Democrats' Reaction to Anti-choice Edict Shows Party Out-of-Touch in Joe Biden

Update: See also Kavanagh, CounterPunch: "The Democratic Party knows exactly what it’s doing when it repeatedly supports and promotes anti-abortion-rights candidates against abortion-rights supporters—like Tim Kaine in 2016, Henry Cuellar this year, and its current leader, Joe Biden, who for years said that Roe 'went too far; and supported a constitutional amendment to overturn it, because he did not 'think that a woman has the sole right to say what should happen to her body.'"

Madison, Wisconsin — Joe Biden's most prominent statement to date following the Dobbs opinion abolishing women's liberty to decide to bear children is to castigate reproductive choice "activists" for not being "mainstream" Democrats.

The statement delivered in June by outgoing White House communications director Kate Bedingfield, a Biden loyalist, was striking in its dismissal of reproductive liberty "activists," stating their need to join Biden's anti-choice political commitments, (Ashley Parker, Yasmeen Abutaleb and Tyler Pager, Washington Post).

Kate Bedingfield's statement is reproduced below from the July Washington Post: a story that is virtually blacked-out on MSNBC.

The president has been showing his deep outrage as an American and executing his bold plan — which is the product of months of hard work — ever since this decision was handed down.

Joe Biden’s goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party. It’s to deliver help to women who are in danger and assemble a broad-based coalition to defend a woman’s right to choose now, just as he assembled such a coalition to win during the 2020 campaign.

This follows Biden's May refusal to do engage.

"Do something, Democrats," rang out in D.C. in May, Reuters reports. 

Nothing from Joe Biden. Nothing.

U.S. Supreme Court, State and Federal Judiciary Need Radical Reform

Madison, Wisconsin — If you ever have spoken with a mother of a wrongfully convicted victim, you know why you should work to free the innocent and condemn the judiciary.

Mothers are up against unyielding judges and prosecutors who operate in collusion with other politicians, against the innocent.

The judiciary branch at all levels of operation is often a black-robed bulwark against justice. All those wrongful convictions we hear about in the news?

These miscarriages of justice are presided over by judges, but it's taboo to point out that strutting judges have ruined lives, and that judges are catastrophically wrong in how they conducted themselves.

Judges, especially federal judges, are commonly absurd figures, yet unless you read Lara Bazelon (as one should), this reality of the judiciary is protected by professional taboo, cult command, corporate media and Democrats.

Richard Posner, public intellectual and former judge on the Court of Appeals for the Seventh Circuit, upon his retirement, termed many federal judges, "reactionary beasts," manipulating statutes and the Constitution as they engineer desired results in federal litigation.

But even Posner shied away from a full-blooded critique for reasons unknown.

The United States Supreme Court is poised to launch a massive assault against liberty, and escalate judicial malice to a new level — the long-planned destruction of women's liberty, in accordance with the Catholic Church and other political actors.

This coming instantaneous ripping away of foundational rights is not inducing national Democratic Party voices to demand radical reform of the judiciary branch (Roe v. Wade, Politico, Dobbs v. Jackson Women’s Health Organization). Last year, at oral arguments in Dobbs, Democrats offered statements that they may be open to considering and looking at the issue of Court reform and not "doing nothing." Seriously, that's what Democrats had to say on the eve of the destruction of Roe, and Planned Parenthood v. Casey.

Rules of Professional Conduct of attorneys generally protect the judges' cult, and broadly forbid attorneys from pointing out intellectually dishonest operations of judges and other attorneys.

In fact, attorneys operate under an affirmative duty to "further the public's ... confidence in the rule of law and the justice system." Democrats in Congress and the presidency follow these taboo dictates, no matter the provocation.

Even when the justice system and its actors are dishonest and destructive. Can you imagine a member of Congress or a president demanding public confidence and respect, on the pain of contempt and imprisonment? Their popularity would tank immediately, and such officials would be suspected of having taken leave of their senses.

Not so the judiciary branch.

Writes Lara Bazelon in The Strand Magazine in June 2021:

Judges are the kings and queens of the legal system, literally looking at the populace they rule over from perches high up on a mahogany dais.  Referred to as 'Your Honor,' they demand constant verbal genuflection and scurrying about in response to their commands that is the equivalent of bowing and scraping.

'God save the United States and this Honorable Court!' the U.S. Marshal solemnly intones after the gavel comes down, a roomful of people stand up, and the nine justices of the Supreme Court enter the hallowed marble fiefdom where they preside.

