The Fifth Circuit has denied an en banc rehearing of its February decision striking down the Texas Obscene Device Law, which outlawed dildoes and vibrators in the Lone Star State. The original decision relied on the usual suspects--substantive due process under the 14th Amendment, private intimate conduct, Lawrence v. Texas--to hold that the law heavily burdened Texas citizens who wished to get freaky with the help of a $220 Chrome Juicer.
Eugene Volokh speculates that the Supreme Court will hear Texas's appeal, and guesses it will vote 6-3 in favor of the law's constitutionality. The idea is that some of the moderate justices, specifically Kennedy and Breyer, will conclude that the traditional state's interest in regulating morality (which, according to Texas, includes an interest in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation”) should hold unless it implicates a right "important to most people's lives." Chrome Juicers and Fists of Adonis apparently don't make the cut.
Volokh's co-blogger Dale Carpenter lays out a more comprehensive set of possibilities, and tentatively suggests that the law could be struck down by a Kennedy-led 5-4 majority on either a 'fundamental right' or rational-basis analysis. I agree. Justice Kennedy will be certain to angle for a crucial role in the whatever decision the Court hands down, and I find Volokh's suggestion that Justice Breyer might join with a Scalia- or Roberts-led majority unlikely. And with Kennedy as the swing vote, I just can't see him joining an opinion that would undermine what I'm sure he sees as his legacy: the decision in Lawrence that finally got rid of the notion that a state could ban homosexual conduct between consenting adults. True, that opinion neatly dodged the crucial question of whether 'traditional' (read = sex-regulating) morality could ever suffice as a 'rational basis' for government interference with private sexual behavior. It is possible that once having cemented his spot as the key vote, Kennedy could parse some meaningless distinctions, do a lot of on-the-one-hand equivocating, and muddle his way toward allowing the law to stand.
But after all the grief he's taken from Scalia and the SocialCons for Lawrence, I just don't see him letting Texas come into his Court (and these days, he sure thinks it's his Court) and tell him that, Lawrence not withstanding, they can still tell people how and how not to fuck.
For readers who found the Chrome Juicer too tame, The October Protocol recommends The Marvelous Anchor.
Saturday, August 2, 2008
Can't wait to hear Souter say "G-spot"
Monday, June 30, 2008
The Court Supreme and the Election
In the past two weeks, the Supreme Court handed down four decisions that could affect the dynamic and rhetoric of the Obama-McCain matchup. From the landmark Second Amendment ruling in D.C. v. Heller to the less-noticed tweaking of campaign finance law in Davis v. F.E.C., all four rulings broke from the Roberts Court's recent trend and reverted back to the five-to-four, liberal-v.-conservative bloc rulings of the past. Anthony Kennedy cemented his position as the new O'Connor-ite swing vote, Nino Scalia finally got to write a binding manifesto for the conservative movement, and Samuel Alito struck a blow for millionaires everywhere.
All four decisions broke 5-4, with the liberals (Stevens, Souter, Ginsburg, Breyer) opposing the conservatives (Scalia, Thomas, Roberts, Alito) and with Kennedy swinging liberal twice and conservative twice. In today's political world, of course, the candidates will probably be helped most by the decisions they opposed: nothing strengthens a call for new blood on the Court like giving rights to terrorists or declaring a sacred right to own a gun.
Protocol analysis of the decisions and their possible effects on the election below the fold.
In declining order of importance:
1. D.C. v. Heller
The decision: In a 5-4 opinion by Scalia, the Court for the first time interpreted the Second Amendment to guarantee an individual right to bear arms unlimited by the requirement of a state militia. The federal government cannot ban the ownership of any gun traditionally used for self-defense, and faces an as-yet-unspecified level of scrutiny on any restrictions it seeks to impose. Scalia carefully hedges that certain types of "unusual and dangerous" weapons may be banned, and that restrictions ownership by felons, minors, and the mentally handicapped would be allowed. For all its radical historical importance, the ruling itself is quite narrow: it explicitly leaves unaddressed the question of whether the Second Amendment is incorporated to apply against the states as well as the federal government.
