A Texas district attorney and his wife were shot to death in their home in Kaufman County last night, the latest instance in a recent spate of suspicious shootings of law enforcement officials. The deaths of Mike and Cynthia McLelland follow the shooting of a Kaufman County assistant district attorney in January, which stoked suspicions of a conspiracy to target law enforcement officials by a white supremacist group.

The assistant district attorney, Mark Hasse, was killed on the same day the Justice Department released a statement noting the Kaufman County district attorney’s involvement in a racketeering case against the Aryan Brotherhood of Texas, a white supremacist group. The FBI had also begun investigating links between Hasse’s slaying and last week’s shooting of Colorado prison chief Tom Clements by a member of another white supremacist group.

The news of McLelland’s death broke shortly before the Sunday morning news shows. CNN’s State of the Union host Candy Crowley asked Sen. Lindsey Graham (R-SC) if there was anything he thought could be done to protect law enforcement officials from the recent spate of violence. Graham said he would support measures within the “local community” to protect law enforcement, but stopped short of endorsing any federal action:

CROWLEY: Just off the top, let me ask you, when we see the death of the head of a prison official, two deaths of a D.A. and an assistant D.A. This is a dangerous business, I know prosecuting bad guys, incarcerating bad guys. Do you think we need to look at the protection of these people?

GRAHAM: Well, anything that would make our law enforcement officers safer. Obviously yes, anything the local community can do to make life safer for those who carry out the law on our behalf, count me in. There’s clearly some kind of criminal vendetta against people who enforce the law.

As a possible conspiracy seems more and more likely, the FBI and ATF have gotten involved in the cases to bolster local investigations, which do not have access to the same resources as federal forces. Crowley then turned the discussion to the Senate’s gun violence prevention package, which Graham said would not pass as long as universal background checks on private gun sales were still included. Currently, criminals are able to evade background checks to purchase firearms at gun shows or from unlicensed dealers.

Sen. Dick Blumenthal (D-CT), a former U.S. attorney, noted that because prosecutors and other law enforcement “face this kind of horror every day,” they strongly support measures curbing illegal gun trafficking and straw purchases like the one that may have enabled the murder of the Colorado prison chief. Thus far in 2013, 12 law enforcement officers have been killed by gunfire.

On Thursday, the Denver Post reported how Evan Ebel, the accused killer of Colorado prisons chief Tom Clements, used a straw purchaser to acquire the 9mm semiautomatic handgun used in the shooting.

Ebel, a white supremacist gang member, was a felon and thereby was barred under federal law from possessing a gun.  Had he tried to go into a gun store a buy a gun, he would have failed the background check.  So instead Ebel used the most common method criminals use to acquire firearms: a straw purchaser.  In this case it is alleged that Stevie Marie Vigil, a 22-year-old woman, went in to High Plains Arms to buy a gun on Ebel’s behalf.

The pattern is remarkably similar to the Christmas Eve ambush-murder of two firefighters in Webster, NY.  In that case, a 62-year-old felon named William H. Spengler allegedly relied on a neighbor, Dawn Nguyen, to buy the Bushmaster semiautomatic assault rifle he would use.

In 2009, I led a New York City undercover investigation of illegal gun sales at out-of-state gun shows than showed how easy it is to get away with even a blatant straw purchase – and how some licensed gun dealers are complicit in the practice. The following video, from a gun show in Tennessee, shows a gun dealer enabling an obvious straw purchase where the buyer gets “my friend over here to do some paperwork for me.”

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), has reported that straw purchasing is the single most common method by which guns get diverted from the legal market to the illegal market.  An ATF study showed that fully 46% of guns related to illegal trafficking involved straw purchasers.

Criminals rely on straw purchases because it’s easy, it’s hard to get caught, and the penalties are light even when cases are brought.

It’s hard to get caught because under federal law, there are no background checks or record-keeping on gun transfers by unlicensed private sellers.  That means it’s legal in most states to buy one gun or 10 and later sell them to someone else.  It’s illegal to buy a gun with the intent of transferring immediately to someone else – but with no background checks, straw purchasers know they are very unlikely to be caught.

And, even if the straw purchaser is caught – which usually happens as in Colorado and Webster, NY after the gun was used in a prominent murder – the penalties are weak.

As Brad Beyersdorf, spokesman for the ATF Denver field division said speaking of the Ebel case, “There’s little-to-no punishment for being a straw purchaser. Gang members know it, drug trafficking organizations know it.”

