Why did all 3 female Supreme Court Justices vote on the side of the father...

... in a case where the single mother — with no financial support from the biological father — chose to go forward with her pregnancy and chose adoptive parents, parents who were with her in the delivery room? The father gave up his parental rights via text message before the baby was born, and the child — a little girl — lived with those adoptive parents for 2 years before the state court gave her to the father. The only reason the father had an argument for taking the child was the Indian Child Welfare Act of 1978, a federal law intended to protect Indian families from public and private welfare agencies that Congress decided had been too aggressive. The Supreme Court majority — which included the one male liberal Justice (Breyer) — interpreted the statute not to apply in a situation where the biological father had never had custody of the child. Here is a mother who happened to have been impregnated by a man who is a member of an Indian tribe. Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Here's the text of the case, Adoptive Couple v. Baby Girl.

The child is 1.2% Cherokee.



Consider that the states have traditionally handled family law, and Congress's power arises from the Commerce Clause.

What do you think of Garrett Epps saying Justice Alito "looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High..."

"... signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand"? Commenters at "Did Justice Alito roll his eyes while Justice Ginsburg was speaking?" let Epps have it. Does he even know the movie? Amartel said:

If Alito had ordered a pizza to be delivered to the well at the Supreme Court, or called Ginsburg a "dick" that would be, like, a totally different story.

Likewise, Youngblood says:

Spicoli doesn't act like that in the film. Now, if Justice Alito said to Justice Ginsburg, "You DICK!" or ordered a pizza in the middle of class, that would be a different story. But little niggling gestures of disrespect aren't really Spicoli-like at all.

And CatherineM:

What I find most offensive is the Spicoli reference. Has Epps ever watched Fast Times? Jeff called Hand a dick once for ripping up his excuse, but he never mocked Mr. Hand. He was incapable. He was too high.

That's his tell. Epps is lying. I object.

To sum up, here's Henry:

Jeff Spicoli is a hero. When did liberals go all in on being turgid squares?

I don't know, man, but the Supreme Court is about to close up for the summer, and maybe all Sam Alito needs are some tasty waves, a cool buzz, and he'll be fine.  When it's October, and the Justices are back for oral arguments, maybe he will order that pizza....

At the Rain Lettuce Café...

... nobody leaves you alone.

Did Justice Alito roll his eyes while Justice Ginsburg was speaking?

Garrett Epps and Dana Milbank think so.

Milbank says "Alito visibly mocked his colleague":

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

Epps:

... Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand. 

I don't trust the descriptions of Epps and Milbank. Maybe we could get some more discussion of the meaning of Alito's head — from some observers who like him. And then I could calculate the truth from there. But what would be better would be  cameras in the Supreme Court chambers. This is a new argument for cameras in the Supreme Court — to protect Samuel Alito from calumny.

Amusingly, Epps begins his little article with:

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg.  Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

It wasn't clear to me, and I have eyes.

Nice of Epps to want to protect me and the rest of Americans who didn't make it into the courtroom that day, but I prefer to be free to look things and form my own opinion, not to get second-hand descriptions from partisans and polemicists.

And by the way, the notion that female Justices command stronger displays of decorum than male Justices is sexist. Show some real respect.

AND: Do I detect anti-Italian prejudice? Alito is too visibly expressive. He's like a movie character with an Italian name (Spicoli)? The rule is your face should be a mask? WASP-style?

ALSO: Remember the words of one of the world's greatest Italian-Americans:



MOREOVER: Want to bet that if emotions played across the visage of Sonia Sotomayor while Alito or Scalia were articulating some nugget of conservatism that media's Epps and Milbanks would tell us that this — this! — was the empathy Obama said was essential to judging?

AND: A new post highlighting comments about what's wrong with likening Alito to Spicoli.

Justice Ginsburg says the "equal sovereignty" principle "is capable of much mischief" and brainstorms ideas for vexatious litigation.

In her dissenting opinion in Shelby County v. Holder (PDF), she frets about all the federal laws that treat states differently from each other and could be subjected to attacks based on the majority's "fundamental principle of equal sovereignty" among the states:

See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State con­ducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this sub­section after December 22, 1987”). 

It seems to me that the "equal sovereignty" principle is an important structural safeguard in the federal legislative process, protecting us from the democratic dysfunctions of things like the "Cornhusker Kickback." This is exactly the sort of thing that ought to shake judges out of the usual deference to Congress. 

