|Jul. 16th, 2013 @ 01:03 am Some Legal Discussion|
I said before I left for camp that I'd discuss current events, but didn't do so on my return. So I'll briefly discuss some of that now.
The Voting Rights Act Case (Shelby v. Holder) - The Supreme Court declared the formula for requiring certain jurisdictions to get federal clearance for changes in their election laws unconstitutional. Fortunately, this leaves room for Congress to reestablish the law on firm Constitutional footing by coming up with a new formula based on recent data. Unfortunately, there is no way the current Congress will do that.
The Prop 8 Case (Hollingsworth v. Perry) - The California gay marriage switch has been flipped back to on again after the Supreme Court denied the appeal on standing, ruling that proponents of a state ballot measure don't get to appeal a challenge to the constitutionality of that measure just because the state government refuses to do so. I wasn't surprised. The opinions are pretty interesting, though. Plus it was a very odd split on the ruling, with Sotomayor joining Kennedy, Thomas, and Alito on the dissent, Scalia joining Roberts, Ginsberg, Breyer, and Kagan on the majority.
The DOMA Case (US v. Winsor) - The Supreme Court struck down the part of DOMA that says the federal government doesn't respect same-sex marriages on equal rights grounds. The other part of DOMA (that allows state governments to not respect other state's same-sex marriages) was not at issue. There were also weird issues of jurisdiction on this case, given that both sides were arguing that the ruling should be upheld. The US government argued that they had standing to appeal the case based on the taxes they'd have to refund to Edith Winsor if DOMA was upheld, even though they didn't want DOMA to be upheld. Jurisprudence is supposed to be based on adversarial cases, the government is arguing in this case that the adversarial presentation of the issues is ensured entirely by amicus briefs. I can see why the Obama administration wouldn't want DOMA to apply to only part of the country, and wouldn't want to wait for all the District Courts to fall in line or for a split ruling to force the Supreme Court to hear the issue, but it's still pretty weird. Scalia's dissent is probably the most interesting part of the opinions here, a passionate and grumpy rant against "judicial activism" (in the most technically precise sense of the phrase):
[...] declaring the compatibility of state or federal laws with the Constitution is not only not the "primary role" of this Court, it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become "'the province and duty of the judicial department to say what the law is.'" That is why, in 1793, we politely declined the Washington Administration's request to "say what the law is" on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.(Would be an interesting exercise for law students to actually attempt this "scavenger hunt". Did Scalia do so for this case?)
Windsor's injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General's brief on the merits reads: "For the foregoing reasons, the judgment of the court of appeals should be affirmed." Brief for United States (merits) 54 (emphasis added [by Scalia]). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner's brief seeking an affirmance of the judgment against it.
Scalia also helpfully writes the argument against the other part of DOMA for the liberal part of the court in the tradition of grumpy-but-perspicacious conservative dissents (e.g. as in Griswald, Lawrence). Scalia is angry in advance that that other part of DOMA will also be overturned in time, and there's nothing he can do about it.
George Zimmerman's Murder Trial - The case is and remains a tragedy. I wouldn't have been happy to see the verdict go differently, given the evidence. I don't want juries convicting based on their personal belief that the defendant is a bad person. In this case, the law said to convict Zimmerman only if it was clear beyond a reasonable doubt that he didn't act in self-defense. But who knows what happened? There were only two witnesses to the start of the altercation, and one of them is dead. Physical evidence and witness testimony were compatible with scenarios where Martin got into a fistfight with Zimmerman under conditions that fall far short of the legal standard for provocation and with scenarios where Zimmerman intentionally and maliciously provoked a fight. I agree with this analysis.
Of course, protections for people who use lethal force in self-defense make it easier to get away with murder. And the whole scenario is steeped in racism, from Zimmerman's determination that Martin was a suspicious character to Martin's reaction to the "creepy-ass cracker" following him. And Martin surely didn't get any judicial due process. One could snarkily suggest that if you're frightened in Florida, you'd better run away or pull a gun and escalate to lethal force immediately. When everyone's frightened and fear excuses everything, half-measures will only get you killed. But that would be taking things in the wrong direction.