scotus

It's pretty bad when a law putatively banning only the distribution and production of a disturbing sexual fetish that involves the deliberate harm of animals is struck down 8 to 1. It could be that since the government decided to argue some expansive view of why and how it could ban such production and distribution, rather than simply arguing the necessary violations and animal cruelty involved supersedes speech restrictions, made the court rather mad.

Moreover, this law, with a supposedly narrow interpretation banning a specific format of a disgusting and harmful practice, was used to prosecute and ban distribution of unrelated video and documentaries, such as those of dog-fighting or hunting. As I recall, the case was brought by an agency seeking to educate people AGAINST dog fighting, by highlighting the brutality of the "sport". This is a classic example to me of the problem I noted earlier, where we apportion a power to the state, and the state promptly abuses that power to do something else unrelated to our well-intentioned and stated reasoning.

I'm not sure what the arguments will be as the nomination process proceeds to replace Justice Stevens, but this line of argument, that we'd be appointing a relative incompetent to the court, is fairly persuasive. Every case I've seen Kagan present as Solicitor General has been rather disappointing. Since there is a great deal of sophistry involved in the legal process, it's not necessarily clear that she is using her own deeper philosophical arguments to make these cases. But the choices she is making to attempt to argue them are deliberately assaulting the 1st amendment (both here and in Citizens United) and are rejecting much lesser reaching arguments which might have been more favorable to moderate counsel (ie, could have won narrower and stricter readings of the law, such as the one suggested by Alito for this decision). This was, in the circumstance of trying to win a case, obviously a mistake, but it also suggests that there is little internal fear of appointing power over and above what is deemed to be Constitutionally approved, not merely by the mostly conservative court, but by its liberal wing as well (Indeed, it was only Alito who dissented here on a very narrow grounding, hardly the most liberal member of the court).

Of course, since the Obama administration already botched the handling of her apparent sexual orientation "question", rather badly at that, it is unlikely she'll be moved up from SG to the Court anyway. Which moves us back into the analysis of "who shall replace this supposed liberal activist judge". I don't see any reason why it would or should not be someone who is perceived, at least some key points like abortion rights, as yet another "liberal activist" judge. No major balance is altered by doing so and no balance should be expected to be shifted with a Democratic and putatively liberal President in office (and a Democratic Congress to boot).

We are told that appointing some gay judge will sway the ruling on gay marriage which may be sure to come up at some point (because of the Federal Defense of Marriage clauses). But I find that hard to believe given that there are still a bunch of judges whose opinions are either unknown or may be presumed hostile and will at "worst" seek to overturn only the federal definition using a federalism grounds to restore power to the states. Replacing Stevens, even with someone more favorable still to gay rights as we might assume a homosexual Justice to be, isn't likely to change this logic on its own. Basically it just seems strange that the objection could be raised to replace THE "liberal" (whatever that means) with...horrors, another "liberal".