What’s the solution?  Simple: pass the gun bill that that is coming up for a vote in the Senate next month, which would require universal background checks and substantially raise the penalties for straw purchasers and gun traffickers.

The Louisiana federal judge overseeing the civil trial over BP’s alleged gross negligence in the 2010 Deepwater Horizon incident attended a seminar in 2009 called “Criminalization of Corporate Conduct” sponsored by the American Petroleum Institute, the U.S. Chamber of Commerce and 13 other funders. In 2011, that same judge dismissed a wrongful-death claim in a suit brought against ExxonMobil and Chevron USA for exposure to radioactive substances. Another judge who attended that seminar voted in a 2-1 holding to reject emissions caps that both the American Petroleum Institute and the Chamber had opposed in briefs in the case.

In all, 11 percent of U.S. federal judges attended all-expense paid seminars whose top contributors included conservative foundations and major corporations between 2008 and 2012, according to an analysis by the Center for Public Integrity. Sponsors often pay for participants’ airfare, hotel stays, and meals. CPI reports:

Leading the list of sponsors of the 109 seminars identified by the Center were the conservative Charles G. Koch Charitable Foundation, The Searle Freedom Trust, also a supporter of conservative causes, ExxonMobil Corp., Shell Oil Co., pharmaceutical giant Pfizer Inc. and State Farm Insurance Cos. Each were sponsors of 54 seminars.

Other top sponsors included the conservative Lynde and Harry Bradley Foundation (51), Dow Chemical Co. (47), AT&T Inc. (45) and the U.S. Chamber of Commerce (46), according to the Center’s analysis.

It is not just the sponsorship of these seminars that creates at least the appearance of a conflict. Many of these seminars are outwardly devoted to addressing corporations’ liability and/or economic theories. For example, a seminar called “Corporations and the Limits of Criminal Law.” was funded by AT&T, BB&T, BP America, Cigna, Coca-Cola, Dow Chemical, FedEx Corp. and others. Another called “The Moral Foundations of Capitalism” was funded by that same group of sponsors and the Chamber of Commerce. A host of others are generally themed around economics and tort liability.

Outcry about these all-expense paid judicial education programs was louder before 2007, when the body that oversees judges started requiring judges and seminar hosts to disclose information about their programs. As a result of these disclosures and the work of the Center for Public Integrity, we now know that conservative groups and corporations with a stake in major litigation are bankrolling these junkets. The new rule, however, does not require disclosure of how much each entity contributed.

Aside from contributions to particular seminars, the Center’s reporting traces millions of dollars more in contributions to two schools that host the bulk the majority of these seminars.  It found that ExxonMobil reported “giving $20,000 to George Mason specifically for its judicial training program. The oil company gave an additional $30,000 to the university’s Law & Economics Center, which hosts the conferences. Between 2003 and 2007, the ExxonMobil Foundation gave the think tank $150,000.” The Charles G. Koch Charitable Foundation has also contributed millions to George Mason University, and other foundations and corporations contributed hundreds of thousands of dollars to George Mason’s judicial education program and a similar program at Northwestern University. One major sponsor of these programs known for its corporate-influenced program ceased holding seminars on 2011.

Not every seminar fit into this category. The Open Society Foundation and the Robina Institute, both of which have social justice missions, sponsored one seminar — on human rights and international law. CPI has an excellent tool for viewing all contributions by seminar, judge, sponsor, and several other factors here.

The Republican National Committee devoted much of the attention of its “autopsy” report to improving party outreach to people of color. The report noted it is “imperative that the RNC changes how it engages with Hispanic communities to welcome in new members of our Party.” Yet, if the autopsy report had any effect at all, it appears to be short-lived. Since last week, top Republicans have dodged discussing immigration reform with citizenship, while one congressman used a racial slur to describe Latinos.

North Carolina Gov. Pat McCrory’s (R) contribution to this effort is to unexpectedly close the state’s Latino Affairs office, an office that normally engaged with Latino leaders on policy, offered bilingual assistance for disaster victims, and collected demographic statistics on the state’s 800,000 Latino residents.

The governor’s office said it will shift some of the office’s duties to a general office for community and constituent affairs. “We are committed to serving the needs of all of North Carolina’s citizens,” McCrory’s chief of staff said. “We don’t segment our constituents by race or cultural background, any more than we separate them by age or gender.”

But Latino advocates criticize the decision. Executive Director of Latin American Coalition in Charlotte Jess George told McClatchy, “The message from Raleigh is that Latinos in North Carolina don’t matter.”

