You Need to Read This

  You. Yes, you. I don't care how little (or how much) you know or care about politics. I don't care how much you know or care about the Supreme Court, or the law in general. If you're a citizen of the United States, or you know someone who is, you need to read The Supreme Court: A User's Guide, by Dalia Lithwick of Slate. Why? Ms. Lithwick sums it up:

While the justices cannot bring down gas prices or bring home the troops, their decisions in the coming years will affect just about everything else: your rights regarding privacy, reproduction, speech and religion; how to count your vote and where your kids go to school; as well as your occupational and environmental protections. You name it, they'll decide it. Or they'll decide not to decide it (which may be even worse).

  You need to know what's happening in the Supreme Court, and the federal judiciary in general. You need to know that the Supreme Court is the only thing standing between you and the total abolition of your civil rights. If the Court abdicates its role of reviewing laws for constitutionality, Congress and the President will have free reign. (Free "reign." Get it?) If they agree that it's okay to start disenfranchising old people who don't have a favorite bible verse and college students who've ever discussed having an abortion, shipping them abroad to be waterboarded with crude oil drilled in your local park, and paying female torturers half as much as male torturers, while tapping the phones of their relatives, nobody will be able to stop them.

  I know this sounds alarmist, but sometimes a little bit of alarm is really goddam necessary. This is one of those times.

 WHAT ARE YOU STILL DOING HERE?

Law Geekiness: The Rational Basis Standard of Review

  When applying the Rational Basis standard of review, the Court seems to be giving the government ever-wider freedom to act as it sees fit, without any meaningful check from the judiciary. In 1949, Justice Jackson's concurrence in Railway Express v. New York lauds the "salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."

  In 1973, the Court said that a suspect classification would be "examined to determine whether it rationally furthers some legitimate, articulated state purpose." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

  By 1980, United States Railroad Retirement Bd. v. Fritz saw Justice Rehnquist proclaiming that "where, as here, there are plausible reasons for Congress' actions, our inquiry is at an end." The Court no longer required that the actual reason for a law be rational. Rather, any sufficiently convincing post hoc justification that could be conceived of would suffice.

  In 1993, the Court in FCC v. Beach gave up all pretense of oversight, and instead placed the burden on litigants challenging a discriminatory law "to negate every conceivable basis which might support it." One pictures competing attorneys filling up notebooks with possible justifications and counterarguments. If the government attorney manages to think of just one more than the challenger, it's a check in the win column.

  The Court has done a neat job of ruling itself into a corner. When the Court found that the challenged Amendment in Romer v. Evans was discriminatory and motivated purely by hatred for homosexuals, the Court had to bludgeon the Rational Basis standard into a nearly unrecognizable state to enable it to strike the Amendment down. Critics who say that the Court was actually engaging in a stricter review are right. Unfortunately, the Court had very little choice. The Rational Basis standard has so little practical power to invalidate a law that the Court had to choose between dressing Intermediate Scrutiny in a hand-me-down Rational Basis t-shirt, or declaring sexual orientation a quasi-suspect classification and granting it the automatic protection of that stricter standard.

  Comparisons to the sexist reasoning in Muller v. Oregon immediately spring to mind. Again, the Court granted a much-needed protection, while (albeit a tad more subtly) endorsing intolerance toward the class it was protecting by upholding a particular discriminatory perception, namely that sexual orientation is a voluntary, rather than immutable, characteristic.

  All of that was the long way around to the following question; can the Rational Basis standard of review possibly get any more deferential? Is the chance to argue about the justification for the challenged legislation a certain thing, or will we see a day where the Court will simply deny certiorari if the government's list of justifications is longer than the challenger's list of arguments against them?

Attention Ladies,
also, people who know ladies.

  If you are pregnant, or are going to be pregnant, and you are going to have a complication which could cause you severe, crippling health problems if you complete the gestation, make sure you have those complications before the middle of the second trimester. Otherwise, the government is going to force you to carry the baby to term.

  President Bush finally has his legacy. His conservative Supreme Court is going to haunt us for decades.