"Supreme Court Rejects Challenge to Surveillance Law."

"In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans."

This was a predictable decision based on existing standing doctrine.

"The Supreme Court reentered the controversial field of campaign finance Tuesday, agreeing to consider a Republican challenge..."

"... to decades-old limits on the total amount a person can contribute to candidates, political parties and political action committees."

"There are some short transitory passages between the various sexual episodes..."

"... but, for the most part, they only set the scene and identify the participants for the next orgy, or make smutty reference and comparison to past episodes."

An amusing sentence from Justice Clark's dissenting opinion in the 1966 case Memoirs v. Massachusetts, attempting to explain what is in the text of "Memoirs of a Woman of Pleasure," because he is "obliged to portray the book's contents, which causes me embarrassment." He avoids actual quotations from the book because it would "debase" the set of volumes that contain U.S. Supreme Court opinions. I was also amused by: "The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape. and color of the sexual organs before, during and after orgasms."



The narrator in "Memoirs" is a prostitute named Fanny Hill, and Justice Clark, addressing actual legal arguments made in this First Amendment case, writes: "To say that Fanny is an 'intellectual' is an insult to those who travel under that tag. She was nothing but a harlot — a sensualist.... As an empiricist, Fanny confines her observations and 'experiments' to sex, with primary attention to depraved, lewd, and deviant practices."

I was also amused by Clark's dismay that one expert at trial had claimed that the book had literary merit because the verb "waddles" was used instead of "walks" to describe a fat woman entering a room and that another expert said that the 18th century book contributed to an understanding of history through its repeated descriptions of "the male sexual organ as an engine... which is pulling you away from the way these events would be described in the 19th or 20th century."

It's funny now, when you can get the book through a simple click. Feel free to read just the dirty parts, in other words — if I am to believe Justice Clark's opinion and as they say in the blogosphere — read the whole thing.

ADDED: I love the idea of insulting those who "travel under the tag" "intellectual." That's something I know I try to do whenever I can. And I'm fascinated by the expert's inadvertently causing us to picture a giant penis-locomotive dragging us into the past. That's quite a time machine you've got there! And the notion of pubic hair as a background for a visualization of male genitalia. It's like pubic hair is to cock as black velvet is to Elvis.

AND:  Why the sudden interest in Justice Tom Clark? My conlaw casebook has a squib on this case:

[I]n Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of three (Warren, Brennan, and Fortas) restated Roth as follows:

[T]hree elements must coalesce: it must be established that (a) the dominant  theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

As Chief Justice Burger later noted in  Miller, “While  Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’  Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value,’ [a] burden virtually impossible to discharge under our criminal standards of proof.” Nevertheless, this formulation was the most widely applied, even though no majority of the Court could agree on a standard to determine what constituted obscenity. Warren, Brennan, and Fortas subscribed to the Memoirs variation; Black and Douglas asserted that obscenity was constitutionally protected; Harlan held to his Roth view; and Stewart thought that both federal and state governments could suppress “hard-core” pornography. Justice Stewart’s famous epigram in his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), dramatized the problem of defining “obscenity.” Speaking of hard-core pornography, Stewart said: “I know it when I see it.”

I'm counting: Warren, Brennan, Fortas, Black, Douglas, Harlan, Stewart. That's only 7. Somebody's not getting any respect. The other unmentioned Justice? Byron White.

State of the Union.

Talk about it here. The Supreme Court Justices: Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan are all there. No Scalia, Thomas, or Alito.

1. Obama's voice seems strange. Here's the full text of the speech, by the way. You don't really need to sit through all of this.

2. "So let’s set party interests aside..."

3. "[D]eficit reduction alone is not an economic plan. A growing economy that creates good, middle-class jobs – that must be the North Star that guides our efforts."

4. "A year and a half ago, I put forward an American Jobs Act that independent economists said would create more than one million new jobs. I thank the last Congress for passing some of that agenda, and I urge this Congress to pass the rest." That gets a huge laugh from Biden, and we laugh a lot at Biden laughing so much.

