Oops, should have posted here. SSM nationwide.
And another very measured dissent from Scalia. "I write separately to call attention to this Court's threat to American democracy." Maybe he'll stroke out finally.
Is it time to sell one's posture of elegant disillusion with Obama and buy renewed enthusiasm? Asking for a friend.
Yay. And, skimming the opinion, there's a lot of Kennedy are-bargle bullshit, but at some point he does bring in the Equal Protection Clause and give ammunition to broader constitutional arguments about gay-lesbian equality, so it's slightly better than I'd anticipated.
Unfortunately, I have to spend the weekend with a truly annoying lawyer character who also played a legit and important role in bringing this result about, and will now be even more smug and unbearable. Feel my pain, gays who have finally been acknowledged by the Supreme Court after years of horror as possessing the fundamental right to marry.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
That is sort of an amazing paragraph.
Maybe he'll stroke out finally.
"Held: The Fourteenth Amendment requires Justice Scalia to sit there and accept it while oiled-up leatherboys gyrate five feet away from him and tongue-kiss."
"Held: The Fourteenth Amendment requires Justice Scalia to sit there and accept it while oiled-up leatherboys gyrate five feet away from him and tongue-kiss."
"Also, Nino has to eat some Olive Garden and say how delicious it is because he loves the plain people of America so much."
As a result, the Court invali-dates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthagin- ians and the Aztecs. Just who do we think we are?
These dissents are really fun.
6: There are a lot of people who deserve more credit for this than Obama.
I won't forgive him for TPP, and decent justices are a Democratic Presidential minimum.
Good session for liberals and Democrats. And LGBTQ.
6. No it is not, for three reasons: TPP, TTIP and TiSA.
Looks like they took a nice chunk out of federal mandatory minimums in the other case today, too.
6: I don't think you can really quite chalk this one up to Obama. But yes.
This on the other hand is very good news brought to you by a lot of hard groundwork and five moderately sane lawyers.
So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
Secret truth -- Roberts' dissent is much more persuasive as a legal argument than the majority opinion EVEN THOUGH he gets the result wrong; this is because both opinions duck the equal protection issue, and because Kennedy's opinion sucks. On the other hand, except for lawyers, who gives a shit.
Plus a small contribution of judicial good sense from overseas.
Just who do we think we are?
In the middle of his dissent, Scalia broke into song.
TPP, TTIP and TiSA.
I'm an acronym dummy.
Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count).
Scalia: unwilling to go beyond strict textualism in order to advance anyone's rights, but perfectly willing to opine on who is an who is not a "genuine" Westerner.
I'm sure they'll still fuck us on Monday over redistricting. And EPA regulation of power plant pollution.
12: "Bushman" is an ethnic slur. "San" is used now. Britannica, on marriage among the San:
The elementary family within the band is composed of husband, wife, and their dependent children, but it is occasionally enlarged by polygynous marriage.
Other writers note that first marriages among the San are generally arranged by the parents, and happen when the bride is around 14.
The Han Chinese, of course, historically accepted both concubinage and polygyny.
Scalia's not very educated.
24 last is the real sleeper nightmare, and I'm not optimistic. Still, a few very good days.
24: Do they schedule bad news, or very controversial decisions, last?
Not sure those two are so important to me, they were very marginal and faltering steps in the massive problem areas. Feed my outrage.
I regret my lack of knowledge of Carthaginian and Aztec marriage customs but I am prepared to believe they were a bit more diverse than Scalia thinks.
29: He even mentions that the institution has greatly changed, away from arranged marriage. And we invalidated restrictions preventing interracial marriage. To act like all marriage everywhere looks like a specific kind of western Christian marriage is lolworthy.
My favorite Associate Justice Scalia passage so far:
"The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)He really does seem to feel constrained by his own marriage: "I even take the position that sexual orgies eliminate social tensions and ought to be encouraged."
Kieran Healy has my vote for best twitter reaction, with "The intrinsic dignity of bourgeois companionate marriage endorsed by the highest court in the land. What a triumphant day for conservatives."
9: People accepting of gay marriage as a fundamental right are all alike, every anti-gay bigot is bigoted in their own way. (Except Clarence Thomas who is apparently an equal opportunity bigot.)
28 -- My guess is that the more controversial cases also get rewritten more, and so end up last, even if they weren't argued later in the term. The death penalty case on for Monday was argued late; redistricting not so late. Texas doesn't have a commission, so you don't have a dog in that one. For those of us who have them, though, it's a big deal. (I think it was especially important in California, right?)
9 explains why the first article I saw about this (Vox IIRC) said that there were five justices in the majority, and five dissenting.
It's odd that Alito didn't join the (IMO very good as a judicial opinion, because Kennedy gave him an easy target, not because he's right on the merits) Roberts' dissent. Who knows what's going on there.
32.last makes me kind of not want to kick Scalia in the balls. I would not, however, want to attend an orgy with him.
22. Trans-Pacific Partnership, Transatlantic Trade and Investment Partnership, Trade in Services Agreement. Put them all together and wave goodbye to democratic government as we know it. Thanks, Obama.
There's something really interesting about the difference between electoral politics and the judiciary, and how each interacts with the right and left. It really does seem to be much harder for the right to find reliably loyal judges than it is for the left; unless they pick people who are really conspicuously out there politically, Republican-appointed judges can't be trusted not to make decisions that are good for the left. I can't think of a Democratic appointed justice (or, offhand, lower appellate judge) that's turned into a problem on political issues.
