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Thomas: Not Scalia’s Sock Puppet

[ 1 ] June 19, 2007 |

The Supreme Court held this week that securities underwriting should not be subject to antitrust law. (Try to control your excitement please.) If I understand correctly from contacts who are actual experts in the field, what’s important about this case is not so much the outcome as the dicta, in which the Court rails against the ability of juries to apply antitrust law. Being a Breyer opinion it’s almost entirely a policy argument, and he argues that it is unwise to apply antitrust law to securities because of “the difficulty of drawing a complex, sinuous line separating securities-permitted from securities-forbidden conduct [and] the need for securities-related expertise to draw that line.”

At any rate, of interest to non-specialists is that while the rest of the Court’s current coalition of moderate Democrats, Rockefeller Republicans, and standard-issue Federalist Society reactionaries joined the opinion, Clarence Thomas dissented. Rather than making (dubious) assumptions about that capacities of juries, Thomas actually focused on the statute, noting that “the Securities Act and the Securities Exchange Act contain broad saving clauses that preserve rights and remedies existing outside of the securities laws.” Which, again, demonstrates that claims that Thomas are merely Scalia’s sockpuppet are very, very mistaken. In many respects he’s the most reactionary member of the Court, but he’s also much more consistent and principled than the other conservatives, and he’s not just a pro-business hack. (The work of Souter and Breyer on these recent securities cases, conversely, reminds us that what’s considered a “liberal” on the current Court is rather different than a Warren Court-era liberal.)

Speaking of which, in an example of successful marketing I’ve picked up the new book about Thomas. I’ll have commentary when I’ve read it.

Principles For Me, But Not For Thee

[ 0 ] June 19, 2007 |

Mitt Romney edition.

Stop Stealing My Excuses!

[ 0 ] June 19, 2007 |

Friend of Scott: Hmm, maybe a movie this weekend. What’s your cell #?

SL: I don’t have one.

FOS: What? Are you blowing me off?

SL: No! I really don’t have one.

FOS: What a pain in the ass! Let me guess — you’re a bitter crank who takes a certain perverse pleasure in not having a cell phone, even if it makes spontaneous organizing impossible.

SL: Er, no. I have very sound, principled reasons for not having one, which I would be happy to elaborate. Oh, look at the time — I think Yankeeography: Andy Stankiewicz comes on in an hour, I’d hate to miss that!

FOS: Don’t change the subject! Anyway, what about the i-Phone? Isn’t that like the coolest thing ever?

SL: I guess. But isn’t the battery life, like, 30 seconds? You’d be trying to call me to say that, on second thought, you’ll take a pass on the “Outtakes From the Films of Robert Bresson” festival, and it would be dead! I don’t think that solves anything!

FOS: Well, that was the initial report. But it turns out that the battery life will permit 8 hours of talking and 6 hours on the intarweb. So you have to get one!

SL: I, er, but don’t they, ah, cause brain cancer or something? Hey, look, someone pushing a baby carriage! Who would have thought you’d see that in Park Slope?

[exeunt.]

But Hating Youself is Healthy

[ 0 ] June 18, 2007 |

Vanessa provides yet another example of the countless benefits derived from stigmatizing the weight of young women, which is about health, not aesthetics, oh yeah:

…a new trend has been developing among young diabetic girls who are skipping or reducing their insulin injections as a means of losing weight.

“Diabulimia” is apparently on the rise, and is extremely dangerous not only obviously because of the severe weight loss often involved with having an eating disorder, but the risks of a decrease in insulin, including blindness, damage to the kidneys and limbs, and could eventually result in a coma and/or death.

I hope this particular pathology will be limited, but the prevalence of anorexia in itself enough to dismiss claims that stigmatizing weight is about health.

