Archive for the ‘SCOTUS’ Category
This being the 4th of July weekend, we often find ourselves all caught up in thinking about our “rights” — whether they be our First Amendment rights, our right to choose, our right to vote, our right to bear arms, our right to marry. Thinking about “rights” is somewhat sterile because it allows us to keep a nice clinical distance from the reality of what those rights represent in terms of human cost.
Even if we attach those rights to legislative action it still allows us a certain empathetic distance. I can recite what it means when 36 out of 42 public family planning clinics are made to close in a state the size of Texas, but it doesn’t tell the stories of the women affected. We can analyze the effects of barring women from admission to Ohio’s publicly funded hospitals after they have opted to have an abortion, but it doesn’t put a face on the women who might be harmed during a health crisis. We can bemoan the unfairness of the North Carolina legislature’s use of a bill publicized to outlaw Sharia law to close all but one of North Carolina’s women’s health clinics, but it does nothing to forewarn us of the day after their closure.
During the last session of the Supreme Court, the most interest seemed to be focused on the cases about affirmative action, the Voting Rights Act, DOMA, and California’s Proposition 8. Important cases all, but there were other cases that may affect our rights even more starkly — they got nothing close to the coverage of the more sensational cases.
The first is American Express v. Italian Colors Restaurant, another case by the Roberts court making it more difficult to use the only economically viable way for the little guy to fight big business — the class action suit. This was a follow-up to the case two years ago saying individual customers were bound to the arbitration provisions hidden in a cell phone contract and did not have the right to bring a class action.
The next case was Vance v. Ball State. Again a follow-up case to Lilly Ledbetter v. Goodyear Tire and Rubber making it more difficult to bring an action for workplace discrimination.
The last case that puts a disfigured face on otherwise amorphous rights is that of Karen Bartlett adv. Mutual Pharmaceutical Company. Ms. Bartlett lost two-thirds of her skin, was left disfigured and blind after taking a generic drug for some shoulder pain. The Court held that generic drug manufacturers could not be sued for defects in product design, thereby causing Ms. Barlett to forfeit the $21 million she had been awarded. Eighty percent of all the drugs sold are generic.
This session of the Supreme Court was truly a Chamber of Commerce dream and an embarrassment of riches for corporations. At their heart, these cases are a capitalization on corporate rights at the expense of nameless, faceless individuals.
On this weekend of the 4th of July, let’s redouble our efforts this year to remind ourselves that we are these nameless, faceless individuals and that rights, while giving us a definitional framework, do nothing to tell the story of the individuals affected.
Have a great weekend.
This is an open thread.
They say traveling broadens the mind. Well, it also broadens your experiences with your fellow human beings. This week I was on the plane, standing in the aisle waiting to disembark, and there was about .0003 millimeters of space between me and the woman behind me. Undeterred by physics, this lady decided to get her enormous “carry-on” bag down from the bin directly above me. In the process, the bag smacked me lightly on the shoulder. She apologized, like the decent person she was. But then, she decided to maneuver her second bag from under the seat to its desired post atop her roller bag. In the process, she smacked me on the ass.
At this point, she apologized again, saying “I’m sorry, I keep hitting you.”
“Yes, you do,” I responded somewhat snottily. (I had gotten up at 4:15 am, after all.)
“Well, I don’t know how I can avoid it. There’s not enough room,” she replied, also somewhat snottily. (I don’t care when she got up, I was the injured party here.)
It took every bit of restraint I possess not to say, “Well, how about waiting UNTIL THERE’S ROOM FOR YOUR F*CKING BAG!” Was that not a choice that would have a) cost her nothing but a few seconds and b) prevented the blows both to my body and my worn-out psyche?
I swear, this is sometimes what I think is wrong with this country and how we treat each other – especially how we treat our women.
It’s almost like we are so stuck in our old, OLD paradigms that we truly cannot see another choice. The woman on the plane, for example, was so focused on getting her bag down that the thought of waiting (a short delay that would cost her nothing) was not even an option. What has happened to us? We used to be an ingenious people. We used to come up with inventions that shook the world (the light bulb – literally now the symbol for a creative idea), and theories that changed how we thought of reality (“E=mc2″comes to mind). What are we doing now? We’re trying to come up with ways to deal with problems we don’t have, like the “Social Security Crisis” and the “millions of unborn babies killed every second by murdering abortionist wimminz,” but refuse to address the real ones that are out there. Hunger. Poverty. Lack of education. Gun violence. Lack of medical care. Overpopulation. Climate change. An unsustainable energy policy. An unsustainable military-industrial complex that drives us to constant war. We do NOTHING about these. All people seem to do is shrug their shoulders, pretend these problems are unsolvable, and at best, do half-assed nonsense like Obamacare. (At worst, they do harmful, horrible sh*t like Austerity.)
