Thursday, June 30, 2011

And Now, With an Opposing Viewpoint, Here’s Justice Kagan …

Last night I posted a lengthy piece on the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, No. 10-238 (slip op. June 27, 2011), explaining the Court’s decision striking down the Arizona Citizens Clean Elections Act of 1998 on First Amendment grounds. It was a 5-4 decision authored by Chief Justice John Roberts, who was joined in the majority by Justices Scalia, Kennedy, Thomas and Alito. (You can download a the case in .pdf format here.)

After I posted that piece, my friend Steve of the Linkmeister blog pointed out that I neglected to discuss the dissenting opinion authored by Justice Elena Kagan, who was joined by Justices Ginsberg, Breyer and Sotomayor. Steve discussed the dissenting opinion here, with a nod to Scott Lemieux at Lawyers, Guns and Money. Point taken, Linkmeister, so without further ado, here’s what Justice Kagan had to say.

First, Justice Kagan pointedly describes the conundrum the Arizona Citizens Clean Elections Act was meant to address:

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors' interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who "bundle" campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates' dependence on large donors and bundlers. These voters realize, based on the first State's experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

Dissenting op. at 1-2 (.pdf).

Not surprisingly, while the majority opinion focused on the “burden” the Arizona statute imposes on privately financed candidates (the burden that if they expend more than the public allotment given to publicly funded candidates, every additional dollar the privately financed candidate spends to speak triggers the government giving his or her opponent an additional dollar with which to speak), Justice Kagan’s dissent focuses on the problem the Arizona law was meant to address (i.e., “eliminating corruption [by] creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers”). Consequently (and also not surprisingly), Justice Kagan likewise turns the majority’s reliance on New York Times Co. v. Sullivan, 376 U.S. 254 (1964), against it. At the conclusion of its opinion striking down the Arizona law, the majority quotes New York Times Co. v. Sullivan for the hoary principle that America has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” 376 U.S. at 270; but Justice Kagan sees the Arizona law as furthering that principle:

The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people. [New York Times Co. v. Sullivan, 376 U.S. 254], at 269 (internal quotation marks omitted).

Arizona Free Enterprise Club’s Freedom Club PAC, dissenting op. at 3.

Analyzing the specific issues in the case, Justice Kagan’s dissent then discusses the history of campaign finance reform in the 20th century, from efforts by Pres. Theodore Roosevelt to enact campaign finance reform laws in the early 1900s through the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), which upheld provisions of the Federal Election Campaign Act of 1974 that limited campaign contributions but struck down other provisions of the law aimed at limiting certain types of campaign expenditures by individuals and groups. As a consequence of Buckley, Justice Kagan points out, “a public funding program must be voluntary to pass constitutional muster, because of its restrictions on contributions and expenditures. … And candidates will choose to sign up only if the subsidy provided enables them to run competitive races.” Arizona Free Enterprise Club’s Freedom Club PAC, dissenting op. at 5-6.

So, Arizona’s public campaign finance law was an effort to meet the requirements of Buckley (i.e., it’s a voluntary system that does not place limits on the amount candidates and other organizations can expend); but at the same time sought to balance the need to provide sufficient funds to encourage candidates to opt for public funding while not “impos[ing] an unsustainable burden on the public fisc.” Id. at 6. Hence the two-tiered approach to public funding: An initial grant of funds to get the campaign going, with matching funds in the event the publicly funded candidate’s privately funded opponent, or groups supporting the privately funded candidate, spend more than that initial allotment.

Viewed this way, Justice Kagan reasons:

Arizona’s statute does not impose a “restriction,” [majority opinion] at 15, or “substantia[l] burde[n],” [majority opinion] at 2, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections “facilitate[s] and enlarge[s] public discussion,” in support of First Amendment values. 424 U. S., at 92-93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.

Dissenting op. at 9. In fact, Justice Kagan asserts, the distinction between government acts that restrict speech and governments acts that subsidize speech is the determinative factor here:

In case after case, year upon year, we have distinguished between speech restrictions and speech subsidies. “‘There is a basic difference,’” we have held, “‘between direct state interference with [First Amendment] protected activity and state encouragement’” of other expression. Rust v. Sullivan, 500 U. S. 173, 193 (1991) (quoting Maher v. Roe, 432 U. S. 464, 475 (1977)); see also, e.g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256, n. 9 (1986); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983); National Endowment for Arts v. Finley, 524 U. S. 569, 587-588 (1998); id., at 599 (SCALIA, J., concurring in judgment) (noting the “fundamental divide” between “‘abridging’ speech and funding it”). Government subsidies of speech, designed “to stimulate ... expression[,] ... [are] consistent with the First Amendment,” so long as they do not discriminate on the basis of viewpoint. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 234 (2000); see, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834 (1995); Finley, 524 U. S., at 587-588. That is because subsidies, by definition and contra the majority, do not restrict any speech.

Dissenting op. at 11.

