Archive

Posts Tagged ‘Supreme Court’

The Obama Administration Must Appeal the DOMA Decisions

July 15th, 2010 1 comment

In today’s column over at 365gay.com (not gay on Feb. 29?), I argue that the government needs to appeal the decision by a Massachusetts federal district judge that ruled section 3 of DOMA unconstitutional.

I even think that the case might come out favorably even when it reaches the  Supreme Court.

…But at Least It will Make a Good Made-for-TV Movie

January 13th, 2010 No comments

As I more or less expected, the U.S. Supreme Court has just ruled, 5-4, to continue to block the broadcasting — even the delayed broadcasting — of the Prop 8 trial. As I stated a couple of days ago, this action just ensures that we’ll continue to get our information through filters from the left, rights, and center. Yes, we can piece together the story in broad outline from these sources, if we want to take the time to synthesize all of this. But what a needless obstacle to information.

And the idea that the Prop 8 supporters will be harassed or threatened by the trial? By applying that reasoning across the spectrum of cases, the public dissemination of knowledge would be greatly reduced, indeed. One should have to show a clear and imminent danger for such a claim to carry the day, not the kind of speculative harm that’s really all that’s alleged here. Indeed, the brief filed in support of the defendant’s motion devoted all of one-half of one page to this argument, citing an earlier Supreme Court criminal law case, where (obviously) safety of witnesses and jurors might be a concern.

I was struck by this comment on another blogsite:

I really hope someone’s writing a book or a screenplay in order to present this material to middle America in the near future!

That says it all. Let’s wait for an easily digested version of the actual event, suitable for “the masses.” Why not let all of see it as it happens, and avoid the commercial calculations about what versions should get made? Or is this too obvious?

The Court, though, sidestepped these more difficult issues by ruling that the order to broadcast was procedurally deficient (the lower court did change its rules “at the eleventh hour,” as the Court said). I’m trying to get my hands on the full opinion and will have more to say after I’ve thoroughly digested it. For now, I note the distressing (if wearily predictable) fact that the 5-4 split was along the usual conservative-moderate (by no fair lexical stretch can these four be called “liberal”) fault line. Is this ruling a harbinger of the ultimate decision when the case reaches the Court? Who knows, but I’m not encouraged.

Enjoy whatever scraps you’re able to get from those “on the ground.” A terrible shame, really.

Update: 6:08 EST You can find the decision here. Most of the squabbling between the majority (Roberts, Scalia, Thomas, Roberts and Alito) and the dissent (Stevens, Breyer, Ginsburg, Sotomayor) had to do with the way the rule permitting broadcast was put into effect. The majority disclaims any ruling on the merits of whether trials should be broadcast in the first place. The dissent seems skeptical of this statement. So am I.

Interpreting Supreme Court’s Stay of Video Coverage in Perry v. Schwarzenegger

January 11th, 2010 1 comment

Less than one hour ago, the Supreme Court voted — by a lopsided 8-1 majority — to grant the defendants’ motion to prevent the youtube broadcast (even the delayed broadcast) of the trial proceedings in Perry v. Schwarzenegger, the California federal case challenging the constitutionality of Prop 8 (and, by extension the constitutionality of the ban on same-sex marriages.)

I can’t yet find the Court’s ruling, but it’s likely short, because the Court only agreed to defer the issue until Wednesday, by which time one would expect they’d issue a more comprehensive decision. But the fact that eight of the justices believe that the application has at least some merit (a least enough for a short stay) surely isn’t a good sign for those, like me, that planned on some good popcorn viewing over the next several weeks.

I’ll have much more to say after the Court’s more substantive decision on Wednesday (especially if the Court affirms and continues the stay), but for now I note:

  • As the linked article suggests, some members of the Court may be allowing their own views about televising of Supreme Court proceedings to affect their judgment here. Several members, notably Chief Justice John Roberts, have been vocally opposed to suggestions that the Court allow anyone to actually see what it’s doing.
  • It’s worth wondering how the professedly (if disingenuously) anti-elitist Justice Scalia will rule. Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.

