Christmas Display Litigation Season Begins

 
Some time back, I started to read Supreme Court cases (now lower court cases are easy to access too) regarding holiday displays and have done so here as well.  Ten Commandments monuments and other displays also have been a long term matter of court dispute.  These are more blatant in a fashion, especially compared to holiday displays that try to include a range of religious symbols or water down the one (creche) with wishing wells and other stuff.  This is part of a range of things that might broadly be deemed "ceremonial deism" in some fashion along with national days of prayer, "God We Trust" on currency or in court rooms and so on.

I try to keep perceptive here that there are more serious concerns among matters of religious dispute, including burdening people's access to health care or marriage licenses that are the same as those of everyone else because of the religious views of some people.  Also, we have ISIS, an international example of a group giving "religion" a bad name. And, the term is used advisedly, since this discussion is correct.  There is a link there to President Obama saying that no religion "condones the killing of innocents."  Have you checked your history, Mr. President.  If you want people not to denigrate Islam or religion for extremists who self-represent as Islam, fine.  But, let's not have Presidents try to define "Islam" or "religion,' especially not in such a naive fashion.

But, every dispute is not of grand importance, and smaller ones can touch on major issues.  Denying someone the right to read some "trashy" book is a big deal, even if it is only a matter of keeping out of the local library, the person able to get it various other ways.  It's topical anyways since Thanksgiving is addressed in cases like Lynch v. Donnelly, including the dissent separating its religious and secular components, and the plurality opinion in the next major case noting that over our history, some Thanksgiving proclamations (which Madison and Jefferson deemed a problem, but then I'm not for appealing to history as much as some originalists) were blatantly sectarian in nature.

[Talking about Thanksgiving, some point out the whole pardoning the turkey deal -- cue appropriate West Wing scene -- is moronic, and insulting really given how few people are pardoned these days. I think one can argue that the President has helped prisoners in various ways, including in respect to getting them out of prison, but the argument has bite.  Would not take it that seriously though -- there are going to be stupid rituals.  So, use them to do something productive such as addressing human prisoners. 

Another topical issue (three football games now on Thanksgiving) would be the rather lame idea that its name led to officials being tougher on the Washington Redskins.  Whatever it takes to change the damn name, I guess. Finally, there are various ways to enjoy the holiday without eating animal products. Many already don't really do the whole turkey deal and personally back in the day pre-vegetarianism, I preferred chicken. Some chicken substitutes actually are rather tasty, but no, this is not merely a matter of Tofurky. There are range of foods for thanks giving meals.]

The most important thing here is to respect religious diversity in this country, which leads to what some might think of as lame but still praiseworthy attempts to cover various bases in public schools or other public celebrations of the holiday season. The courts continue, after all, to be more sensitive when young children are involved, and various Jewish children in the past had let's say at best mixed feelings regarding school Christmas pageants and the like. Take a basic thing. Saying "Happy Holidays" is ridiculed as anti-Christian, when it really amounts to a reasonable approach to cover everyone.  Some celebrate Christmas in some fashion or don't care, but they shouldn't care either if you say "Happy Holidays." Note too the inclusive presidential proclamation for Thanksgiving as to compared to more religious ones of the past.

Thus, the most troublesome cases is where one holiday or religious symbol (like one form of the Ten Commandments) are publicly endorsed by the government or even by some major employer (if not a First Amendment issue, respecting religious liberty in other contexts still is important) is some blatant fashion.  This includes celebrating the holidays of some majority group and not even in some fashion recognizing those of other faiths.  Now, religious diversity (e.g., the whole "Judaeo-Christian" deal) can have its own issues. But, even-handedness is generally better than one-sided endorsement. Basic respect is not really a trivial thing.

Litigation can seem to be about trivial things. Thus, we have holiday displays that have a creche, which is a representation of the miraculous version of Jesus' birth. The difference in a fashion between Jesus and Jesus Christ, Christ not just being his last name. Notice, e.g., the presence of an angel in the linked example. To many, the creche might just seem a relatively bland symbol of Christmas, a holiday many (hey, me included) celebrate without believing in the whole affair.  But, public endorsement of religious symbols is touchy.  It is not too surprising minor differences led to great disputes, down to Catholic schoolchildren being hit for refusing to use Protestant Bibles.  Minor or not, this is a type of "establishment" of religion, favoring one form over another.  Shouldn't be a majority rules either.  The fact so many are Christian as compared to Jewish or Christian of the type that might actually oppose use of such symbols (there is also division among Jews regarding the menorah) shouldn't determine things.

The cases ultimately split depending on how blatant the display involved. A creche in a wider display without some special governmental connection or blatant intent to promote religion allowed, a freestanding creche in a key government location not.  This was a close call, 5-4, with four justices annoyed the creche was not allowed both times, four would have denied the creche both times and three others upset a menorah (and even a Christmas tree in a display of religious symbols) was allowed as a representation of religious diversity. And, given the changing membership of the Court, the staying power of this rule is somewhat unclear. Justice Kennedy would have allowed the creche and generally supports public displays, except for something blatant like a permanent cross on top of City Hall.  Likewise, as part of an open public forum, especially if a notice is present that no governemnt endorsement is present, a freestanding creche or cross or menorah can be left alone on public land.

I'm inclined to follow Justice Stevens' rule, which very well have at best two votes* on the current Court, that "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property." Leave religious symbols, putting aside things like museum showings and such, to private parties.  There are ways to acknowledge holidays with religious components without using symbols that many deem holy.  I realize there might be hard line drawing issues there, but as a basic rule, it seems sensible.  It is not the current federal constitutional rule, but good policy is not always a clear demand that is enforced in the federal courts.

Local areas should at least have the option of having a special rule here as applied to public fora. The only way to avoid allowing unattended symbols here would be a general ban. This might work in some cases, but in others, it would make sense to allow some unattended displays. The same applies in other contexts. A public college might want to fund all college club newspapers, but funding a religious publication is not the same thing since required funding of religion is a specific wrong religious liberty should avoid, granting some hazy lines.  Not according to current precedent. This leads to some controversy when some group pushes for equal time, the ultimate case the Supreme Court decided involving a KKK group wanting to include an unattended cross if menorah was allowed. And, perhaps some Pastarfarian or whatever group wants their symbol included when a locality sets up a holiday display with other symbols.  Again, the government generally has broad speech powers, but when religion is involved, it isn't quite the same. 

This would also counsel against freestanding displays on public land that people reasonably associate with the public in general.  A religious event in a public park can be associated with the parties involved.  A big creche, even with some disclaimer many won't see or be able to read unless they go up close, in a park reasonably might be deemed a public message.  The Establishment Clause makes religious displays a bit different than other types of expression, governmental endorsement selectively of concern.  This goes both ways -- the First Amendment specifically respects religious beliefs by protecting free exercise of religion; non-establishment also does so by equally not favoring some over others.  At least somewhat more care is warranted.

Such a clear line might not be present in various cases, but the power of symbols and the importance of holidays again warrants special care. Everyone is not likely to be happy -- I recall Nat Hentoff once being concerned about use of a Christmas tree in a public school or library some such.  It was after all a "Christmas" tree ... was there a Hanukkah bush available?  I personally think a Christmas (and the very word) tree often has a secular connotation at this point, but hey, grew up Catholic, so biased, right?  Still, cliche or platitude it might be, some common sense and basic respect for fairness and even-handedness can be useful here.  This includes public officials taking notice of the diverse celebrations around this time of year, Christmas itself but a late Christian form of longstanding end of year celebrations.

