Re: Decisions

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"There are no more opinions today" (besides VRA). Oh well, I'll do another thread tomorrow.


Posted by: heebie-geebie | Link to this comment | 06-25-13 7:21 AM
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Not that VRA isn't significant.


Posted by: heebie-geebie | Link to this comment | 06-25-13 7:22 AM
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I get the sense that the Chief Justice is smirking every time he writes one of those "...but of course Congress is free to fix this if it wants to" opinions.


Posted by: knecht ruprecht | Link to this comment | 06-25-13 7:23 AM
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Guess it's time to burn shit down again.


Posted by: Natilo Paennim | Link to this comment | 06-25-13 7:24 AM
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There are no more opinions today" (besides VRA)

What am I? Chopped liver?


Posted by: OPINIONATED ADOPTED BABY | Link to this comment | 06-25-13 7:24 AM
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Oh I didn't see that one.


Posted by: heebie-geebie | Link to this comment | 06-25-13 7:28 AM
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Also a takings decision that's surely bad given that Alito wrote the opinion but I don't know how bad. The VRA opinion is seriously enraging.


Posted by: potchkeh | Link to this comment | 06-25-13 7:32 AM
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7 - As Ginsburg says, the fact that Section IV worked decently well to reduce racist voting rights shenanigans is proof we don't need it any more.


Posted by: snarkout | Link to this comment | 06-25-13 7:35 AM
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I'm not impressed with Justice Alito's ICWA decision* -- or with Justice Breyer for concurring in it -- but at least they haven't done any harm to the principles of Native sovereignty. Which was the big fear.

* I mean come on, disregarding the statutory adoption preference because while the father is fighting the adoption and termination of his parental rights, well, he's not trying to adopt? And the tribe, while fighting the adoption and saying they have people on a waiting list to adopt, doesn't get the preference because they didn't identify a specific couple, and that couple didn't intervene?


Posted by: CharleyCarp | Link to this comment | 06-25-13 7:40 AM
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The VRA opinion is seriously enraging

Word. Gutting a law enacted almost unanimously by Congress pursuant to an authority expressly granted by the 15th Amendment. Could this Court be any more arrogant?


Posted by: knecht ruprecht | Link to this comment | 06-25-13 7:40 AM
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(OK, SC opinions are tl;dr for most folks, so here's the nutshell: a fact specific interpretation of a couple of provisions of the federal statute. Both fathers and tribes can avoid similar results in the future by stepping up earlier.)


Posted by: CharleyCarp | Link to this comment | 06-25-13 7:45 AM
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I'm trying to find a good layman's explanation of the VRA decision. AFAICT they leave everything intact except the bit where it actually applies to anybody. Is there more to it?


Posted by: togolosh | Link to this comment | 06-25-13 7:48 AM
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If Alito acts like this when he's in the majority on every decision, just imagine what a jerk he'll be if the Republicans are ever in the minority.


Posted by: Cryptic ned | Link to this comment | 06-25-13 7:48 AM
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I'm struggling to see a silver lining in the VRA case, but if there is one, it's this: voting rights will become a campaign issue. I see no chance of getting an updated Section 4 formula through Congress until the Democrats have unified control of the government, but until then, Dems can run on the issue and solidify their multiracial coalition. Normally I don't place much stock in backlash theories, but there's reason to believe that this issue is different (viz., the mobilization of African American voters in 2012 in response to GOP voter suppression shenanigans).


Posted by: knecht ruprecht | Link to this comment | 06-25-13 7:52 AM
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12: The Court said that the Congress can't just keep subjecting the same jurisdictions to the preclearance requirements over and over, because things have changed since it first adopted the coverage formula based on voting pattern data from the early '60s. If they want to go back and come up with a new coverage formula based on fresh data they can give that a shot (but not as far as Thomas is concerned).


Posted by: potchkeh | Link to this comment | 06-25-13 7:53 AM
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12: Preclearance (Section 5) is OK in theory, but the formula used to determine which jurisdictions are subject to preclearance is unconstitutionally antiquated (despite being renewed by a nearly unanimous vote less than 10 years ago). Therefore no one is subject to preclearance unless and until Congress passes a different formula.


Posted by: knecht ruprecht | Link to this comment | 06-25-13 7:55 AM
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Therefore no one is subject to preclearance unless and until Congress passes a different formula.

...at which point Smirkin' John Roberts will step in and invalidate Section 5 for reelz, because it's an unconstitutional affront to state sovereignty or something.



Posted by: knecht ruprecht | Link to this comment | 06-25-13 8:06 AM
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16 - Which justice was it that suggested in oral arguments that the unanimity of the vote was a sign that it deserved additional scrutiny from the court, because of judicial deference legislative intent creeping authoritarianism?


Posted by: snarkout | Link to this comment | 06-25-13 8:22 AM
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16: but the formula used to determine which jurisdictions are subject to preclearance is unconstitutionally antiquated

What kills me about this (and I haven't read the decision yet) is that it's an argument I'd be very sympathetic to. In Congress, ten years ago. But that's exactly the sort of legislative discretion the Court is supposed to be deferring to.


Posted by: LizardBreath | Link to this comment | 06-25-13 8:40 AM
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The contempt for Congress and the naked desire to enact the Justices' right-wing policy preferences as law are just so crystal clear in both the VRA and the Indian adoption case (where Alito, in a lovely way, starts and repeatedly emphasizes in the opinion that the father isn't a "real" Cheroke). And in the Title VII cases from yesterday, as well, of course.


Posted by: Robert Halford | Link to this comment | 06-25-13 8:41 AM
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18: Scalia made some comment at oral argument about legislators from covered states having no incentive to vote against reauthorization--since they had nothing to gain from disturbing the regime under which they had been elected--and maybe something to lose by pissing off supporters if they did vote against it; so he thought the fact that senators from covered states all voted in its favor shouldn't mean anything.


Posted by: potchkeh | Link to this comment | 06-25-13 8:42 AM
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Again, haven't read the decision. But there's a very weird self-contradictory circularity in the prior discussion of the case I was reading, where the same people who were saying that ICWA was an impermissible racial preference were basing that argument partially on the idea that it wasn't racial enough: that while the father might be a member of the political entity called the Cherokee Nation, he wasn't entitled to ICWA's protections because he wasn't racially (by the standards of the objectors) Cherokee. And somehow that made ICWA a racial preference.


Posted by: LizardBreath | Link to this comment | 06-25-13 8:45 AM
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21 - And that's numberwang originalism.


Posted by: snarkout | Link to this comment | 06-25-13 8:46 AM
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(where Alito, in a lovely way, starts and repeatedly emphasizes in the opinion that the father isn't a "real" Cheroke).

Of course, if the father was defined as a Cherokee based on being over a certain threshold of Cherokee heritage, instead of the current system, Alito would be even more horrified by the overt racial favoritism and non-color-blindness.


Posted by: Cryptic ned | Link to this comment | 06-25-13 8:48 AM
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that's exactly the sort of legislative discretion the Court is supposed to be deferring to

B-b-b-but John Roberts is just an umpire, calling balls and strikes!

At least he'll only be leading Court for another three decades or so.


Posted by: knecht ruprecht | Link to this comment | 06-25-13 8:55 AM
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Given the crappy state of MLB officiating, that was actually meant as a warning, not a reassurance.


Posted by: SP | Link to this comment | 06-25-13 9:13 AM
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But that's exactly the sort of legislative discretion the Court is supposed to be deferring to.

I know, that's what confused me. Their justification was that the original Supreme Court in the 60s only cleared the VRA because there were 'extraordinary' circumstances, implying that it would 'normally' have been unconstitutional. But if the court is going to be a body that says 'OK, you can do this unconstitutional thing now because we think the circumstances justify it, but once we decide the circumstances have changed sufficiently you can't do it any more', then how is the court anything but a super-legislature?


Posted by: PGD | Link to this comment | 06-25-13 9:36 AM
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The dissent in the Adoptive Couple case looks clearly to have the better of the statutory arguments, though I've never delved in the case deeply myself. And Sotomayor calling Alito out on "repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry" is good stuff.

It used to be fair to assume that any time Stevens and Scalia were in dissent together they were right and the Court was wrong. I'm starting to think you can say the same thing today about Scalia and Sotomayor.


Posted by: widget | Link to this comment | 06-25-13 9:42 AM
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The Thomas concurrence in the Adoptive Couple case really goes loco, even for Thomas.


Posted by: Robert Halford | Link to this comment | 06-25-13 9:48 AM
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27: This sort of thing is why I've never been able to find law terribly intellectually interesting. I do it for a living, I try to keep up with developments in areas I use professionally, but generally, and particularly at the highest levels, judges do what they want, and thinking too hard about the justification for it is just banging your head against a wall.


Posted by: LizardBreath | Link to this comment | 06-25-13 9:53 AM
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B-b-b-but John Roberts is just an umpire, calling balls and strikes!

Brings to mind the story of the three umpires: The first umpire says, "I call 'em like I see 'em." The second says, "I call 'em like they are." The third says, "They ain't nothin' till I call 'em."


Posted by: MAE | Link to this comment | 06-25-13 9:56 AM
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Meanwhile, three cheers for Justice Ginsburg:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Of course, I'd rather this were part of the majority opinion than part of the dissent.


Posted by: MAE | Link to this comment | 06-25-13 10:01 AM
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The third says, "They ain't nothin' till I call 'em."

And this, as more of what I said in 30.

Arbitrary and unjustified as so much caselaw is, it's still law -- just because it's pulled out of thin air doesn't mean it's not a fact on the ground once the decision is made. At which point you deal with it to the extent that you have to, but thinking about it too hard will just make you get old before your time.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:01 AM
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how is the court anything but a super-legislature?

This book, which I liked, argues that courts inevitably end up functioning as super-legislatures, at least some of the time.


Posted by: NickS | Link to this comment | 06-25-13 10:03 AM
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(I feel this way about plenty of Supreme Court decisions I politically agree with as well.)


Posted by: LizardBreath | Link to this comment | 06-25-13 10:08 AM
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34: Courts are the Sex Panther of legislatures.


Posted by: Eggplant | Link to this comment | 06-25-13 10:09 AM
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If judges are just doing what they want, isn't the whole concept of being "qualified" for the Supreme Court essentially a sham? Why even bother to verify their legal credentials?

I've asked my girlfriend this (she's going to law school) - she says that while the most high-profile cases are decided politically (ie the judges do whatever TF they want), many less controversial cases really do come down to technical questions of law with a definite correct legal answer.

Do the lawyers here agree?


Posted by: dz | Link to this comment | 06-25-13 10:09 AM
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I think the right general answer is that the Court enacts partisan preferences as an actor in the political system, but doesn't do so in the same way as a Legislature-- the cout really is significantly, though not entirely, constrained by legal doctrine and legal norms. Law provides tools, not ends. The intellectual interest, if any, is figuring out how the Court does a better or worse job of navigating from point a to desired outcome b while still operating within a formal system. For example, from what I can tell. I really do think that both opinions today are not just outcome-wrong but pretty clearly formally wrong, as well.

many less controversial cases really do come down to technical questions of law with a definite correct legal answer.

People often say this, but it's really never true of any case that gets to the Supreme Court (the whole reason it's in the Supreme Court is that there's not a clearly correct legal answer), and only rarely true of cases that get published decisions in the Court of Appeals.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:13 AM
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Courts are the Sex Panther of legislatures.

Heh. If you believe Shelly, the court would be equivalent to poets.


Posted by: NickS | Link to this comment | 06-25-13 10:14 AM
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a definite correct legal answer

I don't think this is true for more than a small fraction of cases before the Supreme Court, if any.


Posted by: urple | Link to this comment | 06-25-13 10:15 AM
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Down amongst the algae and duckweed at the bottom of the river where I practice, almost everything has a correct technical right answer (which sometimes historically traces back to an appellate judge either (a) doing whatever TF they wanted or (b) simply getting something wrong)). The higher you get in the judiciary, though, the more scope there is for a judge doing whatever they want, and the more politically interesting the case, the more likely that is. Something with a clear right answer shouldn't ever make it to the Supreme Court.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:17 AM
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"the cout really is significantly, though not entirely, constrained by legal doctrine and legal norms"

Could you be more specific? It always feels to me like they're not constrained at all (with Bush/Gore being my go-to mental example), but I was hoping that was just for the cases I pay attention to.


Posted by: dz | Link to this comment | 06-25-13 10:21 AM
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They're not actually constrained by anything but their own sense of shame, which most of them don't have. E.g., on today's VRA decision, they should have been constrained by their obligation to defer to the legislature's factfinding on a law only about ten years old as of it's last reauthorization. The penalty for violating that constraint is that I roll my eyes and Scott Lemieux writes an irate essay (I assume; I haven't checked LGM yet). Which is not much of a penalty.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:28 AM
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Its its its its. I am consumed with shame.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:28 AM
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I am curious how all the radical queers who write stuff like Against Equality will react if the marriage results are positive. Oh wait, I have found out how they will react.


Posted by: Mister Smearcase | Link to this comment | 06-25-13 10:31 AM
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The penalty for violating that constraint is that I roll my eyes and Scott Lemieux writes an irate essay (I assume; I haven't checked LGM yet). Which is not much of a penalty.

And they lose institutional credibility.


Posted by: urple | Link to this comment | 06-25-13 10:31 AM
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isn't the whole concept of being "qualified" for the Supreme Court essentially a sham? Why even bother to verify their legal credentials?

Ideally, you would want Supreme Court justices to be good lawyers, partially so they'd obey the sorts of formal constraints that we're talking about here, but even more so that they would write opinions that would provide clear guidance for the courts below -- doing whatever you want is one thing. Leaving everyone confused about what you've actually done and what it means is another, separately annoying thing.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:34 AM
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Well, they are constrained by some norms and doctrine. E.g., they could have struck down Section 5 as entirely unconstitutional, but didn't, because of a professional norm (and legal doctrine) that suggested that this decision could be usefully avoided. In yesterday's decision in Fisher, they were similarly constrained in that they sent the case back for remand, and did so based on a set of complicated doctrinal rules based on "scrutiny." Those are all things that a Court would do but a legislature or executive officer would not do.

I'm not saying the Supreme Court isn't highly political -- of course it is -- but it's not unconstrained in its politics in a way a Legislature's politics are. They are constrained by, and have to navigate, judicial rules and norms, including the requirement to set forth reasoned decisions based on precedent. Sometimes that can have pretty outcome-significant consequences, as of course it should.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:34 AM
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48: This is truer than what I've been saying.


