Law

Friday Miscellany, Year-End 2011

Herewith a few things to think about before you disappear into 2012: Sweeties. On Wednesday, the Virginian-Pilot ran what I thought was an adorable story about a Navy first. Apparently, when ships come in, someone gets the honor of disembarking for the first official welcome-home kiss with their beloved. It's been three months since the dock landing ship left home for Central America, and all of the usual fanfare is waiting to greet its crew: crowds of cheering families, toddlers dressed in sailor suits, and the lucky, excited woman who's been chosen to take part in a time-honored Navy tradition - the first homecoming kiss. The twist: this was the first time that the Chosen Kisser had a same-sex partner. The two young women involved, who are engaged, are just cute as buttons. The story made me smile. Channeling my great-aunts, when I watched the video, I wanted to pat their pretty heads and wish them a long, happy, healthy life together. But apparently I'm an outlier...

Gingrich's Judicial Attack Wins Over Religious Right

CEDAR RAPIDS, IOWA —Newt Gingrich's redefinition of separation of powers from the understanding of the past few centuries continues to come under fire from his fellow conservatives. "His comments about the justices and the Congress, sending the Capitol police to bring in judges—that’s not exactly a practical idea or a constitutional idea,” Mitt Romney said on Fox News last night. Former Bush Attorney General Michael Mukasey shared that sentiment, telling The New York Times that "it would lead us to become a banana republic, in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes." The impractical proposal is doing Gingrich no favors with national conservatives, but I speculated yesterday that they weren't his true audience; he's instead signaling to evangelicals—particularly in Iowa—that he is on their side. Gingrich hosted a town hall in Davenport, Iowa Monday where a small crowd...

The Latest Proposition

Opponents of California’s constitutional ban on same-sex marriage, Proposition 8, have started collecting the 807,615 signatures needed to put the issue on the ballot. It’ll be a slog—they have to have them all by May 14. Earlier this year, Equality California, the largest organization in the state fighting for same-sex marriage rights, declined to participate in the effort to gather signatures, citing the uncertainty of a win at the ballot box and the pending lawsuit against Prop. 8, which the Ninth Circuit is set to decide on soon. This leaves Love, Honor, Cherish (LHC)—another gay-rights organization—leading the way. It’s difficult to guess whether LHC will succeed in its effort to put Prop. 8 to a vote. But it is woefully underprepared to launch an advocacy campaign that can outgun the opposition. LHC is pretty short on cash; whereas Equality California received $3.2 million in contributions in 2010, LHC says it has only $500,000. The results of a recent poll—in which 48 percent...

Full Court Press

DAVENPORT, IOWA —Newt Gingrich's preposterous claim that, as president, he would ignore court decisions he didn’t like and subject the judiciary to congressional and presidential review has received the proper amount of ridicule from the press today. Scott Lemieux and Paul Waldman have already delved into the topic here at the Prospect , but these attacks aren’t solely coming from the left. This morning the Wall Street Journal ran the headline "Gingrich vs. Courts Echoes South's Criticism of 1950s Segregation Decisions," which even among the most conservative crowds won't be a favorable comparison. It's a proposal so unhinged that it might be the final straw that forces establishment Republicans to distance themselves from Gingrich. But it's a popular sentiment on the judiciary among the caucus voters Newt needs to win Iowa. Judicial politics have become the cause célèbre among the state's social conservative grassroots ever since Varnum v. Brien, the landmark 2009 decision in which...

The Ball's in Your Court

At the December 15 debates in Sioux City, Iowa, nominal frontrunner Newt Gingrich argued that the “courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” Showing the discipline and moderation for which he has long been known, Gingrich followed up with assertions that judges that issue First Amendment rulings he disagrees with should be arrested and impeached and that he would ignore court rulings that didn't suit him. Many of the proposals deriving from these intemperate critiques are dangerously radical, others inadvertently reasonable. But what is strange about them is that they all assume a liberal federal judiciary that hasn’t existed for decades. More than forty years later, Republican elites seem to not to have heard about Earl Warren’s resignation from the Supreme Court. While the federal courts have not been bastions of progressive constitutionalism for a long time, conservatives have had...

