemed loyal even by that rubric. They note that legislative action was not the only way racial discrimination was allowed -- common law, legal custom and executive action also did the trick. It is naive to suggest segregation was "voluntary," given social custom, but governmental action also popped up all over.


So, Rand and libertarians in general cannot not confuse the Civil Rights Act with invasion of private associations or the right of people to be hateful. Public businesses are not private associations. The line drawing here can be complicated, including when dealing with large business associations or the specifics of discrimination laws. I'm sure lots of interesting stuff about regulations of business (including labor law) can be imagined. But, basic points can be settled. This includes basic understandings of historical events that simply are not that long ago.

I can respect but strongly oppose people with views that are simply wrong or misguided at best. But, they have to be willing to honestly discuss them with some degree of skill. Or, I will simply find them both wrong and distasteful. Too much of that already. Paul is no breath of fresh air in that department.

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* Robert M. Bell later became an attorney and in 1984 was appointed as a Judge to the Maryland Court of Appeals, a court that had ruled against him in Bell v. Maryland, and where he became its Chief Judge in 1996.

Latest Mets Drama

Checked the score and it was the second inning, the Mets up 3-0. But, hey, something had to go wrong: Maine was out after five pitches (Valdes went 5+, again doing well, including a hit and bunt; better time on bases) because his pitching looked hinky.

I Am Murdered: George Wythe, Thomas Jefferson, and the Killing That Shocked a New Nation

Bruce Chadwick provides a thumbnail sketch of his book here, which is not only about a botched murder investigation but about the great man "murdered" and his times. Excellent teaching method. Good read though repeats some of the Wythe stuff and slights the trial.

"Mets triple play and an inside-the-park home run by Angel Pagan not enough in 5-3 loss to Nationals"

Headline says it all. Also, "Dickey was reasonably effective and lucky, allowing two runs in six innings in front of Pagan's stellar defense." But, a ball sneaked through and Nieve (slipping) iced it. Getting but one run in a bases loaded, one out, situation didn't help.

Rand Paul: Same Old BS

The guy was on Rachel Maddow and asked about a state newspaper that said he is opposed to federal civil rights laws barring discrimination in public accommodations. He avoided the question forever, finally sort of addressing it, talking about freedom of association. Total b.s. filibustering move.

Mets Struggles On

So far Pagan hit an inside the park home run and started a triple play, which bad baserunning made so easy that he could have did it unassisted. This helped Perez's replacement/knuckballer get a no-decision through six though it was not that easy.

U.S. v. Comstock: Let's Not Take It Too Far

I am talking about the 7-2 decision in Monday's United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a "sexually dangerous" person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it "granted the federal government unprecedented authority over civil commitment—an area long controlled by the states."

Dahlia Lithwick is responding to a ruling that has gotten some people nervous. But, is it a traditional realm of the states to determine when to release federal prisoners?

As noted by the article, the Supreme Court (via split decisions for which Scalia/Thomas supported broad state power) already held that such a basic civil commitment regime is allowed under the Due Process Clause though it requires some limitations as to determinations of dangerousness (S/T dissented in that case). The liberals dissented 5-4 in regards to extended detention past the time they were sentenced criminally.* Let it be noted, however, those deemed dangerous to others now can be detained civilly under a 'clear and convincing' standard as a general matter.

The law here provides some safeguards, including court hearings, treatment, requirements to transfer even sexually dangerous criminals once their federal sentences are up if states are willing to take control of them and putting certain decisions in the hands of directors of the treatment facilities -- who have to notify the court when the person is deemed no longer dangerous, including pursuant to treatment regimes where such lack of dangerousness might be a matter of drug treatment or oversight. This doesn't necessarily justify it, but we aren't talking "throw Padilla in a hole" somewhere type regimes.

As to federal power, the case looked at five general interests, taken as a whole. Any one piecemeal might not have been enough. The concurring opinions, probably rightly, were somewhat worried about the open-ended nature of some of the language. But, in a different context, five votes would not be there (e.g., a general murder statute), so potentially overblown dicta really should be taken with a grain of salt. The issue here are federal prisoners, not even some health insurance regime, which anyways, could be defended by recent rulings like Gonzalez v. Raich (the medicinal marijuana case) anyways. The ability to detain those deemed mentally unfit also is different from enemy combatants, including those Obama wants to detain for fear of dangerousness that is not mental but criminal or perhaps somehow military.

Leave an opening, it often is taken, but it also is important to not make more of an opening than it reasonably can be understood to provide. The feds might try to use selective quotations of the ruling for their ends, but nothing unique to this case in that regard. Bottom line, I might not like the power given to detain people civilly in respect to those labeled dangerous sexual deviants, but given the power was held there already, the application here does not seem unwarranted.