The Problem With Marty

[ 0 ] June 18, 2007 |

Alterman is on the case:

It is a sad but true fact of American political life that liberals rarely exercise so much influence as when they happen to be endorsing conservative causes, and this temptation has proven consistently irresistible to Peretz and his magazine. TNR under Peretz has been a vehicle that proved extremely helpful to Ronald Reagan’s wars in Central America and George Bush’s war in Iraq. It provided seminal service to Newt Gingrich’s and William Kristol’s efforts to kill the Clinton plan for universal health care and offered intellectual legitimacy to Charles Murray’s efforts to portray black people as intellectually inferior to whites. As for liberal causes, however … well, not so much.

And in addition to this, there’s the stable of legal writers who think we need to burn Roe in order to save reproductive freedom for affluent urban women or something.

New Blood

[ 0 ] June 18, 2007 |

Photo Sharing and Video Hosting at Photobucket

“Aw, if they hire a woman we won’t be able to spit on the floor.”
“And we can’t take off our pants when it gets real hot.”
“And we won’t be able to pee in the drinking fountain…Er, I mean, not… you know, if we wanted to… not that I ever did…”

It was recently brought to our attention by the Department of Justice that Lawyers, Guns, and Money does not employ a single woman. We were congratulated and offered a Medal of Freedom and free attendance at a Federalist Society banquet featuring Sam Alito and Bob Bork. Despite the temptation, the staff at L, G & M decided that it’s about time to we hired a woman, and some of this blog’s most fervent admirers have complained about the lack of lawyers as well. To address all of the first problem and large parts of the second, we’re pleased to announce that our recent guest blogger Bean (of A Bird and a Bottle) will be joining us full time. Bean has just finished 2L at an Elite New York Law School. Some of her interests–in feminism, constitutional law, and pop culture, for example–will be familiar. And she will also bring added depth and expertise to issues like The War on (Some Classes of People Who Use Some) Drugs and criminal justice, which we don’t cover as much as I would like, as well as some interests of her own. And most importantly (although I swear I didn’t know this until after she got the gig), she’s a hockey fan. Welcome her to our community!

Judicial Discretion and Mandatory Minimum Sentences

[ 0 ] June 17, 2007 |

Marcy Wheeler points us to this story about the administration’s call for mandatory minimum sentences in light of a Supreme Court ruling that federal sentencing guidelines are merely advisory. (This will be tested in an upcoming Supreme Court case where a judge’s decision to ignore a the minimum sentence suggested in a drug case was overruled on appeal.)

Where drug cases are concerned, I think it’s important to keep a couple issues distinct. Restricting judicial discretion, per se, is not necessarily a bad thing. Sentencing discretion given to judges must balance its good points (the ability for careful consideration of particularized circumstances) with the bad points (the potential for arbitrary justice in which the severity of sentences turns not on case facts but on the luck of the docket and the identity and status of the defendant.) For this reason, it’s dangerous to conflate drug law reform and increased judicial discretion. Allowing judges to refuse to apply draconian minimum sentences for drug possession is, I suppose, better than requiring them in all cases, but it’s not a very effective remedy for the underlying injustice. The defendants lucky enough to get this consideration are more likely than not to have better-than-typical lawyers able to negotiate better deals, and people with these lawyers are likely to be wealthier and whiter than the typical person convicted on drug charges. The fundamental problem with harsh mandatory minimum sentences for drug possession isn’t that they restrict judicial discretion, it’s that they’re bad laws, period, accomplishing not much of anything worthwhile at immense expense. Giving a few lucky people a nearly random pass doesn’t really address the underlying problem.

Conservertarianism, Ladies And Gentlemen!

[ 0 ] June 17, 2007 |

Shorter Ace O. Spades, Heterosexual, as linked by nonpartisan libertarian Glenn Reynolds: “Gay men aren’t actually men.”

Punk’d!

[ 0 ] June 17, 2007 |

The Times on the Bowles decision:

If the Supreme Court, with its new conservative majority, wanted to announce that it was getting out of the fairness business, it could hardly have done better than its decision last week in the case of Keith Bowles. The court took away Mr. Bowles’s right to challenge his murder conviction in a ruling that was so wrong and mean-spirited that it seemed like an outtake from MTV’s practical joke show “Punk’d.”

