US Politics: Corporations are made out of people

[awesome possum]

This is interesting

College students in California and three other states filed lawsuits against their campuses Tuesday in what is thought to be the first-ever coordinated legal attack on free speech restrictions in higher education.

Vincenzo Sinapi-Riddle, a 20-year-old studying computer science, alleged that Citrus College in Glendora had violated his 1st Amendment rights by restricting his petitioning activities to a small "free-speech zone" in the campus quad.

According to Sinapi-Riddle's complaint, a campus official stopped him last fall from talking to another student about his campaign against spying by the National Security Agency, saying he had strayed outside the free-speech zone. The official said he had the authority to eject Sinapi-Riddle from campus if he did not comply.

On one hand I think free-speech zones are ridiculous and idiotic; on the other, they keep those obnoxious street "preachers" (who should really be known as Wacko Hate-Spreaders) in a certain space. In my college days, there was one guy in particular who screamed for hours about how all the whores were going to hell... until one of those "whores" talked to him, at which point his sermon switched gears into how he needed to get into her pants. He was eventually banned from campus, but there was always one of those nutjobs screaming at the major fountain on campus and often following students they'd singled out for no good reason.

Anyway, the other three cases the article mentioned:

— Iowa State University students Paul Gerlich and Erin Furleigh challenged administrative rejection of their campus club T-shirt promoting legalization of marijuana. The university said the shirt violated rules that bar the use of the school name to promote "dangerous, illegal or unhealthy" products and behavior, according to the complaint.

— Chicago State University faculty members Phillip Beverly and Robert Bionaz sued over what they said were repeated attempts to silence a blog they write on alleged administrative corruption.

— Ohio University student Isaac Smith challenged the campus speech code that forbids any act that "degrades, demeans or disgraces another." University officials invoked the code to veto a T-shirt by Smith’s Students Defending Students campus group — which defends peers accused of campus disciplinary offenses. The T-shirt said, "We get you off for free," a phrase that administrators found "objectified women" and "promoted prostitution," the complaint said.

[SeanF]

That's probably not the best outcome either though. After all, the original impetus for the RFRA was to prevent the Dept. of the Interior from building roads through sacred Native American land, and I think most people would agree that that's still a good goal. If we're going for a legislative solution (which of course is a complete fantasy as long as the GOP has the House), it should probably be amending the RFRA to place a considerably greater burden on plaintiffs to define why a federal law/regulation is an infringement and to better set out the definition of a compelling federal interest to be able to ignore that infringement in certain instances anyway.

And then get another liberal on the court before it can reach a decision in a future case coming to this same conclusion again on First Amendment grounds rather than just statutory ones.

I'm not a US lawyer, but on the face of it, the Court decision seems to be consistent with the legislation as it is drafted. For those who disagree with it, the answer lies in amending the legislation. As you say, that's unlikely so long as the Republicans control the House.

[TrackerNeil]

I'm not a US lawyer, but on the face of it, the Court decision seems to be consistent with the legislation as it is drafted. For those who disagree with it, the answer lies in amending the legislation. As you say, that's unlikely so long as the Republicans control the House.

Although one wonders why the Court took such care to say that religious objections to, say, blood transfusions or antibiotics would receive a less friendly hearing. Almost makes you think the good justices were thinking not about law but about policy...

[sologdin]

upper courts are certainly 'policy courts,' so it should not be surprising if the decision is goal-oriented. dems just need to sweep the supreme court by having H-bomb for eight years and then some other clown for eight more after that. easy!

[NestorMakhnosLovechild]

Although one wonders why the Court took such care to say that religious objections to, say, blood transfusions or antibiotics would receive a less friendly hearing. Almost makes you think the good justices were thinking not about law but about policy...

Because the issues of blood transfusions, vaccinations and antibiotics were all raised as issues before the Court. A comprehensive opinion will address the concerns raised about those other issues. Alito's majority opinion did not say that challenges to those mandates would succeed or would fail - he said they would "not necessarily fail" just because of the Court's decision re: certain forms of contraception. It depends on the weighing test set forth by the RFRA, and the existence of less burdensome alternatives. In this case - in the case of contraceptives - the federal government has already created a system to provide contraceptive coverage to women who work for religious organizations that were initially understood to be exempt from the ACA mandates. A less burdensome alternative had already been created and applied to a slightly different class of organizations. This is not the case with blood transfusions, antibiotics, or vaccinations.

