Wednesday's two marriage equality cases came ten years to the day after the Court, in Lawrence v. Texas, struck down Texas's anti-sodomy law. In his a) snarky b) intemperate c) scathing d) mean-spirited and/or e) prescient dissent to that decision, Justice Scalia wrote to the effect that we should mark his words: once that door had been opened, the Court's upholding same-sex marriage was sure to follow. In Scalia's dissent in United States v. Windsor, the case that struck down sections of DOMA in a decision written like Lawrence by Justice Kennedy, he is equally infuriated and makes a similar prediction: now that this shoe has fallen (Scalia seems to have run out of original metaphors to express his distaste), it is inevitable that the other one will drop and the Court will eventually rule that states cannot prohibit same-sex marriages. Let's hope his foresight is as good as it was ten years ago.
Justice Kennedy's opinion is two-pronged. One rests on principles of federalism: with exceptions only for flagrantly unconstitutional laws (Loving v. Virginia is the most famous example) laws concerning marriage have always been the province of the states. One state is free to make the age of consent 13; that marriage is valid in all 50 states. Most, but not all, states allow first cousins to marry, but once married in Kansas, two cousins also have a valid marriage in Iowa, which prohibits such unions. If Kennedy had stopped his argument there, perhaps Scalia would have been calmer. But the other prong, and the one with the most sweeping implications, is that prohibiting same-sex marriages violates equal protection and due process. Although the majority opinion is explicit that nothing in the decision requires states to allow or recognize gay marriages and although I hate to find myself agreeing with Scalia, once the basis for the argument emphasizes equal protection, it is difficult to see how prohibitions at the state level will finally be allowed to stand.
Scalia's anger is evident from the opening of his dissent: "the Court's errors . . . spring forth from the same diseased root: an exalted conception of the role of this institution in America." In the next sentence, he asserts that the Court is "eager--hungry--to tell everyone its view." This from the man who has voted the day before to thumb his nose at Congressional approval and fifty years of history of the Voting Rights Act. Among his many implicit attacks on Kennedy and his prose, Scalia attacks Kennedy's "legalistic argle-bargle." It's easy to imagine Scalia's pleasure with himself for dragging out this phrase.
I don't agree with those who have described Windsor as a baby step. It's a major step forward, and its implications for further decisions are clear. Much of course now depends on how, how quickly, and how smoothly it's implemented, and much of that depends on President Obama, who's shown no inclination to dawdle. For married residents of the twelve states (soon to be thirteen once the legal stay is lifted in California) and the District of Columbia that recognize same-sex marriages, the consequences should be immediate: access to 1,138 rights and benefits. What's less obvious is how it will affect those who live in or move to the 37 states that forbid gay marriage. Websites and political pundits on TV have expounded since Wednesday; unfortunately, they've often been assured of contradictory opinions. The example that seems to have taken hold is what if a couple legally married in New York should move to Alabama? Most experts agree that they would maintain their federal benefits. My question is what if Mohamed and I should get married in Iowa, a state that doesn't require residence for marriage, even though we both live in Kansas? Would we be entitled to federal recognition of our marriage? I hope (and think) the answer is yes, but it's not evident two days after the decision.
On a personal note, like Rachel Maddow, for many years the old radical in me didn't think this was my fight. Why should gays aspire to imitate the failed and bourgeois institution of marriage? But there are over 1100 reasons why I've changed my mind.
The Prop 8 case in California was always messy, as evidenced by the strange alignment of Justices in the 5-4 decision--Roberts, who wrote the opinion, and Scalia on one side, Alito and Thomas on the other; Sotomayor on the opposite side from Ginsburg and Kagan. But the Court's decision didn't reach to the merits of the case, only to the question of standing. And even there, the issues were blurred. The majority found that the proponents of Proposition 8 did have standing as far as the District Court, which found Prop 8 unconstitutional, but did not have standing to appeal. Thus, the opinion of the 9th Circuit Court of Appeals was vacated, leaving the essentially identical decision of the District Court as controlling. Roberts and Scalia were at least consistent in their narrow definition of what constitutes and who has standing. Although conservatives have put up some feeble opposition to the ruling (their most novel argument is that decision applies only to the two couples who brought the case and has no wider implications), once the stay of implementation which the lower courts put into place until the Supreme Court could decide the case has been lifted, LGBT Californians will become the largest population in the country to have the right to same-sex marriage.
Friday, June 28, 2013
Tuesday, June 25, 2013
Two of the four major cases that SCOTUS announces this week have now been decided. We have to wait till tomorrow to hear the decisions on DOMA and Prop 8. Neither of the two decisions we've had so far was quite what observers expected.
