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Tag: "civil liberties"

The Slow-Motion Death of Roe

[ 163 ] April 20, 2011 |

Dahlia Lithwick has an excellent article about the increasing willingness of state legislatures to restrict access to abortion. The facts are depressing:

Since the start of this year, 916 measures seeking to regulate reproductive health have been introduced in 49 states. According to the Guttmacher Institute, by the end of March, 15 laws had been enacted in seven states. These laws include an expansion of the waiting period in South Dakota from 24 to 72 hours and a requirement that counseling from “crisis pregnancy centers” include scientifically flawed data on risk factors. There are new regulations in Utah and Virginia governing abortion clinics. Legislation has been introduced in 13 states requiring that women have an ultrasound procedure before having an abortion—and in seven of those states, the woman must view the fetus and listen to a detailed verbal description as well. Measures have been introduced in 17 states copying a Nebraska law banning abortion at 20 weeks, on the theory—again based on questionable medical data—that this is when a fetus can feel pain.

As Lithwick points out, some of these regulations — especially ones that ban pre-viability abortions — contradict existing law. But perhaps the bigger problem is that many of these regulations don’t unambiguously contradict the existing law. It’s understandable that Planned Parenthood v. Casey is most commonly remembered today for its refusal to overrule Roe v. Wade; given the personnel of the Court, any ruling that didn’t overrule Roe outright was a pleasant surprise. But by upholding several arbitrary abortions regulations — including waiting periods and parental involvement requirements — that place a particular burden on poor and rural women, Casey also facilitated the piecemeal dismantling of abortion rights. Even the ban on some pre-viability abortions was encouraged by the repudiation Roe’s “trimester framework.”

While Roe set out relatively clear standards for what regulations were permissible, Casey’s vacuous “undue burden” standard makes it unclear (apart from perhaps an outright ban of first-trimester abortions) what regulations are legal and which aren’t. Like any “minimalist” standard Casey is only as good as the judge applying it. And given federal courts dominated by reactionary Republican appointments, in many states we’re returning to the pre-Roe status quo in which affluent women have access to safe abortions and other women are forced to the black market.

In Soviet Russia, Drugs Go to War on You

[ 15 ] April 18, 2011 |

The guy responsible for wasting in excess of $50 million prosecuting Barry Bonds is so Serious I’m surprised that Fred Hiatt hasn’t already given him a sinecure. If you’re the kind of guy who thinks that this prosecution was an intelligent use of taxpayer money, you probably also think that the use of the familiar quote from the 18th Brumaire to accurately describe the farcical nature of convicting someone for giving a rambling-but-accurate answer should be met with some red-baiting:

Prosecutor Matt Parrella, already spoiling for a venomous closing, derided Riordan’s argument. “As for the quotation from Marx,” Parrella scoffed, “it’s lucky we don’t live in communist Russia.”

Hopefully the appellate courts will be on the end of Parrella’s biting wit after they throw out the one conviction from this remarkably silly and wasteful prosecution.

Of course, any money that would be saved by telling prosecutors to find some actual criminals might go to things like going after online poker sites. Let’s just say that I continue to find the idea that holding prosecutors accountable for violating people’s civil rights is a luxury that taxpayers can’t afford…unconvincing.


The Bad Consequences of Republicans Winning Elections

[ 19 ] April 11, 2011 |

John Thompson has an eloquent reply to a bare majority of the Supreme Court’s appalling recent contention that nobody should be held accountable if prosecutors decide to railroad an innocent man to the death chamber.

…as an addendum, I think this point from Kieran’s recent post on the subject is worth highlighting:

To be fair to the system, it’s worse than that. Once the initial wrongdoing came to trial a jury, the district court, and the 5th circuit (twice) all decided the other way. It’s only when we get to Thomas, Scalia, Roberts, Alito, and Kennedy that the system chose to further institutionalize prosecutorial immunity.

It should be made clear that — even before we get to the fact that the Supreme Court can always choose to overrule or find ways around its own precedents — that while the existing law permitted the ruling issued by the Five Horsemen, it certainly didn’t require it: a majority of the federal judges to hear the case voted the other way.

Also, if the Scalia/Alito concurrence wasn’t enough of a window into the emptiness and brutality of contemporary conservative jurisprudence, I recommend the opinion in 5CA’s en banc ruling (technically, a split vote that therefore upheld the panel’s judgment in favor of Thompson) by wingnut’s wingnut Edith Jones. Among other gems, I like her assertion that “public confidence will erode if the public believe a prosecutorial office is motivated by the impulse to cover itself when challenged by difficult prosecutions.” Public confidence in the DA’s office, apparently, will not be eroded if prosecutors send innocent people to death row by violating their civil rights, so we needn’t worry about creating incentives discouraging DAs from illegal “difficult” prosecutions. And if by “public” you mean “Edith Jones” — which seems to be what she means — it won’t!

Don’t follow leaders

[ 95 ] April 5, 2011 |

Anyone who has blogged or indeed done any form of journamalism for very long has published things they regret, so it’s a bit unfair to focus too much on particular lapses of judgment by a good writers, especially whenever such authors, like Job and Robert McNamara, abhor themselves and repent (sort of).

