As an update to last night's segment about the Supreme Court refusing to let Hobby Lobby skip providing its employees coverage for contraception:
"They're not going to comply with the mandate," said Kyle Duncan, general counsel of The Beckett Fund for Religious Liberty, which is representing the company. "They're not going to offer coverage for abortion-inducing drugs in the insurance plan."
As for the potential fines, Duncan said, "We’re just going to have to cross that bridge when we come to it."
Those fines could be as high as $1.3 million per day.
Last week saw the recusal of three Supreme Court justices, for unspecified reasons, from different cases. Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer all announced that they'd had no involvement in a particular ruling. New York Times legal analyst Adam Liptak notes that another justice appears to have stayed involved in a matter for which his wife has openly campaigned:
There was no indication, on the other hand, that Justice Clarence Thomas had disqualified himself from the case involving the health care law. His wife, Virginia Thomas, has been affiliated with a group that opposes the law and has not disclosed its contributors.
Ginni Thomas is now stepping down from that group, Liberty Central, saying the flap of her political involvement had become a distraction for Liberty Central. Taking a notably broader view, law professor Jonathan Turley, of George Washington University, tells us it's too late to undo the damage -- not to the far-right political group with the undisclosed donors, but to the nation's highest court.
"Most spouses of justices have avoided controversy because they realize that, in some ways, this is a demonstration of their commitment to their spouses that they need to take a less prominent role, because there's only nine of them, and their roles are so central to this country," Turley says. "It showed almost a contempt for that tradition to take a position of this kind. And no one's saying that a spouse shouldn't have his or her own career or political views, but adults make mature decisions all the time and that requires some restrain restraint. There's no restraint here. And I think it did hurt the institution a great deal. "
On Friday, we reported that Don't Ask, Don't Tell likely won't be repealed in the courts because Supreme Court Justice Elena Kagan recused herself from a hearing on the ongoing case out of California last week. That leaves four votes that can be counted on to oppose gay rights -- those of Roberts, Alito, Thomas and Scalia -- and four votes that can be expected to move for repealing DADT.
There's another way of looking at it. From Balkinization:
This is because if the Supreme Court reviews the Ninth Circuit, it will likely split 4-4, thus automatically affirming the Ninth Circuit's decision.
In that way of looking at it, if the Ninth Circuit were to strike the policy down -- or to uphold it -- that would be the final word.
No matter how many assurances we get that it's OK, I still find this jarring -- Ginni Thomas, turning up at the big Tea Party rally in Washington yesterday and railing against the establishment. Thomas, of course, is married to U.S. Supreme Court Justice Clarence Thomas, which puts Ginni Thomas in the position of storming her own Bastille.
Thomas seems to love this kind of gig. Earlier this month, she turned up at the Dallas Tea Party gathering. In the video above, she bounds on to the stage at about minute two, wearing a styrofoam Lady Liberty crown and pitching her website, Liberty Central.
"Can I just tell you, if something happens in Washington, my husband and I are heading to Texas," Thomas says. At least we'll know where to find him. She continues:
"My husband and I do really different things, by the way. But there was a tornado over our wedding when we got married. God knew we were both troublemakers coming together. I do policy. He does law. And I don't understand that world and I'm glad God didn't tell me to do that, because I don't know how to do that."
During three hours of interrogation, a police detective remembers that Michigan murder suspect Van Chester Thompkins didn't say much -- at one point, he said he "didn't want a peppermint," court documents show, and at another he revealed that the chair he was "sitting in was hard." When an interrogator asked if he prayed for forgiveness for the Jan. 10, 2000, shooting, Thompkins abswered, "Yes."
Today, the Supreme Court ruled by 5-4 that with those meager answers -- and with the absence of a state desire to remain silent -- Thompkins had waived his Miranda right to remain silent.
In her dissent, Justice Sonia Sotomayor noted that the record includes zero answers to questions Thompkins answered, "other than the exchange about God and the statements respecting the peppermint and the chair." Sotomayor concluded:
Today's decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them tos peak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.
This counts as progress, I guess, for anyone who believes people are more than the worst thing they ever did:
The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven't killed anyone.
The case centered on Terrance Graham, now 22, who has been serving life in prison without the possibility of parole in Florida for a string of armed robberies committed when he was 16 and 17. More than 70 percent of the Florida juveniles serving the same sentence are there for reasons other than homicide. The Supreme Court counted 129 juveniles serving life for crimes other than homicide, 77 of them in Florida. Eleven states plus the federal prison system have imposed that penalty on current inmates.
Chief Justice John Roberts concurred with the decision by Justices Kennedy, Stevens, Ginsburg, Sotomayor and Breyer, but stopped short of supporting an end to all life sentences for kids. In a separate opinion, Roberts cautioned that some juveniles deserve life sentences and should get them. "[T]here is nothing inherently unconstitutional" about it, he wrote. In the case of Terrance Graham, Roberts argued, the punishment was too harsh.
In 2005, the Supreme Court ruled execution for juveniles unconstitutional, noting that the U.S. policy allowing the death penalty for minors violated several international treaties. Justice Thomas joined the dissent on that case and today's, and you can see lasting disgust over that in a separate opinion by Stevens, Ginsburg and Sotomayor. They write: "While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old...the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."
