Who Is IOZ?: Dear Jurisprudence, Won't You Come out to Play

Tuesday, August 17, 2010

Dear Jurisprudence, Won't You Come out to Play

Here, Ed Meese contends that District Judge Vaughn Walker was derelict in his judicial office because he failed to make the defense's case for the defense. I like it! I think we should apply this principle to criminal court.

35 comments:

mushr00m said...: Is he really asking the court to make a ruling on the writings of a French anthropologist and other furriners? He does know he has no connection to the jeans, right?; 9:45 AM
Anonymous said...: "unanimously thrown out on the merits, for lack of a substantial federal question"

WTF?

YF; 10:45 AM
zencomix said...: Ed Meese namedropping Bertrand Russell is the funniest thing I've read all week.; 11:25 AM
la Rana said...: God bless conservative lawyers; I look good without trying very hard.

1) Did Baker v. Nelson establish a binding precedent that Judge Walker was obligated to follow?

Baker v. Nelson did indeed dismiss a challenge to Minnesota's refusal to grant a marriage license to two gay men "for want of a substantial federal question" (actually bizarre one sentence dismissal - they prolly would have denied cert. but it was mandatory jdn). But is that what is at issue here? Nope. Perry v. Schwarzenegger challenged the consitutionality of Proposition 8, not the denial of a marriage license. So is it "binding precedent?" Not unless you lump all issues involving gay marriage together like some prejudiced buffoon.

2) Did Judge Walker ignore Baker?

The final ruling doesn't address Baker, but thats because Walker dismissed the claims based on Baker in his denial of summary judgment. Since the issue had already been decided, there was no reason to address it again. Oops.

3) Was there " voluminous evidence introduced on the side of Proposition 8"?

Yes. And there is voluminous evidence that the earth is flat ("looks flat from here!") and voluminous evidence that the earth is 6,000 years old ("it says so right here! sorta"). Go track down some of this "evidence." Levi-Strauss. Ha!! No, seriously, teh constitution is best interpreted by the writings of a philosopher who pre-dated it by more than a century. An egregious oversight on Judge Walker's part.

4) Should the opinion have addressed DOMA?

Only if you think Congress can construe the meaning of the Constitution by majority vote. Super grasping fail here Meese.

5) Is the fact that only man+woman=baby a rational basis?(destroying actual legal argument edition)

Well, the state may have a interest in promoting procreation, and the benefits granted through marriage are probably rationally related to that purpose. Therefore gay people can't have those benefits, because . . .straight people . . . will stop getting married . . . err, their legal benefits will cease ... er, they won't have babies? Meese and his ilk here confuse the rational basis for marriage, and the rational basis for excluding gay couples, which is the only issue. Oops!

The most interesting thing about this debate, to me, as a connesiuer of sexual orientation law, is that it was conclusively put to bed more than a decade ago. Andrew Koppelman, William Eskridge and others worked out all of these issues in the mid 90's. This is the culmination of 15 years of handwaving.; 11:34 AM
Michael Dawson said...: Nobody, absolutely nobody, is more cutting-edge than Kingsley Davis.; 11:59 AM
Inkberrow said...: La Rana---

You neatly bypass the fact that traditionally the so-called "rational basis" level of scrutiny has consisted of little more than ensuring that a given law was not propounded by the certifiably insane. It is not an invitation for philospher-kings astride the federal bench to actuate their own socio-political sensibilities. Family law has always been a subject-area left to the sound discretion of individual states, reflecting its constituents' values. Family law includes of course the demographic requirements ---sex, minimum age, non-relations etc.--- for issuance of a marriage license.

Where higher-scrutiny classes are impacted, as with the miscegenation and contraception cases, the federal court should protect those classes it has designated as such. Homosexuals have not yet been elevated by the SCOTUS to the constitutional civil-rights status of racial minorities or women. Judge Walker was perfectly free to rule that homosexuality should receive such protections, but he is not free to treat Proposition 8 as subject to his own de novo review for utility and sensitivity. He'll hereafter be a busy fellow indeed if he's true to his principles......; 12:33 PM
IOZ said...: Was he astride the bench? He appeared to be in a seated position to me, most of the time.; 12:40 PM
Anonymous said...: Wow. Ed Meese is still walking around alive?; 12:51 PM
Inkberrow said...: IOZ---

Judges who would be philosopher-kings can't stay in their proper places. The bench seems a throne, with Magic Fingers quarter-slots.....; 12:51 PM
Leonard said...: It's metaphorical, dude. Inky is sitting astride history, bareback as it were, yelling "whoa".; 12:51 PM
IOZ said...: I imagine it would be even harder to find oneself astride a throne, but I'm no equestrian.; 12:57 PM
Inkberrow said...: Leonard---

Who cares, but I personally would have voted against Prop 8, and would vote for same-sex marriages in my own state. Same-sex marriage rights are inevitable, as you suggest, because at this point it's simply the right thing to do.