Newt v. Judiciary

In what seems to be an ongoing effort to convince Republican primary voters that he's the most radical Republican in the presidential race, Newt Gingrich decided to go after the "judicial activism"-haters by declaring yesterday that what we need is more witch hunts of judges. In Gingrich's view, when members of Congress -- a group of people well known for being sober and responsible and avoiding grandstanding and demagoguery -- feel like it, they should be able to haul judges in front of them to explain their rulings, and if the judges don't like it, federal marshals should arrest them. Furthermore, he believes that the president should be able to simply overrule any Supreme Court decision that displeases him. As he said on Face the Nation , "Nine people cannot create the law of the land, or you have eliminated our freedom as a people." Newt would essentially like to overturn Marbury v. Madison and declare the last two centuries of Supreme Court jurisprudence invalid. It should be...

A Ninja in Our Sites

An aggressive federal enforcement effort targets online piracy—and threatens the open Internet.

I n February 2008, Ninja Video went online and quickly distinguished itself in the unsightly, often malfunctioning world of Internet piracy. The site’s silver, black, and crimson palette spoke to a punk aesthetic, but the content and layout were fastidiously organized. The main page posted a nightly lineup of colorful movie and television banners, rather than the drab link text found on most pirate sites. Popular TV programs like Lost and Fringe would be up five minutes after the latest episode ended. New movies were often on the site before their nationwide premieres. The Ninja staff bundled cinema packages devoted to LGBT issues, classic films, and presidential debates. News services otherwise unavailable in the U.S., like Al Jazeera and the BBC, were streamed live, and Ninja offered one of the largest documentary collections on the Web. Everything was free. All a user had to do was click a logo and press play. PC World named Ninja Video one of the top 100 products of 2009,...

Putting the Brakes on Voter Supression

Voters in most states have little recourse to combat the onslaught of restrictive voter-ID laws Republican majorities have passed in 2011. For the most part, they'll have to wait until the 2012 election to replace their legislators and hope that these laws (such as photo-ID requirements and repeals to same-day registration) can be taken off the books. But a number of states will tackle voter suppression directly via ballot referendums. Last month, both Maine and Mississippi tested restrictive voting laws through popular votes; in Maine, voters overruled their legislators and reinstituted same-day voter registration, a major win for voter-rights advocates. But in Mississippi, things took a turn for the worse; voters approved a constitutional amendment requiring photo identification for access to the ballot. Ohio is up next after organizers gathered more than 300,000 signatures to put a referendum on the ballot next year. The state's Republican majority had passed severe restrictions to...

Supreme Court Could Tilt US House Majority

The US Supreme Court issued a surprise stay late Friday evening that in effect could decide which party controls the US House majority after the 2012 election. A little over two weeks ago, a three-judge panel in San Antonio threw out new congressional maps drawn by the Texas legislature earlier this year. One of the fastest growing states in the country, Texas gained four additional US House seats after the 2010 census. Most of that growth can be attributed to the state's booming Hispanic population, which now represents almost 40 percent of the state. Yet when the Republican legislature went to redraw the maps, they gerrymandered the new seats to favor their party and shut the minority population out. Civil rights groups appealed and convinced the federal court to create a more representative map, increasing the number of majority-minority districts from 10 to 13, giving Democrats a strong possibility of gaining three of the four new House seats next year. Texas Attorney General Greg...

Legislative Stranglehold

Passing the REINS bill would give Republicans the ability to veto any significant new regulations.

With only four Democrats voting for the measure, yesterday the House passed H.R. 10, “Rules from the Executive in Need of Scrutiny” (REINS). If it were to become law, this radical piece of legislation would prohibit all federal agencies, including the Environmental Protection Agency, the Food and Drug Administration, and the Securities and Exchange Commission from minting any new regulations impacting the economy by more than $100 million unless they passed both the U.S. House and Senate within 70 legislative days. The requirement that regulations be agreed to by both the House and Senate would give the staunchly anti-government Republican majority in the House the ability to unilaterally veto significant regulations by simply refusing to pass the legislation within the accorded time frame. Many of the new protections scheduled to go into effect this year and next are the result of laws passed by Congress and signed by President Barack Obama in his first two years in office. These...