Context ultimately matters here and again recognize there are degrees. I don't think holiday displays are quite as "passive" as some make them out to be in these cases, especially when there are various degrees of governmental involvement.  And, a "passive" sign that says "In Jesus We Trust" would not be allowed.  It still is not as bad as some other things, especially when part of displays that do honor various holidays (though there is a tendency to favor some here, thus "Christmas" season brings in other holidays, holidays that might be relatively minor to the religions).  Plus, there are ways to show basic fairness.  Happy holidays!

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* Justice Breyer was okay with a disclaimer, Ginsburg was concerned with the flimsy nature of the disclaimer (but joined Stevens' dissent in a later case with the rule) and Sotomayor once joined a dissent regarding a cross display.  Kagan had a good dissent in an invocation case involving a public meeting, but separated it from legislative prayers generally.  Inclined to think she would at best be a vote for endorsement concerns, not Stevens' strict rule.  She argued the cross case for the government but that isn't really determinative.  So, who knows.

BTW, the video is not exactly supportive of my p.o.v., but is a good representation of some people's ideas about the question. Concern for certain particularly religious symbols and so forth is anti-Christmas etc.

Happy Thanksgiving

Christmas Before Thanksgiving?

A bombing plot led Supergirl's Thanksgiving episode to be pushed back from this week. But, one week early is pretty on time as these things go. Meanwhile, a special Young & Hungry Christmas episode was on earlier tonight. The main show is its hiatus now. Anyways, the episode was pretty lame, the only notable thing was two recognizable faces as guest stars.

Brown v. Board of Education

I spoke about this case (cases really) earlier in the month after reading the oral argument transcripts of the first two arguments; there also was a third for Brown II: Relief.  Noted that I might have some more to add and do have a few things. (One thing to add as well: taped oral arguments available at Oyez.com start sometime early in the Warren years. Chief Justice Warren has this voice that really adds authority as he opens the argument.)

The episode seemed to need to cover too much material in the time period and if anything did so with what seemed like a bit more time for calls than before. I say "seem" because maybe it was the same time but the span of time and material covered in a compressed time was a bit telling in this case. The episode had some clips with Linda Brown and Thurgood Marshall as well as something on the famous doll studies plus some photos used as exhibits in one case. But, I think it could have used a bit more in the video segments on the original plaintiffs.

I think it would have helped too if it was clearly noted that even John Harlan himself separated social and civil equality, putting public school integration in the first category.  One of the guests noted that the ruling showed Harlan as a prophet, but this was someone that not only wrote an opinion a few years after Plessy that upheld segregated schools but didn't even honestly uphold the "equal" part of separate and equal.  This is a case where the seemingly absolutist words of the Constitution are a bit less so, which is generally true, but a particular learning experience here.

(The guests did agree that Plessy reflected the times as compared to leading them -- the acceptance of segregation already long in place by that point. This recognition of the times a case is decided in is important as compared to an ahistorical treatment that relied on principle alone. Again, as Justice Souter noted in his Harvard address, the justices at the time probably thought their rule sensible and an advancement of the state of the law they grew up experiencing. After all, as applied to schools, even Justice Harlan accepted the rule that ultimately was seen as obviously wrong.)

It was also noted that it was Frankfurter's idea to use "all deliberate speed." He would be a logical person, especially after the death of Robert Jackson, to promote such a conservative go it slow approach. Still, reading the oral arguments, the Eisenhower Administration itself  referenced that very concept when discussing proper remedies.  The government's brief was also influential in the opinion's statement that original understanding was not conclusive one way or another - basically the re-argument was a useful delaying mechanism, the issue of remedy (part of the questions presented) to be re-argued in Brown II given now the parties knew the outcome.

One more thing that comes to mind was a reference to Parents Involved, including a quote from Chief Justice Roberts plurality opinion. They could have used a clip from the opinion announcement to use his own voice.  C-SPAN was perhaps too polite to note that his appeal to Brown was a tad ironic since Thurgood Marshall himself supported race based affirmative action of the sort rejected here.  He did not write the opinion, of course, but seems his views would be a tad notable. It also shows how later generations can interpret things differently. Using the opinion to reject race based affirmative action is not quite as much of a stretch as appealing to original understanding to oppose school segregation, but this passage from Brown has bite here too:

This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.

Thus, the 4-1-4 ruling. Harder questions these days, I guess.

Pennies Are Pretty Pointless

I agree with John Oliver that pennies really should not be still a thing. Just round off. Can even use the extra for some good cause. Think new Muppets show is at least okay, so that not a great shot. And, do pick up pennies, in part to avoid getting back more when something is like thirty-one cents or whatever. And, dogs can eat other coins too. But, no segment bats 1.000. The ability to reject pennies is true but not limited to them.

A Principled Stand: The Story of Hirabayashi v. United States

This is an interesting and powerful edited version of personal writings of Gordon Hirabayashi, who challenged the curfew and removal order of Japanese as a loyal citizen of the U.S. and man inspired basically by a Quaker faith. His view from inside of prison is particularly powerful. Gets a bit repetitive late, after we get the gist of his sentiments. It ends with a personal summary of his later work and overturning of the convictions.

Jane the Virgin

I caught the first two episodes of this takeoff of telenovelas and can see how it has addictive qualities. Darn the lead is hot. Plus, she's actually over 30. So it's okay.

U.S., not ISIS, Values

“President Obama and Hillary Clinton’s idea that we should bring tens of thousands of Syrian Muslim refugees to America—it is nothing less than lunacy,” Ted Cruz said on Fox News, the day after the attacks on Paris. If there are Syrian Muslims who are really being persecuted, he said, they should be sent to “majority-Muslim countries.” Then he reset his eyebrows, which had been angled in a peak of concern, as if he had something pious to say. And he did: “On the other hand,” he added, “Christians who are being targeted for genocide, for persecution, Christians who are being beheaded or crucified, we should be providing safe haven to them. But President Obama refuses to do that.”

As noted here, which links to the New Yorker article, drawing religious lines like this makes us less safe. It also is an ugly approach that violates our basic values. Sure, there is the time old value in a negative fashion to such divisive tactics.  Nothing new under the sun there.  This is seen here, particularly in the comments, where the recent troll is rooting for Cruz and the reasonable one (aka Mr. W) agrees the strategy is both productive to certain ends while still being reprehensible.  My hope is that Cruz is too divisive and too much of an asshole to win the nomination, but then, the best case scenario seems to be that he will get a lot of delegates and influence all the same. 

It is in the air. The "sane" candidate (whenever this is suggested, others quite sensibly point out various things he did that are horrible) put up a flag regarding using our government to help people learn "to be a part of a Christian-Judaeo society."  Loads of state governors now are saying, though it is clearly unconstitutional to do it in any real way, they would refuse to help with Syrian refugees.  This is a time old reality contra the opinion of Justice Scalia in Arizona v. U.S.  Compare:

"Sense of Congress-- It is the sense of Congress that the United States should (1) continue to recognize and promote diversity in the Armed Forces; and (2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces."