The first hint that the affirmative action case was going to decided in a somewhat surprising way was how long it took CNN to analyze the vote. Now, CNN has jumped to some premature, and inaccurate, analyses before, so caution was understandable. Still, when most people were expecting a 5-3 decision striking down affirmative action, a 7-1 vote with Scalia and Sotomayor and Breyer and Alito on the same side must have been initially confusing. Both sides are claiming victory in the case: for supporters of affirmative action, there is consolation in the fact that the Court did not do what had been widely anticipated: use the occasion to strike down affirmative action entirely. For opponents of affirmative action, the argument is that the Court said that the standards the University of Texas used were inadequate and the case must be returned to the lower court so that it can apply the appropriate standard of strict scrutiny. Once upon a time, the notion that race was inherently a "suspect" category and its use always entailed strict scrutiny was meant to protect racial minorities. Now, however, it works the other way around. If universities want to use geographical or economic criteria for admission, they just have to show that these promote a worthwhile goal. Ditto for legacies or athletic abilities. But if they want to include race as one factor among many, a higher standard is automatically invoked.
In Texas, roughly three quarters of university admissions go to those in the top 10% of their graduating class. Ostensibly, this is a race-blind standard, but in reality, as was admitted in the arguments from both sides, because schools remain rather severely segregated (de facto though of course not de jure) taking those top 10% achieves a degree of racial diversity--and that was always part of the intent. For the other 25%, the university must now prove that there is no other way, no race-neutral way, of achieving diversity. Although those of us who support affirmative action have a temporary victory, it seems clear that step-by-step affirmative action is being and will be dismantled by imposing increasingly stricter standards.
Today's decision on the Voting Rights Act also was a bit surprising in its approach, though not so much in what its final effects will be. Everyone assumed that the Court would focus on section V of the Act, the enforcement of "pre-clearance" for redistricting and voting requirements in certain states. Instead, the Court struck down section IV, which is the list of states and counties subject to the process, and, as Chief Justice Roberts said explicitly in his majority opinion is silent about section V. The listed areas were rational in 1966, Roberts wrote, but are so no longer. If Congress wants to rewrite section four, it has the power to do so.
For a supposedly conservative court that disdains "judicial activism," this Court has consistently showed a contempt of Congress and an eagerness to overrule its decisions. The Voting Rights Act was reauthorized in 2006 with the vote 98-0 in the Senate. But both Roberts and Justice Scalia sneered at that vote during the oral arguments, Scalia most famously in his comment about "entitlements" (here, he meant voting) and how legislators don't have the courage to take away entitlements once given. This decision is like a dare to Congress: you still have the power thanks to section five to demand pre-clearance, so go ahead and rewrite the list of states and counties that are subject to the process. That's hardly a likely scenario, as Roberts and the other four who voted with him know. So while supposedly making no holding about section five, the Court found another way of putting an end to it.
In his one paragraph concurring opinion in the affirmative action case, Justice Scalia advises that he wishes the petitioners had asked directly for the end to affirmative action so that he could have voted clearly to put an end to it once and for all. Justice Thomas writes a twenty-page concurring opinion reiterating at great length how repugnant he finds affirmative action. In the second case, Thomas writes another concurring opinion bemoaning the fact that the majority didn't strike down both sections four and five. Slowly but surely, though, the conservative faction is rewriting American history--the most pronounced judicial activism in many decades.
The first hint that the affirmative action case was going to decided in a somewhat surprising way was how long it took CNN to analyze the vote. Now, CNN has jumped to some premature, and inaccurate, analyses before, so caution was understandable. Still, when most people were expecting a 5-3 decision striking down affirmative action, a 7-1 vote with Scalia and Sotomayor and Breyer and Alito on the same side must have been initially confusing. Both sides are claiming victory in the case: for supporters of affirmative action, there is consolation in the fact that the Court did not do what had been widely anticipated: use the occasion to strike down affirmative action entirely. For opponents of affirmative action, the argument is that the Court said that the standards the University of Texas used were inadequate and the case must be returned to the lower court so that it can apply the appropriate standard of strict scrutiny. Once upon a time, the notion that race was inherently a "suspect" category and its use always entailed strict scrutiny was meant to protect racial minorities. Now, however, it works the other way around. If universities want to use geographical or economic criteria for admission, they just have to show that these promote a worthwhile goal. Ditto for legacies or athletic abilities. But if they want to include race as one factor among many, a higher standard is automatically invoked.
