My favorites are the sixth one and the second-to-last one.
No More Converts
From the Associated Press 10 minutes ago:
President Bush commuted the sentence of former aide I. Lewis “Scooter” Libby Monday, sparing him from a 2 1/2-year prison term in the CIA leak case.
From today’s Washington Post this morning:
Bush has virtually given up on winning converts while in office…
Ya think?
Jobiversary
Today is my six-month jobiversary.
Concurrence Hell
I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.
Here are some examples, from simplest to most complicated.
First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:
There’s the unanimous opinion:
SOUTER, J., delivered the opinion for a unanimous Court.
Then there’s the case with a lone dissenter or concurrer:
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.
There’s the case with a few dissenters signing one opinion:
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
There’s the case with a partial concurrence or dissent:
SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.
There’s the case with both a concurrence and a dissent:
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.
There’s the case with multiple concurrences and/or dissents:
ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.
There’s the case where it gets a little more complicated:
SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.
ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):
STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.
So much for judges being mere umpires!
Boycott Fedex?
FedEx is denying insurance benefits to civil-unioned spouses of their New Jersey employees.
Smaller companies that buy private health insurance plans for their employees are compelled to offer them to same-sex couples under the state’s civil union laws. But most legal experts agree that federal regulations give companies with self-funded insurance plans — a group covering 55 percent of the country 105 million working-age employees — the power to ignore state laws regarding corporate benefits.
Boycott?
Impeach Cheney
Here’s another call to impeach Dick Cheney.
If you haven’t yet, read or skim this fascinating four-part series the Washington Post ran this week about how Cheney combines his extensive knowledge of how the executive branch works (based on his years of government experience) with his obsession with secrecy to get whatever policies put into place that he wants. It’s a clicheé that Cheney pulls Bush’s strings, but there’s a lot of truth behind it.
The thing is – what would impeaching Cheney really accomplish? Not much, necessarily.
All the Constitution says about the vice-president’s duties is that (1) he becomes president if the president dies and (2) he breaks tie votes in the Senate. What Dick Cheney’s actually done in the White House has nothing to do with the vice presidency. If Cheney’s impeached, what will happen? So he won’t be able to break tie votes in the Senate anymore? Big deal. There’s nothing to prevent Bush from allowing Cheney to continue doing whatever he’s been doing even if he’s not the Vice President. After all, look at Karl Rove’s influence, and he’s not even an elected official.
The only reason it would be useful to impeach Cheney would be to prevent him from being president if Bush were impeached. That’s about it.
Schools and Race
Regarding today’s Supreme Court decision limiting school districts’ use of race to achieve integrated schools, my former law professor says:
In thinking about the Seattle Schools case, one would do well to keep Powell’s opinion in Bakke in mind. [Note: Bakke is a 1978 Supreme Court case about the use of affirmative action in university admissions.] At the end of the day, the real story here is not that these plans were struck down, despite what tomorrow’s headlines might say. The real story is that the Court, through Justice Kennedy, approved the careful and considered use of race-conscious measures to achieve integrated schools. The Court, in other words, did not prohibit the use of race, but explained how it could be used.
Supreme Court Struggle
If the Tony Awards are the gay Superbowl, then the last week in June is the Superbowl for law geeks. The last week in June is the final week of the Supreme Court’s term, the week when the Court usually issues its rulings on the toughest or most controversial issues on the year’s docket. These often result in the most complicated lineups, with pluralities, or splintered majorities, or numerous concurrences and dissents, which is why it takes so long to get the opinions issued. (Conveniently, this timing also gives the Justices an excuse to get the heck out of Dodge right after they rile up millions of people.)
There’s been a lot of anguish among liberals about Monday’s three 5-4 decisions that could be construed as leading to “conservative” results: Morse v. Frederick, in which the Court found it constitutional for a principal to punish a student for unfurling a banner that said “Bong Hits 4 Jesus” at a school-sponsored event; Federal Election Commission v. Wisconsin Right to Life, in which the Court essentially said that corporations and organizations have the presumption of freedom to endorse candidates by flooding the election system with their money; and Hein v. Freedom From Religion Foundation, Inc., in which the Court said that taxpayers do not have standing to challenge the White House Office of Faith-Based Initiatives merely because they are taxpayers. Additionally, tomorrow morning at 10 a.m., the Court will probably gut affirmative action laws in two school segregation decisions by a 5-4 vote.
None of this should be surprising. As the Washington Post’s Andrew Cohen wrote today:
Justice Samuel Alito is more conservative than was his predecessor, Sandra Day O’Connor? Go figure. Chief Justice John G. Roberts Jr. is a lot less beholden to court precedent than we were all led to believe? Can’t be. He told the Senate Judiciary Committee over and over again during his confirmation hearing that he would respect precedent and try to build consensus on the court. Justice Anthony Kennedy isn’t the second coming of the moderate O’Connor or the more liberal Souter? What a surprise! The election of 2004 (and 2000) mattered in shaping the court? Who knew?