Just before closing the Latino Affairs office, North Carolina pursued a controversial driver’s license design that would distinguish young undocumented immigrants’s licenses by a pink stripe and the words, “NO LAWFUL STATUS” printed across. The state somewhat modified the design when it faced community backlash.

Republicans are continuing their minority outreach efforts this month by introducing a bill outlawing Spanish and other non-English languages from being used in federal documents.

Rep. Steve King (R-IA), most recently in the headlines after attacking President Obama’s young daughters for going on vacation, introduced the English Language Unity Act in the House earlier this month, along with Sen. Jim Inhofe (R-OK) in the Senate. As King notes on his website, the bill would require “all official functions of the United States to be conducted in English.” Federal and state governments print thousands of documents every year, many of which are translated into other languages besides English.

One major impact King’s bill could have is to stop the decades-long practice of printing non-English ballots in areas where there’s a significant non-English language group. Indeed, Section 203 of the Voting Rights Act of 1965 currently requires local jurisdictions with a substantial number of non-English speakers to allow them to vote in other languages.

King’s bill currently enjoys 39 co-sponsors in the House—37 Republicans and two conservative Democrats—though that number will likely increase over time. Inhofe’s Senate bill has five co-sponsors, all Republicans.

English-only bills not only discriminate against immigrants and minorities; they’re also wholly unnecessary. Conservatives fret that immigrants today aren’t learning English like immigrants of yesteryear, but are instead confining themselves to permanent non-English enclaves. That idea is, to put it mildly, nonsense. Though first-generation immigrants often have limited-English proficiency, their children quickly adopt English, just as it’s always been in the proverbial American melting pot. By the second generation, more than 80 percent speak English exclusively or very well, and the figure jumps to nearly everyone in the third generation. In fact, as Professor Tomas Jimenez at Stanford University notes, “immigrants today are learning English faster than the large waves of immigrants who came to the United States during the turn of the last century.”
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Rep. Don Young (R-AK) is catching flack even from his colleagues for his casual use of a racial slur against Latinos in an interview this week. Young was reminiscing about his family ranch in California, where they would “hire 50 to 60 wetbacks to pick tomatoes.” Young seemed confused at the backlash, saying he “meant no disrespect,” but stopped short of actually apologizing for the remark.

Young’s comment has been swiftly disowned by Democrats as well as his fellow Republicans, who have stressed the need to win over the fast-growing Latino voter bloc through greater tolerance and outreach.

1. SEN. JOHN CORNYN (R-TX): “Migrant workers come to America looking for opportunity and a way to provide a better life for their families. They do not come to this country to hear ethnic slurs and derogatory language from elected officials. The comments used by Rep. Young do nothing to elevate our party, political discourse or the millions who come here looking for economic opportunity.”

2. HOUSE MAJORITY LEADER JOHN BOEHNER (R-OH): “Congressman Young’s remarks were offensive and beneath the dignity of the office he holds. I don’t care why he said it – there’s no excuse and it warrants an immediate apology.”

3. RNC CHAIRMAN REINCE PRIEBUS: “The words used by Representative Young emphatically do not represent the beliefs of the Republican Party.”

4. REP. RUBEN HINOJOSA (D-TX), chair of the Congressional Hispanic Caucus: “Shame on Rep. Don Young. It is deeply disheartening that in 2013 we are forced to have a discussion about a member of Congress using such hateful words and racial slurs…When elected officials use racial slurs, it sets back our nation and sets back legislators who are seriously working toward real, bipartisan solutions. Rep. Young says that he was just using the language he was accustomed to as he grew up, but there is no excuse for ignorance. He has served alongside Hispanics in Congress since 1973, so he should know terms like “wetback” have never been acceptable. As the Republican minority outreach efforts develop, I’d advise their strategists to list “don’t say racial slurs like ‘wetback’ ” as a bedrock for their messaging.

5. DREAM ACTION COALITION: “While senseless rhetoric used by Republicans is hardly surprising, what is surprising is that the Gang of 8 leaders working on immigration reform are not publicly condemning these remarks…As senators that come from states with large latino and immigrant communities, Sen. Schumer and Sen. Rubio must condemn these insensible remarks to demonstrate their commitment to fixing our broken immigration system and demonstrate neither party will tolerate insulting remarks against Latinos, immigrants, or any community in our country.”

6. SEN. JOHN MCCAIN (R-AZ): “Don Young’s comments were offensive and have no place in our Party or in our nation’s discourse. He should apologize immediately.”