Elected politics, I have exactly the reverse stereotype. Our elected officials seems to be much more willing to sell us out than theirs are. Part of it has to be just campaign contributions, but I wonder if there's anything else to it.
I swear, Kennedy's finale is such Twuue Wuv. So mockable. I would have loved to have read Ginsburg's version.
I swear, Kennedy's finale is such Twuue Wuv. So mockable. I would have loved to have read Ginsburg's version.
Republican-appointed judges can't be trusted not to make decisions that are good for the left.
This is because the right has been more prone to take political positions that are indefensible from a legal standpoint.
Yeah, my sense as a non-lawyer was that King v. Burwell was a shuddering embarrassment as a legal argument.
That might be it -- that the right asks their judges to go out on limbs for them in a way the left doesn't. I was actually trying to think of a case where the outcome I wanted politically didn't seem to me to fly at all legally, so where I'd want (if I were a bad person) a leftist judge to do something legally screwy, and nothing came to mind.
Scalia's orgies no doubt would include a blessing from the late Father Maciel. As for the Carthaginians, tell Nino to read Salammbo and check for the historical basis of the sacrifice episode. He's reached the point where he'd do better to let Thomas ghostwrite his opinions.
40 The sample size is so small, so the impact of a Brennan, a Souter, or a Kennedy becomes pretty big. And I guess it's true that the vetting process really didn't capture where these guys were going to end up going.
Maybe White going the other way?
44: Reminds me of the Onion headline Area Man Passionate Defender of What He Imagines Constitution To Be"
I think it really is part of the problem with the populist right and the law that they have a very clear and incorrect notion of what the founders intended, what the law says, and how it's traditionally been interpreted. They look backwards to a Golden Age that never existed, so it's hardly surprising they get it wrong on the law, too.
40: the direction of compromise, from both sides, is almost always what's acceptable to mainstream business and security state opinion, rather than to ideology. It just so happens right now that a lot of movement Conservative stuff, which can't get a hearing in the Senate, is showing up in the courts.
45 It's exactly the kind of cute gotcha that law students and law professors just love to entertain, and which courts are not usually going to go for. Except, as in the case of the DC Circuit in Halbig, the politics is just overwhelming and the judges don't mind intellectual dishonesty.
I think the redistricting decision ought to go our way -- that if you think about what the drafters of the US constitution were trying to do, the idea that a state couldn't, by its constitution set up a commission, but instead had to use the legislature is pretty silly. But now having thought about this issue for more than 10 minutes, I'm realizing I don't have a dog in it either. Obviously, the Supreme Court can't impact how state legislative districts are defined in this case, and since we don't have congressional districts, there's no negative impact here. Probably still bad for California, though. Or?
White does come to mind, but 50 gets it basically right. Or, another way of putting it is the demographic information about Supreme Court justices that Scalia includes in his dissent and urple quotes above.
I thought of White too, but the kind of issues before the court in the seventies weren't on the horizon in the early sixties.
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Aw, our intranet has a big rainbow flag header. Assuming it's on orders from the top, nice gesture, Eric.
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40: Multiply pwned, but Whizzer White was appointed by President Kennedy but was generally counted as a conservative vote back in the day. On the wrong side of Roe v Wade, and Bowers v Hardwick (author), and the death penalty. Also was extremely anti-press in first amendment cases. Allegedly he hated newspapers because he was covered as a celebrity when he won the Heisman Trophy and played professional football. Also allegedly he was appointed because he had helped future President Kennedy avoid a court martial or something like that when was in the JAG Corps during World War II.
I was actually trying to think of a case where the outcome I wanted politically didn't seem to me to fly at all legally, so where I'd want (if I were a bad person) a leftist judge to do something legally screwy, and nothing came to mind.
The liberal establishment prunes out that sort of cause, no? A California state supreme court justice was removed by voters in the 1980's for allegedly doing motivated reasoning to avoid applying the death penalty, which she was very publicly against.
Thinking a little more about the redistricting case, using King v. Burwell proponent logic, I get the following:
1.. US constitution requires that only people representing districts chosen by the state legislature are eligible for Congress.
2. Arizona constitution prohibits legislature from creating congressional districts.
so
3. Arizona's congressional delegation must be sent home, not to return until the Arizona constitution is amended, new districts are drawn, and new elections held.
Any bets on whether Mr Justice Literal votes for this?
It really does seem to be much harder for the right to find reliably loyal judges than it is for the left
I think two things are going on here. The first is 44/46: with the (not insignificant!) exception of gay rights, constitutionally speaking, the left has been playing pure defense over the last generation. (Mark Gr/aber argues this here.) So, yeah, you've got a lot more attempts to play the Moops card.
And the second is that Scalia is quite right about one thing: the Supreme Court (and the judiciary more broadly, and the set of elite attorneys from which they're drawn), is strikingly, staggeringly unrepresentative. They're all exemplars of hyper-meritocratic winners, who've been educated and groomed in the key institutions of secular cosmopolitanism (universities, multinational law firms, government service). And so while the FedSoc bar is reliably conservative, it's FedSoc conservatism, not Family Research Council conservatism, and homophobia really isn't part of the former. (The flip-side of this is that even left-wing elite lawyers will also be a lot more neoliberal than other left-wing groupings.)
