A supreme court decisions roundup

an oddly large number of important supreme court decisions happened in the last few weeks. Instead of commenting on them individually and separately, I decided to put them all together; I don’t think it’s possible to get a decent idea of where the U.S. is heading, legally speaking.

1)United States v. Windsor and Hollingsworth v. Perry — These are the DOMA and Prop8 cases, respectively. The most important positive bit here is that in states where gay marriage is legal, gay married couples will now be treated the same as straight married couples at the federal level. The major bad part is that the way these two cases were handled, state-level bans on gay marriage are still perfectly legal, and states don’t need to acknowledge other states’ marriage laws. Basically, they turned gay marriage into a “states rights” issue. Still, this is at least 2 steps in the right direction: end to federal-level discrimination of already legal gay marriages, and the death of Prop * (and therefore restoration of gay marriage in California), but int he case of Prop 8, at a very high price, because the whole “standing” thing is arbitrary and can be used in really shitty ways to deny people access to courts.

2)Shelby County v. Holder and Arizona v. The Inter Tribal Council of Arizona — These are the decisions that (at least for now) defanged the Voting Rights Act and are very likely going to lead to massive voter disenfranchisement: while the court didn’t strike down the pre-clearance provisions(i.e. the requirement that certain states must submit to federal oversight and can’t change shit about their voting rules w/o the federal “go ahead”) themselves, it killed the Section that defined which states/counties/whatever the pre-clearance provisions apply to. So right now, they don’t apply anywhere, until Congress gets their act together (lol) to create a new formula “justified by current needs”. On the one hand, that sounds reasonable, because there’s many places in the US right now that are threatening voters’ rights that are not covered by the original formula, so the formula seems insufficient for modern needs. On the other, it only sounds reasonable to claim that the formula is “based on 40-year-old facts having no logical relationship to the present day” if you believe the BS about how “things have changed dramatically” in the South, meaning that the states who had Jim Crow laws then wouldn’t happily revert to whites-only voting if given the chance.
Which brings us to the second case noted above, which on the surface looks like a win because it invalidated one part of Arizona’s ID law; but if you look deeper, you’ll note that it pretty much describes a method of getting around the ruling. Plus, apparently, the supreme court just decided that the constitution only allows Congress “to regulate how federal elections are held, but not who may vote in them”. So discriminatory restrictions are A-OK, as long as you’re not on the currently non-existent list of entities subject to pre-clearance. :-/
Definitely a GIANT step back; wouldn’t be so bad if the US had a reasonable and functional Congress that could quickly provide a more updated formula. But then if that’s how the US Congress worked, this problem wouldn’t have occurred in the first place, since the formula would already have been adapted to modern needs (which would still include most of the South, but now with added “OMG teh illegalz are voting!!!” ID-issuing states.

3)Fisher v. University of Texas at Austin — this is a case dealing with affirmative action. It basically says that a university cannot simply declare that it needs affirmative action in its admission process to increase diversity; rather, it needs to show, in the court of law, that it doesn’t have other, non-race-based, means of achieving greater diversity. Since that didn’t happen, the case was kicked back to a lower court so that the lower court could make that determination. That decision does two good things: one, it reaffirms the importance of diversity and its validity as a rationale for how to weigh admission applications; two, it reaffirms that the constitution doesn’t demand colorblindness at all costs, i.e. that an exception for remedying racial injustices embedded in society does exist. Given the make-up of the current Supreme Court (see: Scalia and “racial entitlements”), that alone is surprising and counts as a victory. Still, it may make the continued use of affirmative action a lot more difficult in the future. For now, I’m counting this one as not moving us either direction.

4) University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University — these are both workers’ rights cases, specifically worker protection and rights in relation to the Civil Rights Act. The first case is about workers being protected from retaliation by the employer after complaining about discrimination; the second case is about when an employer is liable for discrimination. The ruling in the former says that a worker has to prove that the sole reason for being discriminated was retaliation (good fucking luck with that; an employer needs to come up with only one other plausible reason, and they’re off the hook). The ruling in the latter states that an employer is only automatically liable for a case of discrimination when the person doing the discriminating has the direct ability to hire, fire, or promote the discriminated against person (e.g. racially motivated negative performance reviews don’t count; harassment doesn’t count; always being assigned to be the person who makes the coffee in meetings doesn’t count). Both decisions are massive losses of workers’ rights against discrimination and harassment.

