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Sotomayor and Equality

[ 106 ] April 23, 2014 |

Yesterday’s affirmative action case is a close question, but Sotomayor’s dissent is perhaps her strongest work yet.

In addition, as Liptak notes, Sotomayor also had an excellent response to Roberts’s smarmy, ahistorical Parents Involved tautology:

We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature.

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. And although we have made great strides, “voting discrimination still exists; no one doubts that.”

Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (Ginsburg, J., dissenting) (cataloging the many ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter. [Some cites omitted]

Serwer has more.

Failing on Climate Change

[ 23 ] April 22, 2014 |

A must-read piece from Plumer.

Today In the War on (Some Classes of People Who Use Some) Drugs v. The Fourth Amendment

[ 188 ] April 22, 2014 |

Today, a bare majority of the Court upheld the constitutionality of a search that stopped a truck and found 30 pounds of marijuana. The sole basis for the search was the uncorroborated tip of an anonymous informant. That sentence is nearly sufficient in itself to refute the majority’s case, but Breyer and (somewhat more surprisingly, Thomas, who spoke for the Court) joined the Court’s three consistent opponents of the Fourth Amendment to uphold the search. Scalia dissented for Ginsburg, Kagan and Sotomayor.

There’s really not much I can add to the Scalia dissent, which demolishes the majority and leaves nothing standing. There is one paragraph I’d like to highlight, however. This is a little different than the typical drug case in that the possibility of impaired driving presents a immediate potential public safety risk that someone possessing drugs in their apartment does not. The police certainly do have the leeway to conduct traffic stops if they observe someone driving recklessly, and if they’re altered to reckless driving by even an uncorroborated informant, that’s usually OK. In this case, however, the police had nothing resembling reliable evidence of impaired driving either coming or going:

It gets worse. Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. Ante, at 8–10. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to support a stop for drunken driving under Terry v. Ohio, it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver. But the pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined. [Some cites omitted]

That should settle it. Even under the probably-too-forgiving standards of Terry and its progeny, there was no “reasonable suspicion,” and the search is therefore unreasonable under the Fourth Amendment and the evidence collected should be suppressed. Scalia again:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

That Word “Lawless,” I Do Not Think…

[ 113 ] April 22, 2014 |

Andrew C. McCarthy, sunk appropriately to the bottom of the wingnut welfare barrel at Pajamas Media, is outraged!

Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences — applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.

This is just pure gibberish, on a par with conservertarian defenses of Shelby County. The pardon power, a core executive power at the time of the founding, is right there in Article II and everything. You cannot “usurp” legislative powers by using explicitly delegated powers, even if you use them in ways Andy McCarthy doesn’t like by freeing some prisoners of the War on (Some Classes of People Who Use Some) Drugs.

The pardon power exists so that the president can act in individual cases to correct excesses and injustices.

So it’s being used particularly appropriately here.

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area.

I wish!

The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.

Leaving aside the question-begging about whether the consequences are “unintended,” I’m sure the people of color locked up in prison for drug offenses in grossly disproportionate numbers will be happy to hear that racism doesn’t exist unless it is a matter of self-conscious, purposeful racism on the part of legislative drafters.

The mandatory minimums for crack (“cocaine base”) crimes are more severe than for powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white — although there are plenty of whites in the former category and minority dealers in the latter.

Shorter Andy McCarthy: since not literally everybody prevented from voting by a literacy tests was African-American, the laws weren’t racist.

It has been argued for decades that this disparity is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack). It is perfectly constitutional for Congress to do this, but it is not sensible — crack may be worse than powder coke, but not a hundred times worse.

So the Obama administration’s actions here — which are perfectly constitutional and wise — should be beyond reproach. Glad we’ve settled this! It must be said that the War on (Some Classes of People Who Use Some) Drugs is getting exactly the quality of representation it deserves here.

[HT Andrew.]

The Aristocrats! Everything Is Illuminated Edition

[ 143 ] April 22, 2014 |

Winner-take-all economics, apparently, applies even to mediocre literary fiction if you can attract Hollywood:

Literary power couple Jonathan Safran Foer and Nicole Krauss have put their Park Slope limestone on the market for $14,500,000, as The New York Daily News was the first to report. Built in 1901 by the Woolworth family, the 7,670-square-foot house sits on a double lot that goes all the way through to the next block. It also has a conservatory with Tiffany stained glass.

