Author Archive: Ann Althouse

“WHAT CHUMPS!” wrote Chief Justice Roberts, dissenting in Arizona State Legislature v. Arizona Independent Redistricting Commission.

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

JUSTICE BREYER “SAYS THAT THE DEATH PENALTY IS CRUEL because it is unreliable; but it is convictions, not punishments, that are unreliable,” writes Justice Scalia in today’s Glossip v. Gross.

The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment….

Justice Breyer next says that the death penalty is cruel because it is arbitrary. To prove this point, he points to a study of 205 cases that “measured the ‘egregiousness’ of the murderer’s conduct” with “a system of metrics,” and then “compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remaining 196 cases [who were not sentenced to death],” post, at 10–11. If only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum “system of metrics.”…

It is because these questions are contextual and admit of no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure….”

DELAWARE SEEMS SO IMPORTANT, DOMICILE TO SO MANY CORPORATIONS. But it no longer has an any commercial air service — the only U.S. state in that predicament. But the state is so small. Enter through Philadelphia. Or just think of it as a imaginary place. Over the years, when I’ve told people I was born in Delaware — true fact! — they’ll say things like  I thought only corporations were born in Delaware.

LOTS OF ACTION IN THE SUPREME COURT THIS MORNING. The lethal injection is saved in a 5-4 decision. There’s a lively Breyer dissent rejecting the death penalty across the board, to which Scalia and Thomas respond vividly in concurrences. Alito writes the main opinion (which I typo’d as “the man opinion” on my home blog). Arizona’s use of an independent commission for legislative redistricting is upheld 5-4. Scalia has the EPA case, which is also 5-4, so you can picture where that came out. All 5-4 cases, all in the conventional liberal/conservative split. Sorry not to write more on all of this over here!

ADDED: From Alito’s opinion in the death penalty case (Glossip v. Gross, PDF):

[W]e find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

AND: To be clear, Justice Breyer finding “highly likely” the death penalty is unconstitutional across the board and calls for a full briefing on the subject.

2 QUESTIONS FOR THE PRESIDENTIAL CANDIDATES IN THE AFTERMATH OF THE SAME-SEX MARRIAGE CASE.  I’m extracting these questions from something Lindsey Graham said on “Meet the Press” this morning when he was asked what he thought about the same-sex marriage case:

I think it’s a transformational moment. There are a lot of upset people who believe in traditional marriage. They’re disappointed, they’re down right now. But, the court has ruled, so here’s where I stand. If I’m president of the United States, here’s what would happen. If you have a church, a mosque, or a synagogue, and you’re following your faith, and you refuse to perform a same-sex marriage, because it’s outside the tenets of your faith. In my presidency you will not lose your tax-exempt status. If you’re a gay person or a gay couple, if I’m president of the United States, you will be able to participate in commerce and be a full member of society, consistent with the religious beliefs of others who have rights also.

Here are the questions:

1. Will you pledge that religious organizations that refuse to perform same-sex marriages will not lose their tax-exempt status?

2. Who do you think should prevail if there is a conflict between the interests of gay people — as they engage in commerce and seek full membership in society — and the interests of religious people — as they try to frame their conduct to accord with the tenets of their religion?

WHAT I’D LIKE TO KNOW IS: how did Roberts decide that this is the kind of issue ‘courts usually decide’? That itself is a decision. What’s the standard for saying the Supreme Court shouldn’t decide an issue? Is it just based on whether the Justices have a bad feeling about the whole thing? And aren’t issues of minority rights exactly the kinds of issues that are often very important for the Supreme Court to decide?”

And: “The comments appear to be uniformly negative in response to Scott Walker’s denunciation of the Supreme Court’s marriage decision on his Facebook page…”

ADDED: Scott Walker showed a far superior instinct back in January. What’s happened since then?

MUMMERIES, PUTSCH, AND HUBRIS. The 3 words of the day, in my view, reading Justice Scalia’s dissent in Obergefell v. Hodges. Scalia accuses the majority of engaging in “mummeries,” and a “mummery” is a “Ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical).” That’s from the Oxford English Dictionary. “Putsch” and “hubris” come up in a single phrase: “the hubris reflected in today’s judicial Putsch.” A “putsch” is “An attempt to overthrow a government, esp. by violent means; an insurrection or coup d’état.” That’s the OED again. “Hubris” Scalia himself defines. It’s “o’erweening pride.” To which he adds that “pride, we know, goeth before a fall.” I don’t see how Scalia comes across as any less hubristic for taking the dissenting side. There’s “hubris” in the mummery of humility. You see that all the time in judges. As for “putsch”… that’s one of these silly extravagances. (“Silly extravagances” — I got that phrase from the Scalia opinion: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”)

ADDED: There are some abusive comments on this post, which I depict on my home blog here. Some of the abuse is based on the misimpression that I only mined Scalia’s opinion for these language tidbits, but I go through the whole thing at length on my home blog, here.

“MARRIAGE RESPONDS TO THE UNIVERSAL FEAR THAT A LONELY PERSON MIGHT CALL OUT ONLY TO FIND NO ONE THERE.” That, to my eye, is the most memorable line in Justice Kennedy’s opinion for the majority in the same-sex marriage case, Obergefell v. Hodges — the reading of which I just “live-blogged” over at my home blog, if you’re interested.


