Wednesday Writs for 5/8

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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46 Responses

  1. Oscar Gordon says:

    L10: I’ve only ever had Jury Duty once, but I would do it again, if possible. Unfortunately, I’m not sure how well I’d pass Voir Dire, unless Dr. Bull was looking for me specifically.Report

  2. veronica d says:

    L5 — If I read correctly, this was a forty day jail sentence, which is barely enough time to properly detox off of Suboxone, and which would be a hellish experience to go cold turkey. (The detox symptoms of Suboxone have been described to me as at least as bad as heroin/fentanyl, if not worse.) Furthermore, the reality is the woman would probably be able to get some kind of opiate in the jail, which she would take, just to stop the anguish.

    Our responses to opiate addiction is so goddamn needlessly cruel.

    We are a cruel nation filled with cruel people. It’s awful.Report

  3. Kolohe says:

    I never knew the name of Lawerence’s partner until now, and I also didn’t know he was African American.

    And I can’t help but think that might be part of why some major metro area cops decided to arrest some people using a relatively obscure and little used law.Report

    • Jaybird in reply to Kolohe says:

      I read somewhere that the person who called the cops on the couple was a former ex-boyfriend of one of them.

      There was so much weird drama that it shouldn’t have been Lawrence v. Texas. It should have been Lawrence v. Florida.Report

    • Em Carpenter in reply to Kolohe says:

      In the podcast I recommended, the arresting officer said that they were just so loud and beligerant (when he barged into Lawrence’s apartment) that he just wanted to come up with a reason to arrest them and so he used the sodomy statute.
      The defendants told their handlers they weren’t guilty- that they were just sitting on the couch, were just friends, and had never been sexual partners. They were told to not ever repeat it, as it would hurt the cause if they were acquitted.Report

      • Jaybird in reply to Em Carpenter says:

        the arresting officer said that they were just so loud and beligerant (when he barged into Lawrence’s apartment) that he just wanted to come up with a reason to arrest them and so he used the sodomy statute

        This is insane.Report

        • Morat20 in reply to Jaybird says:

          That’s pretty much how cops work.

          I once had some dick of a cop mull over whether to give me a speeding ticket for several minutes, while my dad was bleeding copiously over the seat next to me. (The reason i was, in fact, in a bit of a rush. We hadn’t realized how badly he’d cut himself until we had already gotten halfway to the hospital).

          Mind you, this was in the ER driveway, and the cop wouldn’t let my dad exit the car until “procedures were finished”.

          When someone from ER wandered out to see if we needed help, and started shouting back about needing help, the cop apparently decided we’d respected his god-given authority enough and left.

          Fun coda? I described this story to my mother-in-law, and she recognized the officer — he liked to hang around the high school (where she worked) and harass any student not actually inside the buildings, which drove the staff nuts because students were regularly sent between buildings even between class, and this yahoo would waste an hour or two of time several times a week “making sure they weren’t making trouble”.

          This was, of course, also in Texas. Near Houston, in fact. In a nice, quiet suburb, where the cops are generally nicer.Report

  4. Michael Cain says:

    L6: It’s more complicated than it appears. Semenya has partial androgen insensitivity: her chromosome pattern is 46 XY (ie, male) but at the cellular level she does not respond fully to androgen. The partial insensitivity is the problem. Complete insensitivity and you get a female body type (no ovaries or uterus, though). Normal sensitivity and you get a male body type. Where do you draw the line?Report

    • George Turner in reply to Michael Cain says:

      In depth look at the issue in Quillette from a top college runner and Duke Law professor. Warning, it may cause triggering.

      In the 800 meters at the 2016 Rio Olympics, the medal count was XY females three, XX females zero.

      At least one study suggests this is a decades’ long pattern, reporting a “presumed…over-representation of [46, XY DSD athletes of] approximately 1,700-fold at the podium level.”

      However, there’s an fascinating set of comments on the story from a person called “outraged”, and nobody is sure if it’s absolutely brilliant trolling (on the level of Titania MacGrath), or an actual SJW from some university somewhere. I still can’t decide.Report

    • veronica d in reply to Michael Cain says:

      This article states that we don’t know if she has any such medical conditions:

      Because Semenya has not commented publicly on her medical records, we don’t know if she fits into this category.