Posted by: LizardBreath | Link to this comment | 06-25-13 10:37 AM
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If I had a dollar and institutional credibility, I could get a cup of coffee if I had $1.34 on my Starbucks card.


Posted by: Moby Hick | Link to this comment | 06-25-13 10:43 AM
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42 - I think BvG is out at the tail of the distribution. The umpire analogue was always flawed, because they're not calling every pitch made, but only a tenth of a percent of the pitches where pitcher and batter disagree. And picking which tenth of a percent on their own criteria.

I think Alito is wrong, and he seems to be something of an asshole. That said, the federal statute isn't exactly explicit on what is supposed to happen when a Native father more or less renounces paternity early in the pregnancy, only stepping back in months after the birth, after the adoption is well underway. The applicable state laws are clear on what would happen to a man who behaved like this: sol. (Some other states are different.) On the constitutional stuff, you've got the problem of some pretty vague language: what exactly does "liberty" mean in the 14th Amendment? What is "due process"? What does "necessary and proper" really mean? There isn't one true answer to a lot of these issues. But that doesn't mean that approaching them with a particular viewpont (as we mostly do, I think) and finding an interpretation that fits that viewpoint is some sort of shocking unbounded exercise of bad faith.

I always think "qualification" is such a totally wrong word to use when talking about judicial candidates. Halford is "qualified" to be a judge. But the bigger question is whether he has the kind of judgment you'd want to subject yourself to: his posts on rock'n'roll, privacy, and numerous other subjects rule him out. (Sorry, Rob).


Posted by: CharleyCarp | Link to this comment | 06-25-13 10:45 AM
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It's OK, judge is pretty lame compared to being God-Emperor of Halfordismo.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:47 AM
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On the constitutional stuff, you've got the problem of some pretty vague language: what exactly does "liberty" mean in the 14th Amendment? What is "due process"? What does "necessary and proper" really mean?

As part of the confirmation process, all Supreme Court nominees should be required to assemble a set of wire shelves whose assembly instructions consist of badly-drawn diagrams and poorly-translated Chinese.


Posted by: MAE | Link to this comment | 06-25-13 10:54 AM
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Texas is moving quickly in light of the VRA decision.


Posted by: essear | Link to this comment | 06-25-13 10:55 AM
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Bio dad on the adoption case sounds like a fantastic fellow.

Dusten eventually texted Christy that he was giving up his parental rights and would not support the child..."I just figured the best interest would be ... for [Christy] to have the full custody of her, but for me to still be in the picture -- be able to come visit and stuff," he says.

Oh, so you thought you could just wangle out of any hard and fast time and money commitments with a text message but still just get to see the kid and be dad when you were in the mood? Weird how the mom wasn't down with that plan. Legal arguments aside, fuck that guy, I'm glad he lost.


Posted by: gswift | Link to this comment | 06-25-13 11:00 AM
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|| Sen. Wendy Davis is doing good work in the Texas leg filibuster. http://www.strontium87.com/filibuster/ |>


Posted by: CharleyCarp | Link to this comment | 06-25-13 11:02 AM
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This sort of thing is why I've never been able to find law terribly intellectually interesting. I do it for a living, I try to keep up with developments in areas I use professionally, but generally, and particularly at the highest levels, judges do what they want, and thinking too hard about the justification for it is just banging your head against a wall.

I am a non-lawyer, but my jobs over the last couple of years has led me to learn a lot more about law. To a large extent I agree with the 'judges do what they want' claim you make here, but I don't think it robs the law of intellectual interest. The structure of rules and expectations created by the going interpretation of the law is more important in structuring society than I ever understood before I got more deeply into it. I always thought e.g. bankruptcy law was boring but I now think of it as having a huge subterranean impact on economic life. (The fallout from the financial crisis has helped to illustrate this). For better or worse, the same is certainly true of IP.


Posted by: PGD | Link to this comment | 06-25-13 11:03 AM
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54 - You would think that a member of the legislature saying in an open forum that the purpose of what they were doing was to minimize the weight of the Latino votes, but things work differently in Texas.


Posted by: snarkout | Link to this comment | 06-25-13 11:03 AM
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Can this also be the Obama climate-change-speech thread? His theatrical forehead-wiping from the heat is kind of an awesome touch.


Posted by: essear | Link to this comment | 06-25-13 11:04 AM
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55: We talked about this case in an earlier thread. Obviously, from this distance, it's hard to tell rights and wrongs in detail, but the impression I got didn't leave me unsympathetic to him overall.


Posted by: LizardBreath | Link to this comment | 06-25-13 11:05 AM
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Specifically, the impression I got was that the father had been planning to marry the mother and she unilaterally ended the relationship during the pregnancy (her prerogative, of course) and cut off communication (uncool, if you think there's any rights/value in a relationship between a biological father and his kid). There wasn't any indication in the stories I read that she was seeking or would have accepted financial support from him. This:

Dusten eventually texted Christy that he was giving up his parental rights and would not support the child.

seems like a non-ideal response, but within the range of possibilities that I wouldn't think of him as beyond the pale for.


Posted by: LizardBreath | Link to this comment | 06-25-13 11:10 AM
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61 -- It seemed to me that he used child support as leverage to get her to marry him.


Posted by: CharleyCarp | Link to this comment | 06-25-13 11:15 AM
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To 54, I am amazed there is damage left to be done. Last time, Austin got cut into (I think) four different districts in order to remove the D congressman (didn't work). They're going to have to start combining larger and larger swaths of land to dilute the cities.


Posted by: ydnew | Link to this comment | 06-25-13 11:23 AM
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51: The umpire analogue was always flawed, because they're not calling every pitch made, but only a tenth of a percent of the pitches where pitcher and batter disagree.

Yes, what a tell that stupid analogy was. For God's sake at least analogize that you're part of a standing league committee on rules interpretation that only gets ambiguous cases. That would at least be within shouting distance of what the SC does. So, yeah, you get Merkle's (misnamed) Boner, or the pine tar ruling, or what to do when two umpires simultaneously signal caught/not caught on a soft liner with men on base but nothing remotely like a standard ball/strike call.

...call me Dr.Obvious.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 11:23 AM
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"We don't have time for a meeting of the Flat Earth Society." Nice.

Obama's leadership has been pretty lacking on climate change, and this is arguably too little too late, but I think his speech and the actions he's saying he will take seem pretty reasonable so far.


Posted by: essear | Link to this comment | 06-25-13 11:30 AM
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63: And to push it much further at some point they have to go out on a limb and put some districts at risk. The optimal outcome is you win a lot of districts by 1% and the opposing party stomps in a very few*, but that is risky if there is a rising tide thing.

Which is the general pattern in the House and many state legislatures, and one which overwhelmingly Democratic dense urban areas can make seem "natural."


Posted by: JP Stormcrow | Link to this comment | 06-25-13 11:34 AM
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"Leaving everyone confused about what you've actually done and what it means is another, separately annoying thing."

Annoying to lawyers who have to interpret the damn thing, or annoying to the public as a whole? Sure if you agree with a decision you'd prefer for it to be as explicit and unwigglable-out-of as possible, but if you disagree, the murkier the better, right?


Posted by: dz | Link to this comment | 06-25-13 11:41 AM
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28: It used to be fair to assume that any time Stevens and Scalia were in dissent together they were right and the Court was wrong. I'm starting to think you can say the same thing today about Scalia and Sotomayor.

Could be. Some powerful dissenting views on the equities of this difficult case.

Sotomayor in dissent: "The majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple's home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreor­dained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today's decision."

Scalia in dissent: "The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is 'in the best interest of the child.' It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."


Posted by: bill | Link to this comment | 06-25-13 11:42 AM
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27: This sort of thing is why I've never been able to find law terribly intellectually interesting. I do it for a living, I try to keep up with developments in areas I use professionally, but generally, and particularly at the highest levels, judges do what they want, and thinking too hard about the justification for it is just banging your head against a wall.

I find this so, so, so angering and frustrating. It's almost work that judges do include shitty pseudo-justificatory quasi-arguments in their decisions, since often the arguments are really bad. The justification can be utter tripe and no one can do anything about it: it's not as if it will be rejected by a referee or given a bad grade or laughed at (or anyway, it's not as if the laughter means anything). There's no appeal except to heaven. And they still include shitty arguments, as if to taunt us.


Posted by: nosflow | Link to this comment | 06-25-13 11:43 AM
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66, Yeah, I keep hoping they won't know how to quit while they're ahead. I think the interesting lines are at the Houston and Dallas suburbs, mostly, since drawing those takes pretty careful attention to changing populations/demographics. Austin isn't quite big enough (yet) that the edges of the city are the interesting districts.


Posted by: ydnew | Link to this comment | 06-25-13 11:47 AM
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Livestream of the filibuster of SB5 in Texas, the bill that would effectively end most access to abortions in Texas. (Closes all but 5 clinics and bans all abortions after 20 weeks, no exceptions for health, etc.)


Posted by: heebie-geebie | Link to this comment | 06-25-13 11:49 AM
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It's OK, judge is pretty lame compared to being God-Emperor of Halfordismo.

Muad'Dib!


Posted by: bill | Link to this comment | 06-25-13 11:49 AM
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63: Here, they combine cities to keep Rep seats in the suburbs.


Posted by: Moby Hick | Link to this comment | 06-25-13 11:50 AM
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68.last: I do agree with Scalia very strongly there, but of course it's got nothing to do with the case before the court: the rights and wrongs of severing the relationship between the biological father and child (in the absence of the ICWA statutory framework) are a matter of state law that no one questions goes against the father on these facts.


Posted by: LizardBreath | Link to this comment | 06-25-13 11:54 AM
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The filibuster is much discussed on the 'Termination for Medical Reasons' board. Many of the women there have sent their stories to Sen. Davis. I haven't, but it is on file with the National Abortion Federation, for them to use whenever helpful. I'd testify if needed.


Posted by: anon for this one | Link to this comment | 06-25-13 12:01 PM
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64: Further to the baseball analogy, this book on the rules by David Nemec is a great read for anyone with an interest in the how, when and why of most baseball rules. It is very good at providing historical context; and unsurprisingly, a number of rule changes arose from particular unusual incidents.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 12:16 PM
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During a filibuster, a senator is limited to topics relevant to the bill being discussed and cannot eat, drink or use the restroom during the speech. The rules also prohibit sitting or leaning on a desk or chair under any circumstances when the senator has the floor and is speaking on the bill or resolution.

Go Sen. Davis, Go!


Posted by: heebie-geebie | Link to this comment | 06-25-13 12:26 PM
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She has to go for 13 hours.


Posted by: heebie-geebie | Link to this comment | 06-25-13 12:27 PM
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I didn't realize the rules were so strict. Can't someone sub in for her? Or can't we apply the same rules to the federal House and Senate?


Posted by: Megan | Link to this comment | 06-25-13 12:32 PM
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13 hours with no water or restroom breaks? That sounds... not possible.


Posted by: essear | Link to this comment | 06-25-13 12:39 PM
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It sound totally unpleasant and awful, but not impossible.


Posted by: heebie-geebie | Link to this comment | 06-25-13 12:42 PM
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During a filibuster, a senator . . . cannot eat, drink or use the restroom during the speech. The rules also prohibit sitting or leaning on a desk or chair

Could a filibustering senator make use of a special suit that allowed one to relieve oneself in situ, like an astronaut suit? The suit could also administer intravenous fluids and have a built-in exoskeleton, so that one could stand upright indefinitely without having to lean on a desk or a chair.

That would be one badass filibuster suit.


Posted by: MAE | Link to this comment | 06-25-13 12:42 PM
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The lo-tech version would just be a suit with a lot of starch in it and a pair of Depends.


Posted by: MAE | Link to this comment | 06-25-13 12:44 PM
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82: I know for sure a Senator did something like this during a recent epic in-person filibuster. It lacked the built-in exoskeleton and IV attachments but there was provision for in-place urination.


Posted by: PGD | Link to this comment | 06-25-13 12:44 PM
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I'm assuming that the rule against restroom breaks doesn't actually prohibit voiding while standing and speaking.


Posted by: Moby Hick | Link to this comment | 06-25-13 12:44 PM
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85 isn't pwned. I was just suggesting pissing into regular clothing.


Posted by: Moby Hick | Link to this comment | 06-25-13 12:45 PM
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69: There's no appeal except to heaven. And they still include shitty arguments, as if to taunt us.

The appeal is generally to history (and later courts). Justice Holmes's dissents in First Amendment cases in the early twentieth century, for example, are often credited with having turned the law around on free speech, over the course of decades.

And, more recently (and more controversially) Justice O'Connor's tendency to write thinly reasoned opinions in cases where her vote was crucial is arguably one reason why the Roberts Court has found some of her cases relatively easy to limit or distinguish, consistent with the professional norms RH discusses in 48.

I wish I'd been able to join the discussion at 38, 40-41, because the issue fascinates me, but I am unfortunately a bit tied up with a draft today. I actually think that after cases receive thorough appellate / Supreme Court briefing and argument, a clearly right (or at least clearly better) answer emerges in a surprising number of them. However, it is possible that this is a lie I tell myself for professional purposes.


Posted by: widget | Link to this comment | 06-25-13 12:46 PM
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"Point of order.... it appears the Senator has urinated in her depends..."


Posted by: Spike | Link to this comment | 06-25-13 12:46 PM
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Sadly, I'm assuming the general rules of senate decorum prevent a filibustering senator from simply pissing on other senators, even for rhetorical effect.


Posted by: MAE | Link to this comment | 06-25-13 12:47 PM
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82: Fun fact: in a storyline that began in 2002, Tony Stark was Secretary of Defense. Clearly, the writers wasted some great potential by not having him run for Congress instead.


Posted by: Cyrus | Link to this comment | 06-25-13 12:51 PM
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Keeping this filibuster going is clearly a job for the Tacocopter.


Posted by: Robert Halford | Link to this comment | 06-25-13 12:59 PM
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The appeal is generally to history (and later courts).

Wrong subject of appeal. If my case before the supreme court is decided in a way unfavorable to me, I can't appeal to history or later courts in the sense in which I appealed to the supreme court.


Posted by: nosflow | Link to this comment | 06-25-13 1:02 PM
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History is unlikely to have an attraction to curly hair on men?


Posted by: Moby Hick | Link to this comment | 06-25-13 1:06 PM
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The citizen letters that Davis is reading are pretty incredible.

