Tuesday 5/20/2014 Open Thread

Posted on May 20, 2014 by jnc4p

I didn’t see a notice about Brent being away, but in the interest of comment management here’s a new open thread for today.

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74 Responses

  1. I'm Now Kevin's Biatch, on May 20, 2014 at 10:23 am said:

    MOAR Republican War on Women.

    http://www.oregonlive.com/politics/index.ssf/2014/05/monica_wehby_stalking_report_f.html#incart_river

    Are all women emotionally unstable or just Republican ones?

    Asking for a friend.

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  3. quarterback, on May 20, 2014 at 11:47 am said:

    Assisted by another set of faithless Democrat officials who violated their oathes by failing to defend the law, another lawless court makes homosexual marriage law, in Oregon.

    http://hosted.ap.org/dynamic/stories/U/US_GAY_MARRIAGE_OREGON?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2014-05-19-18-29-09

    Just a few years ago, almost all states adopted these amendments and laws. Judges and their radical activist masters now rule by fiat. TCID.

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  6. I'm Now Kevin's Biatch, on May 20, 2014 at 12:39 pm said:

    20 year old article on VA problems and corruption by Wild Bill Safire,

    http://www.nytimes.com/1995/01/12/opinion/essay-most-sacred-cow.html

    Endemic.

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  8. novahockey, on May 20, 2014 at 12:58 pm said:

    well, my wife is out of town.
    woke up this morning to a keg that had leaked all over our new, thankfully plank vinyl floors in the basement. have no idea why a keg that was sitting in a fridge, not hooked up or under pressure would do that. probably a gallon lost.

    i’m so dead.

    in good new, pretty easy clean up.
    bad news. brand new floors and the place smells like a frat house. also, lost beer.

    she gets home tonight and i think i can eliminate the smell by then. this might be overly optimistic. any suggestions on how to remove a beer smell would be appreciated.

    but there’s a witness.

    Q; “why is there beer all over the floor, daddy? why is the dog licking it.?”
    A: I don’t know why, but animals don’t let good things go to waste.

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  9. lmsinca, on May 20, 2014 at 1:02 pm said:

    Funeral Flowers?

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  11. jnc4p, on May 20, 2014 at 1:13 pm said:

    QB, with regards to the previous discussion on the legal reasoning for gay marriage, the gaming of standing issues to prevent appellate judicial review strikes me as the watershed here. But much like everything else, this will come back to bite some of the people now advocating for it as only needed in an “exceptional” circumstance when they feign surprise and outrage when it’s more broadly adopted as a political tactic.

    The AG of Virginia’s public stance is particularly notable. He voted for the amendment at the time of it’s passage back in 2006 but has now concluded that there is no non-frivolous argument that can be made to uphold it so he is declining to defend it.

    Presumably if he is such a bad lawyer as to have voted for a state constitutional amendment that there was no serious legal basis for upholding vis-a-vis the US Constitution, then he’s not competent to hold his current office and should resign or be impeached.

    The other, more likely alternative is that he’s a cynical liar as are most of the politicians who have “evolved” on the issue.

    http://www.washingtonpost.com/local/virginia-politics/virginia-to-fight-same-sex-marriage-ban/2014/01/23/9e5aa210-8431-11e3-bbe5-6a2a3141e3a9_story.html

    http://www.politico.com/story/2014/01/virginia-gay-marriage-mark-herring-102508.html

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    • ScottC, on May 20, 2014 at 2:08 pm said:

      jnc:

      But much like everything else, this will come back to bite some of the people now advocating for it as only needed in an “exceptional” circumstance when they feign surprise and outrage when it’s more broadly adopted as a political tactic.

      I am very doubtful that it will ever come back to bite them, because in order for it to happen judges would have to apply the same standard of determining standing in all cases, and there is no reason to believe that the federal judiciary will be consistent on this. Liberal jurisprudence is entirely results oriented, so I have little doubt that there will always be a liberal judge to be found willing to grant standing to an outsider in order to pursue the “correct” political result even if the same judge would refuse to grant standing in order to protect the “correct” political result.

      We have one political party quite seriously dedicated to pursuing their policy aims via the federal judicial system rather than in the political arena, and they have successfully planted within that judicial system a plethora of judges willing to aid them in doing just that. I see no reason to believe that “principles” they establish today in pursuit of policy goals won’t be immediately dispensed with when they become inconvenient to that pursuit.

