Tag Archives: links
Kerrigan and Mock – When?
Speaking of court decisions on same-sex marriage, what the hell is taking the Connecticut Supreme Court so long? It heard oral arguments in Kerrigan and Mock exactly one year ago yesterday. There’s no way they need a year to decide the case. It’s a travesty of justice.
Unless it’s going to come out the wrong way, in which case… keep taking your time.
Seriously though, in the interests of the justice system, it’s ridiculous that a court can hear a case and then not issue a decision.
CA: Amendment vs. Proposition
Whether or not the California Supreme Court rules in favor of same-sex marriage equality today, Californians will probably be voting this fall on a constitutional amendment to ban same-sex couples’ marriages. Apparently, 1.1 million signatures have been submitted, and only 694,354 need to be found valid in order for the amendment to get on the ballot — about 63% of those submitted.
What I don’t understand is why it’s so easy for Californians to amend their constitution. It merely requires a one-time majority vote by the public — the state legislature has no involvement. The process is exactly the same as for a ballot proposition, except that a ballot proposition requires signatures from 5% of the number of voters in the last gubernatorial election in order to get on the ballot and can be found unconstitutional, while a proposed constitutional amendment requires 8% to get on the ballot and becomes part of the state constitution and therefore by definition cannot be unconstitutional — although whether it violates the U.S. Constitution is another matter.
Under traditional ideas of constitutional theory, this is bad. Amending a constitution is supposed to be harder than passing an ordinary law because constitutional law is supposed to be “higher” than ordinary law. If you can simply amend the constitution by popular vote, what’s the point of having a constitution?
This is particularly troublesome when it comes to individual rights. One of the purposes of a constitution is to protect individual rights from being taken away by a majority. If a majority of Californians can remove a minority’s individual rights through simple popular vote, something is really wrong.
In 2000, a majority of Californians voted in favor of a ballot proposition to ban same-sex marriage. Had it been a constitutional amendment instead of a ballot proposition, the ban would have been enshrined in the state constitution and the California Supreme Court wouldn’t be able to do anything about it today. We’re just lucky that it came up in the form it did.
CA Marriage Decision Tomorrow
Oh boy. The California Supreme Court has announced that it’s going to issue its decision on same-sex marriage equality tomorrow, 10 a.m. California time, 1 p.m. Eastern.
I’m going to be on pins and needles.
(Here’s the official notice.)
California Supreme Court and Marriage
Tomorrow the California Supreme Court hears arguments in the state’s same-sex marriage equality case. You’ll be able to watch the oral arguments online here at 9:00 a.m. California time (12 noon East Coast), or if you live in California you can find them on public access TV here. And you can read all the briefs here.
Anti-Gay Hypocrite Dead
Antigay hypocrites in the news:
According to the Times, antigay lawyer Robert Skolrood has died.
He fought against gay rights by helping to word an initiative on the Colorado ballot in 1992 that would have barred any special protection for homosexuals. The amendment to the state’s constitution passed but was struck down by the United States Supreme Court four years later.
Mr. Skolrood helped to draft an amendment to the Cincinnati City Charter to similarly deprive homosexuals of specific legal protections; voters approved the measure in 1993.
A federal appeals court upheld the result, and the United States Supreme Court in 1998 refused to hear an appeal.
And of course,
In 2002, when he was semi-retired, Mr. Skolrood was arrested on charges of uttering obscenities and making sexual advances toward a male undercover police officer at an overlook on the Blue Ridge Parkway. He denied all the charges at a trial before a federal magistrate in Roanoke, Va., but he pleaded no contest to disorderly conduct, a misdemeanor, and paid a $125 fine.
Meanwhile, it turns out that the Texas district attorney who argued to uphold the state’s sodomy laws in Lawrence v. Texas has engaged in extra-marital relations. Because it doesn’t count if you’re straight.
Rove at Choate
Karl Rove spoke to students on Monday at Choate Rosemary Hall, the well-known Connecticut prep school. One student challenged him on gay marriage. He couldn’t seem to give a good reason for banning it. Go figure.