In federal court, you don’t go anywhere or do anything without asking for permission.  'May it please the court?' 'May I approach?' 'May I confer with my client?' 'May I ask for a brief recess so that I can go to the bathroom and throw up because even though I am deathly ill you made me show up anyway?'

Judges are the closest thing that America has to royalty. Their power is enormous: what they do changes the courses of fortunes and lives.  They can award millions, even billions, they can send people to prison for the rest of their lives—or to their deaths. Often their decisions bind future generations. Because judges have so much power and responsibility, we assume they are eminently deserving of the honor and authority conferred upon them.

As the Dobbs leak shows, the judiciary does not function in an intellectually honest, apolitical fashion objectively finding facts, doctrine and application of law like detached agents of pure epistemology, hard science enforced by tyrannical control of courtrooms and taboo rules against public criticism.

Judges act as black-robed kobolds, diminutive "goblin-like creatures with short-tempers and a mischievous spirit."

Congress needs to begin reform of the judiciary that will include mandates that every oral argument, judicial memo and correspondence be revealed to the American people in as close to real-time as possible.

Judges cannot be trusted with the honor and authority conferred upon them.

The institutional narcissism and unparalleled arrogance of the judicial branch, working for totalitarian movements, needs to come to an end.

Wisconsin in Waiting Mode for Democracy Protection and Restoration

Madison, Wisconsin—Citizens here are waiting for a ruling from the United States Supreme Court to find out if democracy will survive in Wisconsin.

Republicans have transformed election law to obstruct voters, empowered white poll workers to suppress voters, gerrymandered state and congressional districts to elect as many Republicans as possible, infused dark money, among other anti-democracy efforts.

The objective is to enact Republican public policy in opposition to the public will.

One example is the legislative and administrative law attack on clean and safe water creating a crisis that has sent children to the Emergency Room, imperiled the health of communities and polluted rivers, streams, lakes and aquifers

Gov. Scott Walker threw in a new voter obstruction technique this year: Refusing to hold elections to fill vacant legislative seats.

In state senate district one in northeastern Wisconsin, State Sen. Frank Lasee, (R-De Pere), resigned in Dec, 2017. Gov. Scott Walker has publicly refused to call a special election that most observers believe the GOP would lose though the district is gerrymandered Republican.

The Democratic Party of Wisconsin to this point has not launched a public case calling for a special election. One Door County resident in senate district one told me, "nobody is doing anything, the Democrats?" He laughed.

Can you imagine if the roles were reversed? Republican outrage would blanket news coverage across the state.

Progressive writers are making the legal and political case for special elections, and it's writers filling the void where one would reasonably expect the Democratic Party to be.

Meanwhile, voters wait for the Supreme Court to rule on the Gill v. Whitford gerrymandering case from Wisconsin, in light of positive legal developments for voters and democracy against North Carolina Republicans.

From the Raleigh News Observer:

Rick Hasen, a professor at California-Irvine, is often said to be the nation’s leading election law expert. Hasen wrote that the decision could hardly be seen as a surprise, given what our legislature did. 'If there is any case that could be invalidated as a partisan gerrymander, it is this one,' he indicated. It is 'the most brazen and egregious' political electoral distortion yet seen in the United States. North Carolina leaders 'admitted the practice, but argued it should be seen as perfectly legal.'

The Supreme Court stayed the federal court ruling pending appeal. And it is unlikely the review will be squeezed into the current term, given the late scheduling adjustments that would be demanded. The court presently has two political gerrymandering cases on the docket. But Hasen thinks the impact of the North Carolina decision will be felt immediately. The court now knows 'what the future of gerrymandering will look like if it is doesn’t act in the Wisconsin or Maryland cases,' Hasen wrote.

The future would look even better with an energetic, activist and effective Democratic Party of Wisconsin safeguarding democracy.

Now, we look mostly to the courts for that kind of thing.

U.S. Fed Court Strikes GOP NC Gerrymandering; Opinion Bolds Well for Wisconsin Case at SCOTUS

A three-judge U.S. District Court panel struck down today the Republican-drawn gerrymandering map in North Carolina as unconstitutional.

Pro-voting rights advocates applauded the decision.

Anti-democracy forces of the Republican Party working for a One Party county say in reaction to the decision that because federal courts had not ruled previously to stop partisan gerrymandering, they should not rule so now, (The News and Observer).