      In other words, politicians aren’t the only cynical liars in the federal government. The judiciary – including the Supremes – is filled with them too.

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  12. jnc4p, on May 20, 2014 at 1:15 pm said:

    “i’m so dead.”

    This is a job for Charlie Palmer’s.

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  13. novahockey, on May 20, 2014 at 1:25 pm said:

    i could go for a steak about now.

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  14. jnc4p, on May 20, 2014 at 1:36 pm said:

    I meant take the wife out to dinner.

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  15. Michigoose, on May 20, 2014 at 1:41 pm said:

    McWing: you’re painting the VA with far too broad a brush. And why you would expect any entity as large as the VA to be lily white pure and honest at all times is beyond me.

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  16. Michigoose, on May 20, 2014 at 1:41 pm said:

    I meant take the wife out to dinner.

    I knew you meant that. I think the fumes are getting to NoVA, though! 🙂

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  17. novahockey, on May 20, 2014 at 1:46 pm said:

    See, I thought it was advice to go to your happy place and come up with a solid plan.

    But a nice dinner out works too.

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  18. I'm Now Kevin's Biatch, on May 20, 2014 at 1:52 pm said:

    McWing: you’re painting the VA with far too broad a brush. And why you would expect any entity as large as the VA to be lily white pure and honest at all times is beyond me.

    I don’t think it’s lily white pure, no entity is. I do believe as a government organization it exists to serve government employees and politicians.

    The problems with the VA, it’s incompetence and corruption go back to it’s founding. That Safire column is 20 years old. We’re scratching the surface really.

    Either you believe that government is essentially incompetent and corrupt or you don’t. I’ll be happy to examine any examples you have of government running things or a thing in a competent and incorruptible way.

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  19. jnc4p, on May 20, 2014 at 2:07 pm said:

    NoVA, you can always give her a card that’s something along the lines of an old Monopoly “Get Out of Jail Free” card that she can cash in if she does something comparable.

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  20. Michigoose, on May 20, 2014 at 2:31 pm said:

    McWing: seriously, the VA as a whole is a pretty darn good health care system. My experience with them in both SLC and Baltimore has been as least as good–and sometimes better–than private insurance/health care. That holds true with the vast majority of patients as well. Some info is admittedly dated (and here, for the following year), but overall veterans are very happy with the VA. NoVA may have more recent statistics.

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  21. Michigoose, on May 20, 2014 at 2:33 pm said:

    that she can cash in if she does something comparable.

    Unpossible. It’s the law of Husband Points.

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  22. jnc4p, on May 20, 2014 at 3:04 pm said:

    “I am very doubtful that it will ever come back to bite them, because in order for it to happen judges would have to apply the same standard of determining standing in all cases, and there is no reason to believe that the federal judiciary will be consistent on this.”

    Maybe. I’m imagining how things would have turned out for the PPACA if say a Republican administration had declined to defend it against a constitutional challenge and had in fact joined with the plaintiffs in arguing it was unconstitutional and simultaneously prevented any other party from defending it. I suspect that SCOTUS could have appointed counsel, but that’s pretty big threshold.

    It will be even easier at the lower court level. Once you get the ruling that you want, decline to appeal and then block anyone else from taking up the appeal.

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    • quarterback, on May 20, 2014 at 4:09 pm said:

      Jnc, I don’t think I knew that about the VA AG. It is a shocking level of mendacity and corruption, far worse than mere financial corruption or bribery for favors. These people are truly evil. Without conscience. I mean that. It isn’t rhetoric. We know who set the recent precedent for the behavior: Barack H. Obama. He lied without conscience on this issue to get elected. And even people like sbj thought that was just fine. By any means necessary. Less than four years later he not only took the mask off but instructed Eric Holder to stop defending bipartisan federal law and mount a full-court press to force the homosexual agenda on the country by law. No liberal who refuses to condemn these actions in unqualified and scathing terms will ever have any credibility in my sight. Obama et al have destroyed the rule of law. They have dramatically undermined the very legitimacy of government. And they have the nerve to claim they are guardians of the Constitution. They should all be impeached. The government lawyers should be disbarred. The idea that no nonfrivolous argument exists for the “traditional” marriage is itself frivolous. Everyone involved knows this.

      But I agree with Scott that there is little chance that the tables will ever be turned. Nonleftists have a history of telling themselves that. It never happens. Conservatives have principles and integrity that people like Obama, Holder, and the VA AG lack. And that extends to the judiciary. Liberal officials and judges will never let the law or their professional or official duties, or even honor and integrity, stand in their way.