The political fallout: McCain on offense, Obama on effective defense. Gun control has long been a hot button issue for the right, less so for the left. Obama's official position on gun control (stashed away in "Sportsmen" under "Additional Issues" on his website) has been consistent: he supports the individual right interpretation but leaves room for restrictions. He did say that he believed the D.C. handgun law was constitutional. McCain, despite his C+ from the NRA and staggering F- from Gun Owners of America, signed the amicus brief on Heller's behalf and has attacked Obama for flip-flopping on the issue.
Protocol Advantage?: Obama. His position was carefully tailored to blunt the impact of the decision: he knows it's political poison in these United States to oppose a Second Amendment right to bear arms. The decision will likely cement his support among those who fear a full-on right-wing Court under McCain, but his vaguely moderate gun control position won't turn off the great middle.
2. Boumediene v. Bush
The decision: In a 5-4 opinion by Kennedy, the Court held that all detainees held in Guantanamo Bay have the habeas corpus right to be informed of the charges against them and freed if evidence to support their detention is lacking. The Court, and not the Executive branch, is the final arbiter of "enemy combatant" determinations, Congressional legislation to the contrary notwithstanding. Protocol analysis here and here.
The political fallout: McCain responded cautiously at first, but then realized that Boumediene plays directly to his self-portrait as the only candidate serious about the War on "Terror" and called it "one of the worst decisions in the history of this country.” (Probably after an aide read it and found Scalia's gift: "[this decision] will almost certainly cause more Americans to be killed.") Obama's statement supporting the decision hit some strong notes--"this is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus"--which were then promptly undermined by some pure bullshit: "this Administration's position is not tough on terrorism." Really?
Protocol Advantage?: McCain. The hard right, already deeply suspicious of McCain's conservative bona fides, hates Kennedy and sees Boumediene as an unconscionable act of aid and comfort to the nation's enemies. In an election where McCain's success may depend on his ability to turn out the footsoldiers, his promise to appoint more Scalias and Alitos will only seem more vital.
3. Kennedy v. Louisiana
The decision: A 5-4 Court, again led by Kennedy (no relation, we hope), struck down a Lousiana statute allowing the death penalty for child rape. Interpreting the "cruel and unusual" language of the Eighth Amendment, the Court held that the ever-changing meaning of those words currently forbids the death penalty for any crime other than murder. Civilized people rejoiced; bloodthirsty revenge-mongers groused angrily.
The political fallout: Eh. Sad to say, the American public seems to have found its consensus on the death penalty--which Justice Kennedy, with his O'Connor-esque nose for public opinion, conveniently reflected in his decision. Obama made a lurch to the center by stating his public opposition to the holding, presciently warding off any gotcha debate questions along the lines of "so if your daughters were raped, you wouldn't call for the rapist's death, what kind of fuckin man ARE YOU?"
Protocol Advantage? Wash. The death penalty just isn't an issue either side gets too worked up about anymore. Obama's triangulation on the issue leaves him well-protected from those on the right who really really want to kill child rapists (and I mean, who kinda doesn't), and the left won't abandon him over it.
4. Davis v. Federal Election Commission
The decision: In yet another 5-4 opinion, this time by Alito, the Court struck down the Millionaire's Amendment of the McCain-Feingold campaign finance act. The provision allowed the opponent of a candidate who poured his own money into a race to receive extra donations to offset the millionaire's effect. Alito's opinion, mostly on First Amendment grounds, continued the Roberts Court's gutting of McCain's pet project by holding that the government cannot interfere with money-as-speech, even in the context of a public election.
The political fallout: Not a lot. The average voter doesn't get too worked up about complicated pieces of campaign finance reform legislation, and neither McCain nor Obama probably wants to play this up much. McCain's efforts to reform campaign finance outraged the right, who saw the law as an act of rank treason against Republican interests. If the Court had upheld the provision, he might have wanted to use it to play toward the middle's widespread disgust with corrupt politicians--but what's the point in highlighting a right-wing Court's full-on dissing of his law? And Obama won't want to remind voters that McCain made his bones in the public eye largely as a maverick outsider who vowed to clean up the system--and who passed the most comprehensive campaign finance bill since Watergate. Both candidates will probably let this one lie.
