More voting

There are a bunch of articles out there noting the Judge Roberts was probably wrong when he asked:

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

You can go here to find the actual numbers (I looked at the table: Reported Voting and Registration by Sex, Race and Hispanic Origin, for States: November 2010), although 2008 is better since that is the last Presidential election that has this information. If you look at the data it does seem that Roberts is wrong (it’s difficult to prove this since Roberts doesn’t say what data he is using).

There are a few things to note here:

1. Massachusetts has had its problems with racism and voting, this shouldn’t be ignored.
2. At this point in time, it seems there are more problems with Asians and Hispanic voting–the percent of citizens voting in the 2008 election were (the alone part is there because many people listed more than one race, that means these are not perfect statistics): white alone–64.4%; black alone–64.7%; Asian alone–47.6%; Hispanic–49.9%. The numbers aren’t out for 2012 (or I can’t find them), so it’s hard to say if this has changed (the percent of people who voted who were Hispanic was about 10% and 3% for Asians, but it’s difficult to get the percent of voting age US citizens who are Hispanic or Asian–from here, it seems to be 9.7% and 3.6%).
3. It seems to me to be much more important that Roberts has a history of trying to get rid of the Voting Rights Act.

As an aside to that last point, note that the article links to this which negates one of the conservative justices arguments:

But in 2009, when an earlier challenge to Section 5 of the Voting Rights Act reached the Supreme Court, Roberts sounded a lot like Reagan during oral arguments. He echoed the late president’s view that Section 5 represented an unconscionable punishment for the South’s past sins. “Congress can impose this disparate treatment forever because of the history in the South?” Roberts asked the government attorney defending the law.

In his subsequent opinion in the 2009 VRA case, in which the court seemed close to striking down Section 5, Roberts wrote that the government had made the bailout provision “all but a nullity.” In the three years since that verdict, however, more than 100 jurisdictions have been allowed to bail out of Section 5—more than twice as many in the nearly three decades before. It’s not even that expensive to bail out; the usual cost is $5,000. The reason Shelby County hasn’t been able to take advantage of the bailout provision is that in 2006, county election officials redistricted the only black city council member in one of the county’s towns out of a job.

So, the Act has a built-in provision to wind down–as regions show they no longer discriminate they can petition to bail out.

Voting

The Supreme Court is looking at the Voting Rights Act. As usual, Scalia makes some stupid statements:

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

There are a couple stupid statements in this argument. First that being able to vote is a ‘racial entitlement’, I hope nothing needs to be said here. Second that a unanimous vote somehow shows that there’s a problem–perhaps in the past some people voted against it because they didn’t think discrimination was bad (I would think this would be obvious since some states were practicing segregation), but now everybody thinks it is? That can’t be it according to Scalia, it must be because of some kind of intimidation.

As noted here, I find it interesting that the Court (which would really be the conservative members) found that reporters who no longer phoned people to interview them had no standing:

to bring a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, a law that authorizes dragnet spying on US persons even absent identification of specific targets. (Another constitutional challenge to the law, Jewel v. NSA, is still winding its way through the courts.)

but that those same judges seem to no problem with Shelby County, AL having standing to challenge the formula of the Voting Right Act despite the fact that:

If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list.
If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list. If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.
I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.

I also like this comment by Justice Sotomayor in response the attorney arguing for Shelby County saying the law should not apply to the county any more because there is no longer any problems with registering voters:

Counsel, the reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. As the courts struck down one form, the States would find another. And basically, Justice Ginsburg calls it secondary. I don’t know that I’d call anything secondary or primary. Discrimination is discrimination.
And what Congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for discrimination.

The consensus seems to be that the Court will get rid of at least a major part of the act–it’s not like voting is a right, right?

Cry fire

Via here, this is a nice bit of history. We all know that freedom of speech is not absolute, we can not cry fire in a theater if there is no fire. Here’s where that was first used:

Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War.  Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917.  That summer, Schenck and his Philadelphia comrades launched a campaign against the draft.  They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it.  If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar.  One side proclaimed “Long Live the Constitution of the United States.” The other urged people to “Assert Your Rights!”

Schenck and his comrades made 15,000 leaflets and mailed most of them to men in Philadelphia who had passed their draft board physicals.  It’s unclear how many actually received the leaflet—hundreds were intercepted by the government—and no one produced evidence of anyone falling under its influence.  Even so, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.”  Two of the defendants—Schenck and another party leader—were found guilty.  Schenck’s case was argued before the Supreme Court in January 1919, and the Court’s unanimous decision to uphold the conviction, written by Holmes, was delivered in March.

Hm, it seems to me that this should be a protected right. Anyway, the post goes on to look at this bit from Justice Holmes’ judgement:

But it is said, suppose that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454,462. We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability
for words that produced that effect might be enforced.

