Law

Ginsburg's (Pyrrhic?) Triumph

AP Photo/Ron Edmonds

The two major same-sex marriage cases decided by the Supreme Court in June were puzzling for at least two reasons. Windsor, which struck down a major provision of the Defense of Marriage Act, featured a notably opaque opinion by Justice Anthony Kennedy. Hollingsworth v. Perry, on the other hand, which resulted in legal same-sex marriage in California—albeit through a technicality—had a vote lineup that bore little relationship to how justices typically vote in standing cases, suggesting strategic voting on both sides. Part of the reason for these anomalies might be the Justice Kennedy's uneasiness. But it's worth noting that the outcome produced by these two cases is consistent with the long-held beliefs of one justice who was (unlike Kennedy) in the majority in both cases: Ruth Bader Ginsburg.

Chart of the Day

It can hardly be said too often that the George Zimmerman trial, or any one trial for that matter, only tells us a tiny bit about what happens when one person kills another and how they're treated by the justice system. Before the verdict, I predicted that Zimmerman would be acquitted, not because I'm some kind of genius, but based on two factors: There was no one alive who could contradict Zimmerman's account of what happened, and Florida law permits you to chase someone down, start a fight with them, and then shoot them if you start losing the fight. But what if we broaden our view a bit, and look not just at one case, but at thousands of cases? Does race matter?

You may be saying, of course it matters, but let's look at some data. John Roman of the Urban Institute took data from 53,000 homicides over the last few years gathered by the FBI, and produced this stunning chart (h/t Richard Florida):

Three Things You’ve Got Wrong about the Filibuster

AP Photo/Columbia, File

AP Photo/Henry Griffin

With the Senate showdown on executive branch appointments—and eventually filibuster rules—moving towards the moment of truth, it’s a good time to revisit some of the myths surrounding one of the hallowed chamber’s most perplexing procedures. Here are three:

When Justice Is Blind and Deaf

AP Images/Matt Smith

If justice is a conspiracy between moral logic and the law, then the revelation of the 36 hours following the George Zimmerman verdict is just how complete justice’s failure has been. The shambling closing statement at the trial last Thursday by attorney Bernie de la Rionda was a testament to how fully the state was seduced—with only occasional bulletins from some larger perspective by fellow prosecutor John Guy—into allowing the terms of the contest to be defined by Zimmerman’s counsel, Second City-wannabe Don West and Mark O’Mara, who was his own greatest competition in the sweepstakes for who could make the proceedings’ most flabbergasting comment. After telling the apparently beguiled jury that his client wasn’t accountable for a single moment of the events of February 26, 2012, that led to the death of teenager Trayvon Martin in Sanford, Florida, O’Mara declared at Saturday night’s press conference that had the ethnicities of defendant and victim been reversed, there would have been no trial at all.

The Withered Writ

Habeas corpus, the age-old means for prisoners to challenge their detention, has never been more restricted than it is now.

AP Images/Jon Elswick

The writ of habeas corpus, until not long ago, was a mysterious yet potent safeguard of liberty in American law. It worked like an incantation to break an evil spell. A prisoner petitions a court for a writ. “Habeas corpus” means “May you produce the body,” spoken from the point of view of a judge. He orders whoever is depriving the prisoner of his freedom to bring him to court—a warden confining a prisoner, the secretary of defense holding a detainee, or a magistrate who has denied bail to someone jailed but not convicted—and to justify the detention. The judge then decides whether the petitioner is being detained in breach of the Constitution or some other law.

Online LL.M.'s: A New Way to Rob Peter to Pay Paul?

flickr/David Ortez

Two weeks ago, faculty at Seton Hall’s School of Law were informed their pay would be cut by 10 percent during the upcoming term. All junior (untenured) faculty were told they could be fired after the 2013-2014 school year. Seton Hall joined Florida Coastal, (10 percent of staff were fired) and Vermont Law School (one-fifth of tenure-track faculty positions were removed), in delivering a message professors not at elite schools have long feared was coming. As the legal job market remains in shambles and law school applications continue their historic free-fall, schools will be forced to undertake a variety of drastic measures to remain solvent until the millions in missing tuition dollars return. Firing faculty and downsizing staff—perhaps even closing whole schools—will soon be common; so will the appearance of the LL.M., a degree whose strange career may be emblematic of the most serious problems in legal education.

How the Conservative Media Are Eating Up the Zimmerman Trial

George Zimmerman during his interview with no-nonsense journalist Sean Hannity.

George Zimmerman's trial in the shooting of Trayvon Martin is coming to a close. For what it's worth, I think he'll probably get acquitted, since 1) the lack of any eyewitnesses leaves room for doubt, and 2) my impression is that in Florida it's perfectly legal to pursue somebody, confront them, and then when the confrontation turns physical and you begin to lose the fight, shoot them in the chest. You know—self defense.