Protocol Advantage? Slight McCain--any play this decision will get among voters will only remind them of McCain's credentials as a reformer. The right will be pleased that the provision was struck down, and since they already hate him for the act in the first place, they're not gonna hate him more now.
Millionaires, child molesters, gun owners, and terrorists all have their appointed roles to fill under the October Protocol.
Wednesday, June 25, 2008
Boumediene Part Two: Who do ya trust?
The Supreme Court held that the writ of habeas corpus applies to all the Gitmo detainees, as they are being imprisoned in territory under sovereign American control. Justices Kennedy and Scalia quibble over the meaning of sovereignty—Cuba technically “owns” the place but the U.S. practically “is the unanswerable boss of it”—but the real issue is this: who do you trust? The executive says, “trust us, Lakhdar Boumediene and his pals are wild-eyed terrorists who want to kill Americans.” Congress says, “we trust the executive to make these determinations, mostly because we’re political cowards.” The Court says, “fuck y’all, we trust ourselves.”
Scalia’s dissent is mostly spittle and spite, but his strongest argument against the decision is his invocation of the political process. In Hamdan v. Rumsfeld (2004), both Breyer and Kennedy claimed that the habeas-less military trials erected by the Bush administration were unconstitutional because they lacked express Congressional approval. Boumediene challenged, and overturned, the law Congress then passed to authorize the tribunals. The Court is playing one-on-two here: overturning an interpretation of the Constitution and a system for trying alleged terrorists that was explicitly supported by the only two branches of government that represent the voice of the electorate. [Note: whether or not you agree with Boumediene is probably a function of how you view the word "alleged" in the previous sentence.]
But that’s the point. Every power system needs a failsafe, a loophole, an escape hatch—especially democracies. The politics of Boumediene will focus on the war on terror, the ruling’s implications for Osama bin Laden (if captured, would he have habeas?), and Scalia’s gift to the McCain campaign: “it will almost certainly cause more Americans to be killed.” McCain seems to be banking on the idea the footsoldiers of the right will be galvanized by the ‘activist’ Court into enflaming their tepid support for his candidacy. Sure, they might. But the great middle that McCain has set his sights on seems to support giving at least habeas rights to the Gitmo detainees, and won’t be drawn to his candidacy merely because the most-respected branch of government decided to extend the basic protection of American law to a bunch of prisoners in Cuba. Whoever they trust to decide what to do with the Gitmo crowd, it sure ain't the Bush Administration.
This divide between the center and the right, and McCain’s schizophrenic attempts to court both, probably explains his initial responses:
“It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.”
And the next day, after having apparently gotten the memo:
"The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country.”
You know who to trust.
Boumediene Part One: Who's the king around here?
Last week’s Supreme Court decision in Boumediene v. Bush has enflamed the passions of both the left and the right. “Oh noes! The out-of control Court has betrayed America in her war on the Islamofascists!” cry the wingers at RedState, shaking with rage and muttering about treason and impeachment. “An all-too slim defense of the Constitution from the fascism of President Bush!”crow the Left at Kos and MyDD. Under the Protocol, as usual, neither and both.
The Bush administration argues that its decisions about who is a terrorist must be trusted. The case revolves around the so-called Algerian Six: a guy in Bosnia with Bin Laden’s phone number and five of his acquaintances. Citizens of Bosnia, they were arrested by Bosnian police after American authorities detected increased chatter following Sept. 11, 2001. The Bosnian Supreme Court ordered him released for lack of evidence; instead, the Bosnian police handed Algerian Six over to the American military, who flew them to Gitmo. The Bush administration has declared them unlawful combatants. They have demanded that the Bush administration charge them with a crime or release them.
Justice Kennedy’s long opinion asks two questions: does the writ of habeas corpus extend to non-citizens held in Guantanamo Bay, Cuba, and if so, are the military tribunals an acceptable substitute? To find out, he narrates the evolution of the writ from a key expression of a king’s power against his rowdy nobles (“show me who you got locked up, damn it, who’s the fuckin king around here?”) to a key check on the sovereign’s power to imprison people without cause (“sorry Mr. Rumsfeld, we ain’t just gonna take your word for it”). This section is only interesting if you swoon at the mention of things like The Case of Three Spanish Sailors, (C.P. 1779). A thrill just ran up my leg.