It seems that Holmes might have been talking about this:

On Christmas Eve many of the striking miners and their families had gathered for a Christmas party sponsored by the Ladies Auxiliary of the Western Federation of Miners. The party was held in the second floor of Calumet’s Italian Hall. A steep stairway was the only way to the second floor, although there was a poorly-marked fire escape on one side of the building and ladders down the back of the building which could only be reached by climbing through the windows.

The tragedy began when there were over four hundred people in the room and someone yelled “Fire!”; there was none. However, people panicked and rushed for the stairs. In the ensuing melee, seventy-three people (including fifty-nine children) were killed. To date there has been much debate about who cried “fire” and why. It is conjectured that “fire” was called out by an anti-union ally of mine management in order to disrupt the party.

The article adds (the group of men was from the Citizens’ Alliance which was a lovely group):

On December 26, a group of fifteen men burst into Moyer’s hotel room.  The men “piled on me like a pack of wolves,” he later testified, “kicking and striking and cursing.”  A revolver accidentally went off, hitting Moyer in the back and shoulder.  The men grabbed Moyer and another union official, dragged them through town to the railroad station, put them on board a train for Chicago, and warned Moyer “if you ever come back to this district again we will hang you.”

The following day, local authorities arrested the editor and several employees of the local radical Finnish newspaper Tyomies, which first publicized the accusation that the Citizens’ Alliance had caused the stampede, and charged them with “conspiracy to publish mis-statements calculated to incite riot.”  Two weeks later, on January 15, 1914, the Houghton County Grand Jury indicted Moyer and 37 other unionists for participating in a conspiracy that “instituted a general strike…with the purpose and intent of causing and compelling the employees of the companies…to cease work and to shut down and prevent the operation of the mines.”  Nine days after that, the same grand jury refused to indict Moyer’s attackers.

So, Holmes uses the metaphor even though no one was punished for yelling fire. On the other hand, people are punished for striking which was illegal. This also comes up in the opinion of Holmes in Gompers v. Bucks Stove & Range Co where they decided that boycotts were also illegal speech (the case was dismissed because the Bucks Stove president had died).

If you look at these cases together, you might get the idea that Holmes’ idea of Free Speech was that it didn’t apply to socialists or unions.

Alito, Repulican justice

Well then, here’s Supreme Court Justice Samuel Alito:

His comments to the overwhelmingly conservative and Republican crowd were part of his broader analysis of arguments put forth by the Obama administration in recent years that Alito said would curtail individual freedoms in favor of stronger federal power.

He said opponents of the 5-to-4 decision have conducted an effective, but misleading, public relations campaign by stressing that the court extended free speech rights to corporations.

But Alito rattled off the names of the nation’s leading newspapers and television networks, all owned by corporations and possessing acknowledged rights to print and say what they wish about politics and government.

‘‘The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,’’ he said. ‘‘Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.’’

Hmm, sounds like he’s trying to mislead people. The main problem is money–this Supreme Court has said that money is free speech which means Bill Gates has about a billion more free speech rights than I do. Also, you would think a Federalist Judge wouldn’t say that inventing a right is ok just because not having it would cause problems. If corportations don’t have free speech rights then they can be given them by Congress. Here’s more.

Taken together, Alito said, the views put forth by the government begin to suggest a vision of society ‘‘in which the federal government towers over people.’’ He noted that in several cases, not a single justice endorsed the administration’s arguments.

It was not the first time Alito has taken on critics of the outcome in the Citizens United case. At President Obama’s State of the Union address soon after the court’s ruling in January 2010, the president said the court ‘‘reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.’’

Alito, sitting with five other justices, was seen to mouth, ‘‘Not true.’’

He also humorously recounted his experience at Yale Law School in the early 1970s when he was a student of constitutional law professor Charles Reich, who by then was more interested in American counterculture than the law.

He quoted from Reich’s bestselling ‘‘The Greening of America,’’ in which the author painted a frightening picture of a disintegrating society and called the era a ‘‘moment of utmost sterility, darkest night, most extreme peril.’’

Here, Alito paused and, to the delight of a crowd dismayed by Obama’s reelection, added, ‘‘So our current situation is nothing new.’’

It’s good to know that Alito thinks just like a partisan conservative Republican, I’m sure he only decides things on the merits of the case. And I hope Alito noticed that corporations spent a huge amount of money this election season.

Montana and corruption

At least part of Montana’s rules on campaign donations is still around, barely:

The 9th U.S. Circuit Court of Appeals reinstated Montana’s campaign donation limits, telling the federal judge who struck down the limits that the panel needs to see his full reasoning so it can review the case.