5. "After shedding jobs for more than 10 years... " I say: "Shedding? Maybe we should go back to the dog show." (I've got the SOTU and the Westminster Dog Show recording on the DVR. We can go where we want. I love that Tibetan Mastiff!)

6. Climate change. "Heat waves, droughts, wildfires, and floods – all are now more frequent and intense. We can choose to believe that Superstorm Sandy, and the most severe drought in decades, and the worst wildfires some states have ever seen were all just a freak coincidence. Or we can choose to believe in the overwhelming judgment of science – and act before it’s too late." What?! What is the overwhelming judgment of science? He merely gave the impression of making an assertion. That's not the attitude of science.

7. "I’m also issuing a new goal for America: let’s cut in half the energy wasted by our homes and businesses over the next twenty years." There's a modest goal. Why not cut all waste?

8. "Today, the Senate passed the Violence Against Women Act that Joe Biden originally wrote almost 20 years ago." Closeup on Biden, who looks elderly.

9. We should do "more to encourage fatherhood – because what makes you a man isn’t the ability to conceive a child; it’s having the courage to raise one."

10. "And by the end of next year, our war in Afghanistan will be over."

11. Closeup on John Kerry. I say: "He looks different." Meade says he had plastic surgery.

12. "Overwhelming majorities of Americans – Americans who believe in the 2nd Amendment..." support all sorts of gun control. "[I]n the two months since Newtown, more than a thousand birthdays, graduations, and anniversaries have been stolen from our lives by a bullet from a gun."

13. "But we were never sent here to be perfect. We were sent here to make what difference we can, to secure this nation, expand opportunity, and uphold our ideals through the hard, often frustrating, but absolutely necessary work of self-government."

14. Biggest cheer of the night: a 102-year-old lady who waited in line 6 hours to vote.

15. Weirdly, there's no cheering at all after the description of the police officer at the Sikh temple shooting, Brian Murphy, who who kept fighting "even as he lay bleeding from twelve bullet wounds. When asked how he did that, Brian said, 'That’s just the way we’re made.'" That was the last anecdote of the night.

16. "Thank you, God bless you, and God bless the United States of America."

"How many of you all believe that there is a movement to take away the Second Amendment?"

Democratic Senator Joe Manchin asked a group of his supporters back home in West Virginia.

About half the hands in the room went up.

Despite his best attempts to reassure them — “I see no movement, no talk, no bills, no nothing” — they remained skeptical. “We give up our rights one piece at a time,” a banker named Charlie Houck told the senator.

That's the anecdote that leads off the NYT article "Democrats in Senate Confront Doubts at Home on Gun Laws." The article ends:

During the lunch, Mr. Manchin shared a recent conversation he had with Vice President Joseph R. Biden Jr., the Obama administration’s point person on gun control.

“I said, ‘Mr. Vice President, with all due respect, I don’t know how many people who truly believe that you would fight to protect their rights.’ ”

The senator added, “That’s what we’re dealing with.”

How are we to think about rights? It's good for politicians to hear the deeply engrained American attitude: We give up our rights one piece at a time. There's a long tradition — predating the Bill of Rights — of thinking like that. Here's James Madison in 1785:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.

The issue there was not guns but the use of tax money to pay for teachers of religion. In the paragraph quoted above, Madison went on to say that citizens should object to the requirement of paying even "three pence" to support a religion because a government that extracts even that trifle may go on to coerce religious conformity. The small things are not small. The small things are where the people still have the capacity to fight authoritarian government.

Democrats know this. They are part of this American culture of deeply engrained belief in constitutional rights. What is different to the Democrats is that they don't believe that the right to keep and bear arms is a constitutional right. They think the Supreme Court misinterpreted the Second Amendment when it found a constitutional right. District of Columbia v. Heller was a 5 to 4 decision, and the 5 are the 5 Justices, still on the Court, whom the Democratic Senators would love to have a chance to replace.

The NYT portrays the folks back home in West Virginia as misinformed, troublesome, and hysterical. That’s what we’re dealing with.

Does lifting the combat ban for women make it easier or harder to reintroduce the military draft?

Here's a story explaining the new policy change and why it was done.

