Justice Sotomayor on Racism in the Criminal Justice System

Thousands of cases are denied certiorari (hearing) in the Supreme Court every year. These denials, as well as other Court business, are released on Orders Lists on a fairly regular basis while the Supreme Court is in session. At the end of today's list, however, was a comment on a cert denial that I wanted to bring attention to.

Justice Sotomayor, joined by Justice Breyer, took time to address the repugnant behavior that prompted the case, even though they concurred that it wasn't a reversible error and denied cert petition. I've excerpted the relevant pieces below, taking out the legal reasoning for why cert was denied.

I write to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.
... 

 The issue of [Petitioner] Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” Tr. 125–126 (Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group the next morning because he thought they were finally returning home. Id., at 109.) The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

...

Calhoun, who is African-American, claims that the prosecutor’s racially charged question violated his constitutional rights. Inexplicably, however, Calhoun’s counsel did not object to the question at trial.
...

Given[...]the unusual way in which this case has been, litigated, I do not disagree with the Court’s decision to deny the petition.

There is no doubt, however, that the prosecutor’s question never should have been posed. “The Constitution prohibits racially biased prosecutorial arguments.” McCleskey v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury. Judge Frank put the point well: “If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” United States v. Antonelli Fireworks Co., 155 F. 2d 631, 659 (CA2 1946) (dissenting opinion) (footnote omitted). Thus it is a settled professional standard that a “prosecutor should not make arguments calculated to appeal to the prejudices of the jury.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.8(c), p. 106 (3d ed.1993).

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation. There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor’s question, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response to the petition at first,leaving the Court to direct a response.

I hope never to see a case like this again. (emphases added)

I will not agree with much of Justice Sotomayor's jurisprudence, but kudos to her (and Justice Breyer) for admonishing the prosecutor and his federal apologists.

bellum medicamenti delenda est

UPDATE: Ken at Popehat brings up a good point: Why hadn't anyone called him out by name? (He is AUSA Sam L. Ponder.) I still think it's noteworthy that Sotomayor wrote what she did, but I leave to actual lawyers like Ken to complain whether or not namedropping him would be appropriate in the context of a legal opinion.

That said, Ken did what CNN, Chicago Tribune, other media (and I) failed to do: a casename search on PACER. Regardless of the reasons Justice Sotomayor didn't use Ponder's name, the media have a professional duty to find truth and should have done a simple search to find out. Thanks, Ken.

Passive Aggressive Activism

I may write more when I have more time, but this Slate-pitch worthy piece by Damon Root on yesterday's ACA outcome warrants a response:

Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

The decision is being hailed by absolutely no one, including ACA's supporters, for its jurisprudential acuity. The Chief Justice, while deferring to the legislature's policy on the whole, effectively rewrites the statute, using arguments rejected in all but one federal court on way to certiorari. Usurping legislative prerogative is definitionally activist as it is beyond the scope and function of the judiciary. This isn't "calling balls and strikes," this is calling a change-up a fastball.

With all due respect to Damon, he completely missed this activity/inactivity distinction.


bellum medicamenti delenda est

The Legal Left and PPACA: Politics über alles

There is a lot to the PPACA (aka ObamaCare), but the individual mandate is the sexy problem getting all the attention, and there is good reason for that. Forcing individuals into a private market to offset the cost associated with a given program is not within the purview of the federal government and it takes an almost limitless view of the Commerce Clause to make it fit. (see legal luminary Erwin Chemerinsky in this reason video at 8:10-9:50). No one disputes that providing for one's own medical care is "an issue of personal responsibility," but so is child care, maintenance of one's own day to day affairs, paying one's utility bills and any number of other countless duties society expects of each of its citizens. This does not mean that Congress has the granted or inherent authority to make mothers buy Enfamil (or whether they should breast feed) to feed their children. Just because something may be a good idea--even if it's nearly universally agreed to be a good idea--that does not mean that the Congress ipso facto has power to do it.

Ironically, a "socialist" scheme--say, in the mold of government run Social Security or Medicare, for example--would actually pass constitutional muster given the current interpretations of the law. This is a new power, however, is instead a forced transfer payment.

What's worse, this transfer payment doesn't rein in costs--a predictable consequence from jump street--the underlying rationale of PPACA. So, what you have is an increased power grab by Congress, in order to get the insurance companies to sign on to their scheme that can't actually do what it was billed to do--by guaranteeing income for those insurance companies. This is much more akin to quid pro quo than it is 'Necessary and Proper.'

(There are also problems with the way Medicare funds are being withheld for state non-compliance and the mutilation of the taxing power--which are also key to the legislation passing muster, but I just can't get into all of it here.)

Unsurprisingly, as argument day approaches, the Legal Left has mobilized against the challenge. Their arguments in favor of the constitutionality of PPACA's individual mandate, having been molded by arguments in the courts of law and public opinion, have culminated into three main points in the latter:

1) 'So many Americans don't have health insurance!' This has become a running theme of former Acting Solicitor General and now Georgetown Law professor Neal Katyal. He argues that the act is a necessity, but it is a trumped up 'appeal to pity.' Just because it may be a good idea (lack of cost controlling measures supra notwithstanding) doesn't make it constitutional. [ Nor, might I add, did the fact that Republicans used to support the mandate, a la Neera Tanden, make it constitutional either.] The very best of these arguments are still policy arguments, not constitutional ones.

