Sam's L33t Journal

Big news from the Supreme Court this week.

I guess a Scalia/Thomas/Alito dissent is as close to unanimous as you can get on any Supreme Court decision on legislation that's controversial along liberal/conservative lines.

Scalia is big on the Fourteenth Amendment working how those voting on it would have intended, but not so much for the Affordable Care Act.

Scalia's dissent in Obergefell, is pretty entertaining and completely histrionic. He he decries the decision as a "judicial Putsch" by a bunch of east- and west-coast lawyers, and all but exhorts the states to disregard the ruling. (Alito writes something similar, but more calmly. Roberts just wishes the Supreme Court was more conservative. Thomas doesn't think the Fourteenth Amendment protects a class of citizens from being excluded from receiving government benefits at all, only from being restrained or imprisoned.)

I said before I left for camp that I'd discuss current events, but didn't do so on my return. So I'll briefly discuss some of that now.

The Voting Rights Act Case (Shelby v. Holder) - The Supreme Court declared the formula for requiring certain jurisdictions to get federal clearance for changes in their election laws unconstitutional. Fortunately, this leaves room for Congress to reestablish the law on firm Constitutional footing by coming up with a new formula based on recent data. Unfortunately, there is no way the current Congress will do that.

The Prop 8 Case (Hollingsworth v. Perry) - The California gay marriage switch has been flipped back to on again after the Supreme Court denied the appeal on standing, ruling that proponents of a state ballot measure don't get to appeal a challenge to the constitutionality of that measure just because the state government refuses to do so. I wasn't surprised. The opinions are pretty interesting, though. Plus it was a very odd split on the ruling, with Sotomayor joining Kennedy, Thomas, and Alito on the dissent, Scalia joining Roberts, Ginsberg, Breyer, and Kagan on the majority.

The DOMA Case (US v. Winsor) - The Supreme Court struck down the part of DOMA that says the federal government doesn't respect same-sex marriages on equal rights grounds. The other part of DOMA (that allows state governments to not respect other state's same-sex marriages) was not at issue. There were also weird issues of jurisdiction on this case, given that both sides were arguing that the ruling should be upheld. The US government argued that they had standing to appeal the case based on the taxes they'd have to refund to Edith Winsor if DOMA was upheld, even though they didn't want DOMA to be upheld. Jurisprudence is supposed to be based on adversarial cases, the government is arguing in this case that the adversarial presentation of the issues is ensured entirely by amicus briefs. I can see why the Obama administration wouldn't want DOMA to apply to only part of the country, and wouldn't want to wait for all the District Courts to fall in line or for a split ruling to force the Supreme Court to hear the issue, but it's still pretty weird. Scalia's dissent is probably the most interesting part of the opinions here, a passionate and grumpy rant against "judicial activism" (in the most technically precise sense of the phrase):

[...] declaring the compatibility of state or federal laws with the Constitution is not only not the "primary role" of this Court, it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become "'the province and duty of the judicial department to say what the law is.'" That is why, in 1793, we politely declined the Washington Administration's request to "say what the law is" on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.

[...]

Windsor's injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General's brief on the merits reads: "For the foregoing reasons, the judgment of the court of appeals should be affirmed." Brief for United States (merits) 54 (emphasis added [by Scalia]). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner's brief seeking an affirmance of the judgment against it.

(Would be an interesting exercise for law students to actually attempt this "scavenger hunt". Did Scalia do so for this case?)

Scalia also helpfully writes the argument against the other part of DOMA for the liberal part of the court in the tradition of grumpy-but-perspicacious conservative dissents (e.g. as in Griswald, Lawrence). Scalia is angry in advance that that other part of DOMA will also be overturned in time, and there's nothing he can do about it.

George Zimmerman's Murder Trial - The case is and remains a tragedy. I wouldn't have been happy to see the verdict go differently, given the evidence. I don't want juries convicting based on their personal belief that the defendant is a bad person. In this case, the law said to convict Zimmerman only if it was clear beyond a reasonable doubt that he didn't act in self-defense. But who knows what happened? There were only two witnesses to the start of the altercation, and one of them is dead. Physical evidence and witness testimony were compatible with scenarios where Martin got into a fistfight with Zimmerman under conditions that fall far short of the legal standard for provocation and with scenarios where Zimmerman intentionally and maliciously provoked a fight. I agree with this analysis.