[Ser Scot A Ellison]

Tempra,

Heres an interesting Slate article that sums up my views on Hobby Lobby quite nicely:

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/03/corporations_are_people_and_that_s_why_hobby_lobby_should_lose_at_the_supreme.html

From the article:

Hobby Lobby should only have the rights of legal personhood that are essential for its operations. As legendary Supreme Court Chief Justice John Marshall wrote nearly 200 years ago, Being the mere creature of law, the corporation possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. Perhaps that includes some limited speech rights, as we ordinarily expect firms to advertise and communicate with employees and customers. Yet religious liberty is not one of those rights. Hobby Lobby is a for-profit corporation whose business doesnt require it to have religious freedom. In fact, granting Hobby Lobby an exemption from providing contraception coverage, a requirement that applies to other companies, would make the firm less attractive to potential employees.

Religious liberty is certainly appropriate for some not-for-profit corporations, like churches or nonprofits with a religious mission. If Hobby Lobbys owners wanted to form such an organization, there was a convenient and readily available option: They could have incorporated as a nonprofit. They wouldnt be able to make the same kind of money, but theyd have a corporation with an explicitly religious mission. And under the Affordable Care Act, theyd be exempted from the birth control requirement.

Hobby Lobbys owners, however, formed a business corporation. By asking the Supreme Court to let them enjoy all the protections of this corporate form, but not all of its duties, Hobby Lobbys owners want to have their corporate cake and eat it, too.

People constantly forget that Corporations are people, at law, but that the Shareholders of that corporation are distinct entities separate and apart from the corporation.

[TrackerNeil]

Because the issues of blood transfusions, vaccinations and antibiotics were all raised as issues before the Court. A comprehensive opinion will address the concerns raised about those other issues. Alito's majority opinion did not say that challenges to those mandates would succeed or would fail - he said they would "not necessarily fail" just because of the Court's decision re: certain forms of contraception. It depends on the weighing test set forth by the RFRA, and the existence of less burdensome alternatives. In this case - in the case of contraceptives - the federal government has already created a system to provide contraceptive coverage to women who work for religious organizations that were initially understood to be exempt from the ACA mandates. A less burdensome alternative had already been created and applied to a slightly different class of organizations. This is not the case with blood transfusions, antibiotics, or vaccinations.

All this is true. It is also true that objections to blood transfusions, etc., are not found within Christian ideology. Given that the five justices who ruled in favor of Hobby Lobby are all Christian, I have to wonder if that's just a coincidence.

[Fez]

upper courts are certainly 'policy courts,' so it should not be surprising if the decision is goal-oriented. dems just need to sweep the supreme court by having H-bomb for eight years and then some other clown for eight more after that. easy!

Honestly the one good idea I thought Rick Perry had during the 2012 election season was to set staggered 18-year term limit for SCOTUS justices, with one justice's term up every 2 years. Generally I'm not a fan of term limits, but since the justices aren't elected this is the only way I've heard to remove the randomness from the selection process, and ensure that the electorate at the time gets to change the direction of the court to a degree every 4 years (or even every 2 if they start flipping the senate more often).

[Shryke]

I'm not a US lawyer, but on the face of it, the Court decision seems to be consistent with the legislation as it is drafted. For those who disagree with it, the answer lies in amending the legislation. As you say, that's unlikely so long as the Republicans control the House.

Not really. Decisions on the RFRA have gone the opposite way before this. Even for those the legislation was drafted to protect (ie - native americans).

[NestorMakhnosLovechild]

All this is true. It is also true that objections to blood transfusions, etc., are not found within Christian ideology. Given that the five justices who ruled in favor of Hobby Lobby are all Christian, I have to wonder if that's just a coincidence.

Sotomayor is a Roman Catholic too. Just like Scalia, Kennedy, Thomas, Roberts and Alito. Actually, I do think it's kind of strange that the Court's religious make-up is six Roman Catholics and three Jews. (Although obviously, being a Jew doesn't carry the same presumption of religious beliefs that being a Catholic does, even if that assumption is questionable as well).

But I think you would agree that it's intensely problematic to simply start assuming that people are making decisions based upon their personal characteristics rather than their stated reasons for making the decision? Surely, if we, here in this thread, were to start conversing that way, it would be impossible to have a conversation, as we would be at perfect liberty to ignore what is actually being said in favor of appeals to some deeply rooted ethnic, religious, gender, age, or sexual orientation prejudice. Maybe you're just taking the position you are because you're white, or a man, or gay, or non-religious? I mean, you can't prove that you're not. Why - we'd all be conversing like Suttree. Although come to think of it, maybe my bisexuality really is the reason I'm the "Duke of Duplicitous Discourse."