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  23. jnc4p, on May 20, 2014 at 4:03 pm said:

    Good NYT piece on the political implications of the VA scandal, given President Obama’s past rhetoric on the issue.

    http://www.nytimes.com/2014/05/21/us/obama-faces-new-test-in-mismanagement-at-veterans-hospitals.html?hp

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  24. jnc4p, on May 20, 2014 at 4:18 pm said:

    “These people are truly evil. Without conscience.”

    No, they are just “ends justify the means” types which isn’t anything new under the sun.

    “William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! ”

    http://www.imdb.com/title/tt0060665/quotes

    They are also dishonest politicians, which again is nothing new.

    It is one more chip in the facade of self government and the idea that there can be good faith enforcement of the laws.

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    • quarterback, on May 20, 2014 at 4:32 pm said:

      I have to disagree. This goes beyond ends justifies means. It goes beyond routine political lying. Way, far, vastly beyond. To pretend this is just business as usual is foolish. These people are corrupt to the core and evil.

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  26. I'm Now Kevin's Biatch, on May 20, 2014 at 4:55 pm said:

    Endemic.

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  29. I'm Now Kevin's Biatch, on May 20, 2014 at 5:35 pm said:

    No other President has faced obstacles.

    Ever.

    http://m.huffpost.com/us/entry/5355066

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  30. Michigoose, on May 20, 2014 at 6:18 pm said:

    Is there a fire extinguisher in the building?

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    • ScottC, on May 20, 2014 at 8:46 pm said:

      Mich:

      I’m curious…do you think it is acceptable or condemnable for an elected executive to refuse to mount a defense of duly enacted laws against legal challenges simply out of policy disagreement with the law?

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  31. quarterback, on May 20, 2014 at 6:45 pm said:

    Worse, Pfieffer’s smear is a pack of outright lies.

    “However, we have a Republican Congress focused on virtually anything but the middle class — obsessively trying to repeal the Affordable Care Act, ginning up politically motivated investigations, and reflexively blocking any proposal that would grow the economy and create jobs.”

    Republicans in Congress have passed and supported a long list of reforms and growth measures. The Obamacrats block them all. They are obsessed with defending to the death his legacy catastrophe, which the public has always opposed.

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  32. quarterback, on May 20, 2014 at 6:53 pm said:

    Macklemore got rich and famous as a no-talent anti-Christian bigot. He was one of the liberal heroes of 2013. They celebrated that bigotry. Now he’s exposed himself as a crude anti-Semite.

    http://www.cnn.com/2014/05/20/showbiz/macklemore-costume-apology/

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  33. quarterback, on May 20, 2014 at 9:52 pm said:

    This from Hotair accurately describes the devious strategy of Anthony Kennedy, the cowardly dictator.

    http://hotair.com/archives/2014/05/20/reminder-from-pennsylvania-the-supreme-court-has-already-basically-legalized-gay-marriage/

    The same strategy I described recently. It’s amazing to look at just how stupid, how obtuse Kennedy’s reasoning is. But it’s the same stupid, obtuse reasoning that has been painstakingly crafted to trap millions.

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  36. jnc4p, on May 20, 2014 at 11:43 pm said:

    I can’t recall a case prior to Windsor where the lower courts applying it as precedent cited the dissent as the source of their reasoning as much as all these courts have cited Scalia’s dissent when overturning the statutes.

    They are however banking on the premise that when push comes to shove, Kennedy will overturn his own decision when it comes back to the SCOTUS.

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    • markinaustin, on May 21, 2014 at 10:04 am said:

      They are however banking on the premise that when push comes to shove, Kennedy will overturn his own decision when it comes back to the SCOTUS.

      Agreed. Two years ago I would have predicted that few USDCs would have done this.

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  37. Michigoose, on May 21, 2014 at 2:39 am said:

    I can’t recall a case prior to Windsor where the lower courts applying it as precedent cited the dissent as the source of their reasoning as much as all these courts have cited Scalia’s dissent when overturning the statutes.

    I’ve been wondering if it’s a judicial form of snark. Even judges have senses of humor, right?

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  38. quarterback, on May 21, 2014 at 6:09 am said:

    I don’t know off hand whether there is another example of lower courts’ citing a dissent similar to Scalia’s as frequently as the Windsor dissent, but it this is a familiar tactical pattern to which our discussions have previously alluded. Scalia typically writes his dissents this way, putting majority (and plurality) opinions in the worst light, exposing their flaws and extreme positions to the greatest extent possible. He did it in Lawrence as well, as in Casey and many other cases. He said this in Lawrence:

    “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.”

