warren · j. · dew

Sonia Sotomayor, based on reading a few of her opinions and summaries of dozens more, appears to apply the law as strictly and logically as possible. This is of course exactly what the Republicans always claim to want: supreme court justices who will strictly apply the law. It is no surprise that the Republicans have already decided not to attempt a filibuster.

Unfortunately, like all other recent nominees, she seems willing to be a lot more cavalier about the constitution. While she's ardently championed the first amendment in some cases, she's quite willing to dismiss the second amendment as not being "fundamental", even in the face of a recent clear supreme court ruling to the contrary. I guess she's never lived in a country that became a dictatorship.

I wish that one of these years, we'd get a nominee that was willing to strictly interpret the constitution, as well as the law.

Ever posted something to the web in haste, then found that what you posted was the opposite of what you meant?

Well, you're not alone. In the PDF version of the U.S. Supreme Court ruling on Rivera v Illinois, the syllabus (summary) says:

"The Illinois Supreme Court ... held that the denial of Rivera's peremptory challenge was not a structural error requiring automatic reversal. Nor, the court found, was the error harmless beyond a reasonable doubt."

Huh? If the error was not harmless, shouldn't Rivera get a new trial or something? But the opinion says:

"The Supreme Court of Illinois ... further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction."

Okay, that makes more sense. At least the actual justices are careful about what they are writing. Let's just hope lawyers and the lower courts are as careful when they read the decision.

to the United States constitution states, in full, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The operative clause - "the right of the people to keep and bear arms shall not be infringed" - seems fairly clear. But what's the first half of the amendment doing there? What does it mean that a militia is necessary to the security of a free state? And why don't unfree states need militias, too?

The answer, of course, is that militias - or more bluntly, having arms in the hands of the people - is one of the things that keeps a state free. The founders who wrote that amendment had just finished winning a revolution - one that wouldn't have succeeded if the government had a monopoly on weaponry. And even when the peoples' weapons aren't actively used, their mere existence might deter repression that the government might otherwise be tempted to engage in.

That's why it's amusing to read the oral arguments in the first Second Amendment case to reach the Supreme Court in 70 years. Most of the justices are aware of this issue, and perhaps even agree that personal weapons are an important check on the government - but none of them want to say something that could be misconstrued as "it's okay to shoot at us".

Last week, the Supreme Court ruled on the constitutionality of certain public school districts' use of race to assign students to schools. Roberts, Scalia, Thomas, and Alito consider racial discrimination by school districts unconstitutional except to remedy previous racial discrimination by the school district. Breyer, Stevens, Souter, and Ginsburg consider racial discrimination acceptable when the objective is to achieve schools that are more racially balanced rather than less so. Kennedy thought that such discrimination might be acceptable in some unspecified circumstances, but that it wasn't constitutional in these particular cases.

Perhaps the most interesting opinion, though, is the concurring opinion of the only nonwhite member of the court, Thomas. He rebuts many of the dissent's arguments, but he also touches on a subject closely related to discrimination, not often addressed: prejudice.

Ultimately, the reason for rampant racial discrimination is racial prejudice. The reason most blacks were kept out of important positions in the U.S. through the first half of the last century was because most whites simply didn't believe that blacks were smart enough to handle those positions. Discrimination is the effect, but prejudice is the cause.

That prejudice still exists. As Thomas points out, many of the arguments for forced integration implicitly assume white racial superiority. They assume that black students can't do as well in predominantly black schools as they can in predominantly white ones. They assume that University standards must be lowered for blacks because blacks won't be able to meet the same standards that whites do. They assume, basically, that blacks just can't be as smart as whites. And when these attitudes are translated into policies, they perpetuate the prejudice: they tell white students, 'you have to give blacks a break because they aren't as smart as you', and they tell black students, 'you can't be the best anyway, so you needn't even try'.

The state can't tell us what to think, but it's still high time to rethink those prejudiced arguments. The first black Supreme Court justice was appointed decades ago, and we still have one today. The last two Secretaries of State, have been black. It's time to admit that blacks and other races can be just as intelligent and competent as whites, and it's time that our actions reflect that.

... of the Constitution of the United States consists of only 45 words. The part on freedom of speech is even simpler, a mere ten words: "Congress shall make no law ... abridging the freedom of speech." What could be clearer?