2) 'Judicial activism! Hypocrisy!' This would stick if the judges would actually take a policy position as opposed to a constitutional one. 'Judicial Activism,' a phrase initially made popular by Republicans, is now just a BS moniker assigned by any given speaker about cases he doesn't like. Properly understood, 'judicial activism' is the judiciary usurping legislative function--such as fundamentally altering and rewriting law.

The most recent example of activism that comes to mind is the Honest Services statute in the Skilling and related cases. In those cases, SCOTUS ruled that the law in its current form was 'void for vagueness'--taking unspecified legal activity and making it criminal without a clear explanation of how or why it was judged illegal. This part wasn't activism--it's very much their job to dispose of unconstitutional law. What was activist was allowing the statute to stand, though gutted of much of its scope and intent, and then redirecting it to other purposes that would pass muster. Given the lack of a severability clause, the statute should have been stricken in its entirety and sent back to Congress to do-over. Instead, the ruling re-formed the law with no legislative power granted to do so. For all the Left's harping about Chief Justice Roberts' contempt for Congress, he sure goes out of his way to leave terrible legislation standing--evidenced by challengers' fear of how Roberts may respond to PPACA. But if SCOTUS strikes down the mandate but leaves the rest of the law intact, that would be the appropriate time for everyone to jump up and down about 'activism.' (related: Excellent, and very fair piece on the severability argument by PPACA supporter Brian Buetler here.)

3) 'It's an easy constitutional call not worthy of much discussion.' This talking point irks me to no end. Most of these arguments rely on strawmen and cherry picking arguments. Both the Linda Greenhouse piece linked just above and the in-person presentation by the highly regarded Akhil Amar of Yale Law School drip with sarcasm and scorn. (Greenhouse specifically, when discussing the argument of the opposition, says it's "just words." Perhaps she was expecting interpretive dance?) The 26 states' brief by Paul Clement has become the whipping boy of an expanding group of Lefty writers and academics, and maybe it is a weak brief. But it's hardly the only brief in opposition, and it's not the only opposing party brief either. You're unlikely to see such a dismissive treatment of the NFIB's Individual Mandate brief (or Cato's*, for that matter), and I can tell you why: "judicially administerable limits." More accurately, the PPACA's complete lack thereof.

Professors Amar and Katyal, as well as DC Super Litigator Walter Dellinger have tried to explain that the democratic process is the limit upon the Congress's authority and that the "broccoli test" Sen. Coburn asked then-SCOTUS nominee Elena Kagan is ad absurdum and thus not relevant. This ducks the question entirely: a) Elections aren't "judicially administerable" (save jurisdictions still covered by oversight of the Voting Rights Act, anyway)  b) The democratic process is essentially majority rule, from which there is plenty to fear. No one, for example, argues that First Amendment infringement is ultimately a matter of voting representatives in or out of office, and thus it is not a sufficient check against infringement.

Indeed, at a recent Federalist Society event , Dellinger argued that the Bill of Rights was the limit on Congress's authority, but this begs the question: surely if you stretch the text of one part of the Constitution, you can minimize any other part of the Constitution to fit your needs just as well. (The Ninth and Tenth Amendments come screaming to mind.) The Bill of Rights can't anthropomorphize and smite an overreaching Act of Congress: that's what we have SCOTUS for.

The reality is that such a broad, uncabined reading of the Commerce power grants Congress the power to do whatever to regulate the economy it sees fit, as pretty much everything you buy--and don't buy--affects interstate commerce when applied to 350 million people. There is simply no judicially administerable limit on Congress's power in the law, effectively removing the judiciary oversight over anything affecting interstate commerce as a matter of precedent. One of the few prominent left of center lawyers to take this argument seriously is UCLA law professor Adam Winkler:

United States v. Lopez is instructive. That case involved a Commerce Clause challenge to a federal law banning gun possession near schools. During oral argument, the Justices repeatedly asked Drew Days, the solicitor general at the time, what he saw as the limits of Congress’s power. If Congress could regulate the mere possession of a gun under the guise of regulating interstate commerce, what couldn’t it regulate? Days struggled for an answer. He insisted that, yes, Congress’s powers were limited, but, no, he couldn’t point to exactly what those limits were. The Supreme Court struck down the law, explaining that it had to do so to maintain the Founders’ vision of a federal government with only limited, enumerated powers.

Winkler (unfortunately) notwithstanding, the thrust of the Legal Left's three key arguments are political arguments to 1) elicit support for the bill  2) elicit contempt for the opposition and 3) set the political stage in November in case of a loss. There are better legal arguments in favor of this law, but that's not what most of the luminaries of the Legal Left are using in public. Simply put, they prefer politics über alles.

bellum medicamenti delenda est


PS: Just as I was about to hit "post," I noticed Peter Suderman also has a post (probably) inspired by Linda Greenhouse's NYT piece. You can read that here.

*Full disclosure: I had ancillary roles in the filing of Cato's briefs opposing all four questions before the Supreme Court next week. 

Jeff Toobin's History: Scarcely Related to Reality

Jeffery Toobin’s new piece on Justice Clarence Thomas and his wife Ginni leaves one wanting. I was waiting for a “gotcha” moment or perhaps a revelation about the couple that I hadn’t previously known or, at least, anything of interest that would warrant a few thousand words in the New Yorker.