In Texas, roughly three quarters of university admissions go to those in the top 10% of their graduating class. Ostensibly, this is a race-blind standard, but in reality, as was admitted in the arguments from both sides, because schools remain rather severely segregated (de facto though of course not de jure) taking those top 10% achieves a degree of racial diversity--and that was always part of the intent. For the other 25%, the university must now prove that there is no other way, no race-neutral way, of achieving diversity. Although those of us who support affirmative action have a temporary victory, it seems clear that step-by-step affirmative action is being and will be dismantled by imposing increasingly stricter standards.
Today's decision on the Voting Rights Act also was a bit surprising in its approach, though not so much in what its final effects will be. Everyone assumed that the Court would focus on section V of the Act, the enforcement of "pre-clearance" for redistricting and voting requirements in certain states. Instead, the Court struck down section IV, which is the list of states and counties subject to the process, and, as Chief Justice Roberts said explicitly in his majority opinion is silent about section V. The listed areas were rational in 1966, Roberts wrote, but are so no longer. If Congress wants to rewrite section four, it has the power to do so.
For a supposedly conservative court that disdains "judicial activism," this Court has consistently showed a contempt of Congress and an eagerness to overrule its decisions. The Voting Rights Act was reauthorized in 2006 with the vote 98-0 in the Senate. But both Roberts and Justice Scalia sneered at that vote during the oral arguments, Scalia most famously in his comment about "entitlements" (here, he meant voting) and how legislators don't have the courage to take away entitlements once given. This decision is like a dare to Congress: you still have the power thanks to section five to demand pre-clearance, so go ahead and rewrite the list of states and counties that are subject to the process. That's hardly a likely scenario, as Roberts and the other four who voted with him know. So while supposedly making no holding about section five, the Court found another way of putting an end to it.
In his one paragraph concurring opinion in the affirmative action case, Justice Scalia advises that he wishes the petitioners had asked directly for the end to affirmative action so that he could have voted clearly to put an end to it once and for all. Justice Thomas writes a twenty-page concurring opinion reiterating at great length how repugnant he finds affirmative action. In the second case, Thomas writes another concurring opinion bemoaning the fact that the majority didn't strike down both sections four and five. Slowly but surely, though, the conservative faction is rewriting American history--the most pronounced judicial activism in many decades.
Saturday, June 22, 2013
Fetuses Masturbate. At least, male fetuses do. (Is that an attention-getting start?) That according to Rep. Michael Burgess from Texas. I'll let you guess which political party he belongs to. In yet another proposed bill to restrict abortions, Burgess argues that fetuses feel not only pain, but also pleasure. And one pleasure for male fetuses (females are more restrained) is to stroke between their legs. Just when you think Republicans can't find any more bizarre arguments, they manage to outdo themselves. And Rep. Burgess was a gynecologist before entering politics.
The last few days have not been good for the pro-choice side in the never-ending abortion debates. After a particularly ugly fight in the Wisconsin House, both chambers there have passed legislation, which the governor will sign, further restricting abortion rights. In my home state of Iowa, which I used to think of as gentle and moderate, Gov. Terry Branstad has signed new legislation that says that if a woman's insurance is Medicaid and she wants or needs an abortion the final decision will be made by . . . Gov. Terry Branstad. Not a physician and with no particular knowledge about any application, he will be the sole adjudicator on a case-by-case basis. In Texas, the Republican-controlled legislature announced at the beginning of the legislative session that abortion would be off the table, that they would focus on economic issues. They did, much to everyone's surprise, until the day of adjournment when Gov. Perry called a special session of the legislature to deal with only one topic: abortion. Although the special session hasn't gone as smoothly as the Republicans had hoped, the chambers will meet tomorrow (Sunday) to pass legislation which will close 80% of abortion facilities in the state.
The prolonged immigration battle in the Senate is almost as depressing. The bill is already full of so many obstacles and compromises that even if it passes, it's hardly an overwhelming victory. The current conventional wisdom is that even if the bill passes the Senate, it needs to pass with nearly 70 votes to get the House Republicans to go along. This week the bill in the Senate was watered down even more by adding $30 billion for yet more border security--more miles of fence, more border guards. Republicans who don't want to spend money for anything were willing to spend 3/4 of the amount of the sequester for border security--this despite the fact that immigration from Mexico has been declining and that net total immigration has fallen to zero. Even with all the changes, if the bill passes the Senate, there is no assurance that the House will go along--and chances look even slimmer after this week when Speaker Boehner couldn't even hold the Republican caucus together to pass the farm bill, which in the past has always been a non-controversial done deal.
