Musing's musings

So what's next?

The Supreme Court ruled 5-4 today that corporations' right to free speech (in the form of campaign contributions, anyway) cannot be "abridged" by the Federal Elections Commission. This decision is but the latest in a century-long line of cases that effectively treats corporate entities as persons. So, to borrow a rhetorical device from the conservative majority that handed down this piece of drivel today, how long is it going to be until the Supreme Court recognizes a corporation's right to marry? (And how will they decide which corporations are male and which are female, since the federal government only recognizes "opposite" marriages?) Will the same five justices grant certiorari when a corporation is sentenced to death? (And, if they don't, how will the execution be carried out?)

I've already seen one call for a constitutional amendment to overturn this unwise decision by the Roberts court. I've also seen a couple more calls for Congress to pass legislation to undo the worst bits of it. But I have a simpler and quicker solution. If corporations are going to be recognized as persons for the purpose of making campaign contributions, then simply pass a law requiring them to adhere to the same contribution limits as everybody else: $2,400 per candidate per election, $30,400 to a national party committee per year, $10,000 per year to state, local, and/or district committees (combined), and $5,000 to any other committee.

Is that so, Senator?

The presumptive Republican nominee for president, Senator John McCain, speaking to around 1,500 people in New Jersey today, opined that yesterday's Supreme Court decision (PDF link) affirming the right of detainees in Guantanamo Bay to habeas corpus relief in the U.S. courts was one of the worst ever handed down:

The United States Supreme Court rendered a decision yesterday that I think is one of the worst decisions in history.

O rly? Worse even than, say, any of these greatest hits?

• Dred Scott v. Sandford (1857), in which the Chief Justice of the United States, Roger B. Taney, wrote that black people were "...beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."
• Plessy v. Ferguson (1896), in which the Court, virtually unanimously (save for the brave dissent of Justice Harlan) upheld the constitutionality of segregation, giving us the infamous "separate but equal" doctrine that prevailed until the civil rights era of the 1960s.
• Buck v. Bell (1927), in which Oliver Wendell Holmes (of all people!) wrote for a virtually unanimous Court that compulsory sterilization of the mentally handicapped was constitutional, closing his argument with the infamous and iniquitous phrase, "Three generations of imbeciles are enough."
• Korematsu v. United States (1944), which upheld the internment of American citizens and lawful permanent residents of Japanese descent without ever proving they had committed any crime.
• Bowers v. Hardwick (1986), in which an (arguably senile) Justice Byron White and a 5-4 majority upheld the right of the government to criminalize consenting sexual behavior in private between persons of the same gender.
• Bush v. Gore (2000), the infamous 7-2 per curiam decision that handed the presidential election to the Boy Who Won't Be King Much Longer, and began the eight-year nightmare which has been the Hedgemony. The justices were so embarrassed by their decision in that case that they refused to sign their names to it.

"Don't ask, don't tell": Don't keep it

According to Agence-France Presse, a federal appeals court in Boston has thrown out Major Margaret Witt's lawsuit challenging the Pentagon's (in)famous "don't ask, don't tell, don't pursue" policy. The court, striking down a previous ruling by a San Francisco appeals court (and I'm dying to know how an appellate court in Boston has jurisdiction over an appellate court in San Francisco--but this one is headed to the U.S. Supreme Court as sure as the sun rises in the east, unless there's some awfully quick fixin' done on Capitol Hill, about which I am, shall we say, less than entirely sanguine), argued that the courts owe "special deference" to Congress on matters regarding military policy.

That deference is quite traditional. It is, I would argue, equally wrong-headed, at least in some circumstances. I would not expect a court to get involved in a dispute, say, between a battalion commander and his or her superior officer about which was the correct strategy to employ to achieve a given tactical objective. But when it comes to something as fundamental as the right of any citizen to serve in this nation's armed forces without being discriminated against on the basis of any invidious characterization, that's another kettle of fish entirely. And that, ultimately, is exactly what Major Witt's lawsuit is about.

The Pentagon itself admitted, not long after the policy was implemented in the early 1990s, that it was fundamentally wrong-headed. That fact has been amply and repeatedly reiterated in the nearly two decades since then, each and every time we hear about another qualified officer or linguist or servicemember being kicked out--in what the Hedgemony is forever proclaiming to be a time of war--for the simple and irrelevant fact that s/he is sexually attracted to members of the same gender.