I didn't realize the rules were so strict. Can't someone sub in for her? Or can't we apply the same rules to the federal House and Senate?

She can yield to other Senators for questions, which they can make really, really long.


Posted by: Sir Kraab | Link to this comment | 06-25-13 1:09 PM
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94 - I am imagining putting forward some simplex method problem sets. Or perhaps telling a long, long story that ends, "And then what did that man, who had once been so thoroughly traumatized by his trip to the circus, stand up and say to the clown?"


Posted by: snarkout | Link to this comment | 06-25-13 1:14 PM
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94: Is she allowed to sit, or eat, or nap while the other senator is asking her a question? Can she reply after a very long question, "I'm sorry, I must have dozed off -- could you please repeat the question?"


Posted by: peep | Link to this comment | 06-25-13 1:16 PM
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I'm not sure how a Texas filibuster works. If she's still talking when the Special Session ends, everyone just goes home and there's no vote on the bill (or anything else)?


Posted by: CharleyCarp | Link to this comment | 06-25-13 1:19 PM
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97 is my impression, yes.


Posted by: heebie-geebie | Link to this comment | 06-25-13 1:29 PM
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97: That's my understanding, although I can't figure out what's to stop Perry from just calling another special session.


Posted by: potchkeh | Link to this comment | 06-25-13 1:30 PM
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99: There's nothing to stop him.

General Texas filibuster rules. Note that she has to stay on topic and can't read recipes à la Strom Thurmond.


Posted by: Sir Kraab | Link to this comment | 06-25-13 1:35 PM
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The penalty for violating that constraint is that I roll my eyes and Scott Lemieux writes an irate essay


Posted by: urple | Link to this comment | 06-25-13 1:37 PM
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100: So does that mean, as a practical matter, that the legislation is going to pass? Or is there some reason to think Perry won't in fact decide to call another special session on this?


Posted by: potchkeh | Link to this comment | 06-25-13 1:51 PM
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Speaking of the law, I have to give a presentation on brief writing to new lawyers that I'm drafting. It's in the form of multiple choice questions. Anyone want to suggest something?


Posted by: Robert Halford | Link to this comment | 06-25-13 1:52 PM
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new lawyers that I'm drafting

Is this some new fantasy lawyer league?


Posted by: NickS | Link to this comment | 06-25-13 1:54 PM
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How do you do a presentation in the form of multiple choice questions?


Posted by: LizardBreath | Link to this comment | 06-25-13 2:03 PM
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Point headings should state your argument completely enough that a judge who just reads the table of contents knows what the brief is about. I can't think of how to make that a multiple choice question, though.


Posted by: LizardBreath | Link to this comment | 06-25-13 2:05 PM
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Should you say:

A: Heretofore
B: Here to for
C: Previously
D: Habeas tofore


Posted by: Moby Hick | Link to this comment | 06-25-13 2:07 PM
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It is tempting to state the other side's arguments so that you can knock them down. Do not do this without being very careful to undercut them as you state them -- you really don't want to state the arguments against your position convincingly. (I had someone once tell me to check sentence by sentence, to make sure that I never got through a full sentence about the opposition's position without somewhere in the sentence identifying it as wrong.)


Posted by: LizardBreath | Link to this comment | 06-25-13 2:08 PM
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So does that mean, as a practical matter, that the legislation is going to pass?

Probably.

(Abortion isn't the only reason there might be a second special. There are pending bills on transportation and juvenile punishment Perry wants passed.)


Posted by: Sir Kraab | Link to this comment | 06-25-13 2:13 PM
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Read the cases you cite, not just the headnotes, or some quote from another case.


Posted by: CCarp | Link to this comment | 06-25-13 2:13 PM
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Unless there's really no alternative for the point of law you want (and this will almost never be true) don't rely on cases where the holding didn't go your way. This seems too stupid to tell people, but I fix this all the time.

Also, when you cite a case? Put enough information in a parenthetical that the reader can tell what the case was about.


Posted by: LizardBreath | Link to this comment | 06-25-13 2:15 PM
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And what Charley said.


Posted by: LizardBreath | Link to this comment | 06-25-13 2:16 PM
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Which is the best name for a baby boy?

a) Affidavit
b) Joinder
c) Remand
d) Arguendo


Posted by: Cryptic ned | Link to this comment | 06-25-13 2:16 PM
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113
e) Laches


Posted by: bill | Link to this comment | 06-25-13 2:20 PM
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Point headings should state your argument completely enough that a judge who just reads the table of contents knows:

(a) the federal rules of evidence.
(b) what the brief is about.
(c) res ipsa loquitur.
(d) not to read the rest of your brief.


Posted by: urple | Link to this comment | 06-25-13 2:22 PM
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The answer to every D) should be "all of the above", so that you show proper respect to Digital Underground.


Posted by: Megan | Link to this comment | 06-25-13 2:22 PM
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She can yield to other Senators for questions, which they can make really, really long.

I just heard some guy "ask a question" that opposed abortion. I assume he was a Dem doing his bit for the party, given that he presumably opposes the intent of the filibuster.


Posted by: J, Robot | Link to this comment | 06-25-13 2:26 PM
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110 is the single best way to, IME, defeat large corporate law firms. Thanks for the tips you guys, those are great.


Posted by: Robert Halford | Link to this comment | 06-25-13 2:52 PM
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Astonishing, isn't it.


Posted by: CharleyCarp | Link to this comment | 06-25-13 3:06 PM
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Big firms treat associates like interchangeable lumps of meat, and they get shoddy research. Respect, affirmation, and positive reinforcement aren't just about being a nice person, it's also the most effective way to get decent work product out of people.


Posted by: LizardBreath | Link to this comment | 06-25-13 3:46 PM
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I should bookmark this part of the thread. Somewhat nervous about starting a real lawyer job in a couple of months.

Also, (d) Arguendo.


Posted by: Bave | Link to this comment | 06-25-13 3:53 PM
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Who is that Karl Rove-lookin' fella sitting behind Wendy Davis?


Posted by: snarkout | Link to this comment | 06-25-13 4:00 PM
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118-120: Somewhat relevantly, my current draft is a reply to a brief by a Vault 100 firm in which they cite a state trial court opinion (for dictum; the holding doesn't actually help them), but fail to cite its subsequent history (easily available via KeyCite). The state appellate opinion (which affirms the trial court's judgment) contains language that is directly contrary to the proposition for which they cite the original opinion. That was a fun paragraph to write.


Posted by: widget | Link to this comment | 06-25-13 4:02 PM
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There's a point of order going on right now in Texas, I believe to discuss potty breaks.


Posted by: snarkout | Link to this comment | 06-25-13 4:59 PM
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120: Respect, affirmation, and positive reinforcement aren't just about being a nice person, it's also the most effective way to get decent work product out of people.

As Halford Muad'Dib has cleverly demonstrated in getting tips for his presentation.


Posted by: bill | Link to this comment | 06-25-13 5:22 PM
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Whose side are the guys who keep talking on? Are they helping the filibuster or trying to shut it down?


Posted by: E. Messily | Link to this comment | 06-25-13 5:23 PM
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126 - This liveblog provides an okay gloss of who is talking, although it doesn't update very quickly.


Posted by: snarkout | Link to this comment | 06-25-13 5:58 PM
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Christ, I just now got around to actually reading the Shelby County opinion, and now I'm genuinely depressed. I was expecting to disagree with the majority, but I was expecting there to be a little more there with which I could disagree. I wasn't expecting the majority to make so little effort even to engage with the arguments put forth, quite well, in dissent.

It really truly doesn't even try. I can't remember the last time I felt so certain that an opinion was not just egregiously wrong but actually in bad faith.


Posted by: urple | Link to this comment | 06-25-13 5:58 PM
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"A filibuster is an endurance contest and it's to be made unaided and unassisted," Williams said in defense of the point of order.

I see lots of people on Facebook cheerleading about how this is what filibusters should be all about, but to me it sounds horrific and cruel. "An endurance contest"? Why? This is the best way we can imagine for a minority party to be able to stop destructive legislation passed by the majority?


Posted by: essear | Link to this comment | 06-25-13 6:02 PM
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I think filibusters should be duels. If the minority calls a filibuster, each party must choose one representative, they walk 40 paces, turn and fire. If the minority rep. kills the majority rep., the bill is dead and cannot be reintroduced in that legislative session. If the majority rep. kills the minority rep., the bill gets an up or down vote. If they kill each other, repeat the process.


Posted by: urple | Link to this comment | 06-25-13 6:08 PM
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"An endurance contest"? Why?

Why? Because it's Democrats who are filibustering at the moment.


Posted by: urple | Link to this comment | 06-25-13 6:11 PM
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This is the best way we can imagine for a minority party to be able to stop destructive legislation passed by the majority?

Why should minority parties be able to stop legislation, period?

I mean, in this case, sure, hooray for Sen. Davis. But in general, filibusters are bad, and they've certainly been a disaster at the federal level. Insofar as they exist at all, there's a strong argument that they should be in some sense costlier than a normal "no" vote, because otherwise we simply have a supermajoritarian system or even a unanimity one, which has a pretty clear status-quo bias (and who wins from a status-quo-biased system? Current winners, that's who).


Posted by: x.trapnel | Link to this comment | 06-25-13 6:13 PM
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130, I think your idea would be met with roaring approval in TX.


Posted by: ydnew | Link to this comment | 06-25-13 6:14 PM
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132 is right.


Posted by: Moby Hick | Link to this comment | 06-25-13 6:14 PM
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I all endorse 132, with the caveat that when both sides were willing to function under the traditional rules of the Senate, things functioned a lot more smoothly. But of course that's a fundamentally unstable scenario, because eventually there's going to be enough incentive for one side to defect.


Posted by: snarkout | Link to this comment | 06-25-13 6:27 PM
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I don't actually know what I think about this. At the federal level the filibuster has clearly been disastrous. At the state level, you have a lot of states with really nasty majority parties in power essentially indefinitely, and I could see the case for having some way for the minority party to veto certain really egregious things. What's happening now is a good example. Whether there's some principled way to demarcate when and where a minority party should have such power, I have no idea.


Posted by: essear | Link to this comment | 06-25-13 6:27 PM
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136 - There is no such way. I mean, there are ways to try to make the filibuster meaningful without everything requiring a supermajority -- political scientist Jon Bernstein has laid out a few that he's thought of, such as the right of the Senate Majority Leader to introduce one bill a year that's not subject to the filibuster -- but pretty much anything can be gamed. In the particular case of Texas and SB5, because of the hard deadline and the late introduction of SB5 to the legislative calendar, Tom Harkin's suggestion of a decreasing number of votes to end a filibuster would come into play, but that's not generally applicable. And your (and my) "really egregious" is someone else's common sense governance.


Posted by: snarkout | Link to this comment | 06-25-13 6:33 PM
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Whether there's some principled way to demarcate when and where a minority party should have such power, I have no idea.

Those in power will always try to consolidate their power as much as possible, and elites will always try to pull up the ladder behind them. The fundamental principle of institutional design should be 2nd-order flexibility, enabling future insurgents to overcome today's winners. There is no good way to carve out exceptions to this by issue area, and trying to set aside "rights" as special just means handing them over to judges and lawyers, who, guess what, are on a whole a very conservative demographic (even before you take into account the selection effects of being successful enough to get picked for a constitutional court), because law is a fundamentally authoritarian institution: it's the institutionalized privileging of what was previously decided over what is all-things-considered the right thing.

And with that rant, I'm off for the night.


Posted by: x.trapnel | Link to this comment | 06-25-13 6:36 PM
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135: But of course that's a fundamentally unstable scenario, because eventually there's going to be enough incentive for one side to defect.

Goebbels is my go-to Godwin guy for this kind of thing.

When democracy granted democratic methods for us in the times of opposition, this was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of opposition.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 6:39 PM
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136:

Just get rid of the filibuster (or any similar ability of a minority to veto), but take seriously the text of the 14th Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If we took those words seriously, and enforced them legally, it would go a long way towards assuaging worries about "really egregious things" that "really nasty majority parties" could do. Like, e.g., SB5 in TX.

(You could still have bad governance, of course. That's what happens when you elect bad representatives.)


Posted by: urple | Link to this comment | 06-25-13 6:41 PM
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I think, given the fact that Perry can call a special session, we have to regard this as compelling though also horrifying political theater. For some reason I find I'm riveted and emotionally invested despite what I understand to be its inherent futility.


Posted by: Mister Smearcase | Link to this comment | 06-25-13 6:45 PM
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I read somewhere recently that there's no law so effective as a norm backed by popular approval. Filibusters are ok so long as there's social pressure to restrict them to really big deal stuff. SB5, Janice Rogers Brown, ACA (I'll grant).

We've become too polarized for this to work nationally, and maybe in the bigger states as well.


Posted by: CCarp | Link to this comment | 06-25-13 6:50 PM
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Until today I didn't even know there were state-level filibusters.


Posted by: teofilo | Link to this comment | 06-25-13 6:56 PM
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128: I can't remember the last time I felt so certain that an opinion was not just egregiously wrong but actually in bad faith.

Come on, the "fundamental principle of equal sovereignty" is sitting right there in the place of prominence where it always has in the Constitution. Their hands were tied.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 7:11 PM
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The fundamental principle of institutional design should be 2nd-order flexibility, enabling future insurgents to overcome today's winners.

Thank you for this, x. trapnel. I've been thinking a lot about where our Constitution went wrong, and this is the most clarifying thing I've come across. If only San/ford Levin/son could get his way, and we could rig the lots to get you to the constitutional convention!


Posted by: Mme. Merle | Link to this comment | 06-25-13 7:14 PM
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IA most certainly NAL but holy shit, the use of Northwest Austin (by my count it comes up 35 times in the opinion) feels vaguely like the Cheney/Bush admin quoting items from the NYTimes that they had planted there themselves (I realize this is different but it sure feels that way). I guess I should have paid more attention to it at the time (because of course that would have changed everything ...).


Posted by: JP Stormcrow | Link to this comment | 06-25-13 7:29 PM
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146: Yes, clearly it's all your fault.


Posted by: essear | Link to this comment | 06-25-13 7:34 PM
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141: For me it's not a "despite" but a "because of," I think, and that may be because I'm more invested in principled losers than you are, but in that case something elsehasto explain the opera stuff.


Posted by: Thorn | Link to this comment | 06-25-13 7:37 PM
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140: Maybe, but don't forget that for much of its history that language was read, by people closer in time to its enactment than we are, to mean that states couldn't do things like pass child labor laws or regulate working hours or otherwise interfere with "freedom of contract."