Politics in America these days has been so depressing (climate change is barely mentioned) that I'd adapted a sort of je m'en foutisme attitude. Instead of being angered or even engaged, I felt as if je m'en fous or I don't give a damn. (Foutre is actually stronger than 'damn,' but the French use the expression so casually that 'damn' seems adequate.) I used to say that the worst thing about dying would be not knowing what was going on, how events turned out, who was who. But lately, I haven't seemed to care much: je m'en fous. It's all so bleak that what difference will it make? But then I hear stories like the ones above, and my interest and anger are revitalized. And of course this week, SCOTUS will make four major decisions. Although I'm pessimistic about both the affirmative action and voting rights decisions (will I be able to say "I don't give a damn" if they do turn out badly?), the DOMA case has more direct effects on Mohamed and me and our relationship, so in that case, I definitely do give a damn.
The last few days have not been good for the pro-choice side in the never-ending abortion debates. After a particularly ugly fight in the Wisconsin House, both chambers there have passed legislation, which the governor will sign, further restricting abortion rights. In my home state of Iowa, which I used to think of as gentle and moderate, Gov. Terry Branstad has signed new legislation that says that if a woman's insurance is Medicaid and she wants or needs an abortion the final decision will be made by . . . Gov. Terry Branstad. Not a physician and with no particular knowledge about any application, he will be the sole adjudicator on a case-by-case basis. In Texas, the Republican-controlled legislature announced at the beginning of the legislative session that abortion would be off the table, that they would focus on economic issues. They did, much to everyone's surprise, until the day of adjournment when Gov. Perry called a special session of the legislature to deal with only one topic: abortion. Although the special session hasn't gone as smoothly as the Republicans had hoped, the chambers will meet tomorrow (Sunday) to pass legislation which will close 80% of abortion facilities in the state.
The prolonged immigration battle in the Senate is almost as depressing. The bill is already full of so many obstacles and compromises that even if it passes, it's hardly an overwhelming victory. The current conventional wisdom is that even if the bill passes the Senate, it needs to pass with nearly 70 votes to get the House Republicans to go along. This week the bill in the Senate was watered down even more by adding $30 billion for yet more border security--more miles of fence, more border guards. Republicans who don't want to spend money for anything were willing to spend 3/4 of the amount of the sequester for border security--this despite the fact that immigration from Mexico has been declining and that net total immigration has fallen to zero. Even with all the changes, if the bill passes the Senate, there is no assurance that the House will go along--and chances look even slimmer after this week when Speaker Boehner couldn't even hold the Republican caucus together to pass the farm bill, which in the past has always been a non-controversial done deal.
Politics in America these days has been so depressing (climate change is barely mentioned) that I'd adapted a sort of je m'en foutisme attitude. Instead of being angered or even engaged, I felt as if je m'en fous or I don't give a damn. (Foutre is actually stronger than 'damn,' but the French use the expression so casually that 'damn' seems adequate.) I used to say that the worst thing about dying would be not knowing what was going on, how events turned out, who was who. But lately, I haven't seemed to care much: je m'en fous. It's all so bleak that what difference will it make? But then I hear stories like the ones above, and my interest and anger are revitalized. And of course this week, SCOTUS will make four major decisions. Although I'm pessimistic about both the affirmative action and voting rights decisions (will I be able to say "I don't give a damn" if they do turn out badly?), the DOMA case has more direct effects on Mohamed and me and our relationship, so in that case, I definitely do give a damn.
Wednesday, June 19, 2013
This morning isn't off to a very good start, so I'm going to skip today's installment. Here, however, are a couple of belated father's day poems:
My Papa’s Waltz
The whiskey on your
breath
Could make a small boy
dizzy;
But I hung on like
death:
Such waltzing was not easy.
We romped until the
pans
Slid from the kitchen
shelf;
My mother’s
countenance
Could not unfrown itself.
The hand that held my
wrist
Was battered on one
knuckle;
At every step you missed
My right ear scraped a buckle.
You beat time on my
head
With a palm caked hard by
dirt,
Then waltzed me off to
bed
Still clinging to your
shirt.
Those Winter Sundays
Sundays too my father got up early
And put his clothes on in the blueback cold,
then with cracked hands that ached
from labor in the weekday weather made
banked fires blaze. No one ever thanked him.
I'd wake and hear the cold splintering, breaking.
When the rooms were warm, he'd call,
and slowly I would rise and dress,
fearing the chronic angers of that house,
Speaking indifferently to him,
who had driven out the cold
and polished my good shoes as well.