The Supreme Court scheduled oral arguments this month in two very important cases for gay rights: Hollingsworth v. Perry, the federal challenge to Proposition 8 and United States v. Windsor, the challenge to DOMA.
Today [Jan 7 2013], the United States Supreme Court announced that it will hear oral argument in Hollingsworth v. Perry, AFER’s federal constitutional challenge to California’s Proposition 8, on Tuesday, March 26. The following day the Court will hear oral argument in United States v. Windsor, the ACLU’s case challenging the constitutionality of the so-called Defense of Marriage Act (DOMA).
AFER’s(American Foundation for Equal Rights) legal team, led by distinguished co-counsel Ted Olson and David Boies, will once again argue that Prop. 8 violates United States Constitution. Our Constitution guarantees loving couples like AFER’s plaintiffs, Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo, nothing less than full federal marriage equality. Prop. 8, DOMA and laws like them harm countless gay and lesbian Americans, singling them out for unequal, second-class treatment under the law.
Combined, Ted Olson and David Boies have argued over 70 cases in the Supreme Court. They won in Federal District Court, they won at the Ninth Circuit Court of Appeals and they will win again at the Supreme Court.
Tons of amicus briefs have been filed on behalf of the folks in Hollingsworth and in Windsor. Included among these are the U.S. amicus brief on Hollingsworth and one by 172 members of the House and 40 Senators on behalf of Windsor (against DOMA).
Here is the “Interests of the Amici Curiae“
INTEREST OF THE AMICI CURIAE
Amici are 172 Members of the U.S. House of
Representatives and 40 U.S. Senators.1 Some of us
voted against the Defense of Marriage Act, Pub. L.
No. 104-199, 110 Stat. 2419 (Sept. 21, 1996); others
voted for it; still others were not yet in Congress
when it was enacted. But we all agree that Section 3
of DOMA—which divides married couples into two
classes and denies all federal responsibilities and
rights to one of them—lacks a rational connection to
any legitimate federal purpose, and is therefore unconstitutional.
Members of Congress are bound by oath to support
and defend the Constitution. Thus, this Court’s
interpretation of the Fifth Amendment’s equal-protection
guarantee directly affects how Congress
drafts, considers, and enacts laws. We urge the Court
to clarify that legislative classifications based on
sexual orientation do not enjoy the presumption of
validity appropriately afforded to most legislative
acts. That guidance will help ensure that legislative
classifications receive sufficient reflection. We also
want to explain why, in this rare case, the Court
should find an Act of Congress unconstitutional.
Likewise, there have been amicus briefs filed on the Prop 8 Hollingsworth case, including some that might surprise you.
Conservative Leaders File Amicus Brief Calling for Marriage Equality
What do Mary Bono Mack, James B. Comey, Jon Huntsman, Ken Mehlman, Steve Schmidt, William F. Weld, and Meg Whitman have in common? In addition to being conservative leaders, they’re also signatories to a brief calling on the Supreme Court to overturn Prop. 8.
Additional names are still being added, with a final list of names to be released when the brief is filed with the Supreme Court. Enacted in November 2008, Proposition 8 eliminated the fundamental freedom of gay and lesbian Californians to marry.
If you check the link, you’ll see over 100 “conservatives” (they run the gamut from Jon Huntsman to S.E. Cupp and Clint Eastwood, but alas, no Ann Coulter.