Republicans reject social scientific evidence and constitutional reasoning in gerrymandering cases including this North Carolina case, Common Cause, et al v. Robert A. Rucho, and League of Women Voters, et al. v. Robert A. Rucho.

Wisconsin advocates of constitutional rights have cause to applaud the decision as they await the ruling of Gill v. Whitford at the United States Supreme Court.

The Republican gerrymandering effort is part of its larger anti-democratic project pursued against American citizens.
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From Nicholas Stephanopoulos in the Election Law Blog:

[T]he [North Carolina] court properly distinguished between the legal standard itself (the above three-part test) and quantitative evidence that is used to prove violations of the standard. This distinction eluded the defendants both here and in Whitford, who persistently conflated social science metrics with the underlying constitutional command. The court, though, observed that "plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward," adding that "these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards." The court further criticized the defendants for their "cynical" view that analysis should be discarded if it has "its genesis in academic research." "It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods." "The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories."

[T]he court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate. The court repeatedly defined gerrymandering as "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power." The court also observed that gerrymandering "constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will." And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process. Gerrymandering, of course, is the quintessential political malfunction.
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Supreme Court's Aversion to Social Science Is Perverse

Gill v Whitford Gerrymandering—An Easy Case That Would Destroy Republican Rule

Updated: Housing-discrimination litigation in federal court since the 1960s has often relied upon social scientific evidence — the Taueber dissimilarity and progeny measures — to demonstrate residential and urban segregation, a phenomena akin to American apartheid.

Milwaukee, site of the 2020 Democratic National Convention, remains the most segregated metropolitan urban area in the country, the perennial champ, (WISN News). It's apropos the DNC holds its fete in Milwaukee, as Wisconsin is the state on which the Court punted a decision to protect liberties.

Mayor Tom Barrett (D) is a de facto supporter of segregation and racial discrimination including routine violence, especially when committed by the Milwaukee police, who work with the assurance Barrett has their back. At his best, Barrett is inadequate.

Barrett and much of the United States Supreme Court share a disdain towards empirical science as a tool of demonstrating and remedying unyielding features of American society — racism, segregation and police violence.

While the Democratic Party is picking likely the next president in Summer 2020, the Supreme Court will have decided in the Summer 2019 if the constitutional rights of citizens to vote are expansive, and whether social science can be again sanctioned as a means to demonstrate the latest iteration (redistricting) of the American project of denying rights for the purposes of maintaining power over individual liberty.

How the Democratic Party fares in this affair is an open question, about to get more explosive in the next 14 months than at any point in modern American history, as progress on civil rights could be set back 55 years.


Rucho v. Common Cause, Lamone v. Benisek will determine the fate of American democracy.

Milwaukee 2020 will offer a major reaction to these landmark cases determining for one thing the direction of Democratic administrations of major urban areas, and the role of the president against what could be a Supreme Court ripping up rights by rights at the direction of white fascistic Party.
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Earlier this month [October 2017] at oral argument of the likely precedent-setting Wisconsin gerrymandering case, Republican justices displayed an obtuse mind-set revealing an incapacity to consider social scientific findings in determining whether a statute is unconstitutional, (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Writes Oliver Roeder this morning at Five-thirty-eight.com:

The Supreme Court does not compute. Or at least some of its members would rather not. The justices, the most powerful jurists in the land, seem to have a reluctance — even an allergy — to taking math and statistics seriously.

For decades, the court has struggled with quantitative evidence of all kinds in a wide variety of cases. Sometimes justices ignore this evidence. Sometimes they misinterpret it. And sometimes they cast it aside in order to hold on to more traditional legal arguments. (And, yes, sometimes they also listen to the numbers.) Yet the world itself is becoming more computationally driven, and some of those computations will need to be adjudicated before long. Some major artificial intelligence case will likely come across the court’s desk in the next decade, for example. By voicing an unwillingness to engage with data-driven empiricism, justices — and thus the court — are at risk of making decisions without fully grappling with the evidence.

This problem was on full display earlier this month, when the Supreme Court heard arguments in Gill v. Whitford, a case that will determine the future of partisan gerrymandering — and the contours of American democracy along with it. As my colleague Galen Druke has reported, the case hinges on math: Is there a way to measure a map’s partisan bias and to create a standard for when a gerrymandered map infringes on voters’ rights?