What did I know, what did I know
of love's austere and lonely offices?
And put his clothes on in the blueback cold,
then with cracked hands that ached
from labor in the weekday weather made
banked fires blaze. No one ever thanked him.
I'd wake and hear the cold splintering, breaking.
When the rooms were warm, he'd call,
and slowly I would rise and dress,
fearing the chronic angers of that house,
Speaking indifferently to him,
who had driven out the cold
and polished my good shoes as well.
What did I know, what did I know
of love's austere and lonely offices?
--Robert Hayden
Sunday, June 16, 2013
My experiment with a new chemo schedule was short-lived. Having taken the three pills every morning for two years, I decided to shift to taking them before bed, hoping that I could lessen the number or depth of crashes during the day. But once I made the shift, I slept as much as, if not more than, I had before. There were no changes in my stomach problems. We usually eat dinner between 8 and 9 p.m., and I have to wait two to three hours after eating before taking the chemo. That timing wasn't in itself a problem: I usually go to bed at 11:11 p.m. No, that's not some weird superstition. If I watch the monologue and the first half of the first interview on Letterman or Leno, I find myself being tucked in at 11:11 (and falling asleep by 11:12). But perhaps because I couldn't eat after 9, almost every evening, I found myself with a hankering for a later snack--some fresh watermelon, a Dove bar, something. So with no real benefits evident from the change, I'm back on my old schedule.
My theory is that if I accomplish one thing a day (beyond sitting on my tuches watching TV or reading), the day has been a success. Yesterday, both Mohamed and I got much needed haircuts. Success on Saturday! Earlier in the week, I spent 90 minutes at the DMV waiting to get my driver's license renewed. I was uncharacteristically a little paranoid about this. Kris Kobach, the Kansas Secretary of State, is busy around the country working to reduce voter turnout. He was instrumental in writing the very restrictive immigration laws in Alabama and Arizona, and his current project is disenfranchising indigenous peoples in Alaska. Kansas passed a voter ID law that went into effect with the last election. Since I let my passport expire, the driver's license would be my sole government-issued photo ID. Now, according to the renewal card I received in the mail, I needed to bring proof of residence to renew the license. The card suggested a utility bill, but I don't get utility bills anymore; I went paperless a long time ago. I had just gotten a property tax bill, so I brought that, though I realized that the fact that I paid taxes on a certain property doesn't necessarily mean that I live there. My unease was groundless. After the hour and a half wait, the renewal took about five minutes, and the examiner didn't ask for any documents other than my old license. My photo even turned out decently, so another day, another success.
Visitors came this week bearing gifts: a homemade pumpkin pie, a selection of muffins, and a boughten coconut cream pie. I don't understand why spell check doesn't recognize the perfectly good word 'boughten.' I have support on my side in the last lines of Robert Frost's extremely dark poem "Provide, Provide":
The witch that came (the withered hag)
To wash the steps with pail and rag
Was once the beauty Abishag,
The picture pride of Hollywood.
Too many fall from great and good
For you to doubt the likelihood.
Die early and avoid the fate.
Or if predestined to die late,
Make up your mind to die in state.
Make the whole stock exchange your own!
If need be occupy a throne,
Where nobody can call you crone.
Some have relied on what they knew,
Others on being simply true.
What worked for them might work for you.
No memory of having starred
Atones for later disregard
Or keeps the end from being hard.
Better to go down dignified
With boughten friendship at your side
Than none at all. Provide, provide!
The bleakness of the last tercet is only reinforced by Frost's use of the regionalism, probably unfamiliar to most of his readers, the colloquial and discordant 'boughten.'
My theory is that if I accomplish one thing a day (beyond sitting on my tuches watching TV or reading), the day has been a success. Yesterday, both Mohamed and I got much needed haircuts. Success on Saturday! Earlier in the week, I spent 90 minutes at the DMV waiting to get my driver's license renewed. I was uncharacteristically a little paranoid about this. Kris Kobach, the Kansas Secretary of State, is busy around the country working to reduce voter turnout. He was instrumental in writing the very restrictive immigration laws in Alabama and Arizona, and his current project is disenfranchising indigenous peoples in Alaska. Kansas passed a voter ID law that went into effect with the last election. Since I let my passport expire, the driver's license would be my sole government-issued photo ID. Now, according to the renewal card I received in the mail, I needed to bring proof of residence to renew the license. The card suggested a utility bill, but I don't get utility bills anymore; I went paperless a long time ago. I had just gotten a property tax bill, so I brought that, though I realized that the fact that I paid taxes on a certain property doesn't necessarily mean that I live there. My unease was groundless. After the hour and a half wait, the renewal took about five minutes, and the examiner didn't ask for any documents other than my old license. My photo even turned out decently, so another day, another success.