In any case, conservative media are feasting on the Zimmerman trial (as are some other media). Their basic storyline goes like this: Trayvon Martin was a thug. George Zimmerman's gated community was beset by roving gangs of vicious black teen criminals. Zimmerman was in the right. And most critically, this whole thing is being drummed up by racial provocateurs, most especially Barack Obama and Eric Holder, to continue their ongoing war on white people, who are the real victims of racism in America today.

Let's take, for instance, this little story...

How to Keep Bad Cops on the Beat

A few states forego a key tool protecting the public from rogue police officers.

AP Photo/Harold Valentine

David Silva died during an arrest in Bakersfield, California on the night of May 8. The Kern County sheriff’s department contends that the 33-year-old was drunk and uncooperative and fought back during the arrest. The sheriff’s deputies on the scene also fought back during the arrest—using unreasonable and excessive force, as the civil-rights lawsuit Silva's family filed charges—allegedly beating Silva with batons while he lay on the ground.

One of the accused deputies has the same name as one charged in the 2010 beating of a man that resulted in a $4.5-million court judgment against Kern County. County sheriff Donny Youngblood declined to tell The Los Angeles Times whether he is the same officer.

Meet Rick Perry's Most Likely Replacement

Flickr/Gage Skidmore

When Rick Perry's staff advertised a press conference on Monday to unveil his "exciting future plans," they didn't say just who the plans would excite. Would it be Perry’s Texas supporters, thrilled to hear he was running for re-election in 2014? Would it be the political pundits and national supporters, pleased to discover Perry would make another bid for president?

Affirmative Action's Ominous Future

AP Photo/Paul Sakuma

One thing the three most anticipated cases of the recently completed Supreme Court term have in common is the questions they didn't answer. Hollingsworth v. Perry, by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage an open question. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") But the term's clearest passing of the buck was the decision in the potentially major affirmative-action case, UT Austin v. Fisher. While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education unconstitutional, after eight long months the Court issued a brief opinion that merely sent the issue back to the lower courts without a definitive ruling. What then, does Fisher suggest about the future of affirmative action?

All Tomorrow’s Parties

Gay Equality 1, Civil Rights 0 – join us in wondering how to celebrate this Fourth of July. (Hint: not by seeing Johnny Depp’s new movie, that’s for sure.)

AP Photo/The Omaha World-Herald, Brynn Anderson

Call it coincidence, but my bedside reading for the past couple of weeks has been the new two-volume boxed set of the Library of America’s Reporting Civil Rights. Awe-inducing and frequently thrilling, this monumental anthology of on-the-scene coverage of the fight for black equality features contributions by scores of writers, some rightly renowned—James Baldwin, Garry Wills, et. al.—and some unjustly obscure. Part One deals with the years 1941-1963; Part Two tackles the pressure-cooker decade that followed King’s “I Have A Dream” speech. Each volume also includes a sheaf of photographs, primarily of the writers themselves at the time. They’re often evocative ones, even if the era’s great photojournalism—no less worthy of commemoration—gets short shrift as a result.

Anyway, I won’t pretend I’ve made much more than a dent in the set’s almost 2,000 pages. But that’s not the point, since Reporting Civil Rights could easily keep my idle hours occupied until Christmas. (Not only was I kidding myself that I could somehow plow through it in time to write a full-fledged review this month, but yes, Monsieur Proust, you’ve lost out—again.) The point is that the Supreme Court sure does know how to cure me of any illusions that I’m reading about settled history.

Christian Employers Claim Their Religion Puts Them Above the Law

Sacred ground, where worldly laws don't apply. (Flickr/prariedogking)

Ready for the next court fight over Obamacare? Get to know Hobby Lobby, the chain of stores fighting the Affordable Care Act's requirement that the health insurance employers offer their employees cover contraception, and the next Christian martyr to the unholy scourge of health coverage for employees. Hobby Lobby's owners are conservative Christians, and though their company isn't a church, they'd like to choose which laws they approve of and which they don't, and follow only the laws they like. And a federal appeals court just ruled that not only can their suit go forward, but they're likely to win. Because apparently, "This law violates my religious beliefs" is now a get-out-of-jail-free card.

The decision is simply mind-blowing, essentially finding that private business are just like religious institutions, and therefore they can decide which laws they have to obey:

A Queer History

Flickr/MKTP

I’ve been writing about marriage since 1993—two decades now. I expected these decisions, like everyone else. And yet I was still grinning like a fool when, with one fist, the Supreme Court smashed the Defense of Marriage Act (DOMA)—the 1996 law that banned the federal government from recognizing my marriage in Massachusetts—and with the other hand waved away the Proposition 8 case like a gnat. In practice, that means same-sex couples will soon marry again in California, the most populous state in the nation. And it means I am married not just in Massachusetts, but also in the United States (although not necessarily in Virginia, Texas, or any other state that bans same-sex marriage) for such exciting purposes as filing federal taxes, Social Security claims, immigration, and insurance.

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