      • As noted in the CAS report, the particular rule applies only to 46 XY DSD persons. Multinational sports authorities have never been noted for having a lot of sense, but I assume the IAAF would not have told her the rule applies in her case without evidence in hand.Report

        • veronica d in reply to Michael Cain says:

          That makes sense.

          My take: have you ever noticed that the vast majority of successful basketball players are tall? That’s odd, right? It might even be unfair. After all, what if some random person just loves basketball, and they work really hard — like super hard, every day — but they’re only five-foot-two-inches?

          Like, bummer.

          I suppose basketball could have height divisions, the same way we have weight divisions in weightlifting and the fighting sports, but then, that would be a logistical nightmare for team sports. Or we could just accept that some people have athletic gifts and others do not.

          Except, what if such gifts stem from a nameable genetic condition, rather than just a random assortment of genes that collectively give a benefit? If it’s from a nameable condition, should that matter?

          What if it’s even more than nameable — what if it deals with issues of gender or something, some kind of hotbutton issue that triggers people’s “squick” factor? Should that matter?

          She’s not cheating. She’s competing with her natural body, well trained, the same way all elite athletes do. This whole controversy is unprincipled.Report

          • Any time there are closed competitive athletic divisions, things will be controversial when you get near the limits on performance and there are tangible benefits on the line.

            Connecticut now allows trans girls to compete on the girls team in high school track and field, and pretty much acknowledges that eventually all of the girls state records will be held by trans girls. The complaint this year is that two trans girls have kept some other sprinters from qualifying for the regional interstate competition where a lot of small college coaches will be watching and making decisions about scholarship offers.

            I’m just glad I don’t have to make the decisions about XY vs XX and athletics.Report

  5. George Turner says:

    L10: I don’t understand why anyone bothers over jury duty. You can easily tell who is guilty by looking at them. Beady eyes are an obvious giveaway, as are any tattoos that aren’t lauding Jesus (if done tastefully), the Marines, or the Navy. Physical infirmity is another clear sign of latent criminality, and you can usually tell if someone was raised as a member of the criminal class by their accent, even if they try to hide it. All that nonsense about rules and evidence is just that: nonsense. In most cases, the attorneys and the judge are wrong on the law. I know because I watch TV crime shows like Unsolved Mysteries on Spike and Snapped on Oxygen.Report

    • Em Carpenter in reply to George Turner says:

      You have been in every jury pool I’ve ever chosen from.Report

      • George Turner in reply to Em Carpenter says:

        “Norm! So you got out of jury duty again!”
        “Yep. But this time was tougher. I had to go all the way to talking about sloping foreheads, receding hairlines, and Dumbo ears before she’d let me out of there.”
        “That tough eh? Well have a beer.”

        But sadly, I’m sure they’re serious.Report

      • pillsy in reply to Em Carpenter says:

        The one time I sat on a jury I got bounced because the prosecutor didn’t like the answers I gave to some questions, which is slightly ironic because if it had gotten passed that I would have said I couldn’t sit on it fairly because I just looked at the guy and had this overwhelming sense that he was guilty.

        Obviously it’s stupid thing to think just looking at a guy. But pretending not to be dumb just makes you dumber, and in a case where it’s a guy looking at a lengthy prison sentence for a heinous crime, well, I think he deserves to have as few idiots as possible deciding his fate.Report

  6. CJColucci says:

    My best jury story. I was picking a jury in the Bronx and was questioning a 30-ish African-American man named Troy Canty. He seemed unobjectionable, but something in the back of my mind was bugging me. So I asked him, “Mr. Canty, I can’t shake a nagging feeling that I know you from somewhere or for some reason. Can you think of any reason I might know you?” Turns out he was one of the people Subway Gunman Bernard Goetz shot in the 1980s. Mr. Canty was obviously displeased with the results of his involvement with the court system. Although I still had no particular objection to him being on the jury, both sides agreed that he could go home. The way the case went, I might have been better off keeping him, though my adversary would surely have gotten rid of him.Report

  7. Pinky says:

    L1: Em, I’d be curious about your assessment of the majority opinion and Scalia’s dissent. I’m not a lawyer, and I’m philosophically biased toward Scalia’s position, so I can’t trust my assessment. But Kennedy just seems to assert things, whereas Scalia presents arguments. Kennedy relies on the most non-legal, non-Constitutional positions the Court has taken in order to set himself up for another step. Scalia points out the inconsistencies in the positions, and correctly points to how they’ll lead to further Court interventions. I don’t see how anyone can read those opinions and believe that Kennedy had the better reasoning.Report

  8. pillsy says:

    I always thought Thomas’ dissent in Lawrence at least made some sense on its own terms. Like, I think Clarence Thomas is an incredibly smart guy who seems to come from a weird parallel universe where law is totally different.