So if you have some Deep Thoughts that have been thought and expressed many times before* about a horrible event in human history and can add some gimmicks to OK prose, get cracking — you might win the lottery. The Holocaust and 9/11 have been done, but, I dunno, the Ukraine famine ordered by Stalin was also very horrible, and I’m sure a fictional precocious annoying kid has some things to say about it that sound a lot like what you’d say about it. Maybe try to get in touch with Stephen Daldry’s agent in advance. You might be able to follow that up with a book in which the reader can flip through pages that produce an accumulating pile of cash money, proving that we need to flood the market with English degrees.

*Since I was criticized in comments for assuming that the instantly forgotten but Oscar (TM) nominated film version of Extremely Loud and Incredibly Close would live down to the ghastly source material based on the preview and the director, I forced myself to watch at least an hour when I saw that it was on HBO. Unless you really enjoy attempted crude emotional manipulation that fails to even achieve its aim because of its simultaneous banality and pretentiousness, I would strongly advise against doing this. Tobias was, if anything, too kind.

[HT Corey Robin.]

The 9/11 Tribunals Are A Disaster

[ 78 ] April 21, 2014 |

A very useful, if enraging, account.  One important takeaway:

The Obama administration had hoped to prosecute the 9/11 case in a New York criminal court. But it reversed course in the face of security fears and criticism that the government would grant constitutional rights to terrorists.

While the military tribunals have been plagued by delays, the department has successfully prosecuted several terrorism cases in civilian courts. Most recently, prosecutors in Manhattan won a conviction against Sulaiman Abu Ghaith, the most senior adviser to Osama bin Laden to be tried in civilian court in the United States since 9/11.

Attorney General Eric H. Holder Jr. noted that the New York case had proceeded from capture to conviction in about a year. “It is hard to imagine this case being presented with greater efficiency or greater speed,” he said.

The arguments made against giving Khalid Sheikh Mohammed a civilian trial were horrible at the time and look even worse now. Dave Cullen has more on the current disaster.

The National Popular Vote

[ 159 ] April 21, 2014 |

Hendrik Hertzberg notes that a 10th state has signed on to the National Popular Vote initiative:

On Tuesday, the State of New York took a baby step—or maybe a giant leap!—toward making the United States of America something more closely resembling a modern democracy: Governor Andrew Cuomo signed a bill joining up the Empire State to the National Popular Vote (N.P.V.) interstate compact.

As I’ve explained many times (fifty-one, to be exact), N.P.V. is a way to elect our Presidents the way we elect our governors, our mayors, our senators and representatives, our state legislators, and everybody else: by totting up the voters’ votes—all of them—and awarding the job to whichever candidate gets the largest number. And it does this without changing a word of the Constitution.

Impossible, you say? No. Quite possible—even probable—and in time for 2020, if not for 2016.

As Hertzberg says, it’s instructive that while all 50 states have an independent executive and for better or worse 49 states have also chosen to copy the bicameralism of Congress, none has copied the electoral college. And no other liberal democracy uses it either. This makes sense, since given modern democratic norms it’s utterly indefensible. It was premised on two key assumptions (nonpartisan elections and the need to substantially filter popular control over representatives) that are are not only anachronistic in 2014 but we so immediately untenable it’s very likely that a constitutional convention meeting in 1802 would have chosen popular vote to elect the president. The electoral college has many obviously terrible elements — the potential to elect a non-winner in the popular vote contrary to basic democratic principles, rendering major states like New York, California and Texas irrelevant to presidential elections — without any serious corresponding benefits. Nobody uses it anywhere else because there’s no case for keeping it other than pure inertia.

Unfortunately, this doesn’t necessarily mean that it’s going anywhere. Silver is probably right about this:

Here’s the problem: All the states to have joined so far are very blue. Until some purple states and red states sign on, the compact has little in the way of territory to conquer.

As the chart below indicates, the relationship between whether a state has joined the compact and how it voted in 2012 is nearly 1-to-1. The seven states where President Obama won by the widest margins, along with D.C., have joined. So have three others — New Jersey, Illinois and Washington — where Obama won by at least 15 percentage points. But none below that threshold have done so.

To succeed, NPV needs support from the elites of both parties, and as of now it doesn’t have it. While as Silver says it’s not obvious that having a presidential election system that actually meets contemporary democratic standards structurally benefits either party (unlike, say, D.C. statehood) Republicans right now seem to see the NPV as an attack on the legitimacy of the Bush presidency. Probably the only way to create bipartisan action to work around or abolish the electoral college would be if both parties get screwed by the EC in successive elections. 150,000 more votes for John Kerry in Ohio in 2004 and we might have been rid of the thing, but as of now we’re probably stuck with it for a while more.