There is some sharing of blame here and not just regarding the internment curious. This is seen by the apparently veto proof House measure that was rushed thru in nice kneejerk fashion to add requirements before Syrian refugees are allowed in.  To be clear, the fact less than fifty Democrats signed on doesn't show "not a dime worth of difference" here, here. Also, a helpful summary of the rules in place.  But, wrongdoing requires assistance and looking the other way, and this remains quite troubling. And more. A layer of disgust should be present.

Just what to do in these cases as a matter of long term policy is to be a bit weenie about it very hard. I think, as a whole, President Obama provided a reasonable approach though surely criticisms can be applied, including his supporting long term troublesome assumptions like the value of force in various instances. For instance, I have argued the drone policy is not akin to murder as some without rejecting those very concerned with it as applied and as a matter of basic policy overall.  Basic rules should be applied though.  Talk of only bringing in Christian refugees? Kneejerk bills like this?  Promoting Judaeo-Christian values on the government's dime? Uh no. It isn't THAT hard, is it?

The concern, by the way, some Syrian refugee will leak thru that is a terrorist is not horrible. It is human nature.  But, think it through. First, it is not like we don't have home grown terrorists, including those that shoot up movie theaters.  Second, will not terrorists come from some other part of the region? Should we then not allow any from the Middle East? But, the Boston Marathon bombing showed the limits of that approach too.  Finally, just how productive is it to block some people feeling from oppression here, especially since helping is a basic human and American thing to do? After all, there is a lot of vetting already, and if anything they might be somewhat less likely to be one in the process than from some other region.

This sort of thing is why I scream during football games. So much simpler. Jags won the loser bowl last night, btw.

Under the Udala Trees

I enjoyed Half of A Yellow Sun, which took place during the Biafra War. This novel starts there too, heroine's lesbian path starting as a result of war time displacement. The book covers various themes including mother/daughter relationships, education at a girls school, religion, self-doubt and how good people can still do horrible things. It was very good while using both universal themes and things specific to the time and place.

Two More Executions

Justice Sotomayor flagged a problem shortly before someone was executed. As noted in last link, a second person wanted beer for his last meal. This was refused and he also was executed, claiming innocence. No justice dissented or made a statement.

Mets Blog "new and improved" (as if)

The changes to Mets Blog (on my blogroll) reminds me of my negative feelings when Slate changed its "fray" and then ended it, but worse since the overall look of the blog has changed too. The visual look is cluttered and the comments (a prime reason I go) harder to use too. I liked Oyez.com (scrolling harder now, e.g.) better before but much worse here.

"Equal Dignity"

Obergefell v. Hodges (SSM) continues to have academic discussion over at Harvard, part of the argument it is a type of "game changer" of sorts in constitutional analysis. I think Prof. Tribe is correct to downplay the change somewhat as portrayed in the first analysis though both are worthwhile to examine the overall principles involved. Tribe rightly argues that the opinion "represents the culmination of a decades-long project that has revolutionized the Court’s fundamental rights jurisprudence."

There continues to be a battle on the contours, but we are not talking about some novel principles that suddenly came out contra, e.g., Roberts being so very confused in his dissent. The first article sees Obergefell (destined to be one of the most forgotten precedent case names) as de facto overruling Washington v. Glucksberg, a major substantive due process precedent. The majority (via Rehnquist) tried to cabin unenumerated rights here but just how much the reasoning actually does that is up to the reader. An honest realistic counting of noses here shows three actual votes for the full approach.* O'Connor concurred separately in a fashion that suggests she was more concerned with the specific issue of physician assisted suicide than some broad attempt to limit substantive due process.

Kennedy didn't speak separately but joined O'Connor years before to "not foreclose the unanticipated by the prior imposition of a single mode of historical analysis."  She cited Poe v. Ullman, also favored in the Casey abortion decision, the favorite approach for the Obergefell developing history approach. This underlines the perils of trying to selectively use one opinion or even parts of one (such as the federalism aspects of Windsor) without putting it in a wider context.  It's important that a firm five votes supports a broader view here but this "what about Glucksberg" query is not new anyhow -- see the opinions in Lawrence v. Texas.

The two articles here in more helpful for me to summarize a general approach at any rate. The same applies to the substantive due process and equality "synergy."  This is not new. I don't know what the confusion here is. Loving v. Virginia shows how the two interact as did various other opinions, at times some justices viewing things in an equal protection mindset, some in a substantive due process fashion. An earlier overlap would be Griffin v. Illinois speaking of "equal justice"  or the two school segregation cases, one a due process matter (federal), the other equal protection (state).  And, again, Lawrence v. Texas spoke of the connection:

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.

The majority opinion used substantive due process while the concurring opinion relied on equal protection. The articles can also be used to show "dignity" is not just something Kennedy came up with as did various articles in the past.  The general idea that concepts such as "marriage" change over time as new information and societal developments occur isn't new either.  The debate here is basically on details.  This does not belittle the ultimate scope of the opinion here, including the value of bringing various strands together, but the novelty of it all is unclear to me.

A final thing here is "what about Lochner?" Chief Justice Roberts sets up a drinking game there by repeatedly citing that case. Again, we are talking degree here.  It is not apparent that he is against a "right to marry" as such and we are back to "what about coverture" etc. regarding the current scope of such a right.  The problem of Lochner, or a primary one at least, was its breadth. Some "right to contract" was not disputed by at least eight justices.  The Supreme Court could have rejected the couples' claims here and still have to face the continuing problem of the proper contours of constitutional limits and the Roberts Court is not that minimalist there. Shelby, anyone?

The favored approach by the writers here is to think of some "anti-subordination" principle or something to show why equal rights is appropriate in this case. So maximum hour laws were valid to protect the unbalanced relationship between employer and employee. Others would use some economic/non-economic liberty approach. Or whatever. I find the whole thing somewhat tired since there are various reasonable ways to differentiate here and again difficult questions will arise requiring value choices and so forth to be made.  "What about Lochner?" was raised in Griswold v. Connecticut too and even campaign finance cases.

Anyway, like many an article, the journey here is worthwhile even if certain details are not of my liking. And, the SSM opinion is a landmark case, including one where certain basic principles are expressed well with likely long lasting effects.  But, be sure, some future case will try to cabin things as even this case did regarding "marriage" as compared to some other "liberty" covered in Glucksberg. As the first article notes, this wasn't overly convincing though even there probably somewhat so (easier to expand on "marriage" than something like physician assisted suicide though some general right was appealed to there as well -- see, e.g., Justice Breyer's concurrence). Again, nothing new under the sun.

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* A somewhat unbalanced  artificial approach might get you somewhere else.  On that level and regarding the same case, see here, an example to me of the unreasonable commentator.  This is a pet peeve of mine, one arising out of general concerns  The basic problem being that a person in strident tones assumes a questionable strong argument is being made and ridicules it.

A better approach would to provide a more sympathetic interpretation, especially since just what is intended is unclear and at times the response is the party that comes off as more unreasonable.  That is, misreading the person as well as wrong on the merits -- a double whammy.  The reader is left to examine both sides (and comments) as applied here, but the professor imho is not a first time offender here and is of the type that stridently keeps on digging.   Pushes my buttons.