    That dissent probably has not been cited as much in carrying out exactly what it prophesies, but it has been cited.

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    • ScottC, on May 21, 2014 at 7:11 am said:

      qb:

      (from Scalia)

      At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

      This is why I don’t understand Mark’s sanguine attitude towards the court’s treatment of rational basis. Hasn’t the court already pretty much destroyed the traditional sense of it?

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  39. quarterback, on May 21, 2014 at 6:49 am said:

    (Continued)

    The criticism of Scalia’s approach on tactical grounds has been that it lends itself to exactly what is happening now: it puts the most dire interpretation on the majority opinion and thus gives credence to that interpretation and becomes self-fulfilling prophesy. But I think the Scalia view is that there is no point in pretending; when we all know exactly what the majority is doing and how it is setting the table for even more radical decesions to come, it is important to expose the mischief to the greatest extent possible.

    At times, liberals like Brennan have written dissents in similar vein. Brennan’s dissent in National League of Cities v. Usery was rather apocalyptic, as have dissents in the few abortion cases that went against the liberals. Blackmun’s dissent in Bowers was quite histrionic, as well as being based entirely on “values” and divorced from the actual Constitution, and one huge straw man.

    But more often they have used the tactic of writing dissents that characterize decisions they don’t like as narrow and technical and of no greater consequence. A more mundane but recent example of this was in Comcast v. Behrend, which concerns class certification. Ginsburg wrote in dissent that the majority decision broke no new ground. She very clearly wrote that language to provide fodder for future plaintiffs and lower courts to say, well, Comcast really didn’t change anything, so it is business as usual; Comcast was really a very narrow and technical case. Technically, I have argued that she was right, in that Comcast’s holding and reasoning were always the law as reflected in prior SCOTUS decisions (and as required by the Constitution, the Rules Enabling Act, and the civil rules). But Comcast clearly rejected much lower court practice, which had sharply diverged from the governing princples. Nevertheless, Ginsburg’s spin has been used by lower courts to justify concluding that Comcast changed nothing about what they had been doing, and they have indeed kept right on going with business as usual.

    One could argue that the tactic of putting the most harmless spin on a majority decision is the better one. But in a case like Windsor I come down with Scalia. The reasoning and strategy of Kennedy’s opinion was patently clear. Whether or not Scalia called it out, it was inevitable that things would progress just this way, with Kennedy once again pretending to restraint in not going beyond the case before him and yet writing sweeping language intended to be applied by lower courts to impose homosexual marriage. In the final act, he will be “forced” to recognize that his own logic leads inexorably to where several dozen lower courts have taken it, reflecting a profound shift in social and legal attitudes. He’ll throw in some bastard notion of societal reliance as well, and it will drip with irony. I entirely agree with Scalia’s decision to call out the fraud from the start.

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    • ScottC, on May 21, 2014 at 7:18 am said:

      qb:

      The criticism of Scalia’s approach on tactical grounds has been that it lends itself to exactly what is happening now: it puts the most dire interpretation on the majority opinion and thus gives credence to that interpretation and becomes self-fulfilling prophesy. But I think the Scalia view is that there is no point in pretending; when we all know exactly what the majority is doing and how it is setting the table for even more radical decesions to come, it is important to expose the mischief to the greatest extent possible.

      I suppose it ought to be expected, but I find the idea that the justices engage in “tactical” opinion writing to be very irritating/disturbing. It is just another indication that the Court has become little more than another political branch. The only thing that distinguishes it from the others is that it has no accountability to voters, and therefore its powers are that much more dangerous.

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  40. quarterback, on May 21, 2014 at 7:00 am said:

    Here is a rather apocalyptic (and hypocritical) dissent (in part) by Blackmun in an abortion case.

    http://www.law.cornell.edu/supremecourt/text/492/490#writing-USSC_CR_0492_0490_ZX

    It would be interesting to go back and look at how often it was cited by lower courts in upholding restrictions on abortion.

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  41. quarterback, on May 21, 2014 at 7:22 am said:

    This is why I don’t understand Mark’s sanguine attitude towards the court’s treatment of rational basis. Hasn’t the court already pretty much destroyed the traditional sense of it?