[sad trombone]

Instead, what I read was a bunch of intimation about the Thomases traveling in conservative social circles, the revelation that Justice Thomas is an originalist (!!!), and a smattering of information about his life on the High Court.

One could have gotten as much useful information off of the justice’s Wiki page.

But what got me about the article wasn’t its complete lack of substance—an appalling lack, though it was, given the outlet and the author’s credentials as an astute Court watcher—but its blatant whitewashing of 14^th Amendment history. Toobin writes:

In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.* In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.) *emphasis mine

I don't want to get into the campaign finance argument, but the gun rights comment was just too patently ignorant to let go.

Apparently looking to emulate his CNN colleague Wolf Blitzer and become the witless wonder of legal journalism, Toobin exhibits no respect for the substance of either the Heller or McDonald amicus briefs or decisions. Beyond that, Toobin should have a reasonable enough grasp of history—and by reasonable, I mean a basic, non-sanitized history understood by grown-ups—to be familiar with the stripping of blacks' legal protections that came in the post-Reconstruction era and continued up through the Civil Rights Movement of the 1960s. When marauding bands of hooded murderers ride the nights on horseback, the ability to protect one's family from them is very much a civil right—and the systematic removal of those rights doesn't require a special “angle” of jurisprudence to understand. 

UCLA law professor Adam Winkler penned a piece for the September issue of the Atlantic called “The Secret History of Guns.” Professor Winkler spent nearly 2400 words (of roughly 4700) detailing the explicitly race-based nature of various gun control actions—from Andrew Johnson unsuccessfully vetoing the gun rights of Freedmen (the legislative precursors to the 14^th Amendment) to then-Governor Ronald Reagan capitalizing on the spectre of armed Black Panthers at the California capitol. A snippet:

Indisputably, for much of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn’t served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a “new birth of freedom,” but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, “I would say to every colored soldier, ‘Bring your gun home.’”

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response to the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen’s constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” When South Carolinians ignored Sickles’s order and others like it, Congress passed the Freedmen’s Bureau Act of July 1866, which assured ex-slaves the “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.”

That same year, Congress passed the nation’s first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an “equal right to protection, and to keep and bear arms for self-defense.” President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.

Fittingly, as DC readies itself to officially open the memorial to America's most beloved and famously peaceful civil rights leader, Winkler goes on to note that Martin Luther King Jr. applied for—and was denied—a concealed carry permit for a handgun after his home was bombed.

Apparently Dr. King also subscribed to this “extreme” and peculiar “angle” of civil rights.

It's not that I think Toobin wrote this as a hit piece. (It was, if anything, a miss piece.) But by writing this as he did, he mischaracterized an important and well-documented aspect of traditional civil rights in America that—at the very least—any responsible Court watcher would instantly recognize from recent cases, whether or not he agreed with the policy outcomes. Toobin goes further to imply Thomas relies on a revisionist history that is perceived through his putatively unorthodox originalism and colored by his race. That is simply bullshit. 

Gun rights and self-defense have gone hand-in-hand with civil rights for blacks since the very first Civil Rights Act in our nation's history. It seems Mr. Toobin is the one with a questionable understanding of traditional American civil rights. 

bellum medicamenti delenda est

A Belated Response to Tim Lee and American Free Enterprise v. Bennett

I've been traveling the past three weekends and thus been too busy during the week to keep up with all my reading. I only just read my friend Tim Lee's  take on Arizona Free Enterprise v. Bennett, the most recent campaign finance case before SCOTUS. I respectfully disagree with him and would like to explain why here.

Some set-up to Tim's argument:

Let’s start by reviewing the broader campaign finance debate, and especially the arguments in Citizens United. Advocates of regulation argued that “independent expenditures”—that is spending on political speech by people unconnected to any campaign—were a grave threat to the integrity of the democratic process. They warned that a wealthy interest group could walk into the offices of a member of Congress and threaten that if the member didn’t vote the way the group wanted, the group would pour millions of dollars into negative ads in the member’s district. Faced with a threat to his political survival, the member will be forced to do what the interest group wants.

First Amendment zealots like me had two responses. First, running ads praising or criticizing a candidate in the weeks before an election is precisely the kind of “core” political speech the First Amendment is supposed to protect. Therefore, we’d better have an extremely solid reason for restricting such speech.

Second: if it were really true that elections were decided based on which candidate had the most spent on his behalf, this would be a pretty strong argument for regulating independent expenditures. But fortunately, voters are not mindless automatons. They evaluate the messages being presented to them and compare them with elected officials’ records in office. An incumbent with a good record will find his ads reach a receptive audience. Conversely, an interest group whose agenda is broadly unpopular with voters is going to have a harder time using ads to reduce the candidate’s poll numbers.

Relatedly, as Meg Whitman recently learned, advertising dollars are subject to diminishing returns. If the average voter sees candidate A’s ad 10 times and candidate B’ ad only once, that’s likely to give candidate A a sizable advantage. But if the average voter sees candidate A’s ad 1000 times and candidate B’s ad only 100 times, the gap is unlikely to matter. Indeed, some voters might get so tired of seeing candidate A’s ads that they vote for candidate B out of spite.