Odds and Ends

This is prime '40s family fare that you can honor for the skill of the effort including the woman who plays her mom (deserved that Academy Award). Yeah, that rather tall looking older sister is Angela Lansbury. Lovelace seemed okay but bored and turned it off half-way thru. Checked out the audio of the "lost" Harper Lee novel since Reese Witherspoon did the honors. Good choice but not really interested in hearing the whole thing. Still, first part of novel again was pretty impressive. Best part along with some anecdotes.

Steel Seizure Cases

 
Have had a lot to say about past Landmark Cases and already had an entry for Brown v. Bd. Somewhat less to say about this one though it is an important case, of course, and the segment was overall interesting and well discussed. The Vinson Court itself is somewhat of an also ran, a time of transition from the New Deal and WWII / the Warren Court.  There are a few important cases there, including the opening gambit of the modern day Establishment Clause cases, race cases like the restrictive covenant issue and key Communist cases. But, like more than one Truman appointee (Burton and Minton are particularly forgettable), think many don't give too much concern to this era.

Anyways, the basic conflict here was that Truman deemed it necessary to seize steel mills during the Korean War because he feared an inability to settle a dispute would lead to a strike dangerous to the war effort. Justice Breyer discussed the matter in his latest book, providing a look at the President's mind-set.  It turned out that after Truman lost that a strike did occur, but the parade of horribles Truman feared did not seem to appear.  Still, how was Truman to know?  Hindsight is 20/20 and all that.  And, Truman figured he had a strong case, various appointees on the bench plus the others were Democrats and Vinson reportedly told him it was okay.  Imagine his shock when he lost 6-3.

Justice Black wrote the opinion of the Court but each justice in the majority wrote his own opinion while the Chief Justice wrote for the three dissenters.  Black felt it fairly simple:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.* 

 Justice Douglas appears to have had an opinion most comparable. He argued that the seizure of property was a legislative function, particularly since Congress needs to provide the funds to compensate. There might be special wartime seizures in connection to military operations but that would be a different matter. The other justices, as Justice Frankfurter noted, felt "the principle of separation of powers ... more complicated and flexible than may appear" from Justice Black's opinion.  Their approach was more tied to history and the fact that Congress specifically addressed the matter at hand, in the eyes of the majority, they specifically decided not to give the President the right to handle labor disputes in this fashion. Thus, we have Justice Jackson's now famous three tier approach applied here "at the lowest ebb," since the Congress didn't leave the matter open.

And, unlike something like directing a battle, this is not something where the President has solitary power. As Justice Burton argued: "controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency."  Justice Clark said somewhat similar. The dissent argued that the President as commander-in-chief could seize the mills to successfully address a wartime emergency.  Various precedents, contra Justice Frankfurter in particular, were comparable.  There was an opening or the President did have executive power to even meet Justice Jackson's third tier. 

As noted in the recent DeShaney post, ultimately, this is a matter of judgment, line drawing in separation of powers.  More than one justice, with an eye on WWII in particular, was concerned with the limits of executive power, here in a specific domestic sphere and not even in the midst of a declared war.  In time, the power of the President seemed to be paramount, Congress not defending its sphere as much as here. In fact, in various cases, Congress seems to want to give the President more power than he (so far) might want. The detainee cases in recent years was a matter of the judiciary overruling not only the President but ultimately Congress to some degree.  Some limits for internal matters can be found such as Bond v. U.S. limiting the reach of the chemical weapons law or the consular notification death penalty cases.

Well, I did have a decent amount to say after all. A final word -- among those arguing the case was John Davis, who defended segregation and Arthur Goldberg, who later was on the Court plus had a later infamous oral argument post-career that people found rather horrible. Here, however, it is said he did a very good job.

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* Apparently, going by Justice Black's opinion a few years earlier, said "job" does include deciding to detain over a hundred thousand presumptively loyal  Japanese residents, 2/3 or so citizens.

Tom Coughlin Has To Go (either way, NYG Redefined "Loser" this season)

Creature from the Black Lagoon

Pretty good Svengoolie film last night though the victims (humans did invade his territory -- how did the woman scientist figure the creature was a "he" though? before he carried her away?) were standard -- two natives and two ethnic members of the crew plus the too greedy scientist. Another extra guy of no real interest was just hurt. Nice b&w look.

Massachusetts Pastafarian Wins Right to Wear a Colander in Driver’s License Photo, Thanks to Humanist Group

ETA: The Supreme Court in 1985 heard a case involving a woman who refused to have her picture taken for her driver's license on religious grounds, but ultimately was evenly divided. Thus, her own claim was upheld, but it had no precedential value. The question probably arose under state or federal RFRA rules by now. 

Interestingly, the vote was originally 5-3 against her and a draft majority opinion pre-Oregon v. Smith that provides more moderate approach was written.  The public nature of the license, lack of a criminal penalty and non-individualized exemption (cf. unemployment compensation) were factored in.  The neutral and non-"hybrid" rule not the only line. Intriguing approach.

Miller said, "As a member of the Church of the Flying Spaghetti Monster, I feel delighted that my Pastafarianism has been respected by the Massachusetts RMV. While I don't think the government can involve itself in matters of religion, I do hope this decision encourages my fellow Pastafarian Atheists to come out and express themselves as I have."

Massachusetts generally bans head coverings for driver's photos except for medical or religious reasons.  The manual linked there notes that even there the covering must not hide facial features, leading me to wonder how they handle veils.  This led to a member of a group that is often more of a parody of religion (the reference is often made online in comments to ridicule religious belief or claims for exemptions) but let's grant that lines can be hard to draw there to ask for an exception to wear a colander on her head in the photo as an expression of her own religious belief.

Her request was open to some ridicule, which is not surprising, but I'll take it seriously.  For one thing, it is fully benign in this context -- the colander she is wearing does not cover her facial features and does not even cover all her hair (she wears in long).  Compare this to the third party harm and bother that is now back in front of the Supreme Court regarding contraceptive mandates as to employees or various cases involving prisoners etc.  Religious exemptions for "serious" religions are myriad too and can cause a lot more difficulty than as applied here for reasons that might to many of us seem somehow absurd. 

The exemption does seem to apply to her.  It is true that it does not seem to be mandatory to wear it as compared to what some think about a yarmulke or such.  So, for purposes of "substantial burden," again if we apply this seriously on both sides (e.g., someone might pretend that it is a big burden on their sense of principle when it really isn't), it isn't the same thing.  But, the exemption does not seem limited by that and the "facial features" limit shows not much is really at issue here. Some do not like religion being singled out, but sorry, that's old news given the First Amendment. And, religion is a core aspect of human society and such, especially if seen in a broad sense as conscience and belief.  Respecting her can help others respect that principle.

The woman argued for a sense of equality since other religious faiths were allowed an exemption. On some level, this is a bit too much for me. Again, for them, it is likely that they usually wear some sort of head covering. It is not like someone by choice wearing certain religious garb or symbols like a crucifix that they might also choose not to wear or take off at certain times without an issue. Atheists and others without beliefs some think of as "religion" have certain beliefs and practices that can fall within "religion" in some sense and it is important to respect it. Thus, e.g., couples have ceremonies to marry that have a sacred character even if God isn't involved. And, these ceremonies might have aspects some find silly, even perhaps a Pastafarian aspect.  But, it is a special thing -- a way for them to carry out a special life event their way.  Such is their right.

