Retarded state laws: Louisiana Edition

It's time for another installment in the periodic series on state legislatures - our "laboratories of democracy," which occasionally produce a legislative Frankenstein. Today, we turn our attention to Louisiana. As you can imagine, he Louisiana Legislature had a busy session this year addressing a host of issues relating to Hurricane Katrina recovery. From reopening schools, to home repair assistance, to health care funding, legislators were focused on only the most important issues...right?

Not quite. They also managed to find time to debate not one, but two bills naming an official state poem. (I really should not criticize considering my old boss in the Virginia legislature voted to adopt an official state bat.) First we have H.B. 177, which enshrines "I Love My Louisiana" by James Ellis Richardson as the official state poem. And not to be outdone, there is H.B. 1291, the official Cajun state poem, entitled "I am Louisiana" by Justin Wilson. Here is a selection:

I'm Spanish moss on a live oak tree
Cajun fried shrimp and a cypress knee
I'm Bienville, Captain Shreve, Beauregard,
Zach Taylor and Jean LaFitte

I'm New Orleans, the land of dreams
Creole cookin' and a Mardi Gras king
I'm a thoroughbred racin' at Louisiana Downs
Avery Island and a catahoula hound

Well, I'm the Mississippi River
As it rounds the bend
I Am Louisiana
Ya'll Come Back Again.

May I humbly suggest an additional verse or two:

I'm in the Quarter at Mardi Gras
Staring at the cuties
Gladly throwing out my beads
In exchange for seeing boobies.

I'm fleeing to the Super Dome
I'm going to loot and rob
Don't worry, FEMA will fix all this
Brownie's doing a heck of a job.

The legislature also considered H.B. 1102, which provides for the proper use of the term "cajun." The bill states:

No person shall in commerce use the term "cajun", or any derivative or combination thereof, on any goods or containers for goods, including agricultural goods, in any manner which is likely to cause confusion, to cause mistake, or to deceive as to the affiliation, connection, or association of such person with the state of Louisiana.

Is there a rash of cheap knock-off Cajun products from China that I am not aware of? It's a little unclear, but I think if a restaurant in Virginia serves a dish called "cajun flavored jumbalya" using ingredients that are not from Louisiana, the restaurant is committing a crime.

Then there is my personal favorite - S.B. 672, which states:

There are two kinds of fruits; natural fruits and civil fruits as follows:
(1) Natural fruits are products of the earth or of animals.
(2) Civil fruits are revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.

WHAT POSSIBLE REASON IS THERE TO MAKE THIS DISTINCTION?!? Someone must have walked into to court and said, "Your honor, I move a banana." The judge said, "Well the law is unclear about this, so case dismissed."

WARNING: Don't think about these bills for more than two minutes, or blood will come shooting out your nose.

Guest blogging at East Texas Skeptic

Lonestar Holmes was kind enough to give me a chance to pen a few words over at his blog-extraordinaire, the Skeptic. Go check out the recent not-so-crazy thing that Jerry Falwell recently said.

This just in: Clarence Thomas has vocal chords!

The Washington Post chronicles the most shocking part of the Hamdan v. Rumsfled case handed down this morning:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.

Reached for comment afterwards, one of Justice Thomas' law clerks said, "I have worked with Justice Thomas for almost a year and I have never heard him utter a word when the Court was in session. I always assumed he was a high-functioning autistic."

Eye for an Eye Jurisprudence

Yesterday, the Supreme Court handed down its Texas redistricting decision. Justice Kennedy may have sustained a state legislature’s ability to issue a mid-decennial redistricting, but that doesn’t necessarily means he approved of Tom Delay’s tactics. Check out this “jurisprudential smack-down”:

The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders. Under appellants’ theory [that partisan redistricting violates the First Amendment by discriminating against a group based on their political opinions], a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling, yet solely partisan, mid-decade redistricting. More concretely, the test would leave untouched the 1991 Texas redistricting, which entrenched a party on the verge of minority status, while striking down the 2003 redistricting plan, which resulted in the majority Republican Party capturing a larger share of the seats. A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it.