It's not that rightwing justices like Thomas, Gorsuch, Roberts and Alito cannot comprehend empirical investigation. It is that they do not care to when they are presented findings that point to a remedy helping disfavored segments of the population against whom these legal politicians have been appointed to work.

Without a United States Supreme Court ruling protecting Americans from the Republican Party's gerrymandering drawn after computer simulation after simulation to effectively take citizens out of the loop in democratic elections, Republican rule over citizens is all-but-guaranteed in the future.

In response to the early October oral argument of Gill v. Whitofrd, Nicholas Stephanopoulos, professor at the University of Chicago Law School specializing in election law, penned a column in Slate Magazine spelling out the criteria identifying an unconstitutional gerrymanders. (See also Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case.]

Writes Stephanopoulos:

As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a 'steak rub.' That is, it should not be imprecise and opaque in its makeup: 'I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.' In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:

1. Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.
   
   
2. Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.
   
   
3. Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.
   
   
4. Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that satisfy the state’s legitimate redistricting criteria. The challenged plan’s asymmetry is unjustified only if it exceeds that of most of the simulated maps.

Under this approach, there would be some easy cases, like the Wisconsin State Assembly plan at issue in Whitford. This plan’s authors admitted its pro-Republican intent. Its partisan asymmetry is worse than that of any map nationwide between 1972 and 2010. Its asymmetry would persist even if there was a massive Democratic wave. And its asymmetry is larger than that of any simulated assembly map. Conversely, it’s clear a plan would be upheld if it was designed through a bipartisan or nonpartisan process, if its asymmetry was historically small, if its asymmetry would disappear under slightly different electoral conditions, or if it was no more asymmetric than most simulated maps.

In playing dumb, social dominators like Gorsuch, Alito, Roberts and Thomas continue a sordid tradition in federal litigation of liberty claims the last 65 years. Unequal public schools? Public accommodation of ethnic minorities? Housing discrimination? Equality of law and processes? Voting? What? Do we litigate every public functioning and process if someone makes a liberty claim?

It may not seem like it at the moment, but Republican rule is imperiled as at any point in post-World War II history, and Gill v. Whitford is one of the last chances Republicans have to hang onto to power for 50 years against the will of the population.

One must hate the fact that Anthony Kennedy has become the pivotal vote again in this critical case for Americans when this man is mired in mediocrity.

Richard Posner Blows Whistle on Federal Judiciary

Readers note persuasively that career-changing federal appellate Judge Richard Poser blew the whistle on the federal judiciary as a whole as intellectually dishonest pols pursuing results in federal litigation.

Judge Richard Posner announced his resignation from the Court of Appeals for the Seventh Circuit earlier this month.

In an exit interview with Adam Liptak in the New York Times, Posner made comments implicitly and explicitly critical of federal judges, in response to Liptak's questions: 

'Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.'

'A lot of the people who say that are sincere,' he said. 'That’s their conception of law. That’s fine.'

He said he had less sympathy for the second camp [of his critics]. 'There are others who are just, you know, reactionary beasts,' he said. 'They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.'

That judges at every level of the judiciary seek results over the law is obvious.

Judges because their actions matter to real people are a destructive and worrisome force, largely unexamined in American society, and actors whose duplicity is cringe-worthy.

Judge Richard Posner Quits Bench, Hits "Reactionary Beasts" as Unfaithful to Constitution

The sudden news this month that an intellectual is resigning from the Court of Appeals for the Seventh Circuit should cause alarm about the future of liberty claims in federal litigation.

Judge Richard Posner announced his resignation as the federal judiciary branch is populated by ever-more brazen rightwingers and politicians.

Notes Adam Liptak in the New York Times this morning in a column on Posner's resignation:

In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold and calculating conservative.

That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.

Liberal as in recognizing the Constitutional rights of American citizens that used to guide consideration of litigation in the federal courts.

New York Times is worth a read this morning on the career and influence of this public intellectual.

Despite the self-importance with which the federal judiciary, and most judges, conduct themselves, Posner casts most judges as anti-intellectual, especially rightwingers of whom he says, "There are others who are just, you know, reactionary beasts. They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way."

Civil Liberties Win Against Police-Prosecutor State in Odonnell v. Harris County

Odonnell v. Harris County, Texas, (Civil Action No H-16-1414)

Madison, Wisconsin — There's a story in Dane County Wisconsin that's been circulating among jurists, academics, journalists and myriad civil liberties activists for years.

