Thanks to the ACLU (please donate!), I attended an argument at the US Supreme Court today. The case was Moore v. Texas, a death penalty case. The Texas Tribune has a good summary of the case here.

Court begins at 10, but we had to be there between 9 and 9:30. There’s a line out front of people hoping to get a seat, but since we had reserved seating, we bypassed that line. We entered to the left of the big steps, and went through the first level of security. Then we were directed to another guard, who showed us to lockers where we could store our belongings. The only things you can take into the court are a pad of paper and a writing instrument. After we put our stuff in a locker, we were sent to the Marshall, who checked off our name, put us through another security check, and directed us to the nice young women who were seating people. We had to wait there until there were enough people to fill a row, and then we were all led into the courtroom to be seated. 

The courtroom is appropriately awesome. Probably 50 feet high, with 8 columns on each side and 4 in front and back, marvelous friezes carved above the columns and rosettes in the ceiling, quiet was required at all times in the room. If the sound got about the barest whisper, a frowning man with a buzz cut, and earpiece, and a wrist mic asked us all to keep our voices down, please. Members of the bar sit in seats behind the attorneys arguing the case, the press sits on the left, and guests of the justices sit on the right. There were a number of attorneys being admitted to the bar today, so that section was fairly full.

At 9:45, the attorneys arguing the case came in, and around this time, aides were bringing in papers and drinks for the justices and arranging things to their liking. (Justice Breyer drinks tea.) At 10, we all rise, the justices come in, and we’re off.

Today, Justice Ginsburg first read an unanimous opinion from the court in Bravo-Fernandez. RBG looked really frail to my eyes, and her voice was hoarse. Her jabot was quite sparkly, though. After Ginsburg read the opinion, the attorneys being admitted to the SCOTUS bar were presented and sworn in, then it was time for argument.

Mr. Chief Justice, and may it please the court…

The issue in Moore v. Texas concerns the criteria used by Texas to determine whether someone is too intellectually disabled to be executed. In Atkins v. Virginia, the court had determined that intellectually disabled people could not be executed, and in Hall v. Florida, the court had ruled that the determination of intellectually disability should be informed by medical standards. Texas, instead, uses a standard from Briseno, which claims that medical standards are too subjective, and seems to allow for a standard based on what Texas citizens would judge to be intellectually disabled.

Sloan, the attorney for Moore, was making the case that Texas didn’t use clinical standards to determine intellectually disability, instead relying on a framework that depended on stereotype and vagueness and in fact, was counter to clinical standards. A defendant could be determined by experts to be intellectually disabled and still not meet the standards in Texas. Keller, the Solicitor General of Texas, argued that Texas did use a system consistent with the SC opinions because the court had given the states leeway in how to apply the opinion and because Texas used a three prong test as laid out by the court. In effect, he was arguing that we do use modern clinical standards, and even if we don’t, it doesn’t matter.

The challenge in this case, as highlighted by Justice Breyer, is that it involves a defendant of mild intellectual disability. It’s a borderline case; how do we set the border? Justice Sotomayor asked Keller if Texas had found any mildly disabled defendant unworthy of being executed, and Keller didn’t really have an answer for her. 

Justice Alito was pretty hostile to Sloan, CJ Roberts didn’t say much but seems unlikely to be friendly, and Justice Thomas, of course, didn’t say a word. He spent a lot of time leaned back in his chair (the justices have chairs that rock back), looking up at the ceiling, or talking to an aide about something. Justices Kennedy, Breyer, Ginsberg, Kagan, and Sotomayor all seemed friendlier to Sloan than to Keller, for what that’s worth, so it seems possible at least that Moore’s death penalty will be overturned and Texas’ criteria will be forced to modernize some. Had the election turned out differently, the end of the death penalty might be in sight, but I don’t think Kennedy can be pushed that far now. 

On a gossipy note, I saw Nina Totenberg in the courtroom, and Eliot Spitzer was there for some reason. I had lunch afterwards with an ACLU attorney, and got to meet the retiring legal director of the ACLU, Steve Shapiro, before he caught the train to NY. This was his last time at the court as the legal director; his last day is Friday. He’s done a lot of great work for the ACLU, and I’ll miss him on the end of term conference calls the ACLU does wrapping up the SC cases.

Listening to Trump

We know Trump lies constantly, about anything and everything.  Too much of the media still hasn’t come to terms with this, and doesn’t know what to do in a world where both-siderism presents an active harm to the country.

But at the same time, we obviously can’t ignore what Trump says. The first rule of surviving autocracy is believing what the autocrat says. How do you believe someone who lies all the time?

I once worked on a project where I was the engineering team and the customer support staff. There was no one else. What I learned was to listen to my customers but ignore what they said. Customers would come to me with solutions to their problems; I had to figure out what their problems were, so that I could solve their problems in the best context of the entire system. The same can be applied to Trump.

