The Caning

I deleted a Howie Rose is leaving post -- misunderstood -- just leaving WFAN. I thought The Caning (of Charles Sumner) interesting, but think the idea it was as important ("drove America to Civil War") to events a bit dubious. Also, like the Holmes book, could have been edited a tad. It also does not cite Sumner's work in Roberts v. Boston, a glaring oversight.

Blaming the Victim

h/t RH Reality Check. Too true.

Sports Sunday

An ump mistake helped lead to two Brewers runs, their own led to the Mets win (74th again), last year's closer doing the honors today. The Yanks took forever, but finally gave the Astros their 15th straight lost. Took a WP in the bottom of the 9th, but Marlins ended with a no-hitter. TB/Texas have another game. NY football was ... not good.

Rev. Joe: ULC Marriages Again

Have discussed the "everyone can be a minister" ULC Church (contra The Fosters, you can become a minister online for free), including the hazy nature of NY law regarding their ministers marrying. As in the past, saw multiple references to ULC officiants in today's NYT wedding announcements. If NYC registers them, NY as a whole should clarify its okay!

Now and then, a reminder ...

(ORDER LIST: 570 U.S.)

THURSDAY, SEPTEMBER 26, 2013 [:] CERTIORARI DENIED

13-6541 (13A307) DIAZ, ARTURO V. STEPHENS, DIR., TX DCJ

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

A Wild Justice

Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.

-- Francis Bacon

I talked about Susan Jacoby's discussion of revenge here and providing that title to a book on the death penalty is less debatable when it is particularly sympathetic to the abolitionist side. But, the story of the road from Justice Goldberg suggesting that the death penalty itself might be unconstitutional to Furman et. al. (opaque striking down of particular laws that many thought would be a permanent ban) to Gregg et. al. (death penalty per se constitutional, but "death is different" and it cannot be mandatory) is well-rounded, the other side provided as well.

As noted earlier, the book is well written and a brisk read (one chapter on the social science of deterrence/rationality is a bit dry at times) even though the main text is about four hundred and fifty pages.  A few times, certain things said were off (e.g., Powell opposing Roe v. Wade as strongly as he did Furman -- one of the sources, The Brethren, noted that he was fine with the result of Roe; if he means some of the reasoning, that should have been clarified). But, that happens, and underlines that things shouldn't be taken as gospel. Bart Ehrman would say the gospels shouldn't be taken as gospel, so to speak.  But, this only happens rarily.

You can listen to various oral arguments and even opinion announcements, including Justice Marshall's dissent from the bench in Gregg. One concern there was that retribution (which the first link suggests is not necessarily "revenge") justifies the death penalty.  Marshall doesn't deny some form of moral "retribution" is an illegitimate aspect of punishment. He just thinks that execution is an inappropriate form of it, either as excessive or for other reasons.

Justice Stewart in his separate Furman opinion (he later was a member of the "troika" who handled the Gregg opinions) noted:

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.

I too am not ready to say that retribution cannot be an aspect of punishment to meet constitutional requirements. I can understand that some might not want to grant this even for the sake of argument. But, Marshall is right -- is not even life imprisonment not enough to meet such demands?  For some prisoners, it is harder to handle, as we saw with a recent suicide.  Focus on what people "deserve" can at times deny the humanity of the prisoner, but there should be some middle ground.  Woodson v. NC,* a companion case, set it:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Justice Stevens noted at the time that he thought the "evolving standards of decency" did not yet require the abolition of the death penalty. Stevens, Blackmun and Powell eventually deemed that to be the case one way or the other (though they might have rested on due process grounds).  And, the justices (on both sides) judged things wrongly there in Furman -- society was not ready to do away with the death penalty and instead passed new laws to try to meet the procedural concerns of the deciding votes.  This is how constitutional law develops, properly so, and I think the rulings were good in a limited sense for setting some guidelines.  The machinery of death is not worse with them, is it?

This is not to say that some aspects might be worse. The point here is that requiring some safeguards and limits helped in various cases. It is of only limited value, yes, and I think the death penalty as applied and in general is unconstitutional. Still, note that even in Baze v. Rees, where Stevens announced this sentiment, he concurred.  At some point, you have to deal with the limits of the possible, which led many justices in the past to go along even if they rather not. The Brennan/Marshall stock dissent approach is defensible given what was at stake, but of questionable value.  Brennan knew the value of compromise.

The abolitionists as well as other parties in the book also had imperfect options and choices. The book covers this ground well.

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* The opinion also accepts, now as a clear statement of the law, that "death is different," and warrants some degree of more special care.  This was a litigation strategy with some pushback -- wasn't the concern for arbitrary results etc. likely to call into question the whole justice system?

