4 boxes of new Supreme Court opinions...

... with SCOTUSblog live-blogging here.

1. Brumfeld v. Cain (PDF). About habeas relief and the question when a person is "mentally retarded and therefore ineligible for the death penalty."

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could secure relief only if the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §§2254(d)(1), (2)....

We do not deny that Brumfield’s crimes were terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the “law’s most severe sentence,” Hall, 572 U. S., at ___ (slip op., at 7), and take his life as well.

2. Ohio v. Clark (PDF). This is a confrontation clause case with no dissenting opinions. Justice Alito writes the main opinion, and there's a concurring opinion written by Justice Scalia that is joined by Justices Thomas and Ginsburg. Everyone accepts what the trial court did: allow the hearsay evidence that was the statement a 3-year-old boy to his pre-school teacher that identified the defendent as responsible for the marks she saw on his body. From the main opinion:

The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliability.’” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid.

From SCOTUSblog: "Lovers of Justice Scalia and/or the confrontation clause should DEFINITELY check out Scalia's concurrence in the judgment in Ohio v. Clark. It is some sharply worded stuff -- accuses Alito of "shoveling dirt" on the grave of the key precedents, and using intentionally confusing "dicta" to try to undermine the clause's protections." I'll be getting to all of that later.

3. Davis v. Ayala (PDF). 5-4. "Holding: Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing was harmless."

4. Walker v. Texas Division, Sons of Confederate Veterans (PDF). "Texas's specialty license plate design constitutes government speech, and thus Texas was entitled to refuse to issue plates featuring the proposed Confederate Veterans' design." 5-4, by Justice Breyer, with Justice Thomas joining the liberals. Justice Alito has a dissent, which is joined by the rest of the conservatives (Roberts, Scalia, and Kennedy.)

5. McFadden v. United States (PDF). "When a controlled substance is an analogue, §841(a)(1) requires the Government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act." McFadden was selling bath salts. The case is remanded to determine if the error was harmless (which it is if no rational jury would find that McFadden didn't know).

6. Reed v. Town of Gilbert (PDF). "The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny." Justice Thomas writes the main opinion. There are also 2 concurring opinions.

"I mean, suppose somebody submitted a license plate to Texas that said, 'Vote Republican,' ­­and Texas said, yes, that's fine."

"And next person submitted a license plate to Texas and it said 'Vote Democratic,' and Texas said, no, we're not going to approve that one. What about that?" asked Justice Kagan in yesterday's oral argument about whether Texas could reject the specialty license plate proposed by the Sons of Confederate Veterans. (We talked about the case yesterday here.)

The lawyer for Texas said — lamely — "Yeah, Justice Kagan, I don't think our position would necessarily allow that...." And she was all "But why... why wouldn't it allow that?"

Here's the oral argument transcript (PDF). The lawyer (Scott A. Keller) had no good answer, as far as I can tell.

"Why should we as Texas want to be reminded of a legalized system of involuntary servitude, dehumanization, rape, mass murder?"

Said a state senator at a hearing over a specialty license plate proposed by the Sons of Confederate Veterans:



The plate was rejected, and today, the U.S. Supreme Court hears argument on whether that rejection violated the First Amendment.

"Kennedy for President."

The bumper sticker, seen today:


(Enlarge.)

"Choose Life" — the license plate... the Supreme Court case.

The way Adam Liptak puts it:

Had the states not decided to make license plates a forum for a sometimes comical array of messages, the “Choose Life” cases would easy. But many states have turned their motor vehicle departments into a kind of souvenir shop. They may also have given up the right to decide what gets sold in them.

Mm... yes... it's called "free speech," and much of it is foolish and/or opinionated. Religion is one more category of expression. Deal with it.

How to get $8,000 for taking a photo of a woman "laying on her stomach with her skirt pulled up over her butt."

Key step: Get arrested.

[From a distance of 15 feet,] Actor Robert Kabakoff snapped a photo of a woman's bottom as she sunned herself in Central Park...

[H]er friend saw and admonished him with a wag of her finger.

Before he knew it, the woman was talking to cops and Kabakoff was handcuffed in the back of a police cruiser.

