Supreme Court of the United States

One of Those Moments (… cum Farce)

#DimensionTrump | #WhatTheyVotedFor

Deputy U.S. Attorney General Rod Rosenstein testifies to the House Judiciary Committee hearing in Washington, D.C., 13 December 2017. (Photo: Joshua Roberts/Reuters)

To the one, something goes here about unnamed sources; it’s a long question, by now. To the other, though—

For all the morning’s madness, there may have been an underlying logic. Over the weekend, as Brett Kavanaugh’s prospects appeared increasingly imperiled, Trump faced two tactical options, both of them fraught. One was to cut Kavanaugh loose. But he was also looking for ways to dramatically shift the news cycle away from his embattled Supreme Court nominee. According to a source briefed on Trump’s thinking, Trump decided that firing Rosenstein would knock Kavanaugh out of the news, potentially saving his nomination and Republicans’ chances for keeping the Senate. “The strategy was to try and do something really big,” the source said. The leak about Rosenstein’s resignation could have been the result, and it certainly had the desired effect of driving Kavanaugh out of the news for a few hours.

(Sherman)

President Donald Trump speaks in the Roosevelt Room of the White House, in Washington, D.C., 24 May 2018. (Photo: Evan Vucci/AP Photo)—this is the Trump administration: What insanity will we be expected to believe, tomorrow? The question is how well a bit like this ages; certes, it makes a powerful headline, but the instinct to disbelieve seems largely reasonable.

And, again, to the other, this is the Trump administration. The idea of a T&A comedy presidency ought to be a really stupid joke. Something, something, Trump administration, right. This really is what they voted for, and no, it’s been more of a tragedy cum farce than any sort of comedy. It really isn’t funny.

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Image notes: Top — Deputy U.S. Attorney General Rod Rosenstein testifies to the House Judiciary Committee hearing in Washington, D.C., 13 December 2017. (Photo: Joshua Roberts/Reuters)  Right — President Donald Trump speaks in the Roosevelt Room of the White House, in Washington, D.C., 24 May 2018. (Photo: Evan Vucci/AP Photo)

Sherman, Gabe. “‘The Strategy Was to Try and Do Something Really Big’: Trump Wanted to Nuke Rosenstein to Save Kavanaugh’s Bacon”. Vanity Fair. 24 September 2018.

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The Futility of Disbelief (One Hundred Days and Nights of Donald)

#wellduh | #WhatTheyVotedFor

President Donald J. Trump (@realDonaldTrump): "No matter how much I accomplish during the ridiculous standard of the first 100 days, & it has been a lot (including S.C.), media will kill!" [via Twitter, 21 April 2017]

Perhaps Pramuk and Schoen come across as, well, disbelieving and perhaps a bit tacit:

Donald Trump just called using his first 100 days in office to judge him a “ridiculous standard,” but he repeatedly boasted about what he would achieve in that exact time frame before he took office.

And, no, that isn’t so much, but that’s also just the lede. The remaining five paragraphs seem to presume something everybody ought to be in on, some vital tacitry. And this is President Donald Trump, so, yes, yes there is indeed some vital tacitry afoot.

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The Transcript, Part Two

The Supreme Court building in Washington, D.C.

Transcript of oral arguments, second part, from marriage equality case before Supreme Court, 28 April 2015.

Obergefell v. Hodges #14-556

Tanco v. Haslam #14-562

DeBoer v. Snyder #14-571

Bourke v. Beshear #14-574

The Transcript, Part One

The Supreme Court building in Washington, D.C.

The first part of today’s oral arguments are already available via the Supreme Court website.

Obergefell v. Hodges #14-556

Tanco v. Haslam #14-562

DeBoer v. Snyder #14-571

Bourke v. Beshear #14-574

A Matter of Ceremony and Circumstance

LGBT advocate and civil rights attorney Mary Bonauto in her office, 2014.  (Photo via MacArthur Foundation)

A rite of honor:

Lawyers advocating for a right to gay marriage at the U.S. Supreme Court announced on Tuesday they had chosen Mary Bonauto, a longtime champion of gay legal rights, to argue the landmark case on April 28.

(Biskupic)

Do the job, madam. You’ve got this one.

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Biskupic, Joan. “Prominent gay rights advocate to argue landmark U.S. marriage case”. Reuters. 31 March 2015.