I'm with him all the way up to the Whitman reference. Whitman's doomed gubernatorial run was plagued with more problems than money could solve--and she didn't have the advantage of name recognition that a former governor (and governor's son) has. Add to that, she was a Republican following an unpopular Republican governor in the midst of a national and state-wide budget calamities...in a famously Democrat-friendly state. Furthermore, as such a visible candidate of one of the most important states in the Union, she was targeted by powerful and experienced advocacy and activist groups who knew how to spend money more wisely than her campaign did. In short, that a lot of money didn't help her doesn't mean the general ability to spend it freely is not important to a candidacy or idea.

Regardless, the Whitman example is one of a predominantly self-financed campaign and doesn't address the role of fundraising in a political campaign. In a campaign, money acts as more than just candidate's speech--it is a signal of political viability of the candidate and, more importantly, is the material product of the speech of his donors. Ron Paul has shown that fundraising doesn't guarantee electoral victory--but it is very effective if you're trying to get a particular message out to people who haven't been exposed to it. Ron Paul made a national name for himself in large part because of the money he raised and then the use of that money on the campaign. A publicly balanced system neutralizes the power of those donations.

People who donated to Ron Paul didn't want to give Sam Brownback or Mike Huckabee a platform: they wanted to say that the Paul brand of limited government is something they supported and wanted explicated to a wider audience. Matching funds, the issue in the present case, would neuter the voices of those people in favor of the status quo in the name of "more speech."(N.B.: I'm using a national figure for illustrative purposes. The AZ state law never would have effected national office.)

Take a more local hypothetical: say there is an open at-large county council seat. There is one private candidate who supports allowing medical cannabis dispensaries in the county and three public candidates who expressly do not. Under the matching funds provision, if Candidate A is supported by people who really want to license a dispensary, public financing triples his opposition without candidates B, C, and D lifting a finger to solicit it. It isn't as if Candidate A was going to have an easy go of it anyway, but now any decided advantage he may have had as a fundraiser is eliminated. As a county council seat, the media deluge that is commonplace to the governorship of California or the United States presidency is absolutely not going to occur so he is unlikely to experience the diminishing returns Tim referenced in Whitman's race--and Candidate A is battling against three times the competition she was. Adding insult to injury, B,C, and D are each using the money he campaigned for against him. Ironically, those who oppose his plan can donate to his campaign to effectively triple their money in opposition. (I fully grant that candidate A could win because the anti-cannabis vote is divided, but in this hypothetical it's certainly not an assumption that he would.)

As this demonstrates, matching funds are as likely, if not more so, to support the status quo--in a voting system that already overwhelmingly favors incumbents. Moreover, the use of matching funds is just another way the state can decide who gets to say what in an election. (Most of the electoral systems in the country have been set up to protect the duopoly of the major parties by crowding out third party or independent challengers, but that's another entire blogpost in itself.) It's hard to understand how a libertarian--or even a liberaltarian--could think of this as liberty-friendly.

And then we get to the constitutionality of the matter--which Tim concedes, sort of:

Obviously, a candidate isn’t going to want his opponent to get a larger public subsidy, and so at the margin it does provide some disincentive to campaign spending.

[...]

Here [unlike Citizens United], the “punishment” is much more indirect and indeed its status as a punishment is somewhat speculative. So First Amendment scrutiny is called for, but the justification probably doesn’t need to be as compelling as you’d need to justify direct censorship.

Government providing "some disincentive" to exercising free speech is akin to saying a man got a woman "a little pregnant."

If we're talking about a marginal candidate--or, more to the point, a candidate with heretofore marginalized ideas who has managed to earn the respect, trust, and money of enough supporters who want to give him a platform--that disincentive can prove most chilling. If every dollar given to Ron Paul is a government dollar to each of three or more mainstream candidates when spent, the mainstream candidates are granted government support to further marginalize him. If Paul supporters understand that their donations will trigger 1:1 financing to each member of the field of GOP candidates, their incentive to support him is greatly diminished. That is a chill on expressly political speech and thus cannot withstand the strict scrutiny test required for acceptable regulation of speech at any level of government.

Tim continues:

Second, the degree to which having your opponent subsidized will be perceived as a “punishment” greatly depends on the circumstances. If the privately candidate is handsome and charismatic with an impressive record, while the publicly-financed incumbent is a politically tone-deaf hack with a long record of corruption and incompetence, then the challenger might welcome his opponent having more money to spend putting his ugly mug on TV. Similarly, if an independent organization is running ads in order to get candidates to talk more about its pet issue, it might not care at all about whether its spending causes certain candidates to get more money in the process.

A donation to a candidate is a private individual's voice of positive support for a particular person. Matching that donation with public money changes the effect of that donation to supporting political speech generally--or, at least, speech among the state-approved candidates. Such a change perverts the essential component of that speech: explicit support with intent to provide material advantage.

Tim concludes:

Finally, the state’s interest in reducing corruption seems pretty compelling. Not compelling enough to justify censorship, but strong enough to justify a system of subsidies that creates a mild disincentive to private spending on political speech.

For actual political corruption, we have a justice system. A nebulous 'appearance of corruption' (as noted in the parties' briefs and page 26 of the majority opinion) is not a compelling justification to chill the speech of political contributors or candidates.