Despite constant exhortations to reach out to minorities and young people, the GOP has continued to be plagued by racial intolerance. Even as lawmakers rushed to disavow Young’s offensive slur, 38 Republicans and 1 Democrat introduced a House bill to make English the official language of the United States.

In the late 19th Century, Southern states began to enact literacy tests to prevent African-Americans from casting a ballot. At the time, black voters were up to seven and a half times as likely to be unable to read as white voters, so requiring voters to prove their reading skills was an effective way of making the electorate more white. Many states also enacted laws effectively exempting whites from the test, such as by allowing a white voting official to subjectively determine that certain people should be allowed to vote even if they could not pass the literacy test. Indeed, the phrase “grandfather clause” refers to Jim Crow era laws that exempted white voters from voting restrictions so long as their grandfathers enjoyed the right to vote prior to the South’s defeat in the Civil War.

Literacy tests were eventually rendered illegal under the Voting Rights Act, but North Carolina’s state constitution still calls for one. Now, a bipartisan group of lawmakers wants to fix that:

Earlier this month, two African-American Democrats, Reps. Kelly Alexander of Charlotte and Mickey Michaux of Durham, joined with two white Republicans, Reps. Charles Jeter of Huntersville and Harry Warren of Salisbury, to introduce House Bill 311, which would put before voters an amendment to eliminate Article VI, Section 4 of the state constitution that says, “Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.”

An earlier effort to repeal the provision failed in 1970 — the only one of six proposed constitutional changes that North Carolina voters did not approve that year. The clause remains unenforceable under Section 201 of the Voting Rights Act, which prohibits state and local governments from requiring voters to read and write.

Although this repeal effort is largely symbolic so long as the Voting Right Act prevents North Carolina’s literacy test requirement from being enforced, repealing it is nonetheless important because there is no guarantee that the Roberts Court won’t someday strip away the federal government’s power to protect against literacy tests and similar devices intended to disenfranchise voters, just as they appear poised to cut back another part of the landmark voting law this term.

Rep. Don Young (R-AK) on Thursday night stood by his use of a racial slur to describe Latinos, saying that he “meant no disrespect” when he told an Alaska radio interviewer, “We used to hire 50 to 60 wetbacks to pick tomatoes”:

“During a sit down interview with Ketchikan Public Radio this week, I used a term that was commonly used during my days growing up on a farm in Central California,” Young said in the statement. “I know that this term is not used in the same way nowadays and I meant no disrespect.”

As the Alaska Daily News notes, Young “stopped short of apologizing.”

Listen to the interview:

The term “wetbacks” is meant to refer to undocumented immigrants who crossed from Mexico into the United States via the Rio Grande river. And the president of the Hispanic Affairs Council of Alaska, Alaska Daily News that she feels his cavalier use of the term points to bigger problems. “He didn’t even pause. It’s like that’s just what he calls migrant farm workers,” she said.

When it comes to immigration issues, Young’s focus is largely on preventing illegal border crossings. He has also voted to end birthright citizenship.

Young’s comments come just days after the Republican National Committee released its “autopsy” of the 2012 election, in which it said the party must work hard to be more inclusive of people of color. Such outreach has had little success so far, and the GOP is still plagued by racial inhospitality.

In the week since the tragic killing of Colorado Department of Corrections Chief Tom Clements – one night before Gov. John Hickenlooper (D) signed a comprehensive gun violence prevention package into law – several telling details have emerged about the primary suspect Evan Ebel that will play into investigation of the case. Reports suggest that Ebel, who had served 8 years in prison for armed robberies, was known as a troubled child who sometimes signed his name “Evil Evan.” They suggest that he had another woman buy a gun and illegally transfer it to him, and that stronger laws for universal background checks and straw purchases might have affected his case. But one element of the criminal justice system that stands out particularly in his story has nothing to do with guns. Ebel spent the bulk of his prison time in solitary confinement, an extreme condition that has been found to exacerbate violent tendencies, and that both Clements and Ebel’s parents had spoken out against.

In a meticulous story that tracks the communications between Ebel and former fellow inmate Ryan Pettigrew, the Colorado Independent explains how Ebel’s actions have been linked to the post-solitary confinement trauma he communicated to Pettigrew in the two months between his release from prison and the killing of Clements. Pettigrew, who also spent time in solitary confinement, explained how the long-term isolation in a sometimes window-less cell for years builds up not just psychological trauma, but hate and violent tendencies, of the sort Clements was advocating to prevent. The newspaper explains:

In an exclusive interview last spring, Clements said that, immediately after Hickenlooper recruited him from Missouri to run the Colorado corrections department, he found disturbing “one very alarming statistic” he said kept him up at night — that 47 percent of Colorado prisoners being released from isolation were walking directly out onto the streets without help reintegrating into social environments and interacting with people.