What did the Supreme Court find unconstitutional about the much-honored landmark legislation, the Voting Rights Act of 1965?

Here's the PDF of Chief Justice Roberts's opinion (joined by Kennedy, Scalia, Thomas, and Alito). The 4 liberal Justices dissent.

This is a case about Congress's enumerated powers. It's not about Congress violating rights, but the scope of its power under the 15th Amendment to enforce the right guaranteed by that amendment (the right against race discrimination in voting). This is a power to be used against state and local government, so the scope of that power implicates federalism doctrine, including the “fundamental principle of equal sovereignty” among the states.

The states can, under some circumstances, be treated differently, and they have been under the Voting Rights Act, which survived attack in the past. The problem now is that Congress relies on a formula that uses voter turnout statistics from 1972, and this covers only 9 states (and some counties). These states, subject to different procedures, wait "months or years and expend[] funds to implement a validly enacted law," while the other states "can typically put the same law into effect immediately, through the normal legislative process."

Roberts pays respect to the VRA: "The Act has proved immensely successful at redressing racial discrimination and integrating the voting process." And he acknowledges that "[p]roblems remain." But the Act was "reauthorized — as if nothing had changed."

The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then — regardless of how that discrimination compares to discrimination in States unburdened by coverage....

The [15th] Amendment is not designed to punish for the past; its purpose is to ensure a better future.... To serve that purpose, Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions....

It's not enough to say — as the dissent does — but these covered states still commit violations, Roberts says.

[T]hat is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.

The Chief stresses that the defect lies entirely in using the old formula to treat the states differently. The Court will be criticized in the political arena, but the political response is clearly stated: "Congress may draft another formula based on current conditions."

ADDED: From the dissent by Justice Ginsburg:

Hubris is a fit word for today’s demolition of the VRA.

This is "hardly... an exemplar of restrained and moderate decisionmaking," because the Court accepts Shelby County's facial challenge to the law:

[T]he Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit — Shelby County, Ala­bama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.

Alabama is home to Selma.... Although circumstances in Alabama have changed, serious concerns remain....

I think the Court did have a word of explanation. The word was "redheads." See above.

ALSO: On March 6, 2023, I received a notice from Google that someone had made a formal complaint that this post violates someone's copyright. You can see it's entirely my own writing plus quotes from a Supreme Court case, which isn't subject to copyright. Maybe the Supreme Court copied some text without attribution, but I certainly didn't. Maybe it was something in the comments. There were 185 comments, so all I can think of is to undisplay them. This is a legal analysis of a very important case, Shelby County, so it's troubling to see it taken down.

AND: On January 2, 2024, I again received a notice from Google that someone had made a formal complaint that this post violates someone's copyright. My analysis of the problem is the same. There's nothing here that could possibly violate anyone's copyright. So, again, I'm republishing the post.

ULTIMATELY: I challenged the complaint, and I won:

 

The way you win is to consent to jurisdiction in a lawsuit and wait to see if they bring a lawsuit. That might sound too threatening to do, but if you do it, as I did, then if 15 days pass without their bringing a lawsuit, you get reinstated.

The Althouse Amazon portal will ring your bell and float your boat.

By using the Althouse portal, you can buy things you want and – while paying nothing extra – make a contribution to this blog. We notice. We appreciate it. And only if you're dripping wet will we know it's you.

Yellow Dog Design Ding Dog Bell, Celtic

and

45" Canvas Surf Rider by Intex

Another day of Supreme Court excitement.

The place to hang out is SCOTUSblog, which live-blogs it, or here, where I quote, paraphrase, and snark, and you can comment.

UPDATE 1: Koontz, written by Alito. "The government's demand for property from a land use permit applicant must satisfy the Nolan and Dolan requirements even when it denies the permit." 5-4 in the most predictable 5-4 pattern.

UPDATE 2: Next, a case we talked about here, Adoptive Couple v. Baby Girl. This, too, is written by Justice Alito. "Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights." Thomas and Breyer have concurring opinions. Scalia has a dissenting opinion, for himself alone. Sotomayor also dissents, with Ginsburg and Kagan. And Scalia joins the Sotomayor dissent in part.

UPDATE 3: Here's the PDF for Adoptive Couple. To jump to what Scalia says:

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.

UPDATE 4: Huge: "Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance." This is Shelby County, written by Chief Justice Roberts. "Thomas concurs. Ginsburg dissents, joined by Breyer Sotomayor, and Kagan.... Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory." [ADDED: It's 5-4, again, the typical conservative/liberal split, and Thomas — along with Scalia, Kennedy, and Alito — joins the Chief.]