An Interesting Point About King v. Burwell

Ah, Gail Collins:

Here is how great the Affordable Care Act is doing: The Supreme Court is about to hear a challenge to the law, filed on behalf of four Virginia plaintiffs, who claim to have suffered grievous harm by being forced to either buy health coverage or pay a penalty. Lately, reporters have been trying to track down this quartet of pain, and discovered they are:Gail Collins, columnist for the New York Times.

— A 64-year-old limo driver who does not seem to be required to do anything under the Affordable Care Act because the cost of even a very cheap health care plan would be more than 8 percent of his income. (People who have to pay more than 8 percent are allowed to just opt out of the whole program and stay blissfully uninsured.) Also, he’s a Vietnam veteran and thus presumably eligible for free veteran’s health care, making the whole discussion even more irrelevant.

— A 63-year old man in Virginia Beach who would apparently have been eligible for stupendous savings on health insurance under the new law. And who is also a veteran.

— A woman who listed her address as a motel where she hasn’t been staying since late 2013. And wherever she is, she probably wouldn’t have any Obamacare problems because of the 8 percent rule.

— A 64-year-old woman who seemed to have little or no idea what the case was about. “I don’t like the idea of throwing people off their health insurance,” she told Stephanie Mencimer of Mother Jones.The New York Times

That plaintiff, an anti-gay rights activist, also told Mencimer that because of previous health problems, she faced insurance costs of $1,500 a month, a vastly higher premium than she’d pay under Obamacare. Also, The Wall Street Journal determined that her annual rate of pay as a substitute teacher was so low she, too, should be off the hook because of the 8 percent rule. Also, she’s about to qualify for Medicare.

Comments by some of the plaintiffs did suggest that they experienced serious pain over the fact that Barack Obama is president. “… When he was elected, he got his Muslim people to vote for him, that’s how he won,” one told Facebook.

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¡Godzilla! Oh, Wait … It’s Just Marriage Equality

Justice is blind ... just kidding.  No, really, did you read the Sixth Circuit ruling?  Jaded eyes, jaded eyes ....

And then there is this:

Today, November 19, U.S. District Court Judge Brian Morris ruled in favor of the freedom to marry in Montana, striking down the ban on marriage between same-sex couples in the state.Marriage Moves Forward in Montana!

The ruling is set to take effect “immediately,” the judge ruled, meaning that same-sex couples in Montana should be free to marry now.

The Attorney General said shortly after the decision that he will appeal the decision to the 9th Circuit Court of Appeals. The Attorney General could also seek a stay from Judge Morris, but as we’ve seen time and again this month – from the 4th Circuit, from the 9th Circuit, and even from the United States Supreme Court – judges have repeatedly rejected requests for stays, because there’s no good reason to delay the freedom to marry.

(Hiott-Millis)

Dan Savage gloats, of course, but here’s the thing:

Slog’s resident trolls would erupt every time I ended a Slog post about marriage equality with “We’re winning.” They LOL’d at my delusions, they sneered at my efforts to buck up supporters of marriage equality, they trolled a little harder. They called me a cockeyedmouthed optimist. That was then. This is now: 35 states, motherfuckers. And, thanks to a “loss” before the U.S. Court of Appeals for the 6th Circuit—the only U.S. Court of Appeals decision that hasn’t backed marriage equality—we’re headed back to the Supreme Court.

Reading through the Sixth Circuit decision against marriage equality is a fascinating exercise in depression. We knew that a decision against same-sex marriage would require some degree of juristic contortion and acrobatics, but what the court gave us was the metaphorical equivalent of ceremonial magick.

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The Dignity of the Great State of Texas (and Other Notes)

Texas

See, the thing about Texas ....

It is, actually, a difficult proposition to pick on a whole state. After all, no population is monolithic. Still, though, there is a reason why one might note, as Tim Murphy of Mother Jones did last week, that—

As a Texas state senator, Dan Patrick has conducted himself in a manner consistent with the shock jock he once was. Patrick—who is now the Republican nominee for lieutenant governor—has railed against everything from separation of church and state to Mexican coyotes who supposedly speak Urdu. He’s even advised his followers that God is speaking to them through Duck Dynasty star Phil Robertson.

—and others will simply nod and mutter to themselves something about how that sounds right. Nor will those folks be surprised to find that the article only goes downhill from there.

And it is true that we see this over and over again, and while it is not some rarified view from an emerald tower to the far horizon, it is a difficult calculation to express just what it is they are doing wrong. Like art and obscenity, though, sometimes it is just plain apparent.