The court intervened late Tuesday less than a week after the judge’s decision opened the door to unlimited money in state elections – during the height of election season.

In response, U.S. District Judge Charles Lovell issued a 38-page conclusion Wednesday morning that reinforced his earlier decision finding that the state’s limits are too low to allow effective campaigning. He suggested the state Legislature would have a “clean canvas” to perhaps establish new, higher limits that could meet constitutional muster.

The 9th circuit did not immediately respond, leaving the state limits in place – for the time being. The legal back and forth came with less than a month until Election Day.

Montana was one of the states that had a campaign finance law overturned by the Citizens United decision:

The Supreme Court has struck down a Montana ban on corporate political money, ruling 5 to 4 that the controversial 2010 Citizens United ruling applies to state and local elections.

The court broke in American Tradition Partnership v. Bullock along the same lines as in the original Citizens United case, when the court ruled that corporate money is speech and thus corporations can spend unlimited amounts on elections.

What makes this ruling especially grating is the reasoning in Citizens United:

In his original decision, Justice Anthony Kennedy argued that independent campaign expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Ginsberg argued that the Montana case was an opportunity to reconsider “in light of the huge sums currently deployed to buy candidates’ allegiance.”

The Montana law was passed about 100 years ago because of specific, actual corruption:

 a law dating back to 1912, when the country was just beginning to stagger out  of its previous Gilded Age, that forbade corporate contributions to election  campaigns. This law was passed partly as a consequence of the activities of one  William Clark,The Copper King, who spent tens of thousands of dollars to buy  himself a Senate seat, back in the days in which this required the wholesale  purchase of state legislators, and did so in such an egregious and clumsy  fashion that the U.S. Senate tossed him out on his ear, Montana passed its law  and, eventually, the country ratified the 17th Amendment, providing for the  direct election of Senators which, as we have seen, has now led to the wholesale  purchase of U.S. Senate seats by corporate proxies, thanks to the nine wise  souls in Washington.

There’s more  here:

This article first details the extent of that corruption, which was so pervasive that in 1908, President Theodore Roosevelt’s Solicitor General, echoing Mark Twain, described Montana as a place “where open confessions of sales of political and even judicial influence were lightly looked upon. The article describes three examples that the Solicitor General likely had in mind. The first involved the election of copper king William Andrews Clark to the U.S. Senate in 1899. Clark won his election through a brazen bribery campaign that ended up being the focus of an investigation by the U.S. Senate, which forced Clark to resign a few months after taking office. The other two examples concern corrupt district judges elected in Butte in 1900, Edward Harney and William Clancy, who had been “bought and paid for” by another copper king, F. Augustus Heinze. Their numerous biased rulings in Heinze’s favor in some of the most high-stakes litigation in the United States had substantial impacts on the State and the Nation.

Mark Twain even got into it:

He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell. His history is known to everybody; he is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed’s time.

Anyway, I hope this little bit of campaign finance reform holds.

Sununu: I’m an idiot

I haven’t commented on a column by John Sununu yet because they’re all pretty idiotic. This one, though, is even stupider than most:

JOHN ROBERTS wants you to eat your broccoli. If you don’t, Congress just might tax you; and that’s fine with him.

…

Good news for all who favor smaller government? Not so fast. Under the administration’s secondary argument, the law “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.” Roberts concludes that the “penalty for not obtaining health insurance may reasonably be characterized as a tax” and therefore “within Congress’s constitutional power.”

That’s less a limit on government than a roadmap for squelching liberty. By this measure, Congress could demand almost anything as a condition of citizenship, with a penalty imposed for failing to comply. Not sure? Just replace the words “health insurance” with “vegetables” in the paragraph above. Simple, clean, consistent with the court’s ruling, and utterly outrageous.

…

Once the government takes responsibility for paying your health care bills, bureaucrats have the moral ground — and financial models — to justify ever-increasing intervention into what was once called personal behavior.

By this reasoning, a country that has national healthcare would have these types of laws and yet they don’t. Maybe the fact that anyone who proposed such a law wouldn’t stay in office? And the whole tax thing is just as stupid. There are lots of things that can be used as tax deductions (which means a tax increase for the rest of us). By this reasoning, there’s a tax penalty for renting, or not having kids, or not saving for retirement, or thousands of other things. It used to be that conservatives would rather have incentives than regulation and that’s exactly what this is–no one is going to jail if they don’t have insurance, there’s a tax incentive to buy it.

Oh, Sununu might want to ask Romney if this is a tax:

 Romney spokesman Eric Fehrnstrom said the presumptive Republican presidential nominee agrees with the Obama administration’s insistence that the “shared responsibility payment,” as it is called in the Affordable Care Act, should be described as a penalty, or a fee, or a fine — but not a tax.

