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kottke.org posts about Supreme Court

Into the Dark Ages

posted by Jason Kottke   May 04, 2022

Speaking of the fundamentalist movement to repeal the 20th century, Jack Mirkinson isn’t writing for The Atlantic and therefore is free to not mince words:

[Alito] says that Roe should be scrapped because the right to an abortion is “not deeply rooted in the Nation’s history and traditions” — a byzantine litmus test that would wipe out just about every modern civil rights protection you can think of, given the nature of American history. He forthrightly casts aside the notion that the court should be cautious about overturning decades of precedent. He sends unmistakable signals that other civil rights opinions, especially ones protecting gay rights, are in the crosshairs.

The final opinion could differ, but what we have in front of us is an extremist, illegitimate opinion from an extremist, illegitimate court, one that sees women as serfs and breeders, that sees queer people as subhuman, that sees minorities of every kind as dirt under its collective shoe. It is happily dragging us into the dark ages. Alito and everyone who joins him are evil people. No hell is too hot for them.

(via waxy)

The Plan to Repeal the 20th Century

posted by Jason Kottke   May 04, 2022

Adam Serwer writing in The Atlantic about the leaked Supreme Court opinion draft penned by conservative justice Samuel Alito that will, if it remains substantially unmodified, overturn Roe v Wade and other precedents that guarantee the right to an abortion in the United States.

“The majority can believe that it’s only eviscerating a right to abortion in this draft,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me, “but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”

Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections. This is as arbitrary as it is lawless. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful. The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets. But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.

“In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating,” Kimberly Wehle wrote last December. “A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.”

And:

On the grounds that it constitutes a form of religious discrimination, conservatives will be able to claim an exemption from any generally applicable rule they do not wish to follow, while imposing their own religious and ideological views on those who do not share them. Although the right-wing justices present this rule in the language of constitutionalism, they are simply imposing their ideological and cultural preferences on the rest of the country.

Abortion, same-sex marriage, birth control, rights for trans persons, other LGBTQ protections, other civil rights — it’s all on the table, they’re coming for all of it.

Update: See also This is just the beginning:

I ask you to re-read the above passage and substitute for the word “abortion” any other modern liberty not mentioned in the Constitution: the right to use contraception, same-sex marriage, the right of same-sex couples to adopt children, marriage between different “races,” the right of any consenting adults to engage in sex, the right of unmarried couples to live together, and the rights of LGBTQ people to be treated with equal dignity.

Each of the above rights — now widely accepted — was criminalized or prohibited in many U.S. states until the latter part of the 20th century. Under Justice Alito’s reasoning, because the Constitution “makes no reference to those rights” and they were “unknown” in American jurisprudence until recently, the Constitution affords them no protection. Alito does handsprings to claim the draft ruling does not reach other rights rooted in the same legal ground as Roe and Casey. But there is no difference under Alito’s reasoning between abortion and contraception, same sex marriage, same-sex adoption, and bans against “fornication,” “sodomy,” cohabitation, and “miscegenation.”

This is just the beginning.

Gender inequality and the Supreme Court

posted by Jason Kottke   Apr 06, 2017

Tonja Jacobi and Dylan Schweers have published the results of a study they’ve done related to the role of gender in the workings of the Supreme Court. They found that female justices are interrupted much more often by male justices and advocates than male justices are.

Our empirical study examines interruptions among justices, and between the justices and the advocates, during Supreme Court oral arguments. It shows that women still do not have an equal opportunity to be heard on the highest court in the land. In fact, as more women join the court, the reaction of the male justices and the male advocates has been to increase their interruptions of the female justices.

Even in the most powerful courtroom in the world, the women are being verbally dominated.

Even without adjusting for the low representation of women, the effect is stark. On average, women constituted 22 percent of the court, yet 52 percent of interruptions were directed at them. Overwhelmingly, it was men doing the interrupting: Women interrupted only 15 percent of the time and men interrupted 85 percent of the time, more than their 78 percent representation on the court.

Their study shows that seniority can’t explain this effect — “gender is approximately 30 times more influential than seniority” — but some of it can be explained in terms of political ideology: conservative justices interrupt more than liberal justices do.

We found that the power dynamic does not only affect women: In a court that has been dominated by Republican appointees for over half a century, conservative justices have also dominated liberal justices by interrupting them. We expected cross-ideological interruptions to occur more often than interruptions within ideological camps, and this is true: 62 percent of interruptions cross ideological lines, compared to 38 percent within an ideological camp. However, the effect does not go in both directions: 70 percent of interruptions were of liberals, and only 30 percent of conservatives. Once again, advocates display the same tendency. Advocates interrupting the liberal justices account for over ten percent of interruptions, yet advocate interruptions of the conservative justices account for less than three percent of interruptions.

I wonder what the results would look like if Clarence Thomas ever talked in court? (via @caitlin__kelly)

A tale of two bank robbers, or The Clerk and the Pauper

posted by Tim Carmody   Aug 26, 2013

Today is a weird day for human-interest stories about bank robbers.

The New York Times highlights Shon R. Hopwood, a former bank robber who studied law in prison, successfully petitioned on behalf of another prisoner in a Supreme Court case his team won 9-0, and will soon be a clerk for the DC circuit federal appeals court, “generally considered the second most important court in the nation, after the Supreme Court”:

The judge Mr. Hopwood worked for last summer said he deserved his 147-month sentence. “He used a weapon in some of those robberies, and that justified a very heavy hit,” said Judge John C. Coughenour of Federal District Court in Seattle. “But everybody we sentence has the potential to turn their life around.”

Meanwhile, one state south in Oregon:

Authorities in Oregon say a homeless man who held up a bank for $1 was just looking for a way to go to jail so he could receive free health care.

According to Clackamas County sheriff’s deputies, 50-year-old Tim Alsip entered a Bank of America in Southeast Portland last Friday morning and handed the teller a note that read, “This is a holdup. Give me a dollar.”

I know he’s a busy man, but it would be remarkable if Mr. Hopwood could drive from Seattle to Portland and find a way to help Mr. Alsip be relegated to an appropriate facility.

Supreme Court: human genes not patentable

posted by Jason Kottke   Jun 13, 2013

In a unanimous decision, the US Supreme Court ruled today that human genes cannot be patented.

The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.

Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren’t eligible for patents.

The high court’s ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad’s patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.

The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.

Fuck yes. A defect in her BRCA1 gene is what caused Angelina Jolie to recently have a preventive double mastectomy. (via @tylercowen)

Sandra Day O’Connor’s Bush vs. Gore mistake

posted by Jason Kottke   May 08, 2013

Former Supreme Court Justice Sandra Day O’Connor now admits that taking on the Bush vs Gore case in 2000 was probably a mistake.

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk with the Chicago Tribune’s Editorial Board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

The case, she said, “stirred up the public” and “gave the court a less than perfect reputation.”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

[Hair tearing-out noise]

How CNN and Fox screwed up the Supreme Court Obamacare decision

posted by Jason Kottke   Jul 09, 2012

You may not believe me, but this postmortem by SCOTUSblog’s Tom Goldstein of how the media covered the Supreme Court’s decision regarding the Patient Protection and Affordable Care Act is super fascinating. It’s impeccably sourced, straighforward, and surprisingly compelling.

The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet — ever. It is the one and only place where anyone in the country not at the building — including not just the public, but press editors and the White House — can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over — hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.

The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

Reading it, the thing that struck me most is that these huge media machines still operate mostly on an individual basis. One person read the ruling for CNN, told one person in the control room, and then millions and millions of people heard that (mis)information just a few seconds later on CNN, on Twitter, and even in the Oval Office.