Wearing optional garb in a driver's license photo is not quite of that caliber and it isn't religious favoritism to say so. The point holds again if someone wanted to wear an optional religious head covering of some other sort or a cultural one for that matter.  The same applies if some public school had a uniform though I'm not that gung ho about school uniforms as such for public schools in general.  Perhaps, a person likes to wear their cultural colors.  And, generally speaking, they should have the right to do so, including at jury duty or something.  But, this is not quite the same thing as a conservative rejecting a school uniform as not covering enough pursuant to proper obligatory religious guidelines for women (or men in certain instances).

So, kudos for her right to wear her religious head garb of choice here, but let's have a bit of perspective about the whole thing. 

RIP "Poor Joshua"

Whatever childhood Joshua DeShaney might possibly have had ended at the age of 4, in the early spring of 1984, when his father delivered the semiconscious boy to Mercy Medical Center in Oshkosh.

The Supreme Court deals with law and we are sometimes told that "natural sympathies" should not factor in here. This is a somewhat exaggerated statement of reality in various respects.  Humans, not machines, decide the law and nonrational aspects of human decision-making is involved here. The article in fact argues that such aspects might advance reasoned judgement; regardless, law applied by humans will involve such things. It won't merely be the artificial purity some argue, often selectively so. We saw this as well with the debate over empathy when Sotomayor was up for confirmation as if that sort of thing was suddenly part of the equation c. 2010 or only something liberals do.

True enough that applying the law is not just emotion and requires some hard choices that go against our sympathies. It remains true that the Constitution, for instance, speaks in its Preamble regarding "establishing justice," not merely "law," so the talk some time back of "law plus" is a bit confused.  We are concerned with "justice," a complex matter.  For us, the LAW of the land involves some degree of justice.  It is not an either or affair as some might argue, using at times a tired "it's unfortunate but true" tone, as if they sadly are being forced to do something they are choosing to do.  The choice might be correct but it is not totally compelled.

This commentary is inspired by the death of Joshua (DeShaney) Braam in his mid-30s as noted at the top of the page, best known perhaps as "poor Joshua," in the words of Justice Blackmun. Before the days of ready-made Internet opinion access, I got a taste of this case as part of Peter Irons "May It Please The Court" series (we are talking cassette tapes here) in which the lawyer for the mother also added a few words in the introduction tape (Sarah Weddington of Roe also was involved there). We now have easy access to the whole opinion and oral argument (link provided).

If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.

This was a tragic case. Joshua was a young child who was a repeat player in the child protection system and it was alleged that the state should have known at some point that he was liable to be severely injured by his father as he eventually was. It was not merely that the state did not provide protection but a "special relationship"* of some sort was formed and in effect he was under some degree of state oversight comparable enough to a child in foster care or a prisoner for liability to accrue. The Supreme Court (6-3 with Stevens concurring without comment) disagreed -- the child was merely put back where he was taken temporarily.  Bluntly:

The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The dissent argued this is a bit too blithe -- the state set up a child protection system and state law in fact entrusts them with the protection of the child, not merely self-help. And, once "the State actively intervened in Joshua's life," a certain responsibility arose here.  If nothing else, and this is where Justice Blackmun's more personal dissent comes in, a choice is being made here.  The bare text of the Due Process Clause is not clear on what is demanded and "may be read more broadly or narrowly depending upon how one chooses to read them."  Some of the questions in oral argument suggests the possible horribles there.  The logic of the state case would be even returning Joshua when the state should have know a crazed killer was in the house at that moment would not breach due process or police officers blithely watching a rape.  At some point, lack of state protection goes too far. 

This very well might not have helped at the end of the day -- to get the federal courts involved enough to truly interfere and/or accept money damages  some high level of wrongdoing is warranted here, but opening the courthouse door is another issue.  The federal government had time to speak to that -- it cautioned that this was not an ideal issue for the federal government to handle.  And, that is a respectable statement up to a point.  The state tort system is of some help though it only would offer a small amount of money for what here would be a lifetime of expensive care (the obituary notes that eventually a third party adopted him). But, like prisons and other state agencies, at times a basic federal floor is warranted.   

And, natural sympathy will be involved here too, putting aside that it is more acceptable when a separate dissenting opinion makes the point (such opinions traditionally more likely to be personal).  Reading court opinions for some time now leads me to note that they are not purely some sort of Vulcan rational process with no emotional sentiments about the parties and issues involved.  The care not to let us be wrongly misled here also often tends to have a selective character, something for the other side.  Such judges repeatedly (people like Alito, Scalia et. al.) show their sympathies and empathy.  On some level, this is to be expected though it's a matter of degree.  Within proper limits, appropriately so. 

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* This case was particularly clear because the state harmed the parent/child relationship enjoyed by the mother though as the opinion notes the father had custody here so if the state kept the child from him wrongly, HE could have sued.  

Tomboy

Not the French film about a girl acting like a boy, which was good, the 1980s flick. Betsy Drake's death being reported brought it to mind. Last half is fairly boring but first hour is impressive throwback. Cheesy, gratutious nudity (amusingly handled) and actually decent (both acting/likable) lead and bestie. The actress later had a small role in multiple Saw films.

Is it Spring Training Yet?

Daniel Murphy (a bit on his wife) rejected the single year "qualifying offer" as expected though took to the last minute to announce it. Made sense given his likely value, a value that leads me to think the Mets should re-sign the guy, especially with David Wright questionable, Duda streaky and 2B apparently now up to a rookie. Assumption is he is gone. Sad.

SCOTUS Takes Abortion Case

First order involved this striking 7CA opinion, but after the conference, the big news was taking the Texas abortion case. Mild interest given to districting case; none to earlier order appointing a special master. I'm somewhat optimistic (comments) and suspect some split ruling that is somewhat less earth shattering them some commentary suggests.

NYJ Blow A Gift Opportunity To Come Back From 22-3

Deserved to lose given how many gift points they gave up but just screwed fans who by now should know NY teams will play with them by being yards from coming back. Then, defense failed them at crunch time. Why am I still so aggravated? At some point, it's expected.

Ash vs. Evil Dead

I saw all three of the original films though couldn't get into the more serious remake so this is of interest. Nice to see Bruce Campbell and Lucy Lawless on Colbert & back together in general from their Xena days. LL wore some tight white Sharon Stone number that was rather attractive. Unfortunately, don't get that channel at the moment.

Free Speech In Its Forgotten Years

Other than a few matters, pre-20th Century discussion of Bill of Rights matters is few and far between. This helps by covering the period from 1870-1920s in respect to free speech. A bit too academic at times, it is an interesting and fairly comprehensive look with special focus on sexual matters (including free love), workers and WWI dissent. It was written in the 1990s; wonder if anyone took him up on the pre-1870 chapter of the story.

Best Way To Honor Vets? (see tag)

RIP Brittany Murphy

Today is the actress' (d. 2009) birthday. She was good in various things but her best role was "Luann" on King of the Hill, where she played the busty and naive niece of Peggy Hill, but with a good heart and some smarts hidden under a somewhat dim veneer.