The key question, according to Kennedy, is really this: is the U.S. “sovereign” over Gitmo? Technically, Cuba owns it, and the U.S. leases it under a 1903 agreement giving it “complete jurisdiction and control.” Traditionally, common-law habeas writs only run to the limits of the sovereign’s territory. Kennedy holds that the U.S. is the de facto sovereign, in the sense that it is answerable to no other power for its actions there. Accordingly, the writ reaches the detainees and since the military tribunals set up by the Executive (and approved by Congress) aren’t an adequate subsititute for habeas protection, Boumediene and his fellow prisoners have the right to demand habeas relief.
In contrast to Chief Justice Roberts’s calm, lawerly dissent arguing that any habeas rights the detainees might have had not been violated anyway, Justice Scalia’s opinion sputters with rage. He briefly and deftly dodges Kennedy’s argument about sovereignty—asserting that the U.S. may be sovereign over Gitmo but Gitmo is not sovereign U.S. territory—and uses that distinction to launch attacks on the motives of the majority and the consequences of the decision. Shorter version: you’re more concerned with judicial supremacy than with American lives, Tony, and this decision will take more of them.
So what now? Kennedy doesn’t really say; in fact, he punts the issue to the lower federal courts. The judicial branch has asserted its review over the Executive’s military tribunals, but Kennedy leaves it up to lower Courts to figure out the scope of the review. Last Friday, the D.C. Circuit exercised its new power and overturned a Gitmo detainee’s designation as an enemy combatant.
The October Protocol is the fuckin king around here.
Thursday, June 12, 2008
Shortlists getting shorter
Lots of talk about Louisiana governor Bobby Jindal as a possible VP pick for McCain. He’s young, well-spoken, deeply Catholic, and bears a certain big-eared resemblance to another prominent minority in the Presidential race. (Not that these would be reasons McCain is considering him, of course.) In addition to being a six-month governor, he also exorcises demons! (And you know you’re in trouble when the dudes at The Corner aren’t feelin’ it . . . although reliable hack Kathryn Jean Lopez mounts a half-hearted defense.)
And in other removing-themselves-from-a-possible-McCain-administration news, it looks like one judge on the Protocol shortlist probably won’t get picked by a Republican president. If hardcore originalist Douglas Ginsburg got borked for smoking weed, what ever will they do to Alex Kozinski for posting Internet porn? While conducting an obscenity trial, no less?
There may or may not be a hidden porn page on The October Protocol.
Thursday, May 29, 2008
A Love Supreme
It’s more than just Coltrane’s sickest album. It’s also what I feel for the highest court in the land.
And in light of that love, it’s never too early to start handicapping the candidates’ possible SCOTUS picks!
Supreme Court appointments worm their way into political discourse in strange ways. Generally speaking, voters don’t give a shit: no politician scores huge points by talking about the least accountable branch of government. But to movement soldiers on the Right and the Left, control over the Court is the great prize. In this bizarro campaign season, when both parties are facing the possibility of revolt, partisans of the candidates are using the Court to rally the troops. Unite around Obama or turn the Court over to Scalia and Thomas! Vote for McCain or permanently lose the chance to overturn Roe!
The current age of composition of the Court makes this election particularly crucial. The liberals are older, the conservatives younger: in January 2009, Stevens will be 88, Ginsburg 75, Breyer 70, and Souter 69. Kennedy and Scalia will both be 72, Thomas 60, Alito 58, and Roberts a frisky 53. The next president will likely be able to replace Stevens, Ginsburg, and Souter (who hates being on the Court)—Breyer, Scalia, and Kennedy love being justices, and Thomas will hold on grimly until his seat is plucked from his cold, dead hands. Three seats for the November victor is a legacy worth fighting for: FDR’s picks were radically changing American jurisprudence and society for thirty years after his death, and Reagan’s might end up doing the same.
Yesterday’s NYT spotlights the differences between McCain’s and Obama’s philosophies on SCOTUS appointees. Briefly: McCain has sold his soul to the right and pledges more of Roberts and Alito; Obama wants empathy.