Big fat hairy fuckin' deal. Most of our major defense partners allow openly gay or lesbian individuals who are otherwise qualified to serve in their armed forces. They don't report discovering mass orgies in the gang showers, or massive desertions (or even requests for transfer) when "the unit" discovers "one of them" in its ranks. The world has not, to the best of my knowledge and belief, come to an end--and I think we are on safe ground in concluding that it will not do so should the United States decide to stop wasting valuable personnel whom it desperately needs in uniform, just because those individuals happen to be gay or lesbian or bisexual.

I do not think that word means what you think it means, Mr. Chief Justice

So the Supreme Court ruled yesterday in two First Amendment cases. The first upheld the right of corporations and unions to subvert the political process through misleading so-called "issue ads" inside the windows set by the McCain-Feingold campaign finance law. The second dealt with the case of a student who was disciplined for holding up a banner reading Bong Hits 4 Jesus.

Both decisions were disappointments, and both were 5-4 split decisions, with the two new conservative nominees, Chief Justice Roberts and Justice Alito, tipping the scales in favor of a radical departure from the court's previous decisions in both lines. I would further argue, however, that the two decisions offer a perfect illustration of the intellectual bankruptcy of the neo-conservative movement.

The money quote from the McCain-Feingold case was cited by the New York Times and NPR that I know of. I'm sure others carried it as well. In his opinion, the chief justice wrote that "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

That's actually not a bad rule of law. When a fundamental civil right is in question, the courts in any just society ought to come down on the side of the right whenever possible.

The problem I have with those words in the mouth of the chief justice is that if he truly believed them, he would have to have voted the other way on Morse v. Frederick. There, too, the First Amendment was implicated. But in that case, the chief justice decided to award the decision to the censor, not to the speaker.

True, the cases are not exactly parallel. The appellee, Joseph Frederick, was still in high school when he unfurled his banner at a school-sponsored rally for the passage of the Olympic torch through his hometown in Alaska. He was, however, 18 years of age or nearly so at the time, and he was standing on a public sidewalk where a reasonable bystander would have been hard-pressed indeed to connect either the young man or his sign with his school. And, as even the chief justice admitted, the message on his sign was "cryptic."

All of those considerations lead me to believe that the Court should have followed its brand-new precedent in the McCain-Feingold case and awarded the former student the damages he sought following his suspension from school and the consequent loss of his father's job. The chief justice, however, demurred on the grounds that the school principal's construction of "Bong Hits 4 Jesus" as somehow being a pro-drug message was not per se unreasonable.

I suppose one might be able to reach such a conclusion. If one were a typically drug- and vice-obsessed conservative. Perhaps. Mr. Frederick's banner did not advocate for the legalization or the use of any drug. Indeed, one has to read into the phrase "bong hits" to arrive at any kind of a drug message at all. To go from there to advocacy, one would have to imply a verb that is not even present in the sign's message.

A far more plausible construction, it seems to me, is the one the author thereof himself wanted to put on it--a catchy, funny phrase that he thought would guarantee at least a brief appearance on the television coverage of the torch relay. The fact that he was for all intents and purposes a legal adult at the time, and that he made his banner and displayed it off of school grounds, should, by my lights, have excused him from the school's tutelage on the occasion. It would have been different had he tried to hang that banner above his locker on school grounds, but he did not do so. Given that there was virtually no way to associate the young man standing on a street corner holding a quirky banner with that particular school, I think it stretches credibility (to say nothing of the law) to suggest that the school should still have been able to exercise quasi-parental authority over him: especially since he broke no laws by doing what he did.

Yes, he was technically attending a school-sponsored function. But attendance at that function was not required, and no attempt was made either to take attendance or to regulate the students who chose to attend in any way. The courts have held that schools have some enhanced rights to restrict the free expression of their students when that expression poses a problem or creates a diversion from the educational mission of the school. But I have a hard time seeing how anyone could reasonably argue that the events of the instant case posed anything like such a disruption.

And so I am disappointed. It would appear, at least based on the jurisprudence handed down by the highest court in the land yesterday, that corporate persons who do not technically enjoy civil rights are now freer than actual persons who do enjoy such rights. And that's just plain wrong.