During the next 18 hours, he was charged with "unlawful surveillance," a felony, and spent the night in jail. The charge was later dropped, and Kabakoff sued.

The city settled the lawsuit for $8,000, getting off cheap, I'd say.

What makes people — even cops — think photography is a crime? It's one thing to manipulate a camera into a position to take a photograph up under a woman's skirt, quite another to respond to a woman who lies down with her skirt hiked up to sun her ass in Central Park.

Finally, credit is due to The Daily News for: "It was a bum rap."

IN THE COMMENTS: Dan from Madison says:

This also happened to me, but at least I didn't get arrested.

About six months ago I took a photo of a car in front of me because the bumper sticker was funny and I wanted to share it with a few people. Little did I know.

Driving the car was an 18 year old woman who had issues with others in her past. She called her parents who the cops and gave them my license plate number.

About two weeks after that I received a visit from an officer asking why I was taking a photo of that vehicle, etc. etc. Eventually I got aggravated and politely asked the officer if I had done anything illegal. He responded "no" and then I (again) politely informed him that the conversation was over.

The not getting arrested part is key. Now, I do think we should be careful about doing things that may scare other people, and I'm sure that if you had thought this young woman might worry that I'm stalking her, you wouldn't have taken the photograph, even if you were certain it wasn't a crime. And I think it was fine for her to photograph you for future reference — in case you turned up again. But it amazes me that the police actually launched an investigation over a report of someone photographing their car. And it's interesting to know that if someone bugs you — you, meaning a woman — in Madison, the police will take you seriously. Perhaps too seriously. It shouldn't be too easy to be able to summon the police to intimidate people you don't like.

I believe the judge should have said a little more about why those South Carolina license plates violate the Establishment Clause.

A federal judge has told South Carolina to stop making and selling the "I Believe" license plate. (Via Hot Air.)

In court, an attorney for [Americans United for Separation of Church and State] said state lawmakers had approved what she called a "uniquely Christian" license plate....

"The question really presented here is whether government should be allowed to exclude a religious message precisely because it's religious. Are we going to say it's okay in the public square to express a preference for a secular humanist position of 'In God we trust' or a preference for a football team or a university? And then at the same time say any expression of a religious viewpoint is per se, impermissible," said DMV attorney Kevin Hall....

I wrote about the "I Believe" license plate back in July:

The "I Believe" specialty plate is almost surely a state endorsement of Christianity that violates the Establishment Clause. (There's no array of specialty plates for different religions and no atheist plate. What would an atheist plate look like?)

But I'm taken aback by the federal judge's incredibly skimpy analysis of the legal question. (PDF.) After articulating the 3-part "Lemon test," Cameron McGowan Currie simply asserts:

Based on the record now before the court, the court finds it unlikely that the I Believe Act satisfies even one of these three requirements. As the Act must satisfy all three requirements to survive constitutional scrutiny, the court concludes Plaintiffs have made a strong showing of likelihood of success on the merits as to their Establishment Clause Claim.

That says nothing more than: I think it's unlikely that any of the 3 parts of the test is met. Nothing about why and no acknowledgment of the counter-arguments. It's a serious question, and it is certain that if the Supreme Court were to look at this case, it would take more than an invocation of the much-maligned Lemon test to say no to South Carolina's fund-raising and facilitation of individual expression via license plate.

***

I won't bore you with a disquisition on the history of the Lemon test. I'll just entertain you with Justice Scalia's famous mockery of the Court's spotty reliance on it:

[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. 577 (1992), conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. [Citations omitted.]

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

And so, Judge Currie has prodded the old monster.

"A 'fashion genius' ... does ghastly drawings of Paula Abdul and turns out to be named Paula: Paula Goodspeed."

I wrote that back in February 2006. Noting that she had "teeth so huge a massive set of braces cannot begin to tame them," I said, "She sings terribly, but it's not enough just to tell her that. Simon has to say: 'I don't think any artist on earth could sing with that much metal in your mouth anyway. You have so much metal in your mouth.'"

I'm rereading that after observing that I had some significant traffic today to that post on a search for the name Paula Goodspeed. I plug the name into a news search and see this in the L.A. Times:

Tonight on "Inside Edition," you can visit the scene outside Paula Abdul’s home in Sherman Oaks, Calif., where a young fan may have committed suicide.