The dissent concludes that because Arizona’s law is content-neutral (that is, it does not discriminate against any candidate on the basis of his or her viewpoint), the mere fact that Arizona subsidizes the speech of certain candidates (in fact, any candidate who chooses to accept the subsidy) does not mean the statute runs afoul of the First Amendment. Indeed, the dissent notes, the position asserted by the petitioners challenging the Arizona law – the position adopted by the majority – has the effect of impairing the ability of less wealthy candidates to speak and thereby favoring the speech of wealthier candidates:

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing – and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech – even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

Dissenting op. at 12-13.

There’s actually quite a bit more to Justice Kagan’s opinion, and I’m hardly an expert on campaign finance law; but this, it seems to me, is the crux of the matter. If you view Arizona’s law as a “burden” on speech because it means wealthy, privately financed candidates risk triggering a public subsidy of their opponent’s speech if the privately financed candidates (and supporting organizations) spend in excess of their opponent’s initial public grant, then, yes, I can see why you would not like the law. But if you view Arizona’s public campaign finance law as a way of encouraging participation and giving other, less wealthy, voices a chance to be heard, then the reasoning of Justice Kagan’s dissent seems to make great good sense.

© 2011 David P. von Ebers. All rights reserved.

Wednesday, June 29, 2011

Money Makes the World Go ’Round; Or, Some Candidates Are More Equal Than Others

So, this is interesting. On Monday the Supreme Court announced its decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, No. 10-238 (slip op. June 27, 2011) (you can download a .pdf version of the opinion here), and in so doing invalidated the Arizona Citizens Clean Elections Act of 1998, which provides public financing and matching funds to candidates who elect to forego private fundraising.

As the Court explained, under the Arizona statute a candidate for public office who elects to receive public funds is granted an initial allotment of funds to run his or her campaign. In the event that candidate’s opponent elects to use his or her own funds or to raise campaign funds privately, the publicly funded candidate is entitled to receive essentially dollar-for-dollar matching funds once the privately financed candidate’s campaign funds exceeded the amount the publicly funded candidate received in his or her initial allotment. Moreover, if private organizations raise funds to oppose the publicly funded candidate or to support his or her privately funded opponent, the state likewise provides matching funds to counterbalance the monies expended by those private organizations, once the combined total of the privately raised campaign funds and the funds expended by private opposition groups exceed the publicly funded candidate’s initial allotment from the state. The funds the state provides to match both the opponent’s privately raised campaign funds and the funds expended by private organizations for the opponent (or against the publicly funded candidate) are capped at two times the initial allotment of public funds. Arizona Free Enterprise Club’s Freedom Pac, slip op. at 2-4 (.pdf).

Note, too that under the Arizona statute if there are multiple publicly funded candidates facing a privately funded candidate in a given race, all of the publicly funded candidates can receive matching funds under the circumstances described above. Apparently this is not an unusual occurrence in Arizona. Thus, the Court explained, “[i]n an election where a privately funded candidate faces multiple publicly financed candidates, one dollar raised or spent by the privately financed candidate results in an almost one dollar increase in public funding to each of the publicly financed candidates.” (Slip op. at 4.)

Although the purpose of the Arizona law is to enable publicly funded candidates to have access to a comparable amount of money as wealthy, privately financed candidates, and thereby to increase participation in the electoral process itself, the Supreme Court ruled that Arizona’s system created an impermissible burden on the First Amendment rights of privately funded candidates and private organizations challenging publicly funded candidates. To reach this conclusion, the Court first reviewed the general principles applicable to cases involving campaign finance:

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation” of our system of government. Buckley v. Valeo, 424 U. S. 1, 14 (1976) (per curiam). As a result, the First Amendment “‘has its fullest and most urgent application’ to speech ut-tered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)). “Laws that burden political speech are” accordingly “subject to strict scrutiny, which requires the Government to prove that the restriction furthers 
a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted); see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986).

Arizona Free Enterprise Club’s Freedom Pac, slip op. at 8.

The Court then found that the Arizona public campaign financing statute violated the First Amendment rights of privately funded candidates for this reason:

Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That plainly forces the privately financed candidate to “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy. [Citing Davis v. Federal Election Comm’n, 554 U. S. 724, 739 (2008).] If the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably does so as well.

… Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis.

Slip op. at 11.

Furthermore, the Court found that “the matching funds provision [in the Arizona law] can create a multiplier effect” in elections with multiple publicly financed candidates running against a single privately funded candidate:

[E]ach dollar spent by the privately funded candidate would result in an additional dollar of campaign funding to each of that candidate’s publicly financed opponents. In such a situation, the matching funds provision forces privately funded candidates to fight a political hydra of sorts. Each dollar they spend generates two adversarial dollars in response.

Id. at 11-12. Finally, the Court found that the matching funds provision created an additional First Amendment problem for privately funded candidates, in that the privately funded candidate often will have no control over the actions of private organizations supporting the his or her candidacy or opposing the publicly funded candidate, yet each additional dollar expended by those organizations can trigger matching funds for the publicly funded candidate. Id. at 12.