    Scott, yes, I entirely agree. I had forgotten just how thoroughly the Court had already dispensed with the traditional rational basis test in Lawrence. It is 100% clear what will happen when SSM reaches the Court again, and has been since Lawrence, just as Scalia said.

    It is also remarkable to look back at the progression of cases and see just how much they depend not only on conclusory reasoning that converts rational basis into a test that could never be satisfied but on the “identity” theory of homosexuality that refuses to distinguish between actions and actor.

    On that last note, I have been doing some research and reading about the original “groundbreaking” 1957 study of homosexuality by Evelyn Hooker on which the APA’s decision to remove it from the DSM. If you haven’t studied it, I think it is quite worthwhile. I am frankly floored at how flawed and limited (and possibly fraudulent) it was, and how it has come to be misrepresented. I have read numerous summaries and analyses but have not yet found a free copy of the paper itself and don’t plan to pay $40 for it.

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    • markinaustin, on May 21, 2014 at 10:10 am said:

      Scott, I pretty much agree that “rational basis” is being dismantled, if it has not already been. Perhaps my long years of having relied upon it to mean one thing have ill prepared me for accepting this new “elasticity”.

      QB – do you think the cases where we have seen “rational basis” [as I described it in a comment a few days ago] ignored in favor of hyperbole have been limited to these cases focused on homosexual conduct? Obviously, if Congress passed a statute that declared that no person could be denied equal prot/due proc on the basis of sexual orientation then the Supremes could strike down state laws on a suspect classification/heightened scrutiny test. Why not call the classification suspect from the bench? Seems less innovative then twisting rational basis, which is a permeating notiion about legislation.

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      • ScottC, on May 21, 2014 at 10:50 am said:

        mark:

        Obviously, if Congress passed a statute that declared that no person could be denied equal prot/due proc on the basis of sexual orientation then the Supremes could strike down state laws on a suspect classification/heightened scrutiny test.

        I still think the whole notion of Congress granting special protection to designated “suspect” classifications is itself an obvious violation of the equal protection clause. The legal world has become a twilight zone where words are applied as if they mean the exact opposite of what they actually mean.

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  42. quarterback, on May 21, 2014 at 7:32 am said:

    Cass Sunstein’s “review” of Richard Epstein seems filled with conclusory dismissals and barely concealed ad hominem attacks, while strikingly devoid of substantive support.

    http://www.newrepublic.com/article/117619/classical-liberal-constitution-richard-epstein-reviewed

    From a 30,000-foot view, the very idea that a “libertarian” approach to the Constitution is not mainstream, while a post-modern approach based on “progressive” and collectivist values is mainstream, is either risible or a sad commentary on the “mainstream” in law schools and judicial chambers.

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    • ScottC, on May 21, 2014 at 8:16 am said:

      qb:

      How ironic, Sunstein’s final words:

      But a judicially engineered constitutional revolution is not what America needs now.

      And by “now” he means now that his own judicially engineered constitutional revolution has been completed. I suppose it is inevitable that the architects of any revolution will oppose future revolutions, once their own has achieved success. Especially if the new “revolution” threatens a return to pre-revolution circumstances.

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  43. quarterback, on May 21, 2014 at 8:59 am said:

    Indeed, and to say nothing of the ongoing revolution, started by Margie Marshall in Massachusetts, through Lawrence, Romer, and Windsor, soon to culminate in Anthony Kennedy’s Big Fat Gay Triumph. Sunstein is all about that judge-made revolution.

    These people don’t even bother putting in effort anymore.

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    • ScottC, on May 21, 2014 at 9:26 am said:

      Another great article from Kevin Williamson. Especially this:

      Where those who see the world the way Nozick eventually did go wrong is in failing to appreciate that, absent official coercion, we do not have to take turns expressing those items of importance: The pope can think as he likes about this or that, Stephen Hawking can agree or disagree, and all are free to choose their own adventure. It is only in matters of politics that one set of preferences becomes mandatory.

      But mandatoriness seems to be the attraction for many. The most enthusiastic support for the Affordable Care Act, to take one obvious example, never came from those whose main concern was its policy architecture; well-informed and intellectually honest critics left and right both knew that it was a mess. People supported the ACA as an expression of our national priorities, that we were coming to regard health insurance as something akin to a right, that we were becoming more like the European welfare states that our remarkably illiberal so-called liberals admire, that we regarded insurance companies and insurance-company profits as a nastiness to be scrubbed away or at least disinfected. The policy has been revealed as a mess, but the same people support it for the same reason. Similarly, prosecuting as civil-rights criminals those who do not wish to bake cakes for gay weddings is mainly an act of communication, that one is no longer free to hold certain opinions about homosexuals. The new enlightenment is mandatory.