However – and this is where my post take a 90-degree turn:
I don’t think the conservative justices are demons. (Not all of them, anyway.)
Because the thing is – law is hard. If these were easy decisions, they wouldn’t need to be decided by the Supreme Court.
Okay, not totally true – there are plenty of 9-0 decisions each term. But there are always a bunch of 5-4 decisions as well, and even 6-3 decisions.
Granted, not every 5-4 decision is hard. For example, Bush v. Gore was easy as pie but five justices blatantly and deliberately misread the law.
But they’re usually hard.
There are many times when I read (or read about) a Supreme Court decision and feel angry or annoyed at the result, and I think to myself, “Damn that Justice X!” or “Damn that Justice Y!” And yet… sometimes, underneath my anger and certitude, I find myself uneasy. Because even if I’m angry at the result, I’ll think to myself, actually… those justices do have a point. Or at the least they have a good argument.
I’m not too angry at the student speech decision – the majority made clear that it’s a narrow decision. (It was only Thomas, in his lone concurrence, who wrote that students should have no free speech rights at all, not even as to political speech.)
As for the decision about the Office of Faith-Based Initiatives, it wasn’t really a case about the separation of church and state; it was a case about standing. (This sums it up well enough.) Is the commingling of church and state an issue that’s so crucial that it should trump the usual rules of standing? You can argue no, because isn’t the Court only supposed to rule on actual controversies between aggrieved parties? You can argue yes, because if there’s no standing here, than where are we supposed to turn when the government violates the First Amendment? (Arguably, a secular institution could apply for Faith-Based Office funding and then sue when it’s denied that funding.)
Then there’s the campaign finance decision. On the one hand, shouldn’t Congress be allowed to make laws that try to fix our screwed-up campaign finance system? On the other hand, under the First Amendment right to free speech, shouldn’t an organization have the right to spend money on ads to take positions on the issues of the day, even if those ads happen to mention political candidates? Aren’t organizations allowed to campaign in favor of candidates?
I don’t really know where I stand with regard to many Court decisions. It doesn’t really matter what I think – I’m not a Supreme Court justice, I don’t have to make the decisions. But for my own benefit, for the sake of my own intellectual integrity, I sometimes struggle with these matters. (And heck – I just find it interesting.)
The fact is, I think I agree with the so-called “conservatives” more often than I’d like to. Not all the time – but more than I’d like to. And that bothers me.
The fact is, these are hard decisions. (Say it again: “Law is hard!”) They’re not cut and dried. The law does not exist in a vacuum; there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.
The problem, as Dahlia Lithwick pointed out today, is that the majority on the Roberts Court – and particularly the newcomers Roberts and Alito – just seem “mean.” But it’s not really that they’re mean; it’s that they seem to lack humanity.
We’re looking for some sort of acknowledgement from the majority that these are hard decisions, not cut and dried; that the law does not exist in a vacuum; that there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.
The justices avoid any mention of humanity because they’re afraid to admit to us that they themselves are human. That’s why they wear black robes – to create the illusion that they’re high priests with exclusive access to the knowledge of What the Law Is. They fear that if they admit that these are hard questions, they might lose legitimacy in the eyes of the American people.
But they would appear more legitimate to us if they openly struggled with these issues. They would appear more legitimate if they acknowledged the truth – that the world exists in shades of gray.
Kushner/Harris on Gay Marriage
Playwright Tony Kushner and his partner Mark Harris have a letter in today’s New York Times (full text below) in response to David Blankenhorn, who was featured in an article over the weekend as a self-described liberal who opposes same-sex marriage.
First, an excerpt from the article about Blankenhorn:
Mr. Blankenhorn readily admits that the “deinstitutionalization†of marriage that he fears — the redefinition of what he considers the nation’s “most pro-child institution†as a private adult relationship stripped of public meaning — has been under way for a long time. Deeply rooted in American individualism and the quest for self-fulfillment, that redefinition “has been growing for decades, propagated overwhelmingly by heterosexuals.†Same-sex marriage only further erodes marriage as a pro-child institution, he believes.
When I read that on Saturday I got steamed.
Here’s Kushner and Harris’s letter in full, since it’s behind the Times paywall:
To the Editor:
Re “A Liberal Explains His Rejection of Same-Sex Marriage,†by Peter Steinfels (Beliefs column, June 23):
If there’s anything liberal in David Blankenhorn’s arguments against same-sex marriage, it went right by us. His opposition to same-sex marriage rests upon two familiar conservative notions: the view that interventive “protection†rather than encouragement is the best way to bolster the presumably threatened institution of marriage (the same foundation on which conservatives stood decades ago when they opposed racial intermarriage); and the idea that gay marriage is insufficiently “pro-child†to merit legitimation.