Of course, these handy soundbites greatly simplify things. Let’s not forget that McCain, the champion of campaign finance reform, filed an amicus brief in FEC v. Wisconsin Right to Life to no avail, as the two justices he claims to want to emulate effectively gutted the Court’s previous upholding of McCain-Feingold. And Obama taught law for ten years at the University of Chicago, hardly a hotbed of empathy-based jurisprudence. Campaign rhetoric is campaign rhetoric: I expect that both candidates would hew closer to the ideological center in their SCOTUS picks.
With that in mind, and without further ado, The October Protocol shortlists.
OBAMA
Sonia Sotomayor: Second Circuit (Clinton); 54 years old; appointed to the Southern District of New York by GHW Bush; would be the first Hispanic justice since Cardozo; reliably liberal; widely considered a front-runner if the Democrat wins.
Diane Wood: Seventh Circuit (Clinton); 58 years old; certified MILF; mentioned as possible pick for Kerry; more moderate than other liberal judges; academic star and respected judge; from Obama’s home circuit.
Merrick Garland: D.C. Circuit (Clinton); 56 years old; oversaw the Oklahoma City and Unabomber investigations for the Clinton DOJ; considered relatively moderate.
Deval Patrick/Jennifer Granholm: Governors of Mass. (52) and Mich. (49), respectively. Obama has floated the idea of nominating a politician in the mold of Earl Warren, former (Republican!) governor of California. Patrick was head of the Civil Rights Division in the Clinton DOJ; Granholm was the Michigan attorney general. Both have the legal chops and the real-world experience to add a shot of pragmatism to a Court made up entirely of former circuit court judges; both are also partisan Democrats, and might only add to the politicization of the Court.
Harold Koh: Dean of Yale Law School; 54 years old; clerked for Blackmun; Ass’t Secretary of State for Democracy, Human Rights, and Labor under Clinton; respected author and essayist on human rights and international law; criticized as a partisan Democrat; intellectual heavyweight; would be first Asian-American on the Court.
Other options: Kim Wardlaw (9th Cir.); Leah Ward Sears (Georgia Supreme Court); Cass Sunstein (University of Chicago); Barrington D. Parker (2nd Cir.).
Michael McConnell: Tenth Circuit (GW Bush); 53 years old; prominent Constitutional scholar; widely cited as a likely pick to replace Rehnquist; proponent of originalism; supports a Constitutional amendment banning abortion—but then again, thinks it’s the only way to do so.
Alex Kozinski: Chief Judge, Ninth Circuit (Reagan); 58 years old; distinguished essayist and legal scholar; idiosyncratic judge with a strong libertarian bent; not an ‘originalist’ like Scalia or ‘batshit crazy’ like Thomas; author of the greatest judicial line ever: “The parties are advised to chill.”
Maureen Mahoney: Appellate lawyer, Latham & Wilkins; 54 years old; deputy Solicitor General under GHW Bush; distinguished advocate; argued for the University of Michigan in favor of its affirmative action program in Grutter v. Bollinger; highly competent attorney in the mode of John Roberts.
J. Michael Luttig: General counsel for Boeing; 54 years old; star of the conservative legal movement who resigned from the Fourth Circuit for a higher-paying job (who does that?); often compared to Scalia in philosophy and temperament; clashed with Bush administration over executive prerogatives in the Jose Padilla case.
Edward Prado: Fifth Circuit (GW Bush); 61 years old; former federal public defender; touted as a moderate option to replace O’Connor; subject of a “Draft Prado” movement for a Latino Supreme Court justice not named Alberto Gonzalez.
Other options: Janice Rogers Brown (D.C. Cir.); Priscilla Owen (5th Cir.); Emilio Garza (5th Cir.); Eugene Volokh (UCLA and The Volokh Conspiracy).
And the doozy:
Richard Posner: Seventh Circuit; 69 years old; widely considered the most brilliant judge in America; immensely prolific scholar and philosopher; self-declared Pragmatist in the mode of Oliver Wendell Holmes; noted proponent of the Law & Economics school; supports both the president’s power to order torture and the legalization of soft drugs; unquestioned intellect and lack of partisan identification make him a lock never to sit on the Supreme Court.