Paula Goodspeed was a self-described fan of the “American Idol” judge. There is no known reason why she would have committed suicide outside Abdul’s home, other than to be close at the end of her life to her apparent idol. Or to have her name forever linked with Abdul's.

Goodspeed’s body was found inside her car, which was decorated with a photo of Abdul hanging from the rear-view mirror. Her personalized license plate reads “ABL LV,” which has been said to stand for Abdul Love.

"Ms. Goodspeed's mother had gone to [the sheriff's department] to report her daughter missing and advised them that she might be suicidal," Los Angeles Police Capt. James Miller tells People. Officials "determined that Ms. Goodspeed may be up in the vicinity by Paula Abdul's house. Our officers discovered her vehicle parked on the street and found her inside. She was unresponsive to officers."

Authorities say her death may have been due to drug overdose, but tests still have to be performed.

Turns out Goodspeed auditioned for “American Idol” in 2005 and admitted a lifelong fascination with Abdul.

“I really like Paula Abdul a lot. She’s really cool. ... I’m like a really big fan and I make life-size drawings of Paula. I’ve been drawing ever since I was a little kid, and my first drawing was of Paula Abdul.”

Here's the old video:



It was fun back then to laugh at those drawings (and the delusional singing), but it's sobering now. I have to think that "American Idol" screens out numerous would-be contestants who are even more obviously disturbed. Perhaps some of them get the help they need. But Paula Goodspeed made the cut and entertained us for a few minutes back then. And now, we see how serious the ridiculous really was.

Religion, free speech, and license plates.

Here is a NYT op-ed about automobile license plates. The writer —Stefan Lonce, who has a book on the subject of vanity license plates — distinguishes 2 forms of religious speech via license plate. First, there are the specialty license plates. South Carolina has introduced a Christian-themed plate that looks like this:


Second, there are vanity plates, and the states sometimes reject the letter/word combinations a driver requests. There is, we are told, federal court lawsuit about Vermont's rejection of a vanity plate that would read JN36NT (which is a reference to a Biblical passage).

It seems obvious that the individual expression in the form of a vanity license plate is the preferable to the state's provision of the religious message on a specialty plate. The "I Believe" specialty plate is almost surely a state endorsement of Christianity that violates the Establishment Clause. (There's no array of specialty plates for different religions and no atheist plate. What would an atheist plate look like?)

But everyone knows that what's on a vanity plate is chosen by the car-owner and doesn't represent the state's point of view. Vermont seems to be overdoing a concern about Establishment Clause and blundering into a Free Speech violation (though, according to Lonce, the federal district court approved the state's decision). The trouble with vanity plates is that at least some of them do need to be censored — there are always some people who want "F**KYU" — so it won't work to have individual choice as the only filter.

Lonce thinks the problem of censoring vanity plates can be solved by setting up a national data base, pooling the efforts of all the states to identify the offending letter/number combinations. An alternative is just to get rid of vanity plates altogether, but states make a lot of money selling them, and people want to buy them.

So you've paid $6 million for a vanity license plate, and there's one you'd pay $20 million for?

There's one? Which one?

Yes, right, there's one.

Which one?

There's one. I'm trying to tell you.

Well, go ahead and tell me.

Accepting the death penalty.

Talk Left notes a news report that says 12% of those who receive the death penalty choose not to appeal and suggests this is rational. Interesting. Back when Gary Gilmore refused to appeal his death sentence, people found it very disturbing that a man wouldn't fight to stay alive. There was an effort to bring an appeal for him, in spite of his refusal, with his mother as the party representing him, as if his refusal to appeal was a sign that he needed someone to stand in for him. The Supreme Court said she didn't have standing.

I wrote a law review article back in 1991 about Gilmore and a later case Whitmore, in which another person given the death sentence tried (unsuccessfully) to represent a murderer who declined to appeal. (The article is not linkable, but here's the cite: Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177 (1991).) [UPDATE: You can read it here.]