In the military, serving in combat positions like the infantry remains crucial to career advancement. Women have long said that by not recognizing their real service, the military has unfairly held them back.

No mention of the draft. When I first saw this story, I assumed it meant that it would be much more difficult, in the future, to bring back the draft. I cannot believe that the people would accept forcing women into combat. But now I'm thinking that removing this barrier makes it easier to restore the draft, because women won't really be forced into combat. With neutrally designed physical tests, no woman will be forced. These tests, keyed to what strong men can do, will exclude all but the most fit and motivated woman.

You don't need discrimination against women to filter out all the non-volunteers. And it will be more acceptable to Americans to force men and women into an institution that renounces any formal, express policy of sex discrimination. A male-only draft would raise objections, and a draft that includes women, but puts them in back up positions should be a problem both for women, because they are subordinated, and to men, because they are, because of their sex, more likely to be put in life-threatening positions.

***

I've been thinking about this problem quite a bit over the years as I teach the old Supreme Court case Rostker v. Goldberg, which involved a challenge to the requirement, introduced in 1980, that males register for the draft. The draft itself had ended in 1973, but President Carter thought we should be prepared for the possibility of a draft. He wanted to include both women and men, but Congress made it male only, which was challenged as unconstitutional sex discrimination. The fact that only men would be used in combat was the basis for upholding the discrimination:

In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.

40 years ago today, the Supreme Court issued its opinion in Roe v. Wade.

Justice Blackmun wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment.... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"...  are included in this guarantee of personal privacy....

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Was the state's interest in protecting the unborn child sufficient to permit some regulation? The answer was yes, but not before the "viability" of the unborn. As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused "to endorse any theory that life, as we recognize it, begins before live birth," since "those trained in... medicine, philosophy, and theology are unable to arrive at any consensus."

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her, no matter how firmly the majority of the people believe they have solved the mystery and they know that what she is doing is murdering a child.

Sotomayor, the college years.

One slide in a long, narrated slideshow at NPR.com. I picked that one out because it's so different from the others and from every other photo I've ever seen of Sotomayor. NPR did the article to go with Justice Sotomayor's new autobiography, "My Beloved World."

"How likely is it Antonin Scalia will die in the next four years?"

Asks Slate jauntily, offering what it calls "The Supreme Court Justice Death Calculator."

"I haven't been a black conservative since 1995..."

Glenn Loury talks about people he's known for 40 years who won't say hello, who won't look him in the eye because he USED TO BE a black conservative. USED TO BE! John McWhorter talks about those who think "it would be wrong to even print my name. They think of me as Satan. And that's just how it's been."



Much later in the diavlog, Loury and McWhorter weigh in on the affirmative action case that's pending in the Supreme Court. "Would you think it was a good thing if the Supreme Court outlawed racial preferences as we knew them?" McWhorter takes the "not nuanced" position that racial preferences should be proclaimed "obsolete." (Loury disagrees.)

"But what 'borking' really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection."

Says Linda Greenhouse:

In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted....

... Robert Bork couldn’t accept the legitimacy of his defeat.... Judge Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened. Because he had been nominated to fill the “swing seat” vacated by Justice Lewis F. Powell Jr., a moderate conservative whose retirement left nearly every issue of constitutional moment hanging in the balance, his nomination became a public referendum on whether the court should move decisively to the right or stay basically the same. The status quo won out.

"The Supreme Court on Wednesday refused to block the Obama administration's contraception mandate from taking effect."

"Justice Sonia Sotomayor rejected a request for an emergency injunction that would have shielded employers from the mandate."

Opinion: here:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.

Robert Bork has died.

He was 85.

From the above-linked NYT obituary:

Judge Bork, a bear of a man with a scraggly red beard and untamed frizz on a balding pate who liked to eat, drink and smoke for much of his adult life, handled himself poorly in front of the [Senate Judiciary] committee and failed to give doubters confidence. As Tom Shales, the television critic for The Washington Post, wrote of his testimony: “He looked, and talked, like a man who would throw the book at you — maybe like a man who would throw the book at the whole country.”