[Marla] Spivak, a senior from Hamden, was one of the students invited to have lunch earlier with Rove. That left her somewhat emboldened as she stood before the crowd and asked Rove to explain how giving gay people the right to marry would endanger other people.
Rove took issue with the way the first gay marriages came about, through the Massachusetts Supreme Court. An issue as important as the definition of marriage should be resolved by a legislature or a referendum, not a court, he said.
Gay couples could gain the legal rights of married couples through legislation without actually getting married, he said.
But wouldn’t creating a separate body of legislation for gay people be creating a separate but equal system, a step back?, Spivak asked.
Rove replied with an answer about Mormons changing their views on marriage to conform with the nation’s laws.
Spivak kept pressing. “You never actually answered, how does it threaten anyone?” she asked.
Rove asked, what’s the compelling reason to throw out 5,000 years of understanding the institution of marriage as between a man and a woman?
What, Spivak countered, was the compelling reason for society to allow interracial relationships when they had once been outlawed.
Then Rove invoked the Declaration of Independence before Spivak interjected that its reference to “life, liberty and the pursuit of happiness” seemed to support her claims.
Their verbal pingpong match tapered off after Rove brought up polygamy and Spivak acknowledged that she did not know enough about polygamy to answer. Rove later asked when she planned to run for political office.
Karl Rove, of all people, couldn’t come up with a good reason for banning gay marriage.
I love this Marla Spivak. I’ve sometimes fantasized about debating some of these people face to face. She was able to do it and didn’t let him off the hook (at least until it came to the lame argument about polygamy).
You go, girl!
2000 Election Diagram
I just finished reading The Votes That Counted: How the Court Decided the 2000 Presidential Election, by Howard Gillman. It’s a well-balanced focus on the court decisions involved in resolving the 2000 election – the lower courts, the Florida Supreme Court, and the U.S. Supreme Court.
I checked to see if I could find a diagram online of all the complex litigation surrounding the Florida recounts, and boy did I find one.
Kristol Begins
Bill Kristol’s first column for the New York Times — which runs in tomorrow’s paper — shows that he at least has a sense of humor.
We don’t want to increase the scope of the nanny state, we don’t want to undo the good done by the appointments of John Roberts and Samuel Alito to the Supreme Court, and we really don’t want to snatch defeat out of the jaws of victory in Iraq.
Oh. You mean he was being serious?
[Mike Huckabee] began by calmly mentioning his and Obama’s contrasting views on issues from guns to life to same-sex marriage. This served to remind Republicans that these contrasts have been central to G.O.P. success over the last quarter-century, and to suggest that Huckabee could credibly and comfortably make the socially conservative case in an electorally advantageous way.
So Kristol advocates running on the wedge issues. Not only is he ideologically blinkered — he also supports cynical politics. Does he have any redeeming qualities as a thinker?
2007 in Books
Here’s a list of the books I read in 2007, in chronological order. Thinking about the circumstances around the reading of a particular book can help you relive that point in time. It’s one of several different ways to reconstruct the past year of my life.
Disneywar, James B. Stewart – I started the year off with this, shortly after finishing a new bio of Walt Disney at the end of 2006 and the end of my long period of unemployment. I didn’t want to leave Disneydom behind, so I picked up the story 18 years after Walt’s death, when Michael Eisner took over. I’m not usually a fan of behind-the-scenes business books, but I really got into all the intrigue here between Eisner, Jeffrey Katzenberg, and others.
Personal Finance for Dummies, Eric Tyson – a free financial session at my new job led me to this book. Really helpful in getting your finances in order.
The Children of Men, P.D. James – I read this shortly after seeing the devastating movie. Many differences from the movie, but still a haunting read.
Snow, Orhan Pamuk – I stopped after 100 pages. I couldn’t get into it. Too slow for me.
The Coming of the Third Reich, Richard Evans – I’m intrigued by the story of how Hitler came to power. Scary. I was reading this while on a business trip to D.C. in March.