I understand and agree with Tim's underlying principle: more speech--and specifically more free speech--is a good thing. But the present case isn't free speech: it is a state-sanctioned balance of speech that comes at the direct cost of individual speech. Individual political contributions are not value-neutral and their use by a candidate should not render them such by way of matching funds to the candidates' opponents. Such distortion of political speech by government action is bad policy and wholly incompatible with the First Amendment.

bellum medicamenti delenda est

Quote of the Day: When Words Have No Meaning

This requires a little background, so please bear with:

A friend sent me a link to this piece in Forbes about the Founders' "socialized medicine." Ezra Klein at the Washington Post picked it up. One of the MoJo journos I follow on twitter, Nick Baumann, linked to it saying: "Amazing."

Similar to what I commented at Forbes, I tweeted back to Baumann that the law in question dealt with enumerated powers, taxing power and the maintenance of a Navy, so that they fell well-within the proper legal understanding of the Necessary and Proper clause.

Baumann responded in three parts. The one that concerns me is the second one, but his other tweets are here and here. His second tweet, said (with edits for blog clarity):

Ultimately the whole constitutional debate misses the point. We're really arguing about what government should be allowed to do.

This way of thinking probably appeals to many people of various political stripes, but to constitutionalists, beyond the rhetorical subtlety that resembles the effect of a Pan Galactic Gargle Blaster, it is akin to saying, "We're not talking about speed limits, we're talking about how fast we can make the car go."

The Constitution is more than a parchment relic that represents the Founding principles of our country: it is the explicit grant and, to my point, the limitation of power given to our federal government. To say that we're talking about the scope of government without recognizing its proper, delineated limits is to miss the point entirely.

Legislating is not a grand philosophical exercise on tabula rasa to decide what idea sounds good right now. Unconstitutional laws usually seem like good ideas at the time -- to the pols who implement them, at any rate. Unchecked, the government regularly acts beyond its proper authority in everything from speech to imprisonment to wiretapping and torture. Just because the party in power has a policy preference doesn't make it legitimate or constitutional.

Given my affinity for team sports, I understand the "look the other way" mentality when your team commits a foul and gets away with it. But when every time Team A stretches the limits of Congress beyond it's constitutional bounds, they directly empower Team B to do the same on their own pet issues--essentially, that's how precedent works. How The winners, of course, are the teams--they get more power so everybody's happy. The losers, however, are the rest of us who get screwed by civil liberties violations or dying in excruciating pain.

I am not exaggerating. Ironically, the government's arguments for the individual mandate of PPACA, the health care bill,  rest primarily on Raich, the Supreme Court case declaring that medical marijuana grown in the home for personal use that is legal under state law is somehow regulable under the Interstate Commerce clause in the Constitution.

In a way, Attorneys General John Ashcroft and Alberto Gonzales--by way of unconstitutionally prohibiting state-sanctioned medical remedy for chronic pain--forcing Angel Raich and others like her to live (or die) (yes, die) in excruciating pain or leaving them unable to eat because of unabating nausea during chemotherapy could lead to the Dems' triumph in the PPACA litigation.

I wonder if Nancy Pelosi is going to send Alberto Gonzales a thank you note?

Faithful adherence to the text of the Constitution is the best protection for individual rights in the United States. Relying upon Supreme Court justices to be "smart enough" to reach a decision that jives with your policy preferences invites government overreach and the suffering of countless Americans. (see Korematsu) Given the sorry state of medical and insurance pricing, I would never say that government has no role in attempting to remedy our health care system. That said, one cannot responsibly discard the limits of the Constitution for subjectively "good"--or in the opinion of a lot of PPACA supporters, "better than nothing"--policy: torture seems like a "good idea" to some people. Constitutional restraints should mean something.

Years ago, three years after resigning from office, disgraced former president Richard Nixon gave an infamous interview to David Frost in which he said "When the president does it, it's not illegal." This caused an uproar--yet his logic is in lock step with those who wish not to concern themselves with the limits of government.

At what point did disregard for the law move from the profane to standard public policy?

bellum medicamenti delenda est

Stare Decisis: Latin for "Because We Said So"

I was writing another post about "situational constitutionalism" and one of the links I was going to use was Justice Scalia's scathing dissent* from the 1992 abortion case, Planned Parenthood v. Casey. I found myself no longer wanting to write the post because Scalia does such a marvelous job deconstructing the plurality's incoherent stare decisis argument that Casey upholds the constitutionality of Roe while it simultaneously guts everything substantive in the opinion. Re-reading it brought back memories of Con Law back at IU--and of a Scalia I admired so much more than I do now.

That said, I have three things to mention before linking to the opinion:

First, I am personally "pro-choice" and legal abortion is my policy preference, for a number of reasons. There is nothing inconsistent with Scalia's dissent and holding these positions because I don't believe abortion access should be a federal matter, for reasons Scalia explains better than I could.

Second, part of the inspiration for this post still requires mentioning, especially in the context of policy assertions divorced from reality: referring to abortion clinics as "reproductive centers" is enough to make Orwell proud. There is no doubt that Ms. Lithwick is not the first person to have used this insultingly absurd misnomer, but I read it and nearly suffered ocular strain from the eyeroll it induced.