      I think he is dead on. People support ACA (and so many other progressive policy initiatives) not because of what it does, but because of the values they think such support expresses.

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  44. quarterback, on May 21, 2014 at 10:29 am said:

    ” Perhaps my long years of having relied upon it to mean one thing have ill prepared me for accepting this new “elasticity”.”

    It is pretty astonishing for those of us who went to law school when rational basis = plaintiff loses.

    I once litigated an equal protection tax case for a large company with a unique facility. Facts: city passes tax ordinance obviously singling out client to pay special tax. Of course, going in we knew this was a tough case, but the client was in an eternal war with the city and wanted to pursue it. I actually won it in the court of appeals, but, just before it was decided in the state supreme court, the U.S. Supreme Court handed down a precedent that you could crudely describe as holding that a city’s wanting to single you out for taxation is a rational basis for singling you out for taxation. Wham.

    This new approach in service of radical social engineering seems to me to work by simply ignoring what “rational” means, defining out of consideration all the kinds of reasons that heretofore were considered legitimate and rational, and silently assuming contested premises. It is a fraud. But it all points me in the direction of confirming in my own mind that it is part of an illegitimate, extraconstitutional exercise of substantive due process.

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  45. quarterback, on May 21, 2014 at 10:42 am said:

    Mark, I don’t know off hand whether this new rational basis approach is happening in other legal areas. Of course, Kennedy et al claim they haven’t changed anything, so it is hard to tell. Their innovations take place in how they apply it rather than in stated principles. But if you noticed my tax example, I think under the new approach it would be just as easy for a court to say, the only purpose for this tax can be to single out this person to pay it, and it therefore has no rational basis.

    I agree that twisting the rational basis test to get to their desired result as opposed to applying heightened scrutiny seems odd. But I see at least two reasons for the approach (each perverse to my way of thinking). First, it migt be more difficult for Kennedy to ignore the act/actor distinction if he depended on claiming that homosexuals are a suspect class, when laws deal only with actions, not “identities.” Second, striking down laws under the rational basis test allows Kennedy et al to announce a much harsher judgment against all dissent. If he applied strict scrutiny, then he would only be able to denounce such laws as not having a compelling purpose. Under rational basis, of course, he gets to write opinions declaring a huge proportion and number of people, as well as churches, denominations, other religions, society through history, as being no more than ill-willed, malicious, hateful bigots. And that is what he really wants to do.

    There aren’t really words to express my contempt for Kennedy.

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  46. quarterback, on May 21, 2014 at 10:50 am said:

    From Williamson:

    Similarly, prosecuting as civil-rights criminals those who do not wish to bake cakes for gay weddings is mainly an act of communication, that one is no longer free to hold certain opinions about homosexuals. The new enlightenment is mandatory.

    The concurring opinion in the New Mexico photographer case is another marvel of unintentional irony. The concurring justice waxes poetic about how, even though it might seem hard and unfair to the defendants to be forced to violate their consciences (my words), being forced to compromise our beliefs and act against them is the price we pay for living in a society where others believe differently.

    He utterly failed to comprehend that those sentiments should have been applied to the officious, malicious plaintiffs who could have chosen any number of other photographers but instead targetted the defendants to force them to violate their consciences or be labelled criminals.

    I’m telling you, this society and country are at the cross roads, a point of unravelling. Totalitarianism is descending, and those of us in the crosshairs are not going to go quietly. Coexistence is not possible.

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    • ScottC, on May 21, 2014 at 10:58 am said:

      qb:

      Totalitarianism is descending, and those of us in the crosshairs are not going to go quietly. Coexistence is not possible.

      I very much agree. Despite their happy-talk to the contrary, progressives, in their actions, show that they are very much against co-existing with those who disagree with them.

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  47. jnc4p, on May 21, 2014 at 10:51 am said:

    “Michigoose, on May 21, 2014 at 2:39 am said:

    I can’t recall a case prior to Windsor where the lower courts applying it as precedent cited the dissent as the source of their reasoning as much as all these courts have cited Scalia’s dissent when overturning the statutes.

    I’ve been wondering if it’s a judicial form of snark. Even judges have senses of humor, right?”