UPDATE 5: Here's my discussion of the oral argument from last March: "[C]ongressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.... Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act." Apparently, the majority decided it was time.

UPDATE 6: That's it — and that's plenty! — for today. Here's the PDF of the opinion in Shelby County. I'll start a new post for that case, and I will also try to get to Adoptive Couple before long. 

"Why We Should Study Cancer Like We Study Ecosystems."

Oncology ≈ ecology.

[R]ather than labeling cancer as a group of mutated cells, as the thinking goes, we should see cancer as a disruption in the balance of a complex microenvironment in the human body. Like a damaging invasive beetle eating its way through forests in Colorado, a novel disease breaking out in populations of wild birds, or loggers mowing down parts of the Amazon rainforest, cancer throws a monkey wrench into an otherwise placid, balanced system.

And once the monkeys get wrenches your entire metaphorest goes into collapse.

"Supreme Court Puts New Pressure on Colleges to Justify Affirmative Action."

The Chronicle of Higher Education sums it up in a headline.

But I question "puts." Will schools really feel that pressure? The court receiving Fisher v. University of Texas on remand feels some pressure as it must reexamine — once more, with feeling — the evidence already assembled. The University of Texas will feel some pressure to point out how the Court of Appeals can say what it said before in a newly convincing way — without all that language about deference and presumption of good faith. And maybe eventually this will wend its way back to the Supreme Court. Is anyone else really feeling pressure?

It seems to me that the Court has once again said what it always says about affirmative action and admissions: 1. Here, have some more time, and 2. Could you please speak about what you are doing in a somewhat more palatable way, okay, thanks?

Rains destroy lettuce crop...

... at Meadhouse:

Watching Nik Wallenda tightrope walk over the Grand Canyon, weren't you thinking what I was thinking?

What the hell kind of jeans are you wearing, Nik?

"To live intensely, as he wanted, would speed up the illness and shorten the life available."

"In 1901 at forty-one, now ill beyond any denial and forced to live in the warm climate of the Black Sea, Chekhov married a lively and successful actress who worked in Moscow. The frequent trips from the hot south to the freezing capital were, his doctor observed, the worst-case scenario for his sickness. And indeed so many of Chekhov’s characters seem to make the worst possible, if not suicidal, choices."

"In such situations, it is not ever an animal’s 'fault' — it is the dog-owner’s fault, of course."

"Seeing a dog-owner with a massive dog, we are likely to think that the dog-owner is enjoying his spurious power: he can cause extreme suffering, if he wishes to, and so we must be grateful that he is reining in his animal, which would love to bark and rush at us. A dog is an expression of its owner’s fantasy-self—perhaps?"

Says Joyce Carol Oates, explaining her story "Mastiff," which begins:

Earlier, on the trail, they’d seen it. The massive dog. Tugging at its master’s leash, so that the young man’s calves bulged with muscle as he fought to hold the dog back. Grunting what sounded like “Damn, Rob-roy! Damn dog!” in a tone of exasperated affection.

Mastiff... massive... master...

Rob-Roy?

Robert Roy MacGregor (Scottish Gaelic: Raibeart Ruadh MacGriogair; baptised 7 March 1671 – 28 December 1734), usually known simply as Rob Roy or alternately Red MacGregor, was a famous Scottish folk hero and outlaw of the early 18th century, who is sometimes known as the Scottish Robin Hood. Rob Roy is anglicised from the Gaelic Raibeart Ruadh, or Red Robert. (He had red hair, Ruadh being Gaelic for red-haired, though it darkened to auburn in later life.)

Names. What does it mean to name the dog Rob-Roy? Oates's scary mastiff isn't even red. He's black.

We were out on the north shore of Lake Mendota the other day with our borrowed black dog named Zeus. Along came another black Lab. "What's his name?" we ask, and the man says, "Thor."

Seeing a dog-owner with a massive dog, we are likely to think that the dog-owner is enjoying his spurious power....

I google for an image of the god Thor, and Google autocompletes to Thoreau...

"We have no relation to Mr. Snowden, his relations with the American justice or his travel around the world."

"He chooses his route himself, and we have learned about it from the media," said Russia's foreign minister Sergey Lavrov.