Justice Kennedy is right to point out that in 1991, the Democratic majority in the Texas Legislature performed a stellar gerrymander that managed to produce a majority-Democrat congressional delegation in spite of rapidly declining percentage of Democratic voters. After the 2003 redistricting, the congressional delegation from Texas is 2-1 Republican.

However, the root problem is that the Court is willing to sanction the “eye for an eye” nature of partisan redistricting. It is as if the Court has resigned itself to the lowest common denominator of politics – they did it to us in the past, so we can do it now. It accepts the pettiness of gerrymanders as a given, dismissing it under the rationale – “Boys will be boys.” Here is an excerpt from oral arguments:

Chief Justice Roberts: Why is the 2003 redistricting plan constitutional?

Republican lawyer: [With the voice of a pouting six year old] Because the Democrats don’t play nice. In 1991, they gave me a purple nurple and called me a ‘poo-poo head.’ So in 2003, we did the same thing to them.

Chief Justice Roberts: That sounds perfectly reasonable.

If the constitutional guarantee of “one man, one vote” is to have any practical import, citizens need to have a reasonable opportunity to hold their elected officials accountable in a competitive election. The Court has ruled that a legislative district that is five times as large as another legislative is unconstitutional. How is a legislative district where Democrats outnumber Republicans five-to-one (or vica versa) any less problematic to the exercise of democracy?

I leave the last word to my congressman, Tom Davis (R), who provides a voice of reason (which is rare in Washington these days): "While I agree with the court's opinion that this kind of mid-decade redistricting can be done, that doesn't mean it is a good idea. Voters want to have a relationship with their members of Congress. That cannot happen if districts are just amalgamations of political groups, and it cannot happen if the districts change every few years."

Apparently, Rhode Island is for Lovers

Polygamy - it's not just for Utah and HBO anymore. Check out S.B. 3107, which passed the Rhode Island Legislature recently. It says...

It is enacted by the General Assembly as follows:

Notwithstanding any other general or special law to the contrary, Timothy McCormick may join Jennica Pratt and Jason Richards, both residents of Marblehead, Massachusetts, in marriage within the Town of Jamestown, Rhode Island on or about July 3, 2006. Timothy McCormick is hereby authorized and empowered to join the foregoing persons in marriage pursuant to and in accordance with chapter 15-3 of the general laws, entitled "Solemnization of Marriages."

It looks like the Legislature is authorizing a polygamous marriage (read it again if you don't believe me). The bill passed both chambers unanimously, and the bill is headed to the Governor for his signature!


############
Okay, here's the solution to the brain teaser. The bill authorizes Timothy McCormick, a priest, to have a ordination license in Rhode Island so that he may perform a marriage ceremony on Jennica Pratt and Jason Richards. I couldn't figure this one out even after reading the bill over for ten minutes!

This bill is still pretty funny though, because in most states it is ridiculously easy to obtain an ordination license. In some states, you can fill out an application online. I can't imagine having to contact my legislator to get this done. I hope the governor signs it soon. The wedding is in ten days!

The art of candidate branding

The following is an excerpt from an email to supporters from Colorado Secretary of State Ken Gordon. Apparantly he and his staff are having a little difficulty capturing his message. Here are some possible slogans:

Ken Gordon--His special interest is you.

Ken Gordon--Unbought and unbossed.

Vote like your life depends on it. Someone’s does.

Ken Gordon--an introvert fighting for you.

The guy with the beard.

Ken Gordon--Don’t believe everything you hear.

Ken Gordon--Less corrupt than the other guy.

Ken Gordon--You could do worse.

It’s time to throw some tea in the harbor.

Smite them with your vote.

Ken Gordon--Better than average.

His former wife has his bumper sticker on her car.

If half the people vote, we live in half a democracy.

Here it is: your moment of Zen

The Washington Post has made my day much more interesting. Their pollster, Richard Morin, wrote a story about the "most important news show political science article, ever." The latest edition of American Politics Research includes the article - "The Daily Show Effect: Candidate Evaluations, Efficacy, and American Youth." According to the abstract:

Participants [in a posttest-only control-group designed experiment] exposed to jokes about George W. Bush and John Kerry on The Daily Show tended to rate both candidates more negatively, even when controlling for partisanship and other demographic variables.

