Shon Hopwood, Stephen Glass and Second Chances in America

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Say what you will about District of Columbia Circuit Court of Appeals Judge Janice Rogers Brown, and much has indeed been said by both sides of the ideological divide, but she has done something truly remarkable and admirable. Brown has accepted Mr. Shon Hopwood to be one of her clerks.

From Tony Mauro at the Blog of Legal Times:

Shon Hopwood’s unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.

“I’m amazed at the opportunities and second chances I have been given,” said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. “I quickly said yes.”

While in Washington, D.C. Hopwood, 38, also visited former solicitor general Seth Waxman, who has been something of a mentor to Hopwood for more than a decade. They made contact after a certiorari petition Hopwood wrote for a fellow inmate while in prison was granted review by the Supreme Court. The 2004 case was Fellers v. United States. Hopwood chronicled his experiences in the 2012 book Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.

Redemption is right, and a wonderful story of it this is. You see, Hopwood was not a simple wayward youth in minor scrapes with the law, as he told Adam Liptak in 2010 (in a really must read piece):

“We would walk into a bank with firearms, tell people to get down, take the money and run,” he said the other day, recalling five robberies in rural Nebraska in 1997 and 1998 that yielded some $200,000 and more than a decade in federal prison.

Ugly stuff. From which a flower of brilliance has bloomed from the second chance of American opportunity. Just how special the rehabilitation and dedication of Hopwood has been comes in a rather amazing exchange between Hopwood and the federal judge who sentenced him, Richard G. Kopf of the Nebraska District. Kopf, it turns out, has a blog and took to it to state how wrong he had been about Hopwood:

Hopwood proves that my sentencing instincts suck. When I sent him to prison, I would have bet the farm and all the animals that Hopwood would fail miserably as a productive citizen when he finally got out of prison. My gut told me that Hopwood was a punk–all mouth, and very little else. My viscera was wrong.

As if such a heartfelt admission by a seasoned federal judge were not enough, Hopwood appeared in the comments to engage in a remarkable interaction with Kopf, and said:

I wouldn’t say that your sentencing instincts suck. While I meant what I said at sentencing, I was hardly the person that could back it up. I was a reckless and selfish young man back then. I changed. I think most of us change from the age of 22 to 38. And many, like me, outgrow the irresponsibility and foolishness. I can’t tell you how many law enforcement officers (including prosecutors) have come up to me and said something similar to this: I know your story and I too committed some crimes when I was young (although not in the category of bank robberies), and I was lucky enough to not get caught. They changed and channeled their energies and became responsible professionals. I did, too.

It is all pretty breathtaking and fantastic, and hat’s off to both Shon Hopwood and Janice Rogers Brown for having the courage and conviction to make this happen. On other days I would likely be taking fairly strong issue with Brown’s legal handiwork, but not today, and not here.

But the story of American second chance is a fickle and uneven one. For every Shon Hopwood, there are a lot of broken dreams of redemption left scattered, and shattered, on the ground.

This is where the hope of Hopwood meets the flip side of the coin of chance, and both have strong nexus to the Supreme Court of California. From whence Janice Rogers Brown once came, the second part of this story now resides in the name and form of Stephen Randall Glass.

Mr. Glass never robbed a bank, terrorized citizens with firearms or stole money, but he took something extremely precious – truth and honesty – from readers of his journalism. In pretty much exactly the same time frame Mr. Hopwood was robbing banks, Mr. Glass was robbing his readers.

Stephen Glass also, like Shon Hopwood, has a story of bottom to top redemption with a culmination in the love, study and practice of law – or at least hope to do so. Glass’ case is now before the California Supreme Court (yes the prior haunt of Janice Rogers Brown) and has been for over a year and a half waiting…waiting…for a decision.

Let his attorney, Jon Eisenberg, paint the picture from the merits brief lodged on January 3, 2012:

Second chances are an American story. This case is such a story – one of redemption.

Stephen Glass has applied for admission to the California bar. For more than 13 years he has worked diligently to build a good and honest life. His present moral character is outstanding.