Third, I wish the Scalia who wrote this opinion was present in the McDonald decision. Instead, we got a conservative hiding behind insults to the legal academy to capitulate sell-out to substantive due process; proof in a black robe that the Right, just as easily as the Left, can lack the intellectual honesty to be constitutionally consistent.

Unfortuately, I couldn't find a PDF of the slip opinion that isn't behind a pay wall, so HTML will have to do.


*Technically, it's a concurrence in part and a dissent in part, but the text makes pretty clear that Nino isn't being very agreeable.

Situational Constitutionalism: Jurisdiction of Federal Judiciary

Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:

He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."

Yeah, that sounds constitutional.

Unfortunately, it very well may be.

Article III, Section 2 of the Constitution clearly states:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)

Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.

That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.

I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:

[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving them

This is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence.  Emanations and penumbras? Well...not so much.

The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism."  We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)

I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.

Quote of the Day

This is a quote of the day in the sense of the "Not Top 10 Plays" of gaffes and miscues ESPN runs on Fridays.

"...Dred Scott v. Sandford is widely regarded as wrongly decided."

--Judge Sonia Sotomayor, responding to written follow-up questions from Sen. John Cornyn.

For those of you unfamiliar with the case, Chief Justice Roger B. Taney wrote for the Court:“[the negro] had no rights which the white man was bound to respect; and…might justly and lawfully be reduced to slavery for his benefit.”

And as pointed out by WSJ SCOTUS correspondent Jess Bravin:

Abraham Lincoln, then running for Senate, said the decision effectively nullified the noble promises of the Declaration of Independence. In the Supreme Court’s hands, the charter “is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it.”

Bravin's entire post here.

Now, I understand not wanting to antagonize Southern Republicans; but I'm pretty sure that, by now, even they will cop to the human equality of blacks so blatantly spit upon in that decision.

ADDENDUM: It's not that I'm implying anything nefarious/racist on her part. Just kinda floored by her inability to say anything resembling sensible about the case. Dred Scott v Sandford is perhaps only eclipsed by Korematsu (by the latter's placement on the historical timeline) as the most egregiously racist Supreme Court opinion ever written. (And that's saying something.)

It's more of a comment about the sorry state of our current confirmation system than it is any reflection on her. Though, I think she could have said a little bit more and, as it stands, the statement is fully in the running for understatement of the year.

SCOTUS Nod: An Exercise in Benevolent Bigotry

Pop quiz:

Which of the following are legitimate qualifications for a position on the Supreme Court:

a) a born-into tan
b) a cool "ethnic" last name
c) boobs/who-ha
d) legal acumen
e) all of the above, with special emphasis on a, b, and c

While put so crudely as to garner disgust from the Left, any astute non-comatose observer of the nomination process leading up to today's announcement can say, without reservation, the answer the Obama administration would give is "e." As proud as I was of my country for electing a black man--among a field of white men (and woman)--to be POTUS, I am disgusted by the manner with which the administration made its selection for the next Supreme Court justice.

The nomination of Second Circuit judge Sonia Sotomayor is an exercise in racial and gender pandering. This nomination should make her the new face of Affirmative Action: someone who may or may not be qualified for a position but gets in on an Affirmative Action "twofer." The administration made no secret that they were looking for a woman and/or Hispanic--arrogantly walking all over the letter and spirit of the 14th Amendment's Equal Protection Clause. Either we, as minorities, are equal or we are not--searching for the best among a gender/class/race is to degrade the equality so many fought for and intimates that if a given token nominee were to be judged against a truly open field, they would fall short.

It is not without a heaping spoonful of bitter irony that Sotomayor's record is, by most accounts, relatively unremarkable save for an Affirmative Action case now being considered by the Supreme Court--Ricci v. DeStefano.* The case illustrates what is wrong with Affirmative Action and the mindset of those who implement it: the results of a race-neutral test for promotion within a fire department were thrown out, thus preventing all promotions, because not enough blacks passed the exam. The city was afraid of being sued, thus they blocked all promotions. How this amounts to justice--genuine or "social"--has yet to be rationally explained, to my satisfaction at any rate. (Feel free to attempt in the comments.) The would-be Ms. Justice Sotomayor sided with the city, blocking justly earned promotions in the name of racial something or other.

I fail to see how selecting someone for their race/gender/ethnicity is substantively different than picking only among old white men. If to do the latter is racist and/or sexist, so is the former. Simply changing the race/gender of the selected does not make it any less unfair nor does it give the decision some sort of made-up nobility. To do so is not just logically inconsistent, it is simply wrong.

I suppose that the administration was open about its happenstance favoritism should mean something, excepting the fact that this patent tokenism is being hailed as some sort of milestone for Hispanics. Unless Hispanic women read differently than everyone else, unless laws apply to them differently than everyone else, and unless there is a fundamental legal reason that a Hispanic woman should be on the Supreme Court, to delimit the selection process to exclude or severely hamper the chances of any gender or race--or a certain combination of the two--is overtly racist/sexist and anyone who argues differently is not to be taken seriously. (Notice, too, there were no black men on the shortlist. I guess we made our quota.)