    I think not. Typically the lower courts try to do a better job than the Supreme Court does about actually sticking to the law and precedent.

    What it does mean is that Scalia stated clearly what the actual reasoning of the majority ruling comes down to, where as the majority opinion itself tries to obfuscate it.

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  48. quarterback, on May 21, 2014 at 10:54 am said:

    I think not. Lower courts usually try to do a better job than the Supreme Court does about actually sticking to the law and precedent.

    Mmmm, I dissent. They might write differently, but sticking to the law and precedent sometimes seems the rare exception. They just try to cover their tracks.

    Things like citing Scalia’s dissent usually are not just snark, though, that much is true.

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  49. quarterback, on May 21, 2014 at 10:58 am said:

    I forgot to address this point:

    Obviously, if Congress passed a statute that declared that no person could be denied equal prot/due proc on the basis of sexual orientation then the Supremes could strike down state laws on a suspect classification/heightened scrutiny test.

    They might well, but I have never been able to see how Congress has such unbridled power to expand the 14th (I assume that’s what you mean). I think the drafters of the 14th would be rather shocked to hear that 150 years later people suggest that Congress has power to “enforce” it by prohibiting states from not recognizing SSM, or anything of the sort.

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    • markinaustin, on May 21, 2014 at 11:32 am said:

      I have never been able to see how Congress has such unbridled power to expand the 14th

      I have argued before a 5th C Justice, now gone, Charles Clark, who did not think Congress had the power to implement it beyond the former slaves. Be that as it may, Congress only needed a rational basis to pass such a law, at one time.

      The consequences of abandoning rational basis could be to make a complete cock-up of all litigation where a statute is attacked as -um- unreasonable, or stupid.

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  50. quarterback, on May 21, 2014 at 11:01 am said:

    Scott, I know some of our friends think I’m a nut when I say this, but to me it is cold-headed realization of what is happening. People are being punished by law, branded as criminals, as Williamson says, for holding the same position Obama held two years ago. Five justices will soon definitively say that there is no reason to oppose SSM except irrational hatred, etc.

    It’s stunning.

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    • ScottC, on May 21, 2014 at 11:38 am said:

      qb:

      People are being punished by law, branded as criminals, as Williamson says, for holding the same position Obama held two years ago.

      Held publicly, anyway. I think we both know he was lying through his teeth.

      What stuns me is the degree to which ordinary voters have such tunnel vision. They are either totally blind to or unconcerned about the wider damage that Obama and the professional left in general is doing to the constitution, the legal system, and the rule of law in general. As long as their policy preferences get implemented, they seem utterly indifferent to how those policies become realities.

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  51. I'm Now Kevin's Biatch, on May 21, 2014 at 11:45 am said:

    Meh, financial collapse will occur first.

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  52. quarterback, on May 21, 2014 at 11:59 am said:

    Juxtaposing a passage from the Kevin Williamson column with a passage from Scalia’s Lawrence dissent, also above:

    “Nozick, tracing the evolution of reactions to specific realities into general principles, concludes that our efforts to eliminate real, prevalent, and invidious discrimination against African Americans necessitates our disallowing eccentric discrimination against redheads, too, out of a concern for “generality and neutrality.” And it is not surprising to hear every grievance that intersects with an aspect of a person’s identity presented in the language of civil rights: If you won’t bake a cake for a gay wedding, you’re Bull Connor. But it is not necessary to legislate on the question of discrimination against redheads the way it was necessary to legislate on the question of discrimination against African Americans, because one of those things existed and one does not. The farther we move away from fact and incident in the direction of abstraction and politics-as-expression, the more the unnecessary becomes the necessary and the mandatory. In the realm of moral signifying, the merely necessary is not sufficient.”

    “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).”

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  53. quarterback, on May 21, 2014 at 12:01 pm said:

    From the comments at NRO, a funny proverb I’ve never heard:

    “Well, I can’t quote philosophers, but the argument against big government might as well be summed up by the asian proverb: “Never ask a monkey to settle an argument over bananas.” Tasking government with protecting us from “hurtful” opinions leaves us with precious few free thoughts…”

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  54. jnc4p, on May 21, 2014 at 12:04 pm said:

    “But if you noticed my tax example, I think under the new approach it would be just as easy for a court to say, the only purpose for this tax can be to single out this person to pay it, and it therefore has no rational basis.”

    Doesn’t this also get into Bill of Attainder territory?