I like the law and I like judges. But Trapnel is fundamentally right that the law is basically conservative, and counting on our legal system to enact progressive change, in the long term, is basically a fool's errand. There were about 15 years in American history when that happened, due to a set of flukes mostly having to do with the courts getting fed up with the South, and even then the courts were a pretty lame force for progress.

144:yes.


Posted by: Robert Halford | Link to this comment | 06-25-13 7:46 PM
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Ugh, this is the third point of order for Wendy Davis.


Posted by: snarkout | Link to this comment | 06-25-13 7:51 PM
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They killed it!


Posted by: heebie-geebie | Link to this comment | 06-25-13 8:04 PM
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WHat the fuck.


Posted by: heebie-geebie | Link to this comment | 06-25-13 8:08 PM
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146: Yes, this piece gets at that particular bullshit aspect of all this, and where it may be heading.


Posted by: potchkeh | Link to this comment | 06-25-13 8:09 PM
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What a spectacle.


Posted by: Bave | Link to this comment | 06-25-13 8:10 PM
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Yes! Awesome Model U.N. move. A motion to appeal a point of order is debatable!


Posted by: Bave | Link to this comment | 06-25-13 8:11 PM
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Leticia van de Putte is noting her absence from the start of the session due to her father's funeral and requesting that the rules be restated for her.


Posted by: snarkout | Link to this comment | 06-25-13 8:14 PM
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I haven't been listening, just periodically looking at the liveblog. How did they manage to argue that her discussion of sonograms wasn't germane to the bill?


Posted by: essear | Link to this comment | 06-25-13 8:14 PM
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The chair (lieutenant gov.) just decided it.


Posted by: Bave | Link to this comment | 06-25-13 8:15 PM
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I can't tell if they are talking extra slow, or if that's just the speed they talk in Texas.


Posted by: Spike | Link to this comment | 06-25-13 8:18 PM
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Exactly. Plausible deniability.


Posted by: heebie-geebie | Link to this comment | 06-25-13 8:19 PM
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Dude I was just typing almost exactly 159. Although several people have told me that I talk really slowly, so maybe I sound the same way.


Posted by: essear | Link to this comment | 06-25-13 8:20 PM
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Someone whose name (Whitmire?) I didn't quite catch is reiterating Kirk Watson's complaint that Lt. Gov. Dewhurst didn't submit the third point of order to the Senate to be decided on. 99 minutes to go!


Posted by: snarkout | Link to this comment | 06-25-13 8:21 PM
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The Dems who are talking now are right, though, aren't they, that the lieutenant governor had promised to submit the question of ending the debate to the body, after a third warning?


Posted by: Bave | Link to this comment | 06-25-13 8:21 PM
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Everyone here thinks I talk super fast. I wonder if essear and I talk at the same speed.


Posted by: heebie-geebie | Link to this comment | 06-25-13 8:22 PM
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There's the motion to table. They seem to have just skipped Watson.


Posted by: snarkout | Link to this comment | 06-25-13 8:23 PM
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The question is being by Sen. West about whether Watson still has the floor. "I think if you go back and look at the transcript, Senator Watson was recognized."


Posted by: snarkout | Link to this comment | 06-25-13 8:24 PM
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Ugh, this is brutal, and I really have to go to sleep. And yes, Thorn, I love a principled loser, too.


Posted by: Mister Smearcase | Link to this comment | 06-25-13 8:24 PM
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Yeah, Watson said like five words of debate on his motion and got interrupted.


Posted by: Bave | Link to this comment | 06-25-13 8:24 PM
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They are worse at this than we were in Model U.N.


Posted by: Bave | Link to this comment | 06-25-13 8:25 PM
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Now I'm watching the video. This is awful.


Posted by: essear | Link to this comment | 06-25-13 8:25 PM
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I guess 161 made it clear I wasn't just reading the liveblog. Ignore me.


Posted by: essear | Link to this comment | 06-25-13 8:25 PM
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"... so we don't make a mockery of our rules." Heh.


Posted by: Bave | Link to this comment | 06-25-13 8:27 PM
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Who's the guy talking about how he didn't yield the floor?


Posted by: essear | Link to this comment | 06-25-13 8:29 PM
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Senator Watson. And he's right. He never yielded the floor.


Posted by: Bave | Link to this comment | 06-25-13 8:30 PM
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Kirk Watson of Austin.


Posted by: snarkout | Link to this comment | 06-25-13 8:30 PM
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Dewhurst is botching this.


Posted by: snarkout | Link to this comment | 06-25-13 8:31 PM
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Awful, or awesome?


Posted by: CharleyCarp | Link to this comment | 06-25-13 8:31 PM
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They should go back to that blonde lady. I liked her.


Posted by: Spike | Link to this comment | 06-25-13 8:32 PM
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She had such good posture.


Posted by: Bave | Link to this comment | 06-25-13 8:33 PM
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How much longer do they have to keep up this debate about who was recognized? 83 minutes?


Posted by: essear | Link to this comment | 06-25-13 8:37 PM
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Who's the woman next to Dewhurst who keeps talking inaudibly to him before he says things?


Posted by: essear | Link to this comment | 06-25-13 8:39 PM
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This is more stressful than that awful Frank Capra movie with the filibuster. This is like...reading-a-Crooked-Timber-thread levels of confusion and despair.


Posted by: Mister Smearcase | Link to this comment | 06-25-13 8:40 PM
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It's not Dewhurst at this point. It's a senator. Dewhurst stepped down when Watson appealed his decision on the third strike. The woman is, I think, the parliamentarian.


Posted by: Bave | Link to this comment | 06-25-13 8:41 PM
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Ah, okay. When will someone invent livestream technology that puts little floating names over all the people?


Posted by: essear | Link to this comment | 06-25-13 8:43 PM
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Ok, question... did I not hear the chair rule specifically that the filibuster would be out of order if the person holding the floor was ruled as off-topic three times? I don't remember what language, they used, but it was pretty similar to that.... I noticed because it specifically referred to three violations of the speaker not being germain. However, only two of the violations had to do with not being germain. The middle one was about the back brace.


Posted by: Spike | Link to this comment | 06-25-13 8:44 PM
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Yeah, it got confusing around back-brace time, and then I turned it off and watched The Good Wife. It is not clear what the chair said, or how many times he contradicted himself.


Posted by: Bave | Link to this comment | 06-25-13 8:47 PM
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I also think the inaudible-consulting woman is the parliamentarian. Who is the presiding officer at the moment? My understanding is that Dewhurst is a) crafty and b) legislatively gifted, so I was surprised that he would screw this up.


Posted by: snarkout | Link to this comment | 06-25-13 8:47 PM
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Does Wendy still have to stand and not lean on anything while these appeals are going on?


Posted by: Spike | Link to this comment | 06-25-13 8:52 PM
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They don't, like, put time back on the clock for these bits where the audio feed is off, do they? At midnight it's over, regardless?


Posted by: essear | Link to this comment | 06-25-13 8:52 PM
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I think Duncan is presiding right now, but I could be wrong.


Posted by: Bave | Link to this comment | 06-25-13 8:53 PM
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This is the best avante-garde TV since the Muppets first appeared on the Tonight Show.


Posted by: Bave | Link to this comment | 06-25-13 9:00 PM
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So what happens if somebody pulls the fire alarm?


Posted by: Spike | Link to this comment | 06-25-13 9:00 PM
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I think I'm going to watch some episodes of Parks and Recreation to counterbalance all the depressing news today.


Posted by: essear | Link to this comment | 06-25-13 9:05 PM
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I totally didn't follow what just happened.


Posted by: essear | Link to this comment | 06-25-13 9:09 PM
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193: I recommend cookies. (Don't tell Halford.)


Posted by: Von Wafer | Link to this comment | 06-25-13 9:10 PM
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Ah, this lady picked up on my 3 warnings to germainness complaint.


Posted by: Spike | Link to this comment | 06-25-13 9:10 PM
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The issue raised in 185 is now being addressed via a parliamentary inquiry. They might in fact run this out.


Posted by: snarkout | Link to this comment | 06-25-13 9:12 PM
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By, uh, Sen. Zaffirini. She is questioning whether or not Davis should still have the floor.


Posted by: snarkout | Link to this comment | 06-25-13 9:13 PM
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Damn, presiding-officer-dude is getting pissed off. And he's pretty clearly in the wrong.


Posted by: essear | Link to this comment | 06-25-13 9:15 PM
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Watson can talk this out for 44 minutes. Yes he can.


Posted by: Bave | Link to this comment | 06-25-13 9:16 PM
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I'm still confused by how they could just ignore Zaffirini's question like that. And also how they got to the point of the motion to table when Watson never yielded the floor.


Posted by: essear | Link to this comment | 06-25-13 9:17 PM
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Zaffirini's question might not be ripe yet, although it would be if this motion to table passes.


Posted by: Bave | Link to this comment | 06-25-13 9:19 PM
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201 - I believe she needs to lodge it as an appeal to the presiding officer rather than a parliamentary inquiry.


Posted by: snarkout | Link to this comment | 06-25-13 9:20 PM
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Ruling her not germain for talking about the sonogram bill was the biggest bullshit of all.


Posted by: Spike | Link to this comment | 06-25-13 9:26 PM
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Twitter notes the awesomeness of Sen. Watson's mansplaining about germaneness.


Posted by: Bave | Link to this comment | 06-25-13 9:30 PM
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This is unbelievably exciting.


Posted by: Bave | Link to this comment | 06-25-13 9:34 PM
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If you could call previous question with someone still on the floor, why didn't they do that 10 hours ago?


Posted by: Spike | Link to this comment | 06-25-13 9:35 PM
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201 -- I believe that the basis for allowing Estes to make his motion while Watson had the floor is that the majority wants to get this done.


Posted by: CharleyCarp | Link to this comment | 06-25-13 9:36 PM
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207: My impression is they're flouting the rules.


Posted by: essear | Link to this comment | 06-25-13 9:37 PM
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Yeah, these Texas Republicans don't really seem to care for the rules.


Posted by: Spike | Link to this comment | 06-25-13 9:40 PM
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At what point can they try the strategy of 202/203?


Posted by: essear | Link to this comment | 06-25-13 9:41 PM
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Now would be a good time.


Posted by: Bave | Link to this comment | 06-25-13 9:43 PM
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And it looks like Watson is doing that now.


Posted by: Bave | Link to this comment | 06-25-13 9:44 PM
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Or not.


Posted by: Bave | Link to this comment | 06-25-13 9:44 PM
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Oh snap.


Posted by: snarkout | Link to this comment | 06-25-13 9:45 PM
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This is so frustrating.


Posted by: essear | Link to this comment | 06-25-13 9:46 PM
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Zaffirini's argument that the filibuster wasn't over according to the actual rules seemed really solid, and it looks like everyone collectively decided to ignore it? Arg this is awful.


Posted by: essear | Link to this comment | 06-25-13 9:48 PM
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It's TEXAS RULES, essear.


Posted by: Bave | Link to this comment | 06-25-13 9:49 PM
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It's TEXAS RULES, essear.


Posted by: Bave | Link to this comment | 06-25-13 9:49 PM
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So is the vote actually going to be averted by the screaming gallery? I mean, I guess whatever works, but I feel like the Democratic Senators themselves had that other way of stalling they just kind of abandoned for no apparent reason.


Posted by: essear | Link to this comment | 06-25-13 9:55 PM
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If the screaming works, that's way better.


Posted by: Bave | Link to this comment | 06-25-13 9:55 PM
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I don't think the Democratic Senators were going to get anywhere with their stalling, given the state of the Texas Republican rulebook.


Posted by: Spike | Link to this comment | 06-25-13 9:58 PM
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If Perry calls another special session, and the filibuster had been ruled not to have ended, could it have continued in that session?


Posted by: essear | Link to this comment | 06-25-13 9:58 PM
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Wait, was that the actual vote? I don't know what "the previous question" was anymore.


Posted by: essear | Link to this comment | 06-25-13 9:59 PM
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I thought the vote was on calling the question, not on the bill itself. But I'm confused.


Posted by: Bave | Link to this comment | 06-25-13 10:00 PM
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It sounds like they're all yelling "Shame" now, which doesn't seem good.


Posted by: essear | Link to this comment | 06-25-13 10:01 PM
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I think it was, although I have no idea what is going on.


Posted by: Spike | Link to this comment | 06-25-13 10:01 PM
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Or maybe I'm mishearing? I don't know anymore.


Posted by: essear | Link to this comment | 06-25-13 10:02 PM
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Goddammit.


Posted by: redfoxtailshrub | Link to this comment | 06-25-13 10:03 PM
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Strike?


Posted by: Spike | Link to this comment | 06-25-13 10:03 PM
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I've been at a concert. What'd I miss?


Posted by: nosflow | Link to this comment | 06-25-13 10:05 PM
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I thought they voted on the bill. No idea why Karina Davis walked away from the podium as the sine die was called for.


Posted by: CharleyCarp | Link to this comment | 06-25-13 10:05 PM
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Nobody has any idea whats going on.


Posted by: Spike | Link to this comment | 06-25-13 10:05 PM
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I think they voted on the bill around the podium after midnight.


Posted by: Bave | Link to this comment | 06-25-13 10:06 PM
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No worries, new Texas districts and Voter ID law in wake of VRA ruling will yield a legislature much more sympathetic to abortion rights.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 10:07 PM
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Did they clear the gallery? It sounds like there's still screaming but it's outside our something.


Posted by: essear | Link to this comment | 06-25-13 10:08 PM
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or, not our


Posted by: essear | Link to this comment | 06-25-13 10:08 PM
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I thought they got it in. But you'd think someone would preside . . .


Posted by: CharleyCarp | Link to this comment | 06-25-13 10:08 PM
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None of that accidental % rodent parts in Texas; you get to see them throwing the rats right into the sausage grinder.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 10:12 PM
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234: If so, what fucking bullshit. Oh, wait, someone's asking for order.


Posted by: parsimon | Link to this comment | 06-25-13 10:12 PM
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"19 ayes and 10 nays, the previous question is adopted."

It is astonishing the extent to which they don't seem to know what to do with themselves now.


Posted by: parsimon | Link to this comment | 06-25-13 10:18 PM
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Who was arguing that Occupy had no real effects?

Occupy and similar movements over the last couple of years have made possible more and more direct challenges to tired, unjust structures of governance and control. Democracy overflows its carefully tended banks, again and again, and in overflowing erodes them. The water is rising.


