The more than 20,000 people who were following SCOTUSblog's live-blogging of today's cases did not, as you probably know by now, get the health care ruling many of us were stressed out about. There were, however, some other major rulings that deserve some attention. Among other things, they illustrate that presidential elections matter a great deal.
If contempt of Congress (current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested.
In March 1977, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death.
None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court.
Florida governor Rick Scott is attempting to engage in a purge of voters, requiring some voters to prove their citizenship within a limited time frame in order not to be disenfranchised, allegedly in order to address "vote fraud" that for all intents and purposes doesn't exist. The Department of Justice told Scott to stop this illegal vote suppression.
Discussions of free speech in the United States often call upon the adage—misattributed to Voltaire—that “while I disagree with what you have to say, I will defend to the death your right to say it.” (The quote in fact comes from Evelyn Hall, who wrote a biography of the French philosopher.) It’s a succinct summary of a the cherished American idea that speech should not be abridged because we find its content objectionable.
But according to New York University Law Professor Jeremy Waldron, it’s severely flawed.
The mess that is Florida's voter-purge effort keeps growing by the day. Both the ACLU and the Department of Justice are suing the state, which in turn is suing the federal government. After the state's Division of Elections declared it had found around 182,000 noncitizens on voter rolls, the state sent letters to 2,600 people of them asking if they were citizens. Those who failed to respond risk being removed from the lists. The trouble, of course, is that 500 of them proved to be citizens. Less than 100 have so far been proved ineligible to vote. Because the list examines citizenship, Hatians and Latinos are disproportionately targeted.
I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide?
When he was running for president in 2000, George W. Bush was often asked about the fact that as governor of Texas, he executed 152 people, more than any other governor in modern history at the time (though his successor Rick Perry has since surpassed him). Bush always responded that he believed the death penalty saves lives. In other words, his primary justification was a practical argument, not a moral argument. But the empirical evidence on the question of whether the death penalty was always fuzzy at best.
Like most death penalty opponents, I was always very skeptical of claims like Bush's (isn't that odd, how our beliefs about what is always seem to line up so neatly with our beliefs about what ought to be)...
A few weeks back, President Obama expressed his belief that the Supreme Court would be wrong if it overturned his signature domestic policy achievement, the Affordable Care Act. Republicans immediately had a hissy-fit, accusing Obama and his allies of trying to "intimidate" the Court in yet another frightening example of thuggish Chicago-style politics. As Dahlia Lithwick points out, the only ones who have levelled any actual threats at the courts lately are conservatives—Newt Gingrich proposed that if judges made decisions that some people (i.e. Republicans) didn't like, they ought to be hauled before Congress to explain themselves, and arrested by federal marshals if necessary; Rick Santorum (and others) have suggested eliminating the 9th Circuit appeals court, since it has issued some decisions he disagrees with. But as Lithwick explains, the Supreme Court is really of two minds when it comes to being criticized publicly:
Last month, the New York Civil Liberties Union released some extremely disturbing data about "stop and frisk" searches in New York City. Since 1968, the Supreme Court has held that warrantless patdown searches by police require only "reasonable suspicion" rather than the "probable cause" required to obtain a search warrant under the Fourth Amendment. This watered-down standard has always been subject to abuse, and there can be little doubt that this has been the case in New York.
Of all the things we talk about during a presidential campaign, the Supreme Court probably has the lowest discussion-to-importance ratio. Appointing justices to the Court is one of the most consequential privileges of the presidency, one that has become more important in the last couple of decades since the Court has become more politicized. But there isn't a great deal to say about it during the campaign, beyond, "If we lose the election, we'll lose the Court." The candidates aren't going to say much of anything about whom they'd appoint other than a bunch of disingenuous bromides ("I'll appoint justices who will interpret the law, not make law!"), and we don't actually know who's going to retire in the next few years, so in the campaign context there isn't much to be said .
But if there's anything that ought to make you afraid of a Mitt Romney presidency, it's this.
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!)