It's also worth pointing out that it's incredibly unlikely that the Hobby Lobby case, in the long run, is going to mean anybody is denied access to birth control. The decision is predicated on the fact that the federal government already put an accommodation into place for religious organizations that were designed to be exempt from the ACA mandate originally. All the federal government has to do is offer the same accommodation to Hobby Lobby, and now you've got federally funded abortifacients (assuming that Plan B and the like are actually abortifacients, which apparently the jury is still out on).

[Shryke]

Sotomayor is a Roman Catholic too. Just like Scalia, Kennedy, Thomas, Roberts and Alito. Actually, I do think it's kind of strange that the Court's religious make-up is six Roman Catholics and three Jews. (Although obviously, being a Jew doesn't carry the same presumption of religious beliefs that being a Catholic does, even if that assumption is questionable as well).

But I think you would agree that it's intensely problematic to simply start assuming that people are making decisions based upon their personal characteristics rather than their stated reasons for making the decision? Surely, if we, here in this thread, were to start conversing that way, it would be impossible to have a conversation, as we would be at perfect liberty to ignore what is actually being said in favor of appeals to some deeply rooted ethnic, religious, gender, age, or sexual orientation prejudice. Maybe you're just taking the position you are because you're white, or a man, or gay, or non-religious? I mean, you can't prove that you're not. Why - we'd all be conversing like Suttree. Although come to think of it, maybe my bisexuality really is the reason I'm the "Duke of Duplicitous Discourse."

It's also worth pointing out that it's incredibly unlikely that the Hobby Lobby case, in the long run, is going to mean anybody is denied access to birth control. The decision is predicated on the fact that the federal government already put an accommodation into place for religious organizations that were designed to be exempt from the ACA mandate originally. All the federal government has to do is offer the same accommodation to Hobby Lobby, and now you've got federally funded abortifacients (assuming that Plan B and the like are actually abortifacients, which apparently the jury is still out on).

It's not problematic at all. When you observe a larger trend of decision making and patterns begin to emerge, it should be noticed. What people do means more then why they say what they do.

And there's no shortage of 5-4 decisions here to form a pattern out of.

Tracker:

Well, no, obviously not. We're talking about a system and the rules by which a system functions. Since we're talking about the rules that govern society, we want to make sure that we have rules that can be and are applied with consistent results. Measuring success by outcome dependence alone ignores the fact that a legal system is supposed to govern a complex set of interactions that provide a framework for societal functioning.

Imagine you were injured by the negligence of another person, and you sued, and you lose because the Judge went back into his chambers and flipped a coin. The coin landed on tails, and he decided that the Defendant would win today. Alternatively, imagine that the Judge listened to your case, applied the law to the facts, and found the other party liable for your injuries. From a pure outcome dependence standpoint, except as it applies to the two litigants, society should have zero preference as to how your case was handled. Either you won, or the other guy won. Doesn't make a difference to the rest of us 300 million idiots.

But is that really the case? No, of course not. If our rules for determining when one person is negligent and therefore obligated to compensate another for negligently causes injuries are good rules, then we benefit by those rules operating properly, irrespective of the outcome of any particular case. Whether any one individual wins or loses his case, whether it's a negligence case, a custody case, or a case before the Supreme Court, matters less than the correct functioning of those pesky "intricacies of legal reasoning."

Except this doesn't describe the actual world, because the legal system is heavily biased by the people who work within it. It is, for instance, incredibly racist.

We may want the rules to be applied consistently, but we know for a fact that does not happen and that legal decisions are not a fucking mathematical formulation. (and generally we think they should not be, hence pardons and leeway for judges and such)

[NestorMakhnosLovechild]

It's not problematic at all. When you observe a larger trend of decision making and patterns begin to emerge, it should be noticed. What people do means more then why they say what they do.

And there's no shortage of 5-4 decisions here to form a pattern out of.

Obviously, patterns emerge, because the way in which Supreme Court Justices make decisions follows clear patterns. That's because each Justice has a judicial philosophy they apply to deciding cases. Many of these judicial philosophies are well-known and, if you care to follow the literature, well documented. The benefit to us is that Supreme Court decisions are public, and the rationale for any said decision is explicitly stated. What you, and TrackerNeil, are proposing, is that we simply ignore the stated reasons for any particular Justice making any particular decision in favor of some nefarious, alleged, unproven and potentially unproveable ulterior motive.

I'm still waiting for the evidence.

[TrackerNeil]

But I think you would agree that it's intensely problematic to simply start assuming that people are making decisions based upon their personal characteristics rather than their stated reasons for making the decision? Surely, if we, here in this thread, were to start conversing that way, it would be impossible to have a conversation, as we would be at perfect liberty to ignore what is actually being said in favor of appeals to some deeply rooted ethnic, religious, gender, age, or sexual orientation prejudice. Maybe you're just taking the position you are because you're white, or a man, or gay, or non-religious? I mean, you can't prove that you're not. Why - we'd all be conversing like Suttree. Although come to think of it, maybe my bisexuality really is the reason I'm the "Duke of Duplicitous Discourse."

