Vote for F1@1F @ The ABA Journal’s Blawg 100!

The ABA Journal has honored F1@1F as one of the five best “Court Watch” blogs among its 4th Annual Blawg 100 list.  Here’s the blurb:

First One @ One First is a more personal, hipper complement to SCOTUSblog. Mike Sacks (who guest-blogged and wrote for the ABA Journal) took his coverage of the venerable court to the line, where he logged what motivates individuals to wait hours on end to get a seat to witness oral arguments in person.

Register to add your vote of confidence in the ABA Journal’s impeccable editorial judgment.

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Serota on Veterans Benefits

As we honor our veterans’ service today, I would like to recommend Michael Serota’s column at AOL News today challenging the constitutionality of the severe delays many veterans face in receiving their disability benefits from the VA.

Because of the severe psychological and physical trauma that service members endure, many veterans are unable to earn a living or support themselves. As a result, nearly 1 million veterans file claims every year seeking disability benefits to compensate them for the reduction in quality of life and impaired earning capacity caused by an injury they suffered while serving the country. These benefits can be a financial lifeline, especially since such a high percentage of the injuries incurred on the battlefield are so debilitating. Indeed, for many veterans, disability benefits are the only thing protecting them from home foreclosures, bankruptcy or even homelessness.

The VA denies about 11 percent of the nearly 1 million benefits claims filed each year, forcing these veterans to enter the VA’s dreaded appellate system, often referred to as “the hamster wheel.” The average time a veteran must wait for a benefits claim to work its way to a decision from the VA’s appellate body, the Board of Veterans Appeals, is a mind boggling 4.4 years. Even then, a large portion of the board’s cases are remanded, forcing many veterans to begin the process all over again. […]

Fed up with the injustice of these massive delays, two veterans organizations, Veterans for Common Sense and Veterans United for Truth, filed a lawsuit in the Northern District of California in July 2007 alleging, among other things, that 4.4-year appellate delays are unconstitutional. Although the trial judge in that case made a factual finding that the average wait time for a veteran’s appeal was 1,601 days, he concluded that there was in fact no legal violation.

The case is currently pending before the Court of Appeals for the 9th Circuit, which can, and should, reverse the lower court and find that these delays violate the due process clause of the Fifth Amendment, which ensures that nobody will be deprived of property without due process of law. Previous court cases have already established that veterans benefits are “property” and that veterans have a constitutionally protected property interest in receiving those benefits through fair procedures. The question that remains is whether a 4.4-year delay constitutes due process.

Read the whole column here.

Whither Incandescence?

Professor Noah Feldman has written a column at Slate that asks whether the reputations of Justices Sotomayor and Kagan will one day occupy the same rarefied air as those of Justices Black and Frankfurter.  The comparison, extrapolated from a single Sotomayor dissent from denial of certiorari in a habeas case this term and nothing at all from Kagan, seems little more than an attempt to peddle his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, in which he explores the rivalries and relationships of Justices Black, Frankfurter, Douglas, and Jackson.

I am eager to read Feldman’s book–I just badgered Georgetown’s law library today about when it is slated to arrive–because I have long been fascinated by the Court’s primordial ideological oozing between 1937 and 1954.  FDR appointed nine justices, all supporters of the New Deal’s constitutionality.  They helped vanquish conservatism as it was known and realign partisan politics such that both Republicans and Democrats would support, or at least did not reject, the New Deal for the next half-century.

Beyond burying Lochnerism, however, the nine “young” men were left to their own devices in molding a jurisprudence for the modern era, when end of the Depression began the fraying of FDR’s big tent.  World War II led to questions about executive power.  The start of the Cold War returned to the Court’s docket questions of free speech rights of political dissidents.  And postwar America, after destroying the Nazis in Europe, was finally forced to reckon with its own racist regimes.

The greatness of these questions required great answers.  And those answers, from judicial restraint to strident activism, from originalism to living constitutionalism, all variations on even older themes of principle versus pragmatism, remain with us today.

So I found myself puzzling over Feldman’s concluding paragraph:

[O]ne lesson of Roosevelt’s court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt’s appointees—Black, Douglas, Frankfurter, and Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better. The first move was Sotomayor’s. Will Kagan go next?

Strong rivalries and personalities are not enough to make great justices.  The times must also require greatness.  And greatness does not come by playing defense, for which the Court’s liberal wing has been increasingly relegated since the 1970s.  Meanwhile, the left’s big offensives are towards full gay equality and death penalty abolition, and getting there depends, at least for now, on Justice Kennedy’s sense of his own greatness.

It’s hard to see right now when, if ever, the next great political realignment will occur.  History says such realignments revolve around one great issue, and we’ve had only three: Revolution, Civil War, Depression.  Gay rights and the death penalty, however huge they are for those in the arena now, are not epoch-defining issues that, once resolved, will bring us into a brave new world both politically and jurisprudentially.  For his part, Feldman, in a New York Times Magazine article over the summer, proposed the “rediscovery” of liberal economic jurisprudence as a way to create room for the left’s greatness on the Court, but there’s a difference between quoting Holmes and Brandeis and being Holmes or Brandeis.  Similarly, the conservative justices will be revisiting history, not writing it anew, if they follow the right’s flirtation with neo-Lochnerism into the death of Obamacare, and finally achieve the end of affirmative action and the reversal of Roe.