Post-WPSA Blogging

[ 40 ] April 21, 2014 |

Apologies for the light blogging recently, as I was in my beloved Seattle for the Western Political Science Association conference. I can report that it was a little harder for the political scienitists to be the biggest geeks in the hotel this year, but we managed to prevail:


The Success of the First ACA Open Enrollment

[ 106 ] April 18, 2014 |

Fundamentally good news:

President Obama on Thursday announced the final numbers for the Affordable Care Act’s open enrollment period.

Eight million people have signed up for private insurance plans through the new federal and state marketplaces. And within the federal marketplaces, 28 percent of enrollees are ages 18 to 34.

This is good news—very, very good news.

Granted, Real Progressives understand that reducing the number of uninsured is just horse race politics with no policy consequences, but for the rest of us this is a good outcome. And remember that were it not for the Taney Roberts Court and Republican statehouses, the numbers would be substantially higher.

And as Sarah Kilff says, the takeway is straightforward:

There’s a very simple reason that Obamacare hit 8 million sign-ups: Being uninsured is horrible.

But the political conversation over Obamacare was driven almost entirely by people who had, and knew they would be able to keep, their health insurance. It was filled with a lot of assumptions, theories, and speculations about what people who didn’t have good insurance, or any insurance, would do. And after Obamacare’s disastrous launch, the theory took hold that these people wouldn’t find this untested program worth the trouble. It was the permanently insured speculating about the uninsured and the barely insured – and, unsurprisingly, they got it wrong.

And for this reason, people who think it would be better for millions of people to go uninsured than for a rentier to skim a buck off the top are making a grotesquely immoral argument. “Incremental reform” might sound weak, but in this case it will mean alleviating substantial amounts of suffering and anxiety.

Innovations In Leftier-Than-Thouism That Always Happens To Be Rightier-Than-Thouism In Practice

[ 164 ] April 17, 2014 |

Shorter Lambert Strether: I’m baffled that anyone would think that reducing the number of uninsured, such as the net increase of 9.3 million with coverage, is an actual goal of health care policy. Even though I certainly used to think that when people thought my Republican talking point would be proven right! As Megan McArdle says, any good news can be preemptively rejected. Anyway, if only we had Hillary Clinton to enact Hillary Clinton’s health care plan rather than Obama enacting Hillary Clinton’s health care plan we wouldn’t have had any of these problems.

“…there was virtually no investigation at all.”

[ 198 ] April 16, 2014 |

The Amy Schumer sketch I linked to earlier today is, alas, applicable to a much wider array of institutions:

As she gave her account to the police, several bruises began to appear, indicating recent trauma. Tests would later find semen on her underwear.

For nearly a year, the events of that evening remained a well-kept secret until the woman’s allegations burst into the open, roiling the university and threatening a prized asset: Jameis Winston, one of the marquee names of college football.

Three weeks after Mr. Winston was publicly identified as the suspect, the storm had passed. The local prosecutor announced that he lacked the evidence to charge Mr. Winston with rape. The quarterback would go on to win the Heisman Trophy and lead Florida State to the national championship.

In his announcement, the prosecutor, William N. Meggs, acknowledged a number of shortcomings in the police investigation. In fact, an examination by The New York Times has found that there was virtually no investigation at all, either by the police or the university.

Definitely do read the whole depressing thing.

Congress, as some of you remember, attempted to create a civil remedy in cases where state authorities were negligent in sexual assault cases, but this was deemed inconsistent with the Republican war on federal civil rights enforcement via whatever doctrine can be invented or exhumed from the Taney Court. (U.S. v. Morrision, as it happens, also involved a case where a state university put the health of the football team above the security of the person of women on campus, reason the umpteenth for not putting states’ “rights” ahead of actual human rights.) Until conservatives on the Supreme Court rule the Civil Rights Act unconstitutional, however, the way Florida State handled the case is almost certainly illegal, and I hope the Department of Justice is investigating assiduously.

Go, Joe

[ 32 ] April 16, 2014 |

Evidently, Biden’s big mouth isn’t always a blessing, but on same-sex marriage it did indeed compel Obama to postmaturely do the right thing, and good for him.

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