And with Kennedy, it's that he was a friend of Reagan's who was a fallback option after Bork -- a doctrinaire, frothing Federalist type -- was rejected. Brennan was appointed by Eisenhower as a means of pandering to Irish Catholics, although they also misread his politics rather than intentionally appointing a liberal.
If you want to see more lockstop conservatives on the bench, look at the Republican appointees on the DC Court of Appeals.
Another thing is that the bar as a whole leans decidedly to the left, so that conservatives are drawing from a smaller pool. I actually don't think this is a factor here, but just wanted to throw it out there. You might think that would mean conservatives would have a harder time finding ideal candidates--I actually don't think that's right; I think the pool is still plenty big enough relative to the number of positions. Moreover, the relevant pool is "elite lawyers", and the numbers are probably a *lot* more even there, because elite lawyers are politically reproduced: as a first cut, the number of super-duper-elite lawyers produced each year equals the number of clerks, and left/right justices always hire left/right clerks (yes yes I know there are exceptions, that's why I said 'first cut').
(The flip-side of this is that even left-wing elite lawyers will also be a lot more neoliberal than other left-wing groupings.)
My left-wing elite lawyer friend is constantly freaking out at any idea that any free trade agreement is bad for anybody.
Basically, left-wing elite people tend to be libertarians, and right-wing elite people also tend to be libertarians.
44/46/50 are right. Same reason that thing in the Times the other day suggesting that the Roberts court is as liberal as the Warren court, measured by number of decisions that broke liberal or conservative, was such a completely misleading crock.
Justices often had more diverse backgrounds in the past, for sure. Just as interesting to me is that we now have a president from that same elite pool, and may be about to get another one.
It really does seem to be much harder for the right to find reliably loyal judges than it is for the left
I guess but... this was a 5-4 decision. And yesterday's Obamacare decision, which was based entirely on a stupid "gotcha" argument that most legal scholars initially laughed at and that, as CC says, courts are not usually going to go for, was only 6-3.
Loving v. Virginia was 9-0. (Unanimous.) Brown v. Board was 9-0. (Unanimous.)
65: Nowadays, over 22% of justices are Roman Catholic Italian-Americans born in Trenton.
Basically, left-wing elite people tend to be libertarians, and right-wing elite people also tend to be libertarians.
I don't think that's right. They are perfectly willing to bolster public institutions and regulations that protect the market power of big businesses.
The problem with 69 is it makes things like Boehner's fight with his own party over the debt ceiling unintelligible. There really is a Libertarian-to-Corporatist range of interests in American conservatism. Just as there is a Social Democratic-to-Neoliberal range in American liberalism.
Oh yeah, in 69 I valued glibness over accuracy.
For some of the reasons above, I for one would have loved to have seen Harriet Miers on the Court rather thsn Alito. And that was part of what fueled the massive movement Conservative revolt against her. (But of course there were many "legitimate" concerns as well, and in fact given her prior associations she would undoubtedly have been a reliable corporatist vote, but probably not as reliable of a bigot as Alito.)
71, performing as well describing Libertarianism, then.
72: I of course would have preferred to see neither of them ...
59.2 Niggle: there is a DC Court of Appeals, and it's quite a different place from the DC Circuit. I know you meant the latter, and you're absolutely right. Indeed, grooming reliable rw justices is precisely why those judges were appointed to that court.
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Also aw, my kind-of rednecky ex-Marine niece has a FB post happy about the marriage equality decision, and inviting anyone who sees the post and doesn't like it to unfriend her. She remains my best niece.
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The justices are actually quite diverse if you go back to childhood. Two grew up in lower-class, single-parent, non-white, non-English speaking homes. (Thomas, Sotomayer). Two are from the middle-class (Alito, Scalia). Three are children of middle- to upper-middle-class, but not elite, lawyers (Breyer, Ginsberg, Kagan, ). Roberts is the only one from the upper class.
Class origins explain quite a lot about Supreme Court opinions, as demonstrated by the many times that Sotomayer and Thomas stand together against the others.
That should be "to unfriend her and then go fuck themselves".
I completely forgot that Thomas is from a Gullah-speaking family.
Except Clarence Thomas who is apparently an equal opportunity bigot
You think he only got to be a bigot because of affirmative action programs? Racist.
I believe that is actually Thomas' explanation.
ex-Marine
Unless she was dishonorably discharged she might bristle at this phrase. My understanding is that "former Marine" is strongly preferred.
If you want to be extra-PC, it's "formerly enlisted Marine".
Oh, whoops. She only lasted a year or so before they broke her hip badly enough that they couldn't fix her up, but she's still Marine-identified enough that she'd probably be sensitive to that. I'll remember the polite terminology.
Shorter Scalia: Take my colleagues ... Please!
as demonstrated by the many times that Sotomayer and Thomas stand together against the others
I can't think of any cases in which this was true, and on a quick look over the last few terms don't see any. I'm sure I'm overlooking something but I don't believe this happens with any more frequency than, say, Ginsburg and Thomas or Sotomayor and Kennedy stand together against the others.