But he has had much to overcome. From 1996 to 1998, when Glass was 23 to 25 years old, he committed egregious misconduct, writing 42 fabricated articles for The New Republic (TNR) and other magazines until his lies were exposed and his journalism career ended. Yet Glass, now age 39, has rehabilitated himself during the past 13 years, successfully negotiating a long and difficult road. The law looks with favor upon bar applicants who redeem themselves from prior misconduct. (Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1058 (Pacheco).)

After a ten-day trial with 27 witnesses and thousands of pages of documentary evidence, the State Bar Court’s Hearing Department and Review Department both concluded that Glass has achieved the good moral character required to practice law. The Committee of Bar Examiners (Committee) disagrees. This court will decide.

Indeed, the California Supreme Court will decide.

The parallels between the tracks of the two men are stunning. Both have displayed a contrite determination to redeem and improve themselves over the same fourteen year period, and both have found their way in the law.

Yet one man, Hopwood, the one who quite arguably committed the worse, and definitively violent criminal, conduct is being given a chance in the hallowed halls of the second highest federal court in the land. A chance he has well and admirably earned. But if that is the case, and it is, then so too has Stephen Glass. The Supreme Court of California has inexplicably kept his case on ice for over a year and a half.

The American dream of redemption and second chance only is meaningful if it exists in more than isolated instances. Chief Judge Tani Cantil-Sakauye and the other justices of the California Supreme Court have a chance to follow the admirable lead of their former colleague Janice Rogers Brown by giving Glass a shot at redemption. Will they take it? Will all the internet and print writers and pundits who have rightfully applauded Shon Hopwood’s second chance do the same for their once famed, and now disgraced, colleague? Where lies the fickle line of possibility for redemption?

The Marriage Equality Decisions

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Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

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CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to Read more →

5th Amendment Silence: One Day In Salinas We Let It Slip Away

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There is a famous line in the famous Kris Kristofferson song “Me and Bobby McGee” that reads:

Then somewhere near Salinas, Lord, I let her slip away

Today the United States Supreme Court let a bit of the 5th Amendment backbone right to silence slip away down the slippery slope. In the case of Salinas v. Texas, with Justice Alito writing for the Court (rarely a good sign), it was held that a criminal defendant’s silence can be used against him at trial. This is a stunning decision placing a knife blade in the age old general rule that a defendant’s silence cannot be taken against him at trial.

The facts, as laid out in the court’s syllabus are as follows:

Petitioner [Salinas], without being placed in custody or receiving Miranda warn- ings, voluntarily answered some of a police officer’’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the pros- ecution’’s use of his silence in its case in chief violated the Fifth Amendment.

Alito held that petitioner’’s Fifth Amendment claim fails because he did not “expressly” invoke his privilege to silence affirmatively in response to the police officer’’s questions. The upshot is that the word “silence” in “right to silence” does not necessarily mean “silence”. This follows a long line of similarly disquieting cases going back to the likes of the 1984 decision in Minnesota v. Murphy to the quite recent decision in Berghuis v. Thompkins, where the Court held that a defendant failed to invoke his Miranda right by remaining silent for nearly three hours.

The difference between the Berghuis line of cases and the Salinas decision today, however, is huge. The Berghuis line all involved admissibility of evidence, whether statements or physical evidence, in the face of Miranda rights. Today’s decision in Salinas travels a light year past that and allows the prosecution at trial to infer a defendant’s guilt from his silence.

So, one might think a waiver of this magnitude of one’s Fifth Amendment privilege must be voluntary and affirmative, not so according to Alito:

We have before us no allegation that petitioner’’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’’s use of his noncustodial silence did not violate the Fifth Amendment.

But, by far, the biggest problem with the Salinas decision is the extension of the old doctrine Read more →

The Internet Didn’t Kill the Middle Class; Laxity and Apathy Did

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KodakBldgAtlanta_mcclanahoochie-Flickr_modIn tandem with the release of his book, Who Owns the Future?, Jaron Lanier’s interview with Salon generated a lot of hand-wringing across social media. It seems Lanier, one of our so-called intellectual visionaries, believes that the collapse of Kodak and its 140,000 jobs, and the rise of Instagram and its 13 jobs, exemplifies the killing field of the internet. Lanier theorizes good paying jobs that once supported a thriving middle class have disappeared as internet-enabled firms replaced them. As these jobs vaporized, so did necessary benefits. Here’s a key excerpt from the interview:

“Here’s a current example of the challenge we face,” he writes in the book’s prelude: “At the height of its power, the photography company Kodak employed more than 140,000 people and was worth $28 billion. They even invented the first digital camera. But today Kodak is bankrupt, and the new face of digital photography has become Instagram. When Instagram was sold to Facebook for a billion dollars in 2012, it employed only 13 people. Where did all those jobs disappear? And what happened to the wealth that all those middle-class jobs created?”