    But the Scalia parade of horribles in Lawrence that Em quoted is always good for a laugh.

    Like, when you’re worried that the precedent you’re setting is going to invalidate laws against masturbation, isn’t that a pretty good sign you oughta maybe set that precedent?Report

    • Pinky in reply to pillsy says:

      I don’t get your comment about Scalia. (Actually, the comment is directed at the idea that Thomas presents.) The Supreme Court doesn’t have the authority to overturn stupid laws on the grounds that they’re stupid.

      Hold on a second; let me stop there. Do you agree with that? If not, what’s your reasoning?Report

      • pillsy in reply to Pinky says:

        I think Thomas’ argument is reasonable enough as far is it goes.

        I don’t think it makes sense to ban a law only because it’s dumb.

        But if it’s dumb and it infringes on people’s rights, then it’s gotta go. Thomas believed this law didn’t, I believe he’s wrong.

        But with Scalia, worrying about what happens to laws about masturbation and fornication?

        “If you strike down this very dumb law, what about these other very dumb laws?” is not a convincing threat.Report

        • Pinky in reply to pillsy says:

          Every law potentially interferes with human actions. Whether we have a right to each of those actions is open for debate. Whether the Constitution protects those rights is a solvable problem: we can look at the document. All matters not specifically mentioned in the document are for the states, or the people. On what other basis than the Constitution can the Supreme Court declare something to be a Constitutionally-protected right? And if there’s no basis, you’re simply saying that the law is dumb.Report

          • pillsy in reply to Pinky says:

            No, all powers are for the states or people.

            On the other hand, the document itself is pretty clear that you can’t just look at it and say, “Oh, no right in here. Must not be protected!”

            And later on there’s this whole bit where it’s the job of the federal government to protect the rights of people in the US from state governments. So I’m comfortable with the fact that the Courts may end up deciding the Constitution protects rights that aren’t enumerated.Report

        • Pinky in reply to pillsy says:

          Also, it’s worth noting that Scalia mapped out, just as forcefully and with even more words, how the ruling would put Roe at risk. The point of both exercises was to strip away the claims that this was a narrow ruling consistent with US jurisprudence.Report

      • Mike Schilling in reply to Pinky says:

        Scalia said that overturning the sodomy law could lead to overturning laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity”.

        Some of this may be arguable, but it’s hard to picture being worried that there’s no longer a law against masturbating.Report

    • Pinky in reply to pillsy says:

      The reason I ask is because, if you’re ok with that, then you’re permitting the least democratic branch of government to override the most democratic, without any Constitutional grounding for doing so. Further, the Supreme Court’s function is to rule on cases in such a way that lower courts can apply SCOTUS’s standards to future cases. Subjective standards don’t do that. They lead to the long-shot courtroom strategy, where you might be lucky enough to catch the Court in a weird mood, or at the beginning of a new fad. That’s why I find Justices like O’Connor and Kennedy to be more damaging than wrong ideologues: they try to walk the middle between two clearly-articulated extremes, creating an inconsistent jurisprudence. Time will tell if Roberts falls into this pattern.Report

      • Jesse in reply to Pinky says:

        “Constitutional grounding” is whatever judges want it to be, of all political stripes. Modern conservative constitutional legal beliefs, including orginalism, were basically made up in the back room of a think tank in 1971.Report

        • Pinky in reply to Jesse says:

          If you read Kennedy and Scalia on this case, I think you’ll find that Scalia is grounded in a way that Kennedy isn’t. I’ll grant you that originalism died out a long time ago before it was revived in the modern era, though.

          This is kind of a reply to your comment above about Roe, too. The issue that Scalia raised is that the intellectual basis of the Lawrence majority could be used against Roe. Intellectual clarity is important for justices. It may be a struggle to be consistent, and it may be a struggle to discern the original meaning of a law, but the whole point of the job is to explain your reasoning sufficiently for lower courts to be able to apply it.Report

          • Jesse in reply to Pinky says:

            Scalia’s only seems grounded if you’re tempted to agree with him in the first place or if you’re a self serious law student whose moved by the sophistry of legal writing in the first place. Which, on cultural issues that he cares about, is all what Scalia’s supposed intelligent opinions are, sophistry to get to his goal of making a reactionary right-wing social order more possible.