Also among briefs being filed on the Prop 8 case was one filed by the President in the form of the Solicitor General. And here’s the “Interest of the United States” as it comes from the brief:
BRIEF FOR THE UNITED STATE
AS AMICUS CURIAE SUPPORTING RESPONDENTS
THIS CASE PRESENTS THE QUESTION WHETHER CALIFORNIA’S
DENIAL OF THE RIGHT TO MARRY TO SAME-SEX COUPLES VIOLATES
EQUAL PROTECTION. THE UNITED STATES HAS AN INTEREST IN
THE COURT’S RESOLUTION OF THAT QUESTION, PARTICULARLY IN
LIGHT OF ITS PARTICIPATION IN UNITED sTATES V. WINDSOR,
NO. 12-307 (CERT. GRANTED DEC. 7, 2012), NOW PENDING
BEFORE THE COURT. THE PRESIDENT AND ATTORNEY GENERAL
HAVE DETERMINED THAT CLASSIFICATIONS BASED ON SEXUAL
ORIENTATION SHOULD BE SUBJECT TO HEIGHTENED SCRUTINY FOR
EQUAL PROTECTION PURPOSES. 12-307 J.a. 183-194 (LETTER
FROM ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED
STATES, TO JOHN A. BOEHNER, SPEAKER, U.S. HOUSE OF
REPRESENTATIVES (FEB. 23, 2011)). THIS CASE, LIKE WINDSOR,
PRESENTS THE COURT WITH THE OPPORTUNITY TO ADDRESS
THE QUESTION WHETHER LAWS THAT TARGET GAY AND LESBIAN
PEOPLE FOR DISCRIMINATORY TREATMENT SHOULD BE SUBJECT TO
HEIGHTENED SCRUTINY. THE UNITED STATES HAS PARTICIPATED
AS AMICUS CURIAE IN OTHER CASES TO ADDRESS THE LEVEL OF
SCRUTINY TO BE APPLIED TO A PARTICULAR CLASSIFICATION FOR
EQUAL PROTECTION PURPOSES. e.G., CITY OF CLEBURNE V.
CLEBURNE LIVING CTR., 473 U.s. 432 (1985). CERTAIN INTERESTS
ARTICULATED IN SUPPORT OF PROPOSITION 8 IN THIS
CASE ALSO HAVE BEEN RAISED IN WINDSOR IN SUPPORT OF
SECTION 3 OF THE DEFENSE OF MARRIAGE ACT, AND THE
COURT’S APPROACH WHEN EXAMINING THOSE INTERESTS THEREFORE
IS OF SIGNIFICANCE TO THE UNITED STATES.
These two pastings of the Interests may look a bit odd. I downloaded both briefs but the scan quality of one wasn’t as good as the other so I apologize for that. I’m going to either put them up as pdf documents on the blog or at least as links to the Scribd sites where you can view them. You can also download them if you get a Scribd ID and account.
Now I haven’t read all 40 something pages of these things. However, here is what Lyle Denniston of Scotusblog believes Obama and D.o.J. are doing:
U.S. endorses limited gay marriage right
The Obama administration on Thursday urged the Supreme Court to rule in the case of California’s Proposition 8 that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.
Here was the government’s key argument why the Golden State’s ban on same-sex marriage fails the constitutional test the administration suggested: ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.” Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday. California is one of the eight states that would be covered by that argument.
Much of the logic of the government’s brief — its first entry into the controversy over the 2008 ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.
Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.
The President (as he so frequently does) is sort of splitting the baby with his argument. He’s giving a little to get a little. (Note to us: he doesn’t have a good record of doing that well does he?) What Obama is doing in his (or the United States’ brief) is to take something called the “8 state solution”.
if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.
“The Court can resolve this case,” the new brief said, “by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.” That final phrase was the brief’s strongest indication that the administration is not yet ready to take a firm position on whether the “fundamental right to marry” that the Court has recognized repeatedly is a right that should be open also to same-sex couples.
[bolding and italics mine]
There is a lot to read about this and my suggestion is to go over to Scotusblog and read it there.
Lastly, here is a site you might want to check out. Do you possibly want to go to a rally in DC that ends at the steps of the Supreme Court? You can find out about that here. Do you want to look at participating in an event in your local area? You can go here to check that out, and from the looks of the map and the listing below it, there are quite a few of these meetings and rallies in the works.
We all know any number of gay folks, including among us here, me, DYB and Michael and how many others amongst your real world families and friends. Each of us should have the choice to be able to marry the person we want if that’s what we choose to do. It’s only fair. As to the kid scratching his head: I’m with him, I have no idea how SCOTUS will rule in these two cases.
Good Friday morning Widdershin friends. If you are anything like me a holiday falling midweek throws me into a cosmic time warp somewhere between a Star Trek episode and Groundhog Day.
In any event, I was planning on a “big thought” Friday, but given that I recently purchased a new box of highly absorbent Q-tips my big thoughts have suddenly winnowed away, so let’s try a Whitman’s Sampler of lesser, but nonetheless, insignificant thoughts from your unnecessarily verbose scribe.
