US Elections

The reasons for choosing whippersnappers such as these are cynical, but compare it to the rest of Washington. The constitution require the president to be at least 35 years of age; senators must have reached 30 and representatives 25. The public has been willing to elect relatively youthful presidents, but the lack of term limits and advantages of seniority has ensured the Senate is a body marked by its decrepitude. Senator Robert Byrd clung to his seat for 51 years and died in office at the age of 92. Ted Kennedy served for 47 years until the age of 77. When John McCain's current term is up, he'll be 80 years old, and 11 senators are even older than he is! This Senate is actually the oldest in history.

If fixed terms for justices would help to reduce the stakes, it might be worth considering, even if it would have the side effect of making yet another branch of government much older than the population it serves. But court appointments are by their nature political, and 18 years is long enough an appointment to make the it worthwhile for partisans to fight very hard for judges of whom they approve. As it is, I can see a real advantage to a system with incentives to put younger people in positions of power.

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It still is frivolous, only it now has some judges willing to heed that frivolity. Until recently I would not have thought such judges might be sitting on the Supreme Court. Not so much because I think the sitting justices are strikingly sober-minded individuals, but because in recent times, absent the rather glaring exception that was Bush v Gore, the Supreme Court had been leery of doing anything radical.

The last few years of the Rehnquist court and the first few of the Roberts one were characterized by reservation and deferral to Congress and established precedent. The court was not comfortable with bold decisions. Striking down the health care bill on an unconventional reading of the constitution would be quite outside its wheelhouse.

But of late, the Roberts court has had a lot more time for overturning well established precedent, and has been more willing to listen to novel legal ideas. This was most prominently seen in recent decisions like McDonald v Chicago, which overruled a well established interpretation of the Second Amendment, and Citizens United v Federal Election Commission, which did the same for campaign finance law. Though it is more likely to than not, considering its recent form, I can't be certain this court will uphold the constitutionality of the Affordable Care Act. Ultimately, it all comes down to what Anthony Kennedy thinks.

And even so, as Ezra Klein points out, the Hudson ruling might not be as sour for health care reform as supporters fear.

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I must admit, my first thought on hearing of the Perry v Schwarzenegger case was that it was a poorly planned challenge likely to be defeated, and that it would set back the steady legislative steps toward equality the gay marriage movement had been making. In the warm glow of victory, however, I'm happy to recant. Even in the year since the case was filed, gay marriage has become more accepted and more mainstream in the U.S.; in the interim Vermont, Iowa, and the District of Columbia have begun to perform same-sex marriages. Even Barack Obama's compromise stance of opposing same-sex marriage while endorsing civil unions is beginning to look quaint.

And though this case is the most high profile challenge to anti-gay marriage law based on the federal constitution to date, it is not even the first successful one. This past October, a judge in Texas decided that the state had to grant a divorce to a same-sex couple who had been married in Massachusetts. Texas basically argued that since it did not recognize gay marriages, it couldn't grant gay divorces, but the judge decided that was bunk, and that Texas couldn't give divorces to some couples and not others. (I blogged about it here.) Her decision was based on the same equal protection clause on which Walker based his. And just last month, a judge in Massachusetts ruled that the federal government's Defense of Marriage Act, which allowed states not to recognize same-sex marriages performed by other states, was unconstitutional. Unlike the Texas and California cases, the Massachusetts one was decided on the basis of the 5th and 10th Amendments, not the 14th.

So the questions to be asked now are: What will happen when Perry v Schwarzenegger reaches the Supreme Court? And what will happen if the Court finds same-sex marriage to be a constitutionally protected right?

The chance that the Supreme Court will uphold Walker's decision to strike down Prop 8 is likelier than you might think. As Marc Armbinder writes, the facts that will be used to decide any appeals are overwhelmingly in favor of gay-marriage. These include observations that the definition of marriage has changed over time, that California does not require marrying couples to be able to procreate, and that the number of married gay couples will not affect the number of married straight couples. The witnesses brought to defend Prop 8 were weak, and Walker was scathing about their arguments. It's no surprise that he concluded “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” and that “excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

Further, as Silver argues:

It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.