Health care is constitutional

I was worried, but the Supreme Court has ruled that the Affordable Care Act is constitutional. President Obama should now make this one the central themes of his campaign, noting that Romney wants to get rid of it and has nothing to replace it with. Romney wants to go back to the old financial regulations that led to the current recession, he wants to go back to the old broken healthcare system, he wants to make enemies (of Russia and China among others), and he wants to back to President Bush’s agenda. Democrats should look at the bill now that it has been upheld and work to make it better.

Anyway, this is something to savor.

Pretending is the way to solve things?

This is one of the stupidest ideas I’ve seen in quite some time:

Perhaps it would be more constructive for the court to decide cases by majority vote and issue a single opinion in the name of the court without publishing the votes or opinions of individual justices.

By eliminating dissenting opinions, which are sometimes longer than the majority opinion, the justices could focus more on crafting one clear opinion than on framing contentious responses. Any loss of egocentric exposition or subjective satisfaction caused by ending separate opinions would be more than compensated for by the added force, weight, and dignity unified Supreme Court decisions could command. The focus would be upon the rule of law, not upon judicial personalities.

The problem is that the Supreme Court is no longer seen as unbiased and their favorability ratings are way down. The reason is pretty obvious:

Frequent fractured opinions — especially in controversial and politically charged cases, like election challenges, campaign financing, or strip search practices — create the impression that those decisions may be politically motivated or agenda-driven and do not deserve the same respect and vitality given decisions rendered by greater majorities. They lead to charges of judicial activism and result in increasing partisan intrusion into the judicial process. Too often significant decisions are determined by one swing justice, giving the impression that Supreme Court precedent can be influenced merely by filling a vacancy with the right judge.

If you change ‘create the impression’ to ‘show’  in the above passage (and make other, similar changes) then you see the problems. Most of the Supreme Court justices are now just as partisan as any other politician (and they are now politicians). This editorial does a better job of acknowledging the problem:

Protected by lifetime tenure, many have chosen to enter the political fray rather than insulate themselves from it. Their involvement with politically motivated organizations reflects a shocking lack of concern for the court’s image. All other federal judges are bound by the Judicial Conference’s Code of Conduct, which says they can’t engage in political activity and shouldn’t undermine their impartiality. But as a self-administering branch of the government, the nine justices have exempted themselves. They should reverse course, endorse the Code of Conduct, and forgo politics — for their own integrity, and that of the court.

This is the first of a series of editorials so I won’t pass judgement on it yet, but the article by Joseph Nadeau basically wants to deal with the problem by ignoring it. That won’t solve the problem, because some of the decisions (such as Bush v. Gore and Citizens United) are obviously due to partisan politics. Pretending that they’re not won’t change that.

DISCLOSE Act

The Supreme Court, in their Citizens United decision, said that money is speech, but even they thought that the name of the donors should be disclosed. Of course, Republicans are against it:

The bill is a reintroduction of similar legislation that came close to passing last Congress. That bill won 59 votes in the Senate in 2010, falling one vote shy of overcoming a Republican-led filibuster.

Their reason (ok, the reason the Chamber of Commerce is against it):

The U.S. Chamber of Commerce, a powerful lobby force and a heavy political spender, was a vocal opponent to the Disclose Act last Congress, and attacked the new bill as a “politically-motivated” attack on free speech. 

”It is unfortunate that certain politicians want to single out and stifle the speech of one group — the business community — under the guise of ‘disclosure.’ This is a transparent, politically-motivated effort to seek out and punish a competing viewpoint in the political discourse,” said Blair Latoff, a Chamber spokeswoman.

Ya see, this is democracy in action (via here):

An anonymous donor gave $10 million late last year to run ads attacking President Obama and Democratic policies, escalating the money race that is defining the 2012 presidential campaign. And in the new, free-wheeling environment of independent political giving, the identity of this donor, like many others, is likely to remain a permanent mystery.

The donation went to Crossroads GPS, the conservative nonprofit group founded with the support of political strategist Karl Rove. Another donor gave $10 million in the 2010 midterm elections, according to draft tax returns that provide the first detailed look at its finances.

…

Crossroads GPS and its sister group, American Crossroads, hope to spend up to $300 million in the 2012 election cycle,promoting conservative ideas and helping elect Republicans up and down the ballot.

…

The tax returns show that Crossroads GPS has collected the vast majority of its donations from the super-rich. The forms show that nearly 90 percent of its contributions through the end of 2011 had come from as few as two dozen donors, each giving $1 million or more. Overall, the nonprofit group raised more than $76 million since it was founded in May 2010 through the end of 2011.