Then in the spring I got on a little Nixon kick:
Nixon and Kissinger: Partners in Power, Robert Dallek
The Wars of Watergate: The Last Crisis of Richard Nixon, Stanley Kutler – I’d always wanted to read the whole story of how Watergate unfolded.
Then as spring turned to summer I got on a big Colonial American History kick. I couldn’t get enough:
Mayflower: A Story of Courage, Community, and War, Nathaniel Philbrick – I started reading this, oddly enough, on the airplane on the way to London, crossing the Atlantic in the opposite direction from the Mayflower.
American Colonies: The Settling of North America, Alan Taylor
The War That Made America: A Short History of the French and Indian War, Fred Anderson
The Glorious Cause: The American Revolution, 1763-1789, Robert Middlekauff – Only read about 100 pages. It was going a bit too slowly for me.
The Americanization of Benjamin Franklin, Gordon Wood – I read this during a business trip to Vancouver, accompanied by several delicious solitary meals.
The American Revolution: A History, Gordon Wood – Much swifter than the Middlekauff book.
The Forging of the Union: 1781-1789, Richard B. Morris – Picked this up at the Strand. I wanted to read about the Articles of Confederation period, before the Constitution was ratified. I read most of it (I keep meaning to finish the last two chapters at some point). Toward the end of it I decided I needed to get away from American history for a bit.
Consider the Lobster, David Foster Wallace – A book of essays. Anything by David Foster Wallace is a treat.
The Assassins’ Gate: America in Iraq, George Packer – With the approach of Labor Day I returned to serious fare.
The Big Con: The True Story of How Washington Got Hoodwinked and Hijacked by Crackpot Economics, Jonathan Chait – A great read about the stupidity of infinite tax cuts and how a feckless media enabled the modern Republican party to screw us over.
The Conscience of a Liberal, Paul Krugman – I read about half of this; it’s a good book, but at a certain point I decided, okay, I get it, what’s next?
The Cold War: A New History, John Lewis Gaddis
Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy,
Charlie Savage – I recently finished this, probably the most depressing and angering book I’ve read this year. It’s about Dick Cheney’s very conscious decision to advance executive power, and how he did so with the help of people like David Addington and the delusional John Yoo. Charlie Savage, who won a Pulitzer this year for his newspaper reporting, is young and cute in a geeky way.
The Nine: Inside the Secret World of the Supreme Court, Jeffrey Toobin – Just started this recently, an inside look at the past 15 years of the Supreme Court. These kinds of books are always fun.
So there it is, my year in books. Here’s to more good reading.
Clarence Thomas
With the publication of his new autobiography, Clarence Thomas is back in the news in a big way.
Clarence Thomas has lots of issues to sort out. Here are some random thoughts on him that have swirled around my head over the years but that I’ve never put into words.
Thomas says it’s the liberals, black and white alike, who are hung up on his race, but he’s the one who seems hung up on it.
He still believes that he was attacked during his 1991 confirmation hearings because he was black. But doesn’t he understand that the only reason George H.W. Bush nominated him to the Court was because he was black? If he hadn’t been black, he wouldn’t have gotten the nomination. Thurgood Marshall, the only black justice on the Court, was retiring; Bush would look bad if he nominated a white person to replace him, leaving an all-white Court. So Bush decided to have it both ways; if he was going to nominate a conservative, why not nominate a black one? That would flummox those Democrats, wouldn’t it? They wouldn’t vote against a black person, would they? Thomas had been a judge for a less than a year and a half; there were numerous other people Bush could have nominated to the nation’s highest court. Bush clearly used Thomas in a cynical ploy to get liberal senators to vote for a conservative nominee. Given this, what reaction did Thomas expect from people?
Thomas accuses the liberal black community of attacking him in 1991 because he was a black man who betrayed his race. That’s not quite accurate. The anger at Thomas has less to do with Thomas himself and more to do with the justice whom Thomas replaced.