ADDED: The Chief Justice ends his dissenting opinion (PDF):

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

That’s flashy and will get attention and lots of commentary, including this from me: Celebrate weddings, not court opinions. Peruse court opinions and decide if the reasoning and the precedents fit together well. Don’t let judicial rhetoric push you around. This outcome was thoroughly predictable because it followed so clearly from the precedent. That was obvious at the oral argument. I haven’t read the decision yet, but I’m going to, and I’m not going to let The Chief Justice tell me what I should or should not celebrate.

AND: “Marriage responds to the universal fear that a lonely person might call out only to find no one there,” wrote Justice Kennedy, explaining the second of 4 reasons why the due process right to marry applies to same-sex couples even though the precedents all assumed marriage was between a man and a woman.

PLUS: A poll: What do you think of the Court’s opinion in the same-sex marriage case?

I’D LIKE TO SEE MISSISSIPPI DERIVE ITS NEW FLAG from its excellent state quarter. Flowers have been traditional elements on flags, and Mississippi can rightly take pride in its excellent performance in the state quarter competition. To my eye, Mississippi was second only to Connecticut. I know I’m an outsider, but that magnolia image comes from inside the state.

40-YEAR-OLD MEAT, sold to consumers in China.

WE’LL JUST HAVE TO PASS THIS NEW BILL TO FIND OUT HOW IT WORKS. A 1947 “Grin and Bear It” cartoon that seems eerily like Nancy Pelosi’s “we have to pass the bill so that you can find out what is in it.”

The cartoon was described and misquoted a bit in today’s Obamacare case, but The Chief Justice can blame Felix Frankfurter for the misquote, and Felix can blame the Columbia Law Review editors. Didn’t they check the quotes meticulously back in 1947? Anyway, big thanks to Ben Zimmer at Language Log for putting that up today and to Tobias A. Dorsey at The Periwig Squiggle for digging that all up 5 years ago, when Pelosi uttered her most famous quote.

ADDED: “Grin and Bear It” — it brings on a flood of memories of reading the funny pages when I was a kid. I read everything on the page — “Nancy,” “Blondie,” “Gasoline Alley,” “Li’l Abner,” all of it, including “Grin and Bear It.” I didn’t want “Grin and Bear It” to be there, because it had no panels. It was just one picture, like a political cartoon, so why was it there in the company of Nancy and the rest, demanding that a little kid read it to complete the page? Complicated drawings of adults standing around, someone with a mouth open, indicating talking, but emitting no word bubble. There was just a caption, a caption full of words that meant something, but nothing that was funny from the perspective of kid eyes.

THE SUPREME COURT SAVES THE OBAMACARE SUBSIDIES. Here’s the PDF. The Chief Justice writes the opinion.

ADDED: I haven’t read the opinion yet (of course), but I’d just like to console Republicans with the observation that they are better off. If it had gone the other way, they’d have to scramble and do something legislatively — probably save the subsidies themselves. This way, they can stand on whatever principle they like. Also, in the run up to the 2016 presidential election, they’ll fare much better on the old question of who do you want appointing the next Supreme Court justice.

AND:  The Chief alludes to Nancy Pelosi’s “we have to pass the bill so that you can find out what is in it.” He quotes an old Frankfurter article — “Some Reflections on the Reading of Statutes, “47 Colum. L. Rev. 527, 545 (1947) — that described a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.'”

That’s at the end of a paragraph where he blames Congress for “inartful drafting,” for writing “key parts of the Act behind closed doors, rather than through ‘the traditional legislative process,'” and for using the “reconcilation” process instead of leaving the bill open to debate and amendment.

PBS ACCUSES HENRY LOUIS GATES JR. OF “IMPROPER JUDGMENT” for coddling Ben Affleck who was “embarrassed” to learn that he had slave-owning ancestors. Why couldn’t Affleck have used the opportunity to show us how America should process and respond to the legacy of slavery? It was all just shallow vanity, and Gates accommodated the little man, because he was such a big man, in the realm of pop culture.

THERE’S SO MUCH RELIGION in the statement Dzhokhar Tsarnaev made in court today — just before he got the death sentence — but there’s one thing that is glaringly absent: any glimmer of an understanding that within his religion, what he did was wrong. To my ear, he said: I’m empathetic about the death and the suffering, but it was all part of a difficult mission I was called upon to carry out. And that got got me thinking about the way Dylann Roof sat in the prayer study for an hour with 9 Christians who were “so nice” to him that he “almost didn’t go through with it.” But he killed them anyway, because, he said, he had a “mission.” Maybe Tsarnaev truly felt (or now feels) the humanity of his victims, and he’s sorry they had to suffer, but he could still believe that he did the right thing, carrying out a mission. There is nothing in the transcript — I’ve combed it — that excludes my interpretation.

THE MAN WHO CREATED THE PINK PLASTIC FLAMINGO — the Official City Bird of Madison, Wisconsin — Donald Featherstone has died. Featherstone was an important figure in Leominster, Massachusetts, where he worked for Union Products for 43 years and, with his wife Nancy, dressed in matching (often flamingo-patterned) clothes for 35 years, but he was important, too, in Madison, where citizens will never forget that day in 1979 when the Pail & Shovel Party installed 1,008 plastic flamingos on the hill in the center of the University of Wisconsin campus to celebrate the victory in the student government election of candidates who said they’d convert the budget to pennies and dump them Library Mall to be scooped up by students using pails and shovels. As one of the winning candidates said: “The student government at that time consisted of the self-appointed descendants of the superstar leftists of the sixties…. It was very closed, very humorless and extraordinarily serious.” That’s what the flamingos mean to us here: Resisting humorless politics since 1979.