This is not to say that Sotomayor and Kagan, or Roberts and Alito, will not rise to the greatness of their most incandescent predecessors.  But I’d rather have a bench full of moderates often politely–and, on occasion, forcefully–making inevitable progress in our imperfect, somewhat stable society than suffer through the doom and gloom that gives birth to a few squabbling greats.

This piece is cross-posted at The CockleBur.

At Close Range

READER DISCRETION ADVISED:

THIS POST IS RATED “M” FOR MATURE.

FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.

First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench.  How close?  For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:

For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment.  And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.

Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother.  Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow.  His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent?  Comic books?  Movies?  Rap Music?  Bugs Bunny?

From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini.  If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.

But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry.  Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors.  At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism.  With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”

At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.”  But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”

Morazzini wasn’t destined to survive this onslaught.  Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech.  When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him.  Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.

Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument.  But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play.  Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty.  The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.

To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.

Graphic violence. There is a difference.  We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description:  Pour gasoline over them, set them on fire and urinate on them.  We do not have a tradition in this country.  We protect children from that.  We don’t actively expose them to that.

With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith.  Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:

And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?

Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest.  Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away.  Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.

Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground.  The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past.  And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.

The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning.  For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?”  But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.”  These are words of condemnation, not of endorsement.  They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start.  And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.

But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court.  Today, all that mattered was that more justices killed more of California’s law than they did its challengers.

Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice.  Said Sotomayor:

So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle.  Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

Just temporarily is right.  Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.

Nonviolence for Violence: Some Scenes from a Protest

I’m off to class now, but I hope to get my recap of the Schwarzenegger v. EMA argument up at a reasonable hour.  Briefly, the California lawyer got mercilessly pummeled by Sotomayor, Scalia, Ginsburg, Kagan, and Kennedy, while Roberts stayed almost completely quiet for the first half-hour, only to be EMA’s prime antagonist during the second half-hour.  Breyer joined Roberts in support of the CA law, while Alito, who had sharply questioned CA, more sharply questioned EMA.  Alito also had some lighthearted, but jurisprudentially serious, quips towards Scalia on the limits of originalism for First Amendment cases concerning media never imaginable in 1791, let alone 1951.

Until then, here are some scenes from the sidewalk:

 

What Posner Said.

Tomorrow morning, the Court will hear Schwarzenegger v. Entertainment Merchants Association. As far as I’m concerned, the question of whether government may ban the sale of violent video games was answered nearly ten years ago by a unanimous Seventh Circuit panel decision penned by Judge Richard Posner:

The issue in this case is not violence as such, or directly;  it is violent images;  and here the symmetry with obscenity breaks down.   Classic literature and art, and not merely today’s popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial.   The notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity. […]

People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants;  or The Divine Comedy with its graphic descriptions of the tortures of the damned;  or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds.   Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula).   Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.   It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware.   To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming;  it would leave them unequipped to cope with the world as we know it.

Maybe video games are different.   They are, after all, interactive.   But this point is superficial, in fact erroneous.   All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive;  the better it is, the more interactive.   Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.   Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred.   The cult of Sherlock Holmes is well known.

Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories.   Take once again “The House of the Dead.” The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo.   The zombies have already knocked down and wounded several people, who are pleading pitiably for help;  and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies.   His main task, however, is self-defense.   Zombies are supernatural beings, therefore difficult to kill.   Repeated shots are necessary to stop them as they rush headlong toward the player.   He must not only be alert to the appearance of zombies from any quarter;  he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the “undead,” fighting against overwhelming odds-these are all age-old themes of literature, and ones particularly appealing to the young.  “The House of the Dead” is not distinguished literature.   Neither, perhaps, is “The Night of the Living Dead,” George A. Romero’s famous zombie movie that was doubtless the inspiration for “The House of the Dead.” Some games, such as “Dungeons and Dragons,” have achieved cult status;  although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons.   We are in the world of kids’ popular culture.   But it is not lightly to be suppressed.

Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, “Ultimate Mortal Kombat 3.” A man and a woman are dressed in vaguely medieval costumes, and wield huge swords.   The woman is very tall, very fierce, and wields her sword effortlessly.   The man and the woman duel, and the man is killed.   Another man appears-he is killed too.   The woman wins all the duels.   She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood.   Of course, her success depends on the player’s skill, and the fact that the player, whether male or female, has chosen to be the female fighter.  (The player chooses which fighter to be.)   But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men.   It thus has a message, even an “ideology,” just as books and movies do.

American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001). cert. denied 534 U.S. 994 (2001).

One need not be a First Amendment absolutist or doctrinal purist to find California’s ban as problematic as the Indianapolis regulation at issue in American Amusements.  In true Posnerian spirit, there is an economics-driven, pragmatic reason California’s law must fall.

Indianapolis’s regulation required minors to be accompanied by their parents in order to play violent arcade games.  Gamers with a sense of history can correct me if I’m wrong, but the most high-end arcades cost a dollar or so to play in 2000.  For minors, that’s a far lower bar to clear for access to violent video games than the $60 home console-based games at issue tomorrow morning.  If the state’s paternalism a decade ago could not thwart the constitutional rights of a kid with a fistful of couch-found quarters, then similarly doomed should California’s ban be against today’s games, for which a parent’s consent-by-pocketbook is the de facto state of play.

This piece is cross-posted at The CockleBur.