Turning to private organizations that advocate against publicly funded candidates (or for privately funded candidates), the Court found that the Arizona law violated the free speech rights of those organizations, too:

The burdens that this regime places on independent expenditure groups are akin to those imposed on the privately financed candidates themselves. Just as with the candidate the independent group supports, the more money spent on that candidate’s behalf or in opposition to a publicly funded candidate, the more money the publicly funded candidate receives from the State. And just as with the privately financed candidate, the effect of a dollar spent on election speech is a guaranteed financial payout to the publicly funded candidate the group opposes. Moreover, spending one dollar can result in the flow of dollars to multiple candidates the group disapproves of, dollars directly controlled by the publicly funded candidate or candidates.

In some ways, the burden the Arizona law imposes on independent expenditure groups is worse than the burden it imposes on privately financed candidates, and thus substantially worse than the burden we found constitutionally impermissible in Davis. If a candidate contemplating an electoral run in Arizona surveys the campaign landscape and decides that the burdens imposed by the matching funds regime make a privately funded campaign unattractive, he at least has the option of taking public financing. Independent expenditure groups, of course, do not.

Once the spending cap is reached, an independent expenditure group that wants to support a particular candidate – because of that candidate’s stand on an issue of concern to the group – can only avoid triggering matching funds in one of two ways. The group can either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether. Presenting independent expenditure groups with such a choice makes the matching funds provision particularly burdensome to those groups. And forcing that choice – trigger matching funds, change your message, or do not speak – certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995)

Slip op. at 12-14.

The Court then went on to consider, and reject, the state’s (and the federal government’s) arguments to the effect that the burdens the statute imposed on the free speech rights of privately funded candidates and private organizations were narrowly tailored to meet compelling government interests in leveling the electoral playing field, curtailing corruption and encouraging broader participation in the electoral process. Ultimately, the Court concluded:

Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, see post, at 5, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.

“[T]here is practically universal agreement that a major purpose of” the First Amendment “was to protect the free discussion of governmental affairs,” “includ[ing] discussions of candidates.” Buckley [v. Valeo], 424 U. S., at 14 (internal quotation marks omitted; second alteration in original). That agreement “reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Ibid. (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). True when we said it and true today. Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.

Slip op. at 29-30.

In the end, I certainly understand the underlying principles the Supreme Court is seeking to vindicate in Arizona Free Enterprise Club’s Freedom PAC v. Bennett – basically, candidates and organizations should be free to spend their own money without it triggering a government-sponsored windfall to their opponent – but it’s difficult to figure out what’s left of campaign finance laws after Monday’s decision. What, other than restricting the dollar amount of individual contributions and requiring candidates to disclose whom their contributions come from, can the public do to limit the pernicious and corrupting influence of money in electoral politics?

That’s not a rhetorical question.

© 2011 David P. von Ebers. All rights reserved.

Tuesday, June 28, 2011

Justice Prosser Is Accused of Assault – So, What Now?

Thankfully for our friends in Wisconsin, we Illinoisans are kind of experts when it comes to political controversies of every conceivable type. So, Wisconsinites, maybe you need only to look south of the border to figure out how to deal with this:

Madison - Two agencies are investigating a claim by Supreme Court Justice Ann Walsh Bradley that Justice David Prosser put her in a chokehold earlier this month - an allegation Gov. Scott Walker on Monday called extremely serious.

Asked if the reports about Prosser’s behavior, if true, merited his resignation, Walker said: “I don’t even want to go down that path … other than to say that just based on the allegations that were made, I can’t overemphasize how serious I think the situation is there. Until we know what happened, I don’t think it's best for anybody for me to comment on what the next step is.”

The separate investigations are being run by the Dane County Sheriff’s Office and the Wisconsin Judicial Commission, which oversees the state’s judicial ethics code. The sheriff’s investigation was launched Monday; the commission’s was authorized Friday and publicly acknowledged Monday.

“After consulting with members of the Wisconsin Supreme Court, I have turned over the investigation into an alleged incident in the court’s offices on June 13, 2011, to Dane County Sheriff Dave Mahoney,” Capitol Police Chief Charles Tubbs said in a statement.

The sheriff’s office in a statement acknowledged it was taking over the case, but declined further comment.

Of course, Gov. Walker’s right about one thing. None of us should presume to know all the facts at this stage. As tempting as it may be to convict Justice Prosser (whose recent narrow reelection was highly controversial in its own right), we really should let the investigation go forward before we pronounce him guilty of assaulting a colleague.

But it’s worth noting that this isn’t the first time Justice Prosser has been accused of outrageous behavior directed to female members of the court. Just last March, he apparently called Chief Justice Abrahamson a “total bitch” and threatened to “destroy” her. In fact, Justice Prosser never denied that incident. Via Jonathan Turley:

Prosser insist[ed] that Abrahamson was working against him politically as well as other court conservatives. He said that he “probably overreacted, but I think it was entirely warranted. …They (Abrahamson and Justice Ann Walsh Bradley) are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing.”

Never mind the bizarre comment that Justices Abrahamson and Bradley were the ones guilty of “bullying” Justice Prosser – thereby causing Justice Prosser to threaten to “destroy” Justice Abrahamson (how does that work?!) – that incident suggests there may be something to the assault allegations that are now under investigation.