What a crock of decade-late shit.

Where the hell was Lanier in the late 1990s and early 2000s, when the U.S. manufacturing sector nose-dived due to government policies created by corporate-acquired elected officials and appointees?

It wasn’t the internet that killed the middle class. The apathy of intellectuals and the technology elite did; too few bothered to point out the potential repercussions of NAFTA and other domestic job-depleting policies. In the absence of thought leaders, corporatists sold the public and their electeds on job creation anticipated from globalizing policies; they just didn’t tell us the jobs created wouldn’t be ours.

It wasn’t the rise of digitization that killed the middle class. It was the insufficiency of protests among U.S. brain power, including publicly-funded academics, failing to advocate for labor and home-grown innovation; their ignorance about the nature of blue collar jobs and the creative output they help realize compounded the problem.

Manufacturing has increasingly reduced man hours in tandem with productivity-increasing technological improvements. It wasn’t the internet that killed these jobs, though technology reduced some of them. The inability to plan for the necessary shift of jobs to other fields revealed the lack of comprehensive, forward-thinking manufacturing and labor policies.

It all smells of Not-My-Problem, i.e., “I’m educated, technology-enabled, white collar; those stupid low-tech blue collar folks’ jobs aren’t my problem.”

Until suddenly it is. Read more →

John Galt Is Everywhere and His Killing Spree Continues

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On Thursday, I wrote about the central role that absolute free market libertarianism, as personified by the fictional John Galt, played in the horrific explosion in West, Texas that took the lives of fourteen people, most of whom were volunteer firefighters fighting a fire at an unregulated fertilizer facility. We have now learned that the facility had a checkered history of ignoring regulations and had 1350 times more ammonium nitrate on hand than the amount that triggers a legal requirement to report the facility to Department of Homeland Security. Of course, the facility’s owner chose to ignore that regulation along with the many other regulations he chose to ignore. Sadly, some press accounts of the owner chose to focus more on his role as a church elder (Update: he was even at Bible study when the fire broke out!) than on how his choice to flout regulations and good sense led directly to this tragedy. Whatever the cause of the original fire that eventually triggered the explosion, the plant owner’s decision to maintain such a large and unreported amount of highly explosive ammonium nitrate so close to so many people played a huge role in how this tragedy played out.

Those deaths, and their roots in blatant disregard for government regulation in the belief that it harms business, are sadly just a small part of the larger picture of how free marketeers have corrupted the public marketplace of ideas to sow widespread death and destruction so that the “job creators” can go about their usual business of pocketing massive profits while refusing to make microscopic investments in small steps that would save many lives.

Remember the other, larger Massachusetts tragedy that killed at least 50 and injured 722? No?  It was discovered last fall that New England Compounding Center in Framingham, Massachusetts had been flaunting the rules on drug manufacturing and in their haste to reap maximum profits shipped out vials of steroids contaminated with fungus. Thousands of patients around the country were injected with contaminated material and deaths and injuries followed.

You would think that since this tragedy played out last fall, the government would have realized the error of letting companies call themselves compounders when they are in reality manufacturing drugs on a large scale. Drug manufacturers are subject rigid FDA standards while compounders are regulated as if they are simple neighborhood pharmacies where the druggist might mix single vials of drugs into a form a local doctor has requested for individualized treatment of a patient. But no, because of massive lobbying on the part of compounders, who have become a huge presence because of the vast sums of money they can earn by working the margins of regulation, lawmakers pocket the proceeds of the lobbying and proclaim themselves powerless to harm the job creators as they bring these products to market. It should be viewed as no surprise then, that a different compounder, this time in Florida, now is recalling all of its products because it has been found to have been shipping product that was contaminated with bacteria. It is not yet known if any patients have been harmed by products from this compounder, but at least today’s article on the recall was able to update the death toll from the Massachusetts compounder to 53.