The experiment consisted of taking 732 college students who were divided into three groups. One group watched clips of George W. Bush and John Kerry The Daily Show, one group watched clips of Bush and Kerry on the CBS Evening News, and the control group did not watch any television coverage. Each group filled out a questionnaire measuring their attitudes about the political candidates and their faith in political institutions in general.

The results caused the Post columnist to write the following opening to his story, "This is not funny: Jon Stewart and his hit Comedy Central cable show may be poisoning democracy." The article's conclusion was equally ominous: "Ultimately, negative perceptions of candidates could have participation implications by keeping more youth away from the polls." The article takes note of Jon Stewart's appearance on the CNN show Crossfire where he said, "Stop hurting America. You have a responsibility to the public discourse, and you fail miserably." The authors, East Carolina University professors Jody Bumgartner and Jonathan Morris, respond by saying, "Our findings, however, suggest that Jon Stewart should not be so quick to cast stones."

Before you go cancel your cable subscription, there are some major limitations to this study. It is more than a little bit of a stretch to conclude that Stewart is "poisoning democracy." Consider this:

1. Selection bias - there are three problems with how the participants for this experiment were selected. First, they only sampled undergraduate college students, yet the authors make broad conclusions about The Daily Show's impact on all young people. Second, the students were only selected at one public university, so it is possible the results would vary at private universities or in other parts of the country. Third, the students selected were all taking an introductory political science course. Students who choose to take political science courses have a tendency to be more interested and engaged in politics than students who do not.


2. Increased cynicism does not necessarily mean decreased political participation - The authors acknowledge that "[i]t could be argued cynicism is healthy for a representative democracy. A less trusting public is not as likely to be bamboozled by political elites or the media. Recent research, however, has suggested that high levels of cynicism and distrust distract from democratic discourse." I don't think this distinction can be so easily dismissed. Sure, the study found that of all the 732 students in experiment, the students who watch The Daily Show regularly tend to have more negative impressions of candidates than students who do not watch the show regularly.
   
   BUT, students who read a newspaper on a regular basis are also more likely to have negative impressions of candidates than students who do not read a newspaper. No one would say that "newspapers are poisoning democracy." On the contrary, reading a newspaper is a sign of political engagement. This makes sense from a political theory perspective - Americans tend to have a skeptical view of politicians. We have largely had divided government over the past half century because voters usually do not want one party to have a monopoly on power. Cynicism is also the main weapon in campaign communications: "Call Senator Joe Blow and tell him to stop clubbing baby seals and oppose S.B. 666." The body politic is more likely to be involved when it wants its leaders to change course. Preach it for me Brother Madison:
   
   

   But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government.

3. The study does not even attempt to measure the participation effect of The Daily Show. - I know it is difficult to interpret the voting behavior of young people because they have not been old enough to vote in a lot of elections, but the authors does not even try to use this data. Nor does the study ask "How likely are you to vote in the 2004 election?" Any translation from attitudinal effects to participation effects is basically speculation.


4. The results are tenuous at best. Of the study's 30 measurements of "The Daily Show effect", 11 effects are not statistically significant. Only seven of the measurements are statistically significant at the .01 level. One of the reasons why this may be the case is that the video clips in the experiment only lasted 8 minutes! It is hard to measure the political psyche of a young person in less time than it takes to switch your car insurance to GEICO.


5. The study offers no explanation for the contradictory results. The authors of the study mention in the conclusion, "Although viewers of The Daily Show have slightly higher levels of political knowledge than non-viewers (National Annenburg Election Survey, 2004), there are some detrimental effects as well." Again, I don't think this finding can be discarded very easily. The study finds that watching The Daily Show has positive effect on internal efficacy - in other words, the degree of "one's own competence to understand, and to participate effectively in, politics." The article's only rationale for this - "Our post hoc reasoning behind this relationship is that much of The Daily Show's coverage simplifies politics for its audience in a humorous manner." Again, I would offer an alternative hypothesis, people who watch Jon Stewart tend to be more engaged in politics (which is confirmed by the Annenburg study) than your average college student, so they are more likely to feel confident in their understanding of the subject. And because they are more engaged, they are more likely to participate in politics, not less likely.