So, if the Supreme Court does find in favour of gay marriage, what will happen in the aftermath? After all, as the words Roe v Wade will affirm, a mere Supreme Court ruling does not always end debate over an issue. Will gay marriage be a culture war sore spot in the U.S., tussled over for decades, or will the country quickly move on to other battles, as it did after Loving?

My guess is that America will quietly get on its way. Polls show that gay marriage, though currently more opposed than supported, is steadily gaining approval in American society, and has been for the past 15 years. It is more popular among young voters than old, and it is easy to see a constitutionally protected right to marriage quickly becoming a non-issue as the years go by. This is especially accentuated by the lack of concern exhibited by voters in states who have already approved gay marriage. Despite the short-term fulminating about voter's wishes denied that will occur after any court-mandated legalisation, expect to see America treating gay marrieds as unexceptional in short order.

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Sure enough, the Republican Senator Jim Inhofe of Oklahoma has already announced he will oppose the confirmation of Elena Kagan, though the Senate has not even begun its hearings. 

This seems like the kind of inside-the-beltway chatter that simply will not make it to the ears of the wider American public, and it may well be. One of the advantages to the Republican policy of opposing as much of the Democratic agenda as possible is that if Congress can't get anything done, the public tends to fault the institution itself, and by association, the party in control. The obstructionist minority responsible for the hold-up suffers the disgust directed at all incumbents, but because there are fewer of them, they cop less of the blame.

It doesn't always work like that though. Last month during the Senate's negotiations over reform of financial regulation, Republicans began accusing the bill's provision to dismantle failing banks as a "permanent bailout," even though it was nothing of the sort. Similar to Levey's advice on Supreme Court confirmations, the line came from a Republican advisor putting together a defensive strategy before he'd even seen the plays the other side was running¹. Strategist Frank Luntz distributed a memo back in January of this year advising Republicans to link whatever financial reform package Democrats came up with  to the bank bailouts. Mitch McConnell and party stuck to the script, and, now Luntz is popping champagne bottles and toasting another victory. Right?

Well, no, not right. Democrats wouldn't shut up about the Republicans' cynical tactics, and even though Republicans denied being influenced by the Luntz memo, Americans weren't convinced. The GOP backed down and began properly negotiating on financial reform. (And in an even happier twist, it turned out the two parties didn't disagree on as much as they thought!) 

In journalism, the magic rule of identifying a trend is to find three examples, so I'm not yet going to say that kneejerk Republican opposition has begun to fail as a strategy. But we're beginning to get hints that the public is wising up to the fact that the G.O.P. isn't very interested in constructively working to pass legislation. Democrats have been trying to brand Republicans as the Party of No for a while now; if Republicans continue to be sloppy with their playbook and allow their strategies to be leaked, the charge might just stick.

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¹ That's a good thing to do in football but kind of against the point of politics.

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Communications Minister Stephen Conroy says that the Internet is not special, and just as Australia censors books, television programs, magazines, and movies, it should be able to do the same for online material. The bad news for opponents of Conroy's filter is that he sort of has a point.

In Australia, unlike the U.S., we think it perfectly reasonable for the government to control what speech we are allowed to see or hear. To sell a movie or a book or a video game in Australia, you need to get the government's permission. If it refuses to classify the work in question, then too bad; it's illegal to distribute it. And apart from the occasional complaint Margaret Pomeranz makes when an artsy European flick gets banned, Australians don't bat an eyelid at this.

Even opponents of Conroy's filter seem OK with the government banning other forms of speech. The Herald article I linked above quotes the University of Sydney's Bjorn Landfeldt splitting hairs over different form of censorship:

University of Sydney associate professor Bjorn Landfeldt said the difference between submitting a book for classification and having an organisation classifying and blocking websites without anyone's knowledge was that, in the book case, "it is well known that the book was censored and there can be a debate about the correctness of the decision."

