Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.

The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:

Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....

[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 

Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.

“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.

Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.

Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”

Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

Fending off the genderistic nonsense about Janet Yellen.

"For years, the Federal Reserve has been led by men who had a scientistic view of monetary policy. These men – including Paul Volcker, Alan Greenspan, and Ben Bernanke... – viewed the job of running the country's economy as if they were dealing with chemical reactions or physics experiments," writes Kevin Roose, in a New York Magazine piece titled "Welcome to the Humanist Federal Reserve, Led By Janet Yellen."

[Janet Yellen] looks at the economy not just as a series of charts and figures, but as a moving, breathing organism, a collection of millions of people who are struggling to make their lives better today than they were yesterday.

Roose — who refrains from saying he attributes Yellen's difference to her gender difference — cites a Yellen speech at an AFL-CIO-sponsored conference that he says is "a remarkable look at the empathy she brings to policy-making." Empathy... visualizing the economy as a moving, breathing organism....

She... speaks about unemployment not just as an economic problem, but as a humanitarian crisis....

No matter what else it does, we know a Yellen-led Fed would use the tools of monetary policy to help millions of struggling Americans get back on their feet. And it's just one of the reasons I'm thrilled with the Yellen nomination.

This feels like gender-based claptrap to me, and I'm reeling in feelings from the furthest reaches of my female nervous system. Why wouldn't any bank official speaking at an AFL-CIO-sponsored conference include verbiage about the struggles of ordinary workers?

By the way, what is a "scientistic view"? Is it that way that men perceive? Wikipedia defines "scientism" as "a term used, often pejoratively, to refer to belief in the universal applicability of the scientific method and approach, and the view that empirical science constitutes the most authoritative worldview or most valuable part of human learning to the exclusion of other viewpoints."

Roose slathers Yellen in praise, but he's rolling out the usual stereotypes. Ironically, he's not female, and yet he's displaying some "woman's way of knowing" to arrive at a belief that Yellen will help people because she feels and cares. This reminds me of the murmurings about "empathy" and "heart" that burbled from Obama when he nominated Sonia Sotomayor for the Supreme Court. She resisted the concept:

I can only explain what I think judges should do, which is judges can't rely on what's in their heart.... The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

I'll bet Yellen fends off the genderistic nonsense in just about exactly the same way.

Justice Sotomayor says that "a meaningful person" is a person who is: 1. "interesting" and 2. "giving."

The Supreme Court Justice was talking to University of Delaware students:

“What will make you a meaningful person in life is two things,” she said. “That you become an interesting person by learning as many new things as you can every single day you live, ... and that you use that knowledge in a way in which you’re giving to people.”

“It really doesn’t matter what kind of work you do,” she added. “... Do things that interest you and excite you and satisfy whatever skills and intellectual challenges you like puzzling over.... Even number crunchers do great things.”

You can pick apart some of these premises, stated and unstated, but what appeals to me is the importance of being an interesting person.

Usually the stress is on gaining education and then using it to make contributions that will benefit others and make the world a better place. I don't know if Sotomayor really meant to say this, but the words imply that being an "interesting person" is an end in itself. Or is it that others are benefited and the world is a better place if there are "interesting persons" out and about?

Note too that Sotomayor says that the constant pursuit of learning should be driven by "things that interest you and excite you." You need to have interests and then — powered along by interests — become interesting.

That's putting a lot of value on interestingness. I'm quite interested in that, because in blogging, the standard — for me, anyway — is interestingness. What's interesting now? (And now? And now?) Interestingly enough, right now, the interesting thing is interestingness. Isn't that interesting?

ADDED: The opposite of interesting is boring. A less-nice way of making Sotomayor's point is: Don't be boring. And don't be bored. Don't do what bores you, and that should make you not boring. Others are benefited and the world is a better place if you are not boring.

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.

"There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding."

The decorous Justice Kennedy, writing for the majority in today's opinion in Fisher v. University of Texas, refraining even from saying the word "overrule."

Revisit... as if we'll be paying a social call.

ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:




Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":



So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.

ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:

Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)

A fractured opinion about when the police can draw blood for a warrant after a drunk-driving arrest.

It's hard to know where to start in this new opinion, Missouri v. McNeely:

Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

I start with Justice Thomas, who says the natural dissipation of alcohol in the blood is always the "exigent circumstance" that avoids the warrant requirement.  He gives a clear rule.


The Chief Justice writes:

I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

He would say that the natural dissipation of alcohol in the blood is an exigent circumstance unless there is time to get a warrant. He wants something closer to a rule.  Kennedy, who is the one who deprives Sotomayor of a majority in some parts of her opinion, wants less of a rule from the Court, so that states and local governments can work out their own rules.

And here's Sotomayor:

The State’s proposed per se rule... fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple....

Basically, using the telephone, it can be made very easy to get these warrants. You wouldn't want to remove the incentive on the police to set up these procedures and to make them efficient and thus to avoid the destruction-of-evidence problem.

"[P]rohibiting polygamy on 'feminist' grounds — that these marriages are inherently degrading to the women involved — is misguided."

"The case for polygamy is, in fact, a feminist one and shows women the respect we deserve."

Here’s the thing: As women, we really can make our own choices. We just might choose things people don’t like. If a woman wants to marry a man, that’s great. If she wants to marry another woman, that’s great too. If she wants to marry a hipster, well — I suppose that’s the price of freedom. And if she wants to marry a man with three other wives, that’s her damn choice...

The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less "correct" than marriage among three (or four, or six) consenting adults. Though polygamists are a minority — a tiny minority, in fact — freedom has no value unless it extends to even the smallest and most marginalized groups among us. So let’s fight for marriage equality until it extends to every same-sex couple in the United States — and then let’s keep fighting. We’re not done yet.

I'm not endorsing this. Just anticipating that many readers will want to talk about it.

IN THE COMMENTS: Salamandyr said:

Am I right that her argument is that something is only bad if it hurts women?

Leo said:

@Salamandyr wasn't feminist grounds the example used in the supreme court when Sotomayor asked about this?

I'll answer that: Yes.



And for those who want to know my position: I note 2 completely different questions. 1. Should the state be able to criminalize the activities of more than 2 adults who engage in private rituals proclaiming that they are married and then claim to be married? and 2. Should the state recognize marriages with more than 2 adults for the purposes of tax laws and benefits programs? As to #1, I think this is a matter of individual autonomy, a combination of free speech, freedom of association, and freedom of religion, and the state must leave these people alone. As to #2, I think the state can limit marriage to couples. Here, I think there can be a limit across the board: Everyone can have one spouse. You can combine #1 and #2 and have one legal marriage and additional members of the household that you can call whatever you want. It's none of the government's business.

Mitch H. said:

Polygamy is everywhere a marker for poverty, instability, and edemic social disorder. It encourages social inequality, and generally results in the trade of women like cattle, such that big men collect and stockpile wives as status symbols, while surplus and marginal men turn to violence and crime in order to "get theirs."

As a social ill, it's not worse than adultery and fornication. Some men get multiple women and some men are on the outs. Why should the people who believe in polygamy be denied their version of the same thing? If your answer has to do with how they think about what their relationships are — that they think in terms of "marriage" — that shows why there is a freedom of speech/association/religion problem.

"Breaking: key vote Kennedy VERY uncomfortable striking down #prop8."

"Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

(Calling judicial review a "painful duty" has a long pedigree.)

MORE: Here, from SCOTUSblog's Tom Goldstein:

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

I'll say more when I've heard the argument myself. 

Sonia Sotomayor and Rita Moreno — on stage together for 90 minutes.

One's a 58-year-old Supreme Court Justice, the other's the 81-year-old actress who was in "West Side Story," but put them together and you've got 2 Latinas. It's a show! Maybe we can find some federal judge with Greek ancestry to do a show with George Chakiris....



He's dreamy. And only 78.

