In defense of the sanctimonious women's studies set || First feminist blog on the internet

Tag: SCOTUS

Westboro Baptist Church protests are protected speech

Look, I hate these guys so so so much, but this is the right decision. And it makes me nervous that any Supreme Court justice (here, Alito, who was a one-man minority) would think otherwise. Free speech cases have often come down to speech that is unpopular, or, here, the definition of cruel and evil. But just because something is wrong or hurtful doesn’t mean it should be illegal. And it’s troubling, to me, that Alito thinks we should be able to limit protests based on their content.

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

That’s right. Westboro Baptist Church is made up of some of the ugliest, most hateful and vile people on the planet — but even they have a right to put that vileness in words. And we all have the right to speak out against them and challenge their ideas. What we don’t have the right to do is insist that our government step in to shut them up.

Posted in Law

Good News

Juvenile offenders — other than those found guilty of murder — cannot be sentenced to life without parole. This is great news, but I wish that the court had gone further and held that no juveniles can be sentenced to life without the possibility of parole. After all, this decision doesn’t apply to people like Sara Kruzan, who was put in jail at 16 for killing her abusive pimp.

It’s important to point out that this isn’t about giving anyone a get-out-of-jail-free card. It’s not saying that no juvenile should be in prison for life. But juveniles do not have the same brain development as adults — they lack the same degree of impulse control and the ability to fully appreciate the consequences of their actions. This case simply allows a parole board to evaluate the offender’s record and efforts at rehabilitation. If the person who was a juvenile when they committed a crime goes before a parole board 25 years later and that person is still dangerous, the board can reject the application for parole. Alternately, if you have a kid who committed two armed robberies at 16 and 17 and twenty years later isn’t a danger to anyone, the parole board can recommend his release.

It’s also worth pointing out that more than half of all juveniles serving sentences of life without parole are first-time offenders. At least 74 of the 2,574 people currently in prison for life for crimes they committed as juveniles were under the age of 14 when they committed the crime. And African-American youth are serving sentences for life without parole at about ten times the rate of white youth.

This is a thoroughly common-sense decision, and comes on the heels of the Court finally ruling that it’s cruel and unusual to execute juveniles. Perhaps some day we’ll see the court extend this line of juvenile justice cases even further.

Elena Kagan and banning military recruitment on campus

I’m not sure if Peter Beinhart is being intentionally intellectually dishonest in this column, or if he just doesn’t actually understand the issues involved in the decision of several law schools to ban military recruiters from campus. He takes Elena Kagan to task for her role, as Dean of Harvard Law School, in “banning” the legal branch of the U.S. military from coming and conducting on-campus interviews. In fact, Kagan didn’t actually ban the military at all — she accommodated them, just not through the Career Services office. And unlike other top law schools, which actually did block the JAG Corps from on-campus recruiting, Kagan allowed JAG recruiters to come to Harvard and interview students through the Harvard Law School Veterans Association, rather than through the career center.

For context, many law schools have on-campus interview periods wherein the school hosts a range of employers and has students sign up for interview slots. At my law school — which also banned military recruiters for a time, although my understanding is that we actually banned them — there was a week wherein private law firms were hosted, and a week in which public interest organizations were hosted. It’s how most (or at least many) students secured employment for the summer and after graduation. It entails significant effort and expense on behalf of the school to organize the entire process.

Law schools like Harvard and NYU also have strong anti-discrimination policies, which state that they will not host employers that discriminate on the basis of race, gender, religion, sexual orientation, etc. And those policies are reasonable — they emphasize that the school will not use its resources to host employers that discriminate against some students. If an employer refuses to hire women or African-Americans, the school sure as hell shouldn’t use its resources — resources that are provided in large part by students’ tuition dollars — to host that employer.

But Beinhart thinks this is about the morality of the military:

In a previous Beast column, I had criticized Kagan’s action as dean, arguing that barring recruiters from Harvard Law School because the military discriminates against gays was as counterproductive as banning ROTC from Harvard during Vietnam. That comparison, my correspondent insisted, “rests on a fundamental category mistake…what happened at Harvard Law School [during Kagan’s tenure] was not anything like the anti-military policies of the ‘70s that were directed at the military because they were the military.”