At least it’s the way democracy should work according to corporations. They should be able to say and do anything they want with no repercussions and since disclosure of political donations could affect sales, there shouldn’t be disclosure. On the other hand, many of us think that with rights come responsibilities–I have a right to speech, but others have a right to respond. And we think unlimited anonymous money in politics has a corrosive effect on democracy, which is why we, at a minimum, think the large donors should be disclosed. If you agree, sign the petition to try to get the DISCLOSE act passed.

Rick Hasen talks about the Senate hearings here.

It’s official–anyone can be strip searched for anything

My headline might seem like hyperbole, but look at the case:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  Some difference of emphasis among the five Justices in the majority made it appear that the decision might be more limited than at first glance.

…

The ruling also was a personal defeat for a Burlington County, N.J., man, Albert W. Florence, who was subjected to strip searches at two county jails over a six-day period of confinement after he had been arrested while driving on a state highway, based upon an out-of-date warrant.  The warrant was for failure to pay a fine, but he had actually paid the fine; court records had not been updated.  Florence has contended in public comments that he believed he had been targeted because he was a black man driving an expensive car.  After a week in jail, he was released, and no charges were pursued against him.

As if somehow to help justify its ruling against his challenge to the strip searches, the Court’s main opinion by Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches.  He had been arrested after fleeing from police, and was charged with obstruction of justice and use of a deadly weapon.  He had pleaded guilty to less serious offenses, had paid part of the fine, but had fallen behind in his payments.  That, and a failure to appear at a court hearing about the fine, led to the issuance of an arrest warrant.   He had paid the remainder of the fine a week later, but the warrant remained open in computer files.

I looked at this here and here and this leaves out a bit:

Albert W. Florence believes that black men who drive nice cars in New Jersey run a risk of being questioned by the police. For that reason, he kept handy a 2003 document showing he had paid a court-imposed fine stemming from a traffic offense, just in case.

It did not seem to help.

In March 2005, Mr. Florence was in the passenger seat of his BMW when a state trooper pulled it over for speeding. His wife, April, was driving. His 4-year-old son, Shamar, was in the back.

The trooper ran a records search, and he found an outstanding warrant based on the supposedly unpaid fine. Mr. Florence showed the trooper the document, but he was arrested anyway.

So, he was sent to jail even though he had proof that the warrant was wrong and even though owing a fine is not a jailing offense. And he was in jail for 8 days and strip searched twice.

My guess is that the majority didn’t want to admit that a previous ruling (via here) was bad, so they doubled down–the previous ruling said that people could be arrested and brought to jail for even very minor offenses.

Together these two rulings say that you can be sent to jail and strip searched for very minor offenses–remember that the next time you’re speeding or litter or eating a french fry in the wrong place or really almost anything. Freedom!

Money is more important than speech

The conservative Supreme Court Justices have again stated that they think that if you’re rich you’re more important than the rest of us. As Rick Hasen notes, one silver lining is that Justice Kagan has shown herself to be a forceful voice for reasonable campaign finance reform (look here for more discussions by him on campaign finance).

Here’s Kagan (I put in a lot, because she’s quite good here):

Arizona’s statute does not impose a “restriction,”ante, at 15, or “substantia[l] burde[n],” ante, at 2, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckleythat, for this reason, public financing of elections “facilitate[s] and enlarge[s] public discussion,” in support of First Amendment values. 424 U. S., at 92–93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.

…

Most important, and as just suggested, the very notion that additional speech constitutes a “burden” is odd and unsettling. Here is a simple fact: Arizona imposes nothing remotely resembling a coercive penalty on privately funded candidates. The State does not jail them, fine them, or subject them to any kind of lesser disability. (So the majority’s analogies to a fine on speech, ante, at 19, 28, are inapposite.) The only “burden” in this case comes from the grant of a subsidy to another person, and the opportunity that subsidy allows for responsive speech. But that means the majority cannot get out from under our subsidy precedents. Once again: We have never, not once, under-stood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another. (And that is so even when the subsidy is not open to all, as it is here.) Yet in this case, the majority says that the prospect of more speech—responsive speech, competitive speech, the kind of speech that drives public debate—counts as a constitutional injury. That concept, for all the reasons previously given, is “wholly foreign to the First Amend-ment.” Buckley, 424 U. S., at 49.
…
Suppose Arizona were to do what all parties agree it could under Buckley— provide a single upfront payment (say, $150,000) to a participating candidate, rather than an initial payment (of $50,000) plus 94% of whatever his privately funded opponent spent, up to a ceiling (the same $150,000). That system would “diminis[h] the effectiveness” of a privately funded candidate’s speech at least as much, and in the same way: It would give his opponent, who presumably would not be able to raise that sum on his own, more money to spend. And so too, a lump-sum system may deter speech. A person relying on private resources might well choose not to enter a race at all, because he knows he will face an adequately funded opponent. And even if he decides to run, he likely will choose to speak in different ways—for example, by eschewing dubious, easy-to-answer charges—because his opponent has the ability to respond.Indeed, privately funded candidates may well find the lump-sum system more burdensome than Arizona’s (assuming the lump is big enough). Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.