So the point here isn’t to bash anyone in particular, but rather to focus on the substance of the claim that it makes sense to trust Barack Obama’s judgment over your own because he’s supposedly smarter, better informed, better able to understand the the consequences of his actions, and more far-sighted than you are.

On at least one level I would like to believe this is true — few people are completely immune to the attractions of authoritarianism, and it would be pretty to think that our leaders are at heart good parents, who want only the best for the sometimes wayward children they protect and defend.

But I would also like to think that when I became a man I put aside childish things, and a child-like trust in the authorities is one of those things.

So in general I don’t trust Barack Obama’s judgment over my own, and I see no reason to do so. The reasons given for doing so really come down to two: he’s smarter and better-informed than I am (I take “better able to understand the consequences of his actions” and “more far-sighted” as just specific examples of, respectively, having better information and being smarter).

But is this true? In what sense is Obama “smarter” than me (or you?). It’s become a platitude that intelligence comes in many forms, but it’s a platitude precisely because it’s true. Now it so happens that Obama’s demonstrated forms of intelligence — doing well in school and being a fluent writer — are ones we share. It also happens that the value of that kind of intelligence for the purposes of political leadership, while not negligible, tends to be overstated by fluent writers who did well in school. (In terms of sheer analytical intelligence, two of the top three presidents were probably Wilson and Nixon, who are also two of the very worst). Anyway, the claim that Obama can be trusted to make good decisions because he’s “smart” depends, to put it mildly, on a great deal of faith-based reasoning in regard to both his general intelligence and especially in regard to the degree to which the specific sort of intelligence he possesses translates into being a good leader.

Then there’s the claim that Obama is “better informed.” This could mean he’s better informed in general — better educated and possessing greater relevant experience — or it can mean more knowledgeable regarding the specific issue at hand. The first claim is weak. Obama’s education was a typical one for members of the professional classes in contemporary America, and his relevant experience for the office of the presidency was unusually slender for someone in his position. So, in my view, “trusting” Obama about Libya or Guantanamo or anything else comes down to the claim that he is privy to information that makes his judgment more trustworthy than yours or mine. Now obviously this is by nature an untestable proposition — the evidence for it being the kind of evidence that ex hypothesi isn’t available to you and me — but it’s worth noting that this is precisely the same claim that was made for why people should trust George W. Bush to “keep us safe” by locking people up forever without trials and torturing some of them in the bargain.

It goes without saying that a president is going to have access to some information that isn’t available to ordinary citizens (it should also go without saying that presidents are constantly trying to expand the extent of that information gap). But in the end, decisions such as whether to place people in “indefinite detention” rather than charging them with crimes and putting them on trial, or whether to engage in unilateral warfare in the pursuit of this or that supposedly crucial national interest or universal value, are at bottom matters of principle more than of pragmatic judgment. And on that score, there’s not the slightest reason to think that Barack Obama’s judgment is to be trusted any more than George W. Bush’s was — especially given the striking similarities in many of their policies regarding the central political and moral questions of their respective administrations.

With Notably Rare Exceptions, the New Orelans DA Doesn’t Railroad Innocent People to the Death Chamber

[ 26 ] April 2, 2011 |

More on Connick v. Thompson. I would excerpt, except that it might provide a disincentive to Read the Whole Thing.

I’m glad that Lithwick highlights the remarkable Scalia concurrence, which of course was joined by the most reactionary Supreme Court justice since James McReynolds.   Scalia and Alito actually take a more authoritarian position than the defendants themselves, arguing that 4 of the 5 prosecutors who conspired in the suppression of evidence that nearly got an innocent man executed didn’t act illegally despite their own admission:

By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated.

Yes, one explanation for why the dissent relies on the admission of Brady violations is that the dissenters secretly believe that conspiring to withhold evidence that proved to be exculpatory doesn’t violate Brady. The infinitely more plausible explanation is that Ginsburg didn’t think it required elaborate argument to establish a proposition that was admitted against interest by the defendants. Jeebus. As is so often the case, Scalia’s sneering is used to prop up arguments that collapse on the slightest inspection.

More from Healy.

The Roberts Court: Immunizng the American Criminal Justice System From Justice and Due Process Since 2006

[ 29 ] April 1, 2011 |

I have an article up at the Prospect about the most recent Roberts Court excrescence, which adds some further context.   I remain deeply unpersuaded by the majority’s reasoning that 5 prosecutors acting over nearly two decades doesn’t represent a pattern of misconduct — if that’s not enough, given the amount of serendipity that’s involved in uncovering even a single Brady violation we might as well just go ahead and say that administrators have absolute immunity too.    Of course, given the apparent belief of the Chief Justice of the United States that incentives that discourage prosecutorial misconduct are a bad thing, this is probably how the majority wants it:

The Court recently heard oral arguments in a case called Pottawattamie County v. McGhee, which involved a case in which a prosecutor procured false testimony and then introduced it at trial. The case was settled before the Supreme Court, and Chief Justice John Roberts twice fretted about the alleged “chilling effect” on prosecutors of not maintaining absolute immunity for prosecutorial actions at trial. As Radley Balko pointed out, the argument is bizarre in its misplaced priorities: “We want prosecutors to ‘flinch’ before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie.” And this unwillingness to create incentives that will discourage prosecutors from violating people’s rights is reflected in Thompson as well.