Thus, a 7-2 ruling, with two "federalists" wary at some of the language in pro-federal power Justice Breyer. At to the article's reference to Obama, this is pursuant to a congressional statute (related to one upheld decades ago), and if he tries to apply it to non-germane matters, sure, call him on it. Enemy combatant regimes etc. aren't to be struck down on federalist grounds though. As to basic concern for federal power, again, Scalia and Thomas was less protective than some in the majority in that general area most of the time, weren't they?

It is a win for Kagan as SG, after a few losses. Any port in a storm.

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* To update that point, the liberals dissented on somewhat narrow grounds, allowing civil commitment if it was less punitive. As Kennedy noted in his concurring opinion:

If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

And, a follow-up opinion partially addressed that concern. But, again, though discussion of this case tends to elide past it, this case is about enumerated powers, not such due process concerns.

British TV

Doc Martin, about an anti-social doctor not comfortable with blood, is a spin-off of the Craig Ferguson movie Saving Grace. Well done, first three seasons available at link. Co-star plays a detective in Murder in Suburbia, also fairly enjoyable. Didn't see her in The Vice yet.

Rima Fakih: Muslim Plot or Just Babe?

Some are wary that left (aka sane) leaning Muslim (or Muslim enough) folks are winning beauty contests these days. Now this! Clearly, the Barbie Doll runner-up should have won. OTOH, the winner is rather hot. But, why no love for Miss NY?! Racism, I bet.

Children Are Such Scamps, Aren't They?!

Or something. Funny article; I think we can handle the word "shit" though and passing your cursor over the link to the website tells you it anyways. Perhaps links can be use for other words?

Obama Goes The PTB Route

Meanwhile President Obama is hitting the phone lines with robocalls for Specter and Lincoln.

IOW, for establishment candidates in an anti-incumbent year, both who probably deserve to lose. Way to go!

Odds and Ends

Illegals Id: The NYT had an interesting article on some locales providing id for illegals. This goes beyond the drivers' license issue and suggests a useful middle path to take that provides some security in the process:

The local identity cards do not grant legal residency or the right to work. They are intended to fold illegal immigrants into the fabric of the community by giving them entree to services and places that require some sort of recognized identification. In Trenton, immigrants can use their cards to access libraries, medical centers and doctors’ offices; seek help from charitable organizations and private social service agencies; and use the city’s public recreation centers and pools.

LWOP: Kennedy/Stevens have been consistent as to "juveniles are different" and the severity of LWOP, though Stevens applied both with stricter hand. See, separate opinions by each.

Film: Enjoyable Walter Matthau/Glenda Jackson romantic comedy, House Calls, was on yesterday. I with him: she's a good catch. Jackson retired from acting and became a Labour member of Parliament. She still is. The two joined again in Hopscotch, a lighter version of the book by the same writer.

Sports: Interesting article on how flag football had been a mild success as a female school sport.

Supremes Decide Teen LWOP Cases

And Also: The list cited by the fourth comment here is but another useful bit of perceptive to answer the "same old, same old" complaints. As with Kagan, criticism of Obama and the Dems need not rely on caricature.

The Supreme Court today decided that the Cruel and Unusual Clause of the federal Constitution "does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime." Events might lead this to happen in practice, but "some meaningful opportunity" must be left open at sentencing. Dahlia Lithwick discussed the orals here. For another analysis of the opinion (of which I basically concur; I'm not overly enthused about the "counting noses" approach but it probably has some relevancy particularly as to "unusual") see here.

Five justices, lead by Kennedy, set forth an across the board rule. Danger of mistake, a decreased ability of minors being able to help in their cases and the need to give all a chance of rehabilitation and/or release warrants such an absolute rule. International practice was cited as informative but not determinative -- we interpret our own law, but current analysis of it in this area is aided in some fashion by seeing how others address similar problems.

Chief Justice Roberts agreed that it was unconstitutional as applied to Graham (Sullivan's case was tossed out as improvidently granted) given the totality of the circumstances. But, citing some possibilities by name (a bit curious, that), there very well might be other cases where the heinous nature of the offense or clear culpability of the offender warrants such a punishment.

Thomas dissented, joined in full by Scalia, Alito not joining in a section discussion original understanding and some analysis of precedent. Roberts respected such analysis but noted that it is not at issue here, since the litigants relied on precedent. This underlines that the conservative bloc is not always on the same page.