The U.S. has a much more robust conception of freedom of speech, and even though the U.S. Supreme Court does not consider it totally illegitimate for the government to ban certain types of non-political speech, in practice it tends to side with the First Amendment's sweeping instruction that "Congress shall make no law ... abridging the freedom of speech." That's why in America, there is no equivalent of Australia's Office of Film and Literature Classification. Classification bodies like the Motion Picture Association of America are industry-run and submission of content to them is voluntary. Even the infamous Federal Communications Commission, which is a government agency, has authority over a very small slice of American media; it can ban content from network television and radio, but it has no authority over cable.

In America, people consider it far less legitimate for the government to decide what sort of speech is acceptable for adults to make and hear. That's why the U.S.'s own attempt at Internet censorship, the Communications Decency Act of 1996, was found to breach the First Amendment in Reno v ACLU. 

I disagree with Conroy; the Internet is special. It combines content distribution with telecommunications in a way that makes it comparable to neither magazine publication nor telephone discussions. But it is not that special. The reason Australia is even considering joining dictatorships like China and Iran in online censorship is that, unlike the U.S., we consider it fundamentally reasonable for the government to control our speech. It is no wonder the U.S. and Australian governments disagree on this issue; they are operating from different cultural assumptions as to what constitutes free society.

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But its precisely her background as a legislator that should caution against nominating Clinton. As a Senator, Clinton sponsored legislation intended to outlaw flag-burning, even though it had been ruled by the Court to be protected speech. And in 2005, she co-sponsored the Family Entertainment and Protection Act, which would have led to the Federal Government enforcing censorship on video games, which are currently subject to an industry regulation regime, just as are films and music.

These instances don't speak to the kind of highly controversial topics that will be the subject of the confirmation hearings of the eventual nominee; those will be far more concerned with issues like abortion and campaign funding. But Clinton's eagerness to sponsor legislation outlawing activity protected under the First Amendment should be cause for concern for anyone seeking to place her on the court. Clinton has had and continues to have a fine political career, but the nominees to the Supreme Court should jealously guard America's most important constitutional protection. Hillary Clinton is a good Secretary of State, but a Supreme Court justice should have more respect for freedom of speech than she has exhibited.

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When Souter retired, Obama said he was looking for someone "who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives." That echoed comments he made on the passing of the Lilly Ledbetter Fair Pay Restoration Act just after he took office in January 2009: "Justice isn’t about some abstract legal theory, or footnote in a casebook – it’s about how our laws affect the daily realities of people’s lives: their ability to make a living and care for their families and achieve their goals."

But this sense pre-dates his presidency. In the final presidential debate in 2008, Obama said he would "look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through." Even back in 2005, when he was a Senator voting against the confirmation [PDF] of Chief Justice John Roberts, he was hinting at what become the "real world" doctrine:

"What matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

That empathy requirement has been criticised by conservatives. Senate Minority Leader Mitch McConnell said last year that it indicated Obama wanted to pick Justice's on the basis of their "perceived sympathy for certain groups or individuals." Around the same time, Wendy Long, who clerked for Justice Clarence Thomas and was legal consul to the right wing Judicial Crisis Network, argued, "If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law."

Despite attacks like these, which will surely be repeated this time around, the Real World doctrine shouldn't necessarily be a bad thing for the left. Conservatives have done well by pushing their strict constructionist and textualist notions of constitutional scholarship, even though these can often fail to be meaningful when applied to actual law. By seeking justices who understand "how the law affects the lives of daily people," Obama is not saying that he expects the court to misinterpret or abuse the letter of the law; he's merely saying that the law should not be, as the saying goes, an ass. Just as conservatives have succeeded by painting liberal judges as "activists," Obama has the opportunity to succeed by portraying his nominees as people on the side of simple common sense. Few would argue, after all, that the law should be an ass.