37: Finally had a chance to read the dissents, the only reason I can imagine that Alito didn't join Roberts is that he didn't want to endorse all the stuff Roberts says about gay marriage possibly being a perfectly fine thing, but also couldn't bring himself to call attention to that by joining except as to those parts? Or didn't want to "respectfully dissent"? I don't know. He certainly doesn't give any indication of disagreeing with anything doctrinal in Roberts' dissent that would keep him from signing on.
The drawn-out whining in Roberts' and Alito's dissents about how the majority's decision (and the content of the opinion) will impermissibly hurt the feelings of bigots is really something.
55: There was a pro-footballer Supreme Court judge? Best pub quiz trivia ever!
88.last: Alito's is modt assuredly heartfelt
89: And he played for the team from Pittsburgh, which was at the time known as the Pittsburgh Pirates.
Assuming it's on orders from the top, nice gesture, Eric.
I always pronounced it AN-droo.
This is internal to my office, which Androo does not run. My boss is independently elected, not a gubernatorial appointee. I mean, I'm sure the governor is just as happy about it, but that wasn't his gesture.
88: as demonstrated by the many times that Sotomayer and Thomas stand together against the others
I thought about this for a while and then determined that unimaginative was making a joke/ being sarcastic. I considered posting a comment here pointing that out, but I decided Standpipe's blog was a more appropriate venue.
95: oh good lord of course. I'm an idiot. (In my defense, there are plenty of people who like to say "of course the Supreme Court isn't a partisan body! Look at these cases where Kagan and Alito are on the same side! Look at what good friends Scalia and Ginsburg are!" so I guess 78.last was sufficiently of that form for me to take it straight.)
88, 95: Yes, it's a joke. As far as I know, Sotomayor and Thomas have nothing whatever n common other than biography.
During the Lochner/early New Deal era, there was a curious split where the patrician judges were much more liberal than the self-made group. Possibly because the patricians were more comfortable with FDR.
As far as I know, Sotomayor and Thomas have nothing whatever n common other than biography.
That's some prime romantic comedy material right there, that is.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined
I don't get that at all- can't they just concatenate them and make it one dissent?
But then they could read an angry screed from the bench.
They could alternate word by word. It wouldn't be any less coherent that the way Scalia's been talking this week.
One of the notable things about the latest in Scalia's long series of spittle-flecked dissents it that it includes a theory of spittle-flecked dissents:
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.
To which he appends a footnote explaining that if he ever joined an opinion that began the flowery way Kennedy began his opinion in this case, he "would hide [his] head in a bag".
Oh, does "JJ." there mean "Justices"?
88: The drawn-out whining in Roberts' and Alito's dissents about how the majority's decision (and the content of the opinion) will impermissibly hurt the feelings of bigots is really something.
At this point I think this really is what the Christian social conservative moment has decided to go with in a lot of contexts. "Not treating my views as superior to other views means that people might not think I am inherently morally superior in an unquestionable way which is a foundational part of my religious beliefs and so it would count as a burden on my expression of religion." It's basically identical to what you see in things like the various anti-contraception arguments. "But this might cause inferior people to think we aren't better than them!"
101-102 - they could read it together, in harmony.
Cf. Guthrie, Arlo on why they might not want to, though.
107: That's exactly right. They sketch out these amorphous concerns about religious exercise, but they can't even come up with a half-assed a parade of horribles. The closest they can come to a concrete threat is the possibilty that religious schools will lose their tax-exempt status if they don't allow same-sex married couples to live in student housing. Good question whether that would really implicate free exercise in the first place, or whether this decision ineluctably leads to them losing status (a true equal protection holding probably would have; this one, not so much) but even if so, that's the best they can do? This is a bigger deal than the underlying bigotry? Other than that, the only other "free exercise" issue they gesture towards is that bigots will feel censored knowing that everyone thinks they're bigots, which is unfair if their bigotry stems from sincerely held religious beliefs!
Relatedly they sure look like they're trying to try to make sure this front in the culture war keeps on going as long as possible by frothing about the decision being a judicial usurpation. Obviously the winds have been changing swiftly here, now at least the holdouts can scream about democratic illegitimacy in addition to the underlying issue and maybe hold a little ground there. Notable that Roberts adverts to Ginsburg's notorious comments suggesting that Roe actually made abortion more contentious than it would have been if the Court had just sat back and waited for all 50 states swiftly protect the right to choose!
Is the general legal party line on Thomas a kind of "his judicial philosophy is... unique, but within those grounds he is a principled and intelligent jurist" view like it used to be with Scalia?*
I'm really just asking because I was reading Thomas' dissent* because people were mentioning the human dignity passage and while I don't know the legal aspects of what's going on from a moral philosophy perspective holy crap is that some arrogant-sophomore-equivocation-bullshit. I mean, the stuff on human dignity wouldn't pass muster in an intro level ethics class at all - it's like Randian style "liberals say everyone is equal but I'm taller than that guy so there hahaha!" nonsense.
This is the bit I was noticing:
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the "dignity" of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no "dignity" Clause, and even if it did, the government would be incapable of bestowing dignity.
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The majority's musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
I mean this is basically "The jury should find me innocent of the crime of murder because the law says you can't murder therefore it's impossible to murder and therefore I must not have murdered that person no matter what the physical evidence and video and many witnesses say", right?
*I am a veteran of so many arguments with law student friends of the "He's clearly an openly political hack and a jackass"/"No you don't understand how brilliant and principled he is even though I do disagree with most of what he says." type. Somehow in the last ten-ish years those arguments have disappeared and I am too mature to point this out to them, sometimes.