In closing, I would like to apologize for the level of "geekiness" of this post. But this study was the sexiest bit of political scholarship I have seen in a while, so I figured I would devour this topic.

Watch what you say

The good folks over at the Volokh Conspiracy made a very interesting post this afternoon about a recent report issued by the U.S. Civil Rights Commission. The report is entitled "Findings and Recommendations ... Regarding Anti-Semitism."

The report finds: "Many college campuses throughout the United States continue to experience incidents of anti-Semitism...When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964." The most troublesome finding, however, states:

Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics.

To cure this problem the Commission recommends:

University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.

The Commission fails to realize that the Civil Rights Act of 1964 is a statute, which is (and should be) trumped by the First Amendment (for more see here). Besides what do "one-sided, highly polemical academic presentations" really mean? When does a spirited debate over foreign policy suddenly become hate speech? This is a terrible standard to use in regulating university curriculum, something which Congress is ill-suited to accomplish.

Furthermore, academic freedom has long been protected under the First Amendment, going back to the Lochner Era. Nebraska, along with other states, prohibited the teaching in any language other than English. A German teacher at a Lutheran school challenged the successfully constitutionality of the law. The Court, in the case Meyer v. Nebraska, wrote: "Without doubt, [the due process clause] denotes not merely freedom from bodily restraint but also the right of the individual ...to engage in any of the common occupations of life, to acquire useful knowledge."

Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment.

Professors must have the ability to engage their students from all varieties of viewpoints. The Court has ruled that a university campus is a public forum. Viewpoint-based suppression of speech is contrary to the history and tradition of the First Amendment. The Constitution grants members of Congress freedom of speech during debates on the floor of Congress. The Academe should be treated no differently.

I leave the last word to Professor Volokh, who notes:

In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes -- including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" -- to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes tsuppressss the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas.

The Piano Defense

The Supreme Court's decision in Hudson v. Michigan (for more read here) has put me in a 4th amendment mood. The most recent knock-and-announce case the Court considered before Hudson was United States v. Banks. Lashawn Banks was wanted on drug possession, and police secured a warrant to search his home. The police knocked on the door, waited 15-20 seconds and then burst through the door. Banks moved to exclude the evidence seized on the grounds that the forced entry was unlawful.

The Court unanimously held that 15-20 seconds was a reasonable period for police to wait before entering by force when they were investigating drug charges because waiting any longer was likely to result in the destruction of evidence.

However, Justice Souter's opinion goes a step further. He said the amount of time the officers must wait might vary depending on the circumstances of the case. "Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram," he wrote.

So thanks to my good friend Lonestar Holmes we have constructed this table for the police. It will give a general idea how long the police must wait outside a suspects home before they can enter it.

Offense	Appropriate wait time
Cocaine possession	15-20 seconds
Marijuana possession	2-3 minutes (stoners are easily distracted)
PCP possession	Knock once and wait (the druggie will come flying through the door)
Piano theft	4 hours, 45 minutes, 10 seconds
Soliciting a prostitute (thin)	30-45 seconds (enough time to cover up his schlong)
Soliciting a prostitute (chubby)	Don't serve the warrant (let the man escape with what's left of his dignity)

Quote of the week

Leave it to Congressman Jim Moran (D-VA) to spice up American political discourse. At a Democratic fundraiser last weekend, he said that if Democrats took the House this fall, he would use his position in the majority to help funnel more funds to his Northern Virginia district. Perfectly reasonable, right? Well, perhaps he could have put it a little better...

“When I become chairman [of a House appropriations subcommittee], I'm going to earmark the shit out of it.”

Knock knock! Who's th...? You're under arrest!

