The Dangers of Political Activity

We are regularly told that we, as citizens, should become more active in public affairs. We are told that this would make us more informed about the issues of the day, and that being more informed, we could make better decisions as citizens, and force our elected officials to make better decisions as well.

By and large, all of this is true. And of course, with blogs, Facebook, Twitter, and other forms of social media, we can be more involved in public life. As individual citizens, we are empowered as never before to impact what goes on in our communities, in our cities, in our states, and in our country.

But any advice to get more involved in public affairs--and to do so with the help of social media--should come with a warning: If you do get involved, be prepared to pay lots of money to be regulated by your state in flagrant violation of past Supreme Court rulings. Be prepared, in short, to have your First Amendment rights ignored and trampled upon by the state.

The Supreme Court has the opportunity to put a stop to this latest example of overregulation and liberty infringement. The question is, will they? Or will the First Amendment become more and more of a dead letter?

Chief Writer

Guest-blogging over at The Volokh Conspiracy, Ross Guberman makes the case for Chief Justice Roberts as the best writer on the Supreme Court. Much of the case is made by comparing the chief to Justice Kennedy, which is kind of like making a case for the superiority of the Harlem Globetrotters by comparing them to the Washington Generals.

That having been written, the chief does have some lovely turns of phrase to his credit. Consider:

If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.

[. . .]

High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so . . . Surely students have not lost that ability by the time they get to law school.

[. . .]

[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice. I would think it more an affront to someone’s dignity to be sued by a brother than to be sued by a stranger. While neither may be welcomed, that does not mean they would be equally received.

And you thought that reading legal opinions might be boring.

A Much Needed History Lesson on DOMA

Many of the Democrats celebrating the Supreme Court's decision on DOMA would have you believe that they opposed the law from the outset. Zenon Evans performs a mitzvah by reminding all and sundry of what those Democrats desperately want all and sundry to forget:

. . . In response to the ruling, Bill Clinton tweeted that he is “grateful to all who fought tirelessly for this day.” He also released an official statement condemning the discriminatory nature of DOMA. What Clinton failed to mention was that he signed the act into law.

He wasn't alone in his silence. Other leading Democrats who supported it include Vice President Joe Biden, who voted for DOMA as a senator. Sen. Harry Reid (Nev.), who said, “The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd,” also forgot to note that he voted for DOMA. Sen. Chuck Schumer (N.Y.) released a statement praising the forward thinking of the Supreme Court. “The march towards equality... moved forward again today... The Supreme Court did the right thing here and helps us understand that the march to equality in America is unstoppable.” He made no mention of the fact that he, too, voted for the act and against "the march to equality." Sen. Bob Menendez (N.J.) patted himself on the back: “As a member of Congress who signed the amicus brief urging this decision [to repeal DOMA], I am thrilled that the Supreme Court took a strong stand for marriage equality." Menendez saw no need to clarify that this was only after he voted for DOMA in the first place. Sen. Tom Harkin (Iowa) voiced his support yesterday saying, "I am glad that the court recognized that all American families deserve the same legal protections," but made no mention of why his point of view flipped.

As in so many such cases, it is as though some people believe that their past positions cannot be accurately Googled by others.

Appreciating Justice Thomas

A very good blog post by law professor Mike Rappaport. No excerpts; just read the whole thing.

The Supreme Court and Same-Sex Marriage

I support the policy outcomes in both of the same-sex marriage cases before the Supreme Court. I believe that the Defense of Marriage Act was bad law that treated people differently for no good reason whatsoever, and I am glad to have seen it overturned in the Court's decision in Windsor. As law professor Randy Barnett, who wrote an amicus brief in the Windsor case, points out,

. . . DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.

I agree with this reasoning, and although--as Professor Barnett points out--Justice Kennedy's opinion adopted this reasoning "with a twist," the fact remains that "federalism wins out in theory as well as in practice" when it comes to the same-sex marriage cases, which is good both for federalism, and for the cause of equality in general.

A very good analysis of the DOMA case is offered by Timothy Sandefur, who--while agreeing with the policy outcome of the case--does state his belief that "the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent." And I also agree with the way that Ilya Shapiro has put things:

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for.

As for the Perry case, which leaves California's Proposition 8 invalidated due to a standing issue, I am glad that the decision functionally means that same-sex couples are able to get married in California, but of course, the fight in California is not over. I imagine that opponents of same-sex marriage will try to find another way to invalidate same-sex marriage in California, and I think that the only decisive way to beat back such an effort is for proponents of same-sex marriage to win a ballot fight on the issue at the polls. In fact, in general, it is preferable for same-sex marriage advocates that this issue is fought and won at the polls from now on, and kept out of the courts as much as possible. Only by winning at the polls will same-sex marriage advocates be able to show that their cause--which I support--is supported by the American people in general; any victory in the courts, no matter how decisive, will continue to cause opponents of same-sex marriage to claim that the right is being validated because of the actions of unelected judges.

Oh, and two quotes that I saw on Facebook are worth repeating here. Here is the first: 

Clinton signed DOMA into law. The Koch Brothers favored same-sex marriage before it became fashionable. But it's not like you'll update your priors based on that.

The second one makes the same point, and is from law professor Jonathan Adler: 

Nice to see so many friends of mine on the Left cheering a Supreme Court decision striking down a federal law enacted by a broad, bipartisan majority and signed into law by President Clinton. (Oh, and did I mention that this decision was supported enthusiastically by the Koch Brothers and urged by Koch-funded entities?)

Shelby County v. Holder: Ilya Shapiro's Take

Probably the most sane analysis of the Supreme Court's holding that I have seen: 

In striking down Section 4 of the Voting Rights Act, the U.S. Supreme Court has restored a measure of constitutional order. Based on 40-year-old voting data that doesn’t reflect current political conditions, this provision subjected a seemingly random assortment of states and localities to onerous burdens and unusual federal oversight.

To be clear, neither minority voting rights nor the ability of the federal government to enforce those rights were at stake in Shelby County v. Holder. Both of those were, are and will be secure regardless of this case and its consequences.

Instead, the court was considering whether the “exceptional conditions” and “unique circumstances” of the Jim Crow South still exist such that an “uncommon exercise of congressional power” is still constitutionally justified -- to quote the 1966 ruling that approved Section 5 of the Voting Rights Act as an emergency measure.

As Chief Justice John Roberts wrote for the court in 2009, the last time it looked at this law, the “historic accomplishments of the Voting Rights Act are undeniable,” but the modern uses of Section 5 -- which requires federal “pre-clearance” of any changes in election regulation in certain jurisdictions -- “raises serious constitutional concerns.” The provision maintains antiquated assumptions and flies in the face of the 15th Amendment’s requirement that all voters be treated equally.

Yet Congress renewed Section 5 in 2006 without updating Section 4’s coverage formula, and it ignored the court’s warning that “the Act imposes current burdens and must be justified by current needs.”

That second paragraph is especially important to keep in mind, as is the fact that Congress can always rewrite the pre-clearance sections of the Voting Rights Act in order to accurately reflect current circumstances. But neither Congress, nor the Court, nor all of the people who offer outraged commentary on the holding of the case can ignore the very basic fact that the country has changed since 1965. And I don't know why we would want to ignore that fact, as it has changed for the better. Recognizing that change is not an admission of defeat for civil rights advocates--and I count myself as one. It is a declaration of victory, the kind that we have long waited to make.