**But a lot of it looked to me to be something like "The people who wrote the constitution only meant 'freedom' in a negative way meaning protection from government interference so this decision preventing governments from interfering with some people's freedom to engage in certain activities but not other people's freedom to engage in them based on sexual orientation is clearly a deep betrayal of their intentions."
TL;DR: "So, Thompson is a dishonest imbecile right?"
[[ Hey, these French women are pretty good at soccer. [>
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away
I actually like this passage, except that I don't get it as an argument against gay marriage.
At most I can see it as a narrow argument against the wording of the Kennedy opinion.
The government can't bestow dignity, but surely it ought to respect it.
I'm looking at the Bill of Rights, right now. Will report founder intent.
It says no pictures but I think commenting is fine.
111: My take on Thomas is that he's honester, more consistent, and weirder than Scalia, but that the judicial philosophy he's consistent about is extremely wrong. Allowing for all that, he's not dumb at all. Gay rights hits him on the weird, rather than on the consistent but wrong judicial philosophy, side of his jurisprudence, so this opinion was more 'Ew, gross' than law.
Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs
I don't recall -- did Justice Roberts deliver a similar warning to corporations in his Citizens United opinion?
119: Did you find that secret map on the back of the Constitution that reveals the hidden passageway to the Mineshaft?
114/117: Maybe, and he's certainly a nutcase, but in the passage I was quoting he looks exactly like he's trying to pull a really obvious equivocation.
"Inviolable" only means "cannot be violated" in the prescriptive sense, not the actual descriptive sense. Of course the government could compromise or violate the human dignity of people, or could prevent other people from doing it and so promote/advance/etc. their inherent dignity. But he's literally saying " Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage",which is true enough because their dignity isn't at stake. But he's asserting this for the other side too at enough of a level of generality that, e.g., the state's decision to eliminate slavery in the United States had no effect on the dignity of the former slaves.
And it's hard for me to see how (1) an intelligent person could endorse something this openly dumb, or (2) how they could think that anyone else wouldn't see it.
111: Any time a lawyer tries to do philosophy, even a smart lawyer, I just assume you should just run screaming from the room. I'm not really in any position to judge, but I think it's a safe bet. Certainly true when they try to do history or pretty much anything besides law. And I'm really not sure what point he was trying to make in that passage, other than to deride Kennedy for all that squishy talk about dignity. Which, tbh, Kennedy's opinion would have been a lot better as a legal opinion (and a lot more useful for future cases) if he would leave that stuff our and actually articulate some doctrine for a change.
On the larger question, 117 is exactly right. Thomas is definitely not stupid, for lawyerly values of stupid/not stupid. As to dishonesty, I guess I'd say he's less dishonest than Scalia by a significant margin. He is thoroughly committed to his deeply fucked-up vision of the constitutional order, and follows it where it leads him; Scalia often blinks. Some of his dissents recently have been plain old unhinged, though (see esp. Brumfeld and Ayala last week).
I guess I'd say he's less dishonest than Scalia...
...and darker complexioned than Alito and smaller than the sun.
That wase. It was scored by France.
121: That actually doesn't sound like equivocation to me at all; if the same rhetoric were used in support of a conclusion I agreed with, I could see myself cheering along with it. He's claiming that dignity is inherent in the person, and so nothing anyone else does to you can affect it -- exactly that the US government did not compromise the dignity of Japanese-Americans by interning them during WWII, because the government had no power to do so: it could injure them, and abuse them, but couldn't take away their dignity because it was inherent in the human spirit.
In this context, the reaction it inspires is "Put a sock in it, Clarence", but I wouldn't call it equivocation.
Kennedy's opinion would have been a lot better as a legal opinion (and a lot more useful for future cases) if he would leave that stuff our and actually articulate some doctrine for a change.
This is a terrible thing for a lawyer to say, but constitutional law kind of makes me sick. It's important, and I should pay attention, and you can do it more or less honestly, but so much of it is such bullshit.
it could injure them, and abuse them, but couldn't take away their dignity
Maybe he's just a Whitney fan. And, really, who among us isn't?
No matter what they take from me / They can't take away my dignity
At least you can read the Constitution. The Magna Carta doesn't even use regular letters, let alone words.
Dignity is a hard concept to get hold of (witness, "losing it" when you piss your pants or agreeing to lick someone's boots for $5). Maybe I'll read that Michael Rosen book.
I don't think a penalty shot was the right answer there.
129- Ladies and gentlemen, Sexual Chocolate! Sexual Chocolate!
Related, I just ordered a dessert called a B Cup.
exactly that the US government did not compromise the dignity of Japanese-Americans by interning them during WWII, because the government had no power to do so: it could injure them, and abuse them, but couldn't take away their dignity because it was inherent in the human spirit
The virtuous man is happy even on the rack!
The thing is, if you think that, then you should also think that while dignity can't be degraded away, you can still degrade people (and it's a degradation precisely because of their dignity)—you can and should act in accord with their dignity, and you can and shouldn't act not in accord with it.
127 - Yeah but that's kind of what makes it equivocation. You say true things but fiddle with the exact use of the words so that the two true things don't have the entailment that you're pretending, but isolated patches can seem very reasonable. It's true that someone can't suddenly not be human (absent death) as a result of the actions of someone else. But then look what he's saying as a result of that. If you translate 'human dignity' into 'rights'* the problem is even more obvious.