The Supreme Court ruled in two cases involving these ten simple words on Monday. One might hope, given the Supreme Court's position as the guardian of the Constitution, that at least some of the justices would come down solidly on the side of free speech both times. After all, freedom is what our society is all about, isn't it?

Any such hopes would be dashed. The court split 5-4 along the same lines both times - but in one case, it was the five that preferred to restrict speech, and in the other, it was the four. The opinions were full of phrases like "potentially disruptive", "unique setting", "express advocacy", and "political pragmatism", all purporting to justify exceptions - abridgements, if you will - to the freedom of speech. Each of the nine opinions is cogent and logical, but given how each justice seemed happy to restrict speech in some circumstances more than in others, it's hard to escape the impression that the justices were voting based on whether they agreed with the speech in question, rather than on whether the Constitution should protect it.

There is a saying, attributed to Voltaire, that I heard a lot in high school - "I disapprove of what you say, but I will defend to the death your right to say it". At the time, it seemed nonsensical to me - if one disagreed with somebody, why wouldn't one just shut him up if the opportunity arose?

Now, I am not so sure. In this time of polarization, people seem far too willing to ignore alternate views rather than listen to them. It's bad enough that we're ignoring people when we might learn from them; how much worse would it be for us to prevent them from speaking at all?

----

The opinions:
Morse v Frederick ("Bong hits for Jesus")
FEC v WRTL ("oppose the filibuster")

The first amendment:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

... have never passed on a two lane road.

At least, that's the conclusion I have to reach after watching the following video presented as evidence in Scott v Harris. The video is taken from the dashboard cameras of two police cars, in pursuit of a speeder who tries to get away. The question is whether the driving is dangerous enough to justify the police bumping the suspect's car off the road, turning him into a quadriplegic. The court is shocked, even frightened, by what is going on:

"Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury."

So I watch the video, hoping to see an exciting Hollywood style car chase. I see the suspect signal, pull out into the left lane, pass, then pull back into the right lane. Boring. Oncoming cars ... will the suspect try to squeeze between them and the slower moving car ahead of him? No, nothing so interesting; he waits for them to go by before passing. Later on, he does pass in the presence of oncoming traffic - but only because there's a convenient third middle lane he can pass in. He pulls out into an abandoned shopping center ... a second cruiser goes past, turns around to head him off, almost rams hims, but he manages to avoid a head on collision with only a minor dent. Okay, that was a little exciting, but it wasn't the suspect doing something dangerous, it was the policeman driving the wrong way on a ramp.

I keep waiting for the interesting part. I haven't even seen any innocent bystanders, except for cars safely pulled over for the police sirens. Something here must be "frightening", right? But no. It keeps going like this - pretty much normal two lane rural driving - until the end. The only frightening part is when the police finally bump the guy off the road, and the second police car almost hits the first one.

It has to be admitted that some of the stuff the policemen do isn't so safe - unlike the suspect, they don't always pull back into the right lane after passing, and the guy who drove the wrong way on the ramp probably owes his life to the suspect's quick reactions - but I come away in rare agreement with Justice Stevens:

"A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle."

Keep in mind this case is at the summary judgement stage: the decision is not whether or not the plaintiff - here the suspect that was turned into a quadriplegic - wins, but just whether or not he gets to sue at all. If he does, he still has to get the jury to decide the facts in his favor - namely, that his actions in the chase didn't justify deadly force on the part of the police.

But no, despite contrary findings by both lower courts and by Stevens, the majority concludes that "no reasonable jury" could find that the suspect was driving safely enough not to merit deadly force. I guess none of the judges on either of the lower courts nor Stevens are reasonable. Okay, I normally agree in the case of Stevens, but all of them? I think it's more likely that, living in the less populated south rather than DC, they just happened to know how to drive on two lane roads.

My own conclusion is that this videotape just goes to prove yet again that the folks who wrote the Constitution were pretty sharp in requiring that juries, rather than judges, decide the facts.

On the plus side, recent opinions have been better written than the ones I complained about a while back. Well, the ones which rely on logic rather than videos have, at least.

The opinion:

http://www.law.cornell.edu/supct/html/05-1631.ZS.html

The lower court's summary of the facts, which seem to me to describe the videotape perfectly:

"[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections."

