Supreme Court of the United States

Something About Today: Quiet Hash

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Sometimes the answers really are blowing in the wind, even if the answer is nothing more than the sounds of silence. Of course, in modern America genuine silence is hard to come by. Kate Nocera explains for Buzzfeed:

On Monday afternoon, Sen. Mike Lee was one of the few GOP members to issue a statement. His home state of Utah was one of the states where a marriage ban was overturned by an appeals court and the state is now moving forward with allowing same-sex couples to marry. Lee called the Supreme Court decision to not review the appeals “disappointing.”

Texas Sen. Ted Cruz likewise criticized the decision on the part of the court and announced that he would introduce a constitutional amendment that would allow the states to define marriage.

“I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws,” Cruz said.

Supreme Court decisions are often met with swift reaction from members on Capitol Hill, filling reporter’s inboxes with statements of disappointment or support for whatever the justices have ruled. All the more when the decision impacts a hot-button social issue.

The muted response from congressional Republicans is telling. As public opinion on legalizing marriage for same-sex couples has dramatically shifted in its favor, the GOP’s opposition has quieted. Republicans have often argued that the decision on marriage should be left up to the states.

And let us bear in mind that Sen. Lee (R-UT) is from one of the rejected states; it’s hard for the Utah delegation to say absolutely nothing. And the Republican junior from Texas? Sen. Cruz, the strict constitutional constructionalist, is welcome to try. You know, since strict construction fails to satisfy his desires.

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How It Goes: Recognition Edition

Last month, Emma Margolin undertook an effort to list the reasons why the Supreme Court was expected to take up marriage equality in the new term that began today. And, of course, something about today, because the msnbc reporter brings the news that we should add five states to the officially official marriage equality roster:

Marriage equality is coming to five more states – with six more on the way.

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership. (SCOTUSblog via Twitter)The Supreme Court on Monday rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin – all of which saw their bans fall in both federal district and appeals courts. The move immediately legalizes marriage equality in those five states, and will soon topple bans in six other states that make up the 4th, 7th, and 10th circuits. Those states include Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, bringing the total number of states where gay and lesbian couples can wed from 19 plus the District of Columbia to 30 – more than half the nation.

With a ruling expected sometime this fall, all eyes turn to the Sixth Circuit, where it is hard to imagine the court rejecting Full Faith and Credit.

SCOTUSblog checked in with the summary reflecting the sentiments coloring the headlines:

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership.

And so it goes. For now.

____________________

Margolin, Emma. “Five signs the Supreme Court will take up gay marriage”. msnbc. 29 September 2014.

—————. “Marriage equality comes to five more states”. msnbc. 6 October 2014.

SCOTUSblog. “Practically, today SCOTUS recognized a right to SSM”. Twitter. 6 October 2014.

The Picture: Marriage Equality Mix

Contemplation of Justice

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

David A. Strauss

There is a lot going on. Or maybe not. Where once the idea was that courts should stay out of things and let “democracy” pick and choose who gets what human and constitutional rights in the United States, many of those advocates are looking to the Supreme Court of the United States to cram the gays back into the closet. With Justice Ginsburg suggesting last month that the Supreme Court might get involved if the lower courts make a sufficient mess of things, and the Fifteenth Judicial District Court of Louisiana holding the line in terms of state courts, one might wonder about the fervor Robert Barnes noted last week for the Washington Post:

The 10th edition of the Supreme Court under Chief Justice John G. Roberts Jr. begins work Monday with the prospect of a monumental ruling for gay rights that could serve as a surprising legacy of an otherwise increasingly conservative court.

Whether the justices will decide that the Constitution protects the right of same-sex couples to marry dominates expectations of the coming term; such a ruling would impart landmark status on a docket that so far lacks a blockbuster case.

And some say it would be a defining moment for a closely divided court that bears the chief justice’s name but is most heavily influenced by the justice in the middle: Anthony M. Kennedy, who has written the court’s most important decisions affording protection to gay Americans.

“If the court establishes a right to same-sex marriage . . . [it] will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” said David A. Strauss, a constitutional-law scholar at the University of Chicago.

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

Something about blockbusters, to be certain; one would hope we have enough worked out about our society that we should not necessarily be rushing for a marquée show every year. That is to say, there is plenty wrong with society, but do we really have so many fundamental civil rights questions coming to the fore? And if so, well, what the hell is wrong with Americans that we have not yet figured out how some of these very basic concepts work?