Humandignityrights has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that humandignityrights cannot be taken away by the government. Slaves did not lose theirdignityrights (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose theirdignityrights because the government confined them. And those denied governmental benefits certainly do not lose theirdignityrights because the government denies them those benefits. The government cannot bestowdignity[human]rights, and it cannot take it away.
the majority goes to great lengths to assert that its decision will advance the"dignity"rights of same-sex couples
If you do something similar with "interests" (depending on whatever thing that both could be true on) you see the same phenomenon. It's true that the government can't make people lose their interests in, e.g., a decent future or whatever. They have those because human beings have those interests! But you can't then infer that because they will have interests no matter what the government does that the government can't advance their interests. (And of course it's equally worth noting that his description of their argument has to do with advancing the dignity of the relationships, not the human beings involved, which makes the whole thing even more absurd.)
*They mean something roughly equivalent on most perspectives, but 'human dignity' is what you use when you're trying to get away with something slippery because it's less obvious when you're screwing around with it.
Okay, but the 'dignity' rhetoric is Kennedy's -- Thomas didn't introduce the term to be slippery, he was reacting to bullshit rhetoric. Thomas is wrong, and in this case in a kind of evil way, but I don't think his writing here is worse or more dishonest than the court's opinion, he's just arguing for a bad position.
Sure, but that doesn't make Thomas' argument any better or more honest. It's not like you can't use the term just fine* - Kantians do it all the time. But you can absolutely use it to give absolute bullshit the veneer of profundity.
*Although from what I've read from legal analysts it's not clear that this isn't part of the appeal to Kennedy. Using clearer terms means you have to make clearer arguments too.
The corollary of that principle is that human dignity cannot be taken away by the government.
I believe that Justice Houston wrote in her dissent that no one else can either, no matter what else is taken. This was also the decision that established that children are our future, as I recall.
Oh I am so bitter at being pwned on that.
I felt for the philosophy phds during law school the whole experience was so obviously painful for them. Once I had to grapple with a big chunk of patent law in a relatively short time period and the senior attorney I was working with remarked that I'd picked up the lingo pretty quickly. I told him it was like reading Rabelais in the original 16 c French, you just have to surrender to the language and then from within it step in and out for some critical distance but always staying within touch feel and smell of the Rabelaisian world. With the important difference that if you stick with Rabelais you are rewarded with a cataclysmic battle amongst the sausages, whereas with patents ...
PEOPLE. There should seriously be more singing and dancing over the Obergefell decision in these parts. Eeyores, all of you.
The best news I heard today (after news of the decision, of course, which just made me smile broadly and laugh in delight), was that the LGBT bookstore down the street from a friend's shop was having a huge party, spilling out into the street. An all day affair! Banners and ribbons and whatnot. Singing, dammit.
Well, if laws banning interracial marriage are invalidated on grounds of substantive due process, then surely so are laws banning same sex marriage, or laws that attempt to restrictively define marriage to the same end. Am going to re-read the dissenting SC opinions to see if there's something I'm not getting.
Hey, I'm celebrating!
I'm not at Pride celebrating where I hear the atmosphere is nearly dangerously happy, but I'm still celebrating.
145.2: they really nailed the timing with this one.
it could injure them, and abuse them, but couldn't take away their dignity because it was inherent in the human spirit.
This implies that government is unable to break the human spirit. A trip to the DMV might be sufficient to rid one of that notion.
The dignity argument sounds like a lazy adaptation of "you can't legislate morality", favored argument of bigots everywhere.
145.2: Yeah, hardly bears thinking about what Downtown & Loring will be like this weekend. Off the hook, to say the absolute least.
Scott Walker's response would seem to be an act of political suicide, for any voters under 50 or so.
Which, tbh, Kennedy's opinion would have been a lot better as a legal opinion (and a lot more useful for future cases) if he would leave that stuff our and actually articulate some doctrine for a change.
The impression I get is that this is very much Kennedy's MO. Why do the other four on the 5-4 cases let him write the opinions?
I guess I probably answered my own question there, didn't I? Would he possibly take his ball away if they didn't?
151: One of the real lawyers can probably answer better, but: The practice of the Court is, the Chief Justice or the senior-most justice gets first dibs on the opinion. Since Kennedy is the senior justice in the majority, he gets first dibs, and he's got quite a legacy on these LGBT issues after Romer, Lawrence, and Windsor. So the other members of the majority are likely to defer to him, probably making suggestions as the opinion is circulated before decision day.
151: It's definitely his MO. And 153 is right: senior justice (or chief, who is sort of ex officio seniormost) on each side gets to assign the opinion, Kennedy is senior to all the Dem appointees so will always be the one assigning the opinion in these kinds of 5-4 cases. So everyone was expecting this to be a muddled Kennedy decision.
I am surprised/disappointed someone else (Ginsburg in particular) didn't write a concurrence grounded firmly in equal protection. It wouldn't have had any legal effect, of course, but would have been useful as a roadmap for making further progress. I can't imagine Kennedy would have taken his ball away just because someone threatened to write a concurrence, so I don't know what's up there. Maybe a sense of not wanting to taint a historic victory with the squabbling of sore winners, or something like that? It's puzzling.