If the "shortlist" candidates could hold their own against white men--and all indicators show that most of them could--there is no legitimate reason to exclude them. To do so cheapens the nomination and everyone associated with it. I don't know enough about Judge Sotomayor to say definitively one way or the other if she is qualified for the Supreme Court. However, when all signs pointed to "woman and/or Hispanic" immediately after Justice Souter's announcement--instead of "Judge Sotomayor leads the field of jurists and professionals due to her accomplishments/decisions/writings/unusually high esteem, etc."--I find it sickening that most people just took it as given that giving any job, let alone THIS job, on qualifications of happenstance--gender and race--is in any way acceptable.

While it should go without saying, the traditional counter-argument is "It's not that we're giving a job to someone strictly because they are Hispanic/a woman, but among qualified candidates..." Yeah yeah yeah. Well, a lot of white men were given jobs over as or more qualified blacks/women and were not given their positions strictly because of their race and gender either. Inexplicably, it makes all the difference in the world that excluding all but white males is morally reprehensible yet excluding those white and male is morally praiseworthy and cause for celebration.

Maybe with her swearing-in, we could get Judge Sotomayor fitted with a robe with a big shiny letter "T" on the front:

It isn't that she's not good enough--she very well may be eminently qualified. But the way in which she was selected inevitably casts a shadow on her nomination. Justice Thomas complains openly--and in his legal opinions--about Affirmative Action, yet so many of his critics point to it as the main, if not only, explanation he's on the Court himself. The fact that he's the most Constitutionally consistent justice on the Court doesn't seem to enter into it--what must be a particularly harsh smack in the face to a proud man who has endured as much as he has. (And I'm not denying his race wasn't a huge factor in his selection, but the fact that people use it against him only strengthens my argument that it taints the accomplishment.)

Judge Sotomayor should have been considered against a full field of candidates--not just those whose biological and ethnic traits met political qualifications that have no bearing on their jurisprudence.

*Full disclosure: My employer filed an amicus brief on behalf of the firefighters in the case.

Right To Privacy Not Guaranteed By Constitution, Says Supreme Court Justice Peeking In Bathroom Window

From the Onion:

WESTON, FL—In a public ruling made this week while peering into the home of 28-year-old resident Laura Daltry, Supreme Court Justice Samuel Alito stated that "in no way whatsoever" is the right to privacy explicitly upheld by the U.S. Constitution.

"After careful consideration, it is this justice's finding that there is no specific mention of the right to privacy in any of the 27 amendments," Alito whispered, before furtively looking around and then jimmying Daltry's bathroom window ajar with a penknife. "A rigorous originalist interpretation of the pertinent statutory language has yielded the conclusion that privacy is not now, nor has it ever been, a federally protected liberty."

"Although modern tort law indicates four categories of privacy invasion, these amount to little more than a vague suggestion of the 'right to be left alone,'" Alito added, crawling through the narrow opening and slowly lowering himself onto Daltry's toilet tank. "Plus, if you rent a ground floor apartment, you're kind of asking for it."

Indefinite Detention Case Dismissed

Ah, change:

The Supreme Court on Friday wiped out a lower court ruling that gave the President the authority to detain indefinitely as terrorism suspects individuals living legally in the United States. The order also approved transfer of Ali Saleh Kahlah Al-Marri from military custody to civilian custody for a trial on criminal charges in a regular federal court, presumably in Illinois. The order is available here.

The Court’s action ended the Qatari national’s appeal in Al-Marri v. Spagone (08-368) that the Court had agreed to hear. Thus, the hearing set for April 27 will not be held.

I mean, it's great that the guy will finally get his day in court, but the presidential authority to detain a man indefinitely is now unchallenged in SCOTUS--as the case has been rendered moot by the new administration's actions. On its face, it looks like a win for justice. But, essentially, it's a maneuver to skirt the issue, thus saving face for the Bush administration and refusing to challenge a purported power of the executive.

DC v. Heller: Counsels' Perspective

DC v. Heller FYI

The Heller case should be released next week, probably Monday, and you can be sure that Cato will have something to say about it. So, for the facts of the case, as well as Bob Levy's statement as soon as the decision comes down, please go here.

Thanks!

My Take on Boumediene

Ok. While I should be going home to clean my apartment, the temptation is just too great to write this now.

As I mentioned before, the opinion is over 130 pages. I'm not about to hash through it bit by bit, but I will address Scalia's dissent, already being fully embraced by the Right.

From the beginning, our beloved "Nino" distorts the entire concept of the case. Several times throughout his venomous dissent, he refers to the "war" against "radical Islamists" and various attacks the U.S. has suffered at the hands of Muslims: the Khobar Towers attack in Dharan, the embassy attacks at Dar es Salaam and Nairobi, the USS Cole and...the Marine barracks in Lebanon? (For my younger readers, that was an attack near the beginning of the Reagan administration.) Er, one of these things is not like the others...

Conflated responsibility for attacks aside, the fact is that the "War on Terror" is a war on an abstraction--it is a policy catch-phrase that, outside of an actual battlefield, serves only as rhetoric and a rationalization for the growth of the security state and reckless foreign policy. Not dissimilarly, it is no more a "war" than the war on illicit commodities, also known as the "War on Drugs." Certainly, there are tangible and substantial costs of blood and treasure for the victims and perpetrators of both of these "wars"--but neither is a war in any real sense.