The Boston Marathon bombing and the subsequent search for the perpetrators also was touched by John Galt. Technology has existed for nearly 20 years that can make individual production lots of explosives traceable. But when it came time to implement the technology, the NRA and other gun enthusiasts managed to limit the inclusion of taggants to plastic explosives and to specifically exempt black powder (otherwise known as gunpowder) from being required to be traceable. The Boston bombs used black powder. If investigators had been able to know within hours of the blast where and when the black powder was purchased, would they have been able to arrest the bombers sooner and without the subsequent death of one police officer and near death of another? The full shutdown of Boston on Friday would not have happened if the brothers had been arrested Wednesday or Thursday through tracing the black powder they purchased. But no, John Galt said that gunpowder manufacturers shouldn’t have to spend the extra pennies to tag production lots and the inclusion of taggants in gunpowder infringes the rights of gun owners in a de facto registration of their ammunition, so society has to suffer the consequences of this freedom.

Oh and all that gun freedom. It appears that we have five more gun freedom victims in Seattle today.

John Galt is a very busy guy, sowing death and destruction from one side of the country to the other. But since he continues to make good money, we have to give him his freedom and keep those markets wide open. Praise the lord of the free market and pass the untagged ammunition.

DOMA’s Day At The Supremes

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RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

The Case Against Marriage Equality Backlash

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LadyJusticeScalesOne of the relentless memes that keeps cropping up in the marriage equality battle is that, were the Supreme Court to grant full broad based and constitutionally protected marriage equality in the Hollingsworth v. Perry Prop 8 case, there would be a destructive backlash consuming the country on the issue.

A good example of the argument was propounded by Professor Eric Segall at the ACSBlog in a piece entitled “Same-Sex Marriage, Political Backlash and the Case for Going Slow”:

There may be a better way. The Court could strike down DOMA under heightened scrutiny making it clear that government classifications based on sexual orientation receive heightened scrutiny. The Court could dismiss the Proposition 8 case on standing grounds (there are substantial standing arguments which the Court asked the parties to brief). This combination would leave all state laws (except perhaps California’s) intact but subject to likely successful challenges. Obviously, this would be a slower and more expensive route to marriage equality, but it might make the right more secure over time while decreasing the chances of serious backlash.

I know that it is easy for a straight male like me to suggest that the Court should refrain from quickly and forcefully resolving the same sex marriage issue on a national basis. But issues that some gays care deeply about are not limited to marriage equality, just like feminists face many challenges other than abortion such as equal pay, equality in the military, and glass ceiling barriers. Where gender equality would be without Roe is unknowable but even Justice Ruth Bader Ginsburg has observed that the right to choose today might be more secure if the Court hadn’t decided it “in one fell swoop.” I don’t know what will happen if the Court announces a national rule on same-sex marriage but history strongly suggests that a more incremental approach might better serve the long term interests of people who identify themselves as liberals and progressives, including gays and lesbians.

I like and respect Eric quite a lot, but I cannot agree with him, nor other advocates of this position (for further discussion of the “Roe backlash” theory, see Adam Liptak in the New York Times). I have long strongly advocated for a full, broad based, ruling for equality for all, in all states, most recently here. But the issue of “backlash” has not previously been specifically addressed in said discussions that I recall.

Fortunately, there are already superb voices who have addressed this issue. The first is from Harvard Law Professor Michael Klarman in the LA Times:

What sort of political backlash might such a decision ignite?
…
Constitutionalizing gay marriage would have no analogous impact on the lives of opponents. Expanding marriage to include same-sex couples may alter the institution’s meaning for religious conservatives who believe that God created marriage to propagate the species. But that effect is abstract and
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A Path To Civil Rights History For the Supreme Court, Obama and Verrilli

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Supreme Court CoolJust about a month ago, in urging the Obama Administration to file a brief in favor of marriage equality in the Hollingsworth v. Perry Prop 8 case before the Supreme Court, I described the stakes:

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case.