Of course, protections for people who use lethal force in self-defense make it easier to get away with murder. And the whole scenario is steeped in racism, from Zimmerman's determination that Martin was a suspicious character to Martin's reaction to the "creepy-ass cracker" following him. And Martin surely didn't get any judicial due process. One could snarkily suggest that if you're frightened in Florida, you'd better run away or pull a gun and escalate to lethal force immediately. When everyone's frightened and fear excuses everything, half-measures will only get you killed. But that would be taking things in the wrong direction.

Yesterday was election day, and I took the day off to canvass for the Elizabeth Warren campaign. It was quite different from my previous experience with political canvassing (for a local city council candidate as a requirement for a high school civics class). That was blind, door-to-door, persuasive canvassing. This was a data-heavy, highly-targeted, get-out-the-vote effort. Work really at the margins. Get hundreds of people to work hard all day on election day, and maybe you'll convince a few hundred extra supporters to make it to the polls than would have otherwise (but if the polls are within margin-of-error, it could be that close). I saw that aspect of the "nerdiest election" first-hand (see also). The technology platform used by the Warren campaign was impressive.

As to the results: Warren won, McCaskill defeated Akin, Donnelly beat Mourdock, victories for marriage equality, victories for those hoping drug policy will one day be more realistic than rabid. First gay senator, more women in the Senate than ever before. California may yet be able to rescue its state government from attempted bathtubbing.

And Obama won a sound victory in both the popular vote and the Electoral College. Conservative pundits' accusations about a skew in the polls were not so much based on evidence as wishful thinking (and met hard reality in the expected manner). Nate Silver was scarily accurate. Obama's election wasn't a post-Bush blip, or at least not so much of an anomaly that a candidate as malleable as Mitt Romney could defeat a sitting president, even in such mediocre (though great by comparison to four years ago!) economic circumstances.

Obama's got a lot of work cut out for him. Congress is still divided, the Republicans still have an option of "say no to everything and hope stuff gets worse" (for another two years at least). The right side of the House in particular has become so polarized that Obama's all-compromise-all-the-time, literally-propose-the-Republican-plan-from-15-years-ago strategy seems "one-party strident"

There's the looming "fiscal cliff" (the obviously-terrible default cut-the-deficit deal that Congress (including Congressional Republicans) agreed would blow up in everyone's faces if they couldn't agree on something better), for one. That default deal would be pretty terrible for the economy, but chicken seems to be the GOP's favorite game lately. However, some Republicans are sane enough to see the writing on the wall with regard to tax raises, and notice that some subtly-done compromise on that issue would make two things a lot easier for them (those two things being "defusing the debt crisis without crashing the economy" and "beating Democrats in upcoming elections").

Some of my colleagues are despondent about the election results because of that last bit about tax raises. But I don't think it's realistic to expect to deal with 2010s problems on less than a 1990s budget while cutting the deficit, when 2010s problems are much worse and the 1990s budget still involved borrowing a ton of money. America had a great opportunity to solve 2000s problems on a 1990s budget while investing in infrastructure that would make 2010s problems less bad and cutting the deficit, but instead opted for an extra war and more tax cuts (at least the rich used the extra funds from those tax cuts to create jobs; haha no, just kidding, they spent like 179% of it on highly-securitized mortgage-backed derivatives). In 2012, we're dealing with the plateau (and eventual decline) of global energy production (mostly due to physics and geology related to petroleum and natural gas). We're also dealing with a decline in global per-capita demand for labor (mostly due to good things about technology). Not to mention some increasingly nasty weather.

We need to make investments in infrastructure that will get us through those problems, while paying down the debt. (It would be foolish to act as if US government borrowing is unusually expensive now, but foolish to ignore that the US has already borrowed a lot and that borrowing could get much more expensive later.) Not that it's theoretically impossible for such investments to be made by a method other than "government taxes people and hires people to build stuff", but I don't expect the necessary investments will happen at the necessary scale in any other way.

Americans are getting four more years of a President who thinks it's important to invest in infrastructure, education, and science. One who recognizes climate change as a serious issue as opposed to thinking of it as irrelevant to "your families". One who appoints competent administrators to agencies like FEMA. And a President that believes Americans need to come to some consensus about what investments are necessary to deal with (near-)future problems which involves (especially those most able to pay) actually paying for those investments.

@BarackObama #GoodLuckWithThat

Very interesting!

The 9th District Court of Appeals has issued a 2-1 panel ruling affirming the lower-court ruling that overturned CA's Prop 8. The full ruling is quite long, I haven't been able to get into it yet, but here are the key points from the summaries I've read:

1. The stay is still in effect, pending deadlines for filing an appeal, so nothing changes for those seeking to get married in CA. The Prop 8 Proponents will probably ask for a longer stay as they continue the appeal process (if the Circuit Court of Appeals refuses as stay, they could ask for a stay from SCOTUS).