Significantly, Mr. Blankenhorn does not extend this second argument, which insults so many gay parents, to childless heterosexual couples. The basis of the discrimination he advocates, in other words, is homosexuality.
“Liberal†Mr. Blankenhorn reassures us that he isn’t a bigot and proposes an “interesting new conversation†in which same-sex couples who want to marry can learn to stop misjudging the people who would deprive us of the legal protections heterosexuals enjoy.
But the solution to our disenfranchisement is not a more amiable conversation with those who seek to perpetuate it, whatever their self-justifying pieties.
We call ourselves married, but we’re not, legally, and we want to be. We’re fans of the Declaration of Independence, the 14th Amendment and Brown v. Board of Education, and we want equal treatment under the law.
Mark Harris
Tony Kushner
New York, June 23, 2007
Incidentally, here’s Harris’s and Kusher’s wedding announcement in the Times from 2003.
Dahlia v. Dellinger
I adore Dahlia Lithwick, Slate.com’s Supreme Court writer, and therefore, I’m enjoying her annual back-and-forth with Walter Dellinger over the Supreme Court’s big end-of-term decisions this week.
Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase “Bong Hits 4 Jesus” can be read as “celebrating drug use”; indeed to get there he needed only insert the imaginary words, “bong hits [are a good thing].” When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say “bong hits [will kill you].”
…
[A]fter today, a majority of the court believes students can hold up banners that say “legalize drugs,” but not banners with strings of random drug words unconnected by a verb. Attention students: You can still be political at school. But the Constitution stops protecting you the moment you cross the line into merely weird.
…
Bong hits 4 Jesus? Bong hits for me!!
Salon Advice
Interesting advice column on Salon.com today. A gay reader asks, regarding his hot, sexually ambiguous coworker:
Um, do straight guys ever say to another guy, “You have pretty eyes”? I mean, I can see a straight guy thinking that, perhaps, but saying it?… I don’t want Mike talking to me like that unless he’s sexually interested in me…
One of the commenters probably gets it right:
I’d say write off whatever signal he’s trying to give you because he sounds like he’s playing games. Phenomenally handsome man who just happens to choose to work at an AIDS care facility? Where men undoubtably will drool over him? And he does not respond? Sounds questionable. Out of nowhere compliments you in a way that cannot be written off as “I just like to give a compliment when I notice something”? But then insists he’s just “comfortable” saying that? Sounds questionable. Let’s face it, nothing about the guy sounds generous or kind. That’s the sort of person you’re dealing with.
Even if he’s a gay man. Even if he wants in your pants, and he means NOW. Don’t do it. This sounds like a major narcissistic personality. That will not lead to anything fulfilling, even in the arena of one-night-stands.
Of course, as another reader points out, Dan Savage probably would have handled this much more succinctly: “the jerk’s a cocktease.”
On the other hand, the guy could just be starting to explore his sexuality. Who knows.
Homo History
Homo History: The Comprehensive, Unabridged, and Completely Indispensable Guide to Everything a Queer Person Needs to Know About Queer History from the Dawn of Humanity to the Present.
Thomas on School Speech
In a concurrence to the “Bong Hits 4 Jesus” decision announced this morning, Justice Clarence Thomas announced that he believes public school students have no First Amendment free speech rights at all. Nobody else on the Court agreed with him, but it’s a fascinating window into his mind.
Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common…. If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not.
But I thought originalists were interested in the original understanding of the Constitution’s framers or in the original meaning of the Constitution’s language. The practices of people in the early 1800s, even if those people were closer in time to the Constitution than we are, do not hold the same precedential value. This is a stretch.
Thomas also writes, and appears to endorse, the following (citations deleted):
Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values†in students and taught them self-control. Schools punished students for behavior the school considered disrespectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience.
In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
He later writes, “To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today.” Yet it doesn’t seem to change his mind.
But this is what really riles me:
But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools [citation deleted]. If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.
The idea that Thomas believes everyone is rich enough to send their kids to public schools, or rich enough to have one parent stay at home and home school the kids, or rich enough to move elsewhere, pisses me off.
Actually… the more I read his concurrence, the more I realize that the general thrust makes sense: school should be a place of discipline. But the idea that a school board should have unbridled power to prohibit students from saying anything at all about anything? Including engaging in debate on the issues of the day? Come on.
It’s just nutty.
Pride 2007
We saw two protesters along the way holding signs telling us how much God hates gays, etc. Boo Hoo. […] It always seems to me that these sorts of people are so very unhappy. Whenever I see hate groups protesting gay issues or such things, I’m always struck by how miserable and unhappy they seem. While, in contrast, most gay people are perfectly happy with much of their lives and a day like today is all about joy and happiness and inclusiveness.