The story goes like this: A civil liberties activist and a cop are sharing a ride, making small talk.

As the car proceeds, the cop repeatedly points out the window to pedestrians on the sidewalk or crossing the street, saying, "he's a perp[atrator]" and "she's a perp[atrator]," noting the cloths worn, posture taken, the gait (one's manner of walking), and other visible traits purportedly marking people as latent criminals.

The black and brown criminal pedestrians were apparently the easiest to spot; I mean what's this young, black dude up to, if not trouble. This is profiling, not policing.

As pretextual stops of cars continue, (drivers are easier to pull over than pedestrians), municipal police are armed with a powerful weapon to imprison perps, and the perps don't even have to be convicted of a traffic offense: Cops just cite drivers for whatever they can think of and sympathetic judges will set bail for $1,000s and some perps can't pay so the perps stay in jail. Problem solved. [Worked great for Sandra Bland who eventually committed suicide; Ms. Bland had often criticized police for killing people so tossing her in a cell was justice, in the minds of many municipal police.]

Pre-conviction fines, court deposits, bails do not have to originate from traffic violations, any civil citation will do, and with respect to clear violations of equal protection and due process: Tell it to the judge. This means a lot of latent criminal folks land up in jail.

Now comes a major civil liberties case out of the United States Court for the Southern District of Texas, (Houston Division), heard by Lee H. Rosenthal, Chief, United States District Judge, (Ballotpedia), (Federal Judicial Center).

The case is Odonnell, et al. v. Harris County, Texas et al, (Civil Action No. H-16-1414). Odonnell may end this despicable practice of municipal police and court systems.

Writes Lee Rosenberg in the New York Times in late April 2017:

A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail.

The ruling, part of a civil rights lawsuit against the county, came Friday in a case that began when a woman was arrested on a charge of driving without a license and spent more than two days in jail because she could not post $2,500 in bail.

Judge Rosenthal wrote in the ruling, 'Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.' She cited statistics showing that 40 percent of people arrested on misdemeanor charges in the county had been detained until their cases were resolved.

The order is not final; it is a temporary measure as the larger case works its way through the courts. But legal scholars and the groups that brought the case said the ruling was a victory in the movement to overhaul the bail system that has been growing around the country. Judge Rosenthal’s order came after eight days of witness testimony and the presentation of volumes of evidence — 300 written exhibits, and 2,300 video recordings of hearings in which bail was set.

A May 5 New York Times editorial spells out what is at stake in Odonnell:

Maranda Lynn ODonnell, a 22-year-old single mother in Harris County, Tex., was arrested last year for driving without a valid license. The judge set her bail at $2,500. She couldn’t afford anything close to that, so she spent three days in jail — even though she posed no risk of skipping town or endangering anyone if she were released.

'In our society,' the Supreme Court has held (in) [United States v. Salerno 481 U.S. 739 (1987)], 'liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.' Yet across America, poor people like Ms. ODonnell are held in jail for days, weeks or even months solely because they don’t have the cash to bail themselves out. All of them are presumed innocent under the law, and many may in fact be innocent, yet most plead guilty just to get out (usually with a sentence of time served). It’s a repulsive practice, and last week, in a case that could have national implications for bail reform, a Federal District Court judge in Houston ruled that it was also unconstitutional.

In a 193-page ruling that followed a lengthy trial, the judge, Lee Rosenthal, said that money bail should be used for people charged with misdemeanors 'only in the narrowest of cases,' and even then only when there are strong safeguards in place to ensure that defendants receive due process before being locked up.

Harris County, which includes Houston and has the third-largest jail system in the country, fails on both counts, Judge Rosenthal said. Judges there require defendants to post bail, regardless of ability to pay, likelihood that they won’t return to court or how minor the charges are.

As a result, poor people charged with a misdemeanor end up stuck behind bars, while people with money who are charged with the same offense walk free.

The county’s lawyer defended this policy by arguing that poor defendants — who are disproportionately black and Latino — stay in jail not because they can’t buy their way out but because they 'want' to be there, especially 'if it’s a cold week.' Judge Rosenthal called this despicable claim 'uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery.'

The real explanation is straightforward: As cash bail has fueled a politically influential, multibillion-dollar industry, courts are relying on it more, and people who can’t afford it are getting locked up at ever greater rates. Judge Rosenthal noted that only two decades ago, less than one-third of people in Texas jails were awaiting trial; today, it’s three-quarters. Forty percent of all misdemeanor defendants in Texas are locked up until their cases are resolved, at a huge cost to the state, and most because they can’t afford bail. ...