            If Lawrence didn’t exist, the Right would find some other argument to overturn Row, because, and I applaud them for this, they realized much before the Left did that the Supreme Court was a political actor, so they’ve pressured and cagoled and convinced the Republican Party on a goal of putting 5 Federalist Society members on the bench and dozens more up and down the federal courts of the US, to make sure that the right decisions are made, no matter what argument you have to use to get to it.

            The only “sufficient reasoning” the dozens of Trump appointed and Federalist Society backed judges will need to “apply” the future all but overturning of Roe v Wade is their own personal and political beliefs.

            We’ve already seen this for the past 20-30 years in the Courts, in cases like Bush vs. Gore, Shelby County, etc.

            By the way, all the above isn’t a defense of Kennedy, but at least he occasionally stumbled upon the right decision.Report

  9. J_A says:

    But the Scalia parade of horribles in Lawrence that Em quoted is always good for a laugh.

    I don’t remember exactly which of the several cases that ended in Obergefell it was, but one of the Federal District Judges partially based his ruling (in favor of SSM) quoting Scalia’s dissent, and essentially concluding that “as Justice Scalia pointed out, Lawrence tells us that the 14th Amendment makes laws prohibiting SSM unconstitutional”Report

  10. pillsy says:

    One of the things that always baffles me about Lawrence is that the whole thing could have been avoided (very possibly including the part where it laid the groundwork for Obergefell) if Texas had just repealed their indefensibly stupid and bigoted sodomy statute.Report

    • J_A in reply to pillsy says:

      if Texas had just repealed their indefensibly stupid and bigoted sodomy statute.

      I think that the reluctance of Texas and other states to repeal those laws is that sodomy laws gave politicians a tool against LGBT (and LGBT allies) by effectively painting gays as, effectively, felons, who, even if they were never prosecuted, could be prosecuted at any time.Report

      • pillsy in reply to J_A says:

        I think you’re probably right.

        This is one of the reasons I’m just so unsympathetic when social conservatives complain about LGBT activists or the Left being “vengeful”.

        Maybe if they didn’t want that to happen, they shouldn’t have treat people in gratuitously shitty ways for decades. Just a thought.Report

        • veronica d in reply to pillsy says:

          I remember, even back in the late 80’s — early 90’s, our local sheriffs office ran routine stings against gay men, enforcing various blue laws. Basically they tagged an attractive cop to hang out in the seedier parts of gay culture, adult stores, gay bars, etcetera, and then arrest gay men who propositioned them.

          These were not prostitution stings. These were “being gay” stings. The sheriff seemed to take delight in the process, on account of the fact he (and I assume many of his officers) hated gay people.

          Hate is hate. It still exists, and it fuels so much of contemporary politics.

          This is not the distant past. It is living memory, my memory.

          Fucking bigots. They are exactly what we say they are, and obviously so.Report

      • Michael Cain in reply to J_A says:

        I think that the reluctance of Texas and other states to repeal those laws…

        Also, there is always a possibility that a Supreme Court decision, or federal statute, or agency rule, may be reversed in the future. If the law is still on the books, it’s instantly enforceable again. This can be attractive, particularly in a state like Texas where the legislature only meets every other year.Report

      • Jesse in reply to J_A says:

        Yeah, Rod Dreher on his site semi-regular brings up the “I don’t think the cops should arrest having gay sex in their own bedrooms, but Lawrence vs. Texas started a slippery slope toward the end of religious liberty” argument, some of the liberal people still in his comments rightly respond, “so, can you point me to the conservative evangelicals who would’ve support a repeal since they would’ve been needed to overturn such laws in Southern states like Texas, because if there wasn’t, what you’re basically saying is sodomy should’ve stayed illegal forever and you don’t really care,” those folks largely get ignored by Rod.Report

  11. L1: If Lawrence were decided today, it unquestionably would be 5-4 to uphold the conviction.Report

    • Today is one of those days when I wonder if The Five really want to see such laws everywhere, or if they are just willing to let conservative states have them because they know they and their families are never going to live in those states. Bluntly, are they thinking deep down, “Yes, this make Alabama a crappier place to live but my family will never be living in Alabama.”Report