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“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” -- New York Times.

Oh, Nino, no.

"There's no precedent for this!" is a stupid argument, especially in this case. You're arguing that someone should be executed for your procedural convenience. (Roberts actually gave you a pro-snuffing precedent, but that opinion was fucking stupid.) We can walk back through a long line of things the Court "never held"- until it did. One of the things the Supreme Court is for is overturning precedents, and you know it, and you've done it. It's amazing how much precedents matter to you when you agree, and how much they don't when you don't.

Oh, well. Hypocrisy is the tribute vice pays to virtue, and maybe precedent should be revered. But I'm getting off the train when the argument is, "hey, wait, the fact that this guy is innocent makes bureaucracy uncomfortable."

Nino Scalia, ladies and gentlemen. What a maroon.
jmatonak: (Default)
I gotta stop paying attention to the Supreme Court.

It turns out you can't actually constitutionally strip-search a 13-year-old girl if you suspect she has prescription-strength ibuprofen (!) in her undies. So that's good. But, if you're the girl, you can't sue the bastards that did it, because the law is unclear on the issue.

jmatonak: (Default)
So the Department of Justice filed a brief that amounts to a defense of DOMA in federal court on Thursday. A married gay couple wants federal benefits; I assume it's because one of them is a federal employee. More here.

A letter I sent to the White House )

Looking at it now, I feel I was too reasonable. What I've seen of the brief is shameful, and the idea that the DoJ "must" enforce it is horseshit. I suspected it was, and now I have proof. This is just crap piled on crap. Epic fail is too mild.

The President does a lot of stuff I agree with, and I admire him. But not for this. This is bigotry and bullshit, and he should know better.
jmatonak: (Default)
The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. - Wall Street Journal

It's really poor form to root for someone to die. But I very much wish the Chief Justice were someone a hell of a lot better, and it's a lifetime appointment.


President Barack Obama today announced his nomination of James Madison to the Supreme Court. Madison, who has served as the fourth President of the United States and the recording officer of the 1787 Constitutional Convention, and played a key role in the drafting of the Bill of Rights, was attacked as "insufficiently qualified" for the position, having never served as a magistrate in any court. Critics say Madison, whose Bill of Rights is extensively concerned with the rights of accused and convicted criminals, is "dangerously out of touch" and "pro-crime, to a disturbing degree." Some are bothered by Madison's presumed stances on such issues as abortion and gay marriage, as these topics are not mentioned anywhere in Madison's extensive body of writings.

Read more... )
jmatonak: (Default)
The Rules: Post info about ONE Supreme Court decision, modern or historic to your lj. (Any decision, as long as it's not Roe v. Wade.) For those who see this on your f-list, take the meme to your OWN lj to spread the fun.

I have something of a reputation as a "Supreme Court geek" amongst (some of) my friends, so I felt obligated to do this meme. :)

I'm having real trouble deciding amongst three cases. Two of them (Ex parte Milligan and West Virginia Board of Education v. Barnette, affirm the propositions (respectively) that no one person, even a president, is above the law; but some fundamental freedoms are not subject to majority vote. I've quoted from those opinions in this LJ before. Therefore, for today, the winner is...

Griswold v. Connecticut, a case from the 60s which marks the only time I am aware of that any justice has held that the Ninth Amendment is more than a "mere truism". Justices are usually loathe to admit the Ninth Amendment- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"- means anything, presumably because no one likes the idea of every criminal defendant asserting some screwy "right" to rob liquor stores or something. The case was about contraception and Justice Goldberg found a right to family planning among the rights "retained by the people." (Earl Warren joined in Goldberg's opinion.)

Goldberg's opinion is just a concurrence. The opinion of the Court marks the origin of the "right to privacy" found in the "emanations and penumbras" of the various amendments. The idea of "penumbras" is kind of cheesy- it means that the amendments are held to say things they don't actually say- but also unavoidable in some ways. For example, the First Amendment freedom of speech necessarily implies a freedom of conscience- if I am free to assert a political proposition, I must be free to believe it. In Douglas' majority opinion, the amendments combine, like a constitutional Voltron, to produce effects together that none of them produces alone.

So Griswold itself isn't actually held, as a matter of precedent, to say that the Ninth Amendment means anything. I really like that idea, though. The Ninth Amendment should mean something.
jmatonak: (Default)
A Congressional REPRESENTATIVE is hard at work. The Treasury SECRETARY enters.



SECRETARY: I'm seriously, you guys. Due to the packaging and selling of financial instruments designed to shift risk to those least able to bear it, the economy is fucked. We need hundreds of billions of dollars, pronto, or a bunch of paper debt and the stupid rewrite of the bankruptcy law we did will KILL US ALL.


SECRETARY: Also, I want to disburse this money as I see fit, and I don't want to be subject to any kind of administrative oversight, or even judicial review.



By the way, I think it's cute that Sec. Paulson thought Congress could make him immune to judicial review. It's really precious. I think what he meant was some kind of assertion of sovereign immunity whereby he could not be sued. The phrase I heard, though, was "not subject to review", which, frankly, is impossible given the last *two centuries* of Supreme Court decisions. But, you know, it was a nice try. Asshole.

Please, if I missed an important detail here, so inform me and rip me a new one. I'm praying on bended knee I missed something crucial.
jmatonak: (Default)
Mr. Card does not like gay marriage, because it is not in accord with his religious beliefs. He claims to be against it because it is "the end of democracy in America." His objection is that courts are interpreting state constitutions so as to allow gay marriage, even though the popular vote has come down against it.

Mr. Card does not understand the plain meaning of the phrase "interpreting the state constitution."

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." -- Robert H. Jackson, majority opinion in West Virginia Board of Education v. Barnette (1943), emphasis added.

I trust that Jackson's reference to the Bill of Rights rather than the California constitution does not obscure the issue. It is one of the oldest principles in American law that a Constitution, be it federal or state, cannot be circumvented by a mere act of the legislature, however well that act may accord with the popular will.

I have some problems with the "right to property" protected by the U. S. Constitution. The word "Constitution" implies that, no matter how many people agree with me, I can suck it. So, too, can Orson Scott Card. An attempt to enact religious dogma into law under the banner of "democracy" is odious. A member of a comparatively small sect such as the LDS should know better.

The tyranny of the majority is still tyranny, so William H. Rehnquist can bite me too.


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January 2012

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