See that's what I was just talking about: Liberals used to express abhorrence of law-and-order types.

The NYT obit refers to "the notion that the nominee was somehow unfeeling as a judge." Somehow... a notion... Where, oh, where could it come from?!

This [notion] was amplified when, asked by a sympathetic senator, Alan Simpson, Republican of Wyoming, why he wanted to serve on the Supreme Court, Judge Bork replied that it would be “an intellectual feast.”

And that was it, the worst answer ever given to any question in the history of the United States. Intellectual feast! The feast turned out to be a feeding frenzy for the liberal media. Why, they're still picking kinky reddish beard hairs out of their back molars! Burrrrp! Tasty! What a time! And no Supreme Court nominee has said one interesting thing since. Every single one has promised to be a good little judge who would never ever do anything but serve humbly and modestly deciding the cases according to the law.

You think it was interesting that John Roberts said he saw himself as an umpire, calling balls and strikes? That proves my point! I know, Clarence Thomas, "high-tech lynching," but that wasn't about doing the judicial work, so I'm excluding that from the point, which is that they all learned what not to do from Bork. Presidents learned to avoid even picking someone Borkish, so no one was allowed to look weird, speak quirkly, seem like an intellectual with ideas of his own, it would just be bland blandness served atop a steaming pile of blandness. That is: Not tasty! As a live-blogger of nomination hearings, I want to know: Where's my intellectual feast?

ADDED: When C-SPAN put its entire archive up on-line, the first thing I looked up to relive was the Bork hearings:

"That the Supreme Court is taking this up is truly exhilarating, but I’m very nervous and unnerved by the possibilities of what could come out of this."

"It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence."

First of all, if you lose in court, you could still win in Congress. But second,  you probably won't lose. In fact, I predict a win by more than a 5-4 margin.

"Again, no gay marriage orders."

"The Supreme Court on Monday released additional orders from its Friday Conference, but the list did not include any action on the ten cases dealing with the same-sex marriage issue. It now appears that those cases will be rescheduled for the Conference this Friday morning."

10 cases. They've got to resolve this, no?

"People Get Ready."

A fabulous 1965 recording by The Impressions. Don't confuse it with "Get Ready," by The Temptations, which is a completely different song. Some people even confuse The Impressions and The Temptations. "Get Ready," from 1966, was written by Smokey Robinson. (Here's how Smokey did it in 1979.)

As you may have noticed, I got absorbed with the word "get" earlier today. "Let's get out of here" and "You just don't get it, do you?" are 2 famously recurrent lines in movies. In the comments, I was saying:

"Get" — the word in both cliche lines — is a funny word. I've noticed that professional writers -- e.g. lawyers -- will replace the word "get" whenever they can (with seemingly more proper words like "obtain" and "acquire" and "depart" or "arrive"). It's like it's not a regular word. It's so useful we shouldn't use it.

And:

"You just don't get it" is a fascinating phrase. It was huge during the Clarence Thomas hearings. Do you remember? It's used to exert psychological pressure. You're trying to persuade someone that a particular viewpoint is correct, and you're jumping to this level of disgust and disbelief, essentially telling the person that they are dumb and isolated from all the people who already understand. It's not just that you don't agree with me already, you're some kind of outcast.

St. Croix said avoiding the word "get" is "a class thing," and professionals who avoid it are trying to sound "high class," trying "to impress." That made me do a little search to see whether the Supreme Court suppresses the word "get," and found it in only one third of the cases in the past year. Often it was a quote, like "Have you ever tried to get cow s*** out of a Prada purse?" (which is a cute low/high mix). Justice Scalia began a dissenting opinion with: "Let me get this straight..." (which might be taken as a deliberate working-class affectation). I'm seeing the word used in colloquial phrases like "get around," "get it backwards," and "get it right." Following natural speech patterns, "get" would appear much more frequently, so I say there's active suppression.

I ran across the famous Oliver Wendell Holmes Jr. sentence about free speech and the marketplace of ideas:

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Imagine what the standard present-day legal editor would do to that sentence: the best test of truth is the power of the thought to gain acceptance in the competition of the market. (The editor would also try to purge the passive voice by fiddling around with the subject — maybe it should be "competition" — toying with the notion of making "test" the verb, and fretting over whether "test" and "market" amount to a mixed metaphor.)