So while I agree with Gov. Walker that nobody should rush to judgment just yet, at some point the State of Wisconsin has to protect the integrity of the court as an institution, and the legal system as a whole. And, to that end, I offer the cautionary tale of former Chief Justice James Heiple of the Illinois Supreme Court.

By way of explanation, in 1997, the Illinois Judicial Inquiry Board filed a formal complaint against Justice Heiple alleging that in four separate incidents between 1992 and 1996, Justice Heiple was uncooperative with local police when stopped for speeding violations; on at least three of those occasions attempted to use his Supreme Court credentials to avoid citations; and, in the last incident, was actually arrested for refusing to cooperate with a field sobriety test. Thereafter, it came to light that Justice Heiple, apparently aware that he was under investigation, appointed a close friend, Justice Moses Harrison, to chair the Illinois Courts Commission – the entity that hears complaints filed by the Judicial Inquiry Board.

In the end, after being censured by the Illinois Courts Commission, Justice Heiple resigned his position as Chief Justice but remained on the Supreme Court. To the Chicago Tribune, that was sufficient:

It may have been late in coming, but James Heiple made the right decision Friday [May 3, 1997] by stepping down as chief justice of the Illinois Supreme Court.

It was, no doubt, a hard decision to give up the leadership of the state’s highest and most prestigious court. Heiple battled it all the way. Apparently, he finally realized he could not lead in the wake of official censure by the Illinois Courts Commission.

Now it’s time for Illinois legislators to make a hard decision as well. They have been hearing from constituents who demand that Heiple be impeached. A special committee of the House has begun hearings on whether there are grounds to remove Heiple.

There are no such grounds. The lawmakers should be satisfied that Heiple has made the decision to quit as chief justice but remain on the court.

It has been our position that Heiple ought to step down as chief justice, but he shouldn’t be removed from the court by the legislature. Some might wonder where we make the distinction.

Heiple damaged the reputation of the court by putting himself above the law when he was stopped for traffic violations. He created more concern when he appointed an ally to lead the courts commission shortly before it would consider allegations stemming from the traffic stops. These are serious matters, serious enough to warrant forfeiting the top position in the court system.

But Heiple did not steal, did not take a bribe, did not decide cases based on personal gain or the gain of friends or family. Those are the kinds of grave matters that should be grounds for impeachment. Those are the kinds of matters that should prompt the legislature to step into issues of separation of powers.

It’s not altogether clear to me what distinction the Tribune was trying to make, but it apparently sensed that there was some line to be drawn between ordinary, petty, run-of-the-mill corruption, on the one hand, and more serious offenses that undermine the actual functioning of the court as a fair, independent judicial body. If that distinction makes sense, I wonder how it applies to the allegations against Justice Prosser: Assaulting a fellow justice isn’t the same thing as being on the take or selling your vote to the highest bidder; but if those allegations are true it’s extraordinarily piggish, to say the least. And it’s overtly criminal: Whereas Justice Heiple was accused of trying to evade traffic citations, which ordinarily are not criminal in nature, Justice Prosser is accused of physically assaulting a female colleague, which is an actual crime. I would think that, in and of itself, would be enough to push this case over the somewhat artificial line drawn in the case of Justice Heiple.

© 2011 David P. von Ebers. All rights reserved.

Monday, June 27, 2011

How Awesome Are the BoDeans?

This awesome. On Friday night after the New York State Senate approved a marriage equality bill that had already passed the State Assembly, I posted this brief celebratory piece which included a video of the BoDeans’ 1993 song, “Closer to Free,” a song that seemed fitting for the occasion:

Everybody wants to live

How they want to live and

Everybody wants to love

How they want to love and

Everybody wants to be

Closer to free …

After I put that up, I learned that the BoDeans have a Twitter account (@BoDeans), and so I tweeted them this message:

Dear .@BoDeans: Used your song “Closer to Free” to celebrate NY’s marriage equality vote last night. Hope you approve.

Well, it turns out not only did they re-tweet that message, but this morning they responded thusly:

@Dave_von_Ebers awesome!

No, gentlemen: You’re awesome. But I appreciate the sentiment.

So, people, feel free to run out and buy their latest CD, Indigo Dreams, when it comes out July 26. I know I will.

© 2011 David P. von Ebers. All rights reserved.

Sunday, June 26, 2011

On the Air Again With Tim Corrimal and Friends – Episode 173

So, first off, apologies for not posting follow up comments on last week’s episode of The Tim Corrimal Show. After we recorded it I had certain family obligations (something to do with Father’s Day, or something …) and so I could not get a post up on a timely basis.

Nonetheless, today’s show is now posted and it was a great one, indeed. (I suppose I should add: If I do say so myself.) Anyway, Tim and I were joined by Joe Santorsa, one of our all time favorite guests (@Marnus3 on Twitter), and the wonderful blogger and political cartoonist Reicko Eoh (@HelloPolitics2U on Twitter) of HellOPolitics.