Today the Supreme Court handed down a rather startling 4th amendment decision today in Hudson v. Michigan. The Court ruled that evidence seized after serving a warrant in violation of the "knock-and-announce" rule is admissible at trial.

The facts of the case are as follows: police in Detroit obtained a warrant against Booker Hudson to search his home for weapons and drugs. The police announced that they were present with a search warrant, waited 3-5 seconds and burst through the door without knocking. The Court's decision - an unfortunate harbinger - was 5 to 4: Scalia, Thomas, Roberts, Alito and Kennedy (who concurred in part) in the majority; and Breyer, Stevens, Souter and Ginsburg dissenting.

The knock-and-announce rule, which traces its origin to 13th century English common law, was enshrined as a constitutional guarantee under the 4th amendment in Wilson v. Arkansas (1995). Recently, the Court adopted a flexible standard regarding the length of time that police must wait between announcing their presence and entering the home - more on that in a future post.

Scalia's opinion does two things. One, it strips the "knock-and-announce" rule of any "practical value," as Justice Breyer notes in his dissent. Scalia points out that the defendant is free to seek a remedy against the police by filing a civil rights suit. This argument is more than a little silly. If the 4th Amendment is supposed to have any real world import, the exclusion of evidence must exist as a deterrent against unlawful police conduct. Justice Scalia's remedy is the jurisprudential equivalent of telling Mr. Hudson, "Good news! I just saved a bunch of money by switching my insurance to GEICO."

Second, and more importantly, lays the groundwork for the eventual destruction of the exclusionary rule. He writes, "Suppression of evidence, however, has always been our last resort, not our first impulse... It "generates substantial social costs which sometimes include setting the guilty free and the dangerous at large."

This language was enough to make Justice Kennedy squirm. He issued a wishy-washy concurrence in which he stated "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." If that were so, why bother writing it? You don't see a justice ever taking the time to write, "By the way, in case you were wondering, Marbury v. Madison is still good law. Just wanted to be clear about that."

Justice Breyer issued an impassioned dissent in which he points out that Scalia radically departs from precedent. He points out, the Court has declined to apply the exclusionary rule only:
(1) where there is a specific reason to believe that application of the rule would 'not result in appreciable deterrence,' or (2) where admissibility in proceedings other than criminal trials was at issue."

Furthermore, the only harms incurred by employing the exclusionary rule against a knock-and-announce violation "are those that typically accompany any use of the Fourth Amendment," i.e. a bad guy might go free. Scalia claims that the knock-and-announce rule was never meant to shield defendants against the seizure of evidence. But that misses the point. Fourth Amendment protections are deontological in nature. To put it simply, there are some things that the state Kant do, regardless if they further the pursuit of truth.

Orin Kerr makes an excellent point about Scalia's opinion. Consider Section III(b) where Scalia writes:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733–734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously.

To which Kerr replies: "Am I right that Scalia is saying that the meaning of the Fourth Amendment can change over time as the staffing of police departments and public interest law offices changes? The Constitution — It’s alive!" Linda Greenhouse extends this point, noting: "It is rare to find Justice Scalia, a self-described 'originalist,' incorporating evolving conditions into his constitutional analysis. Almost always, when the court in a constitutional case takes account of changing conditions, the result is an expansion of constitutional rights, rather than, as Justice Scalia advocated in this case, a contraction."

Happy Loving Day!

Yesterday marked the 39th anniversary of the Supreme Court's ruling in Loving v. Virginia, the case that overturned miscegenation statues in 15 states. As the Washington Post reports, the first ban on interracial marriage originated in Maryland in 1661, but the practice finally came to a halt in 1967 - one of the last remnants of the (de jure) Jim Crow Era.

Recently, civil rights advocates have been pushing to make June 12 a "Loving Day," an occasion to celebrate the nation's interracial population. Since Loving, the percentage of interracial marriages has increased from one percent of all marriages to more than five percent, and the number of children living in interracial families has risen from 900,000 to more than 3 million, according to the Census Bureau.

