Monday, June 29, 2009

Quick FAQ on the recent Supreme court decisions

(Disclaimer: I'm not a lawyer, some weeks I'm barely a law student. Recently, I'm knee deep in a paper on cyberharassment by third parties. But I have been paying attention to the recent batch of SCOTUS decisions and people keep asking me questions about them. And we all know I like to write FAQs.)

Q: Why have there been so many SCOTUS decisions recently?

A: There haven't been all that many, but the ones that are coming down are the most famous. Important/weird cases tend to get decided at the end of the term because the SCOTUS takes extra time to argue them.

Q. Is it just me, or have the SCOTUS decisions recently been less crazytown than usual?

A. The Osborne decision notwithstanding, yes, the decisions have been pretty reasonable.

Q: Why?

A: I credit the Sotomayor nomination. After all the crap conservatives gave Sotomayor for suggesting that a court might need diversity of background to make decisions that really took into account the perspectives of diverse parties, they couldn't go and prove her point by deciding that school officials making a 13-year-old get naked was really no big deal.

Q: What was up with Thomas' opinion in that case?

A: He mostly went off an old decision that said that a girl who was suspected of smoking in the bathroom could have her purse searched.

Q: So we should totally pop champagne about that case, right?

A: Eh. First off, without Sotomayor, my guess is it might have come out the other way. The transcript of the arguments really gives the impression that the Justices don't fucking get what the problem with making a thirteen year old strip because she might be carrying advil. Justice Kennedy was like "Is the nature of the drug irrelevant? What if it was meth to be consumed at noon?" and Souter thinks violating the student's privacy is less important that preventing accidental panty meth poisonings. (That's a paraphrase.)

Q: But the court ultimately overcame their fear of panty meth. So good, right?

A. Again, Eh. Ginsburg and Stevens were the only ones who thought the school district should be liable for the girl's emotional distress. The other ones said that making a 13 year old get naked so there could be a search for Advil was insufficiently obviously wrong for it to be actionable.

Q: Is it obviously wrong?

A. If Scalia and Ginsburg and Souter and Kennedy agree on something, it's usually pretty obvious. I would totally have voted with Ginsburg and Stevens.

Q: What about the case about the voting rights act?

A: This is an opinion that I haven't read, but my impression is that the court wanted to find for the municipality with making the smallest possible impact on the voting rights act.

Q. Why? I would think that the court would be overturn the voting rights act since doing so is the properly Crazytown decision to make?

A: Right, but again, overturning the voting rights act would make Sotomayor's confirmation a lot easier.

Q. I want some crazy. What does Justice Thomas think?

A: He thinks that striking down the Voting Rights act would be not a "sign of defeat" but an "acknowledgement of victory," the implication being that, ya know, Racism is over.

Q. Oooh. That's good crazy.

A. It's ok. I like Scalia's brand of crazy better. He's crazy in a your-Crazy-Uncle-Harry-who-makes-Thanksgiving-fun sort of way. Thomas is more like one of those ranting dudes in a bar who won't shut up about how the Bears are the best team ever in absence of any evidence that this is the case. More importantly to me, you normally can get why Scalia feels the way he does even when you disagree which is usually and Thomas is a much greater believer in cherrypicking the one case that's with him and ignoring everything else. And Scalia is snarky and loves to talk to the press enough that he sometimes has to recuse himself because he's already talked about the case before it's argued. He's loads of fun. I'm tempted to name a World of Warcraft character after him.

Q. Now what about the firemen?

A. The Ricci decision is another one I haven't read, though I've read a fair amount about it. One thing I'd like to know that I haven't seen is whether anybody has figured out WHY the African Americans flunked the test. Early standardized tests were specifically designed to keep New York Jews out of the Ivy League and had lots of questions like "Ballanchine:Ballet::Frank Gehrey:__________" that people from poorer backgrounds weren't supposed to be able to answer.

Q: How did that work out?

A: A New York Jew named Stanley Kaplan got very rich.

Q: So standardized tests can be racist?

A: Effectively, yes, but I don't know that this one was. I'd like to know if it was.

Q: Anyway, does Sotomayor's decision show she's outside the mainstream?

A: Not from what I've seen. She followed precedent, the SCOTUS just changed the law.

Q: Will the conservative pundits understand that distinction?

A: If they do, they won't let on.

Q: So what about the case about the Forensic Experts?

A: Crazy Uncle Scalia wrote an opinion that the reports of crime scene lab techs were functionally witnesses for the prosecution, and that the lab techs needed to be available for cross examination.

Q: What's the upshot?

A. Well, running a crime lab just got more expensive since techs will be spending a lot more time in court so the crime labs will need to hire more of them to get through the same number of cases. On the upside, people, with excellent reason, have become really skeptical of the work of forensics experts and this might actually restore their faith. And my undergraduate institution, which needs all the help in can get, has a forensic science program so the new lab tech jobs counts as a win for me personally there, too.

Q: What's weird about this case?

A: I think it by implication concedes that crime techs are not independent and are functionally working for the prosecution, something that has been fairly obvious to anyone who pays attention to this stuff for some time, but that is not typically formally admitted.

Q: Overall picture?

A: Obama should nominate Sotomayor near the end of every term. And anyone who loves law should read Souter's dissent is Osbourne, which includes a beautifully written, thoughtful, jurisprudential discussion that is not precisely on point, but still great.


PG said...

The firefighter case was a close one and I sort of side with both the dissenters and with the concurrences more than with Kennedy's opinion for the majority. Kennedy's opinion seems to boil down to: you should always go ahead and certify the results of the test, except when that leads to a lawsuit and judgment that the test is improper due to disparate impact, in which case you didn't have to certify the test. I really don't know how else "a strong basis in evidence to believe it will be subject to disparate-impact liability" is supposed to play out in real life. How the hell can the city know ahead of time whether they'd be found liable in a lawsuit that will be filed only if they certify the exam results?

Not all the black firefighters failed; several passed. The problem was that none of them scored high enough to be eligible for the next couple rounds of promotions. On the other hand, this apparently had never happened before; prior methods of assessing firefighters for promotion had generally produced at least one black person to be promoted. So that's why lots of people were convinced that this particular test must not be quite right; as one person said, either black firefighters suddenly got stupid or the test had disparate impact.

On still another hand, the process described for creating this test sounded very fair and unlikely to create such disparities except inasmuch as written standardized tests tend to do that in general. (The results from simulation assessments, in which people have to respond to real situations instead of regurgitating stuff from a rulebook, tend to avoid racial disparities.)

What I found most fascinating about the facts of the case is that one of the defendants was a guy who wasn't even a city official at the time, just a black minister who seems to be New Haven's local Al Sharpton. The plaintiffs sued him for publicly stating his opposition to certification of the results, which is sort of creepy on First Amendment grounds. Alito's entire concurrence is about this dude, and while I don't think Alito's actually uses the term "huckster," that's the cumulative effect. Ginsburg does a nice job smacking Alito for relying uncritically on the plaintiff's statement of facts.

hafidha sofia said...

Interesting! Thanks for the thoughts.
DH was so pissed off about the teenage girl strip girl search thing that he announced he didn't want our child attending public school because he wasn't sending her to any place that she didn't have civil liberties. So we were pleased with the outcome of that case, and unsurprised at Thomas' dissenting vote. What a dumbass.