Election Results: Kentucky and Houston Bad / Ohio Disappointing (Pot)

Local election here might not have mattered much (Bronx did get their first woman DA) but others were troubling, one or more of the 'fu' sort that I voiced last year regarding control of the Senate. A harsh loss in Houston (GLBT rights) and a failed marijuana measure are two disappointments. Health care might have taken a blow with the Tea Party win in Kentucky. A win for public financing of elections. Win in PA judicial races. And some more coverage.

Election Day

John Oliver had a segment on elections highlighting that choices over state Medicaid funding will be affected in at least three states today. Ohio has one on marijuana prohibition and various other places will have notable things on the ballot. Somewhat less so locally here in Yankee country.

A few local offices are up but for me personally there was the sure to win district attorney, who sent me some campaign literature. FWIW, she seems qualified enough for the position.  She is filling in for the long time DA (who a while back was overruled by the governor when he refused to bring a death penalty case for a cop killer; the death penalty has since been mooted by court challenge) now running for judge.  This opens up a chance for his wife, being a state judge too while your hubby is a prosecutor tricky; here she wants to be presiding judge.

This also meant I actually had a reason to know a little about a few of the judges running, usually something chosen by party label.  Actually, one person running (given party label is basically the only way local voters, in a strongly Democratic area, has a chance to pick here, all of the Democrats are likely to win here) is someone who my teacher some time back.  This means not only do I know the guy but actually met him!  Again, seems like a decent enough sort though who knows how good of a judge he is. The whole process of judges running in political campaigns is dubious on principle but the lack of information alone makes it something of a joke to me.  Don't even get a pre-election voter guide for judges.

Anyway, as presidential candidates keep on dropping out (Prof. Lessig, we hardly knew thee), an actual election is going on today. And, local elections remain basically the core of our democratic system, involving things that directly affect our lives.  This is so even when some of them are for things I think shouldn't be up to elections. Borderline on district attorney too though there is less conflict of interest concerns and at least we get a bit of information about them before the election.

Decision Day & Other Constitutional Concerns

Update:  Talking Points Memo, etc., has some good coverage on the racial identity story discussed below. SCOTUSBlog has a view from the courtroom segment that covers a bit of amusement that we have missed given there is no audio or video of opinion announcements.  Again, what is the reason for that? The reasons applied to oral arguments do not really apply, especially since there we have transcripts.

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First, I appreciate the citation of my comment in another blog post regarding the use of per curiam opinions. As noted, it is the use in that specific case that really concerned me. The usage in general is another matter and the discussion cited and expanded is of academic interest generally speaking.

As to the merits of the abortion opinion itself, this video is helpful.  It is of limited relief, but it should be noted that the opinion is not a total loss -- the district opinion rulings is upheld in a limited way to help abortion providers.  This underlines the breadth of the law in question as well as the rearguard efforts in dealing with them -- some success is better than nothing in most cases.  As are denials, such as the ultrasound law struck down on free speech grounds with Scalia (for whatever reason) being the sole dissent.  Again, an underused approach on the SCOTUS level (leaving aside Rust v. Sullivan),  Casey briefly dealt with this:

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. Cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

The opinion there on substantive liberty grounds notes that "If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible" in respect to various information required to be provided.  The woman can be assured that "the full consequences of her decision" will be protected, which is also used to defend waiting periods.  The same thing is alleged to be the reason for use of mandatory ultrasounds, but the lower court here thought it just was too blatant here.  The limits of this rule is unclear, except that it is somewhat more flexible then earlier cases.  Still unclear. 

Moving on.  Today was another Decision Day for SCOTUS though the "big" cases aren't quite here yet.  SCOTUS trivia seekers will note today is the day (unless not joining a footnote counts) that Justice Breyer dissented for the first time this term.  Double action -- in a bankruptcy ruling and one involving the proper procedures required to be on notice why a non-citizen spouse [is not allowed a statutory right to stay in the country.  ScotusBlog etc. can be accessed for more information, but my immediate concern is why Chief Justice Roberts felt a need to join Scalia's overly restrictive due process "liberty" discussion plurality opinion (not even controlling, given Kennedy/Alito had the most restrictive to obtain the votes position).*

Finally, though it is somewhat separate, I'll include Veep and John Oliver here as well since they do touch upon constitutional concerns.  Both were good episodes though sorry John, that mistaken map joke is getting old.  Veep ended with an apparent Electoral College tie though we just might have the possibility of court challenges and even disloyal elector opportunities.  The possibility of the v.p. candidate becoming President was offered and if no presidential candidate is chosen, he does become acting President with the next step somewhat unclear.  The veep being a member of Cabinet is also interesting. A member of the legislature (shades of Cheney's claim?) cannot be, but who took Cheney seriously anyhow.