2. The next step in appeals is to ask for the entire set of 9th Circuit Court Judges rule on the case en banc.

3. The ruling seems to be on rational basis instead of strict scrutiny grounds, so doesn't require argument about whether laws regarding sexual orientation require stricter review.

4. It's a narrow ruling, in that it specifically looks at the issue in the context of CA, which has marriage-minus-"marriage" civil unions (both before and after Prop 8). A lot of the arguments that Prop 8 serves a legitimate government interest refer to interests that are not in fact served merely by removing the term "marriage". The ruling concludes: "Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." It is an attempt at "separate but equal" which cannot be constitutional.

If SCOTUS ever ends up hearing this case, I'd hope they wouldn't be so restrained in scope and not rule against "separate but equal" in a way that leaves open the question of whether states can simply ditch the "but equal" part on this particular issue (leading to a scramble to repeal long-established compromises on civil partnerships / civil unions). But making a narrow ruling increases the probability that SCOTUS will just decline to review the case, letting it stand for now (until other circuit courts have a chance to rule on it, anyways).

Bit late on this one, but since I mentioned Judge Walker's decision before, I should mention that he refused to stay his ruling overturning Prop 8. However, he did extend the temporary stay to Wednesday so that the court of appeals can have their chance to issue a stay before the ruling goes into affect. A few interesting things about that. From the judgment:

In deciding whether a stay is appropriate, the court looks to four factors:
(1) whether proponents have made a strong showing that they are likely to succeed on the merits;
(2) whether proponents will be irreparably injured absent a stay;
(3) whether the stay will substantially injure other interested parties; and
(4) whether the stay is in the public interest.
[Walker goes on to note the first two are most important, according to precedent]

For the first point, Walker points out that the defendant-interveners might not have standing to appeal the case at all, given that the State of California has declined to appeal. To have standing to appeal in lieu of the original defendants, they'll have to argue that they've suffered a "concrete and particularized injury that is actual or imminent". Walker first notes that the injunction is not against the proponents of the law, it doesn't require them to do anything. The enforcement of marriage law is solely within the domain of the state government (that Walker cites Lockyer v. City & County of San Francisco for that point is icing on the rhetorical cake). Second, Walker notes that the Plaintiff's didn't argue that they are harmed by the injunction in their motion to stay (will be interesting to see what argument they make along those lines in the actual appeal). Third, Walker reiterates that he views the case as clear-cut.

(Filing the motion to stay the decision before the decision was made was probably a mistake on the part of the proponents. Not anticipating the argument about standing was definitely a mistake. Maybe they didn't expect Schwarzenegger to decline to appeal... though that shouldn't have been surprising given that the state didn't want to defend themselves in this case in the first place.)

For the second point, Walker's response is hilarious:

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. [emphasis mine]

For the third point, Walker notes that not staying the decision is a harm to those whose rights are violated by Prop 8. And for the fourth point, he mostly notes Schwarzenegger's opinion that a stay is not in the public interest.

Judge Walker's role in this particular case is most likely concluded. Will be interesting to see what happens when the appeals court takes a crack at it. Presumably they'll at least deal with the inevitable argument that they should stay the judgment before Wednesday.

The BP oil spill has been sucessfully contained! Lets hope that holds.

In unrelated news, earlier this week, the Federal District Court judge for Massachusetts ruled DOMA unconstitutional. Will be interesting to follow this one, especially if it's appealed.

I have a lot of links to sort through, but the stuff from the elections this week most merits discussion, so that first. Two issues most interest me:

First, in Maine, voters passed Question 1, overturning a law passed by the legislature and outlawing same-sex marriage. Surprising and disappointing because I thought of Maine, being part of New England, as therefore not inclined to vote to make some of their neighbors (and their families) miserable for no benefit whatsoever. Also surprising in light of the polling. FiveThirtyEight even called it wrong (though they hedged and gave it a 30% chance of passing).

Two very good sets of commentary: Alas points out that "Maine should be the death of the claim that people don’t hate gays, they just hate being told what to do by the Courts". And this excellent entry by osewalrus discusses the psychological effect of the defeat. It's worth remembering that it's still just a matter of time; I don't expect a sudden uptick in old bigots' ability to sway young people's opinions.

