In his novel King of the Jews, Leslie Epstein sets his story in the wartime ghetto of Lodz, Poland, where the Gestapo ruled through an appointed council of Jewish elders. Epstein, researching the book, tracked down the gallows humor of the time. In one such joke, told by a character in the novel, two Jews are facing a firing squad. The commandant asks if they would like blindfolds. One of the condemned whispers to the other, “Don’t make trouble.”
“Don’t make trouble” could have been the credo of the first year of the Obama Administration. The White House calculated that if the president just extended the hand of conciliation to the Republicans, the opposition would reciprocate and together they would change the tone in Washington. This was the policy on everything from the stimulus to health reform to judicial nominations. It didn’t work out so well.
This campaign cycle, even election rules were grounds for partisan fighting. Republican Ken Detzner, Florida’s secretary of state, attempted a purge of the voter rolls, prompting accusations of discrimination. In Colorado, Secretary of State Scott Gessler, also a Republican, tinkered with a similar effort. Pennsylvania’s Secretary of the Commonwealth Carole Aichele, another Republican appointed by Governor Tom Corbett, openly supported the state’s voter-ID law. Most famously, there was Jon Husted, Ohio’s Republican secretary of state, whose decision to limit early-voting hours to keep them consistent across the state prompted cries of outrage.
Tonight, you’ll hear on the news that the Supreme Court has agreed to hear the "gay marriage cases.” Much of the mainstream (i.e., straight) media will be treating the two cases they’ve taken—a challenge to California's ban on same-sex marriage, Proposition 8, and a challenge to DOMA, the federal law that prohibits the government from recognizing same-sex marriages performed in the states—as essentially the same. Don’t be fooled. The cases are very different. The fact that SCOTUS has taken both has a lot of us very worried.
The Supreme Court has announced that it will be hearing both of the major gay-rights cases it was considering this term. Facing constitutional scrutiny are key provisions of the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages performed in the states, and California's Proposition 8, which banned same-sex marriage in the state. When combined with the major affirmative-action and voting-rights cases the court will also be handing down this term, this could be the most consequential Supreme Court term in decades.
I know you can hardly stand the excitement: Princess Kate is preggers! Finally, the QEII can step out of service, passing off the baton—er, scepter—in a way that skips right past her reprobate son. Finally, she has a new generation in line that understands the royal job: get married, reproduce, and stay honorably married.
The 1938 Fair Labor Standards Act (FLSA), which ushered in many of the worker protections we enjoy today, was a major progressive victory. But as the century that followed it shows, it was by no means the end of the struggle to get workers treated fairly. Employers, aided by conservatives in the executive and judicial branches, have often found ways of ensuring these laws are not fully enforced. Symczyk v. Genesis Healthcare Corp., which the Supreme Court considered yesterday at oral argument, presents another case in which conservatives on the Supreme Court might erect a barrier making FLSA harder to enforce.
Yesterday, the Eighth Circuit Court of Appeals issued a stay blocking the Obama administration's requirement that employer health-insurance plans cover contraception. The related suit was filed by Frank O'Brien, a Roman Catholic business owner who claimed that the mandate violated his rights under the free exercise clause of the First Amendment.
Earlier this week, the Supreme Court looked into the question of who counts as a “supervisor” for the purpose of employment law. If you’re not an employment-law watcher, it sounds like the legal equivalent of how many angels can dance on the head of a pin. But the answer is going to have real-life consequences for hundreds of thousands of people. Let me illustrate.
In New York magazine, Benjamin Wallace-Wells has a long article about the failure of the War on Drugs, in which he says, "Without really acknowledging it, we are beginning to experiment with a negotiated surrender." This is in reference to the recently passed marijuana legalization initiatives in Colorado and Washington, which will likely be followed by other states in upcoming elections. Hanging over these policy changes is the still-to-be-determined reaction of the Obama administration, which hasn't yet said whether it plans to send DEA agents to crack down on the businesses these laws allow for, or the growing operations they'll produce. And I'm beginning to suspect that the administration will try to set some kind of policy course intended to be as low-key and neutral as possible, neither giving the two states the green light to proceed as their new laws envision, nor embarking on some kind of dramatic and visible crackdown.
On a Saturday night in July 1984, Jennifer Thompson, a 22-year-old, straight-A student at Elon College in Elon, North Carolina, returned to her apartment after attending a party. Thompson wasn’t feeling well and went to sleep. Her boyfriend left around 11 P.M. About four hours later, Thompson awoke with a man on top of her. He held a knife to her neck. He smelled of alcohol and cigarettes. Thompson screamed. “Shut up, or I’ll cut you,” the man threatened.
Before, during, and after the rape, Thompson willed herself to study his features so she could increase the odds of identifying him later. She made mental note of his close-cropped hair, his small almond-shaped eyes, his high, broad cheekbones, his wisp of a mustache.
A stop-and-frisk in New York, recorded by a bystander.
There are a lot of ways that police, prosecutors, and other government officials argue that they can check on you without rising to the level of a "search" that would require a warrant. In recent years, officials at various levels and in various places have held that they can attach a GPS to your car to track your movements, get your cell phone records, or aim a heat-sensing device at your house to see what's going on inside, all without getting a judge's permission. Yet when it comes to you recording them, they have a very different view. But in a rare bit of good news on criminal procedure, the Supreme Court has, by denying an appeal in a case from Illinois, effectively affirmed your right to record police officers in public:
Ohio has finally begun to tally provisional ballots. This was supposed to be the moment we were all waiting for—back when the presidential election was going to be airtight and everyone was worried about elections administration in the ultimate battleground. Instead, the Obama campaign won a decisive victory, so few kept following the counting in Ohio. But even without an audience, the state's court battles continued well after Election Day. While the presidential race may not hang in the balance, the outcomes of two legislative races will determine a whether Republican lawmakers have a supermajority—which would allow them to easily pass a conservative agenda, including more attempts at voter suppression.
A powerful man sleeping with a younger woman outside the bounds of matrimony may not be uncommon, but when revealed, it inevitably produces a scandal. In the case of the adultery revelations about former CIA Director David Petraeus, however, the banal, tawdry sex scandal is masking a much deeper one. A great deal of intimate personal information has been revealed to the public based on an FBI investigation, despite a rather notable lack of underlying activity that can plausibly be called criminal. There's no particular reason anybody but David Petraeus's wife should care about his sexual improprieties, but we should all care about how easy it is for government officials and employers to invade the privacy of online communications.
President Obama needs to be more like George W. Bush.
Bush understood that a president’s longest-lasting legacy is often the judges who receive a lifetime appointment to the federal bench. He understood that another Republican will occupy the White House someday, and they will need a slate of potential nominees to the Supreme Court. And he understood that the judiciary can quietly implement an unpopular conservative agenda that would never survive contact with the elected branches of government.
Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional—criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the "countermobilization myth"—that is, the idea that victories won through the courts produce unique amounts of political backlash that make them counterproductive. The remarkable wave of success for LBGT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar, remains somewhat ambivalent about the use of litigation to advance same-sex marriage. But ultimately, it provides a powerful case that in the right circumstances, litigation can be an effective tool for social reform.