And making this all worse is the fact that the prosecutors working under Connick were already given absolute immunity (not required by Congress) for their actions as prosecutors in one of the Burger Court’s dizzier moments, which combined with this case creates a nice Catch-22 in which nobody in the prosecutor’s office can ever be held accountable for even the most flagrant rights violations. And that mistake, I should not, was cross-ideological: Brennan and Marshall joined a White concurrence attempting to limit the reach of absolute prosecutorial immunity but otherwise going along. With three decades’ hindsight, this was a mistake. I think the whole idea of absolute immunity for prosecutors is indefensible — the same qualified immunity received by police officers (and for prosecutors in the role as investigators) seems more than sufficient.

Speaking of Roberts Court Atrocities

[ 74 ] March 30, 2011 |

Let’s say you’re a DA, and your office has an extensive record of disregarding constitutional requirements that relevant evidence be disclosed to defendants and their counsel. This leads to things like a man sitting on death row for 14 years because you don’t turn over evidence that would have proven his innocence. You might be, understandably, subject to a jury verdict for damages based on your gross rights violations. But don’t worry, the Roberts Court will be there to protect you! As Blackstone must have said, better that one hundred innocent people be convicted than one DA be held liable for violating people’s constitutional rights.

The War (On Some Classes of People Who Use Some) Drugs

[ 4 ] March 25, 2011 |

Among its many bad elements tends to breed police corruption.

On Entrenching Gitmo

[ 36 ] March 9, 2011 |


It doesn’t of course — Republicans arguing that Gitmo is open because Obama has recognized the wisdom of using the facility is like a bully stealing a kid’s lunch money and then telling everyone he merely decided to make a shrewd investment. Gitmo is open only partially because of administration fecklessness; most of the fault lies with the cowardice of congressional Democrats and the cynicism — and political strength — of Republicans.

Like Glenn, I think this is somewhat too charitable to the administration — it’s true that the actions of Congress made it nearly impossible to close Gitmo per se, but a lot of the underlying problems that Gitmo symbolizes were policy choices made under Obama’s discretion.   And while procedural constraints may have improved a little, these improvements are not nearly adequate.

Today’s Supeme Court Scoreboard

[ 17 ] March 7, 2011 |

Due process 6, Texas-fried Catch-22s 3. The case is yet another reminder that Althouse and Stuart Taylor were right that Alito is no Scalia — he’s much, much worse.

…more here and here.

Court Properly Upholds First Amendment Rights of Hateful Speakers

[ 130 ] March 2, 2011 |

To its substantial credit, in an 8-1 ruling today the Court held that the civil suit against Fred Phelps violated the First Amendment. It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

…more from Liptak, ACSblog, and Jill.

The Court Again Confronts the Confrontation Clause

[ 57 ] February 28, 2011 |

I arrived to my office having finished two lectures that spent a fair amount of time discussing the confrontation clause of the 6th Amendment. I did not expect to find out that the Supreme Court had issued a new ruling, but today in Michigan v. Bryant the Court carved out a significant exception, provoking a fierce dissent from Antonin Scalia.

A couple of the landmark confrontation clause cases are very tough ones, pitting constitutional liberties against potential psychological damage to vulnerable victims. In Coy v. Iowa, the Court held that a trial that partially screened two alleged 13 year-old victims of sexual assault from the accused violated the Sixth Amendment. In Maryland v. Craig, the Court (over strange-bedfellows dissent written by Scalia and joined by the liberal icons Marshall, Brennan, and Stevens) held that a trial that permitted a six-year-old alleged victim of child abuse to testify by closed circuit television did not violate the 6th Amendment. These are very difficult cases, but I’m generally inclined to share the view of the four Craig dissenters.

Today’s case concerned the question of whether hearsay elicited from a dying victim could be admitted, even though it had been elicited by police officers who were trying to investigate the crime and would not be subject to cross-examination.  (For further explanation, see here.)  A 76-2 Court, speaking through Justice Sotomayor, held that the evidence was admissible because the statements were a response to an emergency situation rather than “testimony.” Justice Scalia’s solo dissent (Ginsburg dissented separately) critiques the opinion with characteristic equanimity:

Today’s tale…is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.

Whatever one’s opinion of Scalia’s tone, I have to agree with him on the merits here. It’s always tempting to put a large thumb on the scale when violent crime is involved, but neither the majority opinion nor Thomas’s concurrence mount arguments that I find convincing.   The idea that five successive officers tried to get information from a victim who was not in immediate further danger but were not trying to elicit testimony is highly implausible.

In terms of the bigger picture, this provides yet more evidence that if you care about civil liberties, you’ll take Scalia over Alito without hesitation. Since Ginsburg was the only liberal in dissent, one also has to wonder again if Justice Steven’s departure will leave a substantial void. Sotomayor’s record has been encouraging so far, so I hope this is a “hard cases make bad law” exception.

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