I like that.
Hope the rest of you New Yorkers had a good Pride day. We watched the parade from the shady front steps of our building on 8th Street, joined by Mike, our friend Dan, and some others. I saw MAK ride by on a float and Steven helping lead off the parade with a big mess of rainbow balloons.
It’s weird how my experience of the Pride parade has changed since I attended my first one in 2001. Actually, I marched in that first one, with 20something.
The next year I watched with some UVA alums.
In 2003 I met up with a friend/quasi-romantic interest of mine.
In 2004 I watched it with Matt, and someone marching with God’s Love We Deliver left the march and ran up to us because he recognized us from our blogs.
Since 2005 (photos), we’ve watched it from our place on 8th Street.
It’s weird how my experience of the parade has become more domesticated over the years. At my first parade I was experiencing it all for the first time, I was single, and I was amazed to march past throngs of people. By this point, I’ve seen a few parades, I’ve got Matt, and (for now at least) we live on the parade route.
Happy (belated) Pride!
Unbelief
Sometimes I wonder if I should believe in God.
Not “should” in a moral or mandatory sense. “Should” in the sense of, maybe it would make my life better. But it’s absurd to believe in something merely for utilitarian reasons, because it means that you don’t really believe it at all – you’re just using the belief as a tool. I wish I could believe in God, because it would be so nice to have an afterlife. Existence would be so comforting if I believed in God. But I just don’t. For me, it would be like trying to believe that a square has three sides. I can’t believe something if it’s not true. I trust my senses more than my hopes.
Lately, I’ve been thinking that the reason it would be helpful to believe in God is because I tend to look at the downside of everything. I want perfection in life. Particularly, lately I want to find the perfect career, and I don’t know if such a career exists. Even if I were pursuing my passion, there would be imperfections, annoyances, stresses, the possibility of failure. I think one of my problems is that while other people are willing to accept imperfections in their lives, which leads them to lower expectations and greater happiness, I’m not like that. I’m always looking at what’s missing, I’m always looking at the negatives.
I think it’s because I feel, in some sense, that the negatives are my fault. There’s a little inner parent telling me that if I were doing a better job in life, if I were working harder at life, then those negatives wouldn’t be there. Part of me is still caught in my kindergarten classroom, where I was king and everything was perfect because perfection was easy to achieve, especially for me. But it’s a long way from being able to recite the months of the year backwards to succeeding at adult life.
If I believed in God, then I would know that perfection existed. It would free me from looking for perfection in this life, because I’d know either (1) that a perfect being already existed and I didn’t have to be that person, or (2) that I’d eventually experience perfection myself in oneness with God.
I’d also know I’d have an afterlife, which would make me less worried about growing old, time passing, being unable to achieve my goals, eventual death, and being forgotten.
Unfortunately, I can’t get myself to believe in God, so I’m going to have to find another way to deal.
Fun Google Searches
Fun Google Search: sopranos “cable had gone out”
London Photos
I still haven’t gotten around to writing about our trip, but at the very least, here are the photos I took.
(You need to be signed up with Snapfish to see them – maybe I’ll get some free photo-viewing utility for my blog at some point.)
Oops
While writing my previous post, I moved some sentences around but forgot to change a key word. I’ve since fixed the error, but until I noticed it, the sentence in my previous post that now correctly reads
(I’m sure Matt’s eyes are rolling *way* up into his head as he reads this post.)
instead incorrectly read
(I’m sure his eyes are rolling *way* up into his head as he reads this post.)
Because of my error, the pronoun “he,” which was supposed to refer to Matt, instead appeared to refer to the guy on the plane. Whoops.
For the record, the guy on the plane doesn’t know me or my blog and never will.
Travel Google
So, Matt and I couldn’t get seats together on the final leg of our trip back to New York from London, which took off from Charlotte, NC. Our seats were right behind each other, though, and we each had the middle seat of three. Each of us was sitting next to a hot guy.
At one point during the flight, the hot guy next to me (tall, with wavy black hair, and hairy arms and legs) put away his GMAT study book, took out a laptop, and opened a Word document. As he was typing, I noticed his name at the top of the document.
Is it wrong that I committed the name to memory so I could Google him when I got home?
(I’m sure Matt’s eyes are rolling *way* up into his head as he reads this post.)
I didn’t necessarily do this because he was hot. It’s just that I’m curious about people and I think it’s fun to surreptitiously find stuff out about people in perfectly legal ways.
Of course, his hotness didn’t hurt.
And I was able to find a picture of him online.
All praise Google.
Triumph at the Tonys
Triumph the Insult Comic Dog does the Tonys.