It was true then, it is true now. To the everlasting credit of of President Obama, Solicitor General Verrilli and the Administration, they did indeed file a brief in support. It was a surprisingly strong brief with a clarion call for full equality based upon heightened scrutiny; yet is was conflicted with a final ask only for a restricted ruling limited in application to either just California or, at most, a handful of somewhat similarly situated states. In short, the ask in the Administration’s brief was not for equality for all, in all the states; just in some.

On the eve of one one of the seminal moments of Supreme Court history – it is easily arguable this is far more of a defining moment than the ACA Healthcare scuffle was – it is again incumbent on the Administration to give the justices the headroom to make a broad decision granting equality for all.

Even in the short time since the Obama Administration filed their brief, between February 28 and now, the mounting tide of public opinion and desire for full equality has grown substantially in multiple ways. Colorado, a state where the thought was once beyond contentious, passed full civil union equality and Governor Hickenlooper signed it into law. And a new comprehensive Washington Post/ABC News public poll has found that a full 58% of Americans now support the legality of gay nuptials, and a whopping 81% of adults between the ages of 18 and 29 so support.

The writing is on the wall, and the trend overwhelming. And it simply does not make sense for the Obama Administration to buck this tidal wave and argue only for equality in a handful of states, with equality for some, but far from for all. Barack Obama and Donald Verrilli laid every bit the foundation needed to argue for broad based full equality – in all states – in their brief.

It is time for Mr. Obama and Mr. Verrilli to step up and forcefully tell the Supreme Court that full equality is the right way to rule. The Court granted Solicitor General Verrilli time to express the Administration’s position in the oral argument Tuesday; he should use it in the name and cause of full broad based equality. It is a time for leadership; this is a moment for Mr. Obama and his attorney to display it.

By the same token, it is also time for the Supreme Court to do the same. So often it has been argued the “Court should not get out in front of popular opinion”. Bollocks, the Court should refuse to put themselves behind public opinion, and an ever strengthening one at that, by shamefully ducking the perfect opportunity to stand for that which the Constitution purports to stand, equal protection for all.

There are a myriad of legal arguments and discussions, and just about every commenter and expert in the field has been offering them up over the last week. I will leave that to another day, after the court has heard the oral arguments, we have our first inclination of what the justices are focused on, and the case is under advisement for decision.

For now, here are a couple of warms ups for Tuesday’s oral argument in Hollingsworth v. Perry/Prop 8 and Wednesday’s oral argument in United States v. Windsor/DOMA. First a nice little video “Viewer’s Guide to Gay Marriage Oral Arguments” with Supreme Court barrister extraordinaire, and SCOTUSBlog founder, Tom Goldstein. Here is a handy flow chart of all the different possibilities, and the why for each, of how the court may rule on both cases. It is really pretty neat and useful tool.

The briefing is long done now and the Justices understand the issues. But if the ACA/Healthcare cases taught us anything, it is that Justice Roberts is concerned about the legacy and esteem of the court. And Justice Kennedy has already shown how committed he is to fairness in social justice issues and willing to even go out on limbs ahead of controversial public opinion with his written opinions.

At this point, the most effective leverage is not repeated discussion of the minutiae of law, but rather the demonstration of the righteousness of full equality. History will prove fools of those who sanction continued bigotry against marital equality, and anything less than a broad based heightened scrutiny finding, for equality for all people, in all states, is a continuation of such unacceptable bigotry.

UPDATE: Professor Adam Winkler of UCLA has a piece out today that embodies my point in the post perfectly. Discussing the disastrous and ugly 1986 decision of the Supreme Court in Bowers v. Hardwick to uphold sodomy laws when times and opinion had already changed, and the profound regret felt by Anthony Kennedy’s predecessor, Lewis Powell, Professor Winkler writes:

Kennedy is clearly a justice who considers how his legacy will be shaped by his votes. In 1992, when the Supreme Court was asked to overturn Roe in a case called Planned Parenthood v. Casey, Justice Kennedy originally sided with the conservatives to reverse the controversial privacy decision. Like Justice Powell in Bowers, Justice Kennedy then changed his vote. He went to see Justice Harry Blackmun, the author of Roe, and explained that he was concerned about how history would judge Kennedy’s decision to end constitutional protections for women’s right to choose.