5)Agency for International Development v. Alliance for Open Society International — This case was about a foreign aid rule that stated that organizations receiving money from the US to fight HIV/AIDS, Tuberculosis, and Malaria had to be strictly against prostitution; meaning that sex worker’s rights groups and those dealing with HIV/AIDS prevention for sex workers weren’t given a penny even though they are one of the most at-risk populations. The Supreme Court ruled against the constitutionality of that rule. This is good. It’s narrow, because it only applies to broad issues not directly subject to the funding, meaning (in more familiar terms) that not allowing abortion as part of family planning when using federal family planning funds is still ok, but demanding a wholesale anti-abortion position from recipients wouldn’t be; so demanding an anti-prostitution position from recipients has been declared a violation of the 1st Amendment. Still, this is a good step forward, and a HUGE one in terms of actually helping marginalized people.

6)American Express v. Italian Colors Restaurant — this one is about arbitration agreements (about one between corporations, but according to the Supreme Court, corporations are people, so…); basically it concluded that a contract that precludes class-action arbitration or lawsuits is valid and therefore class action suits are forbidden if you signed one. Specifically, the argument that you can’t defend your claim b/c it’s too expensive for an individual is not a legally acceptable reason to void a contract.
And I’m willing to bet you’ve signed at least one contract forbidding either class action suits or forcing arbitration (e.g.: paypal has one).
Giant step backwards for worker rights and also for consumer rights.

7)Salinas v. Texas — 5th Amendment case, specifically about the “right to remain silent” and not have that taken as evidence of guilt. The Supreme Court decided that you can’t just clam up and assume that this will protect you. Apparently, you need to state, for the record, that the reason you’re shutting up is that you’re pleading the 5th, because apparently intent is what matters, not the right not to be forced to incriminate yourself (and now, that rule even applies when you’ve not been informed of this fact i.e. when you haven’t been read your Miranda rights cuz you’re not being arrested); therefore, officially, the dude in this case didn’t even use the 5th Amendment. And we still lucked out with this horrible result, because if the court had actually decided to consider the actual constitutionality of the case, we’d be discussing whether your silence can be used against you even if you do plead the 5th as long as you’ve not been arrested; and at least Scalia and Thomas very much think that you can only remain silent and not have that used against you is if you’ve been officially arrested and therefore didn’t “volunteer” to talk to cops nor can leave whenever you want to (how one could leave or not-volunteer to talk to cops when that behavior could now be used against you is a mystery to me).
Bad result, and definitely a step backward, but I don’t actually know much about the standard M.O. of cops to know how much of one. If it has until now not been the case that simple refusal to voluntarily talk to people (or leave, or say “i won’t say anything more without a lawyer, or whateverthefuck) could be used as evidence for guilt in court, then this permission to do so will have horrible effects on people and people’s rights; if cops and courts have already been doing this anyway, and the court case was an attempt at a novel defense from that behavior, then this changes nothing but “merely” enshrines a certain behavior in law; that would be a much smaller step back.

8)Adoptive Couple v. Baby Girl — this is a very complicated adoption case, so I’m gonna actually talk about it in its own blog-post. ATM, I’m just going to note that
a)the kid is NOT actually going back to the people who were trying to adopt her, even if it sided with their interpretation of which NDN children the ICWA applies to. That’s because the people who wanted to adopt “baby Veronica” hadn’t yet done so, and tribes have priority rights in placing children who are (eligible to be) members of their tribe, and baby Veronica is definitely a member of the Cherokee Nation (you can ignore the BS about how she’s “1% Cherokee”, because that’s not how it works; the Cherokee Nation don’t consider themselves a race but a nation, and the kid qualifies for citizenship).
b)The court ruled that the IWCA didn’t apply in the original case so the bio-father didn’t have overriding rights to custody, but now there is an established residence with the tribe, so NOW it might apply, and a new case will likely be required to sort this shit out.
c)Regardless of the details, choosing the narrowest definition of the IWCA is definitely a step back for tribal rights at least; and could set a horrible precedent in which NDN kids taken away at birth wouldn’t be considered eligible for the protection under the IWCA.