You say Tomato, I say Tax
Since the Supreme Court ruled last week on the Affordable Care Act and then beat a hasty retreat for undisclosed locations, there have been all manner of dustups. I’ll deal with a couple. First, there’s Eric Fehrnstrom’s statement that Governor
Romney didn’t agree with the mandate being a tax. Eric is a longtime Romney confidant being something like Alfred to Romney’s Batman. Upon further reflection, Governor Romney promptly threw Eric under the Batmobile and stated quite unequivocally that he now believed the mandate was a tax. Eric Fehrnstrom was the spokesmorman who had previously stated that positions taken in the primary were like an Etch-A-Sketch — after the primary you just turned them over, shake them, and they magically disappear. I’m imagining the good Mr. Fehrnstrom upside down being given a good shaking like a two-year old bottle of ketchup.
Quite simply, there is absolutely no difference if the mandate is called a tax or a penalty because the language of the ACA is exactly the same for both — not one jot or tittle’s difference. Ezra Klein asks the definitive question of, “Who cares what you call it, it’s all the same.”
Wake Up and Smell the Briefs
While we’re at it, let’s turn the luminescent wattage of the Bat Signal on the crazy conspiracy theories around Justice Roberts’ decision regarding the Affordable Care Act. His decision has bunched more underwear than a bargain bin at Victoria’s Secret. To hear the neo-cons, you would have thought they were being sent to Lorena Bobbitt’s snip and tuck boutique with the Chief Justice being called everything from a traitor to a drug addled zombie.
There’s nothing sinister or even revelatory about Roberts’ decision. Here’s the down and dirty — Supreme Court Rule 14 says a party must clearly state all questions of law to be heard before the Court. This statement of issues isn’t hidden, it is one of the very first pages in all briefs before the Supreme Court. The issue of the mandate being a penalty versus a tax was certified and before the Court from the very first day. It isn’t unusual when the government is a party to a Supreme Court case that alternative theories are pled — meaning, if you don’t like the Column A choice, would you like to consider something from Column B or Column C. To be highly legalistic here, there’s a Supreme Court maxim that has been around since God was a boy that says if there are two readings of an act of Congress, the Court must use the one that is constitutional to uphold the law.
Enunciated first in 1928 by Justice Oliver Wendell Holmes in Blodgett v. Holden it stands for the proposition of judicial restraint and deference to the legislative branch. Sound familiar? It is the same refrain you constantly hear from the same chorus of neo-cons each time they fail to agree with a Supreme Court decision.
This concept isn’t “legal rocket science,” it is taught in first year Con Law — so all those pundits who mewled about a conspiracy or Justice Roberts being a traitor to the conservative cause, you have the Column A choice — they are stupid, Column B choice — they need better teevee ratings, or Column C — they are Sean Hannity (see Column A).
Texans Don’t Get the HOTS
In a little reported item from the Lone Star State, the Texas Republican Party passed a resolution against teaching critical thinking skills in Texas schools. In the platform plank, the statement said critical thinking leads to questioning authority and calling into question long-standing beliefs. While that is their stated resistance to the idea of young people “boning” up on critical thinking, I think it had more to do with the acronym representing (H)igher (O)rder (T)hinking (S)kills since obviously they didn’t want Texan kids getting the HOTS.
This is significant when you consider textbook publishers more often than not tailor their textbooks to the curriculum of the Texas School Board. Texas provides 48 million textbooks in any given year and essentially controls 46 or 47 other states in terms of textbook content. For several years the Texas School Board was chaired by an ultra-conservative dentist who among other memorable statements said, “Somebody’s gotta stand up to the experts.” He has since been defeated, but this textbook purification crusade continues so as to destroy the “liberal myths” of separation of church and state, evolution, and any number of other heretical thoughts espoused by Satan’s own handy men cleverly called scientists. This crusade is about controlling the minds of young people today since tomorrow they could be controlling government — I’m not kidding, that is the stated goal.
Holy Coincidence Batman
To round out the day with yet another Batman reference, I thought it appropriate to mention that Justice Scalia has done his best Burgess Meredith impression of the Penguin and waddled across First Street, NE to address the Tea Party Caucus in Congress. Even though they were having fish for lunch, it is very unusual for a sitting Supreme Court Justice to do something so partisan. I mention this because in the Arizona immigration case, Justice Scalia waxed on at length about the parade of horribles that immigration had visited upon Arizona without so much as a single citation to support his accusations. (As of yet, there is no citing protocol for Fox News.) Much like earlier in this Supreme Court term when he squawked from the bench about the “Cornhusker Kickback” that was neither in case before the Court nor ever actually enacted by any legislation.
It would ruffle more than a few of Justice Scalia’s feathers to know that as of last year, there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population — below the estimated average illegal immigrant population in the United States. So much for Arizona bearing the brunt of illegal immigration, as was pointed out in the Slate article by Judge Richard Posner of the 7th Circuit Court of Appeals.