Visitors came this week bearing gifts: a homemade pumpkin pie, a selection of muffins, and a boughten coconut cream pie. I don't understand why spell check doesn't recognize the perfectly good word 'boughten.' I have support on my side in the last lines of Robert Frost's extremely dark poem "Provide, Provide":
The witch that came (the withered hag)
To wash the steps with pail and rag
Was once the beauty Abishag,
The picture pride of Hollywood.
Too many fall from great and good
For you to doubt the likelihood.
Die early and avoid the fate.
Or if predestined to die late,
Make up your mind to die in state.
Make the whole stock exchange your own!
If need be occupy a throne,
Where nobody can call you crone.
Some have relied on what they knew,
Others on being simply true.
What worked for them might work for you.
No memory of having starred
Atones for later disregard
Or keeps the end from being hard.
Better to go down dignified
With boughten friendship at your side
Than none at all. Provide, provide!
The bleakness of the last tercet is only reinforced by Frost's use of the regionalism, probably unfamiliar to most of his readers, the colloquial and discordant 'boughten.'
Thursday, June 13, 2013
My two new words of the week: meta-data (metadata?) and yottabyte. Since the news this week has been dominated by the NSA's accumulation of data, these words are suddenly everywhere. Meta-data in this case seems to mean phone numbers called and duration of calls (sounds like data to me) rather than the actual content of the calls. The NSA has assured us that the 97 trillion records from March, for example, are only meta-data; there's no listening in on the actual calls. The haystack in which they're trying to find a needle of significance (to use this week's metaphor) is now so huge and requires such enormous new buildings in Utah that the data to be sifted are now described in yottabytes (each one a million billion gigabytes).
Although the story is everywhere on the news, most Americans seem rather indifferent to the obvious intrusion on our privacy. One response is often, "If it helps prevent a terrorist attack, the program is fine with me." Another is that few of us have any expectation of privacy on phones or the Net. Most of us assume that once we're on a network, there's no way to control who has access to what we say or send. And then this "revelation" isn't exactly new. As early as 1979, the Supreme Court ruled that the history of our telephone calls belongs not to us, but to the telephone companies. We had the same revelation and discussion about Internet snooping in 2006. Libertarian Republicans are outraged, but the mainstream of the GOP supports the program. Many Democrats who were upset when Bush was in charge of this are less so now that it's Obama. It seems unlikely that there will be enough serious and sustained objections to significantly modify--to say nothing of ending--the program.
Generally ignored in the discussion of privacy over the last two weeks was the important Supreme Court decision in Maryland v. King. By a 5-4 majority, the Court decided that police could do "suspicionless" DNA swabs on anyone stopped for a potential offense. The majority decision argued that DNA swabs were basically like and no more intrusive than fingerprinting. That decision was written by Justice Kennedy, joined by three of the other conservatives (minus Scalia) and one of the liberals, Justice Breyer. The scathing dissent was written by Justice Scalia for himself and three of the four liberals (Ginsburg, Sotomayor, and Kagan). These are indeed strange bedfellows on both sides. Although Kennedy and Scalia often vote on the same side, their relationship seems to be the least cordial on the Court. Kennedy is known for writing flowery, sweeping opinions; Scalia is known for mocking them. Although dissenting opinions are rarely read aloud when the decision is rendered, Scalia read his in this case, enjoying, it would seem, the chance to enhance his sarcasm, as in his opening remark that the state of Maryland's argument justifying the swabs "taxes the credulity of the credulous." In the same paragraph he argues that the comparison to fingerprinting seems "apt" only to those who know no more about the procedures that the majority opinion has chosen to tell them.
Relying on his Originalist theory, Scalia compares the taking of DNA swabs for no probable cause or reasonable suspicion to the despised General Warrants used by the British before the Revolution. The Fourth Amendment specifically prohibited, except in very narrowly defined circumstances, suspicionless searches. In the case of King, as Scalia points out, he was stopped for one reason, a swab was taken, nearly four months elapsed before the results were matched with a completely unrelated crime from years earlier. Scalia spends a large part of his dissent enumerating the differences (complete with a chart) between suspicionless DNA swabs and other types of information.