UPDATE: Over at Newsweek, Dahlia Lithwick argues that empathy is dead, though it was Stevens' best quality:

That's too bad. Because if John Paul Stevens's career stood for anything, it's the proposition that walking a few miles in the other guy's moccasins will always make you a better judge. As Americans now begin the ritual clamor for a court that looks more like them—for more racial, gender, and ethnic diversity at the court—it's worth taking a moment to recognize that often more than anyone else at the court, it was an 89-year-old white Protestant guy who devoted his judicial career to standing in the shoes of teenage schoolgirls, pregnant women, gay Boy Scout leaders, and poor African-Americans.

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But, in a 5-4 ruling, the Supreme Court decided that I was wrong, and that Americans do have some right to own weapons for the purpose of self-defence. It's a right that is currently protected only against Federal-not state-interverntion and that must be balanced against the state's interest in protecting its citizens (which is why you won't see any D.C. residents buying nukes in the near future), but it is a right nonetheless.

So, given the current state of affairs, it's very difficult for a liberal to argue that things like the 1st Amendment or the 8th Amendment extend to the States, by virtue of the 14th Amendments equal protection clause, but somehow pretend the 2nd Amerndment does not. Indeed, the liberal touchstone of Roe v Wade hinges, in part, on the 14th Amendments equal protection requirement, as does the famed New York Times v Sullivan case, which prevented the Alabama courts from finding an anti-segregationist advertisement to be libelous. If states must respect a right to freedom of religion and trial by jury, why shouldn't they have to respect a right to self-defence? If we want to claim that the 2nd Amendment refers to Militia, that is, state-based organisations, how can we claim that this is one of the few Constitutional prescriptions that does not extend the "privileges and immunities" to citizens of the states?

It's a quandary Ben Adler discusses over at Newsweek:

What is going on here? For much of the nation's history, [founder of the Constitutional Accountability Center, Douglas] Kendall and his supporters argue, the right to bear arms was considered essential to citizenship. "Forty-two states in their state constitutions provide protections for the right to bear arms," says [UCLA law professor Adam] Winkler. "It is one of the longest-standing, most deeply entrenched rights in American history."

At the heart of the left-leaning dissenters' argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? "The right to bear arms gives you a mechanism to protect your bodily autonomy from attack," says Winkler.

The notion that the 2nd Amendment protects bodily autonomy is where I part ways with these scholars. It is true that defenders of the right to bear arms see it as a defence against government intervention in two ways; first, that it enables the people to rebel against a corrupt government, and second, that it frees a citizen from having to rely on government for his^[1] protection against criminals, rapists and murderers^[2]. But it simply does not follow that a right to keep and bear arms facilitates either of these interpretations of bodily autonomy. Owning a gun, in practice, does very little to protect a citizen from a criminal who has the element of surprise, strength, and determination, and it does little to actually protect citizens from bodily harm. All it does, rather, is escalate situations with some possibility for violence into a much more volatile circumstance ruled by right-by-might and no more certainty that the victim will be protected.

And given the state of the American-or indeed, other nation's-armed forces, the idea that a handgun could facilitate a citizen response to tyranny is laughable. Either the 2nd Amendment must protect a right to own tanks and stealth bombers (or at least machine guns and I.E.D.s), or it cannot practicably be considered a means by which individual citizens can keep their government in check.

But that doesn't mean the Court should not rule in favour of increased gun rights in McDonald. If D.C. residents have a right to keep and bear some arms for their own self-defence, so too should citizens in the rest of the United States. I would hope, though, that the Court would maintain a situation that allows hunters in West Virginia and Arizona to carry all the guns they like, while residents of Chicago and New York remain protected against those of their neighbours who would use arms for offensive, rather than defensive purposes. 

^[1] It's usually a he.

^[2] I think this is something tough for Australians to understand, because we like relying on government for protection against those kinds of people.

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See, according to well-established precedent, there was no clearly defined individual right to bear arms in the United States. That's because the Second Amendment reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." It's a poorly constructed, barely sensical sentence that rendered the country unable to definitively decide whether individuals could keep arms for the purpose of self-defence, or merely as part of a "well regulated Militia." The 1939 decision of United States v Miller, for instance, did little to clarify matters, finding that a sawn-off shotgun wasn't protected because it wasn't common military equipment. That is, the notion that it could be kept for individual self-defence was not broached.