What do you ask them? George, how did you get your hair to look so great? Were you really one of the dancers in Marilyn Monroe's "Diamonds Are a Girl's Best Friend" routine? What did you and Marilyn gossip about?

Oh, but wait. That's not the show. The show is Sonia and Rita!

“I’m a raucous Puerto Rican!” she told the room. “I like to sing, I like to dance, I like to drink, I like to get buzzed.”

Guess which she? Hint: She had sex with Marlon Brando. 

"Juan Antonio Santacruz says he has sold quite a few tacos to Sotomayor, who frequents his Mexican restaurant, Tacos El Chilango."

"Chix and the Greek Spot are two other neighborhood restaurants Sotomayor has patronized.... Sotomayor sometimes stops by the Greek Spot after work to order the gyro platter, the owner says...."

A WaPo slideshow answering the question how Justice Sonia Sotomayor — who lived in the West Village when she was a federal judge in NYC — is adapting to the "distinctive rhythms" of the neighborhood where she lives in Washington. ("Distinctive rhythms" — is that politically correct? ) Here's the related article:

“U Street is the East Village,” said Sotomayor, who keeps a place in Manhattan’s West Village. “The East Village has been developing in the last 10 or 15 years, and I’ve often said if I was going to buy an apartment now, it probably would be in the East Village. So what did I do? I came to Washington and established a home in the East Village.”

If Sonia Sotomayor's autobiography has nothing at all about law or even politics...

... why would anyone read it?

The book, which covers her life prior to becoming a judge, barely says a word about the Constitution and even less about ideology. Yet one doesn't get the sense that politics were scrubbed from the text; it is rather that the topic isn't of much interest to the author.

That's what a good scrubbing job would do. So there's no bad scrubbing job leaving interesting residue.

One wishes she had shared her intellectual interests with us or discussed the books that captured her fancy or influenced her thinking, since she remarks more than once in "My Beloved World" that the library was a refuge for her as a schoolgirl and later at Princeton. Disclosing the names of books that influenced a childhood wouldn't compromise pending or future cases.

Welcome to the post-Bork world — a "beloved" world? — where judges are dutiful, neutral case processors. The very quality that makes a judge the kind of judge we've come to require — post-Bork — will embody a form of expression antithetical to a good memoir.

Sotomayor, the college years.

One slide in a long, narrated slideshow at NPR.com. I picked that one out because it's so different from the others and from every other photo I've ever seen of Sotomayor. NPR did the article to go with Justice Sotomayor's new autobiography, "My Beloved World."

What is Drudge trying to say about Sonia Sotomayor?

This is at the top of the right-hand column at Drudge this morning:



Now, as we saw last night, what Justice Sotomayor did was deny an emergency injunction. That would have required a finding that "the legal rights at issue are indisputably clear," which clearly, they are not. And her opinion never mentions "morning-after" pills, only contraception, generally. (The challenged HRSA’s guidelines refer to "all Food and Drug Administration . . . approved contraceptive methods.")

With that rather strange photograph and the reference to "morning-after," I've got to infer that Drudge intended sexual humor aimed at the Justice. I think the photograph was chosen for the "bedroom hair" and the groggy eyes. Or do you focus on the hand? Does it seem to be tossing pills at us?

"The Supreme Court on Wednesday refused to block the Obama administration's contraception mandate from taking effect."

"Justice Sonia Sotomayor rejected a request for an emergency injunction that would have shielded employers from the mandate."

Opinion: here:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.

That detail from Sonia Sotomayor's wedding night.

Seemingly the juiciest item in her new autobiography:

She married her high school sweetheart, Kevin Noonan, soon after they graduated from college.... [O]n their wedding night, Noonan produced a bag of Quaaludes that was a gift from his friends. She insisted he flush the pills down the toilet.

The book — not out until January — is called "My Beloved World."

Here's "Sonia Sotomayor: A Judge Grows in the Bronx / La juez que crecio en el Bronx" — the children's book version of her up-from-poverty story. Illustrated, inspiring, and drug-free.