Now, the law clerk that helped Blackmun write his dissent stating he no longer would tinker with the machinery of death wrote a book saying "yes, it does," but this does not mean deprivation of life, liberty and property should be treated the same. It is not. It should not. There are levels of wrong, even as applied to specific cases. Realistically, there is only so much imperfect groups will do, the job of some to push them.

Supreme Court Book Shelf

A Wild Justice (death penalty) per one review "contains few surprises," to those in the know, but the well written and "add depth" part makes for a rewarding read overall. I found The Great Dissent: How Oliver Wendell Holmes Changed His Mind [etc.] on the Abrams case overall less rewarding. Somewhat repetitive personal look though some aspects (like the background violence of the times discussed in one chapter) were well written.

Quickies

Sen. Cruz referenced Dr. Seuss during his publicity stunt (he's a politician; why not?) Here's a serious analysis by someone local. The continuing problems of lethal injection.

Where "dignity" is a bad thing ...

Interesting article discussing Scandinavian prisons. Meanwhile, over at VC, the resident fan of Sen. Cruz (still normally a decent sort) finds a confused analysis of Windsor somehow "very interesting." No surprising really, since the guy was confused about the Prop 8 case too. Finally, little nits are driving me crazy here. I feel like Joba in Cleveland a few years back.

Yanks Eliminated

A mixture of great managing, grit and middling competition made it last much longer than it really should have, but it happened tonight. Rays/Indians streaking to the finish line, Texas a bit behind. Royals (best improvement, not playoff edition) technically alive as are the Pirates for NL Central, but the Cards will win ... of course. It's really just positioning now.

Legislative Prayer Case

I'm wary of the Town of Greece case -- my feeling is the best result is likely a narrow bad ruling. Think that might be why the SG provided a questionable brief though the Administration is also religious friendly anyhow. The discussion here is nice, except it would seem to warrant the overturning of Marsh v. Chambers. Not going to happen.

To Kill A Mockingbird Names

The use of names (including Tom as a "mockingbird" defended by a "finch") is interesting.

Mets Season Winding Down ...

I think they are going in the right direction though this off-season with money coming off etc. will be a key moment. Collins kept the team together though made some stupid in game decisions. If Wally B. isn't going to be hired, re-signing him seems logical. Don't think a draft pick warrants all this "just lose!" talk. Always want them to win. So do they.

Quickies

Powerful video at NYT on a major health scare from the early 1960s. Conservative Republicans think many of their group are trolls too. Celebrate "banned book week" with a book on penguins! Problems with even "easy" death penalty cases.

Sports Sunday

UGLY day for the NY Giants; the baseball Giants might have put a nail in the Yanks postseason hopes as home fans said goodbye to two greats. The Rangers are falling apart late again too, might not even have WC game this time. Jets survived a very sloppy game. Packers didn't quite come back. Dolphins 3-0. Bears won.

Human Rights, Constitutional Rights

I re-read Charles Black's A New Birth of Freedom: Human Rights, Named and Unnamed, which rests human rights on the Declaration of Independence (life, liberty and the pursuit of happiness), the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. He provides some good stuff -- a defense of judicial review including given we don't really have majority rule, ways to reason out unenumerated rights in a common law way, how positive benefits are necessary for happiness (if mostly the responsibility of legislative action) and a realization that this is all imperfect, but human rights are worth it.

Black provides the usual shots at substantive due process, but again, I think it's logical -- due process involves the government not denying LLP without proper authority and limited government puts a certain floor on what authority it has.  It is an illegitimate "procedure" to substantively deny certain things.  But, it is good to have firm grounding on where these rights arise from, and the sources (including if one deems "God" of the DOI as metaphorical) provided are good ones.

Black is correct that the at times hesitant application of SDP is problematic. Still, judges are likely to be wary at times if told to overrule legislatures on "pursuit of happiness" grounds too.  The book also at times could have used an proofreader -- for instance, the Supreme Court did strike down on First Amendment grounds a law before 1937.  It also is not an in depth look at how the Supreme Court actually applied the provisions -- there are numerous citations to the DOI, a few to the 9A and some to the P/I (including concurring opinions) that could have been usefully cited.  Still, the book's message as a whole shines through.

The book cites Palko v. Connecticut as a misguided defense of substantive due process. It is ironic that the opinion speaks of "privileges and immunities" but given precedent relies on due process, including for freedom of speech.  One thing that caught my notice though given a recent post here on conscience is this:

If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought, and speech.  Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. ^[n5] The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that, even in the field of substantive rights and duties, the legislative judgment, if oppressive and arbitrary, may be overridden by the courts.