…

So the majority has no evidence—zero, none—that theobjective of the Act is anything other than the interest that the State asserts, the Act proclaims, and the history of public financing supports: fighting corruption.

2

But suppose the majority had come up with some evidence showing that Arizona had sought to “equalize electoral opportunities.” Ante, at 24. Would that discovery matter? Our precedent says no, so long as Arizona had a compelling interest in eliminating political corruption (which it clearly did). In these circumstances, any interest of the State in “leveling” should be irrelevant. That interest could not support Arizona’s law (assuming the law burdened speech), but neither would the interest invalidate the legislation.

Money trumps everything

This case should be open and shut:

The justices heard arguments in a challenge to the Arizona system that gives candidates who opt for public financing up to two times their base amount when they are outspent by privately funded rivals or targeted by independent group spending.

The court’s conservative-leaning justices, who have issued a string of decisions upending campaign finance laws in the past five years, appeared skeptical of the Arizona law because, in their view, it is designed to level the playing field for all candidates. The court has said such leveling often runs afoul of the First Amendment.

The fact that it’s not is very worrying for democracy. In essence, if they rule this law is unconstitutional they have said not only that money is the same as free speech (I think this is crazy by itself but the court has ruled thus) but that it overrules free speech alone–if someone is rich enough they could dominate the media and make it much more difficult for their opponent to be heard.

And it’s more likely to rain when there are clouds

Via Kevin Drum, here’s a study that states the obvious:

For the 887 policy questions on which well-off and poor Americans disagree by eight percentage points or more (top panel of figure 2), outcomes are fairly strongly related to the preferences of the well-to-do (b=1.92, p=.000), but wholly unrelated to the preferences of the poor (b=0.04, p=.92).

….

The probability of a proposed policy change being implemented rises almost 30 percentage points as support among high-income respondents increases (b=1.80, p=.003), but rises only six percentage points as attitudes among median income respondents shift from strong opposition to strong support (b=0.33, p=.51).

There weren’t enough points to get statistical significance but it seems that the relation is even stronger for the 99th percentile. The paper looks at a fair number of ways this relation might not involve money (the rich also tend to have more education, be more involved in politics, …), but it seems to come down to money, in particular how much they give (in an interesting twist, the rich are more likely to support contribution limits and public financing of elections). Not very surprising, but it does give another reason why rulings by the Supreme Court that conflate money with speech are wrong. Together these rulings and this study say that people who have more money should have more say in the government.

Corporate democracy

I doubt he really cares, but I wonder what Justice Kennedy thinks about his reason for voting to allow unlimited corporate giving for political candidates:

“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions,” Justice Anthony M. Kennedy wrote in January. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Amazingly, this is what’s happened (bold added):

Business groups, unions and interest groups had spent $266 million as of Tuesday, according to the Center for Responsive Politics, including at least $128 million by groups that are not required to publicly disclose their donors. Some have said outside spending by conservative groups alone could reach $400 million this year.

Yup, good call there Anthony. How could this happen?

U.S. Senate Republicans dealt a blow to President Barack Obama and his fellow Democrats on Thursday by again blocking a bill to require public disclosure of who pays for political campaign advertising.

On a party-line vote of 59-39, short of the needed 60, Democrats failed to end a procedural roadblock against the measure, likely killing it for the year.

Drafted with the support of Obama, the bill was designed to blunt the impact of a divided U.S. Supreme Court ruling in January that overturned state and federal limits on independent expenditures by corporations to support or oppose candidates.

The bill would require corporate — as well as union and advocacy group leaders — to disclose their names in campaign ads rather than allow front groups to take responsibility.

So, Republicans have been the main beneficiary of this ruling and for some reason they voted against making disclosure mandatory. I don’t see how Kennedy could have seen that coming.

Supreme Court: If you have more money you have more rights

The Supreme Court has ruled:

Reporting from Washington – The Supreme Court today overturned a century-old restriction on corporations using their money to sway federal elections and ruled that companies have a free-speech right to spend as much as they wish to persuade voters to elect or defeat candidates for Congress and the White House.
…

Until now, corporations and unions have been barred from spending their own treasury funds on broadcast ads or billboards that urge the election or defeat of a federal candidate. This restriction dates back to 1907, when President Theodore Roosevelt called on Congress to forbid corporations, railroads and national banks from using their money in federal election campaigns. After World War II, Congress extended this ban to labor unions.