Korematsu v. United States

The Landmark Cases episode this week focused on this case (Peter Irons and Korematsu's daughter as guests) though it is best to consider three (or four, one a companion case*) Japanese Internment Cases here. Irons has written much about the people involved here and later on had an important role in having the three prosecutions reversed in the 1980s. 

The overall theme here was a bunch of honestly progressive leaning judges (as Irons argued, Chief Justice Stone was first appointed by a Republican, but he wouldn't be one today) going along with a rank violation of civil liberties with some clear hesitance.  It might be seen as somewhat as stretch to add that last part, but reading the cases -- with various concurrences and in the lead one here three dissents -- there were caveats, attempts (rather hard to take seriously at times) to limit and various passages that could be used later on to protect civil liberties. The point holds that over a hundred thousand loyal Japanese Americans, more than three quarters citizens, were interned in concentration camps for around three years.

After Pearl Harbor, it was determined that the Japanese would have to be removed from the West Coast. This was a disputed matter including the head of the FBI being against the idea. Internal debate in the FDR Administration -- reflected again by various opinions written by his appointees to the Supreme Court -- helped provide Peter Irons evidence that convictions in the cases here rested on illegitimate grounds. As Justice Breyer noted in his latest book, even the brief to the Supreme Court in this book had a surprising footnote that the military report justifying internment was not being relied on except to state the facts of the process.

The first Supreme Court case in the bunch, decided in mid-1943, dealt with a curfew requirement. It gave the President a broad power to wage war successfully and argued it was reasonable to suspect the Japanese specifically.  The irony that racist policies furthered the insular nature of the group was not focused upon.  There were three concurrences.  Justice Douglas, who Peter Irons noted at first was going to dissent in Korematsu. spent a lot of verbiage to justify his vote, basically based on wartime emergency conditions. He suggested that individualized hearings -- when time allowed -- might be warranted.  Rutledge (who Stevens later clerked for) briefly noted he didn't think military orders here had total discretion, free from judicial review.  Murphy, who had to be talked into joining, spent most of the time saying how bad the action was. The companion case is noted in the footnote.

Korematsu itself accepts military necessity but tries to cabin the reach. Justice Roberts (of "switch in time, saves nine" fame) in dissent ridiculed the idea that only the assembly order was at issue. They were being assembled to go to internment camps (the majority felt "concentration camps" had an ugly connotation and it was unfair to use that term) and he had no right to go anywhere else here.  The majority introduced "suspect" classifications for race though denying racism was the incentive here:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.  ...

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.

Murphy disputed this on the merits.  Roberts had a nice firm and honest dissent on the rights of citizens.  Jackson spoke of the bill of attainder be applied here and didn't want to dirty the hands of the courts by legitimizing it.  Realistically, he noted, military actors will do nasty things in wartime that the courts can not stop, but here they were brought a case to decide.

Meanwhile, Frankfurter concurred to point out that various opinions showed that even in wartime the courts had the power to determine the legitimacy of governmental action, but it was proper here. This is worth noting with the "laws become silent in wartime" maxim and an idea that at least here it was true.  There was a kernel of concern even here, with past episodes including the Civil War noted, of judicial review being present. It might be deemed but an empty platitude here but cases can be found where that level of cynicism should not be taken all the way.

The shame of it all is aggravated because the case was decided late 1944, purposely after the election.  The FDR Administration already basically determined there was threat of sabotage etc. and was ready to start releasing the internees.  In fact, the Court also decided Ex parte Endo at the same time. Justice Douglas wrote a rather remarkable opinion (again Roberts wouldn't buy it) holding that on statutory grounds there really wasn't authorization to inter anyone loyal, which the government here did not deny.

On some level, looking at the bare words of the order involved here, it did not specifically authorize this, so perhaps this is not without some basis. The idea is that if they were going to deny liberty like this, it better be crystal clear. But, there is a level of absurdity here given everything involved, including funding that clearly was based on knowledge of what was going on. Murphy reaffirmed he found the whole thing unconstitutional and noted that Endo -- if she was loyal and all -- should be able to go back to California, but that was still blocked.

In Hamdan v. Rumsfeld, the separate opinion of Souter and Ginsburg noted a Cold War statute left open a repeat, but a later law repealed the open-ended law "out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry." The plurality compared its non-"blank check" rule with the WWII precedent. But the justices back then believed they weren't doing that either. The difference a matter of degree, if a serious level given the scope involved. Korematsu himself offered amici briefs in such cases to remind.  The opinion appears to be still good law, leading Peter Irons and others to ask the Obama Administration to use a standing case as a means to deny its staying power, which it did not do. 

We have our own issues during the age of war on terrors, enemy combatants and so forth.  The Japanese Internment Cases serve as a warning as well as something of a suggestion that even at our worse times, there was some concern for civil liberties. 

ETA: I added some more material. One ironic thing to add is that where the Japanese did directly bomb -- Hawaii -- was treated differently partially since the size of the Japanese population made internment so difficult.

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* The lower court had some strong things to say about the limits of military justice in wartime but relied on the person losing his citizenship.  It actually held that the curfew would be unconstitutional as applied to citizens.  The USSC noted his citizenship was not in dispute so sent the case back to address a punishment resting on that ground.

The Supreme Court here did not treat citizenship as different nor in Ex Parte Quirin (military commission for sabatouers, one or more who were American citizens). See also, recent detainee cases like Rasul v. Bush. But, there is some difference here though "persons" (see, e.g, the Due Process Clause) have enough rights to cover the tens of thousands of non-citizens (basically since they weren't allowed to naturalize at the time) being mistreated. Cf. Rehnquist's book on justice during wartime that suggested as applied to aliens the cases might have been correct.

SCOTUS Orders

A per curiam opinion was for most people the most notable part of today's orders. A 8-1 opinion (Scalia concurred politely) saved an officer a day in court arising out of a from the face of it fairly questionable use of deadly force. Sotomayor dissented. I don't know how much the majority followed current law, but the facts suggest it is reasonable to at least require a trial. Let a judge or jury decide. Appreciate someone voiced that take.

NY Does Better

Horrible day for NY sports last week (Buffalo was off). Better today with all the NY football teams winning, including Buffalo. Took a bit more effort than probably warranted, especially the Jets giving up two blink in an eye TDs, but a win is a win. Other interesting games with Carolina (this time vs the Packers) continuing their great run.

Brown v. Board of Education Orals

The Brown v. Board Landmark Cases episode is in a few weeks but read the oral arguments of the cases (two sets, the second dealing with history and remedy, not the third involving remedy) edited by Leon Friedman. They might have been re-released (originally in the late 1960s, explaining why various people are cited as still alive) for the 50th anniversary of the ruling. The matter was also discussed here as part of an originalism discussion with various comments by me, including in answer to a precious sort that wondered why it is deemed so special.

Some more might be added when the episode comes, but a few things do come to mind.  First, we have Plessy v. Ferguson, a 8-1 ruling that a brief clip at the episode link has Alito confirm (let's not be too controversial) was wrong when decided. Another link has Scalia using Justice Harlan's dissent as a way to show how he could be originalist and part of the Brown majority.  As I noted in comments here, Justice Harlan actually separated (ha) segregation in public schools from that of public accommodations, even while rejecting mandating segregation in a private incorporated college.  He also voted without comment with an opinion that treated interracial fornication differently so did not think at the time that interracial marriage was protected either. An originalist with a poor sense of history?  Who knew?

