Brushes with the law

The post title comes from the title of the infamous book I finally got around to reading over the holidays and I may write something about it soon, but for the moment I wanted to post a little wrap-up of law-related items from the week.

The USSC brought Jeb Bush's involvement with the Terri Schiavo case to an end Monday. I've seen several items about this story over the week and have been thinking again about the misleading ways that many journalists cover the Court. The NYT is generally pretty good about it, but in other stories in local press or AP you often get mischaracterizations of just what has happened procedurally or what issues are actually at stake in a case. Particularly, journalists often depict denials of review, like this one, as rulings on the merits. Practically speaking, when the Court declines to disturb a lower court judgment, it is not intended to mean that they necessary approve of the legal conclusions in the decision. Nevertheless, reporters often depict them as such. Of course, practitioners and students of the courts know enough to realize that denials of discretionary review and the like can sometimes hold clues to what the justices think about the merits, but it's a lot more complicated than the impression you can get from reading the news.

This isn't a surprising outcome, since the action taken by the Florida legislature and governor was ridiculous. Whatever one may think of euthanasia, the dispute between Schiavo's husband and parents over what her wishes were with regard to her life and the facts of her prognosis are not for disposition by the political branches. It would be like your state legislature passing a law overturning a jury award to you from the guy who hit you with his car or the governor ordering you to take mood stabilizing drugs after your doctor says you don't need them. Sure, they can pass general laws affecting the resolution of future litigation on those issues, applying to everyone, but resolving preexisting disputes is the courts' job.

So, a state senator in Washington wants to make it OK to call a woman a strumpet? This is what happens when Democrats take over, I guess. Seriously, I brought this up in a class this week and one of my students thoughtfully pointed out that this is likely a violation of free speech. I pointed out that it likely was, but that courts have no occasion to strike down such laws unless they are enforced, and that the efforts to repeal laws like this had more to do with eliminating vestiges of bygone cultural assumptions. In this case, the assumption that a woman's virtue is a valuable quality, worthy of protection with criminal sanction, that could mean the difference between marriageability and spinsterhood. I found it interesting that the law exempts prostitutes (I suppose if it didn't it might make brothel-keepers' jobs harder) and had to be false to be illegal. Thus, like slander (at least in the US) truth is a defense.

If this law passes, I suggest that in celebration everyone pick a woman at random from a Washington phonebook and call her a hussy (or courtesan, trollop, Jezebel, etc.) Of course, you should be sure to thank her as well.

Also predictably, the DC Court of Appeals seems inclined to deny the Sierra Club and Judicial Watch access to energy task force records. I'm not terribly surprised, despite the typically qualified outcome of the Supreme Court's controversial review of the earlier discovery ruling. In fact, I think the justices basically divided the labor between Kennedy, who authored the cautiously worded opinion sending the case back to the circuit court with instructions to "be careful," and the concurrence by Thomas (joined by the non-recused Scalia) which blazed through to the separation of powers issue and favored ruling for the VP. Now, the Court gets the equivalent of a contentious expansion of constitutionally protected executive secrecy without actually demanding it.

One thing worth noting from the DC court's oral argument. Here's Douglas Ginsburg, the chief judge who would be sitting in Kennedy's seat if he hadn't fired up some weed with blabbermouth students years ago, interpreting the Supreme Court's handling of the case for Judicial Watch:

You're proceeding as if this were ordinary litigation and the Supreme Court has said this is not ordinary litigation because of the vice president...

Now, let's recall Scalia's memo explaining his non-recusal:

Certainly as far as the legal issues immediately presented to me are concerned, this is "a run-of-the-mill legal dispute about an administrative decision." (emphasis in original)

Scalia was responding to an assertion that despite the fact that Cheney's role as a litigant is due to official action, his presence in the case was a mere formality and thus his personal relationship with the VP was not relevant to questions of his impartiality. This was the weakest part of his often-combative and rambling defense of sitting in the case, leading to his bald assertion that the stakes of the underlying litigation were irrelevant because "political consequences are not my concern..."

There are several other interesting legal issues swirling around, like the Court's recent Booker decision striking down the mandatoriness of federal sentencing guidelines (but not the guidelines themselves) and the same-sex marriage litigation popping up in various states, but I'm not certain right now just how significant these developments are.