Posted by: Bave | Link to this comment | 06-25-13 10:23 PM
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What are these people chanting in the distance?


Posted by: nosflow | Link to this comment | 06-25-13 10:23 PM
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I was, and I think what you're saying is pretty much wishful thinking and pretty much ridiculously wrong but WHaTEVEr. I just had more fun at a sporting event than I've had since 2010.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:25 PM
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Who was arguing that Occupy had no real effects?

Stupid thing still passed, didn't it?


Posted by: Spike | Link to this comment | 06-25-13 10:25 PM
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Stupid thing still passed, didn't it?

Yes, but the flagrant rule-breaking will rile people up, just as it did in Wisconsin, where the Democrats successfully unseated Walker.


Posted by: nosflow | Link to this comment | 06-25-13 10:27 PM
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The sporting event wasn't watching the filibuster, btw.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:27 PM
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Was it Battlebots?


Posted by: Spike | Link to this comment | 06-25-13 10:29 PM
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Organic bat wielding battlebots.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:31 PM
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Were there quadcopters?


Posted by: teofilo | Link to this comment | 06-25-13 10:33 PM
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Anyhow, we'll probably get moderately good and significant but not great news on gay rights, and maybe great news, from a Supreme Court that's otherwise pretty atrocious, so tomorrow should be a big day.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:33 PM
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Ugh. I should sleep. This was terrible.


Posted by: essear | Link to this comment | 06-25-13 10:33 PM
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Oh, is that freaking Crossfit competition still going on? Was just south of LA IIRC.


Posted by: JP Stormcrow | Link to this comment | 06-25-13 10:35 PM
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Yeah, I need to wind down and go to sleep. Night all.


Posted by: Bave | Link to this comment | 06-25-13 10:35 PM
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253: The Crossfit games are so, so, so lame. Sure, fine, the competitors are in great shape, but they still suck at half the events. Watching them try to do a cycling section is pure comedy.


Posted by: Josh | Link to this comment | 06-25-13 10:52 PM
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The Texas Tribune liveblog quotes some Senators questioning whether the vote was valid -- Dems didn't even know it was happening, some say; it was after midnight, others say. I have no idea how one appeals in a situation like that.

246: For future thought: Scott Walker and his agenda in Wisconsin are/were heavily backed by ALEC, which continues to work in the background with major funding (from major corporations along with the Koch brothers and numerous others). There's a recent Bill Moyers re-broadcast, with updates, on this. The sort of state-level activism they are succeeding at is not going to go away without a strong fight at the state level, plus exposure of ALEC.


Posted by: parsimon | Link to this comment | 06-25-13 10:52 PM
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Doesn't everybody who's likely to get upset about ALEC already know about it?


Posted by: Natilo Paennim | Link to this comment | 06-25-13 10:54 PM
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253 -- No, the sport of fitness doesn't return here until July, this was the sport of weird magnetic necklaces and chewing tobacco.

Anyhow, big day tomorrow you all. And one with a relatively low probability of horrible, a decent probability of reasonably very good, and a small but real probability of super great. And all from the same old people who have brought you such hits as "yes, mandatory arbitration means you have no meaningful rights against big business and, by the way, fuck you," "hey that line manager who grabbed your butt isn't formally in the HR department so no federal rights for you," and "somewhere, hidden deep beneath the tenth amendment, in a secret valley known only to a small all-male Jefferson Davis memoir reading book club, there lies the fundamental principle of equal state sovreignty."


Posted by: Robert Halford | Link to this comment | 06-25-13 10:54 PM
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Fucking e.


Posted by: Robert Halford | Link to this comment | 06-25-13 10:57 PM
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No, see, first you take the e, then comes the fucking.


Posted by: teofilo | Link to this comment | 06-25-13 11:06 PM
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257: No, I don't think so.

Paul Weyrich. He's the inspiration behind ALEC. I record this here now, actually, because I might forget otherwise. Google him and look at his "I don't want everybody to vote."

Goodnight, all! It's late.


Posted by: parsimon | Link to this comment | 06-25-13 11:10 PM
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Goodnight, all! It's late.

Maybe for you it is. The sun's still up here.


Posted by: teofilo | Link to this comment | 06-25-13 11:12 PM
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We just got home from the Capitol, still don't know if the damn thing passed. Dems say the vote was at 12:02 am, so it doesn't count, but there hadn't been a sine die motion, so nobody knows.


Posted by: Sir Kraab | Link to this comment | 06-25-13 11:17 PM
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Latest word seems to be that the vote was after midnight and therefore invalid.


Posted by: teofilo | Link to this comment | 06-26-13 12:52 AM
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Further confirmation.


Posted by: teofilo | Link to this comment | 06-26-13 1:11 AM
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Dewhurst blames "Occupy Wall Street tactics" for disrupting vote.


Posted by: teofilo | Link to this comment | 06-26-13 1:12 AM
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Sounds like Perry will likely call another special session, though.


Posted by: teofilo | Link to this comment | 06-26-13 1:13 AM
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38 and 40: I've read a couple of technical ERISA cases, at least one written by Thomas, that were obviously correct, that is to say consistent with the Supreme Court's precedent. There were just some judges in the Pacific Northwest who just fundamentally didn't understand basic aspects of the law. They needed to resolve the circuit split. Some of those judges may have been trying to help sympathetic individuals, e.g. a subrogation claim against an insurance company, but they were clearly wrong on the law.


Posted by: Bostoniangirl | Link to this comment | 06-26-13 3:48 AM
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Hot competition for best child. The 16 year old (who has finished school for the summer) stayed up all night watching the Texas Senate and tumblring constantly. Is it daft (or too earnest) that her comment of "man if i were in that gallery i'd be chanting my fucking heart out for her" brought tears to my eyes?

And then the 15 year old got up for school just before 1am Texas time and her first words to me were complaining about them voting after midnight.


Posted by: asilon | Link to this comment | 06-26-13 3:58 AM
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269: xoxoxox!


Posted by: oudemia | Link to this comment | 06-26-13 3:58 AM
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146, 153: [re: timebombs and use of Northwest Austin in Shelby opinion]

So should the "liberal" bloc have concurred and not joined in the opinion what with its longish discussion of how a constitutional challenge might have been raised when it was in the end not germane to the finding. Or would that not really have been appropriate in that instance. (And I have no illusion that it would have changed this ruling in this case, but I would think it would have not given it as much cover, and/or weakened it as precedent somewhat in the future.)


Posted by: JP Stormcrow | Link to this comment | 06-26-13 4:30 AM
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Initially, Republicans insisted they had started voting before the midnight deadline and passed the bill that Democrats spent much of Tuesday filibustering. But after official computer records and printouts of the voting record showed the vote took place on Wednesday, and then were changed to read Tuesday, senators convened for a private meeting.

Something something procedural liberalism. Anyway, good on the Dems in the Texas Senate, even if this only lasts another few weeks.


Posted by: snarkout | Link to this comment | 06-26-13 4:51 AM
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While it's true that Perry can call special sessions over and over, there is a real political cost to re-convening the legislature. Normal schedule is that the legislature has sessions every two years. Legislators are not well-paid, and they typically have other jobs when not in session. Also, it gives the general impression that the government is dysfunctional and incompetent, which hurts approval for the majority party (plus, newspapers cover that added taxpayer cost per day). That said, my guess is that Perry doesn't care enough about this bill to call another special session (I think it's more Dewhurt's thing), although I wouldn't be surprised to be wrong.


Posted by: ydnew | Link to this comment | 06-26-13 4:58 AM
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270 seconded!!


Posted by: Sir Kraab | Link to this comment | 06-26-13 5:21 AM
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I think the pressure on Perry to call another special will be too strong to resist, especially since he has the cover of the two other pending bills. The R's can ram all that through in a couple of days, which will minimize the costs. Of course I hope my amateur analysis is wrong.


Posted by: Sir Kraab | Link to this comment | 06-26-13 5:26 AM
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I'm genuinely feeling touched that there's such widespread attention and support coming from people outside of Texas.


Posted by: heebie-geebie | Link to this comment | 06-26-13 5:26 AM
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276 is also seconded.


Posted by: Sir Kraab | Link to this comment | 06-26-13 5:27 AM
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273: Normal schedule is that the legislature has sessions every two years. Legislators are not well-paid, and they typically have other jobs when not in session.

I generally viewed this as a feature when I lived in Texas in contrast with an over-governed place like Pennsylvania (speaking of political mechanics not outcomes). I also assume this is why the procedural knowledge and techniques are less polished in general per the commentary in this thread.


Posted by: JP Stormcrow | Link to this comment | 06-26-13 5:28 AM
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I generally think of the every-two-years thing as a good thing, too: call the legislators together and they'll start being destructive. Also it saved our asses in the recession: the budget was set pre-crash, and couldn't be touched and cut for long after most other states were crashing their budgets into the wall.


Posted by: heebie-geebie | Link to this comment | 06-26-13 5:30 AM
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But in general, filibusters are bad, and they've certainly been a disaster at the federal level.

They've been a disaster because they're not real filibusters, they're threats of filibusters that everyone has agreed to pretend are the real thing.


Posted by: Sir Kraab | Link to this comment | 06-26-13 5:31 AM
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271: It's not that this sort of thinking is wrong, exactly, but it's the kind of thinking too hard about it that seems to me like banging your head against the wall. If they have the votes, they'll do what they'll do, and they'll find cover for it somehow. Joining this opinion or concurring won't make any difference at all.


Posted by: LizardBreath | Link to this comment | 06-26-13 5:38 AM
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Glad to see I was wrong that they got the vote in before the clock ticked down. It'll be interesting to see how this plays out in Texas opinion.


Posted by: CharleyCarp | Link to this comment | 06-26-13 5:54 AM
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The VRA ruling in the context of the history of the VRA in New England states, the details of which I was not aware. Yet another egregiosity flag for me, especially given that the Northwest Austin opinion "compel[led] a broader reading of the bailout provision."

Oh, you didn't know the Act affected New England? Why it sure did. Past tense--because if you can go a stretch of 10 years without, you know, trying to screw over any minorities, it turns out that you get out of the whole Section 4/Section 5 thing pretty easily.
(Sorry, I seem to have a need to flog this horse a bit more.)


Posted by: JP Stormcrow | Link to this comment | 06-26-13 5:56 AM
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Not to mention the egregiosity of bad tag closing.


Posted by: JP Stormcrow | Link to this comment | 06-26-13 6:01 AM
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No one can close tags and Australia has abandoned its eminently sensible policy of letting redheads rule.


Posted by: Moby Hick | Link to this comment | 06-26-13 6:04 AM
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281: Sure, as I note in my parenthetical; it would not change this result. If relevant* at all, only for the loooong game.


Posted by: JP Stormcrow | Link to this comment | 06-26-13 6:10 AM
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I could be wrong, and lots of people disagree with me or they wouldn't bother writing articles about it. But I don't think it makes any difference for the long game either -- it all comes down to counting votes, and there's always going to be a sufficient rationale for judges to do what they want to do.


Posted by: LizardBreath | Link to this comment | 06-26-13 6:12 AM
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Huh. It seemed pretty clear when I went to bed last night that the TX Republicans were going to ignore the rules and say they had passed the bill. What made them back down?


Posted by: essear | Link to this comment | 06-26-13 6:12 AM
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Timestamps.


Posted by: CharleyCarp | Link to this comment | 06-26-13 6:16 AM
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Like the sands of time through the hour glass, so are the votes of legislature.


Posted by: Moby Hick | Link to this comment | 06-26-13 6:18 AM
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*And I guess I believe that if the loooong game is relevant for any institution it would be the Supreme Court. But utter hackitude trumps all.


Posted by: JP Stormcrow | Link to this comment | 06-26-13 6:25 AM
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DOMA Section 3 struck down on an equal protection holding apparently. Wow.


Posted by: potchkeh | Link to this comment | 06-26-13 7:02 AM
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Amazing.


Posted by: Bave | Link to this comment | 06-26-13 7:03 AM
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It's good that even a Supreme Court as awful as this one can get some things right.


Posted by: essear | Link to this comment | 06-26-13 7:05 AM
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There's some very odd stuff at the end of Kennedy's decision to avoid creating a constitutional right to marriage equality. The Prop 8 will not go all the way.


Posted by: Bave | Link to this comment | 06-26-13 7:08 AM
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Roberts dissents on the grounds of lack of jurisdiction, which makes a no-standing outcome in Prop 8 all the more likely I guess.


Posted by: potchkeh | Link to this comment | 06-26-13 7:09 AM
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Scalia now complaining about judicial activism.


Posted by: Bave | Link to this comment | 06-26-13 7:11 AM
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Last page of Roberts dissent says they're dismissing Prop 8 case on standing.


Posted by: Bave | Link to this comment | 06-26-13 7:13 AM
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Ah, actually the Roberts DOMA dissent actually says that they held there was no jurisdiction in Perry.


Posted by: potchkeh | Link to this comment | 06-26-13 7:13 AM
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My general take had been that if we were going to get one case decided right, DOMA was more important than Prop 8. Does that seem right to others or should I shut up with my past-contrary-to-facts and go back to gloating and being quietly giddy and also working?


Posted by: Thorn | Link to this comment | 06-26-13 7:13 AM
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I always thought the phrase "equal protection" was associated with the Fourteenth Amendment, but they're linking it to the Fifth?


Posted by: essear | Link to this comment | 06-26-13 7:14 AM
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So I guess the question is what, if anything, they say about what that means for Prop 8 itself; but no chance I guess that anything in Perry will reach beyond Prop 8.


Posted by: potchkeh | Link to this comment | 06-26-13 7:14 AM
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I mean, we established yesterday that the Fifteenth doesn't count, so maybe the Supreme Court is working from a pre-1865 version of the Constitution.


Posted by: essear | Link to this comment | 06-26-13 7:15 AM
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301: 14th is about states, 5th is about federal government.


Posted by: potchkeh | Link to this comment | 06-26-13 7:16 AM
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Huh. It seemed pretty clear when I went to bed last night that the TX Republicans were going to ignore the rules and say they had passed the bill. What made them back down?

If they actually pass a law, it does damage their future ability to demagogue about how they really really want to pass a law. Maybe they are more comfortable with the situation where they can blame liberal mobocracy for blocking the will of the people.


Posted by: Cryptic ned | Link to this comment | 06-26-13 7:16 AM
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And the Fifth, although it doesn't contain the words "equal protection," has been held to basically apply equal protection requirement to the federal government. This is sometimes known as "reverse incorporation" and it's a bit weird.