Whether it’s advocating violence against journalists, offering women money to abandon babies, tinkering with history in textbooks, trying to cram small government between women’s legs, showing his tolerance through intolerance, something about coyotes speaking Urdu, denigrating migrants, touting his own piety in order to be seen by other men, breaking Senate rules in order to try to force a bill through because, well, you know, God, mocking Asians, or arguing against the separation of church and state, there really isn’t anything about Murphy’s profile of the shoe-in to what is described as the most powerful office in Texas that doesn’t “sound Texas”.

One of the things about states’ rights is that in our democratic society, how our majority votes is one of the most apparent projections of what our society believes. It’s kind of like wondering what the Joni Ernst campaign means as an expression of Iowa values. Does any of this embarrass supporters?

And Texas? Come on, we saw Rick Perry in the 2012 primary. And it is still hard to explain the two presidential terms of George W. Bush. But for all the miserable disaster about Perry or Bush, or Ron “Legitimate Rape” Paul? Really? Does none of this embarrass the Texans who support these people?

Take Rep. Vance McAllister. The Republican from Louisiana’s Fifth Congressional District is best known as the “kissing congressman”, and sure, it’s not the worst thing in the world for a member of Congress to be caught cheating on his wife. And some would make the point that, hey, it was just a kiss, you know? But what was really, really embarrassing about that episode, what seemed so unreal, was the back and forth about whether he would resign, or maybe simply not run for Congress again, and, well, now he actually trails the lone Democrat in a six-way race otherwise rated Safe Republican. Still, the only people annoyed by the controversy seem to be his opponents. And in truth, it is hard for outsiders to comprehend the context of Times-Picayune political reporter James Varney’s recent explanation of the race for LA5CD:

Is McAllister this bad? Does he actually have a chance of being re-elected?

Well, as for the first question, maybe not. He’s a veteran, for one thing. And he earned all that money through savvy personal business moves, for another. In addition, as his campaign stresses, he holds a bunch of excellent positions: he’s against amnesty; he thinks Obamacare is terrible.

So, taken all in all, McAllister is the sort of guy who could have kept his seat in Congress and a Robertson family duck blind forever if he could have simply resisted his married staffer.

Whether he has a chance or not is hard to determine. The Robertson clan, maintaining the Old Testament stance that jibes with their unshaven look, is backing and bankrolling a relative, Zach Dasher. Dasher, a political rookie, is also supported by outside groups like the Club for Growth.

It’s a crowded Republican field, too. The third candidate most people familiar with the field identify as a guy with a shot at the runoff is Ralph Abraham. Abraham holds both medical and veterinary degrees so he’s overqualified for the job. There isn’t a whole lot of daylight between the three men on the issues.

There’s also a Democrat in the race and, somewhat surprisingly, he’s reportedly got a shot at a spot in the runoff. There appears to be little reliable, objective polling data on the race. More than a month ago The News-Star in Monroe had McAllister leading the race with 27 percent followed by the Democrat, former Monroe Mayor Jamie Mayo.

At some point, it seems as if we are reading a satire on Poe’s Law, which essentially asserts that at some point it becomes impossible to discern between satire or even parody to the one, and reality to the other. And when this sort of question was largely restricted to internet arguments about anything under the sun, it was whatever it was. As a particular notion was explained to me in 1995, “Remember, this is the internet. Any moron with a connection can have a soapbox.” To what degree the surfactant has permeated the social discourse is a complex question, of course, but there does come a point when it seems almost impossible to dismiss the simple fact of certain results. Dan Patrick and Rick Perry in Texas? Vance McAllister in Louisiana? “Fangate”, for heaven’s sake? Really, it sounds like a cruel joke, “America’s Wang”, except that, well, it’s Florida, so one nods and mutters, “Sounds about right.”

In the end, it’s not that we hate these people in these states, because we don’t. And we might hope that despite the general contempt they show the rest of American society they don’t actually hate us. But, damn it, what kind of friends, family, or neighbors would we be if we stood by, watching them denigrate and even hurt themselves, and simply say nothing?

Sometimes people embarrass themselves. And, yes, sometimes it’s really, really funny. But the point is to be able to look back on this, someday, and laugh. These aren’t storts of things we should be laughing at, though. The implications are serious. And when the history is written, and the damage is tallied, the indictments will be hideous. At this point, simply admitting there is a problem might be a generational process for some of these states.