At the outset, the panel spent considerable time discussing an issue of growing concern to Tim and me: The increasing levels of animosity on Twitter and elsewhere in the “blogosphere,” especially among our fellow liberals. If Twitter is an accurate gauge of the left’s current temperament, we seem to be locked into two armed camps: Those who more or less hate Pres. Obama and will carp endlessly over every decision he makes, every statement he issues, every disappointment that the legislative process produces; and those who will brook no criticism of Pres. Obama whatsoever, who relentlessly attack anyone who questions the President, and who insist that any critic must be in the pocket of the GOP. I’ve literally seen my fellow liberals accuse other liberals of being paid stooges – I’m not kidding – paid stooges for the political opposition. Really?

As I said on the show, much of this stems from our elevation of personalities over issues. It’s not enough for the President’s liberal critics to express their opinions and engage in honest debate. Instead, they call anyone who tends to support the President an “O-bot,” a mindless cultist who’s blindly loyal to “Dear Leader.” Note that these same liberal critics know only too well that we often used the term “Dear Leader,” sarcastically, to refer to George W. Bush – it’s an intentional slight both to the President’s liberal supporters (we’re just as bad as the neocons!) and to the President himself (he’s no different than Bush! – a favorite, if intellectually dishonest, hyper-liberal saw). But at the same time, there are Obama supporters who treat any criticism of the President as though it were a willful attempt to undermine his reelection. For these folks, any disagreement with the President is greeted with: You just want Mitt Romney to win! Oh, please. I have little patience with the small number of liberals who say Obama = Bush; but the vast majority of Pres. Obama’s liberal critics just want their voices to be heard.

Then, too, those of us who tend to be more supportive of the President need to let go of all the pent up animosity we have for certain Obama critics – specifically, Jane Hamsher, Glenn Greenwald, and, increasingly, Lt. Dan Choi, who’s been one of the President’s harshest critics on Don’t Ask, Don’t Tell and marriage equality. I’ll be honest: I tend to avoid folks like that because their criticism is too often laced with nastiness. But each of them – Hamsher, Greenwald, Choi – is only one person. They’re expressing their own individual opinions. Yes, it would be nice if they would tone down the rhetoric (and, frankly, try a bit harder to cleave to actual facts); but they’re just individuals, people. Their opinions, right or wrong, aren’t going to kill anybody. If you don’t agree with them, you can attempt to engage them in good faith, or you can ignore them. But don’t get caught up in the cult of personality. It does no good.

Okay, enough about that. I sense I’m preaching to the choir anyway.

So, in addition to the Twitter-rage issue, Tim was kind enough to introduce a new segment on the show, “Dave’s Legal Corner,” in which I attempt, hopefully successfully, to dissect important legal issues of the day. This week I focused on the marriage equality bill enacted by the State of New York on Friday, including a brief discussion of the amendments that appeared to attract the final few votes needed for passage. The purpose of the amendments was to clarify that religious and certain non-profit organizations were not bound by the act, are not required to marry same-sex couples, and cannot be held liable for discrimination in the event they do not extend benefits to married same-sex couples under state law. The amendments also included a non-severability clause:

§ 5-A. This act is to be construed as a whole, and all parts of it are to be read and construed together. If any part of this act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties’ right to appeal the matter.

Note that this non-severability clause provides additional protections for religious and non-profit organizations, in that if anyone were to sue over the provisions that protect those organizations from claims of discrimination, if those protections fall the statute as a whole falls. It’s like mutual assured destruction: If you successfully eliminate the protections religious groups and non-profits enjoy under the act, you lose marriage equality – so there’s no incentive to challenge the built in protections for religious and non-profit organizations.

Finally, I also discussed the role of the President and the federal government in the marriage equality debate, summarizing the points I made in yesterday’s post on the issue. If you’re interested, I recommend reading the whole post for further clarification; and I also recommend this piece by Matt Yglesias on Think Progress addressing the very different legislative realities faced by Gov. Cuomo in New York and by Pres. Obama in Washington.

So, anyway, give the show a listen. We really enjoy recording the show each week and we hope you enjoy it too.

© 2011 David P. von Ebers. All rights reserved.

Saturday, June 25, 2011

A Quick Primer on Marriage and Federalism

Let me say at the outset that I really wish Pres. Barack Obama would openly endorse full equal marriage rights for gay and lesbian Americans on the same terms that straight couples now enjoy. That’s what the State of New York accomplished last night when the Republican-controlled state Senate approved a marriage equality bill that had already passed the state’s Assembly. Gov. Andrew Cuomo has vowed to sign the bill into law, making New York the sixth, and by far the largest, state where gay and lesbian couples can now marry legally.

Amid the celebration, however, Pres. Obama has come under attack for his recent statements on the issue, most notably:

The president has said his views [on marriage equality] are “evolving,” but for now he supports civil unions, not same-sex marriage.

Obama said progress will be slower than some people want, but he added that he was confident that there will be a day “when every single American, gay or straight or lesbian or bisexual or transgender, is free to live and love as they see fit.

“Traditionally marriage has been decided by the states and right now I understand there’s a little debate going on here in New York,” he said to laughter. New York’s lawmakers, he said, are “doing exactly what democracies are supposed to do.”

It’s that last part – leaving the question of marriage equality to the states to decide – that has gotten under many liberals’ skin, because it smacks of pre-Civil Rights-era states’ rights conservatism.