The excellent Harvard speech provided above arguably at least partially defends Plessy, noting in the 1890s that "separate but equal" would be seen as a big deal when actual slavery was still fairly fresh in the memory of the writers. This doesn't change the truths in the minority (apart from the comments supporting white supremacy) or the that some people even then realized mandated segregation by race was illegitimate. As noted by a 1960 article by Charles Black (a Texas boy), as well as Justice Harlan (a previous slaveholder), everyone knows segregation arose out of and promoted racial caste.  Consistently admitting this and protecting equal protection of the law took a lot more time, especially for "social" equality.  This took time and in the process society and the law changed.  The "living" nature of the constitutional law was cited a few times in the oral arguments here.

The oral arguments were interesting though at some point did get a bit repetitive. A general point was that there was a lot of evidence, especially by looking at what they did, that state mandated segregation in education was not originally deemed to be unconstitutional. The way to avoid this was to try to show (rather unconvincingly) a clear statement in this respect was not formally stated even as Congress repeatedly provided funding for separated schools.  More helpfully, appeal to broad principles, including in court opinions, and occasionally remind people that the system is obviously racially unequal by the facts on the ground and motivations of the parties.

The government argued segregation was a positive thing, including for black self-worth, and that it was doing so much to promote education for blacks. Again, going by Souter's words, early on, this was more impressive than it was in the mid-1950s, especially given public education itself was in its infancy many places in the Civil War era. The changing times approach, including the growing and central importance of the civil right of education was also cited in Justice Jackson's unpublished concurrence (which I have in hard copy somewhere but cannot yet find online), again softens the blow some. Also, particularly South Carolina and Virginia, much was made on how much was being spent to equalize education. The fact this was a result of litigation where they failed in court to even meet the "separate but equal" test was not emphasized.

At times, the government had a point -- Justice Thomas is not the only leading black voice who has suggested that integration is not necessary for black education to thrive, and the value of same sex schools is also promoted by some.  Thus, we have the segregationist lawyer John Davis quoting W.E.B. Du Bois on the value of black schools!  In a vacuum, especially in a racist society, segregation might be defended. And, some of the psychological research provided has been shown to be weak, down to the famous doll study.  But, Charles Black was right too -- we know what was going on here.  The black students lawyers and even the justices at this point might down play it some, but segregation was part and parcel of a racist system. And, the schools weren't equal -- as noted at one point, even with the huge influx of cash for repairs etc., the spending was not equal.

There was also a major division among the parties here. The state ruling in Delaware, a border state, actually held for the students.  The schools were not "equal" and black students had a right to go to better white schools. A lower court in fact found that separate was inherently not equal, at least in the state in question, but that as a matter of law this did not matter.*  By the end, multiple members of the D.C. school board were ready to integrate. The stance of Kansas might be suggested by an account later written by the lawyer involved -- A Time To Lose.  And, like in Delaware if more so, the court below found as a factual matter that separation was not equal, but finding its hands tied given current law.  S.C. and Virgina was much more gung ho and the aftermath was a lot more harsh in those places.

The federal government played an important role here as well, particularly because it was determined (though the President himself was less gung ho) that segregation was a bad for foreign relations. Like for SSM and previously for other Warren Court landmarks such as prayer in school caes and "one person, one vote" matters, the fact the President was officially on board was a big deal.  Two major influences to the final opinions also are seen from the oral arguments here. One, the idea that history is inconclusive in respect to school segregation.  Hard to tell from the argument transcript, but perhaps the brief was more detailed on making the case there.  Two, as to remedy, "all deliberate speed" was cited.  Some accounts, from my reading, suggest Justice Frankfurter suggested this approach.  Perhaps, he did, but the government here as well.

The students' lawyers accepted that there would be administrative issues to settle and that this would be largely a public policy question. But, they felt it appropriate to handle things here within a year. Justices Black, the Southern justice most supportive of the justice of the ruling, also felt immediate relief would be appropriate. Realistic up to a point -- who would enforce this quick taking off of the band-aid approach? He knew there would be strong opposition, but saw little benefit in trying to string things along to obtain more support by a sign of moderation as good faith. The drawn out battle was a tragic result, "tragedy" here in its classical sense of something where bad things came out of good intentions.

I discuss Brown (states) and Bolling (D.C.) here and generally find them reasonable opinions. The federal case is very brief but provides precedent that show that due process includes an equal protection component especially when racial discrimination is involved.  It wasn't novel to this case. Likewise, Hurd v. Hodge is cited regarding the principle that if racial segregation is unconstitutional as applied to the states, it is clear without more that so it is for the federal government (there it was regarding racial covenants).  As to Brown, as with law and graduate schools, separation was deemed to lack a certain something.  Plus, with cites to two opinions below and the infamous footnote summarizing research, it was held to promote a sense of inequality.  A small doll study etc. might not be enough to show that, but did opponents really want to deny the ultimate conclusion?

[Jack Balkin edited a collection of opinions spelling out how different law professors would have written the opinion and like his similar effort for Roe v. Wade, it is worth looking over. A bit too precious all the same.  CJ Warren was written in a specific time and place, trying for a simple unanimous ruling that was acceptable enough for the PTB at the time. All things considered, he did an pretty good job, even beyond some of the creative arguments offered in that book that are nice thought experiments but less likely to be applied in normal course of the law.]

A few final thoughts. The sense that the rulings were but a logical next step should not let us ignore that a gigantic step forward was being made. The breadth of the problem here and the significance of the change in society -- even without the upcoming per curiam orders applying it to parks etc. -- was greatly different than for a few members of law schools and the like. And, bluntly overruling Plessy, the partial burial soon shown to be complete, was a big deal.  Next, this was a major act of judicial activism, in the positive sense of the word.  Once you make such a big step in the face of so much opposition, others will come. And, so it was in education alone, the importance and equality principles logically applied to prayer in schools and protection of rights of students to areas such as free speech.

Finally, and I'm sure I left something out, some have belittled the ultimate value of the rulings given that school segregation continued and de facto at least inequality continues today. But, putting aside that even as to border areas and elsewhere true integration occurred (and even before the rulings, efforts were being made to improve black schools), the USSC formally holding that segregation was unconstitutional was a BFD.  It might have taken time for Congress, for example, to use the spending power to pressure integration, but the nation was put on notice that race based segregation was unconstitutional.  To reference Martin Luther King Jr., the promissory note was there, even if it was not yet (or even today) fully paid.

ETA: One somewhat interesting wrinkle, other than a few references to segregation here being a sort of "bill of attainder" (somewhat weak argument since it isn't really an intentional penalty; sort of a title of nobility the other way) are references to school cases like Meyer v. Nebraska to reference a "liberty" of education being unduly invaded and a related case involving Hawaii, then a territory, and thus a federal matter.

The merits however are somewhat different here and to the degree such cases totally denied the ability to let's say teach in a foreign language, not quite comparable.  But, it does provide a useful hook both for a "liberty" claim and application of rights to states made to the federal government too.