It's funny that, even if one day public opinion and the law go back the other way on SSM (not that I think it will or want it to), a hundred years from now law students will still be laughing at how the dissenters sound like old cranks instead of Justices.
Wouldn't it be great if one or more of the liberal justices was instead spending their time honing the majority opinion in Glossip with a 'from this day forward we shall no longer tinker with the machinery of death' sort of thing?
142: I once got to use the phrase "having a plurality of such bosses severally disposed thereon" in a patent. It almost looks like English.
having a plurality of such bosses severally disposed thereon
I've worked for companies like that.
I've been celebrating both SSM and the ACA victories by reading the epic temper tantrums playing out on the NRO front pages. I admit that schadenfreude is not one of my better qualities, but it is so, so delicious.
143: Seriously! I appreciate this is not the kind of place for unicorn-shooting-rainbow-lasers GIFs and such but we could at least stand to have a few more exclamation points in here.
IT'S 70°+ IN LONDON THE STREETS ARE TEEMING WITH BARE SKIN IMA GO SEE HOW MUCH PINK CHAMPAGNE I CAN DRINK BEFORE I WAKE UP MARRIED TO A STRANGER WOOOOOO!!!!!!!!
Y'know, like that sorta thing.
IT'S 70°+ IN LONDON
So … everyone's dead?
IT'S RAINING HERE!! I'M WASTING TIME ON THE COMPUTER WHILE FEELING VAGUELY GUILTY ABOUT NOT DOING STUFF!!! WOOHOO!! ELEVENTY ELEVEN!!!!
161: Just be careful. Gay marriage can lead to gay pregnancy.
It crosses my mind that the right's obsession with permanent war stems from a misinterpretation of the line, "We'll all be gay when Johnny comes marching home."
When Jamal comes marching hone.
WE WOULD LIKE TO THANK THE UNITED STATES FOR ONCE AGAIN WORKING OUT WHAT SIDE OF A MAJOR MORAL AND POLICY ISSUE TO BE ON ONLY TWO AND A HALF YEARS LATER THAN WE DID.
PRETTY FAST BY THEIR STANDARDS ACTUALLY.
154: I can't imagine Kennedy would have taken his ball away just because someone threatened to write a concurrence, so I don't know what's up there. Maybe a sense of not wanting to taint a historic victory with the squabbling of sore winners, or something like that? It's puzzling.
Maybe just a sense that right-wingers are going to freak out no matter what, so don't give them additional targets: just let them know that conservative Justice Kennedy says to them, "Shut up. Gay marriage legal."
Concurrences by any of the lefties would just have been additional fodder for sneering dismissal, the charge that this was nothing more than a political decision, and so on.
155: a hundred years from now law students will still be laughing at how the dissenters sound like old cranks instead of Justices.
Yes, this. I've really been scratching my head over that: I honestly thought that dissenting opinions (looking at you, Scalia) were supposed to speak to the merits of the case and of the majority opinion.
Perhaps this has been discussed already, but honest question: is it at all normal in the history of the court for a dissent to consist of not much more than snotty, snarky ranting and name-calling? Or is Scalia a real outlier here?
What, you don't think the snotty, snarky ranting, name calling portion of the public deserve to have their views represented?
"I am a beautiful meat animal! I am Roman fucking Hruska!"
In the meantime, I'm not feeling the schadenfreude, but rather a degree of disgust: I read yesterday that at least one county in Alabama-- or rather, its probate judge -- has decided that it will simply cease to issue any marriage licenses whatsoever (though it had already so ceased since February). I gather that other red states are considering how to proceed, and that is one option on the table.
While I don't actually think many counties across the country will take that option, it's depressingly reminiscent of developments in the Jim Crow south: some counties closed public schools altogether rather than integrate as ordered. The whites then established their own private schools (and blacks simply left, migrating north); of course you can't exactly go private where marriage licenses are concerned.
Still, depressingly similar.
Hey, serially commenting. Are there any Republican-leaning (includes libertarians) who are not sounding like complete morons, who are not calling for refusing to issue SSM licenses altogether, or disbanding the Supreme Court, or impeaching Kennedy (or Roberts, where the Obamacare decision is concerned)?
I'm thinking maybe Josh Barro. Who else isn't an idiot?
Republicans/libertarians who don't sound like morons? You mean unicorns?
Googling Josh Barro just now, I find this amusing tweet session:
Josh Barro @jbarro Jun 25 Manhattan, NYI can't believe the court overlooked the constitution's rule that a law means whatever Jonathan Gruber once implied it means at a conference
Also, who knew Justin Wolfers looked like that?
Also, Freddie deBoer is making me mad. Dude, you used to be not so bad. Why are you doing this?
And, he's writing for Politico now?
Boy I am definitely not going to read the link in 181.
Uh, he argues that it's time to legalize polygamy. Right-wing responses immediately include the headline that in the wake of the Supreme Court decision, a left-wing Politico op-ed calls for legalization of polygamy.
Way to go, Politico. And Freddie.
177: Ramesh Ponnuru wrote some mostly descriptive speculations beforehand about the results of both cases - a decision in favor of SSM will be a problem for Republicans going forward. Gingerly implying their best bet is to pipe down on it? Not sure.
Avik Roy is just plugging along on the ACA, much like before, shifting stance to the need to elect Republicans in 2016 to do something about it.