"We consider the attempts to accuse Russia of violation of U.S. laws and even some sort of conspiracy, which on top of all that are accompanied by threats, as absolutely ungrounded and unacceptable," Lavrov said. "There are no legal grounds for such conduct of U.S. officials, and we proceed from that."

I think back to what Michael Haz wrote in the comments to yesterday's Edward Snowden post:

Mr. Snowden, his computers and everything stored in his brain are now in possession of the KGB. He will now fully understand the meaning of the word 'disappeared'.

The press, the Department of State and Barack Obama have all been played for the rubes they are by Vladimir Putin. And there is nothing any of them can do about it. The amateurs have met the pro, and the pro won, then erased all tracks.

Meanwhile, 20 or so reporters were thrown way off the track as they happily enclosed themselves in a Snowdenless, Cuba-bound metal tube for 12 hours. What newsless meditations did they hammer out for publication? The New Yorker's John Cassidy lambasted the on-the-tube, not-in-the-tube newsmediafolk like David Gregory who, he asserts, have demonized Edward Snowden:

Snowden took classified documents from his employer, which surely broke the law. But his real crime was confirming that the intelligence agencies, despite their strenuous public denials, have been accumulating vast amounts of personal data from the American public. The puzzle is why so many media commentators continue to toe the official line. About the best explanation I’ve seen came from Josh Marshall, the founder of T.P.M., who has been one of Snowden’s critics. In a post that followed the first wave of stories, Marshall wrote, “At the end of the day, for all its faults, the U.S. military is the armed force of a political community I identify with and a government I support. I’m not a bystander to it. I’m implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does.”

In the end, for all its faults... Marshall's going all last-paragraph-of-"1984." ("O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.") Except... Marshall never resisted.

Back to Cassidy:

I suspect that many Washington journalists, especially the types who go on Sunday talk shows, feel the way Marshall does, but perhaps don’t have his level of self-awareness. It’s not just a matter of defending the Obama Administration, although there’s probably a bit of that. 

Oh, just a tad. Probably! But...

It’s something deeper, which has to do with attitudes toward authority. Proud of their craft and good at what they do, successful journalists like to think of themselves as fiercely independent. 

Like to... but trapped on Aeroflot flight to Cuba, you start noticing your lack of independence. And those journalists who didn't get bamboozled into your lamentable predicament look so enragingly smug.

It’s not surprising that some of them share Marshall’s view of Snowden as “some young guy I’ve never heard of before who espouses a political philosophy I don’t agree with and is now seeking refuge abroad for breaking the law.”

A political philosophy I don’t agree with.... What is that? Resistance to big government? Cassidy — who says — he's "with Snowden" because he's "the underdog" — ends with "Which side are you on?" which is the title of an old union song. Here's Pete Seeger singing it. Bob Dylan repurposed it in "Desolation Row":

Praise be to Nero’s Neptune
The Titanic sails at dawn
And everybody’s shouting
“Which Side Are You On?”

Unlike the Titanic, the Aeroflot flight reached its destination uneventfully.

All these people that you mention
Yes, I know them, they’re quite lame
I had to rearrange their faces
And give them all another name

"Things I Learned in My Twenty-Four Hour Althouse Comment Withdrawal."

From betamax3000 (at 12 midnight):

• the Shakes -- they Get Real Bad;

• Twenty-Four Hours is A Long Period of Time When You Deny Yourself;

• the Baby Spiders are Real;

• I Love the Commenters: Read All the Posts, All Day, Tongue Bound, and Realized in Retrospect that -- Perhaps -- I Occasionally Suck Too Much Oxygen From the Room;

• Still Don't Quite Get Central Time;

• the Scientology "No Fear' Paradigm Crosses Neuropaths with Cruel Neutrality: when I get it Down to Four Paragraphs I Will Thrust it Sideways Into a Thread about Gabe Kaplan;

• it -- Technically -- is Not a Burning Sensation.

I do not discount the role of  El Pollo Raylan's summoning: "Beta come back!" — which took us to another dimension, a dimension not only of sight and sound, but of mind.

Lem sighed relief:

I think I can say tonight that we are in Betamax debt. From now on it will be possible to risk loosing wifi knowing that it is a survivable non-event thanks to the courage and determination of one man. and his name is Betamax.

And:

Still Don't Quite Get Central Time;

Its like Althouse politics, I think.

That's exactly right. And then betamax3000 said:

At the Metaphorical Althouse Denny's I want More hash Browns and Non-Dairy Creamer: I am building a Mountain.

And I say: This means something. This is important.



Loose the WiFi!