As America moves past the 50th anniversary of Brown v. Board of Education, it is fitting to remember just how far our country has come in civil rights. Consider the following:

Almighty God created the races, white, black, yellow, Malay, and red and placed them on separate continents, and but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend the races to mix.

The passage above is from the trial court judge in Caroline County, Virginia who heard the Loving case. HOWEVER, before you jump the gun and conclude that racism has been eradicated in this country, here is a trivia question:

When did Alabama remove its anti-miscegenation law from the books?

The 1970's? No. The 1980's? Nope. The 1990's? Getting warmer. 2000? Sadly yes.

Here's the even more tragic part of the Alabama story. The ban on interracial marriage was part of the Alabama Constitution; so to erase it, the state needed to hold a referendum. The results of the referendum were far from comforting: 40.51% of voters voted against the amendment! Also, the amendment was defeated in 23 of Alabama's 67 counties. If you define a racist as someone who desires a constitutional prohibition against interracial marriage, then there were 545,933 racists in Alabama in the year 2000. Roll Tide!

The End is Nigh (okay, not really nigh, just slightly nigh)

Almost before Justice O'Connor had a chance to clear her desk, the Supreme Court has granted certiorari to two K-12 affirmative action cases. The two cases come from Seattle and Louisville, Kentucky.[1] As the Washington Post notes: "In both places, school systems attempted to achieve racial balance as they allocated slots in 'open-choice' public schools. In each case, race was one of a number of factors, rather than the sole factor, in allocating the slots."

Some alarmist commentators are already shouting, "The sky is falling!" Andrew Cohen writes: "If you have been waiting for the demise of affirmative action, your time now may be near. If you are have been hoping that affirmative action would last forever, you may soon be very disappointed."

Why in the world would the Justices want to revisit this issue if not to change the law and undercut their own 2003 precedent? That's the question folks on both sides of this debate will be asking themselves in the nine months or so between today and the day the Court finally tells us what it thinks about the issue. I suppose optimists among affirmative action supporters might try to convince themselves that the Court merely wants to refine and further clarify its 2003 rulings. But that's like hoping you are in for good news when the IRS calls.

SCOTUSblog notes: The Court had a chance to consider that issue last December, but passed up the chance. Now, with a change in composition, the Court has opted to take it on. There may be a connection.

Before you hyperventilate, let's just calm down a little. Grutter v. Bollinger will not be overturned in one fell swoop by either of these cases. However, it does present the Court an opportunity to inch away from Grutter, allowing the Roberts Court over the next decade to reverse course. In one sense, it is pointless to get worked up over the demise of affirmative action. Even the hero of Grutter, Justice O'Connor indicated:

The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

This case presents some very interesting questions:

1. Does the educational diversity rationale articulated in Grutter apply at the K-12 level?
2. How does the holistic individualized review play out into an K-12 educational context where no review of a student's qualifications?
3. If the Court chips away at affirmative action, will it do so by reasserting that education is a fundamental right?

Judge John Heyburn, the trial court judge in the Louisville case, provides a compelling answer to the first question. He writes:

Over the years much has changed. As many school systems escape the mandate of desegregation decrees, they face for the first time a choice of direction. It would seem rather odd that the concepts of equal protection, local control and limited deference are now only one-way streets to a particular educational policy, virtually prohibiting the voluntary continuation of policies once required by law.

To address the second question, obviously school choice plans cannot involve holistic review because students are not assigned to schools based on academic qualifications. I am sure opponents of affirmative action will say that absent objective qualifications, school assignment based on race is more arbitrary at the K-12 level, which leads me to the third question.

In order for the Court to strike down a governmental scheme because it is based on race, the Court must establish a pre-condition: that the benefit being distributed is something to which the affected citizens have a legitimate claim. The strongest type of claim that a citizen can invoke is a fundamental right. As the Court wrote in Brown, education "is a right which must be made available to all on equal terms." Even stronger language comes from the case Bolling v. Sharpe, which struck down educational segregation in the District of Columbia, where Chief Justice Warren wrote, "Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause."

The Court backed away from this line of reasoning in San Antonio v. Rodriguez in 1973. In that case Justice Powell wrote:

The key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.