That was dramatically changed in 2008, when the Court ruled in District of Columbia v Heller that Dick Heller, a police officer, could not be denied his right to keep a handgun in his D.C. home for self defence. The majority opinion was written by Justice Scalia, and it was the first time the Court had found a definitive individual right to keep and bear arms. For the first time, the United States was the crazy gun haven the rest of the world imagined it to be.

Or, no, actually it wasn't. The Heller decision, despite its sweeping overturn of precedent, was very limited in scope. It permitted bans on guns in places like schools and federal buildings. It permitted bans on criminals and mentally ill people carrying guns. And since the District of Columbia is regulated by the Federal Government, it had nothing to say about whether states or cities could maintain bans on guns. All the ruling really said was that a D.C. resident had to somehow be allowed to keep some sort of gun in his or her residence if they wanted to badly enough. Trust me: sitting where I am in Arlington, Virginia right now, it's going to be much easier for my next door neighbour to buy and carry a gun than it would be if he tried to do the same on the other side of the Potomac River.

The case the Court is looking at right now, McDonald v Chicago, is the one the Post says will cause Scalia such consternation, and that's because the plaintiff here seeks to, via the Fourteenth Amendment's prohibition on "State[s] mak[ing] or enforcing any law which shall abridge the privileges or immunities of citizens of the United States," apply the Second Amendment's prohibition on Federal gun bans to the States. The Fourteenth Amendment has previously been used to require states to recognize rights to abortion, free speech, trial by jury, and not to be subject to cruel and unusual punishment. Scalia has a record of being none-too-happy with this notion that the Fourteenth Amendment applied the Bill of Rights protections to the States, though he has a similarly consistent record of being quite happy with individual citizens owning guns for reasons that have nothing to do with maintaining a militia. Here, he must choose between hypocrisy and doctrinal consistency. My guess is that he'll side with the former. But until the Court reaches its decision on this case, it's useful to remember that in most places in the U.S. people can own guns because the population around them thinks its OK for them to own guns. Not because of something Thomas Jefferson scribbled down a couple centuries ago.

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The case deals with an obscure film titled Hillary: The Movie, produced by a conservative group advocating against the 2008 Presidential campaign of the titular Clinton. But while the roots may be trivial, the effects are not. Like the New York Times says:

The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

At stake in this case, essentially, were two interpretations of the First Amendment. One held that individuals had a First Amendment right that forbade the government from limiting their freedom of speech, particularly in regards to political thought. The second one, which actually prevailed, held that the First Amendment guaranteed free speech, regardless of who - or what - was making it. 

Both positions seems equally logical to me, though the latter seems far less valid within the context of American law, society and precedent. The US constitution is indeed absolute in this regard, saying government shall "make no law" (my emphasis) restricting freedom of speech, but it gives no indication as to whom it applies. To say that this should necessarily apply to legally-created entities, and not just human beings within the court's jurisdiction, should not be seen as anything but a radical step (it appears to derive in part from a misreading of the reporting of this case), regardless of what one thinks of the decision. This strikes down the philosophy that corporate political speech is fundamentally different from individual political speech, an idea that has been upheld within the American system for nearly a century. 

If there is an upside to this decision, however, it is that the Court clearly has decided freedom of speech is an issue about which it can make radical pronouncements. That, hopefully, is a good sign for another case that will shortly come before it. That case regards the rights of individuals - in this case, the celebrities Cher and Nicole Richie - to have their obscene language broadcast by American television networks. If non-people can say whatever they like about political figures - as nastily as they like and expensively as they like - let's hope the Court at least extends its commitment to liberty to allowing actual people to utter a few stray cuss words. One of these cases concerns a far greater threat to American society, and it's not the potty-mouthed singer.

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The Supreme Court buffs amongst us will be interested to hear that Justices Scalia and Thomas said the case made them feel like school masters grading their homework. In Justice Alito's dissent, however, he merely described the gifts as "strange and tasteless," as well as "facially troubling." Perhaps this is why everyone I meet here seems to be going to law school?

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