Scalia is also particularly irritated by Kennedy's assertion that swabs will be taken only from those originally stopped for "serious offenses," a term he finds hopelessly vague--"a senseless distinction." "Make no mistake about it," Scalia writes, "as an entirely predictable consequences of today's decision," your DNA will be taken and entered into a national data base, no matter the nature of the crime or whether the arrest resulted in conviction or not. True, he writes, we might solve more crimes this way, but "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."
A question and a reminder: As the Court's term comes to its end and a number of important decisions (including marriage equality) are about to be announced, do some recent votes (Roberts for the Affordable Cart Act, Breyer to the right and Scalia to the left in this case) indicate potential fissures in the prior predictability of the Court? Probably not, but it's interesting to think about.
Despite the power of the dissenting opinion in Maryland v. King, it's important to remember that it was the dissenting opinion. According to the majority, whenever one is stopped by the police, a DNA swab is permissible without any charges, any probable cause, any reasonable suspicion. That may have been the most important and serious violation of our privacy rights while our attention was focused elsewhere.
Although the story is everywhere on the news, most Americans seem rather indifferent to the obvious intrusion on our privacy. One response is often, "If it helps prevent a terrorist attack, the program is fine with me." Another is that few of us have any expectation of privacy on phones or the Net. Most of us assume that once we're on a network, there's no way to control who has access to what we say or send. And then this "revelation" isn't exactly new. As early as 1979, the Supreme Court ruled that the history of our telephone calls belongs not to us, but to the telephone companies. We had the same revelation and discussion about Internet snooping in 2006. Libertarian Republicans are outraged, but the mainstream of the GOP supports the program. Many Democrats who were upset when Bush was in charge of this are less so now that it's Obama. It seems unlikely that there will be enough serious and sustained objections to significantly modify--to say nothing of ending--the program.
Generally ignored in the discussion of privacy over the last two weeks was the important Supreme Court decision in Maryland v. King. By a 5-4 majority, the Court decided that police could do "suspicionless" DNA swabs on anyone stopped for a potential offense. The majority decision argued that DNA swabs were basically like and no more intrusive than fingerprinting. That decision was written by Justice Kennedy, joined by three of the other conservatives (minus Scalia) and one of the liberals, Justice Breyer. The scathing dissent was written by Justice Scalia for himself and three of the four liberals (Ginsburg, Sotomayor, and Kagan). These are indeed strange bedfellows on both sides. Although Kennedy and Scalia often vote on the same side, their relationship seems to be the least cordial on the Court. Kennedy is known for writing flowery, sweeping opinions; Scalia is known for mocking them. Although dissenting opinions are rarely read aloud when the decision is rendered, Scalia read his in this case, enjoying, it would seem, the chance to enhance his sarcasm, as in his opening remark that the state of Maryland's argument justifying the swabs "taxes the credulity of the credulous." In the same paragraph he argues that the comparison to fingerprinting seems "apt" only to those who know no more about the procedures that the majority opinion has chosen to tell them.
Relying on his Originalist theory, Scalia compares the taking of DNA swabs for no probable cause or reasonable suspicion to the despised General Warrants used by the British before the Revolution. The Fourth Amendment specifically prohibited, except in very narrowly defined circumstances, suspicionless searches. In the case of King, as Scalia points out, he was stopped for one reason, a swab was taken, nearly four months elapsed before the results were matched with a completely unrelated crime from years earlier. Scalia spends a large part of his dissent enumerating the differences (complete with a chart) between suspicionless DNA swabs and other types of information.
Scalia is also particularly irritated by Kennedy's assertion that swabs will be taken only from those originally stopped for "serious offenses," a term he finds hopelessly vague--"a senseless distinction." "Make no mistake about it," Scalia writes, "as an entirely predictable consequences of today's decision," your DNA will be taken and entered into a national data base, no matter the nature of the crime or whether the arrest resulted in conviction or not. True, he writes, we might solve more crimes this way, but "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."
A question and a reminder: As the Court's term comes to its end and a number of important decisions (including marriage equality) are about to be announced, do some recent votes (Roberts for the Affordable Cart Act, Breyer to the right and Scalia to the left in this case) indicate potential fissures in the prior predictability of the Court? Probably not, but it's interesting to think about.
Despite the power of the dissenting opinion in Maryland v. King, it's important to remember that it was the dissenting opinion. According to the majority, whenever one is stopped by the police, a DNA swab is permissible without any charges, any probable cause, any reasonable suspicion. That may have been the most important and serious violation of our privacy rights while our attention was focused elsewhere.