But the decision by Harvard and other elite schools to ban ROTC in the 1970s was not “directed at the military because they were the military.” It was directed at the military because it was fighting an unjust war in Vietnam. Then, the military was pursuing an immoral war in Southeast Asia; today, the military is pursuing an immoral policy against lesbians and gay men. The question was, and is, whether banning the military from campus constitutes the right response.

Read More…Read More…

Elena Kagan and Harvard Law School

Our own guestblogger Diane Lucas is interviewed in an article about Harvard Law students’ reactions to Elena Kagan’s Supreme Court nomination. Diane talks about some of the racial issues at Harvard, and Kagan’s response (or lack thereof):

“It was blatantly sexist and racist,” Lucas said. “They depicted a number of women of color in the play, and one woman who is African-American, very intelligent, very well-spoken, they depicted her as being a ghetto girl from the ‘hood’ and they made her talk in ebonics and made it so that you could hardly understand what she was saying.”

Lucas said another African-American woman was depicted as promiscuous, and a Latina woman who in reality spoke English with an American accent was depicted as speaking no English. She said several students walked out.

But Lucas says when she and other students asked Kagan to issue a formal apology, set up diversity training and hire a diversity director, Kagan refused. Kagan defended the parody as students’ freedom of speech. From that, Lucas concluded that Kagan shirked her responsibility to make Harvard Law School a more racially sensitive place.

Obama picks Kagan as Supreme Court nominee

Well, there’s that. I will write about this more in-depth in the coming days, as time allows. Suffice it to say that I think Kagan is a perfectly fine nominee; she’s very intelligent, she seems like a team player and she surely will be more than a competent Supreme Court justice.

But my perception of Kagan is that she’s a little bit gutless. And I would love to have seen Obama pick a slightly more daring, forward-thinking liberal — someone who isn’t afraid to take unpopular positions, and who is willing to put what’s right ahead of what is politically expedient. Sotomayor was another relatively centrist, highly-accomplished, incredibly intelligent pick who, while a bit braver than Kagan, is a model of judicial restraint. Despite the racist and sexist accusations throughout Sotomayor’s confirmation hearings, she is in reality a very centrist, conservative (in the judicial sense, not the political one) justice. I would have been much happier if, after getting a fairly “safe” choice onto the court, Obama went for a balls-out (or ovaries-out) liberal. My biggest concerns about Kagan are her lack of that kind of bravery, and her loyalty to this administration. The Bush administration consolidated executive power in extraordinary and terrifying ways; the Obama administration has been loathe to cede any of that power back. The Supreme Court will be tackling important questions of executive authority in the years to come, and I worry that Kagan will be more deferential to the government than I would like her to be.

At least she’ll probably be a fairy easy confirmation. The only thing that conservatives have to hang their hats on are the usual abortion and gay-rights issues — slightly more heated here after Kagan’s decision to briefly bar military recruiters from Harvard Law, since they violated the school’s anti-discrimination policy. But — and again, this is something I’ll tackle later when I have the time — that’s largely a non-issue, and (hopefully) won’t be too divisive of an issue once it’s actually explained. Especially since Kagan eventually did let the recruiters back on campus.

The New York Times has a run-down of Kagan’s notable statements and writings, and they are… not great. Some high/lowlights:

“I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”

“It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act.”

“There is no federal constitutional right to same-sex marriage.”

Anyway, it’s nice to see Obama nominating another accomplished and intelligent woman to the court. But with so many of those women to pick from, I wish he had selected someone a little bit more progressive and a little bit less safe.

Who should replace John Paul Stevens?

You have probably heard by now the completely unsurprising news that John Paul Stevens, the leader of the liberal wing of the Supreme Court of the United States, is retiring. Slate solicits the opinions of some legal experts for who should replace him, and there are some good options (Bryan Stevenson is one of my personal favorite dark horse candidates). The front-runners seem to be Diane Wood, Elena Kagan and Merrick Garland — not terrible choices either.

Who are you all placing your bets on, and who are you hoping for?

Democracy, it was fun while it lasted.