Thurgood Marshall, appointed by Lyndon Johnson in the late ’60s, was a legendary figure even before he became the first black justice on the Court. He’d served as the NAACP’s chief counsel and had argued numerous black civil rights cases before the Supreme Court, culminating in his arguments in Brown v. Board of Education in 1954. During his 24 years on the Court, from the Johnson years into the conservative Reagan and Bush years, he became a liberal holdout for civil rights alongside his colleague William Brennan, even after their fellow liberal colleagues were replaced with justices like William Rehnquist and Antonin Scalia. For Bush to replace Thurgood Marshall with someone like Clarence Thomas was a slap in the face to everything Marshall had stood for. So of course there was going to be anger.
But liberal black America wasn’t really angry at Thomas. Obviously I can’t read minds, and generalizations are unreliable, but it seems to me that liberal black Americans were actally angry at Bush and the Republicans. Bush tried to treat black Americans as fools whom he could easily manipulate; just nominate a black person and you can win the blacks over. Not only was this patronizing, but it also smacked of racism itself.
So Thomas is mistaken about black America’s anger.
But it’s not just black liberals whom Thomas holds a grudge against; it’s white liberals, too. Thomas accuses white liberals of attacking him because he was an “uppity black.” I can’t speak for all liberals, but as for me, I didn’t oppose Thomas because he was black or “uppity,” and it’s an insult to me to say so. I opposed Thomas because (1) he was a conservative, and (2) he didn’t seem to cut it on the merits. His race had nothing to do with it — except for the cynicism Bush created by simultaneously nominating him because of his race and saying that his race had nothing to do it.
I haven’t even gotten to the Anita Hill accusations yet. That’s a whole other area where Thomas seems to be either hung up on his race or hypocritically using his race as a weapon.
Thomas has claimed that he suffered through a “high-tech” lynching in 1991 when Anita Hill accused him of sexual harrassment. He’s claimed that his opponents decided to use the spectre of the stereotypical black male sexual predator to try to destroy him.
I’ve never put this into words, because it’s always seemed somehow racist or reverse-racist to do so. But here goes.
The thing is, Clarence Thomas hardly fits the stereotype of the black male sexual predator. He’s only 5-foot-8-1/2, and during his confirmation hearings he wore big nerdy glasses. In fact, he came across as rather shy and bookish and the farthest thing from a sexual predator there could be. I can’t step into the mind of Joe Racist, but it doesn’t seem to me like Joe Racist would apply that classic black stereotype to Thomas. Maybe he would, I don’t know. But it seems like a stretch, and it seems contradictory for Thomas to make such a paranoiac accusation while claiming to be so post-racial, enlightened, and independent-minded. The accusations of sexual harrassment didn’t gain traction because Thomas was black; they gained traction because Anita Hill seemed like a highly credible witness. Race had nothing to do with it.
Another facet of the Clarence Thomas puzzle is the issue of affirmative action. Thomas hates affirmative action because he believes that it taints his Yale Law School degree. Thomas does have a point here; without affirmative action, Thomas either would have been rejected from Yale Law School on the merits, in which case we wouldn’t be having this discussion; or he would have been accepted to Yale Law School clearly on the merits, in which case we also wouldn’t be having this discussion.
But the only reason Thomas is on the Supreme Court right now is because of a type of affirmative action; his nomination was race-based. Thomas opposes affirmative action while denying that he’s benefitted from it. Granted, it’s not exactly the same, because Bush was not compelled by any law or written policy to nominate Thomas. And Thomas was nominated not in order to make up for past racial injustice, or to give Thomas a leg up; he was nominated as a cynical political calculation. (I guess it’s possible to give Bush the benefit of the doubt — perhaps he nominated Thomas for noble reasons, to show Americans that there can be diversity of political opinion among blacks and that black people do not all have to march in lockstep. That’s a gesture that has some value, but even if it’s the case, and I’m not saying it is, it still means Thomas’s nomination was race-based.)
So there are a couple of paradoxes here. Thomas has reached the pinnacle of legal achievement — a lifetime appointment to the Supreme Court. He’s set for life. He won the fight. And yet he’s still angry.
He’s also delusional. He wants to believe that his race has nothing to do with his being on the Supreme Court and everything to do with his being attacked. In reality, his race has everything to do his being on the Court but very little to do with his being attacked.