And I certainly get that; but unlike, say, employment law or laws affecting interstate commerce, the President is correct that marriage traditionally has been the province of state, not federal, law. In fact, even under the Constitution’s “full faith and credit” clause (see Article IV, Section 1), states have never been required to recognize marriages performed in other states if those marriages violate the home state’s law. So, for example, if a state allows children at the age of sixteen to marry, states with older age-of-consent laws are not required to recognize those marriages.

But that’s not to say there are no federal issues here. In fact, there are two very significant areas where federal law has a direct impact on marriage equality; and if you look at those issues carefully, you’ll find that Pres. Obama’s position on marriage equality is actually quite revolutionary and forward-thinking. First, there’s the odious “Defense of Marriage Act,” known as DOMA, Section 3 of which amends the federal definition of marriage as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7.

So, under Section 3 of DOMA, even if states like New York allow gay and lesbian couples to marry, those marriages are not recognized by the federal government and those couples cannot file joint tax returns or enjoy any other federal benefit associated with marriage.

Just last February, however, Pres. Obama decided that his Administration would no longer defend DOMA in court, on the grounds that Section 3 of DOMA is unconstitutional. In a letter to Speaker of the House John Boehner, Attorney General Eric Holder wrote:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

In other words, under the Equal Protection Clause of the Fourteenth Amendment, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” and the implicit “equal protection component” of the Fifth Amendment’s Due Process Clause, the government is prohibited from engaging in illegal discrimination. So, the President is saying that denying federal marriage benefits to gay and lesbian couples is a form of illegal discrimination prohibited by the Constitution. More than that, the President’s position is “that classifications based on sexual orientation warrant heightened scrutiny” for purposes of equal protection analysis, which means that discrimination on the basis of sexual orientation should be treated like race and sex discrimination. This represents an unprecedented advancement in gay rights at the federal level – and specifically, marriage rights – as I explained in depth at the time the decision was announced.

And that leads to the second way in which federal law impacts equal marriage rights: Although the states are generally free to define marriage as they choose, they cannot do so in a way that violates the basic constitutional rights of their citizens. As the Supreme Court explained in Loving v. Virginia, 388 U.S. 1 (1967), a case in which it struck down state anti-miscegenation laws under the Equal Protection and Due Process Clauses of the Fourteenth Amendment:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

388 U.S. at 12.

So, under Loving v. Virginia, state marriage laws cannot be based on “classifications so directly subversive to the principle of equality at the heart of the Fourteenth Amendment” – classifications like, for example, race. But the President has said that sexual orientation should be treated as a suspect classification, like race, for purposes of determining whether the government can deprive gay and lesbian couples the benefits of marriage. Of course, the Supreme Court has yet to face the question whether states or the federal government can deprive gay and lesbian couples marriage rights under equal protection and due process principles, but this President may well appoint one or more additional justices to the Supreme Court … if he gets reelected in 2012.

So as much as I would like to see the President openly endorse marriage equality across the board, I would much rather see the United States Supreme Court declare laws banning same-sex marriage unconstitutional under the Fifth and Fourteenth Amendments. And with this President, we are closer than we’ve ever been to seeing that become a reality.

© 2012 David P. von Ebers. All rights reserved.

Friday, June 24, 2011

“Everybody Wants To Be … Closer To Free”

In honor of the New York State Senate’s passage of the marriage equality bill previously approved by the State Assembly, some words of wisdom from Waukesha, Wisconsin’s favorite sons, the BoDeans:

Everybody wants to live

How they want to live and

Everybody wants to love

How they want to love and

Every body wants to be

Closer to free …


© 2011 David P. von Ebers. All rights reserved.

Your Friday Clash Song: You Need Someone For A Saviour …

“Rudie Can’t Fail,” from London Calling (1979). Offered without comment.

And here’s a rare live version from March 1980:

(Apparently, the poster is from a different concert.)

And a special bonus version by Joe Strummer and the Mescaleros:

Actually, that last one is my favorite.

Now, you know what to do. Turn. It. Up.

© 2011 David P. von Ebers. All rights reserved.

Saturday, June 18, 2011


Not this:

LOS ANGELES ( KTLA ) - Clarence Clemons, the saxophone player in Bruce Springsteen 's E Street Band, has passed away less than one week after he suffered a stroke, media reports said Saturday.

Rolling Stone first reported Clemons death Saturday afternoon. The media outlet claimed Clemons fell "seriously ill" after suffering the stroke at his Florida home on June 12.

Oh, good lord. The world of rock ’n roll will never be the same.

Everybody has their favorite Bruce Springsteen song, and everyone has their favorite Bruce Springsteen song featuring Clarence Clemmons, but for me it was always this:

Well the change was made uptown

And the Big Man joined the band

From the coastline to the city

All the little pretties raised their hand

I’m gonna sit back right easy and laugh

When Scooter and the Big Man bust this city in half …

The first time I really listened to Bruce Springsteen was when one of my sisters bought Born to Run in he mid 1970s, and I wasn’t entirely blown away by it. But it grew on me, and anyway I always liked “Thunder Road,” which was the first song on the first side of the LP, and the only thing better than “Thunder Road” was going from “Thunder Road” right into “Tenth Avenue Freeze-Out.” Man, nobody was making records like that in 1975 – not with that combination of folk and rock and rhythm and blues – and quite honestly, there’s no band on earth that can pull it off like the E Street Band. None.