Dear Democracy,

It’s been nice knowing you, it really has. We had some good times, didn’t we? Remember when Howard Dean rose to prominence because of internet donations and grassroots efforts? And when Barack Obama was elected in part because a ton of people gave $5 or $10 or $20 to his campaign? Heck, even those wacky Republican teabaggers got in on the action!

But today, I bid you farewell. Don’t get me wrong, I know you’re still here, technically, chugging along. I’m not suggesting that you’re going to disappear forever, or that you’re dead to me. You haven’t died, Democracy, but you’ve changed. It used to be about us, you know? We could talk about ideas and debate heatedly, and sometimes things didn’t turn out my way, but I always at least felt like I had a say in our relationship. Now, you don’t listen. Why would you? You’ve found someone else — and they’re a lot more wealthy and influential than I am (I maintain that I’m better-looking, but hey, it’s you who has to go to bed with them every night). Democracy, darling, I suspect that they will only be a bad influence on you — they’re almost guaranteed to make you more conservative and definitely less responsive to anyone’s needs but theirs. I mean, why would you bother to think about me when your new beau is footing all your bills? I don’t mean to sound bitter, D, but don’t you see what’s going on here? They own you, baby!

Remember that time we marched on Washington in defense of reproductive rights? When we nearly froze our toes off on the Mall during Obama’s inauguration? When we went door-to-door in Pittsburgh, in Nashua, in Ohio? I was really in love with you then. I really felt like you got me, you know? Those were great times, and I’ll miss them. I hate to say it, Democracy, but that new fling of yours? He ain’t me. I can’t even bring myself to consider him a person. I hope all the money — and I understand, it’s a lot of money — is worth it.

You take care now. Thanks for the memories.

Jill

Supreme Court Orders a New Look at Troy Davis Case

Good, and frankly rather surprising and unexpected, news on the case of Troy Davis has emerged. The Supreme Court has just ordered a new look at his case:

The Supreme Court on Monday ordered a federal trial court in Georgia to have a fresh look at the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges filed a brief supporting Mr. Davis.

Seven of the witnesses against Mr. Davis have recanted their testimony, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.

The Supreme Court’s decision was unsigned and only a paragraph long, but was nonetheless highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly establishes Mr. Davis’s innocence.

Unfortunately Scalia basically used this as an opportunity to argue that innocent death row inmates have no actual right to not be put to death. Thankfully, Justices Stevens, Ginsburg and Breyer disagree with that ludicrous and terrifying assertion.

That said, presenting evidence which clearly establishes innocence is a much more difficult threshold to meet than presenting evidence that introduces reasonable doubt. Innocence can be very, very hard to prove, even when you are actually innocent. So, I’m glad that the court has given Troy Davis some kind of opportunity here. I also feel that it’s still unlikely to end well for him, despite the reasonable doubt that seems very likely to be present. And, of course, I can’t help but note my feeling that we wouldn’t be at risk of putting an innocent man to death at all if the government was not in the business of murdering convicts in the first place.

What do you think about the latest development? Can anyone who knows a lot more about the law than I do better explain what exactly this means for Troy and his case?

Senate panel endorses Sotomayor

Except only one Republican voted for the endorsement.

That is quite frankly embarassing. Sotomayor is a moderate judge with a whole lot of judicial experience. It speaks volumes about the GOP’s general arrogance and stubbornness that all but one Republican on the committee chose not to endorse her.

Republican critics of the judge expressed displeasure with her rulings as a member of the United States Court of Appeals for the Second Circuit, as well as with some of her public comments. The rulings and comments show that she is a judge is too “activist” and liberal and has too little commitment to the rights of gun owners, the critics complained.

Senator Jeff Sessions of Alabama, the committee’s leading Republican, said just before the vote that he was compelled to oppose the nomination because of the judge’s “liberal, pro-government ideology.”

In an Op-Ed article in USA Today on Monday, Mr. Sessions wrote: “I don’t believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.”

Sotomayor is anything but an “activist” judge. I’m skeptical of that term generally, but I would think that an “activist” judge is one who often fails to defer to precedent; Sotomayor is precisely the opposite.

These senators voted against her endorsement because they don’t like her views. They could at least be honest about that.