"Bong hits 4 Jesus"

Unfurling a 14-foot banner with those words on it five years ago in Juneau, Alaska, got Joseph Frederick suspended from school for 10 days, and lands him and his former high school principal in front of the Supreme Court today.

The court's ruling should be a no-brainer, and Ken Starr, who is appearing on behalf of the school district and the Shrubbery, should have advised his clients they were wasting their time and money filing the appeal. The principal's actions in tearing down Frederick's banner and suspending him for exercising his First Amendment right to free speech on a public sidewalk are clearly inconsistent with the Court's holding in Tinker v. Des Moines Independent Community School District (393 U.S. 503 [1969]). As the Court ruled in that case:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved (at 511).

But that actually isn't the issue I want to talk about. In her report on the background of the case on NPR this morning, Nina Totenberg mentioned (beginning at 00:34 in the linked audio file) that Frederick had tangled with school authorities before the Olympic torch parade at which he unfurled his controversial banner. School officials, Totenberg said, had earlier threatened to suspend him for refusing to stand for the Pledge of Allegiance.

Does no one bother to teach prospective principals and school administrators at least the basics of constitutional law as it applies to public education anymore? If not, why not?

Threatening to suspend a student who refuses to stand for the Pledge is also an impermissible exercise of government authority inconsistent with constitutional law. Just over 60 years ago in 1943, the Supreme Court ruled, in West Virginia v. Barnette (319 U.S. 624), that schools could not compel students to salute the flag and recite the Pledge of Allegiance as a condition of enrollment, or discipline them for refusing to do so. As Justice Robert H. Jackson observed in that case (at 637):

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Justice Jackson absolutely nailed the issue in his final sentence. Anyone who thinks that we can instill patriotism or respect for government by compelling students to recite words by rote, or by carefully limiting their exposure to ideas or opinions deemed controversial (and limiting their rights to have or to express such ideas) is arguably deluded. But before the wingnuts start quoting me on that, let me make it perfectly clear that I do believe schools can--as the courts have ruled time and time again--place time and manner restrictions on students' right to express their beliefs, particularly when those beliefs have as their sole or primary objective to dismiss, belittle, or injure other students and/or their beliefs, or to disrupt the educational mission of the school.

Our Constitution guarantees us the right--and, I would argue, imposes upon us the duty, when we believe our government is acting wrongly--to speak up and criticize. No public official is immune from that criticism, and no public policy has an automatic right to be respected. Surely that is something just as important for our students to learn as the basics of reading, writing, and arithmetic. Anyone who believes otherwise really ought not to be in public education.

Unanimity neither necessary nor desirable

Speaking yesterday at commencement exercises for the Georgetown University Law School, Chief Justice John Roberts opined that:

There are clear benefits to a greater degree of consensus on the court. Unanimity or near-unanimity promote clarity and guidance for the lawyers and for the lower courts trying to figure out what the Supreme Court meant.

Roberts may be right, as The Hoya noted, that "by issuing narrowly tailored decisions, the judiciary could encourage more agreement among its members." It does not follow, however, that such narrowly tailored decisions (or such agreement among members of the judiciary) will necessarily be right, or even that they are correctly decided. Unanimity for the sake of unanimity or in pursuit of a mythical collegiality on the bench, is a fool's errand. It should have no place in our judicial system.

I have a caveat to get out of the way before I plunge headlong into this discussion. I'm not a lawyer. I don't play one on TV. I've never sat a course in law (though I've had courses which included considerable legal content). I'm just an educated amateur--so it's possible that there are nuances to this argument that I'm missing. But I think Roberts is flat wrong on this. I'll explain why below the fold.

Maybe I'm too cynical...

But the more I look into the Worst. President. Ever. deciding to try and resurrect the line-item veto, the more I wonder about both the man's sanity and his motives. We can start with the fact that the Supreme Court nixed the idea of a line-item veto nearly a decade ago, by a 6-3 vote in 1998's Clinton v. City of New York.

Bush had an answer for that:

Bush said the 1998 court decision "should not be the end of the story" and said the legislation would be crafted in a way to satisfy the court's concerns.

