Thursday, July 4, 2013

Ladies and Gentlemen - SCOTUS

Howdy, kiddos! So, while I was down, I missed a fair chunk of stuff. Also, I'm working from my broken laptop today, so y'all on your own for research. Let's talk SCOTUS, shall we?

Recently, SCOTUS (the Supreme Court of The United States, for those playing the home game) ruled not to hear the Prop 8 case on lack of standing grounds, and to over turn a lower court ruling on the same ground. They also struck down DOMA. These two rulings make me happy, naturally enough. I mean, I am gay. But I'm not entirely happy with SCOTUS.

And I'll tell you why. 

First off, Prop 8. Those suing were citizens, because the government of California had basically said, "well, fuck this" when the Northern California District Court struck it down on the grounds that majorities cannot vote to vacate minority rights. These concerned citizens took it up the line, and the Ninth Circuit Court of Appeals said the same thing. When it came before SCOTUS, they took a sidestep.

First off, two lower courts had already used a clear legal precedent to prevent the removal of minority rights by a majority. A similar ruling on the part of SCOTUS would have been a massive step forward. It wasn't even a hard ruling. Legally speaking, it was absolutely firm. Prop 8 was created to perform an end run on the legally established right of homosexuals to marry in California. It was a clear attempt to vacate a minority right that had been legally established. Instead, they went for a "lack of standing" argument.

Now, while those who were trying to get Prop 8 upheld did not have standing, it was a weasel move. The "lack of standing" argument has been used to make a number of things go away. In one case, Clapper v. Amnesty International, the court ruled that the plaintiffs had no standing to challenge the FISA Amendments Act of 2008. FISA allowed the NSA to perform surveillance without notice, warrant, or reasonable suspicion. Actually, they didn't even have to suspect their target. All those things Snowden leaked? That would be FISA at work.

And who were these plaintiffs? Lawyers, journalists, and human rights activists who communicated with individuals overseas and who would, under FISA, be viable targets for surveillance. After all, they're talking to people overseas. What if they're secretly terrorists!?

FISA placed an undue burden on these people to take extreme precautions ot protect the privacy of their clients and sources. SCOTUS reason for throwing them out of court? Since they couldn't show that they'd been targets of covert surveillance, they had no proof of clear harm. Yes, you read that right. To point out the obvious, the most recent person who demonstrated the ability to prove harm in these circumstances is Edward Snowden, and he's being charged with treason.

And the others who would be able to make a clear argument for direct harm are the actual terrorists the NSA steps up to provide evidence against. And last I checked, we tend to toss such people in deep holes and deprive them of as many rights as we can lay our hands on. Because hey, terrorists.

So yeah. If you can't obtain secure documentation outside legal channels, you can't sue to protect your right to privacy.

Next up: SCOTUS basis for the DOMA ruling, while exciting and long overdue, was made on moral grounds. Legally speaking, there unfortunately aren't grounds establishing homosexuality as a federally protected class. And regardless of how it benefits me, the ruling was still made using weasel language. The closest thing to a clear reason SCOTUS was able to give for their decision was to declare a malicious intent on Congress part. Which, as it can't be proved, means that SCOTUS disagreed with Congress, and made a law go away.

Despite the unjust law, despite the need for federal minority classification of homosexuals to prevent discrimination, I can't get too excited when a branch of the government writes a pseudo-legalistic argument to justify undermining another part of the government on the basis of opinion.

So, on that front, woooo! DOMA's gone! But also, a little unsettling that it's gone because five people decided it should be.

Now, I can almost hear people quoting Dr. King Jr. on the justness of laws, and the ethical call to civil disobedience in the face of unjust laws. And I'm right there, I'm down. Problem is, SCOTUS has been doing some kinda sketchy things here lately.

For instance, they've struck down portions of the Voting Rights Act that protect minorities from specific forms of governmental discrimination. What parts? The parts that require traditionally discriminatory states to get Federal approval before they made changes to the way they run elections. The essential claim is that the data is outmoded, and the protections are no longer necessary.

Problem is, there's a rush to get voter ID laws passed, there's been all kinds of fun little tricks with gerrymandering, there's been multiple attempts to create laws that will not only attack illegal immigrants, but allow for discrimination against legal Hispanic and Latino populations — discrimination is alive and well. I mean, can you imagine people like Sally Kern, Paul Ryan, or Todd Akin having direct access to vote for changes to the election process without anyone checking their work?

Racism is alive and well in government. And the even scarier thing here is that after the Court struck down those portions of the act, Scalia went on the record as saying that the reason SCOTUS needed to strike it down was because Congress kept passing it. So, just to be clear: Congress passed a law to safeguard minorities. Congress, for once in their miserable existence, maintained a law that actually had purpose and a valid reason for existing. And SCOTUS struck it down because Congress wouldn't.

That should freaking scare you.

Next up: a rather nasty ruling against Miranda rights. No, you read that correctly. Against Miranda rights.

Genevevo Salinas, in a 1992 case, was taken in for questioning. He answered some questions that were pertinent to the investigation,  but elected not to answer a specific question relating to whether his shotgun would match the murder weapon. To clarify, this was investigative questioning, and he had not been Mirandized.

In court, the prosecution used his refusal to answer that question as a sign of guilt. Salinas appealed on the grounds that he has the right not to answer questions, and that refusal to answer a question before Miranda had been delivered could not be used against him in court.

SCOTUS disagrees. They ruled, 5-4, that silence before being read your Miranda rights is not protected by Miranda rights. So yeah. If the police come talk to you, and you don't want to talk to them, if they can get you into court they can use that against you.

Now, our legal system is not so corrupt that we have to fear the police. But mistakes happen. At the end of the day, the system is made of people and people are generally horrible beings when they act in large groups. So if there's circumstantial evidence, and you can't get clear of it, the prosecution can now tip the jury in their favor if you don't talk to the cops.

Oh, but no-one innocent would refuse to talk to the cops. Right?

Cops come in, start talking at you. You know you're innocent, they think you're not. And they start pushing buttons. Going over and over the same material, working to trip you up, taking up your time. Eventually, you get sick of it and walk out. The next time they want to talk to you, you tell 'em to go for a walk.

Bam. You have just refused to talk to the police in an investigation in which you are a suspect. Presented without context, you now look guilty as hell.

So, while I'm happy that my rights as a gay man are now on a more level playing field going forward, I have to say that SCOTUS is starting to concern me. Admittedly, they are the check to Congress' balance, and their power is clear and necessary. But when they start half-assing it, making up reasons to justify voting their opinions, avoiding cases that are clear violations of rights because the proof of rights violations is classified, and stepping on Voter Rights because Congress won't, we have a problem.

SCOTUS is arguably the most powerful body in the US today. And abuse of that power should rightly worry all of us, even when they abuse their power to rule in our favor. 

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