9/11 wasn't an act of war--it was a heinous crime. 20 men, mostly Saudis, stole airplanes and murdered over 3,000 people. The Right has been all-too-quick to assign war powers to a president and Congress when, in fact, most of the acts they site are of a criminal nature. A "war on terror" would have to include a war on the Timothy McVeighs of the world, whom--by virtue of citizenship--are afforded constitutional protections and given trials. But this case doesn't even involve proper trials; it concerns whether or not foreign citizens--not to be confused with POWs--may challenge their incarceration in federal courts. Boumediene is one of several men who were imprisoned in Bosnia, by Bosnian authorities, held without charge, and then released for lack of evidence. After their release, they were picked up by Bosnian officials and transferred into U.S. custody--six years ago.

These men were not captured on the battlefield. These men were not, as far as anyone can tell, caught in the middle of some dastardly plot against the United States. Indeed, there is no evidence that, even if they are criminals, they had any intention of doing harm to the United States whatsoever. How they (legally speaking) came into the custody of the U.S. Military is quite a mystery to me. And, due to the legal black hole they found themselves in, as neither U.S. citizens or proper POWs (protected by the Geneva Conventions), they had no sufficient legal recourse to challenge their detentions.

Those whom have not followed this case closely may not be aware that Boumediene v. Bush had actually been denied certiorari before it was granted. (background here.) The testimony of a high-ranking military lawyer, Lt. Col. Stephen Abraham, has been speculated to have changed the mind of Justice Anthony Kennedy to grant cert, as he testified that the CSRTs were, for all intents and purposes, worthless--thus nullifying the substantive and procedural due process the CSRTs were designed to provide. (I'll find the link later. kind of in a hurry at the moment.) Abraham link here.

The Right is howling as if this is the end to military justice as we know it. In reality, the Boumediene decision safeguards the rights of people whom have been held (and in several cases, tortured) for years without any sort of legal justification as to why...and thus rebukes the attempts of the government to overstep its prerogative yet again. I'm all for being tough on terrorists, but not at the expense of a cornerstone of personal liberty by an over-reaching collusive alliance of the Legislative and Executive branches of the federal government.

Way to go, SCOTUS.

Boumediene v. Bush: The Result

In what is undoubtedly a victory for freedom, the Supreme Court handed down a 5-4 decision granting habeas rights to detainees at Guantanamo.

I'm reading the a 130+ page decision right now, but it looks good so far. I'll write more after I've read it fully, but it seems that the legal black hole the administration created for detainees has been effectively destroyed...and that is a very good thing.

Best quote so far:

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom's first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.

Please, God, No!

I've been super busy trying to catch up from my trip to New York, but I will write up a report of all the goings on shortly.

But I caught this in the WaPo this morning and nearly fell out of my chair:

It's likely that the next president will face at least one Supreme Court vacancy. Obama should promise Hillary Clinton, now, that if he wins in November, the vacancy will be hers, making her first on a list of one.

Shriek.

Mildred Loving, R.I.P.

I really don't want this blog to become an obituary column, but I can't very well let the passing of Mildred Loving go by unmentioned.

Mildred Jeter, a black woman, married Richard Loving, a white man. Their ground-breaking case, Loving v. Virginia, challenged and overturned anti-miscegenation laws in at least 17 states, including my home state of Indiana -- which one of my friends recently referred to as "the South's middle finger."

Indeed.

As a product of a bi-racial marriage, I owe my existence to this decision. I grew up in the 1980s when my school system was still attempting to desegregate; while my parents tried to shield me from it, I had to endure cruel jokes and treatment from other kids and their parents because I was a "half-breed"; and to this day, when I date a white woman, I still have to ask how her parents are going to take my race. (You may be surprised how often it is actually a problem.) Yet, all that pales in comparison to what happened to Mildred and Richard (from a statement released by Mildred last year on the 40th anniversary of the decision):

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

My mother hinted at problems my parents encountered when they were together in public back in the 70s, but I don't know what they went through. I'm sure it was pretty nasty...I know for a fact that her father's side of the family still doesn't know I'm black. I've never even met them. I assumed they were all dead until just a few years before my mother died. Even then, she wouldn't introduce me to them. (I've been told they wouldn't approve.)

Well, thanks to Mildred Jeter Loving, people like me have become more accepted in society and people like my parents can live together without fearing the police barging into their homes and arresting them for being who they are and loving each other.

Mildred Loving, R.I.P.

D.C. v. Heller

My first reaction listening to the oral arguments in the gun ban case is surprise. I am completely taken aback by the lack of focus on the part of Walter Dellinger, counsel for the District -- it was as if he didn't buy his own arguments.

When I listened to the oral arguments of the Boumediene case, I was certainly against the position of Solicitor General Paul Clement -- but he more than competently presented his position. Dellinger, on the other hand, seemed almost amateurish in his delivery, and certainly was not the impassioned advocate that Alan Gura was for Heller.

That said, it seems clear that Heller will be victorious on at least the most basic level. The problem will be how Roberts (I can only assume he will write the opinion, but it seems likely) tailors the exceptions. The Chief Justice has been an incrementalist and will probably not be as sweeping as, say, Scalia would be. So, we'll see where he draws the line and go from there.

Oral Argument audio can be found here (scroll down). Transcript here.