Nevertheless, a law allowing same-sex marriage AND a law forbidding it should both easily pass "rational basis" muster with an honest (chaste) judge. Judge Walker's gavel should be marked, "Ribbed For His Pleasure".; 1:02 PM
Leonard said...: It's possible with groin-popping flexibility. And certainly, the "living Constitutionalist" judge has that.; 1:02 PM
Inkberrow said...: If it helps, I'm reliably informed that Judge Walker can do the splits like Jean-Claude Van Damme in "Bloodsport"....; 1:05 PM
Leonard said...: Inky I agree with you, I'm just funnin' ya. Well, I don't know what Walker's chastity matters, perhaps you could explain.

Point is, creating law via "living Constitution" judicial fiat rubs some people wrong. You, me, and Ed Meese. What company! Of course, for others that sort of ribbed rubbing is just the thing to hit the spot.; 1:09 PM
la Rana said...: Rational basis "traditionally" requires little, at least thats what wikipedia and those seeking to uphold whatever state action is at issue would have you believe. In reality rational basis, like every other legal standard or test is nothing more than a facade for the difficult decisionmaking that is inherent in the role of the judiciary. In other words, to satiate morons like you who can't handle nuance or uncertainty. In practice, rational basis is used all over the map, and contending that it means one particular thing only proves that you don't know what you are talking about.

What is the rationale? However minimal you want the rational part to be, you can't ignore the "basis" part. Lawrence, as Scalia noticed, put the kibosh on pure moral sentiments as a basis. Without that you are left waving the flag of "rational basis," which, if you noticed, is all you've said to begin with.; 1:15 PM
The Mathmos said...: I'm not sure I follow. Levi-Strauss pre-dates the Constitution by more than a century?

And is that a Warriors reference in the title?; 1:47 PM
Inkberrow said...: La Rana---

I'm not sure "nuance" and "moron" mean what you think they mean, so I'm hesitant to rely on you for "rational basis", especially when you append quotation marks around tradition, as if customary usage---precedent---is somehow spurious. Moreover, I'd advise against placing too much reliance upon Wikipedia. Finally, even if one approves the Bowers-Lawrence line, it can be distinguished by being about due process violations of liberty interests based on a criminal statute selectively enforced, as opposed to Judge Walker's bald citation of equal protection violations within a rational basis rubric. Next, aunts and nephews? Fifteen year olds versus nineteen year olds? If it's "irrational"......; 2:05 PM
IOZ said...: Mathmos - he's talking about William Blackstone, I believe.; 2:47 PM
Anonymous said...: Not Warriors (although I think it is ripe for use here... Yggy! Come out and plaaaaaa-ay!). Rather Beatles.; 3:14 PM
Inkberrow said...: Anon @ 3:14---

I'm part of a potent outfit called The Orphans. Cyrus confers with us separately.; 3:29 PM
The Mathmos said...: Doubly incult. Ouch.

On another note, the White House has finally figured out its preferred black sheep for this cycle : gay bloggers.

http://www.pamshouseblend.com/diary/17078/extra-extra-the-white-house-is-frustrated-by-gay-bloggers; 4:09 PM
la Rana said...: Locke was who I had in mind, but the point is the same.

I'm not sure "nuance" and "moron" mean what you think they mean . . . Moreover, I'd advise against placing too much reliance upon Wikipedia.

The reference to Wikipedia was a subtle insult. But I guess that was too, oh, whats the word?

as if customary usage---precedent---is somehow spurious. . . . Finally, even if one approves the Bowers-Lawrence line

This is an act, right? No real person contradicts themselves like that.

Next, aunts and nephews? Fifteen year olds versus nineteen year olds? If it's "irrational"......

You're starting to catch on! There is hope for you yet.; 4:11 PM
Picador said...: Inkberrow:

Where higher-scrutiny classes are impacted, as with the miscegenation and contraception cases, the federal court should protect those classes it has designated as such. Homosexuals have not yet been elevated by the SCOTUS to the constitutional civil-rights status of racial minorities or women.

Prop8 is gender discrimination. Pull up a copy of the SCOTUS opinion in Loving v. Virginia, then swap in "opposite sex" for "same race"; there's no fundamental difference in the relevant principles.

The Prop8 defenders tried to make the argument that, in fact, the principles from Loving are different from the ones here; that a ban on same-sex marriage is somehow fundamentally different from a ban on different-race marriage. They failed to make that case convincingly, so they lost.; 4:33 PM
la Rana said...: Again I point you to Andrew Koppelman (1994).

higher-scrutiny classes Obviously, you're not a golfer.; 4:59 PM
Inkberrow said...: La Rana---

Ahem. I took your Subtle Insult and redirected (too subtly?) at the person who first claimed to be conversant with Wikipedia. The rest of your thin fare here fails to dent my arguments.

Picador---

While I disagree on the eventual merits, no argument with you on the argumentative process to the extent that's the explicit basis for the unconstitutionality of Prop 8, viz, sex/gender discrimination. It's Prop 8's supposed failure under low-bar "rational basis" scrutiny which represents the travesty here.; 7:18 PM
IOZ said...: Lol. Travesti.; 7:40 PM
Anonymous said...: "It's Prop 8's supposed failure under low-bar "rational basis" scrutiny which represents the travesty here."

Everything's a fucking travesty with you, man!