The video posted above is of a live performance from 1978. Here’s a version from 2007:

And here’s Clarence Clemons from his first solo record, with the Red Bank Rockers, doing “Savin’ Up”:

And here’s one more oldie – Bruce and Clarence and the E-Street Band doing Gary U.S. Bonds’ classic, “Quarter to Three,” live in 1978:

The night is dark but the sidewalk’s bright and lined with the light of the living.

But tonight it’s a little less bright.

© 2011 David P. von Ebers. All rights reserved.

Friday, June 17, 2011

Your Friday Clash Song: Johnny, Johnny!

“Protex Blue,” from the UK version of the band’s debut album, The Clash (1977). The song was originally performed by Mick Jones’ pre-Clash band, The London SS, in 1975.

So, okay, to the discerning Clash fan this may be obvious, but if you’re not familiar with the song … let’s just say it’s my little tribute to (now former) Rep. Anthony Weiner:

“Protex Blue”, sung by Mick Jones, is about a 1970s brand of condom. The song ends with the shouted phrase “Johnny Johnny!”, “Johnny” being a British slang term for a condom.

Because maybe if Rep. Weiner did a better job of, um, protecting himself, he wouldn’t be former Rep. Weiner today. Sigh. And as much as I hate to quote the mealy-mouthed New York Times editorial page these days (still waiting on an apology for those above-the-fold lies about WMD and all that), there’s some substance to this:

There is no excuse for Mr. Weiner’s behavior, but it is worth noting the cynical way lawmakers from both houses and both parties piled on to demand his resignation. There were reports before Thursday that the Democrats might deprive him of his committee assignments in hopes of pushing him out of the House altogether.

Senator David Vitter was not pressured by fellow Republicans to resign after he was identified as a patron of a prostitution service. House Speaker Nancy Pelosi didn’t immediately take away Representative Charles Rangel’s chairmanship of the tax-writing committee after allegations of misuse of campaign donations and tax evasion that eventually led to his censure.

We would like to think lawmakers have learned something from those episodes. We fear it was just that Mr. Weiner’s offenses were particularly tabloid-worthy, his abrasive manner never won him many friends and the Democrats worried about losing his seat.

For my part, I’m not all that concerned about Rep. Weiner himself. While I admired his ability to stand up to Republicans and Fox News thugs – and don’t kid yourself; there’s a place for that type of grit on our side, even if he was “abrasive” – Rep. Weiner was, like all Democrats, a less-than-perfect progressive. Without belaboring the point, Rep. Weiner was often way off base on the subject of Israel and Palestinian rights, as Juan Cole recounted the other day.

But I am disturbed by how quickly Democratic leadership caved on the issue. Undoubtedly, the party leadership’s failure to back Rep. Weiner (or at least stay out of the matter and leave the decision to resign to him) was motivated by political considerations that they’ll never publicly acknowledge. And maybe that’s okay; the Democrats could use a healthy dose of political savvy, in my opinion. But, outwardly at least, it looks like once again the Republicans set the agenda and the Democrats just did what the GOP wanted. Timidly, at that.

If you don’t think the GOP leadership is going to light up an extra cigar and break out the expensive cognac this weekend, you’re fooling yourself. They see this as an unadulterated win, and the public and the media view it that way, too. You can hate Anthony Weiner for putting us in that position, but the timidity of our party’s leadership didn’t help.

Anyway, back to the Clash. At least Weiner’s bad judgment and the resulting media hullabaloo gave me an excuse to break out this rarity, and so I suppose I should be grateful. As a bonus, here’s a live version of “Protex Blue” from 1980, which, despite the grainy video and mediocre sound quality, is really great:

So there you go. A little extra protection from the Clash.

Turn. It. Up.

© 2011 David P. von Ebers. All rights reserved.

Thursday, June 16, 2011

Sometimes the Supreme Court Gets It Right

After delving into the Clarence Thomas scandal (here and here) and bemoaning the negative impression even our fellow liberals often have of lawyers and the legal system, it’s nice to have something positive to report for a change:

Repeatedly citing “common sense” as its guiding light, a closely divided Supreme Court ruled Thursday that police must take into account the age of a youth they are going to question, in order to decide whether to warn the boy or girl about their constitutional rights — including the right to remain silent. The Court majority, speaking at length about the vulnerability of children, insisted it was not abandoning the simplicity of the “Miranda warnings” requirement. …

Basically, what the Court did was to add to the Miranda equation a requirement that, if an officer knows at the time the actual age of the youth the police are about to question, or a suspect’s young age would have been apparent at the time, the officer must take that into account in deciding for or against a rights warning. The Court did not say at what young age warnings would have to be given, nor did it say just how the officer was to translate a conclusion about a suspect’s age into a decision to give — or not to give — warnings.

The case is J.D.B. v. North Carolina, No. 09-11121, and you can download the opinion in .pdf format here.