Posted by: Bave | Link to this comment | 06-26-13 7:17 AM
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And further to 304, the 5th amendment doesn't have an express equal protection provision, but a while back the SCt decided that the due process guarantee effectively amounted to an equal protection guarantee.


Posted by: potchkeh | Link to this comment | 06-26-13 7:18 AM
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Is it the "nor be deprived of life, liberty, or property, without due process of law" bit?


Posted by: essear | Link to this comment | 06-26-13 7:18 AM
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308 before seeing 306/7. Thanks.


Posted by: essear | Link to this comment | 06-26-13 7:18 AM
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Wow, "bare desire to harm." Strong stuff.


Posted by: widget | Link to this comment | 06-26-13 7:18 AM
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Go fuck yourself, DOMA! What a week.


Posted by: heebie-geebie | Link to this comment | 06-26-13 7:20 AM
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My general take had been that if we were going to get one case decided right, DOMA was more important than Prop 8.

We haven't actually heard, right?


Posted by: heebie-geebie | Link to this comment | 06-26-13 7:21 AM
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By the way, I'm not actually planning to do a new SC thread. This one's fine and still near the top.


Posted by: heebie-geebie | Link to this comment | 06-26-13 7:22 AM
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300: I think Perry had the potential to be far more significant--it was an opportunity to hold that SSM bans are not consistent with equal protection, whereas Windsor didn't really queue up that issue--but it was always more likely that this Court would do something good on Windsor than on Perry.


Posted by: potchkeh | Link to this comment | 06-26-13 7:23 AM
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At SCOTUSBlog they're saying that the DOMA decisions have language that imply that Prop 8 will be dismissed on standing.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-26-13 7:23 AM
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My general take had been that if we were going to get one case decided right, DOMA was more important than Prop 8.

Perry was always a long shot; it's a relief to come out of it with no long-term damage. Windsor (and its sister case in the 1st Circuit) was always on more solid footing. Looks like a good result that can possibly blossom into actual heightened scrutiny for LGBT stuff if the court decides to go that way later.


Posted by: Bave | Link to this comment | 06-26-13 7:25 AM
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315: Yes, Roberts says outright, with a citation to the still-unreleased Perry opinion, that they held there was no jurisdiction in Perry. Which presumably means the Ninth Circuit opinion is vacated. Curious to see if they say anything about the impact of the district court injunction (which should remain standing).


Posted by: potchkeh | Link to this comment | 06-26-13 7:25 AM
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314: Yes, I'm sure part of it is that in the case of a split I was fairly secure it would go the way it has. This is just such a relief in terms of immigration and so on.


Posted by: Thorn | Link to this comment | 06-26-13 7:26 AM
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While we wait on Prop. 8, I disagree strongly with 280. They're a super-disaster because they're so easy to sustain in the Senate, but you don't think Ted Cruz could get people whipped up and excited to support him with an old-fashioned filibuster protecting America from Obama's godless Islamic Communism? You don't think the GOP Senators would be quite happy to grind the entire business of governance to a halt? I'm glad things played out that way in Texas, but really, barring violations of people's rights (and are people just pretending that these things aren't violations of Planned Parenthood v. Casey at this point?) supermajority requirements for regular business in a system already well-equipped with veto points are a bad idea.


Posted by: snarkout | Link to this comment | 06-26-13 7:27 AM
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Jesus christ, 5-4 in Perry with Sotomayor in the majority, Kennedy dissenting.


Posted by: potchkeh | Link to this comment | 06-26-13 7:27 AM
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Roberts, Scalia, Ginsburg, Breyer, Kagan together on Perry. Standing doctrine is such a mess/joke.


Posted by: Bave | Link to this comment | 06-26-13 7:28 AM
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321: that's Sekhar, isn't it?


Posted by: potchkeh | Link to this comment | 06-26-13 7:29 AM
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Oops. Never mind my 321.


Posted by: Bave | Link to this comment | 06-26-13 7:30 AM
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Except standing doctrine remains a mess and a joke.


Posted by: Bave | Link to this comment | 06-26-13 7:31 AM
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You may be right, I'm confused at this point.


Posted by: potchkeh | Link to this comment | 06-26-13 7:31 AM
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Scalia now complaining about judicial activism.


Posted by: nosflow | Link to this comment | 06-26-13 7:31 AM
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Yeah, 321 is right on the lineup.


Posted by: potchkeh | Link to this comment | 06-26-13 7:31 AM
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Huh, 321 was right.


Posted by: Bave | Link to this comment | 06-26-13 7:32 AM
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I guess reaching the merits would have been a disaster so most of the libs agreed to torpedo it with Roberts? Can't wait to see how Scalia dissents on standing here after dissenting on jurisdiction in Windsor.


Posted by: potchkeh | Link to this comment | 06-26-13 7:33 AM
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Scalia's in the majority in Perry.


Posted by: widget | Link to this comment | 06-26-13 7:35 AM
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Oh, right, thanks; just ignore me, I'm clearly very confused this morning.


Posted by: potchkeh | Link to this comment | 06-26-13 7:36 AM
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What a weird lineup.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-26-13 7:37 AM
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Can't wait to see how Scalia dissents on standing here after dissenting on jurisdiction in Windsor.

Regardless of 330, in the world in which the presumption of this question were fulfilled, I think the answer would be "without the slightest bit of shame".


Posted by: nosflow | Link to this comment | 06-26-13 7:40 AM
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I wonder what Kennedy wanted to decide. It really seemed like he was looking for a way out of deciding the case, so it's a bit weird to me that he not only didn't agree with the majority but actually wrote the dissent. The lineup of the majority suggests that whatever opinion Kennedy wanted to write wasn't all that appealing to either the conservatives or the liberals. Because I can't seriously believe that their opinions on standing are strong enough that they couldn't find a way to get to the merits if they had 5 votes for a decision they wanted.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-26-13 7:41 AM
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Hot competition for best child. The 16 year old (who has finished school for the summer) stayed up all night watching the Texas Senate and tumblring constantly. Is it daft (or too earnest) that her comment of "man if i were in that gallery i'd be chanting my fucking heart out for her" brought tears to my eyes?

And then the 15 year old got up for school just before 1am Texas time and her first words to me were complaining about them voting after midnight.

They will be ready for university soon. Many excellent colleges and professors in Texas. And it is an exotic place.


Posted by: bill | Link to this comment | 06-26-13 7:46 AM
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I should have been on top of figuring out consequences here, but if DOMA's gone, does that automagically fix immigration for same-sex married couples? (Or, even if not automagically, does it allow a purely regulatory fix without Congress's help?)


Posted by: LizardBreath | Link to this comment | 06-26-13 7:47 AM
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This makes no sense. The Justices must know how Kennedy was going to vote on the merits of Prop 8, because he would have announced that at Conference. If he was going to vote to strike it down, why on earth is Breyer voting against standing in Perry? (Don't tell me it's because of his principled views on the subject.) If Kennedy was going to vote to uphold Prop 8, why is Scalia making ominous predictions about the other shoe dropping in Windsor? I can't figure it.


Posted by: widget | Link to this comment | 06-26-13 7:49 AM
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According to Dan Savage, yes.


Posted by: heebie-geebie | Link to this comment | 06-26-13 7:49 AM
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to 336.


Posted by: heebie-geebie | Link to this comment | 06-26-13 7:50 AM
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So same-sex marriages are now so important that if a state recognizes them, Congress can't tell federal agencies not to recognize them; but they're not so important that the federal government just has to recognize them no matter what. Bizarre.


Posted by: Bave | Link to this comment | 06-26-13 7:52 AM
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Amazing profusion of happiness on Twitter. I think most of these people don't have short memories, they just had no idea that there was any Supreme Court news yesterday.


Posted by: Cryptic ned | Link to this comment | 06-26-13 7:57 AM
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334, 337: Yeah, this is very puzzling. Given where he was pointing in Windsor I wouldn't have figured Kennedy would have done anything terrible on the merits in Perry (maybe a limited positive holding like the 9th Circuit's?), but with Kennedy who knows. Not beyond the realm of possibility that he thought it would be a step too far at this point to limit what state governments can do on SSM and threatened to join a reversal if they reached the merits.


Posted by: potchkeh | Link to this comment | 06-26-13 7:57 AM
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336: I think so. Section 3 of DOMA says all federal laws and regs must interpret "marriage" to be opposite-sex-only. Windsor says that's not permissible, because mumble mumble. So it looks like if you're lawfully married in some state, you're married for all federal purposes now. (Not sure about couples married in foreign countries.)


Posted by: Bave | Link to this comment | 06-26-13 8:00 AM
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This must be known for other ways in which state marriage laws differ, but if a same-sex couple gets married in one state and then moves to another one do they cease to be married federally?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-26-13 8:04 AM
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OK, wild speculation here. Maybe Kennedy voted to DIG instead of dismissing for lack of standing -- that would keep his cards close to his chest. He did seem to suggest that route at argument. But there might not have been 5 votes to DIG. Frankly, it would have been pretty eyebrow-raising at this point. Then, when it became clear there was a majority to dismiss for lack of standing, he took the opportunity to dissent from that without ever having to give a view (even internally) on the merits.


Posted by: widget | Link to this comment | 06-26-13 8:06 AM
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344: No. But the second state may refuse to recognize the marriage on public-policy grounds, and also based on Section 2 of DOMA, which was not overturned today.


Posted by: Bave | Link to this comment | 06-26-13 8:09 AM
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344: No -- this case, after all, is a Canadian marriage that moved to NY. NY recognizes it, but it's not an originally NY marriage.

I'm thinking (and I really haven't been keeping up with strategy here) that the next test case that makes sense is a full-faith-and-credit case: take a couple married in Iowa who moved to Alabama and isn't being treated as married under Alabama state law. It seems much more plausible to me that the SC is going to find an equal protection requirement that all states recognize same-sex marriages performed where valid than that the SC is going to require that all states allow same-sex marriages under the law of that state.

But the people who are actually working on legal strategy for this are either way ahead of me or probably have good reasons for disagreeing.


Posted by: LizardBreath | Link to this comment | 06-26-13 8:10 AM
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345: If I were going to make a wild-ass-guess, it's that 334 is right, and that Kennedy had some batshit idea for splitting the baby that no one else on either side liked.

(I will say that while standing doctrine is generally an incoherent mess, that finding a lack of standing in Perry makes more sense to me than the alternative.)


Posted by: LizardBreath | Link to this comment | 06-26-13 8:12 AM
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347: I'd choose somewhere like Ohio rather than Alabama, but yeah. It would also make sense now to let married couples (even in states where the marriage isn't recognized) go after the states that don't allow two same-sex couples to adopt because marriage.


Posted by: Thorn | Link to this comment | 06-26-13 8:14 AM
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347: But isn't the fact that NY recognized it and that they live in NY relevant to the decision here?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-26-13 8:15 AM
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I'd choose somewhere like Ohio rather than Alabama, but yeah.

Who would the defendant be exactly? Best to pick a state which doesn't yet allow same-sex marriage, but whose statewide politicians have no particular interest in defending a ban on it?


Posted by: Cryptic ned | Link to this comment | 06-26-13 8:16 AM
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347: I think most of the people working on the legal strategy don't think there are five votes on the court for a federal right to marriage equality, no matter how it's approached constitutionally. Ginsburg has pretty clearly telegraphed that she would not vote that way at the moment -- she buys into backlash theory about the court and social issues, and she thinks it's too soon on marriage.


Posted by: Bave | Link to this comment | 06-26-13 8:17 AM
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348.last is right, and I suppose it's possible that Ginsburg/Breyer/Kagan did have strong feelings on the standing issue--and the mischief it might invite if the Prop 8 clowns had standing here--and figured the merits would be presented again soon enough where standing wasn't an issue (e.g. in Sevick). Especially if Kennedy wasn't going to embrace a holding that would have been broad enough to reach beyond the California scenario, that wouldn't be crazy.


Posted by: potchkeh | Link to this comment | 06-26-13 8:18 AM
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Are there any states that never got around to passing an explicit ban on SSM?


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:19 AM
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And if so, would this mean that marriage equality is the new default in these states?


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:20 AM
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354: Yes. 355: No.


Posted by: Bave | Link to this comment | 06-26-13 8:20 AM
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Further to 355: However, the DOMA ruling may provide more ammunition to people in non-equality states challenging the non-equality on federal constitutional (14th Am) grounds.


Posted by: Bave | Link to this comment | 06-26-13 8:23 AM
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What does this mean about how states recognize each other's marriages? Would the states from 354 automatically have to recognize ssm from elsewhere, but Texas wouldn't? Does Texas have to?


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:24 AM
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Ginsburg has pretty clearly telegraphed that she would not vote that way at the moment -- she buys into backlash theory about the court and social issues, and she thinks it's too soon on marriage.

Huh. I would think that 'she thinks it's too soon' is the sort of 'too soon' that would be very likely to change in the years it'd take to get from the trial court level up to the SC. (Heck, much as I love her generally, counting too heavily on Ginsberg participating in the decision of any case that's not yet in the courts seems like not a safe bet -- she's an eighty-year-old cancer survivor.)


Posted by: LizardBreath | Link to this comment | 06-26-13 8:24 AM
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Google is sweet -- they've got a rainbow easter-egg if you google 'gay marriage' or 'marriage equality'.


Posted by: LizardBreath | Link to this comment | 06-26-13 8:27 AM
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358: So the Constitution says that states have to give "full faith and credit" to public/legal acts in other states. This would suggest that one state has to recognize a marriage solemnized in another state. But there is a longstanding exception to the Full Faith & Credit Clause, so states don't have to recognize contracts that are against their own public policy. So before Loving v. Virginia, the best-named case of all time, states that didn't allow interracial marriages didn't have to recognize such marriages performed in other states.

Without a ruling from the Supreme Court that the U.S. constitution requires recognition of same-sex marriages, states are free to recognize or not. In states where the law is quiet on the issue -- they haven't explicitly said they don't recognize SSMs -- the default is not to recognize, just because that's how things have been going. But that's a matter of state law, and could be changed in any of those states either by a new state statute or by the right kind of state court ruling. The technical details of why it's the default, and what it would take to change the default, are probably somewhat different in each state.


Posted by: Bave | Link to this comment | 06-26-13 8:32 AM
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This image was useful to me with states without DOMAs of their own marked in gray. Of the gray states, Washington, Iowa, Maryland, New York, Vermont, New Hampshire, Connecticut, Massachusetts, Maine, plus DC allow same-sex marriages with Delaware, Minnesota, and Rhode Island all allowing marriages starting some time this year.