Like many people, Justice Kennedy may believe that the public tide against marriage discrimination is growing and that gay marriage is inevitable. History is not likely to be kind to those justices who vote to continue relegating LGBT people to second-class citizenship. As the swing justice ponders how to rule in the gay-marriage cases, Justice Powell’s well-known regret over Bowers, and the widespread recognition that Bowers was wrongly decided, will almost certainly weigh on his mind.

Adam’s article is worth a full read. And I agree with it completely.

Tragic Loss in Pakistan: Parveen Rehman Gunned Down

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Parveen Rehman as she appeared in NPR's story about her, top, and a before and after set of photos from installation of a sewer line from the Orangi Pilot Project website, bottom.

Parveen Rehman as she appeared in NPR’s story about her, top, and a before and after set of photos from installation of a sewer line from the Orangi Pilot Project website, bottom.

Around the middle of the day my time yesterday, my Twitter feed exploded in rage with tweets from Pakistan bemoaning a great loss. Killings in Karachi have become disturbingly commonplace of late (although this killing doesn’t fit the sectarian nature of many of the current ones), but one killing Wednesday provoked outrage at a level I have never seen before from a number of Pakistanis I follow.

A look at the life of Parveen Rehman and the Orangi Pilot Project she headed justifies the outrage at her murder and shows the depth of the loss that has been suffered. From a report in The Nation, it appears that Rehman was targeted specifically:

Renowned social worker and Director of Slum Rehabilitation Project known as Orangi Pilot Project, Parveen Rehman, was gunned down on Wednesday in an incident of target killing within the precincts of Pirabad police station.

Parveen Rehman currently working as Director of Orangi Pilot Project founded by Akhter Hamid Khan was shot dead when she was on her way home from Orangi Town.

DIG Javaid Odho, when contacted, told TheNation that the gunmen riding a motorbike targeted her near Abdullah College. Assailants managed to flee from the scene while she was taken to Abbasi Shaheed Hospital where the doctors pronounced her dead, DIG Odho added.

He further said that assailants targeted her specifically and did not harm the driver.

The Orangi Pilot Project, which Rehman headed, is a remarkable example of people banding together to help one another when they belong to impoverished groups that government will not help. From their website:

Provision of a housing unit is not a problem. People build their houses incrementally, with building component manufacturing yards in the settlements providing building materials and components on credit. Initially the land supplier (who is a resourceful person having links with politicians, government departments and the private operators) arranges the supply of water through water tankers and transportation (i.e. bus routes). As the settlement expands and consolidates, need for water supply, sewage disposal, schools and clinics arises. For livelihood, people set up micro enterprises in their homes. People lobby with government for facilities but due to lack of or adhoc+ government response, they soon undertake self help initiatives.

In 1980 when OPP started work in Orangi, it observed peoples initiatives in provision of sewage disposal, water supply, schools and clinics, as well as the limitations of the response from the government. OPP decided to strengthen people’s initiatives with social and technical guidance.

It is demonstrated through the programs that at the neighborhood level people can finance, manage and maintain facilities like sewerage, water supply, schools, clinics, solid waste disposal and security. Government’s role is to compliment people’s work with larger facilities like trunk sewers and treatment plants, water mains and water, colleges/universities, hospitals, main solid waste disposals and land fill sites.

The component-sharing concept clearly shows that where government partners with the people, sustainable development can be managed through local resources.

The OPP has been fantastically successful, helping to provide critical infrastructure for over two million people:

The model that has evolved from the program is the component-sharing concept of development with people and government as partners. It has evolved from a lane to the city/town. The program has extended to all of Orangi town (where 106,726 houses, have invested Rs. 122.61 million in secondary, lane sewers and sanitary latrines, with govt. investing Rs. 739.3 million on main disposals) and to 463 settlements in Karachi and 44 cities/ towns, also in 93 villages (spread mostly over the Sindh and Punjab Provinces) covering a population of more than 2 million.

Back in 2008, NPR profiled Rehman: Read more →