Second, there was the very odd situation of the NY-23 Congressional special election, where the Republican candidate was displaced in the race by a Conservative Party of New York candidate, endorsed by Sarah Palin and the rest of the Tea Party mob. The Republican, Scozzafava, withdrew shortly before the election. That wasn't a "try not to split the vote" move, though, that was a "super-pissed at the Palin crowd" move, she threw her support behind the Democratic candidate. The election ended 49.2% for the Democrat, Owens, 45.2% for the Conservative, Hoffman, and 5.5% for Scozzafava (though it's not clear to view that last as in support of the Republicans over the third-party or just as protest votes against the Palinites). The Democrats are calling this a victory on account of winning, but some of the right-wingers are also calling it a victory on account of the Republicans (!) losing.

There's a lot of commentary on how this reflects the likely future of the Republican party. For decades, a small coalition of plutocrats and quasi-libertarians have strung along a much larger group of religious social conservatives (itself a creation of the Republican party, but I've linked to that essay before), promising them something substantial on the issues they really care about (gays and abortion, mostly) if they stuck around for just one more election cycle. That was effective at the start, and effective as long as the Republicans remained in power, while those legislative carrots stayed just tantalizingly out of reach. Now that the Republicans have lost control (and B. Hussein, of all people, is in the White House), what does the Religious Right have to lose? The real question is whether there will be a reversal, with the social conservatives dragging the quasi-libertarians and plutocrats along because at least the Tea Baggers aren't Democrats, or whether that tenuous coalition will just fall apart, leaving Republicans as a permanent minority. The Log Cabin Republicans and their allies should be particularly worried; "change the Republican Party from within to be more socially liberal (while remaining fiscally conservative)" was a doomed plan from the outset, but that should be even more obvious now.

Also an interesting question: Will the party leadership side with the centrists and try to pull the far-right back in line, or will they take it as an opportunity to tack right, dragging the centrists along? RNC Chair Steele, at least, seems to be going in the latter direction.

(Of course, the Democrats face some of the same pressures, lots of Democrats are far to the left of the average democratic politician and even farther to the left of the party leadership. However, like I mentioned just a few sentences ago, it's easier to make "just stick together" arguments when you're currently in power.)

Last week, the Obama administration DOJ filed a brief defending the Defense of Marriage Act against a federal lawsuit by a same-sex couple married in CA. The brief caused a great deal of consternation in the liberal blogosphere. That led to me spending part of another train ride working my way through a legal document (that was a week ago, but I just found the time to write it up).

I'm not going to argue about whether filing the brief at all was a good idea, I accept that the DOJ is required to defend the US government when the US government is sued. But that's not to say that I don't have criticism for the content of some of the arguments.

(I have been informed that my last law-related post was rather jargon-y, so if there's something that you don't understand term-wise, please comment and I will try to explain. This one will hopefully be a little more straightforward, since the document in question isn't nearly as long.)

The case in question, Smelt and Hammer v. CA, US, and Does 1-1000 represents yet another attempt by the plaintiffs in question to challenge DOMA. The previous case, Smelt v. County of Orange, was rejected in federal court and rejected again on appeal, the case was dismissed due to lack of standing (since the defendants weren't married, they had no argument that DOMA had harmed them). After getting married under CA law, they decided to try again. They filed suit in federal court, asking for fees to be waived, and the request to get fees waived was denied, they filed the same suit in state court, adding CA as a defendant. The state court approved a wavier of fees. The DOJ filed a notice of removal to have the case moved back to federal court, then filed a brief in their defense. The brief argues as follows (quotes are from the brief unless otherwise noted):

( Rather Longer Than Expected )

Here's the most interesting and important bit, I'm leaving this outside of the cut because if there's one bit you read, it should be this one:

The brief argues that DOMA is just an exercise of caution on Congress's part, allowing states to experiment with novel forms of marriage without messing things up for other states or the federal government.

Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," [citation], DOMA does not address whether a same-sex couple may marry within the United States... At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

This is the brief's critical misstep. Same-sex marriage is not like some novel contract or financial instrument or corporate structure. "Same-sex marriage" is marriage. It's not a novel structure at all!

In fact, that's the whole point! States have experimented with novel legal structure in the same general domain as marriage, and the various cases that ruled such structures were insufficient in providing equal rights (including CA's In re Marriage Cases) did so precisely because they were not the same as marriage. CA, MA, et. al. did not "gay marry" these people, it married them. And you know what really doesn't respect "state sovereignty"? Picking through the group of people married by a state and saying "these ones count, these ones don't"!