The cynical part of me thinks that the reason the 1998 decision shouldn't be the end of the story is primarily that George the Unready doesn't think he should have to follow any laws he doesn't like (as witness, for example, his insistence that his signing statements should be allowed to trump provisions in the laws he signs). And I'd really like to see Congress come up with a bill that would "satisfy the court's [sic] concerns," given that those concerns were, as explicitly stated in the opinion, that "that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution." In other words, it wasn't some fiddlin' technicality that the Court was worrying about: it was a flat-out violation of our basic law. I don't foresee much luck in working around that problem.

Then I hit this section in the Court's opinion, and another thought struck me:

The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105–33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.” Art. I, § 7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105–33 would not have been validly enacted.

Clinton v. City of New York, 524 U.S. 417, at 448 (emphasis added).

Eppur, si muove

So, the filibuster was busted: and by quite a comfortable margin. In addition to the usual suspects (i.e., the Democratic half of the Gang of Fourteen: Lieberman, Byrd, Ben Nelson of Nebraska, Landrieu, Inouye, Pryor, and Salazar), a round dozen of Democrats voted to cut off debate on what is potentially the most important federal nomination in a generation. The Dirty Dozen Dems were: Akaka, Baucus, Bingaman, Cantwell, Carper, Conrad, Dorgan, Johnson, Kohl, Lincoln, Nelson of Florida, and Rockefeller. It will be a cold day in hell before any of these people (including Senator Byrd, from whom I received another solicitation this very day) get a penny from my pocket.

However, I quite agree with Meteor Blades who, though he'd "...like to kick the aisle-crossers all the way down Pennsylvania Avenue and back," rightly notes that "...we need to invest the next week into making something useful out of next Monday's Senate Judiciary Committee's hearings on 'Wartime Executive Power and the NSA's Surveillance Authority.'" It's all over on BorkAlito but the celebratory shouting we'll hear from the Shrubbery and its cronies tomorrow night. So let them have their little fling--and then we need to get our asses out on the streets and make damn sure it's their last.

Say whaaaa?

I was puzzled by the headline on this Reuters story, having already seen the poll results discussed elsewhere. The headline reads "Most Americans back Alito for Supreme Court," but if you actually read the story, the lead graf states that "Public support for Senate confirmation of U.S. Supreme Court nominee Samuel Alito grew slightly to 54 percent... (my emphasis)." I would not call 54% "most" of anything. It's barely more than half. "Most" is normally reserved for pluralities in excess of 75%--and BorkAlito is nowhere near that margin. Chalk that up as one more data point refuting the hypothesis that the media have a liberal bias...

And the hits just keep on comin'. I was dismayed to learn (from Bark Bark Woof Woof), upon returning home from a long day helping my mom wrap up loose ends after her mom's death, that NBC has cancelled The West Wing, effective at the end of the current season.

As I remarked in a comment at Bobby's place, I think NBC's timing stinks. If they wanted to cancel the show even before John Spencer's recent untimely death (as alleged in the AP story linked to above), they shouldn't have chosen to make this season all about the election of Jed Bartlet's successor. We spend all season working through one of the show's best story lines since creator Aaron Sorkin left, and then NBC pulls the plug on us as soon as we've hit the dénouement. That well and truly blows.

And frankly, I can't quite agree with Bobby's premise that The West Wing is "going out at or near the top of its game." For that to have been true (in my book, anyway), the show would have to have ended somewhere after the midpoint (but before the end) of the fourth season, when Sorkin was still writing it, and before introducing the whole kidnaping-of-Zoey story arc that led to the 25th Amendment arc that started the fifth season.

I bought the fifth season of The West Wing on DVD after exchanging a couple of duplicate DVDs I received for Christmas last year. I haven't finished watching all of the discs yet. In fact, I don't think I've watched more than the first one. Part of that has to do with the fact that life has been getting in the way of my TV and movie watching for much of the last year. But part of it has to do with the fact that there are fewer and fewer classically fabulous episodes of the show with each season that passes. The first two seasons are chock full of them: but I can't think of a single one that stood out from the fifth season (or the current season, the seventh and last--at least of those yet broadcast). The show hasn't lost its appeal for me, but it's definitely a shadow of its former glorious self.

I wish I'd said that!

NTodd has the perfect suggestion for the Senate at the start of the Scalito confirmation hearings today: Advise and do not consent. Succinct, to-the-point, and easy to repeat. Let's wear it out, shall we?