Mr. Bowles, an Ohio inmate, challenged his conviction in federal district court and lost. The court told Mr. Bowles that he had until Feb. 27 to appeal. He filed the appeal on Feb. 26, and was ready to argue why he was wrongly convicted. But it turned out the district court made a mistake. The appeal should have been filed by Feb. 24.

The Supreme Court ruled, 5 to 4, in a majority opinion written by Justice Clarence Thomas, that Mr. Bowles was out of luck, and his appeal was invalid. So much for heeding a federal judge.

The decision was wrong for many reasons. The Supreme Court has made clear in its past rulings that deadlines like this are not make-or-break. Appeals could still be heard, the court recognized in the past, if there were “unique circumstances” that accounted for the delay. Clearly, following an order from a federal judge is such a circumstance.

Courts also have the authority to create an exception to the rules in the interest of fairness. The Supreme Court has recognized that an “equitable exception” should be granted when a party has relied on an order from a federal judge. By refusing to do so now, Justice David Souter argued for the dissenters, the court was saying that “every statement by a federal court is to be tagged with the warning ‘Beware of the judge.’ ”

The four dissenters distilled this case perfectly when they said, “it is intolerable for the judicial system to treat people this way.”

Indeed.

Submitted Without Comment

[ 0 ] June 16, 2007 |

Really, what can you even say about Insta/House at this point? It’s all merely unserious in an offensive way until rape threats and defamation are equated with criticizing other people’s blog posts. See also here.

Bait-n-Switch

[ 0 ] June 15, 2007 |

In a 5-4 division of justices I’m already sick of, on Thursday the Supreme Court overruled two precedents to throw out an appeal to a murder conviction as being outside of the deadline, even though 1)the filing was within a deadline given by a federal district court judge and 2)opposing counsel didn’t even object to the filing on technical grounds. Chief Justice Kafka assigned the case to Clarence Thomas, although his position as the “youngest, cruelest justice” has been supplanted by Sam Alito.

Thompson: Griswold Was Wrong

[ 0 ] June 15, 2007 |

I suppose there’s nothing terribly surprising about Fred Thompson asserting that Roe v. Wade is the worst Supreme Court decision since 1967. And nor is it surprising that he would repeat the abject nonsense that overturning Roe would “send the issue back to the states” (a claim that the Supreme Court’s decision to uphold the arbitrary federal ban on “partial-birth” abortions in Carhart II makes straightforwardly false.) Since many anti-choicers are smart enough to be vague about this, however, it is worth noting the significance of Thompson’s claim that Roe was “was fabricated out of whole cloth.” If one argues that Roe has no basis on constitutional jurisprudence, however, then it’s not only Roe but Griswold that is wrong.

If Democrats are smart, this should be a major weapon against Thompson and any Republican who makes similar arguments. As Amanda notes, Roe is a popular decision, generally favored by 2-to-1 majorities. It should be pointed out often that Thompson opposes any constitutional right of privacy, which means not only that the states and the federal government can force a woman to carry a pregnancy to term under virtually all circumstances, but they can also prevent married couples from using contraception in their own homes. Supporters of reproductive freedom should be able to use these openings to move the debate onto favorable ground.

…to clarify something that seems to be coming up in comments, I am not arguing here that Thompson must be opposed to Griswold because he’s against Roe. I am arguing that he is logically opposed to Griswold because he argues that Roe is “made up out of whole cloth.” As Justice Stevens has argued, “I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more “fundamental” to the individual’s freedom than the other, surely it is the postconception decision that is the more serious.” If Griswold is correct, there must be at least a basis for Roe. It is possible to argue that a woman has an interest in reproductive freedom that in the case of abortion is trumped by a state’s interest in fetal life, but that’s not what Thompson (or Bork) are arguing.

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