In his confirmation hearings, Chief Justice John Roberts characterized the Roe vs. Wade decision on abortion rights as "the law of the land". This so assuaged the many proabortion senators, both Republican and Democrat, that he was confirmed by a wide margin. There were warning signs that he might not hold subsequent decisions - such as Casey, which clarified points regarding previability and postviability distinctions and the requirement to safeguard the health of the mother - in such high regard, but these warning signs were ignored.

Last week, we saw the result of this process: the Supreme Court essentially gutted the Casey precedent, citing from it only a few words that were unrelated to its holdings in that case, and ignoring the holdings themselves. So much for respect for precedent.

The law at issue was the "partial birth abortion act of 2003", which bans a particular form of mid to late term abortion, intact dilation and extraction. ("Intact" refers to removal of the fetus in one piece, as opposed to dismembering it within the uterus and removing the pieces separately.) The law was widely regarded as a congressional attempt to overturn Roe, and included aspects - such as the lack of an exception for endangerment of the mother's health - that directly challenged Supreme Court precedent.

Nominally, the court only rejected a facial challenge to the law - a challenge that it is so clearly unconstitutional that it can't be enforced. The majority opinion briefly claims to leave open the avenue of a future challenge in relation to a specific case. The bulk of the opinion, however, makes it clear that such a challenge would likely fail. By accepting Congress' clearly false blanket statement that intact dilation & extraction is "always" less safe than partial dilation & extraction, the majority opinion makes it clear that they are reasoning from effect to cause - they have a result that they want, and they are willing to twist the reasoning to support that result. Would they reverse that twisted reasoning just because a clearly forseeable case came up? It seems far more likely they would simply reject the relevant precedents outright - or simply do any further twisting that was necessary.

The minority isn't clean on this one, though. They spend much too much time railing at wording that isn't even prominent in the majority opinion, and not enough on logic and the facts, where their case is much stronger. Indeed, the opinion is reminiscent of Rehnquist's abortion dissents on the other side - and those opinions were among the few where Rehnquist departed from a logical approach.

Perhaps the most important opinion is the concurrence of Thomas and Scalia. Well, it would be important if anyone paid attention to it. It notes that no objection was made to the law on the basis of the Commerce Clause, and strongly hints that these two justices would be willing to reject it on the basis that it exceeds Congress' Commerce Clause powers. Unfortunately, this opinion will likely be ignored; conservative politicians will ignore it because they don't want another challenge to the law, and liberal politicians will ignore it because they want to maintain the present interpretation of the Commerce Clause which allows virtually unlimited Federal power.

Okay, I have an admission to make. I read Supreme Court opinions for fun.

At least, I did until recently. You see, until recently, Supreme Court opinions tended to be some of the finest examples of pure reasoning available. The best ones - and there were always one or two per case, usually in the majority - would lay out the facts, examine law and precedent, and by pure force of logic reach an inevitable conclusion. You might not like the conclusion - sometimes the writer of the opinion didn't - but if you wanted it changed, it was very clear that it was the law that had to change, or perhaps the Constitution, because there was no arguing with how the decision followed from the law.

What was the most fun was when you had some of best writers on opposite sides of a case - as when O'Conner dissented from the sentencing guidelines case, or when Rehnquist and Scalia were on opposite sides in Hamdan. With expert logicians on both sides and everyone taking extra care to make their writing as persuasive as possible, the smallest logical fallacies were seen in high relief, and it became obvious when a justice was allowing his preconceptions color his opinions.

With the loss of Rehnquist and O'Conner, though, the quality of the opinions has been sliding. Scalia, formerly one of the more meticulous writers, has been getting sloppy. Most of the other judges no longer bother to include a summary of the facts of the case, making the logic more difficult to follow. Worse, when you do get the facts, say from a well written lower court opinion, it's clear that the logic is sloppier as well, perhaps because the justices are relying on memory rather than actually going through and laying out the facts in writing.

The bad thing is, this actually has practical consequences. When the opinions were clear and understandable, the lower courts had a better basis for making their own decisions. Even if a case came up that wasn't exactly the same as one that had been argued in the Supreme Court, it was often clear how the Supreme Court's logic would apply to that different case. This helped keep the rules uniform between the various court circuits and districts, and reduced the need for appeals.

With majority opinions getting sloppier, even turgid at times, the lower courts will have less guidance. There will be more temptation for them to insert their own political views into their decisions. Indeed, they may find themselves in the position of having to make law rather than interpreting it - not because they want to, but because there just isn't enough guidance to do a good job of interpretation.