Which is to say, you're out of your element. If you hadn't noticed, discrimination against teh gays doesn't use rational basis. See Romer and Lawrence. Like the Court inventing intermediate scrutiny for gender discrimination, it has invented a new category of review somewhere between rational basis and intermediate scrutiny. Call it rational basis +, or rational basis +P, or a more exacting rational basis test that is distrustful of animus towards an otherwise non-protected class, if you're not into the whole brevity thing.

At any rate, the Court has once again invented some new legal magic, so getting upset about a district judge applying it is silly.; 9:02 PM
Gridlock said...: Bloodsport is my favourite romance flick; 3:09 AM
la Rana said...: Let's assume you are right, and that rational basis means what the Supreme Court regularly says it means, even as it regularly traduces the principle: that the government action need only be rationally related to a legitimate government interest. The government action here is to prohibit two persons of the same sex from marrying in the State of California. What is the "legitimate" government interest? How is it rationally related to the prohibition? You haven't said, other than to insist on a rubber-stamp in lieu of rationale.

As I already mentioned, however, your understanding of "traditional" rational basis review is simply incorrect. For the first century or so, the Supreme Court did not utilize the explicit levels of review that are now so commonplace, though it did occasionally make the holding in previous cases into foregoing "rules"; a practice which continues today. Then, in the first half of the 19th century, the Court went through a slew of rather dramatic ideological struggles over the role of the Court, and ultimately resolved to let most government action alone. That didn't quite work, because it left the legislative and executive branch free to construe the meaning of the constitution - a task the Court had long claimed for itself. So the Court developed "suspect classes," and when government action discriminated against one of those classes, it was held to a more searching judicial inquiry. This classification-dependent review quickly became more complex as new classes were introduced. Suspect or quasi-suspect classes now include a minimum of race, national origin, gender, disability, sexual orientation, political affiliation, etc. In addition to new recognized classes, those classifications have steadily received more searching review (over the course of her life as an advocate and justice, Ginsburg has almost single-handedly taken gender classifications from rational, to intermediate, to nearly on par with race) and the requirements for those levels of scrutiny have been more heavily, well, scrutinized.

These classifications and types of review serve the beneficial purpose of easing decision-making and making decisions more uniform. Their primary role, however, is to obscure the actual function of the judiciary - to make difficult often unique decisions between two competing and usually substantial interests. This role of the judiciary is undeniable, and even the justices’ regular attempts to arbitrarily confine it to classifications, levels of scrutiny, and other various rules (and precedent generally!) are tossed aside when they are found not to apply to the issue at hand. That is the story behind almost every famous Supreme Court decision.

The reason for this is that real-life decision-making mirrors real life; it is difficult, nuanced, and unremittingly complex. It is impossible to predetermine and always in flux. Pure moral sentiments and ignorant prejudice were legitimate government interests in the 19th century, largely because they corresponded to a respectable and seemingly justifiable understanding of the real world. The last 100 years has seen those justifications battered by advances in science, philosophy and moral sentiments, making those opinions disreputable. The judiciary has in turn recognized this new reality, for lack of a better term, and have reflected these - in my estimate obviously improved - changes in their decision-making. This is the story of most peoples and behaviors in the history of the world.; 12:01 PM
la Rana said...: You would have us believe not only that the appropriate judicial review is permanently confined somewhere in the mid-to-late 20th century, at least with respect to the outcomes you desire, but that this static conception of the law reflects the entirety of precedent, customary usage, and the "traditional" legal history of the United States.

As becomes plain once one divorces certain inherited dogmas and orthodoxies, however, the tradition in the United States is for legal decision-making to mirror the increasing complexities, advancing intellectual understandings, and changing moral sentiments of real life. The conservative legal conception of a static regime at some point in history that corresponds neatly with ones desires and prejudices has been fabricated out of whole cloth. Your (and Scalia's etc.) conception of "tradition" within the judicial system, indeed history writ large, is not just immoral and stupid. Its false.; 12:02 PM
Anonymous said...: "Bloodsport is my favourite romance flick"

you'd damn well better be a euro. if you're not, use ARE spellings you seditious prick; 12:03 PM
The Promiscuous Reader said...: Inkberrow: at this point it's simply the right thing to do.

Ah! So you're a moral relativist. I'm not.; 10:28 PM
Inkberrow said...: Promiscuous Reader---

We all are moral relativists, for most applications. As we know, the Bill of Rights codified baseline guarantees in the face of an evolving social compact's practical realities. Bottom line is that despite the bleating here and elsewhere, the SCOTUS has not yet decreed strict-scrutiny protections for homosexuality. Until it does, states' rights should prevail on gay marriage, either for or against. In manner and auspices, Judge Walker's rational-basis analysis is akin to the APA putsch in the early seventies which removed homosexuality from the list of sexual disorders in the DSM, with no new concomitant professional or clinical justification other than that it was Time, and that Good People Were Mad. It was the Right Thing To Do. Opponents Are Backward and Mean-Spirited. Dangerous precedents, even when some of them turn out okay in the long run.; 12:01 PM
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Tuesday, August 17, 2010

Dear Jurisprudence, Won't You Come out to Play

35 comments:

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