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* Segregated schools were accepted multiple times by the Supreme Court even if it never directly ruled upon the question like they did in Plessy; attempts by one side to avoid this again was not very convincing.  Nor was it likely that deep down even they themselves were convinced. They were there to have the precedent overturned. They succeeded there though the limits of the law itself to change things also came to pass.

Supergirl

Two episodes in, it is pretty good, with a neat bit of casting -- Helen Slater (Supergirl in the movie thirty years ago) plays her foster mom. Ally McBeal (good character) is right -- even for superheroes, there is a learning curve. Supergirl's respect for getting help and confidence issues also brings in a feminist angle. Leaving a sample (a shiv) of kryptonite in your enemy was stupid -- clues her of a secret weapon you have. Good use of flashbacks/memories.

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.

Citizen Joe: Voter AND Juror!

In midst of federal jury duty and was called for a panel. Given the crime, figured I wouldn't be called for various reasons, and was not picked. Did get to see Judge Alison Nathan up close. Answering the juror Q&A out loud akin to those school get to know things. Tad personal. For those not covered by an employer, minimum wage per diems fair. Less now. (Went in Monday, skipped Tuesday and released Wednesday morning after not being chosen after being called for a second panel. Rather painless civic enterprise.)

And then there were two

There were four executions scheduled today, but after an order today, none will be. The latest allows a person with a medical condition that allegedly will cause too much risk for use of the current lethal injection method to determine if he was given enough of a hearing to make the claim. Looks to me that still might just allow him eventually to lose on the merits like a recent person executed. [Update: Two remain scheduled this year, one just added.]

Schenck v. United States

[And Also: Originalism is discussed here and here with comments by mean, including a reference to a case cited in Notorious RBG.  Also cited in that book is a late 19th Century case on rape that is worth looking at.]

The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on

If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.

It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country."

Such is a summary of the facts of this week's Landmark Cases focus, the 1919 case that is famous for the "falsely shouting fire in a theatre and causing a panic" (too often only "shouting fire" is cited, robbing half the context) and "clear and present danger" phrases.  It is striking to our eyes today that such a document was unanimously deemed unprotected by the First Amendment.  The opinion argues that it "would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out." But, the 1A allows "influence," it being sort of the point.

My approach while commenting on these cases is sort of taking a middle road approach and the best case for that here is to see this in context.  As noted here and discussed more in a video on the page but not included, there was a case the Supreme Court was going to decide shortly before where Holmes actually planned to dissent.  It involved a petition to a governor criticizing his application of the draft and threatening him with defeat at the polls.  See also, this book (which I found interesting if a bit overdone) regarding Holmes' later famous dissent, a full length video of the author also included on the C-SPAN page here.

The government apparently found out about Holmes' plans and dropped the prosecution though other bad examples from the times can be found. Free speech was not much protected in the courts at the time though some bright spots can be found  here and there. As with the 1790s. the true defense of freedom of speech were the streets -- at times violent protests especially in respect to workers' rights that probably only aided and abetted some judges to hand down conservative rulings on these questions. There were dissenting views as well as moderates who believed there was some floor here worthy of protection.  When even during the second Iraq War some cautioned dissent, is it too surprising many felt strong dissent during wartime a hundred years ago was particularly suspect?

Anyway, the plaintiff here was Charles Schenck (picture found via a quick Google search though C-SPAN for some reason had a problem finding one) was a leading member of the Socialist Party, a strong force opposing WWI.  He lost unanimously, the case (along with a few others) found to be a better vehicle to uphold prosecutions against certain challengers of WWI.  The opinion, however, provided some opening for protection, Zechariah Chafee a prime mover here in expanding it beyond what was likely intended.  All the same, other than (again) providing an opening to view a major era in U.S. history, the case even on its barest terms did honor civil liberties to some degree even as they were trampled upon.

First, the case left open the possibility that freedom of speech, contra even an opinion written by its author a decade earlier, protected more than prior restraints. Second, it bluntly noted: "We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights." Just what those qualifications entail is unclear, but in an era where strong protest of capitalism and so forth was deemed illegal, it is quite important that even a circular of this force was deemed protected in various cases.  And, it is not really too much of a shift (as one guest here said as well) for Holmes to dissent in various later free speech cases, that took place in peacetime, given that statement.

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Finally, we have the famous "clear and present danger" test.  Some have an "absolutist" view of the First Amendment and I consider myself fairly strongly free speech friendly.  Note though that the amendment does not say "no" prohibition of speech is allowed; it is no limit of "freedom of speech."  Perjury is speech, right?  The test provided here fit into the times where "reasonableness" was the test even for fundamental rights. For instance, Meyer v. Nebraska (parental rights):

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.

The test on face value might work but again it is how you apply it. What are these "substantive evils" and what sort of "proximity and degree"?  If handing out the "document in question" meets the test, even in wartime, we have an at least limited protection. Holmes and Brandeis in time strengthened the test, honoring the precedent, but it might fairly be noted giving it some more bite. As applied during WWI, however, the test was let's say a lot less scary.  The best thing about the case was its potential, it's opening for the future.  The courts did have a role in protecting free speech, which had some bite, especially outside of wartime. And, Holmes' unreleased dissent suggested even then, there was some limit.  Ultimately, it was a "to be continued" moment.

ETA:  Again, just to be clear, am not saying that Justice Holmes at the time intended the "clear and present danger" test to be particularly strong though an unpublished dissent suggests a bit of teeth.  The district court ruling in the "Masses" case by Judge Hand is the one in hindsight that is most impressive with an interesting discussion here how Congress (as compared to the President and most courts) was at first more dissent friendly. The war, however, led to a stricter legislative policy. 

Judicial disrespect of free speech, particularly at the Supreme Court level, however was long term by that point.  The link covers a book that discusses the era regarding free speech and connects the last two cases. Many progressives in that era had a general distrust of "rights" as compared to a more communitarian approach. The repression during WWI led to more concern regarding free speech at least in respect to political matters with Holmes/Brandeis' famous dissents reflecting that sentiment. OTOH, as the book notes, conservatives who were willing to use judicial review to honor economic rights went along with free speech repression. 

There were exceptions but singling out "progressives" (besides being anachronistic given their views today) here as sometimes is done by libertarians and conservatives is playing loose with the facts.  And, especially over time, more progressive leaning judges also understood trusting the government had its limits in other areas too. Thus, e.g., Brandeis and Holmes protected privacy in various cases, including going along with the exclusionary rule as applied to the federal government. 

And, in time the "progressive" judicial review approach expanded. 

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.

Notorious RBG: The Life and Times of Ruth Bader Ginsburg

This is an apt book for a phenomenon started on a Tumblr with its redlined case excerpts, charts, photos and kickass tone mixed with a quick but still substantive summary of RBG's life and influence, now on women the age of her grandchildren. Good gift for holidays.

Black Day in NY Sports

NYG come back, blow another late inning lead and with less than a minute left go three & out AND give NO time (with help via a 15 yard face mask) to win 51-49 via the final FG. Expected loss came the worst way. Jets favorites vs. Oakland but early injury put in Geno Smith (not only backup). Did okay but still lost by 14. Mets blew it again late with mismanagement helping more than once. Putrid World Series. Don't want to hear about KC or how fans should be proud they got here. Are they f-ing Little Leaguers with participation medals?

"Fall Back"