And we can complain about the media all we want, but in the end, the only way to change it is to stop paying attention to what the stenographers journalists say. And in truth, not everybody is suited to read the news backwards, to start from the editorials and work back to the sources. Sometimes this proves fruitful, such as when one hears conservative commentators ranting about liberal judicial activism on the Supreme Court, and then finding the case they are talking about, and it turns out all the Court actually did was refuse to overturn the opinion of one of the most conservative state supreme courts in the nation.α To the one, however, it is a laborious process, and sometimes source documents can be hard to find. To the other, there are some people who simply do not seem to understand how government works. And those would be the sort who would complain about the Supreme Court imposing its will on the states, but then be unable to figure out that had Missouri not pushed its losing cause in front of the Supreme Court, it would have stayed in the states. In this case, though, Missouri really, wanted to execute someone, demanded the Supreme Court’s attention, got it, and then failed to make the case. And if you put the question to certain people—How did the Supreme Court impose its will by leaving a state supreme court decision to stand?—it seems somehow incompatible with whatever is going on in their minds to understand that had the U.S. Supreme Court refused to hear the case, the outcome would have been the same. Strangely, the dissonance of the complaint against liberal judicial activism creates an argument whereby the U.S. Supreme Court rejecting and overturning a state supreme court is the only outcome that would not constitute an imposition of will.

No, really, think about it. The three potential outcomes of Roper: (1) SCOTUS refuses to hear appeal, state supreme court decision stands; (2) SCOTUS hears appeal, upholds state supreme court decision; (3) SCOTUS hears appeal, overturns state supreme court decision. By the complaint of liberal judicial activism against the second possibility above—the one that came about—the first is similarly indicted for arriving at the same result; the third, technically, remains a mystery, but in this context of imposing against the states, the outcome that sees SCOTUS reject the state supreme court becomes the only one that does not impose the federal judiciary’s will on the states. The difference is in what part of a state one is looking at. It was the Missouri judiciary that imposed its judgment against the will of the state’s executive branch. And since the U.S. Supreme Court did not impose its will against the state judiciary, it imposed its will against the state executive branch. If it seems like a complicated accommodation for the executive branch of Missouri having asked the Supreme Court of the United States to impose its will? Well, right. That’s the problem with the rhetoric we hear from cable news commentary. And, really, considering what we know or believe about the “average voter”, who the hell has time to figure all that out? About everything?

And while all of this might seem a long and winding road from seeking divine inspiration in Duck Dynasty, we might hope to illustrate a larger issue. American society is lowering the proverbial bar for this crowd. And everybody selling something has a reason to play along. Simplistic sensationalism draws a news audience, which attends to the money biasβ. Simplified issue dynamics make for an appearance of greater efficiency and potency for campaign operations. And the candidates themselves have fewer details and quandaries to manage. In truth, the only losers in such a marketplace are the consumers, i.e., voters.

Stupidity is both simple and spectacular.

So, yes. We look to the low end of the data set, to what is dragging down the averages, and this is what we see? Yeah, the question persists: Aren’t they even a little bit embarrassed by all this?

It would be reassuring to believe they are.

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α That decision would be Roper v. Simmons (2005), in which the Supreme Court declined to overturn the Supreme Court of Missouri. In this case, reading backwards from the editorial complaint about liberal judicial activism, we find the underlying accusation to be that the Supreme Court of Missouri is apparently too liberal and activist. And, frankly, if the Supreme Court of Missouri is too liberal and activist, one wonders what the threshold actually is.

β You know that phantom liberal media conspiracy we hear about from time to time? It has always been about money, and part of the appearance of disparity in coverage is that while both sides indeed have their clowns, not all clowns are equal. What is the other side’s version of a Ted Haggard or George Rekers? Or Sarah Palin? Or Bryan Fischer? Or Ted Cruz? Really, if one asked about the other side’s John Boehner, it would be historically inaccurate to point to Nancy Pelosi. And there are reasons for this, and no, not all of them are moral or ethical indictments of conservative politics; much of it is just the fact of accelerating societal transformation and the resulting destabilization of prevailing cultural standards. That is to say, while conservatism itself is not inherently evil, there are reasons why it has come to this. That, in turn, is a larger discussion of its own.

Murphy, Tim. “Man Who Believes God Speaks to Us Through ‘Duck Dynasty’ Is About to Be Texas’ Second-in-Command”. Mother Jones. 21 October 2014.