Clarence Thomas is fascinating. If he didn’t exist, someone would have to invent him. He’d make a great literary character in a work of fiction — except that he already seems to have written it in his own mind.
CA Voting Plan Unconstitutional
Perhaps you’ve heard about this California voting plan being put forth by the Republicans in a statewide referendum — the sneakily-named Presidential Election Reform Act? It would do away with the state’s winner-take-all system and instead award California’s electoral votes by Congressional district.
In 2004, Kerry won all 54 of California’s votes; had this law been in effect at the time, Kerry would have won only 31 of those votes, and Bush would have won 22 of them instead of zero. The Democratic presidential candidate routinely wins California, so this is essentially an attempt by the Republicans to award the Republican presidential candidate a number of electoral votes equivalent to those of a big state such as Ohio, Pennslyvania, or Illinois. If the 2008 election is as close as the last two elections, this plan would — if it passed — put a big dent in the Democrats’ hopes of recapturing the White House next year.
The only thing is – it’s unconstitutional.
Article II of the U.S. Constitution states, in part:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…
(Emphasis added.)
Only the state legislature is allowed to determine how the state’s electoral votes are distributed. It can’t be done by a popular referendum. It’s pretty straightforward. Game, set, match.
If this referendum gets on the California ballot next spring and it passes, expect it to get blocked by a court injunction.
I would hope the U.S. Supreme Court would find it unconstitutional. Of course, Bush v. Gore should have been a clear-cut case, too — but I don’t think the Supreme Court will do it again. The law is even clearer this time. (But never say never.)
If you’re interested, read these comments to find out more.
Jose Padilla
Jose Padilla has been convicted on all counts, in what Abby Goodnough of the New York Times calls “a major victory for the Bush administration.”
A major victory for the Bush administration? That’s ridiculous. The administration first detained him without even filing charges against him, gave him all but the barest access to legal counsel, and then classified him as an “enemy combatant.” He eventually filed a petition for habeas corpus, which the administration challenged. The Supreme Court declined to rule, finding the petition was filed incorrectly. But then the administration got spooked. In order to avoid having the Supreme Court rule on the merits of the case, the administration finally gave in and specified the charges against Padilla.
That wasn’t a victory.
And then the judge dismissed some of the charges against him, finding those charges “light on facts.” [Edit: that was actually overturned by an appeals court, which I didn’t realize.]
That wasn’t a victory either.
And finally, Padilla was convicted today in court. But isn’t the whole justification for the “enemy combatant” program supposed to be that we can’t entrust these people to the ordinary civilian court system? And yet, what just happened? A terror suspect was convicted by an ordinary civilian court.
So much for needing the enemy combatant program.
This is a victory for the Bush administration? Yeah, right.
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!
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.
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!!
Gonzales v. Carhart
Um, in addition to all the other stuff going on in the news, the Supreme Court issued a major abortion ruling this morning, upholding a federal ban on partial-birth abortion, 5-4. O’Connor’s replacement by Alito made the difference.
NJ Civil Unions
From the New York Times: 2 Months After New Jersey’s Civil Union Law, Problems Finding True Equality.
I’m not sure what to make of this article, even though I did learn things from it.
Its thesis seems to be that civil unions are causing problems for gay couples that would be solved if they had access to marriage. It begins with several anecdotes about people who are being denied health insurance coverage by their civil-union spouses’ employers, when married spouses would be granted coverage. The nut graf states that these problems “rais[e] questions about whether the new arrangement adequately fulfills the promise of the State Supreme Court ruling that led to it.” The writer of the article seems to have an agenda, which is often the case when an article states that something “raises questions.”
[R]esidents who work for companies headquartered in other states, and those whose insurers are based outside New Jersey, have found it difficult if not impossible to sign their partners up for health insurance. Unions and employers whose self-insured plans are federally regulated have also denied coverage in some cases. Staff members in doctors’ offices and emergency rooms have questioned partners’ role in decision-making. Confusion abounds over the interplay of state and federal laws governing taxes, inheritance and property.