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  55. quarterback, on May 21, 2014 at 12:21 pm said:

    jnc, you might think so, but the argument is that a bill of attainder is a legislative act that punishes a specific person for a crime or wrongdoing. I suppose that in light of the ACA ruling that a penalty is really a tax, a tax could be viewed as a penalty. But they also find ways to frame laws to apply only to ABC Corp without actually naming it–an exercise in fiction, but usually good enough.

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  56. quarterback, on May 21, 2014 at 6:29 pm said:

    Having read the whole Pennsylvania opinion, it gets my vote for the most arrogant and overblown of these opinions so far. What an exercise in hubris and presumption. I picked out several of the more deeply ironic assertions:

    “For the childre of these couples, it can be difficult to understand why their parents are not married or recognized as married.”

    You don’t say? Perhaps the confusion caused by living in a bizarro world of two “mommies” or two “daddies” goes a little deeper than the state’s issuance of a piece of paper. Having the government say the “parents” are married is never going to change the obvious and unfortunate abnormalcy of the children’s lives.

    “As a group, they represent the great diversity of the Commonwealth of Pennsylvania.”

    Seriously?

    “More recently, in Lawrence v. Texas, the Supreme Court confirmed that gayand lesbian individuals do not forfeit their constitutional liberties simply becauseof their sexual orientation, noting that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception,family relationships, child rearing, and education.” 539 U.S. at 574. Emphasizingthat these rights are personal to the individual, the Supreme Court stated that“[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id .”

    So homosexuals may “seek autonomy” for purposes of procreation, contraception, or rearing children they will never bear as a result of their “sexual” activities? Deep thoughts, there, judge(s).

    “Similarly, in future generations the label same sex marriage will be abandoned, to be replaced simply by marriage.
    “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

    No judge can ever have written more presumptuous and arrogant lines. He even thinks he’s a prophet.

    That hubris also seems to be reflected in his use of the royal “we” throughout the opinion. I am very puzzled by that. He is a single judge writing for no one but himself. I don’t believe I have ever seen this before. Perhaps he is delusional.

    Mark, have you ever seen a District judge write for himself as “we”?

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    • ScottC, on May 22, 2014 at 7:52 am said:

      qb:

      In reading the Pennsylvania decision, it is quite remarkable the degree of question-begging that is going on. The judge studiously avoids at all points (as most defenders of SSM do) ever touching on the fundamental point of contention, namely the legal definition of the term “marriage”. Everything he says assumes that the term means something that, under PA law (not to mention universal historical understanding) it plainly does not mean. The legal issue is not whether there is a fundamental right to marry the person of one’s choice, as obviously no such right exists anywhere. The very point of marriage licenses is to allow the state to control who can and cannot get legally married. The issue is whether or not the state has a right to define marriage as it sees fit for the purposes of its own laws. What the court has done is not recognize or protect a right, but rather it has simply said that marriage must be defined as something other than 1) what it has always meant and 2) what the people of PA had explicitly re-iterated it means to them. There is literally no legal basis for a judge to make such a declaration. Which is why these judges evade the central issue, and beg the question in their rulings.

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      • quarterback, on May 22, 2014 at 8:18 am said:

        Scott, yes, precisely so. His “reasoning” also bears a flaw common to such substantive due process decisions. He must somehow make same-sex marriage into a right long recognized and deeply rooted in our history. If ever a risible proposition was stated, that would be it. So he tries to square the circle by asserting by fiat the right as always understood (and by the way as defined in Supreme Court precedent) now means something completely different and even contrary to what it meant before. Why? Because “we” somehow have now arrived a that conclusion. Unlike the Perry case, which was a sham and show trial, he essentially just concludes this as a matter of law, not even based on a pretense of evidence. But the elephant in the room is that virtually every state including Pennsylvania had only recently rejected that very idea in a veritable tsunami of public revulsion or at a minimum vehement opposition. Obviously, therefore, the country has arrived at no such consensus; if it had, these laws would not exist.

        On appeal by capable lawyers before a competent and honest appellate panel, his complete failure to justify or even account for his definition of marriage would be vulnerable. But competency and honesty are no longer part of this picture. If I were arguing the case, I would point to the fact that only two years ago Obama himself rejected the idea of homosexual marriage. So at what point thereafter did it become a right deeply rooted in our history, and how?

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  57. quarterback, on May 21, 2014 at 6:31 pm said:

    The worst: he’s a Bush appointee and also the anti-intelligent design judge. Republicans are the Stupid Party.

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