Of course, one might seize on my phrase “popcorn viewing” in support of the position that allowing the citizenry to watch trials of national importance is to permit their trivialization. But if we’re going to let people vote on rights, it seems the least we should do is to let the oppressed see the arguments being used against us.

As for the claim that witnesses will be intimidated or harassed should be trial be televised, it might be answered that the witnesses and their statements will (unless there’s something I’m not aware of) be part of the public record. Anyone determined enough to find out the information can already do so. Let’s not allow speculative, incremental risk to get in the way of full disclosure.

After all, the arguments against marriage equality are surely compelling, aren’t they?

The Credibility Sports Confers

July 10th, 2009 No comments

This morning I found out that former major league pitcher David Cone is to testify as a character witness at the trial of Supreme Court nominee Sonia Sotomayor. I learned this during a panel discussion on MSNBC that included Stephen A. Smith, former Philadelphia Inquirer sportswriter and ESPN talking head. I’m sure former ESPN star Keith Olbermann will have something to say about the list of character witnesses, as well.

I’m somewhere between CNN’s Anderson Cooper and the majority of my fellow, sports-obsessed Americans. Cooper, if you didn’t know, dissected a Palin spokeswoman’s defense of the daft governor’s decision to step down, and refused to be drawn into some inane sports analogy comparing Palin to a point guard: “I don’t know anything about sports,” he said. Whether he does or not, this was exactly the right response. He might as well have said: “Stop blathering and answer the question.”

But even for those of us who know or care about sports (I like exactly three of them), there’s something off-putting about the instant cred that sports stardom — whether as player or as pundit — confers. It’s not that the sports world doesn’t cough up bright, even brilliant, people. Among those who still concentrate on sports, Frank DeFord, Jon Wertheim (read his “Strokes of Genius”), and Diana Nyad come to mind as great journalists, writers, and observers. And those who have made the transition to other areas of interest are often pretty good, too. I think Olbermann, while a fellow traveler politically, sometimes lets his bluster and sarcasm get in the way of his message; but he’s bright and can be very effective. Stephen A. Smith I’ve not heard enough of to reach an opinion, but his constant talking over the other panelists this morning was irritating. David Cone is one of the most intelligent and thoughtful professional athletes you’ll ever hear. Read Roger Angell’s excellent but overlooked book, A Pitcher’s Story: Innings with David Cone for evidence.

By why do these folks find their access to more mainstream topics so easy? Because sports is so central that they’re widely seen, and heard, and respected for their views on, say, basketball or baseball; and then it’s assumed that viewers will follow them, and continue to respect them, when they talk about Iran or the Supreme Court. Often, this works. But it reminds me that SportsCenter and its ilk could only have succeeded in a sports-mad culture, and that they, in turn, constantly increase their own market share by convincing the audience of their importance.

The Hierarchy of Lawlessness

June 10th, 2009 No comments

Let’s play a depressing game. Consider these stories, and spot as many cases of lawlessness as you can:

  • As I wrote about a couple of days ago, a Philadelphia mob attacked and severely beat a rape suspect. The actions were condoned, encouraged, and rewarded by city officials. In this piece, Columbia University Professor Marc Lamont Hill attempts to justify the mob’s actions by noting that black women can’t count on the criminal  justice system to vindicate their interests.1
  • In the wake of the killing of Dr. George Tiller, who ran one of only three late-term abortion clinics in the country (now two, as his clinic is closing), Dr.  Susan Hill, a friend of the late Dr. Tiller’s and President of the National Women’s Health Foundation, appears on the Rachel Maddow show and says that the police often do not protect women who seek late-term abortions when they are harassed by anti-choice nuts. Apparently, the Freedom of Access to Clinics Entrances Act (“FACE”), the federal statute that allows both the U.S. Attorney General and any aggrieved person to sue for acts of violence or intimidation, isn’t doing enough to stem this misplaced zealotry, either.  Dr. Hill also states that the level of violence and intimidation has spiked since Dr. Tiller’s death, but also notes that federal marshals are on the ground to safeguard women’s safety. (The linked video is worth your time.)
  • This compelling story from the latest ABA Journal: In 1909, a black man is convicted of raping a white woman despite overwhelming evidence of his innocence. (Stop me if you’ve heard this before.) The judge essentially orders the convicted man’s attorneys not to appeal his death sentence. Other attorneys do step in and appeal, eventually filing a petition for habeas corpus in federal court, challenging the detention on constitutional grounds (including the right to a fair trial). The petition is denied in the lower court, but the court also stays the defendant’s execution pending appeal. When Supreme Court Justice John Harlan allows the appeal, an angry mob — enabled by the local sheriff — lynches the poor man, and shoots him “just in case.” The Supremes then host their one and only (still!)  criminal trial, eventually finding the sheriff, a deputy, and several mob members guilty of contempt of court. All are sentenced to (ridiculously brief) jail time, but are greeted as conquering heroes upon their return to their home town of Chattanooga, Tennessee. Meanwhile, the black lawyers who took the appeal, fearing for their lives, are forced to relocate.
  • The U.S. Government tortures enemy combatants, then protects those who ordered the torture. Congress attempts to strip the detainees of their habeas corpus rights, but the U.S. Supreme Court, in Boumediene v. Bush,  strikes down the law, finding that the procedures in place to challenge their detention were insufficient as a matter of due process.

