The Docket

The Prospect's legal affairs blog

Throwaway People

(Flickr/Tim Pearce)

“You're making a 14-year-old throwaway person.”

Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming.

Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.” 

“What hope does he have?” Justice Sonia Sotomayor asked. 

Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before.

George Zimmerman's Collaborators


Particularly after Charles Blow devoted his column last week to the subject, the so-far unprosecuted shooting of Trayvon Martin has deservedly gotten a lot of attention. For good reason, much of this attention has focused on Florida's odious 2005 revisions to its law of self-defense.

Celebrating the Defeated


Three former Iowa Supreme Court justices might not have received much love from their constituents, but they're about to be granted a national accolade. Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit were voted off the bench in 2010 after conservative activists organized against their retention election, a typically routine procedure that became political overnight. Conservatives—led by failed gubernatorial candidate and evangelical leader Bob Vander Plaats—were outraged when the state Supreme Court legalized same-sex marriage in 2009.

The ACA v. the Supreme Court

(Flickr/Mark Fischer)

This is the first of a series of posts looking at the arguments in the upcoming health-care case. 

Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case.  

So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear—Cheese it, it’s the Broccoli cops!—and Justices are members of the public.

Faux Federalism


The central fact of American federalism, as I’ve written before, is hypocrisy. 

Did Virginia Pro-Choicers Blunder?

NARAL Pro-choice Virginia

I definitely agree with the central point of Sarah Kliff's post—namely, that the ultrasound law that ultimately passed in Virginia is almost as bad as the bill mandating transvaginal ultrasounds that was initially proposed.  

Winning the Battle, Losing the War

(Flickr/VCU CNS)

Pro-choicers, for obvious reasons, were inclined to celebrate when Virginia Governor Bob McDonnell backtracked on a bill that would have required women to obtain transvaginal ultrasounds before obtaining an abortion. Finding an arbitrary abortion regulation that was actually politically toxic feels like a major victory, especially if it could translate to other states.

The Emerging Sotomayor-Muppet Axis of Evil

Can’t you take a joke?

In the time and place where I grew up, as I have written before, Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear. 

Cheering on the Nightmare Scenario


As the Prospect's Jamelle Bouie notes, the invaluable Greg Sargent outlines a "nightmare scenario" should the Republicans capture the Senate in 2012: the possibility that they will eliminate the filibuster. My response would be that ultimately this is more of a dream scenario, both for progressives and for American democracy.

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured.

And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]”

Taking Anti-LGBT Discrimination Seriously


U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen.

The Court That Walks Off Cliffs


Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona—the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question.

Trying to Win Beyond Virginia

I wrote earlier this week that Virginia's mandatory ultrasound law was proving to be highly unpopular. But though many its Republican supporters were clearly spooked by the level of opposition, I didn't think it very likely that Governor Bob McDonnell would withdraw his support. Happily, I was wrong. McDonnell came out against the provision, and it will presumably be deleted from the final legislation.  

The Right to Tell Lies


Most Supreme Court arguments last one hour—30 minutes for each side.  At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom.

The End of Affirmative Action in College


As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v.