Justice Scalia to conservatives is often called brilliant, scary smart, and an intellect of heretofore unknown heights, but to paraphrase the adage, “in the land of the blind, a one-eyed man is king,” — in the land of wing nuts, a tool can be king.
This is an “all skate” open thread.
Morning Widdershin friends — here’s hoping your Friday is a great one!
To be honest, I’m just a little hacked off today. Since prayer hasn’t seemed to replenish my ever thinning pate of mouse fur hair that people charitably refer to as, well, “mouse fur,” yesterday I was watching the teevee machine and I was tuned into that intriguing infomercial “Alyssa Milano Uses Wen Hair Care,” and after that the nice teevee man had promised me shocking, I’m telling you shocking, tips on reducing belly fat when all manner of healthcare broke out. If you are anything like me, I needed a swooning couch straight out a Colette novel before the battling bobbleheads were eight minutes into their coverage.
Here you had CNN and Fox who couldn’t break eggs on their collective faces fast enough by reporting and bannering “Healthcare Act Unconstitutional” based upon reporters who were actually standing out front of the Supreme Court moving their lips as they silently read. While MSNBC got it right, they cut away to some guy who had found a $20 crumbled up in an old leisure suit, registered his name as a website, and breathlessly began an audition to be hired as a Romney spokesmorman.
The real journalistic croque-en-bouche was CNN cutting to a reporter in a Stockton, California coffee shop talking to a bunch of 80-something dyspeptics about healthcare. These codgers had last been happy when they hadn’t soiled themselves the last time they’d broken wind — beyond that who knows when a smile had crossed their scowling faces. And you ask, “Why was CNN chatting up these guys before their coffee kicked in?” Best I can tell, CNN had a satellite truck and a reporter in Stockton with little to do because covering a municipal bankruptcy is akin to covering a Manitoba molasses race in the dead of winter.
So what’s any different here than any ordinary day’s news cycle — wait for it — wait for it — nothing, absolutely ze-freaking-ro nothing. We have entered the sweatbox of philosopher Leszek Kolakowski’s Law of Infinite Cornucopia, “There is never a shortage of arguments to support any doctrine one wants to believe for whatever reason.”
All this is bound up in the simplest of psychological constructs, we as humans want to belong to a group, therefore we engage in “motivated reasoning.” Motivated reasoning is a political science concept that basically says a person will refine any argument without regard to facts in order to conform to the shtick of one’s tribe. We can’t help it — we want to belong and therefore, we “go a little crazy,” but tell ourselves like the Matchbox Twenty song, “we aren’t crazy, we’re just a little unwell.”
This healthcare-apoloosa is a perfect example of motivated reasoning since just about everyone hates Obamacare, but confusingly upwards of even 80% of Republicans and Independents support major portions of the Act. Nope, I haven’t mis-typed or suddenly gone unwell — here’s a great article about what happens when people are asked about something they actually understand.
We have traveled a long and winding road to get where we are today. From President Nixon introducing employer mandated coverage in the late 60’s to the conservative Heritage Foundation coming up with the individual mandate in 1989 to the Clintons’ hybrid employer/employee plan in 1994 to the Affordable Care Act — it has been a tortured journey. A journey that is far from over, but a journey where we are coming to a fork in the road.
This year’s election will offer two directions — either continuing to hobble along the path of the Affordable Care Act or the reduction or elimination of healthcare to an estimated 50 million Americans by whatever “Repeal and Replace” turns out to be. The estimated fifty million is the product of eliminating 31 million people from gaining coverage through ACA and the additional 14-19 million who would lose coverage by the Romney Medicaid state block grant and cap proposal.
Healthcare is an issue, when stripped away of all the “motivated reasoning,” that is understandable and concise. Michael Cannon sums it up nicely — Cannon is the director of health-care policy at the conservative Cato Institute and has formed the Anti-Universal Coverage Club, whose members, “reject the idea that government should ensure that all individuals have health insurance.” Survival of the fittest is an argument after all — although it runs headlong into creationism, but I digress. Ezra Klein asks the question in this great article.
Of one thing I am sure, with insurance premiums having risen 100% in the last ten years, something has got to give.
America has been working this issue for almost 50 years — it’s time it was settled. As the silly season of political hyperbole gushes forth and will be beamed into our homes by the billions unleashed by Citizens United, we will get to watch all those who are following the admonition of Colette, “You will do foolish things, but do them with enthusiasm.”
This is an “all skate” open thread.