If I consistently express opinions that favor the white, the wealthy, the Christian and the privileged, you may feel free to assume that my loyalties lie there.

[TrackerNeil]

What you, and TrackerNeil, are proposing, is that we simply ignore the stated reasons for any particular Justice making any particular decision in favor of some nefarious, alleged, unproven and potentially unproveable ulterior motive.

I'm still waiting for the evidence.

That is NOT what I am saying. I'll say what I am saying, thank you.

[Shryke]

Obviously, patterns emerge, because the way in which Supreme Court Justices make decisions follows clear patterns. That's because each Justice has a judicial philosophy they apply to deciding cases. Many of these judicial philosophies are well-known and, if you care to follow the literature, well documented. The benefit to us is that Supreme Court decisions are public, and the rationale for any said decision is explicitly stated. What you, and TrackerNeil, are proposing, is that we simply ignore the stated reasons for any particular Justice making any particular decision in favor of some nefarious, alleged, unproven and potentially unproveable ulterior motive.

I'm still waiting for the evidence.

The history of 5-4 decisions the court makes along political party lines. It would make you look like you are actually debating in good faith if you stopped pretending like everyone hasn't noticed the biases of the justices. It's not even contested by anyone but you. People know who the liberal and conservative justices are. You say "5-4 decision against providing women with birth control" and everyone knows which way the justices voted.

This is how you locate bias. Fuck, this is how the US legally defines bias in many cases.

[Ser Scot A Ellison]

Shryke,

What's your take on the two 9-0 opinions from last week?

[SeanF]

Although one wonders why the Court took such care to say that religious objections to, say, blood transfusions or antibiotics would receive a less friendly hearing. Almost makes you think the good justices were thinking not about law but about policy...

As a Brit, I would not like the idea of policy being determined by people who are unelected, and unaccountable. IMHO, policy should be determined by elected representatives. But, your constitution and mine are very different.

If I consistently express opinions that favor the white, the wealthy, the Christian and the privileged, you may feel free to assume that my loyalties lie there.

But, if you give judges the power to take policy decisions, inevitably they'll favour one set of voters over another. It would surely be just as bad to have judges who took decisions that were consistently against whites, wealthy people, Christians, and the privileged.

The Court, as currently constituted, has upheld the ACA, and struck down DOMA, so it doesn't always rule against the policies you support.

[Shryke]

Shryke,

What's your take on the two 9-0 opinions from last week?

Which ones and under what context?

[TrackerNeil]

The Court, as currently constituted, has upheld the ACA, and struck down DOMA, so it doesn't always rule against the policies you support.

That is true, although both of those decisions were 5-4, meaning that they very nearly went the other way. Clearly, this is a court that isn't all that concerned about the rights of the underprivileged.

[Ser Scot A Ellison]

Shryke,

The warrantless searches of cell phones and the recess appointments to the NLRB:

http://reason.com/archives/2014/07/01/obamas-disappointing-year-at-scotus

From the link:

Riley v. California

Three weeks later, on June 25, the Supreme Court once again ruled 9-0 against the Obama administration, this time rejecting the White House's sweeping view that the police should not be required to obtain a warrant before searching the cellphones of individuals they have placed under arrest. "Although cell phones can contain a great deal of personal information, the Obama administration told the justices in one legal filing, "so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

The Supreme Court took the opposite view, endorsing a robust vision of the Fourth Amendment as a key safeguard in our increasingly hi-tech age. "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple," declaredChief Justice John Roberts, "get a warrant."

National Labor Relations Board v. Noel Canning

Just 24 hours later, the White House found itself on the receiving end of yet another unanimous Supreme Court benchslap. At issue in National Labor Relations Board v. Noel Canning was President Obama's three purported recess appointments to the National Labor Relations Board in January 2012. The problem with those appointments was that the Senate was not actually in recess at the timeSenate Republicans were then holding pro formasessions precisely so that Obama could not legally invoke his recess appointment power. But the president went ahead and made the appointments anyway, triggering a constitutional clash between the executive and legislative branches of the federal government.

In its June 26 decision, the Supreme Court came down 9-0 against the president's one-sided actions. "In our view," declared the majority opinion of Justice Stephen Breyer, an appointee of President Bill Clinton, "the pro forma sessions count as sessions, not as periods of recess." Therefore, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is."

You can hardly, with sincerity, claim that these cases were decided on an ideological basis. Even if you disagree with their holdings