Rip It Up and Start Again

Democrats were fed up at the start of the year. They had held 59 seats in the Senate for most of the previous two years, their largest majority since the 1970s. But that near-supermajority wasn't enough to overcome a Republican fillibuster. A 60-vote hurdle became a common deathtrap for every Democratic bill or Obama nomination confirmation, leaving the executive branch understaffed and the federal bench depleted. It looked like Democrats had finally had enough and developed the backbone to fight back when the Senate reconvened in January. There was talk of rewriting Senate rules to end the filibuster. Republicans would have moaned about how Democrats were breaking with all sorts of historical norms, but ending the filibuster falls well within constitutional limits; no previous body can dictate the procedural rules for a future Congress. It never reached that point, though, because Republicans—no longer concerned with progressive legislation originating in Speaker Nancy Pelosi's House...

Do Kagan and Sotomayor Bleed Blue?

For Obama's Supreme Court appointees, a case involving the right to face one's accuser provides an important litmus test on civil liberties.

The Sixth Amendment requires that “the accused … be confronted with the witnesses against him.” While the confrontation clause is a relatively obscure provision of the Bill of Rights—and not as well known as, say, the equal-protection or freedom of assembly clauses—disagreements over what it means have become an important part of the Supreme Court’s civil-liberties docket. Yesterday, the Court heard oral argument in another confrontation clause case, which both demonstrates the importance of this protection and reveals important divides among both conservative and liberal factions on the Supreme Court. The case being considered yesterday, Williams v. Illinois , concerned the question of how the landmark 2007 case Melendez-Diaz v. Massachusetts should be applied. In Melendez-Diaz , the Supreme Court held that the Sixth Amendment requires forensic analysts working for the state to testify if their analysis is introduced at trial and they are called by the defense. Earlier this year, the...

Justice, Deferred

It may be frustrating when federal watchdogs strike toothless deals with Wall Street, but it reflects regulators' alarming lack of resources.

During the early aughts, the financial sector freely gambled with money implicitly or directly guaranteed by taxpayers, selling securities based on worthless subprime mortgages to their customers. We all know how that turned out. Yet those responsible for the worst recession since the Great Depression have for the most part escaped federal prosecution. Given this context, it is easy to understand why United States District Court Judge Jed Rakoff angrily rejected a proposed deal between the Securities and Exchange Commission (SEC) and Citigroup over the company's practice of selling toxic mortgage-backed securities to its customers at the same time it bet against them. His decision to reject the settlement—in which Citigroup would have to pay $285 million but not have to admit any wrongdoing—was praised as a win, at least in spirit, for the Occupy Wall Street crowd, and indeed it may have some positive effects, including letting banks know they can't get off that easy. But it is...

Death, Interrupted

AP Photo/Rick Bowner
Governor John Kitzhaber of Oregon put a moratorium on executions in his state last week, and he didn't mince words about why. At a November 22 press conference, he called the death penalty broken, unfair, and a "perversion of justice" and said he will urge legislators to consider reforms during their 2013 session. His move halts the execution of Gary Haugen, a man convicted of two murders and scheduled to die December 6. “I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families, and reflects Oregon values,” Kitzhaber said. “I refuse to be a part of this compromised and inequitable system any longer.” The governor is hardly alone. His decision is the latest step in the accelerating movement to abolish capital punishment in the U.S. through state-by-state moratoriums and voter initiatives. As several states across the country take concrete action to ban the death penalty, activists and political leaders are unabashedly...

The Latest Roberts Court Atrocity

The Supreme Court rules to return to prison a grandmother who poses no danger to society.

Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years to life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the Ninth Circuit Court of Appeals freed Smith in 2006. Last month, as the culmination of a lengthy back-and-forth between the Court and 9CA, the higher court by a 6-3 majority reinstated the jury verdict, requiring Smith to return to prison although she is almost certainly innocent and does not pose any threat to society. Taken in isolation, the Court's order is by no means outrageous. Generally, appellate courts are only permitted to assess legal errors by lower courts, not to second-guess how juries evaluate evidence. It should be noted, however, that the...

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