An extended excerpt is given to give a flavor of the defense of substantive due process. Note though the "freedom of thought" and "liberty of the mind." Is not a liberty of conscience clearly a component of this general principle?  The rule here would guard against thought control by use of sci fi means, but it also respects the ability to have the freedom to determine right and wrong based on personal conscience. This is a major reason abortion rights (among other things) are so compelling to me -- it is a "sacred choice" that should be largely a matter of personal conscience, often clearly based on religious faith. 

Human rights, including positive rights (such as to health care), are fundamental and broadly of constitutional dimension. Black's little book is a good read there, even if a few things should be taken with a bit of salt.

Windsor Is A Pretty Good Opinion

Have seen some references to the case (e.g., Volokh Conspiracy has an ongoing series about various moves by the feds to set policy*), and as is the case for Roe et. al., there are the usual potshots at how flimsy it is. I retain, yes seriously, my belief that it was a pretty good ruling.  As usual, this is partially a matter of the likelihood of imperfection when dealing with group efforts and justices who are not [fill-in blank] level wordsmiths or have the legal chops of [fill-in blank] and realistic compromises. Still.

The opinion begins with the facts and a reasonable discussion on why it is appropriate for the Court to rule on the case, even though the President supported Windsor on the law. For instance, they still were not paying the money, while she wanted it. The opinion also explains past practice where amici were accepted to argue one side, as one case cited noted largely "[b]ecause of the importance of the questions raised by the Court of Appeals’ decision." The Chadha ruling also is a good case here, in fact, Judge Kennedy wrote on the use of legislative amici there below. So, it is also sound not to decide if BLAG standing was necessary -- there was adversity between Windsor and the U.S. and BLAG provided amici value to forcibly make the opposite argument, providing adversity there.

Six judges in fact accepted the Court was right to take the case, with Alito joining that, though going further, and firmly giving BLAG (one House of Congress, mind you) the right to defend a law that isn't being defended (it was after all being enforced). Alito argued that the U.S. was not the right party, since they in effect wanted Windsor to win. But, be that as it may, they were still enforcing the law. He makes a decent argument, which only goes so far. OTOH, we have the idea of one branch of Congress stepping in to protect Congress' handiwork.  That seems off to me.

The majority then talks about the general practice of the states having power over domestic relations, including marriage, though noting the feds still have power over such things in various ways. The opinion notes:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.

The opinion suggests there is a federalism angle here, but does not decide the case on that ground. It explicitly says this. It isn't hard. The case rests on the equal protection component of the Due Process Clause of the Fifth Amendment.  Since classification is made here, it is appropriate to look at the nature of the use of federal power here, particularly its novelty:

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

The opinion then discusses why this is a violation of equal protection, leading with the red flag that the "unusual deviation from the usual tradition of recognizing and accepting state definitions" is "strong evidence of a law having the purpose and effect of disapproval of that class." This, to be blunt, is f-ing obvious. It is tiresome really to have people deny it.  Section 2 of DOMA, redundant it might be, deals with state recognition. Section 3 singles out one type of marriage from which to deprive both benefits and obligations, among all other new developments (the opinion does a good job here of noting how marriage develops via the people of each state's changing recognition of its nature**).  As the opinion notes, the text and history of the law makes this even more clear.  As does the House Report.

The result, again as the opinion notes, harms the couples in question. Justice Alito faces the merits and notes the feds can decide to favor one type of marriage over another.  Why?  As to same-sex marriage not being "deeply rooted," nor are other types of marriages. I have seen this selective vision, including from law professors, but then illicit discrimination often is a matter of "habit rather than analysis" of wrongful practice. This is a major route to "stereotyped reaction." It is not "deeply rooted" to have each different sex partner to be an equal partner.  This is "beyond dispute," to quote Alito, given coverture rules, etc. The selective application of DOMA on same-sex couples shows an animus.  The reference got some complaints, especially if it is taken out of context without looking at the opinion as a whole, but this is right:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The idea for some here is that the Court is saying that the Congress and the President who signed DOMA were just a bunch of bigots. Not really. The case cited involved a law targeting hippies. It was deemed unconstitutional, an illicit targeting of the group in question. They were not supposed to just be a bunch of bigots.  A "bigot" is a particularly offensive animal. An illicit law can be a product of various things, harm at times justified by the parties on various grounds.  It is simplistic to not understand the full context of the reference, though yeah, DOMA was pretty bigoted. Sorry.  As the opinion notes in its conclusion, DOMA:

is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

The reference to "dignity" and other such empathic sounding language annoys some too. But, it is appropriate to talk about how laws that harm should be found illegitimate.  "Dignity" is a common term used by various justices in various ways. It is not novel to this case and I have my doubts that some totally bland opinion would satisfy the critics. Yes, Kennedy has a certain style, like each justice does, but it is evenhanded; the same sort of thing might pop up when he writes about an affirmative action law being illegitimate or why ACA is unconstitutional, to the degree he had some part in the writing of the joint dissent.

