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Five Stories That Made This an Exhausting Week of Legal News

That was tiring, huh?

A dizzying array of legal news delivered almost non-stop for an entire week. Emotional highs when DOMA is struck down, lows when a pillar of the legal landscape for nearly 50 years is swept aside, leaving millions of Americans even more concerned about their constitutional rights than they were before. There was an epic filibuster and failed jokes. This was a hell of a week to be covering the law.

As the frenzied week draws to a close, I decided to look back and compile my personal review of the major events of the week, gathered in one omnibus post.

So let’s take a look at the week that was ranging from Aaron Hernandez to the Supreme Court…

1. Slow your roll. The Supreme Court is not heroic.

One of the most annoying aspects of the coverage following Windsor and Hollingsworth was the bandwagon of commentary lionizing (or demonizing) the Supreme Court for its support for gay marriage. DOMA was gone and Californians could (soon) get married again and everyone was lining up to declare this the second coming of the Warren Court.

Slow the f**k down.

Yeah, Wednesday was a good day for liberals, but were any of these people watching the previous two days of decisions? Is the whole country so terminally afflicted with ADHD that two pro-gay rights decisions made everyone forget that 24 hours earlier the Court had struck down the primary guarantor of the right to vote for minorities in this country? And 48 hours earlier, the Court signaled that affirmative action was on the way out the door and that we can go full Mad Men with sexual harassment in the workplace? It was a juxtaposition that we’d predicted (with the help of Stanford’s Pam Karlan), but the fact that everyone started acting like the Court was a bastion of progressive idealism on Wednesday was absurd. There are goldfish with better long-term memories.

To go to the SNL well:

Speaking of dumb commentary, Shelby County elicited most of it. Chief Justice Roberts and the standard commentary defending him spent a good deal of time and effort pointing out that blacks vote in greater numbers than they did in 1965, so the law as currently constituted is unnecessary. This is a fun game. You know, the Fifteenth Amendment INFINITELY increased the turnout of blacks, so we never needed a Voting Rights Act in the first place. Derp.

The number of African-Americans voting is pretty irrelevant if other tactics are used to frustrate the power of that vote. Like changing borders to keep black voters from receiving the representation that their total voting turnout would suggest they deserve.

If only there was a fact pattern the Court could have looked to that would show how discrimination can exist through changing borders rather than suppressing turnout…

Oh, wait, that would be the case in SHELBY FRIGGING COUNTY.

The facts of the case, which the Chief Justice completely ignores in his decision, revolved around Shelby County’s effort to redraw the city council districts so the sole African-American elected to the city council would be out of a job no matter how many people voted for him.

Roberts didn’t even have to look far for proof that voter fraud (a) continues to happen in Shelby County and (b) has nothing to do with how many black folks made it to the polls.

And Scalia’s hypocrisy is on vivid display when his joining the Shelby County majority is juxtaposed with his dissent in the DOMA case. In dissent he writes, “we have no power under the Constitution to invalidate this democratically adopted legislation.” Of note, this bill was passed 18 years ago, with a healthy majority of 385 Representatives and 85 Senators, and subsequently signed by President Clinton.

THE DAY BEFORE, Scalia hopped on a decision invalidating Section 4 of the Voting Rights Act, which was passed seven years ago, with the support of 390 Representatives and 98 Senators and signed by President Bush. Now I disagree with the premise of both sides of this — SCOTUS is a check on the democratic process — but, it would seem like the rhetorical platitudes to the democratic process would tilt more in favor of the Voting Rights Act than DOMA. But, whatever, consistency is the hobgoblin of little minds.

2. Tough crowd. What did somebody die?

Superlawyer Don West seems to be a reasonably successful criminal defense attorney, making his decision to open the George Zimmerman murder trial with a knock-knock joke all the more puzzling. West opened the highest profile murder trial in the country with:

Knock, knock. Who’s there? George Zimmerman. George Zimmerman who? Congratulations, you’re on the jury.

Don West plans to wear these for his summation.

Za-Zing! There’s a lot of commentary out there explaining how this was a poor tactical move. He came across as callous for telling a joke in front of the victim’s family, he implicitly thanked the jury for being so dumb they haven’t heard of the case, and it was just plain unfunny. It was even more inappropriate when you consider that the whole impetus for the killing — by the account of either side — was a guy overreacting to an unknown person being in his neighborhood. The whole premise of the joke reflects how a guy shot someone instead of asking, “Who’s there?”

Alan Dershowitz got on the case, explaining that the joke itself could be grounds for a mistrial. The argument comes from the case of Howard v. Fine, but the case is distinguishable since that was a “How many X does it take to screw in a lightbulb?” case. But there was some compelling dicta.

Perhaps the best reaction came from What the Public Defender: “When you saw the opening statement from Zimmerman’s private defense counsel and remembered that he had over a year to work on that.”

Via What the Public Defender


3. Knock, Knock. Who’s There? One of the biggest news stories of the day? Sorry, we’re a major news network so we’re not going to bother.

Keeping the theme going I suppose.

On Tuesday night, almost 200,000 people watched intermittent streaming video coverage of the Texas Senate filibuster by Senator Wendy Davis. Davis, a Harvard Law alum, took the floor in an effort to kill a bill that would all but outlaw abortion in Texas. She was eloquent, she was tough, she was basically Tami Taylor but real.

She spoke for 13 hours under absurd conditions. A speaking filibuster is not supposed to be pleasant. By the end of Mr. Smith Goes to Washington, Jimmy Stewart is pretty worn out. But rules like “no leaning on the desk for support” and “don’t mention sonograms in a speech about abortion” crossed into absurdity.

I’m not a fan of filibusters per se. It strikes me that the majority usually has the right to get its way. But watching this spectacle, even if mismanaged, was a whole hell of a lot more encouraging than watching federal filibusters that consist of a short memo declaring that the minority will not be agreeing, thank you very much. Senator Jeff Merkley of Oregon has pushed for the U.S. Senate to return to forcing dissenting senators to actually give speeches if they want to filibuster, and after watching the scene in Texas, it’s clear that he’s got the right idea. The Texas Senate will get another chance to pass the bill, and they’ll succeed despite Davis’s marathon session, but this kind of passionate dissent can help ramp up public outcry and change future elections. If the people support the minority, they can rally around the speech. If they don’t, they don’t have to. Either way is a lot better than silent, backdoor filibusters.

But here’s the real problem: this only works when people see it. For the duration of her speech, the major news networks all but ignored it, going so far as to air re-runs during its climactic final moments. If that wasn’t bad enough, when Davis was finally silenced, the parliamentary games began and those watching the livestream took to social media to ask what the hell was going on. It was an example of precisely WHY news networks exist — so experts can walk the audience through the arcane stuff. It really doesn’t take much more than a year or two of student congress to figure it out. Next time something like this happens, I’d be happy to help walk the anchors through it, just drop me a line.

What are the other two big stories of this crazy week? Well, just mosey on over to the next page…

(hidden for your protection)

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