So  now both Wal-Mart and I can spend as much as we want to make ads to try to influence people. For some reason, I think that Wal-Mart might be able to spend more than me. The ruling continues to place corporations as an equal to actual people and perhaps above them:

By a 5-4 vote, the court on Thursday overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for campaign ads.

…

The case also does not affect political action committees, which mushroomed after post-Watergate laws set the first limits on contributions by individuals to candidates. Corporations, unions and others may create PACs to contribute directly to candidates, but they must be funded with voluntary contributions from employees, members and other individuals, not by corporate or union treasuries.

The two reasons I think this ruling is wrong are the assumptions that corporations have the rights of people and that money=free speech.

Ibuprofen strip search not ok

I had a post on the girl who was strip searched because it was believed that she had a prescription strength ibuprofen tablet. The case made its way to the Supreme Court who ruled today that the search was illegal but the school officials were not liable for the ensuing lawsuit (they did not rule whether the school district was).

Via here, some of the relevant facts are:

The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he  showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.

Wilson then showed Savana four white prescription strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing.

At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.

The Supreme Court found that the search of the backpack was reasonable:

Wilson had sufficient suspicion to justify searching Savana’s backpack and outer clothing. A week earlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner.
Once in his office, Wilson, with Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia, an over the-counter pill that Marissa claimed was Savana’s. She also denied knowing about the day planner’s contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa’s underwear by Romero and Schwallier revealed no additional pills, Wilson called Savana into his office. He showed her the day planner and confirmed her relationship with Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a school dance, during which alcohol and cigarettes were found in the girls’ bathroom. He had other reasons to connect them with this contraband, for Jordan had told the principal that before the dance, he had attended a party at Savana’s house where alcohol was served. Thus, Marissa’s statement that the pills came from Savana was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. A student who is reasonably suspected of giving out contraband pills is reasonably suspected of carrying them on her person and in her backpack. Looking into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.

but that the strip search was not reasonable because the pills were not dangerous and there was no reason to believe that Savana had pills with her at the time or that students hid such things in their underwear. They held that previous court rulings were not clear enough to hold the officials liable. I agree with Justice Ginsburg:

Fellow student Marissa Glines, caught with pills in her pocket, accused Redding of supplying them. App. 13a. Asked where the blue pill among several white pills in Glines’s pocket came from, Glines answered: “I guess it slipped in when she gave me the IBU 400s.” Ibid. Asked next “who is she?”, Glines responded: “Savana Redding.” Ibid. As the Court observes, ante, at 6, 10, no followup questions were asked. Wilson did not test Glines’s accusation for veracity by asking Glines when did Redding give her the pills, where, for what purpose. Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing. Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills—containing the equivalent of two Advils or one Aleve—in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity.

In contrast to T. L. O., where a teacher discovered a student smoking in the lavatory, and where the search was confined to the student’s purse, the search of Redding involved her body and rested on the bare accusation ofanother student whose reliability the Assistant Principal had no reason to trust. The Court’s opinion in T. L. O. plainly stated the controlling Fourth Amendment law: A search ordered by a school official, even if “justified at its inception,” crosses the constitutional boundary if it becomes “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 469 U. S., at 342 (internal quotation marks omitted).

Here, “the nature of the [supposed] infraction,” the slim basis for suspecting Savana Redding, and her “age and sex,” ibid., establish beyond doubt that Assistant Principal Wilson’s order cannot be reconciled with this Court’s opinion in T. L. O. Wilson’s treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it. I join JUSTICE STEVENS in dissenting from the Court’s acceptance of Wilson’s qualified immunity plea, and would affirm the Court of Appeals’ judgment in all respects.

The only Justice to dissent from the main part of the ruling that the strip search was illegal was Justice Thomas (no surprise) who basically says that officials should never use judgement (Thomas certainly doesn’t seem to know about it, so I suppose I shouldn’t just dismiss the argument). He also believes that school officials should be able to do almost anything they want to keep order (if parents have problems with the actions they can always vote them out or move or send their children to private schools). Basically, he’s from the ‘because I say so’ form of parenting/schooling.

Taking Honesty Out of Roe v Wade

I’m a bit slow with this, but David Lewis Schaefer has an article ‘Putting some honesty in Roe v. Wade debate’ that takes out honesty from the debate.

It starts off ok, noting that the decision rests on what some people consider shaky grounds, a right to privacy (although this:

If the Constitution contains a right to privacy, why am I required to disclose my income to the Internal Revenue Service?

is silly-he does know that there are no absolute rights, that one of the points of courts is to decide between competing rights, doesn’t he?), but he quickly starts to say some silly and/or dishonest things:

That’s why the liberalization or abolition of abortion restrictions by numerous state legislatures during the years leading up to 1973 generated far less bitterness among abortion opponents than Roe v. Wade has done.