Obviously, there weren’t millions of illegal votes cast for Clinton, as Trump claimed. Who knows whether Trump himself believes that or not. Millions of his supporters, getting their news from Infowars and Breitbart amplified by Facebook, will believe it, though. Too much of the mainstream media is still reluctant to call obvious untruths lies. Trump might even say tomorrow that he never said it. That doesn’t mean we can ignore it, not with people like Steve Bannon, Jeff Sessions, and Kris Kobach surrounding Trump.

The Republican Party has been systematically working to limit access to voting. The conservative members of the Supreme Court did serious damage to the Voting Rights Act in Shelby County. If Jeff Sessions is confirmed as Attorney General, he will be in charge of making decisions about what the Justice Department does (or does not do) in support of voting rights. Kris Kobach has been aggressive in the fight to limit voting access. Steve Bannon is a white nationalist. These are the people who will take advantage of what Trump says to drive their agenda. I don’t believe that Trump is playing some deep game here; I think he says whatever makes him feel the biggest and the best in the moment. But the people around him do know how to use him to drive an agenda.

People are saying

The failures of the media in covering the presidential election are many and varied, but one that stands out is the tendency of outlets to engage in what NYU journalism professor Jay Rosen calls accusation-based reporting, as opposed to evidence-based reporting. His exchange with a USA Today reporter over her article about Trump supporters attacking George Soros illustrates this dichotomy. There is, of course, no evidence that George Soros is funding professional protesters*, or resembles in any way the boogeyman that conservatives have painted him as for years. But, people are saying…

*I had Thanksgiving dinner with a couple of friends who worked at Tableau, the company who actually hired the buses in Austin that were falsely linked to Soros-funded professional protesters, and tried to find out if there was a double-secret fakeout going on and that Soros was just using Tableau to throw the Trumpers off the scent and I could somehow get in on this professional protester thing, but alas, they really were in Austin for a user conference, not a political protest. They saw the protesters, who looked like college students to them. But then they would, wouldn’t they.

Accusation-based reporting showed up all over the election coverage. Much of the coverage of the emails and Clinton Foundation stories was more about accusations than evidence, but you had to read deep into the article to find that out. Meanwhile, stories with real evidence, like the massive conflicts of interest that a President Trump would inherently face, were lightly covered. Zeynep Tufekci finds there were five times as many stories about Clinton’s emails during the leadup to the election in the NYTimes, the Washington Post, and Politico as stories about potential Trump conflicts of interest. The period of time covered July 1st to election day; James Comey announced on July 5th that no “reasonable prosecutor” would file charges* based on the evidence.

*Because there was no evidence of a crime; careless mishandling of confidential emails is not a crime, not really what happened here, and not at all equivalent to what David Petraeus did, the conservative’s favorite comparison.

There was no new evidence revealed in the Clinton email stories. There was lots of evidence sitting right out in the open about Trump’s conflicts of interest, the lack of a blind trust, that letting his children run his business would not eliminate the conflicts of interest in any way, that there probably wasn’t even any way to avoid the conflicts of interest. All sitting right there, but it’s only now that he’s won the election that significant media attention is finally turning that way.

When people tried to point this out during the election, this problem with the coverage, the response of many journalists was to fall back on that this is what people are talking about (and to point to the few really good stories that were done, like David Fahrenthold’s excellent work on Trump’s lack of charitable giving.) People are saying…


Resisting Islamophobia

Several days ago, the Muslim Association of Puget Sound, a mosque/community center in Redmond, suffered an act of vandalism. The granite sign in front of their building was damaged. Earlier this year, a bomb threat was called into MAPS. As a result of these events, MAPS has instituted round-the-clock armed security at their building.

Today, MAPS hosted an open house, and my husband and I attended. They are located in a converted manufacturing building in an industrial part of the city. We heard someone speak about the various activities at the site, including a volunteer clinic for people without health insurance and regular community volunteer programs. There is a daycare and a private school on site, and of course, prayer services. MAPS has been at this site since 2011, and in Redmond since 2009. They’ve been a part of the community just like any church in the area.

The turnout for the open house, organized and publicized on short notice, was pretty good; I’d guess there were over 100 people there when we arrived during the second hour. It was a little hard to tell, because by the end, people were also starting to arrive for the prayer service which would begin soon after the open house. We were told we were welcome to observe the prayer service if we wanted.

While we were visiting, we ran into a colleague of my husband’s who had finished his prayers. Thanks to Microsoft, Redmond is a diverse community, and this kind of hate crime is not typical. It is never acceptable, and I was glad to hear from our tour guide that there has been an outpouring of support from the community. When we drove up, we saw a bunch of people waving signs at the corner, and wondered in dismay if there were protesters. No, these were people holding up signs urging peace and support for our Muslim neighbors.

Donald Trump ran a demagogic campaign that relied on scapegoating the other, and now he is the President-elect. The scapegoating won’t end just because the election is over; whenever something goes wrong, he will have to blame someone else. We must stand up against Trump’s bullying, and those who follow his lead in attacking other Americans. When the President-elect and the people he surrounds himself with talk about banning Muslim immigration and registering Muslim citizens, it is not only immoral and unconstitutional, it encourages the bullies to attack. Standing by and doing nothing is not an option.