As to Oliver's torture segment, very good, including some wicked use of Helen Mirren narration (the Peter Rabbit bit ... ROFL). It added the usual argument that torture simply doesn't work. I don't believe that. It very well might in certain cases. Let's be honest about that. There are ways to show this -- people have via torture told information that was found out to be true. Let's say a mobster using it to get information.  This doesn't make it right. It is still wrong & the fact that as a whole it doesn't work well even on a sociopath pragmatic ground is true enough. The examples given by John Oliver here show this. It also causes blowback. So, along with it being against our basic values, torture doesn't "work" in the end.

Finally, John Oliver made a passing reference to this controversy, which until then I missed -- just too many "things" out there, you know?  She has stepped down though has yet to admitted her overall choice to "be black" is a problem.  As the article suggests, however, she doesn't appear to have been truthful in the specifics and it is unclear just how consistent she has been.  Still, it wouldn't be the first time a "mixed" person identifies differently in different situations. And, I'm unclear exactly the "rules" here.  OTOH, as this NPR story notes, this isn't merely the case of a very light person with a black grandfather or something.  She rather blatantly "became black" in certain ways and there is clear evidence that she did so in deceitful ways. 

The matter provides much fodder for discussion and her family outed her when she made an allegation of being a victim of a race based hate crime.  But, she seems a rather atypical cases, so don't know how much we should really rely on her to send some sort of message. If some college does not want to count people like this when determining "pluses" for placement, which will come up in some other context as well, fine.  No rule is going to be totally "clean" there and other cases of people in leadership roles of various types, liberal or conservative, with created identities can be found. Still, just what does "being black" mean?

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*  The distaste the plurality has with around a century worth of substantive due process protections really makes me surprised that Chief Justice Roberts signed on to the opinion given Alito did not.  The breadth of the plurality leads me to feel it warranted to add on this footnote, partially as a reminder of the alternative vision out there from Scalia-land

Was such a broad rejection of the "liberty" in question so necessary when a narrower way to deny relief was necessary, Chief Justice?  Scalia speaks of a "artificial world of  ever-expanding constitutional rights" that "this Court has seen fit" to protect and have "indulged a propensity for grandiloquence when reviewing the sweep of implied rights."  And so on. 

There was some suggestion in the commentary [as Chris Geidner noted on Twitter] that the plurality did not recognize a "right to marry."  It did note "right to marry" precedents and argued that the right to live with one's non-citizen spouse in the U.S. did not fall within its contours. And, Justice Thomas most probably would deem it a privilege or immunity of citizenship (how much the non-citizen spouse changes things is unclear), while I have no reason to think CJ Roberts doesn't support a right to marry either.  But, the plurality did define the "liberty" historically protected by the Due Process Clause narrowly to basically mean freedom from restraint, not marriage itself.  In effect, bare precedent saved the day there and overall concern of "stretching" is clearly shown.

Finally, the much repeated rejected Scalia narrow historical approach was sadly joined by CJ Roberts here.  For instance:

While noting that modern "equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Such a narrow approach in which decades of practice is "all too recent" to matter for due process purposes is rightly rejected by current precedent.  Again, especially with Alito not joining in (he more strongly against a right to same sex marriage in Windsor), how much this tells us about the upcoming SSM cases is far from clear. And, the right to live with your non-citizen spouse in the U.S. (or to have a right to notification on reasons why you cannot), non-trivial as it surely is, is different from not having the right of to be married at all.  Still, makes you go "hmm."

More here. The fact the wife is a naturalized citizen and Afghan refugee only adds insult to injury.  As noted here, but not apparent in lot of coverage (hate that -- so often to me obvious questions are left unanswered), they continue to live apart, as they have since 2006.  Sanctity of marriage indeed. 

Sunday TV (After Mets Made Up For Yesterday)

Good finale with some touching moments actually that ended with a 269-269 tie (hey! it's the booster from FNL as the other candidate!). John Oliver was good too, including using some Helen Mirren audio in a torture segment that ... seriously ... was ROFL funny at one point (had to do with Peter Rabbit, going horribly wrong). Good material, but you know, it might actually work. Sometime. Unclear when. With blowback. And, it's still wrong.