Also, the Supreme Court ruled that federal prisons can hold sex offenders after their prison terms expire, imposing civil confinement if they still consider them "sexually dangerous."
Left, right and center, nobody expects that there won't be objections raised or things to be debated when it comes to Elena Kagan's nomination to the Supreme Court. But if you're going to raise what you are pretending are principled objections to her, you might want to Google yourself first to remind yourself what you used to say your principles were.
Featuring: Sen. John Cornyn (R-Texas), Sen. Jim DeMint (R-SC), Sen. Jeff Sessions (R-AL) and Sen. Mitch McConnell (R-KY) all debating themselves about whether a Supreme Court nominee has to have served as a judge first in order to be qualified. President Bush's nominee Harriet Miers hadn't been a judge, and Senate Republicans praised her as a fine legal mind and a person grounded in ordinary experience. Kagan hasn't been a judge, and she's being called an unusual choice.
For the record, 40 Supreme Court justices had no prior service as judges, including modern legal lions such as William Rehnquist and Earl Warren.
See also: Dahlia Lithwick on Kagan's memos to President Clinton, which Lithwick says mark her as a "really good tactician" and a "great strategist."
On the show tonight, Dahlia Lithwick of Slate will take us through Elena Kagan's work as an adviser to President Bill Clinton. In particular, we'll be talking about Kaga's memo advising the president to show support for a ban on late-term abortions.
The Wall Street Journal posts that memo and a report on it, so you can start there.
Emily Bazelon, writing on XX Factor, says it's not a "pro-life smoking gun."
Politico widens the scope, with a Kagan memo on denying Medicare funding for abortions even when a woman's health was at risk, among glimpses of what it terms "Kagan's centrist side."
Supreme Court nominee Elena Kagan is President Obama's pick to replace the retiring Justice John Paul Stevens, the court's liberal anchor. When Kagan testified on Capitol Hill last year as the solicitor general nominee, senators on both sides of the aisle had praise for her. Kagan says things that conservatives like to hear, enough so that Salon columnist Glenn Greenwald worries that she might shift the Supreme Court to the right.
But Greenwald tells us his main quarrel with the Kagan nomination is that the former Harvard Law School Dean is such an absolute mystery that there's no way to know what she really thinks:
[T]he concern is that she's actually a complete blank slate. She's somebody who has managed over the course of the last 20 years to avoid taking a position or expressing an opinion on virtually every single substantial political and legal question.
And so, for any rational citizen to want to assess the appropriateness of putting her on the court to replace Justice Stevens, there's really absolutely nothing that a person can look to to know what kind of judge she can be.
There are troubling things in her record, things she said that ought to be questioned about her belief in executive power, her praise for Bush Justice Department lawyers who sanctioned the illegal warrantless eavesdropping program, the utter lack of diversity of her hiring record at Harvard Law School. And these things need to be explored.
But the real concern is: she has purposely avoided expressing any opinion whatsoever over the last 20 years in the way that makes it impossible for any progressive in good faith to say that they support her nomination.
One of our questions about SCOTUS nominee Elena Kagan is whether the left will go after her, a question answered with a forceful yes by Glenn Greenwald of Salon:
Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority.
Greenwald's slated as our lead-off guest tonight. Bonus: Kagan's hiring record at Harvard Law School:
When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century.
This week the U.S. Supreme Court heard a case involving a police officer who used his department pager for sexting. Since the Supreme Court doesn't allow cameras in the courtroom, we turned to the SCOTUS Finger Puppet Theater for an assist.
The part where they try to figure out the difference between e-mail and a pager is after the jump.
Chief Justice John Roberts: Maybe, maybe everybody knows this, but what is the difference between the pager and the E-mail?
Attorney Dieter Dammeier: Sure. The E-mail goes through the city's computer. It goes through the city's server. The pagers are a separate
device that goes home with you, that travels with you, that you can use on duty or off duty.
Roberts: You can do that with E-mail.
Dammeier: Certainly, certainly.
Roberts: What happens, just out of curiosity, if you're -- he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis. Does the one kind trump the other or do they get a busy signal?
Dammeier: My understanding is that you would get it in between messages. So messages are going out and coming in at the same time pretty much.
Roberts: Would you know where the message was coming from?
Dammeier: I believe so. It identifies where it is coming from. It identifies the number of where it is coming from. If you know the number, you know where it's coming from.
Justice Anthony Kennedy: And he's talking to the girlfriend. And he says -- he gets a voice message that says, "Your call is
very important to us. We will get back to you"?
A law banning videos that show the torture and crushing of animals is unconstitutional, the United States Supreme Court ruled today. The decision was nearly unanimous, at 8-1, with Justice Samuel Alito providing the lone dissent. Alito argued that the law, which also banned videos of dog fighting, should have been upheld because of the evident harm to those creatures -- before you get to the stiletto heels and the rodents.
Here's the court decision (pdf) and a challenge: Think like a human and like a lawyer. The ruling says that this law violates the First Amendment and suggests that one limited only to crush videos might have a different outcome.
So think like a lawyer and like a human. Read the 52-page ruling and tell us what strikes you.