Monday, June 10, 2013
One good day, one miserable one this weekend. Saturday was good, culminating in a superb dinner at Topeka's best restaurant. My old colleague and friend Virginia took the recently retired Mo (as in Maureen), our British Shakespeare teacher for the last dozen years, her husband Dick, my Mo, and me out for a very early birthday dinner. Mo and I have birthdays in mid-July, but she and Dick are leaving tomorrow for a summer in Seattle, so the celebration was five weeks early. It's been a long time since Topeka had a first-rate restaurant. During the 1980s, we had an authentic French restaurant, La Picardie, but it closed nearly thirty years ago. The Rowhouse is a very special restaurant: it's open only four nights a week; its menu changes every week; many of the herbs and greens are grown in its own garden; and they have a tasting menu of small portions of all dishes on the small menu. The dinner was as good as always, and the company lively (my favorite adjective).
After driving home in a pouring rain (in our newly washed car), I discovered that Vittoria de Sica's classic neo-realist movie "Two Women," starring Sophia Loren, was on TMC. Loren gives a brilliant performance as a tough store owner, fleeing Rome in the confused last days of WWII and trying to protect her teenage daughter. It's a gritty portrayal of wartime conditions and of the day-to-day struggle of village people, who have no particular stake in the war except finding food and staying alive. Loren succeeds in survival and protection for ninety of the hundred minutes of the film. But in the last few minutes, having taken refuge in a nearly destroyed church, mother and daughter are raped by retreating Moroccan (fighting on the side of the Italians) soldiers.
Starting at about 3 a.m. Sunday, however, the happy evening went south and stayed there for the next 36 hours. After an often interrupted sleep, I could hardly wake up yesterday morning, sleeping till after 9 a.m., the latest I can remember in many years. Many Imodiums later, we went out for a late lunch with a friend. But halfway through the lunch, the black curtain descended: I couldn't eat and could barely stay awake. All I wanted was to be in bed, and once there I slept the afternoon away--three hours of oblivion. I managed to stay awake for the rest of the evening, but between cramps and bathroom runs (so to speak), I couldn't eat and sat in my corner of the couch, quiet except for frequent groaning noises. After two years of these, Mohamed remains patient. I'm not sure I'd be so gracious.
For the past two years, I've been on the same chemo schedule. Every day with my morning batch of pills, I take the chemo. Then I wait for an hour before I can eat anything. And then I know that three to four hours later, I'm going to crash, a preliminary to the longer afternoon sleep. After thinking about it many times, but letting inertia keep me on the same schedule, I've decided to shift and take the chemo before bed. I have to wait at least two hours after eating before taking it, but perhaps the sudden needs for sleep will actually occur during the night. If so, I'm going to feel pretty silly that I've spent two years following the same routine.
After driving home in a pouring rain (in our newly washed car), I discovered that Vittoria de Sica's classic neo-realist movie "Two Women," starring Sophia Loren, was on TMC. Loren gives a brilliant performance as a tough store owner, fleeing Rome in the confused last days of WWII and trying to protect her teenage daughter. It's a gritty portrayal of wartime conditions and of the day-to-day struggle of village people, who have no particular stake in the war except finding food and staying alive. Loren succeeds in survival and protection for ninety of the hundred minutes of the film. But in the last few minutes, having taken refuge in a nearly destroyed church, mother and daughter are raped by retreating Moroccan (fighting on the side of the Italians) soldiers.
Starting at about 3 a.m. Sunday, however, the happy evening went south and stayed there for the next 36 hours. After an often interrupted sleep, I could hardly wake up yesterday morning, sleeping till after 9 a.m., the latest I can remember in many years. Many Imodiums later, we went out for a late lunch with a friend. But halfway through the lunch, the black curtain descended: I couldn't eat and could barely stay awake. All I wanted was to be in bed, and once there I slept the afternoon away--three hours of oblivion. I managed to stay awake for the rest of the evening, but between cramps and bathroom runs (so to speak), I couldn't eat and sat in my corner of the couch, quiet except for frequent groaning noises. After two years of these, Mohamed remains patient. I'm not sure I'd be so gracious.
For the past two years, I've been on the same chemo schedule. Every day with my morning batch of pills, I take the chemo. Then I wait for an hour before I can eat anything. And then I know that three to four hours later, I'm going to crash, a preliminary to the longer afternoon sleep. After thinking about it many times, but letting inertia keep me on the same schedule, I've decided to shift and take the chemo before bed. I have to wait at least two hours after eating before taking it, but perhaps the sudden needs for sleep will actually occur during the night. If so, I'm going to feel pretty silly that I've spent two years following the same routine.
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