And if he believes there would not be the same bitter debate right now if abortion had been legalized state by state, he’s stupid. A couple of reasons it wasn’t as bad in the 1960s and early 1970s–the second wave of feminism hadn’t really come into power yet and so it was easier to ignore them; opposition takes a while to coalesce (Roe v Wade did jumpstart the pro-life movement but the opposition would have continued to build without it if the number of states allowing abortion had continued to increase).

Indeed, Dred Scott offers an ominous anticipation of Roe v. Wade, in that in both instances some members of the court sought to “resolve” a divisive issue simply by adopting a manifestly specious reading of the Constitution. In neither instance did the result prove promising, from the point of view of reducing national acrimony.

Finally, the reversal of Roe v. Wade would not in itself limit abortion rights. It would simply return the issue to the state governments, which is where the Constitution left it all along.

Here I’m not even sure what he’s trying to get at. I thought he said that abortion wasn’t divisive before Roe v Wade? There is a similarity to the two cases, the two sides believed irreconcilabe things (slavery is evil against slavery is needed and abortion is murder against women need to be able to control their body). Then that next bit is just weird, it seems to imply that he would have been ok with leaving the slavery issue to the states. Hmm.

In the years immediately preceding Roe v. Wade, some 18 states – including several in the South – either liberalized or abolished their restrictions on abortion. Since public opinion polls now show an increased acceptance of abortion (at least in the first trimester or in cases of rape or threats to the mother’s health), few states are likely to adopt an outright ban if the courts allowed them to do so. Nor are any bans likely to be enforced by the imprisonment of physicians or their patients, as partisans of Roe v. Wade have warned.

So, it’s not a big deal if suddenly millions of women can’t have an abortion? And remember an outright ban would not have to include an exception in case of the health of the woman (that has only been enforced by the Supreme Court which would no longer have any jurisdiction) and if you consider the original ‘partial birth’ abortion bill (which contained no such exception) then you have to accept that such a bill would be possible. Finally, the last sentence is just crazy. Why exactly would the group pushing for an abortion ban, which includes people who will kill doctors who perform abortions, accept a ban with no real penalties? My prediction: if Roe v Wade goes down many states would outlaw abortion, at least a few would have near absolute restrictions, and at least a few would have real punishment (probably for the doctor). I get my predictions from the past before Roe v Wade, where does he get his prediction from?

The Supreme Court Rules for Individual Gun Rights

The Supreme Court has ruled that the second amendment is an individual right with limitations:

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far in making it nearly impossible to own a handgun.

…

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Both Senator McCain and Obama say they support the ruling:

McCain:

Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense.

Obama:

I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

I’m a bit disappointed in Obama who really seems to be tacking right lately. It’s interesting that he seems to be very near the position of the Bush administration:

Solicitor General Paul D. Clement, representing the federal government, argued on behalf of the individual-rights position, which has been the Bush administration’s policy. But he said that the appeals court had also gone too far in overturning the ordinance and that the right to bear arms was always subject to “reasonable regulations.”

and: 

President Bush’s press secretary, Dana Perino, said in a statement that “the President strongly agrees with the Supreme Court’s historic decision today that the Second Amendment protects the individual right of Americans to keep and bear arms. This has been the Administration’s long-held view. The President is also pleased that the Court concluded that the DC firearm laws violate that right.”

Of course he’s still much better than Senator McCain.

Habeas Corpus

Well, the Supreme Court has ruled that the prisoners at Guantanamo do have habeas corpus rights (via TPM):

Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ.  The  Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”

Very nice. The NY Times talks a bit about the people at the center of the case:

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

Hmm, not so nice.

Of course, the conservative dissenters aren’t shy about saying what this means:

Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

Lovely man that Scalia.

McCain and the Supreme Court

Via Majikthise, here’s straight-talking Senator McCain:

“Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”

Now what does he mean:

The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Anthony M. Kennedy’s opinion overturned the sentence and held that the Constitution forbids the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” refers to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
…
Nor were his references to penumbras and emanations accidental. Those words come from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the Justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control.

Hmm, does McCain think Griswold was wrong (and so is against contraception)? He is certainly very much against abortion. Maybe he will give a ‘straight’ statement someday–I don’t expect it, since the right to contraception is supported by a very large percentage of the US but opposed by religious conservatives. Also, it’s interesting that McCain is saying things very similar to what Bush says–another important area where Bush and McCain have very similar views and actions. There’s another discussion of McCain and the courts here.