The ruling in the Harris County case is temporary, but its broader significance lies in the slew of factual findings Judge Rosenthal made and the legal conclusions she reached. Her careful reasoning could transform the growing debate over bail reform nationwide, where an estimated 450,000 people are held in pretrial detention on a given day.

Whether people, as viewed by some police and some local judges, are unconvicted criminals walking, driving, holding pro-civil liberties views and voicing these views, neither "police power nor judicial discretion are boundless," as noted by Judge Rosenthal, (p. 188).

The GOP's War on Marriage and the 14th Amendment

Equal protection and due process—we have come a long way, baby but 14th Amendment cases involving marriage rights is one battle of a wider war launched by the GOP and judges such as Antonin Scalia against the 14th Amendment.

U.S. District Judge Robert Shelby has directly applied the Supreme Court’s decision (United States v. Windsor (2013)) that struck down the federal Defense of Marriage Act to a state’s (Utah) ban on same-sex marriage on Constitutional grounds.

"The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity," U.S. District Judge Robert J. Shelby writes in his 53-page opinion. Utah is blazing a path for Australia, India and Russia.

Judge Shelby writes: ''The court holds that Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law. The state's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,'' reports Erik Eckholm and John Schwartz in the New York Times.

As noted by Dylan Scott in Talking Points Memo, Shelby cites anti-same-sex marriage Justice Scalia several times from this statist reactionary's dissent in United States v. Windsor (2013) using Scalia's words comprising legal logic leading to Constitutional rights ultimately being guaranteed to Americans of the same sex who wish to be married:

From beginning to end of Shelby's opinion Friday, in four different citations scattered throughout, he favorably cited Scalia's dissent, buttressing his legal analysis with Scalia's warnings.

In its 5-4 decision in June, the Supreme Court held that the federal Defense of Marriage Act was unconstitutional because it violated individual liberty, but did not rule that all state bans on gay marriage were unconstitutional. In his dissent in the case, United States v. Windsor, Scalia wrote that the majority opinion's logic would inevitably lead to the state bans being declared unconstitutional ... .

Scalia is right.

Consider also Scalia's dissent in Lawrence v. Texas (2003): "Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda (sic), by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.'"

How ghastly, criminalization that is.

Moral opprobrium is indeed an evolving concept now attaching to jurisprudence, as Justice Scalia may not have anticipated.

Seventy percent of American cannot legally marry. There are 76 Countries where anti-gay laws are as bad as or worse than Russia’s. Mauritania is one of four African countries where same-sex relations between men can result in the death penalty. Homosexuality is illegal in 41 out of 53 Commonwealth countries.

As the Toronto Globe and Mail writes, "The global struggle for sexual justice for all has come extraordinarily far in a short time, but it's far from over. "(Robert Leckey. December 13, 2013)

Advise reading Judge Posner's new book Reflections on Judging (Harvard University Press, 2013) and checking out Posner's book for holiday fun as Posner devotes part of Reflections eviscerating Scalia's "textualism" or "originalism." Posner ridicules Scalia's approach as 'gotcha' jurisprudence (p. 182) in Posner's turgid yet acerbic style.

Not just Judge Shelby and Scalia has taken to effectively using Scalia at Scalia expense.


Consider Scalia in Lawrence v. Texas (2003), in his own bizarre dissent:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda (sic), by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

Moral opprobrium is indeed an evolving concept morphing into jurisprudence, as Justice Scalia feared.


Consider Laurence H. Tribe's piece on Hollingworth v. Perry (2013). Tribe writes: "But Justice Scalia – in a portion of his dissent that Chief Justice Roberts conspicuously declined to join – couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms. I write this comment principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent." (Tribe. DOMA, Prop 8, and Justice Scalia’s intemperate dissent. June 26th; SCOTUSBlog)

More than 30 states, including Wisconsin, have passed amendments or laws restricting marriage to a man and a woman.

The Supreme Court has not ruled on whether state constitutional amendments limiting marriage to a man and a woman are inherently unconstitutional under the 14th Amendment. That challenge may reach the Supreme Court in 2016.

And Scalia would be only to happy to follow his Party as it blasts away at gays, blacks, Latinos and whichever group the Republicans can find to blame for America's challenges.