Lawyers and judges just don't get that "get" is a fine word that shouldn't be replaced by boring longer words. When it comes up naturally, as you'd use it in speech, that's where it belongs. It feels natural because it's won in the marketplace of people talking to each other over the centuries, carrying out their affairs in real time. "Got" is true.

As I said, I got — got! — absorbed in the word "get" today, and I got — got! — interested in figuring what's the best song with the word "get." A marketplace of "get" songs. "People Get Ready" won. (Look at how many cover versions there are!) Other contenders — in addition to the above-mentioned "Get Ready" — are: "I'll Get You"/"Get Back"/"Getting Better"/"Got to Get You Into My Life" (The Beatles), "Get It While You Can" (Janis Joplin), "Get Off of My Cloud" (The Rolling Stones), "Get on the Floor" (Michael Jackson), "I Get Around" (The Beach Boys); "Can I Get a Witness" (Marvin Gaye), "We Gotta Get Out of This Place" (The Animals).... That's just stuff easily picked from my 1960s-leaning iPod.

My point is: What a hard, sharp word! Use it.

(And: "People Get Ready" = sublime.)

Did Chief Justice John Roberts "lose his cool"?

I keep reading about this incident, invariably with the focus on the Chief's demeanor, causing me to suspect that the press is covering for the Obama administration again:

The chief justice accused the solicitor general’s office of being less than candid, by suggesting (as he read the government’s brief) that the secretary of labor in the Bush administration had changed her mind “upon further reflection” when that was not the reason at all. Instead, he corrected, it was “a new secretary now under a new administration” who had done so.

The chief justice scolded, “Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”

You can listen to the interchange here, beginning at 29:00. Roberts sharply criticizes the government's lawyer, Joseph R. Palmore, for something that — it seems rather obvious — deserves criticism. I don't hear Roberts becoming inappropriately emotional, which is what "losing his cool" means.

Now, if you want to say Roberts is a hypocrite because his writing is equally disingenuous or worse, that's another matter. It's what Andrew Cohen at The Atlantic is doing in an item titled "The Nerve of John Roberts":

A little disingenuous. This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case.

Disappeared the scope? That's Cohen's way of referring to the identification of some limit on the scope of the commerce power, so that it didn't reach a private citizen's failure to purchase insurance. Congress has power under the Commerce Clause to regulate nearly everything else, which to Cohen's eye is no power at all. Unless it's everything, it's nothing. Disappeared!

This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case.....

Yes, yes, roll out your list of Supreme Court decisions you wish went the other way. That's not in the same category as deceptively stating the facts of a case, which is simply not acceptable in lawyers' briefs. The Solicitor General's office disserved us. The Chief Justice called the lawyer on a deception and — with restraint — said he "found it a little disingenuous."

What I find disingenuous is the criticism of the Chief Justice. And after all he did for you upholding Obamacare! (He used the tax power instead of the commerce power).

But no thanks will be forthcoming. Pressure must be kept up. This is a big term for the Supreme Court — gay marriage (probably), affirmative action, the Voting Rights Act — and Roberts's vote may be required to reach what the media know are the right results. Roberts needs to know that any love for him is purely contingent. He's being watched.

"In the realm of religious faith, and in that of political belief, sharp differences arise."

"In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy."

A paragraph from an old Supreme Court case that feels like something some people who ought to know better have forgotten. Boldface added.

"The senior employee knows that one of the other employees doesn't like country music, so he tells her, 'If you don't date me, it's going to be country music all day long.'"

"Does that make the senior employee the supervisor?" — asked Chief Justice John Roberts.

Supreme Court takes Voting Rights Act case.

WaPo reports:

The justices three years ago expressed skepticism about the continued need for Section 5 of the historic act, which requires states and localities with a history of discrimination, most of them in the South, to get federal approval of any changes in their voting laws....

That is, the law applies differently to different states, based on their record with voting and race decades ago.