I have no desire to claim the opinion was perfect, but as a whole, it is a pretty good opinion. One final complaint is that the opinion did not do enough to answer the supporters of DOMA, particularly the reasoning put out there in its defense. Section Three of DOMA was clearly put in place because same-sex couples in particular were deemed unworthy of federal marriage benefits.

An argument is put out that it deals with the novel issues of a new type of marriage, including the questions now being dealt with by the Obama Administration. But, why is this particular form of marriage supposedly in need of such a fix?  Why is this particular form of "new marriage" warranting special treatment?  It's true the majority could have addressed this issue (Kennedy has a bad habit of not addressing dissent arguments directly), if only because the answer is so clear.

The final concern I'll address is the question of scrutiny. The 2CA and the Obama Administration supported heightened scrutiny here, at least intermediate review, which is the standard for gender. The Court did not decide that sexual orientation warranted a special level of scrutiny, following the more opaque approach of Lawrence (and in a different respect, Heller, which also didn't decide the question, though it made clear rational basis wasn't enough).  I respect the lower level of activism here as well. The opinion did not require a firm answer to the question, since the specific law was blatantly unconstitutional. 

The Court did have something to say and it somewhat favored the 1CA opinion (which also covered federalism) on the question. The opinion speaks of "careful consideration" when discrimination of an "unusual character" was involved.  It quotes Romer here, and at least when a "politically unpopular group" is involved, such policies would warrant what some call rational basis plus (however it is phrased, this was also suggested by more than one justice during orals). In effect, Justice O'Connor's Lawrence concurrence (based on equal protection and cited by the Court in CLS v. Martinez)  is starting to become clear law.

The Solicitor General was on C-SPAN yesterday as part of a panel talking about last term and the upcoming USSC term and noted how the Administration pushed for a level of scrutiny stronger than applied to types of eyeglass distributors, focusing classifications by personal characteristics (a step beyond immutable characteristics), lack of political power and so on.  He didn't get all that he wanted on that front but didn't do all that bad. The test seems to me to put state DOMAs at risk, they too novel latter day blunderbusses against unpopular groups.

Traditional bans on same-sex marriage are not as unusual and that is one reason why Windsor all by its lonesome doesn't get you there quite yet.  It helps, surely, including concern for "purpose and effect," which is one more nice thing -- sometimes a high level of intent has to be shown, even when a policy deprives someone of liberty or equal protection.  The intent very well might even be there, such as driving while black, but phony "innocent" grounds can be found to paper over the effects.

All in all, I liked the ruling, its flaws on balance are quite forgivable. 

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* The choices seem reasonable, but it really seems -- not that the split Congress is likely to handle it soon -- like something that warrants a legislative clarification. The issue is complicated, some matters are based on domicile, and some on places of celebration.

With the two so significant as compared to most marriages, this is likely to advance full equality, including by litigation.  The decision for the feds rests on current law and practice, but there surely is wiggle room.  I do wish more discussions remind people that back in the day interracial marriages raised similar difficulties.

** Letting this development continue without having the feds single out one type of marriage is a reason why the opinion is different from setting in stone SSM for each state. Such development is how our common law Constitution works, particularly when deciding larger questions is not necessary to settle specific "cases" and "controversies," which are for a reason taken one by one.  Judicial restraint here is not worthy of scorn.

Also, once the states in question recognize the marriages, federal non-recognition is particularly dubious. For instance, as cited, federal ethics rules don't apply even to state-married couples.  The underlines the Romer-like overbreadth, even if we pretend that neutral reasons justify the statute. Note the rational basis with teeth scrutiny provides less looking the other way, so "pretending" is less appropriate here.

Supreme Court Watch

The Obama Administration is asking the USSC to settle a dispute over the contraceptive mandate, focusing on RFRA claims of for profit corporations. Which is weak on several levels. Pope Francis is trying to change the focus of things, without simply not being Catholic. It is silly to use this issue to draw a line in the sand even in Catholic institutions. When applied to for profit corporations, it is inane. Still worry what the USSC will do.

Going Where Kory Stamper Fears to Tread?

Miley Cyrus was in a decent Disney show, but now she wants to continue her career by being all well slutty might be a word for it.  Played out for me. "Twerking" sounds like shaking your butt or something. Don't know it? It's her latest thing, apparently.

Girl in Progress

This is a relatively rare serious female coming of age story (with a parallel story involving her single mom) co-starring "Maria" from The Fosters.  The mom's bf also will be familiar to some. Her friend also is a familiar teen show face. The film itself was pretty good.