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A Toxic Troika? A Note on ‘Optics’ and ‘Metrics’

Jeb Bush, left, speaking Wednesday in Greensboro, N.C., in support of Thom Tillis, a Republican candidate for the Senate. Credit Chuck Burton/Associated Press

When studying the Castor and Pollux of politics and punditry it might help to bear in mind that many of the buzzwords are intended to sound quasi-scientific in order to hide the fact that the terms describe artistic results. A metric, for instance, is simply an abstract measurement in unknown units compared to a presupposed psychomoral idyll that may or may not be available for examination and should never be trusted in the first place, anyway. The metrics of a situation are whatever the pundit wishes to describe in order to make his or her own narrative sound that much more compelling.

But then there are the optics of a situation, and this is a fairly easy explanation. Political optics are, quite literally, nothing more than appearances within a frame described by a pundit’s metrics.

In one of his first public appearances of the 2014 campaign, former Gov. Jeb Bush of Florida had a vivid preview Wednesday of the challenges he would face with his party’s conservative base should he seek the Republican nomination for president in 2016.

Standing alongside Thom Tillis, the North Carolina House speaker and Republican Senate candidate, Mr. Bush outlined his views on two of the issues he cares most passionately about: immigration policy and education standards. But as Mr. Bush made the case for an immigration overhaul and the Common Core standards, Mr. Tillis gently put distance between himself and his guest of honor, who had flown here from Florida on a dreary day to offer his endorsement in a race that could decide which party controls the Senate.

(Martin)

Ah, optics!

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One of the Most Fascinating Political Questions of the Year

Ruth Bader Ginsburg

“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”

Steve Benen

And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?

Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.

Fear the FrillIf her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.

In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.

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A Note on Narrative and Context: Life and Death Edition

 Henry Lee McCollum wiped tears at a hearing Tuesday in Lumberton, N.C., where a judge declared him and his half brother Leon Brown innocent and ordered them both released from prison. Credit Chuck Liddy/The News & Observer

“I feel very, very sorry for them and I’m glad to know they’re out. At least the process worked, it just took too long.”

―State Rep. Thom Tillis (R-NC98)

Context … is … everything.

At first blush, North Carolina State Speaker of the House Thom Tillis seems to have the right answer, politically speaking, to the inherent question of just what happened the now-infamous case of Henry Lee McCollum and Leon Brown. Mr. McCollum spent thirty years on death row, and his half-brother Leon Brown the same period under a life sentence; as the fact of their innocence echoes from sea to shining sea, the tragic tale is also boosted into the realm of the political circus, courtesy the one and only Justice Scalia:

The exoneration ends decades of legal and political battles over a case that became notorious in North Carolina and received nationwide discussion, vividly reflecting the country’s fractured views of the death penalty.

The two young defendants were prosecuted by Joe Freeman Britt, the 6-foot-6, Bible-quoting district attorney who was later profiled by “60 Minutes” as the country’s “deadliest D.A.” because he sought the death penalty so often.

For death penalty supporters, the horrifying facts of the girl’s rape and murder only emphasized the justice of applying the ultimate penalty. As recently as 2010, the North Carolina Republican Party put Mr. McCollum’s booking photograph on campaign fliers that accused a Democratic candidate of being soft on crime, according to The News & Observer of Raleigh, N.C.

In 1994, when the United States Supreme Court turned down a request to review the case, Justice Antonin Scalia described Mr. McCollum’s crime as so heinous that it would be hard to argue against lethal injection. But Justice Harry A. Blackmun, in a dissent, noted that Mr. McCollum had the mental age of a 9-year-old and that “this factor alone persuades me that the death penalty in this case is unconstitutional.”

It was a spectacular line Scalia uttered; far beneath the dignity of any court in this fair land. Jonathan M. Katz and Erik Eckholm were kind enough to omit it from their New York Times article describing this week’s acquittal of McCollum and Brown, but still manage to make the point, anyway. This was just one of those cases, and in his own, inimitable way, Justice Scalia may well, by the fact of these acquittals, see what was merely crass and inflammatory rhetoric transformed into an icon of his shameful tenure on the Nation’s Highest Court.

But, yes, at first glance, it might seem Tillis has said exactly the right thing. The Devil, of course, is in the details:

Now middle aged, the two brothers have been in prison — one of them on death row — since they were teenagers, wrongfully accused of raping and murdering a child. When ThinkProgress asked Tillis if anything needs to change in light of this case, he said that because they were eventually exonerated, “It’s an example of how we have protections in our judicial system in North Carolina.”

“I feel very, very sorry for them and I’m glad to know they’re out,” he said. “At least the process worked, it just took too long.”

(Ollstein)

It’s called WYWA. The point is to answer the question you Wish You Were Asked. This is, of course, standard fare, and as much as it might annoy us, it is also true that voters respond affirmatively; if you cannot answer WYWA, you do not stand a chance.

But in this case, Tillis’ answer would seem to leave a certain issue unresolved. If the question is if anything needs to be changed, and the answer is that at least the system worked and an example of how we have protections, then what about how it just took too long?

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