The Court’s opinion explains the facts of the case this way:

Petitioner J. D. B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed police officer, escorted to a closed door conference room, and questioned by police for at least half an hour.

This was the second time that police questioned J. D. B. in the span of a week. Five days earlier, two home break ins occurred, and various items were stolen. Police stopped and questioned J. D. B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J. D. B.’s grandmother—his legal guardian—as well as his aunt.

Police later learned that a digital camera matching the description of one of the stolen items had been found at J. D. B.’s middle school and seen in J. D. B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J. D. B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J. D. B. about the break-ins. Although DiCostanzo asked the school administrators to verify J. D. B.’s date of birth, address, and parent contact information from school records, neither the police officers nor the school administrators contacted J. D. B.’s grandmother.

The uniformed officer interrupted J. D. B.’s afternoon social studies class, removed J. D. B. from the classroom, and escorted him to a school conference room. There, J. D. B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J. D. B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J. D. B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.

Questioning began with small talk—discussion of sports and J. D. B.’s family life. DiCostanzo asked, and J. D. B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing, J. D. B. explained that he had been in the neighborhood where the crimes occurred because he was seeking work mowing lawns. DiCostanzo pressed J. D. B. for additional detail about his efforts to obtain work; asked J. D. B. to explain a prior incident, when one of the victims returned home to find J. D. B. behind her house; and confronted J. D. B. with the stolen camera. The assistant principal urged J. D. B. to “do the right thing,” warning J. D. B. that “the truth always comes outin the end.” App. 99a, 112a.

Eventually, J. D. B. asked whether he would “still be in trouble” if he returned the “stuff.” Ibid. In response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. Id., at 112a; ibid. (“[W]hat’s done is done[;] now you need to help yourself by making it right”); see also id., at 99a. DiCostanzo then warned that he may need to seek a secure custody order if he believed that J. D. B. would continue to break into other homes. When J. D. B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention before court.” Id., at 112a.

After learning of the prospect of juvenile detention, J. D. B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J. D. B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he under stood, J. D. B. nodded and provided further detail, including information about the location of the stolen items. Eventually J. D. B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the school day, J. D. B. was allowed to leave to catch the bus home.

J.D.B. v. North Carolina, 564 U.S. ___, No. 09-11121 (June 16, 2011) slip op. at 1-4 (footnotes omitted).

Based upon the foregoing, the State of North Carolina brought two juvenile petitions (i.e., criminal charges) against J.D.B. for breaking and entering and for larceny, and, after J.D.B.’s motion to suppress his confession was denied, he essentially pled guilty and then appealed the denial of his motion to suppress. Slip op. at 4. The North Carolina Court of Appeals and the North Carolina Supreme Court upheld the conviction over J.D.B.’s objection that his confession was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (1966). Id., at 5.

Ultimately, however, the Supreme Court overturned the conviction and remanded the case to the state court to determine whether J.D.B. was “in custody” at the time of his interrogation, thereby requiring the reading of Miranda warnings before the questioning could begin. As the Court explained:

Because these measures protect the individual against the coercive nature of custodial interrogation, they are required “‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”’” Stansbury v. California, 511 U. S. 318, 322 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam)). As we have repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry.

“Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines andactions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Thompson v. Keohane, 516 U. S. 99, 112 (1995) (internal quotation marks, alteration, and footnote omitted).

See also Yarborough v. Alvarado, 541 U. S. 652, 662–663 (2004); Stansbury, 511 U. S., at 323; Berkemer v. McCarty, 468 U. S. 420, 442, and n. 35 (1984). Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to “examine all of the circumstances surrounding the interrogation,” Stansbury, 511 U. S., at 322, including any circumstance that “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave,” id., at 325. On the other hand, the “subjective views harbored by either the interrogating officers or the person being questioned” are irrelevant. Id., at 323. The test, in other words, involves no consideration of the “actual mindset” of the particular suspect subjected to police questioning. Alvarado, 541 U. S., at 667; see also California v. Beheler, 463 U. S. 1121, 1125, n. 3 (1983) (per curiam).

Slip op. at 7-8.

Applying these general principles to the case of a J.D.B., a minor, the Supreme Court held in order to determine whether J.D.B. was “in custody,” for purposes of the questioning that took place at his school, the interrogating officers were required to consider his age:

Reviewing the question de novo today, we hold that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.

Slip op. at 14.

In other words, when a police officer elects to question a minor and has to determine whether the circumstances are such that the minor is “in custody,” such that Miranda warnings are required – that is, that a reasonable person in the minor’s position would not believe he or she was free to leave – the police officer has take into consideration the minor’s age. Although the Court did not delineate precisely how police officers are to make that determination, the ruling seems to me to make perfect sense. And if it causes police officers to err on the side of giving Miranda warnings before questioning minors … so much the better.

Oh, one more thing about the J.B.D v. North Carolina decision. It was authored by Justice Sonya Sotomayor, and Justice Elena Kagan joined in the majority opinion. So, Pres. Obama’s Supreme Court nominees are 2-and-0 on Miranda so far.

© 2011 David P. von Ebers. All rights reserved.