Can you really blame a law on the fact that people disobey it or don’t understand it?
The article also deals with several instances of unequal treatment that would persist even if the New Jersey legislature had granted marriage rights, and not just civil union rights, to same-sex couples.
For example, some companies provide only “self-insured” health care plans, which are financed by employers rather than purchased from state-regulated insurers. Because self-insured plans are governed by a federal law – ERISA, the Employee Retirement Income Security Act – apparently insurers and employers think the plans are also subject to DOMA. But apparently that’s not true:
[G]ay-rights advocates said federal law did not prohibit self-insured companies from providing benefits to same-sex couples. A 2006 report by the Human Rights Campaign Foundation found that more than half the Fortune 500 companies, most of which have self-insured plans, offered benefits to domestic partners.
“It’s the employer’s own choice to decide who’s a beneficiary, and the federal government doesn’t prevent employers from doing the right thing,†said Michele Granda, a staff lawyer with the Boston-based Gay and Lesbian Advocates and Defenders. “Those employers are purposefully choosing to discriminate against their employees.â€
Which would be the case even if New Jersey allowed gay couples to get married. Because DOMA theoretically applies to them, too.
The article does point out the problems inherent in divergent state/federal marriage schemes, though – problems involving taxes, Medicaid, and bankruptcy.
Civil union partners filing taxes jointly in New Jersey have to file federal tax returns as if they were single, then calculate what they would owe on a joint federal return to figure their state credits and deductions, said Stephen J. Hyland, a lawyer and writer of “New Jersey Domestic Partners: A Legal Guide.â€
“Civil union couples will most likely be treated as if they are single for purposes of qualifying for Medicaid, which can jeopardize the couple’s home if one partner needs nursing home care,†Mr. Hyland said.
Bankruptcy is governed by federal law, although state law determines how married and civil union couples hold title to their property.
There’s a real tension between federal schemes and traditional states’-rights theory. Federal programs are so much more a part of Americans’ personal lives than they used to be. What’s the solution? Either the federal government should recognize all marriages that a particular state recognizes, or state-married (and state CU’d) couples just have to deal with two different schemes until we get a more enlightened Congress and president.
It’s probably going to be the latter. Whenever that happens.
Oh. And so much for my trying to write short blog entries.
RI may recognize SSM
Okay, here’s a case where legally defining same-sex relationships as “marriages” instead of “civil unions” makes a difference. According to today’s NY Times:
The Rhode Island attorney general said Wednesday that same-sex marriages performed in Massachusetts, the sole state where they are legal, should be recognized in Rhode Island. …“This is about Rhode Island citizens who entered into a valid, legally recognized same-sex marriage and returned here to live and work,†[Rhode Island’s attorney general said]. “There is no way, no law, no constitutional provision and, in my estimation, no right to allow the denial of basic human rights.â€
Here’s the full text of the attorney general’s letter. (Here’s the request that prompted the letter.) A legal opinion of the state’s attorney general has no legal force on its own, but it’s likely to be followed by state agencies nevertheless.
The letter mentions only same-sex marriage, which today is legal only in Massachusetts. It says nothing about civil unions. If the New Jersey legislature had just gone ahead and granted the M-word to New Jersey same-sex couples, their marriages could be recognized in Rhode Island, too. But it didn’t. So they can’t. It’s up in the air.
It could be argued that the New Jersey legislature didn’t follow the New Jersey Supreme Court’s order to create marriage equivalence for same-sex couples, because there will be no equivalence if those couples move to Rhode Island. This is an iffy argument, though, because it’s Rhode Island’s fault for not extending its recognition to other states’ civil unions as well as marriages. The right place to contest or try to expand the Rhode Island policy is Rhode Island. Also, this seems to come into effect only when a couple moves to Rhode Island, at which point the couple would, for the most part, be outside of New Jersey’s jurisdiction.
It’s possible, of course, that Rhode Island could extend its recognition to civil-unioned couples from other states. But the AG’s letter doesn’t say that.
So the point is driven home: there’s no status truly equivalent to marriage. There’s just marriage.