( Footnotes in the Cut Also Cut )

Cross-posted from a comment of mine, here's my summary of the Prop 8 decision, condensed from the introduction of the decision here (I have yet to read beyond the introduction, the document is quite long):

1. The court rejects the petitioners' argument that the change is a constitutional revision as opposed to an amendment (the former can't be done by ballot initiative). It's not the sort of thing that requires a constitutional convention, it doesn't change the fundamental form or structure of the California government, it doesn't "abrogate" equal protection under the law but instead carves out "narrow exceptions" (not sure I buy that last distinction, though). Specifically, of the rights Marriage Cases (the earlier case that said the CA Constitution required gays be given the right to marry) required that CA provide to gay couples, only the designation of "marriage" is denied by Prop 8. That's a significant right, but was far from the only significant right affirmed by the Marriage Cases decision.*

2. The court rejects the CA Attorney General's argument that the amendment is prohibited under Article 1 of the CA Constitution, which talks about "inalienable rights", because of the "abrogation" versus "narrow exemption" argument above and (perhaps more significantly) because Article 1 doesn't say anything about constitutional amendments, so there's no argument for suggesting the article itself is immune to amendment. In other words, either Article 1 is irrelevant with regards to Prop 8, or Prop 8 amends Article 1 along with everything else in the old constitution that it contradicts. It's worth noting that there are state constitutions which specify limits to the amendment process (among other examples, MA's constitution explicitly prohibits certain parts of the constitution from being amended by ballot initiative, including constitutional protections for certain fundamental rights).

3. Given the wording of Prop 8, it doesn't apply retroactively (this is the most complicated part of their argument, it seems, and they don't say much about it in the introduction).

4. Whether Prop 8 is a good idea is not a part of the decision. If it's bad policy, the only recourse is to amend the constitution again to repeal it.

5. Whether the CA Constitution is too easy to amend is not a part of the decision. Of course, the people of CA could amend the constitution to make it harder for them to amend the constitution. (But that seems unlikely for obvious reasons.)

* It's actually really surprising just how much the court seems to be affirming the ruling in Marriage Cases in this opinion. I really can't express it better than a quote from the text itself:

Contrary to petitioners' assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases [...] Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

I kind of doubt this is what Prop 8's supporter's intended.

A sequence of events:

1. Amazon receives negative publicity for the way they handle "adult" content. Part of this comes from the usual "search for innocuous keywords on Amazon yields result page full of sex toys" links floating around the internet. Part comes from more specific issues, like when Amazon realized that one of their sellers was selling a rape simulator game only when the media was already all over it. Of course, the item was pulled and the seller had a meeting with the business end of a banhammer, but this is the sort of thing that makes Amazon very worried. Politicians love political positions with that degree of obviousness ("rape, I'm against it") and would be more than glad to paint Amazon (and video games, and the internet in general) as a villain to gain some points with the "think of the children" crowd.

2. Amazon beefs up its systems for the reporting of "adult" content.

3. Said system, probably together with Amazon's system for customer tagging of items, is abused by conservative meddlers with way too much time on their hands / disruptive hackers* / some combination of the above (maybe assisted by biased individuals within Amazon, maybe not).

4. Books featuring homosexuality are, predictably, disproportionately delisted.

5. The internet notices the above, and explodes (and explodes some more). (If a hack, the holiday weekend timing really exacerbated the damage to Amazon.)

6. Some Amazon executive's holiday weekend is unpleasantly interrupted with the news that thousands of people are suddenly very angry at Amazon. Amazon claims it's a "glitch", which it might be, sort of. (Not a software glitch (excepting security vulnerabilities that allow people's Amazon logins to be hijacked to flag items without their knowledge), but an unintended problem with the content-flagging system.) Fixing the problem could take a while, and it's likely that the bad PR will persist in the interim and beyond.

Conclusion: Will be interesting to see the post-mortem on this one. Could be that someone at Amazon was involved, but that's not necessarily (probably not?) the case. Currently, I feel sorry for Amazon.

* Edited to add: Just to be clear, I don't believe that post (believing posts by self-admitted trolls is a poor idea, see also this), but a scenario along those lines seems plausible. The same result could also have been achieved by way-too-much-time-on-their-hands people with straightforwardly bigoted motives and no technical exploits.

ETA2: Looks like Amazon's external flagging process is not automated, or so they claim. The story that's floating around now is that Amazon was using customer provided tags to flag "adult" content, but some Amazon.fr employee screwed up in terms of which tags to choose. No idea if that's accurate, though.