Here's a footnote from that article, on this question of whether it's sane to accept the death penalty:

This preference for death over prison is scarcely bizarre. Gilmore's decision, as reported in The Executioner's Song, seemed entirely sane and rational, given his long experience of the reality of prison life. Popular songs have long portrayed a life sentence as worse than execution. See G. Brooks, "Send Me to the 'Lectric Chair" (Mills Music, Inc. 1927) ("Now I don't want no bondsman here agoin' on my bail,/And I don't wanna spend them nine and ninety years in jail;/So judge, judge, good kind judge,/Send me to the 'lectric chair."); M. Haggard & J. Sanders, "Life in Prison" ("I begged they'd sentence me to die/ But they wanted me to live and I know why -- My life will be a burden every day/If I could die, my pain might go away."). And Patrick Henry said, "give me liberty or give me death!" to the 2d Revolutionary Convention in Virginia, March 23, 1775 (cited in 14 Encyclopedia Americana 108 (1986)), a sentiment the state of New Hampshire compels its drivers to bear on their license plates. See Wooley v. Maynard, 430 U.S. 705 (1977) (Court straining the doctrine of Younger v. Harris, 401 U.S. 37 (1971), to bar prosecution of the nonconformist couple who took offense at the slogan "Live Free or Die" and covered it up with tape); see also Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2885 (1990) (Stevens, J., dissenting) (citing Patrick Henry's quote in recognizing a "right to die"). For futher discussion of the Cruzan case, see infra note 57.

The most widely venerated refusal to fight the death penalty was that of Jesus: "Pilate questioned him again: 'Have you nothing to say in your defense? You see how many charges they are bringing against you.' But, to Pilate's astonishment, Jesus made no further reply." Mark 15:4-5. Like Gilmore, Jesus withdrew from the process the law afforded him and accepted execution. Why has Jesus' choice inspired reverence and Gilmore's scorn? Gilmore turned his back on a legal system we still support and view as a source of justice; Jesus turned his back on a legal process we consider corrupt and evil. Perhaps it is not that we despise the acceptance of death, but that we judge an expression of contempt of the legal system in accordance with our opinion of that system.

Socrates is also famous for accepting the death penalty. See Plato, Crito, reprinted in Plato, The Last Days of Socrates 53-70 (H. Tredennick trans. 1954). Unlike Gilmore and Jesus, however, Socrates did not refuse any available step in the legal process. He refused the extralegal step of escape and argued against violating the law in a legal system that had wronged him. Thus, he expressed the very antithesis of contempt for the legal system.

The most obvious explanation for the scorn directed at Gilmore is simply that in judging him, we cannot separate his preference for death from the fact that he was a murderer, just as we cannot separate our judgment of Jesus and Socrates from our knowledge that they committed no offense we can remotely understand as punishable by death. Whereas Jesus and Socrates were great men we would never have condemned, Gilmore was a social excrescence whose demise relieves us (judgment takes place in context, not in the abstract). Or perhaps, at least for those who support the death penalty, scorn for Gilmore's choice expresses frustration that he somehow destroyed the state's power to punish. Someone who prefers death will only be killed by execution -- not punished. Gilmore is incomparable with Jesus and Socrates for any number of reasons, but among those reasons is that only Gilmore deprived us of whatever satisfaction attaches to social vengeance.

It was hard to go through with writing a law review footnote like that, and this was an article full of unusual touches. The nice thing is that if you do write something strange and a law journal accepts it, they're not going to try to edit you into the form of the standard law review article. I wrote about that phenomenon in a little article called "Who's to Blame for Law Reviews?" And I maintain a very high opinion of the Virginia Law Review editors who accepted the "Fluffy Slippers" article -- which is full of evidence that I was dying to blog -- and who gave it such a sympathetic edit.

But back to the death penalty, what do you think of those who don't appeal? I assume these are all people who have only the hope of life in prison and who do not have a chance of going free, that is who would only be challenging the sentence not the finding that they were guilty of the crime.

Here in Wisconsin, we don't have the death penalty and haven't for over a century, but we'll be voting on the death penalty this fall. A new poll shows 54% of likely voters favor it, over 39% opposed. Check out the new "No Death Penalty" website, which is working against the Wisconsin referendum.

"When this old world starts getting me down..."

"And people are just too much for me to face..." The Drifters sang some pretty words, written by Gerry Goffin and Carole King, back in simpler times.