Stevens (with Ginsburg and Sotomayor) wrote a short statement rejecting Thomas' opinion, particularly underlining the evolving standards of decency rule and the importance of the courts' role in applying it (Thomas et. al. would mostly leave it to democratic processes, but also rejected the analysis of the majority on what they as a whole did decide).* Sotomayor apparently is not only to be honored for empathy, but also for acting emphatically. [See also, the same two, but not Breyer, joining Stevens' dissent in a cross display case.]

[Update: Reading the opinions via the .pdf file provided by Scotusblog, I missed Alito's brief dissent, which the link provided here makes more apparent.

Alito first notes that since only a sentence of LWOP is disallowed, even one of forty years could very well be acceptable. This does show a line drawing problem, but only up to a point -- it is still significantly different if these defendants had a chance of getting out of prison in their fifties as compared to never. Cf. "The Man Without A Country," sentenced in the Jeffersonian Administration, dying while still be punished in the Lincoln Administration.

He also argues that "the question whether petitioner’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sentences is not properly before us in this case," but Roberts disagreed, arguing the broader argument made allows a lesser one as well.]

It is hoped that Sullivan will eventually get relief pursuant to some other action. [See here for some discussion of that case's complications.] The matter of life without parole for minor murderers is left open. The blog just cited suggests the theory of this ruling very well might apply to "lesser homicides" too. Probably so. Anyway, I will end it there.

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* Thomas' footnote three calls the majority to account for not addressing the "threshold" question regarding the original understanding as applied to this practice. He cites an opinion on the point but selectively -- the opinion notes this is "at minimum" what the Eighth Amendment commands and then follows up with the "evolving standards of decency" rule.

Stevens is troubled by Thomas' implications that original meaning jurisprudence would require allowing seven year olds to be detained for life.

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

But, Thomas' bare citation is only of limited value since it addresses a "common law" (which itself is open to development) rule regarding detention and perhaps execution of minors. Since extended detainment -- particularly given the embryonic nature of the prison system in 1791 -- is quite different, I'm not sure how far that takes you anyways.

Mets Go From First To Last Place

That was fast. Hitting iffy, reliable starting and relief pitching has fallen to the wayside now too, with errors helping today too.

Obama's Jurisprudence?

And Also: Not that it was a surprise, many against the decision when the three year contract was signed, but how many times will we have to deal with Perez's pitching? Isn't it lovely an alternative is now a back-up for the Phils, while the twelfth man kept is still on the DL?

Dahlia Lithwick -- who is popping up all over the place including on Colbert -- had an article recently on the jurisprudence of President Obama. This led me to write this:

From Audacity of Hope:

I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

His respect in the "fidelity" of the Constitution reflects the views of Goodwin Liu, who he nominated for the Ninth Circuit. Liu offers the left a chance for a strong constitutional theorist to be on the courts, someone many might wish will wind up on the Supreme Court. Both place an important place in "deliberative democracy" to give meaning to the Constitution; to quote Obama:

in which all citizens are required to engage in a process of testing their ideals against an external reality, persuading others of their point of view, and building shifting alliances of consent. ... [O]ur individual and collective judgments are at once legitimate and highly fallible.

This suggests he has a pragmatic view of judging, judges guided by a Breyer "Active Liberty" (to cite his book) approach, which furthers deliberative democracy and certain basic freedoms found in the document. The concern for democracy can fit in with Obama's concern for a judge who applies the law with the eye of the average citizen, his concerns for "empathy" in that regard. [See here and here for discussion of how "mere background" is not the deciding factor there. Her elite status is not promising as much as someone else in that regard, but it is not disqualifying empathy-wise. Kagan's ability to relate well with conservatives is a sign in that department.]

Kagan's most cited work, a discussion (with approval) of how presidents in recent years have taken a more direct role in the administration of laws, cites Breyer with approval. This includes the possibility of something like a line item veto (struck down via an opinion by Stevens that Kagan felt was poorly reasoned, supported by Clinton) or other congressional/executive policies that some might think give too much power to the President (cf. Stevens joining Scalia in dissent and Breyer joining the plurality here).

But, that he trusts to fallible process, fallible enough that the courts should give them some discretion unless the Constitution in some fashion blocks the way. Of course, there are various areas where he thinks this occurs where others do not -- up to a point, for instance, abortion rights are protected by various provisions. For instance, it can be that it is a choice taken out of the democratic process or (the Ginsburg approach) necessary for equality inside it.

Even here, he has a more flexible view than some, probably less so than Stevens in various ways. Rehnquist was seen as an ideal for someone like Bush, so he was replaced by his law clerk, John Roberts. Stevens is only an ideal for Obama up to a point. Breyer is more his ideal, so we who want a Stevens were set up to be disappointed, instead getting a Kagan.