It's going to be really complicated in states where there are civil unions and that will be messy. It's sort of funny but not funny that my married friends in SSM states will go from having to file as single on their federal tax returns/married on state returns while my married friends in DOMA states will now file as married for federal but not for state (as I've been told, anyway).

I believe at this point Mississippi is the only state that specifically disallows married gay couples from adopting, which seems weird.


Posted by: Thorn | Link to this comment | 06-26-13 8:33 AM
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Thanks. That's complicated.


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:34 AM
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Sorry, the reason I'm harping on adoption/parenting is that the question of giving marriage rights because it matters to the children of same-sex couples seemed compelling to several of the judges and all my parenting friends keep quoting Kennedy: "The differentiation [between heterosexual and homosexual couples] demeans the [homosexual] couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."


Posted by: Thorn | Link to this comment | 06-26-13 8:38 AM
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It's been pretty offensive, but at least you apologized.


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:40 AM
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365 made my day even more than the DOMA ruling, I think.


Posted by: Thorn | Link to this comment | 06-26-13 8:41 AM
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Good to see Scalia was right about the consequences of Lawrence.


Posted by: k-sky | Link to this comment | 06-26-13 8:41 AM
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Joining this opinion or concurring won't make any difference at all.

Generally I agree with you, but if I were a liberal member of the Supreme Court, at this point I think I would be very reluctant to ever again join an opinion with the Chief Justice. I'd be inclined to always just write a concurrence. It may have no effect--if the votes are there, they're there--but I wouldn't want to be used as a pawn in these games.


Posted by: urple | Link to this comment | 06-26-13 8:45 AM
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i just dont get why they so get all earnest discussing gay marriage or adoption, who sleeps with who and how one decides about one's body shouldnt be anyone's concern imo, be that the state or court or whoever else


Posted by: read | Link to this comment | 06-26-13 8:46 AM
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I became FB friends with Scott Lemieux recently, and just saw Dahlia Lithwick comment on his status, and had a celebrity moment of faintness.


Posted by: heebie-geebie | Link to this comment | 06-26-13 8:46 AM
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abortion, not adoption


Posted by: read | Link to this comment | 06-26-13 8:59 AM
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I'm going to dissent, again: I don't think standing is always bullshit, and think that the decision in Hollingsworth is correct.

Obviously, the right place to have the follow-on case in in the Ninth Circuit, which has all that dicta on prop 8.


Posted by: CharleyCarp | Link to this comment | 06-26-13 9:12 AM
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I was leaning in the direction of 372.1 but I've now read Kennedy's Perry dissent and I'm wavering, it's pretty good. Re: 372.2, as I mentioned above I think Sevick in Nevada may be the case to watch.


Posted by: potchkeh | Link to this comment | 06-26-13 9:22 AM
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I agree that standing is not always bullshit. Hollingsworth is one plausible, non-bullshit answer to the standing question, but not the only one available.


Posted by: Bave | Link to this comment | 06-26-13 9:22 AM
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I don't think standing is always bullshit but, as noted above, I am skeptical that Breyer in particular had any principled objection that would have prevented him from finding standing here had he been inclined to do so. (To be clear, I'm not saying anything so categorical as that he doesn't have principles; only that this isn't one of them.) Same, with lesser force, for Ginsburg and Kagan. Roberts and Scalia may well have found standing genuinely hard to stomach on these facts.


Posted by: widget | Link to this comment | 06-26-13 9:32 AM
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To be clear, I'm not saying anything so categorical as that he doesn't have principles; only that this isn't one of them.

I don't disagree with this, but it cracked me up. ("There may be a principle around here somewhere, but this isn't it.")


Posted by: LizardBreath | Link to this comment | 06-26-13 9:37 AM
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Charley, what do you think of the majority's finding standing in Windsor?


Posted by: Bave | Link to this comment | 06-26-13 9:39 AM
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Haven't read it yet -- probably later today.


Posted by: CharleyCarp | Link to this comment | 06-26-13 9:41 AM
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Am I wrong to worry that Perry opens the door to all kinds of mischief by ideologically motivated state governments? If you control the state government, and there's a state law on the books you don't like, just instigate a challenge before a friendly federal district court judge, and decline to defend the law. Once you get the ruling you like, no private party has standing to appeal. Maybe this is only relevant to states like California with initiatives that override the Legislature (because if you control all the levers of state government, the simpler expedient would be to repeal the law legislatively).


Posted by: knecht ruprecht | Link to this comment | 06-26-13 9:48 AM
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because if you control all the levers of state government, the simpler expedient would be to repeal the law legislatively

This, and getting a federal judge to strike down a state law isn't trivial. It's not impossible for this to happen, but it's not worrying me as something that's likely to happen much.


Posted by: LizardBreath | Link to this comment | 06-26-13 9:51 AM
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379 -- I think you're right about that.

I also don't see how the differing standing decisions in the two cases can be reasonably reconciled. In my view, the Perry intervenors had a much better, if not totally unproblematic, argument for standing than the congressional representatives did in Windsor.


Posted by: Robert Halford | Link to this comment | 06-26-13 9:55 AM
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380 -- I disagree. In many states, collusion between a right wing executive and a right wing federal judiciary eager to strike down state laws is very easy to imagine. For example, in the affirmative action context.


Posted by: Robert Halford | Link to this comment | 06-26-13 9:57 AM
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It's a lot easier to just turn a blind eye to a law you don't like.


Posted by: CharleyCarp | Link to this comment | 06-26-13 9:57 AM
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383: Even when the law is "We hereby entrench the status quo and declare that this particular change in the law will not be made"?


Posted by: Cryptic ned | Link to this comment | 06-26-13 10:01 AM
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As a general principle, I think it's more than a little bullshit to have a situation where there's the standing for a trial court decision but nobody can appeal.


Posted by: x.trapnel | Link to this comment | 06-26-13 10:02 AM
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I also don't think it's an easy question, but the standing decision in Hollongsworth was wrong. As a matter of California law as authoritatively interpreted by the California courts, officially designated initiative proponents have the right to intervene on behalf of state laws to defend those state laws when the state executive disagrees. That's a definitive construction of who has what authority to defend a ballot measure. The US Supreme Court just sort of waved off that finding and said that there had to be a more traditional agency relationship, but it's not really clear what business they have telling California who is and who is not officially authorized to defend a proposition of California law.


Posted by: Robert Halford | Link to this comment | 06-26-13 10:03 AM
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379 seems right and worrisome.


Posted by: x.trapnel | Link to this comment | 06-26-13 10:03 AM
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I think 379 is correct but it's not a new problem from Perry -- this possibility has been around for a while. It doesn't necessarily need to be striking down a statute, either. A state executive engaged in friendly or quasi-friendly institutional reform litigation can have just as much (or more) wiggle room in a situation where the question is compliance with an ambiguous federal statutory or regulatory mandate. The state executive negotiates a consent decree with the plaintiffs that adopts an aggressive interpretation of federal law, and the consent decree not only binds that current executive, but also its successors and the state legislature as well. There was some good discussion of this in the briefing on Frew v. Hawkins, 530 U.S. 431 (2003), I think.


Posted by: widget | Link to this comment | 06-26-13 10:04 AM
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For example, in the affirmative action context.

I was thinking primarily environmental and consumer protection laws (anywhere that a metastasized Takings Clause or First Amendment rights for corporations, respectively, could plausibly used to strike down liberal legislation). As Halford implies, there are a shitload of right-wing nutcases on the district courts.


Posted by: knecht ruprecht | Link to this comment | 06-26-13 10:05 AM
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388- I agree that it's not a new issue, but imposing strict federal-law requirements that limit the ability of people outside the government to defend state statutes when the state executive refuses to do so will make this a more attractive option for state executives, so I do think there's a real chance that Perry will exacerbate the problem, if we think it is a problem.


Posted by: Robert Halford | Link to this comment | 06-26-13 10:09 AM
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OK, I guess I'm not that troubled by the standing portion of Windsor. The distinction between Art III standing for controversies and prudential standing for 'real' controversies is a cute idea. And maybe it'll lead to more standing -- which is, I think, generally a good thing. (Unless someone is suing a client, obvsly).


Posted by: CharleyCarp | Link to this comment | 06-26-13 10:13 AM
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389 -- In the end, state politics matters. A whole lot.


Posted by: CharleyCarp | Link to this comment | 06-26-13 10:20 AM
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Suggested headline ia Charles Pierce (who attributes it to someone else):

"The United States Supreme Court Tuesday overturned a critical portion of the landmark Voting Rights Act by a vote of four-and-three-fifths to four."


Posted by: JP Stormcrow | Link to this comment | 06-26-13 10:23 AM
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I read it fast, but is it fair to say that the position of the United States in Windsor was 'we think you're right, but we're not going to give you the money until we have exhausted all the appeals.'


Posted by: CharleyCarp | Link to this comment | 06-26-13 10:24 AM
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I just don't see how you can reasonably find standing in Windsor but not in Perry, and that there should have been standing in both cases. I guess it's me, Sotomayor and Alito with this view.


Posted by: Robert Halford | Link to this comment | 06-26-13 10:25 AM
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Anyhow, I guess I should put down the technical legal mumbo jumbo for a day and just be happy. For example, it seems like a good friend will be able to return to the US.


Posted by: Robert Halford | Link to this comment | 06-26-13 10:32 AM
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394: That's my understanding.

The discussion of the quality of the amicus from BLAG in the majority opinion in Windsor is a bit amusing. ("Well, we're not saying we'd do this in just any case. But if Congress goes and hires Paul Clement, that's a different story.")


Posted by: widget | Link to this comment | 06-26-13 10:45 AM
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397 -- that does seem to be the operating principle.


Posted by: Robert Halford | Link to this comment | 06-26-13 11:00 AM
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it seems like a good friend will be able to return to the US

This decision sets up a whole subgenre of romcoms about gay green card weddings that lead to true love.


Posted by: | Link to this comment | 06-26-13 11:08 AM
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399 was I.


Posted by: Sir Kraab | Link to this comment | 06-26-13 11:11 AM
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Not entirely OT, but I am suddenly really sad for Lee's cousin who died 6 weeks ago, before seeing the high court recognize couples like him and his partner of 30+ years and husband-unrecognized-by-their-state of 5 or so.


Posted by: Thorn | Link to this comment | 06-26-13 11:44 AM
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It's funny. As a piece of legal writing, based on professional standards, the sections of Judge Kennedy's opinion in Windsor striking down DOMA pretty much suck. It's basically an incoherent blargle/mishmash of federalism and dignity and equality and other specters floating around in Justice Kennedy's brain. If he was on the wrong side of the issue, it would deserve relentless mocking. At the same time, it really is great to see the Supreme Court stand up with an unqualified defense of the dignity of gay couples, and, as Thorn points out, of gay parents.


Posted by: Robert Halford | Link to this comment | 06-26-13 11:52 AM
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||
BTW, did we ever have a post on this article on Silicon Valley's politics? I'm reading it now, and it's very depressing.
|>


Posted by: x.trapnel | Link to this comment | 06-26-13 12:28 PM
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In part because the article itself isn't very good!


Posted by: nosflow | Link to this comment | 06-26-13 12:30 PM
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Also it used not to be free.


Posted by: nosflow | Link to this comment | 06-26-13 12:30 PM
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But it reinforces all my pre-existing beliefs, which are themselves correct. So it must be good!


Posted by: x.trapnel | Link to this comment | 06-26-13 12:39 PM
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Yes, but (as I just posted) it seems as if Packer doesn't realize that it reinforces your beliefs. It seems as if he thinks he's describing the maturation of Zuckerberg and Reid Hoffman's not-so-unreasonable ideas, for instance.


Posted by: nosflow | Link to this comment | 06-26-13 12:40 PM
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I guess I'll go over to the new thread, then!


Posted by: x.trapnel | Link to this comment | 06-26-13 12:43 PM
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Is it just me, or is Daft Punk now just an utterly mediocre disco act that might have had one or two songs in the top 100 in 1974, and then fallen into complete obscurity?


Posted by: Natilo Paennim | Link to this comment | 06-26-13 1:02 PM
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There are some good tracks, but yeah, overall it's pretty boring. I thought this made some good points. The best disco (and dance music generally) is awesome partly because it gets energy from transgressing social boundaries (race, sexual orientation, genre, etc.), and the new Daft Punk is all about purity of essence.


Posted by: Bave | Link to this comment | 06-26-13 1:31 PM
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Contrariwise I think it's fucking amazing and the best engineered record in decades. I don't want all their records to be like that -- and couldn't imagine anybody without their prior history doing it -- but it is a stunning realization. Also the way it ties into the master plot of all their other albums is excellent.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 1:46 PM
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"Best engineered" strikes me as odd praise.


Posted by: nosflow | Link to this comment | 06-26-13 1:52 PM
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That is, it's produced and engineered like an album from Quincy Jones or "Songs In the Key of Life" or something, and similarly epic in scope. That is a project that wouldn't be possible for anybody else in dance music, and it's fascinating and amazing to listen to on a good stereo. It also is musically and conceptually really fascinating and great -- Paul Williams! Jazz fusion changes in the Giorgio Moroder song! -- but that part of the execution is what really blew my mind a/f/a it being an integrated concept.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 1:57 PM
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So, I'm seeing a lot of people saying essentially "My excitement over DOMA is tinged with sadness over VRA." There's an emotion that's reminding me entirely of ACA - the big splashy happiness, with an undercurrent that the commerce clause was being undermined.

Does anyone else suspect that the Roberts court is deliberately trying to balance public opinion by pairing splashy victories for good with truly insidious cuts to the social welfare?


Posted by: heebie-geebie | Link to this comment | 06-26-13 2:17 PM
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Aaaaand...Perry called a second special session.


Posted by: heebie-geebie | Link to this comment | 06-26-13 2:24 PM
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414 last: Yes. In the big picture, that's in fact fairly clearly what's happening, and Roberts himself has been pretty explicit about it (that is, that he will dismantle the modern administrative state through what look like technical, non-splashy means, rather than being explicit and abrasive about it, as Thomas would).


Posted by: Robert Halford | Link to this comment | 06-26-13 2:28 PM
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411, 413: you gotta admit, though, the Panda Bear song is boring as fuck.


Posted by: Josh | Link to this comment | 06-26-13 2:39 PM
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415: Ayup.