Not really in this group, but I was surprised to find Michael Cannon, the brain behind King v. Burwell who kept on fucking that chicken for four years, is happy about Obergefell.
I saw something about how the court weakened 3 strike laws, too. That's nice!
Only a particular federal statute, and only a portion of it. It's not nothing, but it's not going to do anything to cure state overincarceration.
Getting from appx Broadway & Gough to Potrero Hill and back was quite the feat today! Happy madness around here. Tomorrow we'll sit tight and only venture out on foot.
||
There's something subtly off here...
http://amzn.com/B00DP30NAQ
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189: I think that headboard is supposed to be asymmetrical.
Is that why customers who viewed this item also viewed a book whose subtitle is "How Hidden Symmetries Shape Reality"? But it's too subtle for me: you're just talking about how the poster was shopped in without taking into account perspective...I think? It doesn't look like the wall is perfectly perpendicular to the view line.
183: I love that legalizing polygamy is supposed to be the downfall of civilization as if polygamous societies aren't dirt common in history. Oh noes! minor additional complexity in family law! whatever will we do?
For the EPA decision, I'm already seeing the familiar pattern of "This is a total catastrophe" vs "No, it's a narrow ruling, it's not that bad" arguments appearing. Any lawyers care to weigh in?
192: First, we pay more for the lawyers.
194: I'm the wrong person to opine, I find the law more and more annoying as I get older, and so I haven't really thought hard about it. But I lean toward "Not a big deal as a matter of law, wouldn't be a big deal if we could count on the EPA continuing to be in the hands of competent people of good will while the regulations are passed again, in the real world there might be a huge practical effect, but who can tell. Predictions are hard, especially when they're about the future."
183 -- legalizing polygamy would be an enormous, tremendously complicated legal change in the US for a whole host of reasons (e.g., how do you decide which wife gets what if the marriage ends, how do you work out taxatino, etc.) That's putting aside whether it's the right thing to do for other reasons (I lean strongly towards no, since it's generally speaking a practice associated with the suboordination of women).
194 -- not a total catastrophe, limited in immediate effect, but it creates a very very stupid requirement for the EPA that may be used to highly nefarious effect (basically, it has to consider the cost of regulating a bad pollutant before it designs the regulation that would impose costs for emitting the pollutant, which is about as stupid and indefensible as it sounds).
I think polygamy should only be allowed if everyone involved first certifies that they are a feminist.
I thought that embracing polygamy and eschewing polyandry was the very hallmark of feminism, at least around these parts.
197.1b is correct inasmuch as "polygamy" is usually used to mean polygyny, which carries all sorts of ugly implications. However, there isn't likely to be much pressure in the US for legalising polygygy, except from fringe Mormon heretics who will not be listened to. If there is to be any pressure for legalising n partner marriages where n gt 2, it'll be framed as a demand to legalise all conceivable polyamorous structures, in which case 197.1a applies in spades.
all conceivable polyamorous structures
That could probably keep the mathematicians busy for quite some time.
For now, I think America is only ready for those relationships whose graphs are planar.
...generally speaking a practice associated with the suboordination of women.
Unlike binary marriage which has never been associated with subordination of women?
Just to be clear, my reference to 183 is not because I think it's pro-polygamy. AFAICT I'm the only one advocating it here.
Thanks to assholes like Warren Jeffs plural marriage has a bad rap, but there's nothing special about it that makes it inherently unequal and oppressive. A lot of the arguments against it come down to the fact that it would make a lot of work for lawyers sorting out issues like medical proxies and inheritance and community property and the like, but none of that is compelling to me. The closest I get to being convinced that it's a bad thing is the existence of evil people like Jeffs but it's not like the illegality of it has stopped anything. What illegality has stopped is perfectly wholesome polyamorous people from being able to set up enforceable contracts specifying how they want issues of inheritance, medical care, yada yada taken care of. As I know a lot more polyamorous people than I do fundamentalist Mormons, I come down on the side of legalize and sort out the issues as they arise.
I don't really know many of either.
WHAT I WANT TO KNOW IS, WHEN CAN I MARRY MY DOG
I want to know if your dog can still wear white when you marry it.
as if polygamous societies aren't dirt common in history
This is why I oppose enforcing traditional marriage norms. Doing so creates a slippery slope to polygamy.
205: Well, if you ever bothered to ask ME, you'd know the answer is NEVER!
You should tell your kind that "bone" can also be euphemism.
INSIDE OF A DOG IT'S ... TOO DARK?
Corey Robin at CT with hardhitting reporting: Apparently Thomas literally is a giant fan of Whitney Houston singing "The Greatest Love of All."
Who isn't? I liked her earlier work best.
I was pleasantly surprised by the result in the redistricting case. Disappointed by the death penalty decision. The idea that the defendant has to propose a constitutional method is silly enough that Justice Scalia should wear a bag over his head rather than joining it.
"If I fail, if I succeed, at least I lived Constitutionally."
214.2: Odd result from a putatively majority-Catholic court. Plenty of options at the cafeteria, I guess.
If I fail, if I succeed, at least I lived repeatedly.
No matter what they take from me
They still can't have Certiorari
Because the straightest love of all
Is happening to me.
202: For now, I think America is only ready for those relationships whose graphs are planar.
I think that sentence is missing a "studies show" somewhere.