Overall judgment: recent Supreme Court cases have set back the rights of marginalized people massively: the exceptions were DOMA and the sex worker case, but these exceptions can’t and shouldn’t overshadow the regressive and oppressive trend.

Texas jury: Escorts who follow the law are thieves, and shooting AK 47’s in someone’s direction is not intent to harm

Lenora Ivie Frago was shot on Christmas Eve 2009 in a dispute over $150; the shooting paralyzed her, and caused her death several months later. Her killer was accused of murder, but was just acquitted; and not because the jury didn’t think he shot her, but because they thought it was ok to shoot and kill her.

Frago was an escort advertising escorting services on craigslist. This is legal in Texas, as long as “escorting” is defined as renting someone’s company, not sex; prostitution is illegal in Texas*. So I’m going to speculate that the escorting ad in question didn’t say that sex was included in the price, and therefore legally, it can’t be theft or breach of contract or whateverthefuck to pay $150 bucks and get an escort to spend time with you, rather than fuck you. Regardless of what you thought you were paying for; regardless of whether the woman was really just a date-for-hire or a prostitute trying to “upsell”; legally, the only thing you could have possibly paid her for was company, no sex. And yet, the argument of the defense hinged on the claim that Frago stole her murderer’s money by refusing to return it after no sex happened and she was ready to leave. The “theft” line of reasoning was necessary because Section 9.42 of the Texas Penal Code allows “using deadly force against another to protect land or tangible, movable property”, and the only way a payment to an escort can be still considered the payer’s “tangible, movable property” is if she was in the process of stealing it, rather than in the process of leaving after doing all that she’s legally allowed to do in her job.
So that’s the first bit of toxic bullshit: apparently following the law about escorting is theft now.
The second bit of toxic bullshit comes from the very fact that you’re allowed to shoot-and-kill anyone over a property dispute at all, but it is Texas we’re talking about.
The third and fourth bits of toxic bullshit come in when you actually read Section 9.42. The relevant parts read as follows:

(1) if he would be justified in using force against the other under Section 9.41**; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means

So in order to use this particular defense, the defense tried to convince the jury not only that doing what escorts are legally permitted to do was theft, but also that a)deadly force was necessary to stop Frago; AND b)that there wasn’t any other means whatsoever of getting his $150 back (such as suing her for fraud or breach of contract or whatever)

There’s an alternative theory about why the jurors acquitted: this was a murder trial, which according to the Texas Penal Code requires that a person

(1)intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

or, translated into English, murder is when you try to kill or severely harm someone on purpose, or you harm someone in the process of committing another felony. So. Dude claimed that he didn’t mean to kill, and was aiming at the tires of the car Frago was in, and (at least according to the defense) it looks like what ultimately killed Frago was a bullet ricocheting from another part of the car.


Dude shot an AK 47 at the car. An AK 47***. Doesn’t fucking matter what you were aiming at, there was an extremely high likelihood there was going to be injury, and on owner of an AK 47 should bloody well know that; because even I know that AK 47’s are ridiculously inaccurate weapons. If that’s not “intend[ing] to cause serious bodily injury and commit[ting] an act clearly dangerous to human life that causes the death of an individual” I don’t know what is.

So either way you look at it, and regardless of which bullshit argument convinced the jury that shooting at escorts with assault rifles is a-ok, the verdict is a pile of toxic bullshit: gun worship; misogyny; whorephobia.
– – – – – – – – – – –
*on a side-note, I find it… “interesting” that they felt they needed to draw a distinction between “sexual intercourse” (PIV), and “deviate sexual intercourse” (oral/anal)
**Section 9.41 is the one that specifies when you can use force in general (as opposed to deadly force) to defend your property; this is where the “theft” bullshittery comes in.
***who the fuck brings an AK 47 to what they think is going to be 30 minutes of screwing?! That’s first class toxic bullshit right there.