Posted by: Sir Kraab | Link to this comment | 06-26-13 2:43 PM
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414, 416: I agree there's no question that Roberts et al. are trying to dismantle the modern administrative state through technical, non-splashy means; and they're making progress. I'm not convinced that there's some conspiracy to placate the masses by, e.g., giving Kennedy permission to strike down DOMA Section 3 the day after Roberts himself erases the 15th Amendment from the Constitution. They're not all on precisely the same page, and especially when there's no business (or immediate Republican electoral) interest at stake they do occasionally manage to come up with non-awful decisions. But who the hell knows.


Posted by: potchkeh | Link to this comment | 06-26-13 2:45 PM
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419 -- oh, right, I don't think there's any conspiracy in that narrow sense. The release of the opinions weren't deliberately timed for political effect -- it's the end of the term, and they were big cases.


Posted by: Robert Halford | Link to this comment | 06-26-13 2:47 PM
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Right, I was talking about heebie's "trying to balance public opinion" suggestion.


Posted by: potchkeh | Link to this comment | 06-26-13 2:49 PM
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The conspiracy angle really was what I was musing about.


Posted by: heebie-geebie | Link to this comment | 06-26-13 2:50 PM
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I mean, it's not impossible but I don't see any particular reason to believe it. I don't think they're oblivious to public opinion, but they're also not accountable to it such that they'd have much reason to give up anything of ideological value. If the Court's institutional legitimacy survived Bush v. Gore--and it totally did--they have nothing to really worry about on the public opinion front.


Posted by: potchkeh | Link to this comment | 06-26-13 2:54 PM
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Hasn't Roberts talked about restoring and preserving the legitimacy of the Court in the eyes of the public? The timing of the announcements is certainly compatible with an attempt to game the news cycle.


Posted by: Eggplant | Link to this comment | 06-26-13 3:00 PM
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It did seem pretty sneaky that this morning we found out that DOMA had been overturned!, and then, what, an hour later, we found out that also, Prop 8 was overturned! (and oh by the way, a major controversy was created regarding standing)


Posted by: Cryptic ned | Link to this comment | 06-26-13 3:03 PM
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I think Roberts is very personally conscious of public opinion of him, of the Court. He's an instinctively good political actor, and I think his "dismantle the administrative state without being too obviously an ideologue about it" is very much a political and, to some extent, public relations, strategy designed to allow him to do what he wants while preserving legitimacy for the Court. So to that extent I guess I disagree with 423.

But that's a long-range plan and is expressed in opinions and the kind of "politics" Supreme Court judges often do. Short-term things, like deliberately timing the release of different opinions to affect immediate press coverage in the news cycle, just doesn't jibe at all with my understanding of how courts work, and would lead to big coordination problems, and I think it's pretty unlikely.


Posted by: Robert Halford | Link to this comment | 06-26-13 3:08 PM
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417: I do not admit! I love that song. However, whatever you think of it, it sure as shit is not disco.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:12 PM
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423 not intended to be at odds with 426.1--certainly Roberts' pseudo-incremental approach is aimed at public opinion (or a subset of public opinion, people who are invested in certain norms of judging). I just mean that if there were five conservative justices willing to uphold DOMA, there's no conspiracy to throw the case to the other side for the sake of some potential public opinion points. Or even manipulation of opinion timing.


Posted by: potchkeh | Link to this comment | 06-26-13 3:16 PM
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Also I find much to disagree strongly with in that article Bave linked!


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:18 PM
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427: Eh, sounds like a mash-up of Blondie, Beastie Boys and Yaz. Which are certainly not horrible acts of which to be derivative, but nor are they so far off from disco. Not super compelling to me though.


Posted by: Natilo Paennim | Link to this comment | 06-26-13 3:24 PM
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And 425 is kidding, right? There was never any question the cases would be announced the same day, and little question it would be the last day of the term. For obvious non-conspiratorial reasons.


Posted by: potchkeh | Link to this comment | 06-26-13 3:26 PM
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Beastie Boys? Anyhow, if you don't find it compelling, more power to you.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:26 PM
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I actually like the album, because it sounds real nice, but it's not terribly interesting.


Posted by: Bave | Link to this comment | 06-26-13 3:27 PM
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426.2: Fair enough. I wondered about the announcement process.


Posted by: Eggplant | Link to this comment | 06-26-13 3:29 PM
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433: I may endeavor to convince you elsewhere or by other means, but probably unfogged is a silly venue. Thanks to Natilo for talking about something other than law talkin', though.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:30 PM
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Er unfogged is probably a silly venue for trying to do that right now. You're all very serious!


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:34 PM
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432: Clearly that song is informed by hip-hop, and some other stuff, which is also present, though muted in "Get Lucky" and some of their other recent stuff. I'm just saying, for me, it doesn't really rate as great dance music, doesn't fuck with audience expectations, can't quite reach that apotheosis where a a song or an album's popularity makes it truly anthemic. Obvs, I'm generally more interested in dance music with an analysis -- one of the reasons I do think Yaz did such great work. Of course, if I really understood pop music, I suppose I would be Pharrell, and not just some grumpy old radical squinting and adjusting my ear-trumpet while he sings.


Posted by: Natilo Paennim | Link to this comment | 06-26-13 3:34 PM
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re: 411/412

I found it all a bit 'meh'. That kind of homage to the disco/pop sound of the late 70s isn't as original as half the critics seem to think. It's not as if some lower-budget version of that hasn't been ubiquitous in French pop/dance music for years, and disco and Italo-disco influenced stuff seems like it's been ever-present in some derivative form or other on the radio for years. Plus Nile Rodgers is phoning it in on 'Get Lucky'.


Posted by: nattarGcM ttaM | Link to this comment | 06-26-13 3:35 PM
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Ha! I forgot that he was older than me. He's had a pretty decent career now.


Posted by: Natilo Paennim | Link to this comment | 06-26-13 3:36 PM
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I guess I'm saying what Bave is saying. It's quite nice, and all, but that's about it.


Posted by: nattarGcM ttaM | Link to this comment | 06-26-13 3:36 PM
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Contrariwise I think it's fucking amazing and the best engineered record in decades.

Out of curiosity, what else would go on your personal, "best engineered" list?

I haven't listed to RAM, I have a feeling that the average level of production has fallen (and I'm mildly surprised when I get an album from the last 10-15 years which is well produced and sounds good on a good system) but I imagine that we're listening to very different thing.


Posted by: NickS | Link to this comment | 06-26-13 3:36 PM
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Also, it is too fucking hot to work in an un-air conditioned cinder block garage today. Need to wrap up and get out of here.


Posted by: Natilo Paennim | Link to this comment | 06-26-13 3:39 PM
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441: in terms of electronic music, it's probably all been downhill since the Orb. Old Quincy Jones stuff is pretty sterling. Other than that? I dunno. Those are the touchstones I'm thinking of.

438: sure, but doing it low budget and doing it impossibly high budget are very interestingly different things. Also doing it impossibly high budget with Paul Williams makes me incredibly happy.

Anyhow, Daft Punk has always been backwards looking in some ways, and always incredibly concerned with the history of dance music. They have been doing something like disco homages since Homework, yes, definitely.

Like, this album is not an homage to disco per se. It's an homage to the impossibly overproduced big-time Hollywood R&B concert record; that's why I keep coming back to "Songs In The Key of Life" (which a lot of people including I think maybe you? dislike for possibly similar reasons to the Daft Punk record). With an embedded homage to Phantom of the freakin' Paradise! Rad. It's a really hyper-specific window into their formative tastes (which, by the way, ties directly into the plot concept and its place in the mythology they started creating about themselves when they started with the robot suits).

I'm not saying it's the be-all-end-all but it's really fucking smart in lots of big and small ways, which I think can be missed.

Out of curiousity, ttaM, have you listened to the 24 bit qobuz version? I know you have a System to play it on...


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:45 PM
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Oh, another thing: a lot of the music that DP is referencing on this album is old stuff that people don't particularly like (e.g. non-Rainbow Connection Paul Williams songs, or deep Chic cuts). But I think part of the case they're making is that if you like the stuff they did before this is where it came from, and maybe that stuff deserves another, deeper listen. That might be wrong, and it's sort of a goofy conceit, but I think that is driving some of the reactions.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 3:48 PM
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I think a fair bit of the stuff they reference is stuff I like. I've certainly listened to a lot of disco and 70s RnB type stuff for years, and also more garage-y 'dance' stuff of the same era. I like a lot of ostentatiously 'feel how expensive this record sounds' stuff. You're right though that I'm not a fan of the longer 70s Stevie Wonder stuff. I find SitKoL unlistenable. Whereas Innervisions or Talking Book are great.

I'll probably give the Daft Punk more listens, but so far I'm unconvinced.


Posted by: nattarGcM ttaM | Link to this comment | 06-26-13 4:04 PM
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Is anybody else stuck in an airport? If the gate agent isn't a fraudulent asshole, lots of people must be.


Posted by: Moby Hick | Link to this comment | 06-26-13 4:42 PM
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I do not admit! I love that song.

This is my baffled face. I'm listening to it right now and to me it's just repetitive and soulless and completely unimaginative.

However, whatever you think of it, it sure as shit is not disco.

Even if it were, that wouldn't bother me! I have a place in my heart for disco schlock, but the Panda Bear song doesn't even have its virtues.

Now I have to go put on the Glitch Mob remix from the Tron soundtrack for a palate cleanser.


Posted by: Josh | Link to this comment | 06-26-13 4:48 PM
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I am sad that my DVD that was supposed to be _Phantom of the Paradise_ (and is even printed as such) turns out to actually be a copy of _Predator_. At least I saw PotP in 35mm once.


Posted by: Nathan Williams | Link to this comment | 06-26-13 4:57 PM
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I find SitKoL unlistenable. Whereas Innervisions or Talking Book are great.

!! I just can't see how it's possible to like one of those albums but not all three of them. But, since you do think that, clearly it is possible.


Posted by: Robert Halford | Link to this comment | 06-26-13 4:57 PM
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449: SitKoL is the album that unleashed "Isn't She Lovely" on the world. That's grounds for hating it right there.


Posted by: Josh | Link to this comment | 06-26-13 5:00 PM
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Re: 449

Innervisions, in particular, has a harder funkiness and a much less slick sound palette. Songs in the Key of Life is like an extended version of the elements on the earlier albums I don't like. Overly busy chord changes, meandering bordering on irritating melodic lines, a sort of overly smooth sound. There's bits of that in the earlier stuff, but at less length.


Posted by: nattarGcM ttaM | Link to this comment | 06-26-13 5:02 PM
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414, 416: Does anyone else suspect that the Roberts court is deliberately trying to balance public opinion by pairing splashy victories for good with truly insidious cuts to the social welfare?

Coming in late here, but I do find it difficult not to think that the DOMA decision -- yay!!!! -- was deliberately released after the VRA decision -- oh wow, boo, like serious, very serious boo.

The way the news cycle works, gaiety over DOMA is drowning out just how very bad VRA is. The court surely knows how the news cycle works.

Last night I had a moment of deep despair to realize that the DOMA decision is almost like throwing a bone in order to distract awareness of, again, how awful the VRA decision is. I'm repeating myself now, it's just so awful. Perhaps I'm being far too cynical, but the federalists are winning, and voter suppression laws are now going forward in several states as we speak. It makes me upset.


Posted by: parsimon | Link to this comment | 06-26-13 5:15 PM
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Ahem. {clears throat} Sorry - I was having a moment of upset there.

The thread has totally moved on.


Posted by: parsimon | Link to this comment | 06-26-13 5:17 PM
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Six hour delay and then the cops and the emts are on the plane.


Posted by: Moby Hick | Link to this comment | 06-26-13 6:15 PM
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And now they are paging a couple with the last name Keister.


Posted by: Moby Hick | Link to this comment | 06-26-13 6:19 PM
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Yikes.


Posted by: heebie-geebie | Link to this comment | 06-26-13 6:43 PM
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Yikes Keister, Lyft driver.


Posted by: Sifu Tweety | Link to this comment | 06-26-13 6:44 PM
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451: Innervisions, in particular, has a harder funkiness and a much less slick sound palette.

Yes - a grabber. At my dad's wake in 2010, my sister played her cherished vinyl copy and got a good crowd dancing to Living for the City. Songs in the Key of Life was more accessible but Innervisions hit me way harder. I still think of Golden Lady as a great summer/beach song.


Posted by: bill | Link to this comment | 06-26-13 6:45 PM
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I gave up. Getting to Chicago at 10pm, getting a hotel, and then catching a 6am flight the next day with a kid already burned out by six hours in the airport seemed too much. Plus, cursed flight.


Posted by: Moby Hick | Link to this comment | 06-26-13 6:55 PM
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Has anyone suggested that section 4 be changed to just have preclearance required for all jurisdictions? Surely that would pass "state dignity" or whatever bullshit test they invented.


Posted by: SP | Link to this comment | 06-26-13 7:14 PM
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Blondie plus Yaz sounds intriguing to me, as I adore both. Bave gave me the album but I haven't played it yet.


Posted by: Mister Smearcase | Link to this comment | 06-26-13 9:09 PM
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One more for shrugging at the new Daft Punk. I'd rather listen to either straight eighties stuff or music that's a little older than the material they're imitating-- Sly &the Family Stone or Betty Davis.

What's James Murphy doing, does anyone know? LCD Soundsystem was really nice.


Posted by: lw | Link to this comment | 06-26-13 9:20 PM
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Blondie plus Yaz sounds intriguing to me, as I adore both

I haven't listened to them in a while, but I remember thinking that The Donnas appealed to the part of me that liked Blondie, so I would recommend giving them a try.


Posted by: NickS | Link to this comment | 06-26-13 9:28 PM
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462: DJing and working on bringing high-end coffee to Williamsburg, last I heard.


Posted by: Josh | Link to this comment | 06-26-13 11:42 PM
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Surely Williamsburg already has a certain amount of high-end coffee.


Posted by: teofilo | Link to this comment | 06-27-13 12:11 AM
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465: Yeah but they keep drinking it.


Posted by: Benquo | Link to this comment | 06-27-13 5:54 AM
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We need some modern equivalents like this of "Carrying coals to Newcastle."


Posted by: JP Stormcrow | Link to this comment | 06-27-13 6:03 AM
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adjectives to the New Yorker.


Posted by: lw | Link to this comment | 06-27-13 6:12 AM
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smartasses to Unfogged.


Posted by: peep | Link to this comment | 06-27-13 12:18 PM
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