Bowman, Bridget. “Poll Shows McAllister Race Is Wide Open”. Roll Call. 7 October 2014.

Everett, Burgess. “The passion of the ‘kissing congressman'”. Politico. 20 October 2014.

Varney, James. “Is Rep. Vance McAllister, R-La., a big, fat slob or just a cheater?” The Times-Picayune. 21 October 2014.

Where the Tide Takes Us

The hammer drops

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

Supreme Court of the United States

This is not an unexpected outcome. Indeed, the blunt, unsigned order refusing Idaho’s request to stay the Ninth Circuit decision striking the state’s same-sex marriage ban is pretty much exactly expected. The only strange thing about it, really, is that the order exists at all.

The point arose last week when the Court refused to hear arguments from several states after Appeals courts struck their marriage bans. As Rachel Maddow explained to viewers:

So, there are nine Supreme Court justices. Do the math. If you want to win a case at the Supreme Court, you need five votes. You need five justices on your side. You need five votes to win a case.

But it only takes four votes for the Supreme Court to decide to take a case in the first place. So, we know there are four anti-gay marriage justices on the Supreme Court—Scalia, Roberts, Alito and Thomas. If they had wanted to hear one of these cases today, if they had wanted the chance to overturn one of those pro-gay marriage cases from the lower courts, those four justices had enough votes to take the case to do it.

I mean, the anti-gay marriage side could have taken one of those cases if they want to. So, why didn’t they?

Latta is an Article IV case. The thing is that no excuse a judge might invent to try to get around Amendment XIV, the Equal Protection Clause, marriage equality runs up against the Full Faith and Credit Clause of Article IV of the Constitution.

Given that the Supreme Court just said no to appeals in Article IV cases, one might wonder why Justice Kennedy thought to issue a stay and ask his colleagues to undertake another Article IV case.

Lyle Denniston brings us the answer:

Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower-court ruling that had nullified the ban on same-sex marriage there. The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order. Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it. Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

Certainly, it was a weak reason, but, you know, it is no big deal, right? Just making people wait for their civil rights in order to be nice to Idaho while they attempt to make an impossible argument.

Nonetheless, Idaho is go. And, you know, it was only a day. What’s another day after all these years?

Oh. Right. Obergefell. Which reminds, there is no news from the Sixth.

But there is news from North Carolina, where a District Court in Charlotte struck the Tar Heel State’s marriage ban according to Bostic v. Schaefer, a Fourth Circuit case the Supreme Court refused.

Additionally, Denniston explains the Ninth Circuit Memorandum issued Saturday, bringing a formal end to the moot Jackson v. Abercrombie in Hawai’i. It’s a happy ending.

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Supreme Court of the United States. “Order in Pending Case”. Otter v. Latta. 10 October 2014.

Maddow, Rachel. “‘Edie and Thea’ lead way to marriage equality, argle-bargle notwithstanding”. The Rachel Maddow Show. msnbc. 6 October 2014.

Denniston, Lyle. “No delay on Idaho same-sex marriages”. SCOTUSblog. 10 October 2014.

Cogburn, Max O. “Memorandum of Decision and Order”. General Synod of the United Church of Christ v. Resinger. United States District Court Western District of North Carolina Charlotte Division. 10 October 2014.

United States District Court for the District of Hawaii. “Memorandum”. Jackson v. Abercrombie and Bradley v. Abercrombie. 10 October 2014.

Follow-up … Clean-up … Something-up

The Rachel Maddow Show, 6 October 2014

Rachel Maddow’s nearly giddy segment on msnbc last night noted that when the full effect of yesterday’s Supreme Court rejection of appeals against marriage equality reaches the states, the roster will equal thirty states. And she looked forward to decisions expected from the Sixth and Ninth.

Today, the hammer dropped in the Ninth; Dale Carpenter quips:

I haven’t read the Ninth Circuit opinion yet. I have to teach now, so it would be nice if the courts would stop issuing gay-marriage decisions for an hour or so.

The estimable Lyle Denniston of SCOTUSblog explains what happened in the Ninth:

The Ninth Circuit’s ruling was made up of three parts.

First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples. Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s Due Process Clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berzon, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender.

The third member, Circuit Judge Ronald M. Gould, joined only the main opinion on the equal protection principle.

This ruling was perhaps the least surprising among four federal courts of appeals decisions striking down state prohibitions on same-sex couples marrying, and already-married couples gaining official state recognition of those unions, performed elsewhere.

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