I climb way up to the top of the stairs
And all my cares just drift right into space
On the roof, it's peaceful as can be
And there the world below can't bother me
Let me tell you now

When I come home feelin' tired and beat
I go up where the air is fresh and sweet (up on the roof)
I get away from the hustling crowd
And all that rat-race noise down in the street (up on the roof)
On the roof, the only place I know
Where you just have to wish to make it so
Let's go up on the roof (up on the roof)

At night the stars put on a show for free
And, darling, you can share it all with me

I keep a-tellin' you

Right smack dab in the middle of town
I've found a paradise that's trouble proof (up on the roof)
And if this world starts getting you down
There's room enough for two
Up on the roof (up on the roof)
Up on the roo-oo-oof (up on the roof)
Oh, come on, baby (up on the roof)
Oh, come on, honey (up on the roof)

Everything is all right (up on the roof)

Oh no, it's not. These days:

A man and woman who shared an intimate moment on a secluded, dark rooftop one August night last year have learned that they were secretly watched, an intrusion made possible by increased police surveillance of protest rallies and other events and also by advanced technology intended to fight terrorists.

That night, police officers tracked bicycle riders moving through the streets of the Lower East Side from a custom-built, $9.8 million helicopter equipped with optical equipment able to display a license plate 1,000 feet away.

With the night vision of the helicopter's camera, and permission to make videotapes, an officer also recorded nearly four minutes of the couple on the terrace of a Second Avenue penthouse.

"When you watch the tape, it makes you feel kind of ill," said Jeffrey Rosner, 51, one of the two people. "I had no idea they were filming me - who would ever have an idea like that?"....

High above Second Avenue, they seemed to be shielded from view by a wall of shrubs and the nearly total darkness. The police camera, however, included special thermal-imaging equipment that yielded distinct, if ghostly, images.

And won't it happen, soon enough, that the thermal-imaging will allow them to shoot an image through the roof? Or are they already doing that? Maybe you ought to move the bed down to the first floor.

IN THE COMMENTS: I'm told this story has been in the news before and reminded that the bigger story is the one that accompanies it: "New York Police Covertly Join In at Protest Rallies." Well, you know, I blog about what catches my eye as I flip through the day's NYT, so this choice of topic says something embarrassing about me, I suppose.

Imagine no SUVs... I wonder if you can...

Florida will be offering a specialty license plate with a picture John Lennon and the word "Imagine" to go along with the other special license plates like "Save the Manatee."

UPDATE: Go inside for the comments, where Doc Weasel throws down the gauntlet re Lennon. Sample: "Lennon flamed out around '65, his enduring fame is mainly because the liberals adopt any pop radical and make them a demi-god, Che, Rachel Corrie, Mumia, what have you."

ANOTHER UPDATE: Interestingly, no one went in to defend John Lennon! I wonder what that means. Who knows what more John might have done without Yoko or what portion of Paul's good and badness was a reaction to John? There was a mystical entity that was The Beatles. The amazing thing is that it came into being and existed at all, and I'm not inclined to blame any of the parts for not having been more than they were. They became The Beatles, and we'll never be able to understand how. You can pick your favorite Beatle and your favorite Beatle album and argue all you want about the way you rank these things, but the fact it, it was all so very good, and it was sad when it ended. More specifically, about John, I've always loved The White Album, and "Happiness Is a Warm Gun," in particular. Much more than the other Beatles (and even before he was killed), there was something about him that allowed people to project their own ideas and aspirations onto him. He, himself, was enigmatic. It was never even clear in "Revolution" whether he was for it or against it. That's something I like about him. I don't really think he was very political, except in an arty, emotive way. I don't really like to think of him in some endless face off against Paul. They were both great, and they were both greatest when they were able to connect with the other, and thank God they did for a few years.

God is up to His "mysterious ways" again.

In Austin, Texas, a vanity license plate reading "PS 105" makes RLC think he's found someone who went to his old school -- PS 105 (Public School 105) in the Bronx. He follows the car and finds an opportunity to ask about the plate, and it turns out to be a reference to Psalm 105. Does that mean anything? I mean, anything profound? Is reaching out to people via ambiguous vanity plates one of "His deeds among the peoples" that we are called upon to "make known"? Well, I'm doing my part making it known. How about you?