The Court in Rodriguez concluded that education was not in the Constitution; thus that social resource could be distributed more arbitrarily (i.e. according to a school funding plan that disproportionately favored wealthy school districts). Now opponents of affirmative action would like to see educational resources distributed less arbitrarily, so it will be interesting to see if the Court returns to a Brown-like conception of education.

[1] An interesting side note: Louisville plays a large role in the history of the 14th Amendment. Louisville passed a city ordinance in 1914 prohibiting whites from living on the same block as blacks. The NAACP successfully challenged the constitutionality of the ordinance on Lochner-esque property rights grounds in the case Buchanan v. Warley. This case is near and dear to my heart.

Where have you gone Sandy baby?

My kind of judicial activism

Fortune Magazine has the story of the week in my book.

Faced with the inability of two bickering attorneys to resolve even the most innocuous scheduling questions without his intervention, a Florida federal judge yesterday ordered the two to meet on the steps of the federal courthouse and resolve their latest quarrel by playing "one (1) game of 'rock, paper, scissors.' "

This is serious. Read the ruling.

Judge Gregory A. Presnell of Orlando ordered the unusual measure, which he characterized as "a new form of alternative dispute resolution," after the two Tampa attorneys had proven unable to agree upon where to hold a deposition, even though both of their offices are just four floors away in the very same building in Tampa.

Characterizing the disagreement as "the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts," Judge Presnell ordered each attorney, "accompanied by one paralegal who shall act as an attendant and witness," to play the dispositive round of RPS on June 30.

Grand Re-opening of Supreme Dicta

I realize it has been a long time since I have posted and I apologize. But, during the interim, I have been developing some excellent material to share with you. As you may know, I work for a political consulting firm that tracks and analyzes legislation in all 50 state capitals. Every day my co-workers and I review every bill dropped in each hopper across the country. And occasionally we find some very stupid bills. I mean really bizarre, moronic, laughably retarded bills. I have already made reference to a couple of these bills here and here.

Justice Louis Brandeis once referred to state legislatures as "laboratories of democracy." With that in mind, I present to you legislation that is akin to Frankenstein's monster - the hideously dumb products of our state legislatures. I open this series of posts with two of my personal favorites - the Biker Bill of Rights.

To quote Lewis Black, I have neither the time nor the energy to make stuff like this up. Last September, Michigan Representative Robert Gosselin (R, of course) introduced H.B. 5234. The bill amends the state's civil rights code as follows:

Sec. 102. (1) The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status, the ownership or operation of a motorcycle, or the wearing of clothing associated with motorcycle ownership or operation as prohibited by this act, is recognized and declared to be a civil right.

That's right, a representative in Michigan wants the section of law that integrated Michigan's schools and ensures that people of all races, colors, and creeds can fully enjoy equal protection of the law, to be used to protect MOTORCYCLISTS. Because when I think of suspect classifications, I think of motorcyclists.

Notice that Michigan does not gaurantee freedom from discrimination to gays. What an interesting test case if a gay biker showed up to a job interview in leather chaps and chains.

"Why didn't I get the job? Is it because of my appearance or my mannerisms?"

But here's the truly screwed up part of the story... The movement for a Biker Bill of Rights is spreading. Where else? Mississippi (insert red neck joke here). In January of this year, Representative Jamie Franks (D, oh God damnit) introduced H.B. 897. That bill

A person or entity that owns, operates or is employed by a public accommodation may not restrict an individual or group from access or admission to the accommodation or otherwise prevent the individual or group from fully using the accommodation and the amenities normally associated with such, solely because of the individuals or groups:
(a) Mode of transportation;
(b) Attire which may be associated with the individuals preferred mode of transportation;
(c) Affiliation with any fraternal organization or other group engaging in their preferred mode of transportation;
(d) Attire that may be associated with an individual's or group's religion, race, or gender

Good Lord! You mean we not only need to protect individual bikers, but biker gangs too! Maybe Justice O'Connor was right that we won't need affirmative action in 25 years, because if this is the future of civil rights law, we would be better off moving to China.