Lawlessness isn’t limited to angry mobs. But such vigilantes are emboldened, and given example and cover, when those charged with enforcing the law — from renegade juries, prosecutors and law-enforcement officials to elected officials, to judges who forget their  role in the constitutional design, to legislators who pass laws they should know are unconstitutional — fail to do their jobs.

The above stories suggest a scary lattice of lawlessness. Violent anti-abortion protesters who aren’t arrested and prosecuted for breaking the law encourage others, equally or more violent. The stranglehold of Jim Crow racism was almost impossible to break given the lawlessness of public officials; it took the Supreme Court to create (admittedly crummy) accountability.  The Philadelphia mob will spawn others, because the message from the city is clear: “We’ll look the other way.” And only the Supreme Court, by the narrowest of 5-4  margins, stood between Congress and the further erosion of our Constitution when it comes to our treatment of detainees.

Maybe it’s the pervasiveness of this outlaw mentality that explains Marc Lamont Hill’s attempt at justifying the mob’s actions last week. Here’s what he had to say:

“I…have no antipathy toward the ghetto kangaroo court that sentenced him to a thorough ass-whooping. Still, I remain wary of hasty rushes to judgment (and punishment) regardless of the circumstance. After all, it was the ostensible need to quickly avenge rape that led to the physical and juridical lynching of thousands of black men throughout history. Also, if the racial tables were turned, we would surely disapprove of a white mob beating a possible black rapist. Black and white, however, are not two sides of the same racial coin.”

Hill then goes on to cite compelling historical and sociological evidence of the law’s failure to regard the black female body as worthy of protection. He then concludes:

“In a perfect world, law enforcement would be enough. Unfortunately, we live in a world so fractured by racism and sexism that black female bodies are still rendered unimportant. On Tuesday, the neighbors decided to send a different message. Until the broader society gets it, the community’s brand of justice is both appropriate and necessary.”

There’s so much wrong with this argument that I hardly know where to start. First, even if (as we must concede) the criminal justice system is flawed, that does not mean that the mob justice he champions is better. The mob had already attacked the wrong guy before they fingered this one. Is it OK if they’re wrong? If not, how does he know that the guy  they did beat is the right one? Because the very police he doesn’t trust said so?  And how far would he let the mob go? This alleged rapist was hospitalized. What if he’d died? Would that have been OK, assuming the same level of force was used?

None of these pedestrian concerns appear to have occurred to Hill, who practices being provocative on FOX News. Nor does he appear to have thought through the implications of excusing criminal behavior based on the race of the parties involved. Saying that “black and white are not two sides of the same racial coin” is sound-bite ready, but what does it mean? More to the point, what might that statement justify? Lawlessness isn’t so easily cabined, once unleashed and condoned. He’s “wary” of this kind of behavior? So what?

Batman is pretty cool as a comic book character (although I always preferred the less complicated Superman as a kid), but a nation of lawless zealots who “know best” and their academic and official enablers is less appealing.

  1. h/t Kris Kachline for alerting me to this article.