Clements wanted longer transition periods and step-down programs before setting isolated prisoners free. As Pettigrew tells it, Ebel said he had little help making that transition. He said altercations during his brief period in a step-down program landed him back in isolation. […]

“We have to think about how what we do in prisons impacts the community when [prisoners] leave,” Clements continued. “It’s not just about running the prison safely and securely. There’s a lot of research around solitary and isolation in recent years, some tied to POWs and some to corrections. My experience tells me that long periods of isolation can be counter-productive to stable behavior and long-term rehabilitation goals.” [...]

Pettigrew said he thought many corrections officers weren’t receptive to the reforms Clements was making.

“The old school guards in there, they just hated what he has doing and would come down even harder on us. You develop such a hatred not only from being in solitary but from having been pocked with a stick that long.”

Ebel’s parents also observed that Evan’s behavior changed after his time in solitary, and testified during a hearing in favor of a bill that would require inmates to spend time outside of solitary confinement before leaving prison: “What I’ve seen over six years is he has become increasingly … he has a high level of paranoia and [is] extremely anxious. So when he gets out to visit me, and he gets out of his cell to talk to me, I mean he is so agitated that it will take an hour to an hour-and-a-half before we can actually talk.”

Research about solitary confinement not only suggests that it is a cruel and unusual treatment particularly when applied to the mentally ill, but also that, rather than rehabilitate prisoners, it can make a bad situation worse. In a National Geographic documentary on the practice, one prisoner said, “I think 90 percent of the people that are locked up here, if they ran into a staff member on the streets, they’d hurt ‘em. … It’s hate that’s been building up in you.”

Just a few weeks after the Maryland legislature voted to repeal its death penalty, the Delaware Senate narrowly voted for a similar bill 11-10. The bill now goes to the state house, where Democrats enjoy a 26-15 majority. Gov. Jack Markell (D) has not yet said whether he will sign the bill if it reaches his desk.

As Cornell law professor John Blume explains, the rate of death sentences is unusually high in Delaware, and it is most likely to be applied in a particular kind of case — cases with black defendants and white victims:

A white student in Texas feels his heritage is not duly appreciated by his classmates, and he’s out to do something about it.

Ben Sherman at Burnt Orange Report has background about the Fort Worth-area student:

A Tarrant County Republican activist has a new idea for a new club at Tarrant County Colleges: a student union to celebrate and promote white interests.

Richard Railey, a 56-year-old seeking an Associate of Applied Science in IT, calls himself “Mstr Rick” and is currently seeking a school charter for the White Student Union of Tarrant County Colleges. On its website, Railey deems the group “a confederacy of like minds united in pursuit of common political, cultural, educational, and social interests relative to our unique White Heritage”. In the past, the Tarrant County GOP has appointed Railey as an election judge and elected him as a precinct chairman.

Sherman goes on to note that last year, Railey commented to the Fort Worth Weekly that the mere presence of an Ebony Magazine in a polling place is “EXTREMELY inappropriate and probably a federal election law violation” because it “was an attempt to intimidate, bully, and threaten white voters.”

The group’s flyers say it meets “to combat institutional racism and discrimination on campus” and help with job training “within the white business community”. The group also offers scholarships “EXCLUSIVELY for White Men” through another organization, “The Former Majority Association for Equality.”

“White Student Unions” have gained notoriety recently. A similar group at Towson University grabbed headlines this month when its members defended slavery at a conservative conference and promised to begin nighttime patrols on campus to protect against the “black crime wave”.

During the second week of testimony on New York City’s controversial stop-and-frisk program, an officer admitted to detaining and then mocking a 13-year-old boy when he started crying. Though the boy was innocent, he was still cuffed and brought to the station:

Appearing on the stand Wednesday, police officer Brian Dennis testified that he had taunted a 13-year-old boy after he detained him. Dennis told the handcuffed child, Devin Almonor, to “stop crying like a little girl.”

The teen was reportedly stopped on the street in Harlem when he reached into his pants’ waste-band. The two officers that stopped him claimed to have been searching for a firearm, but Almonor was found to be carrying no weapons. He was nonetheless handcuffed, taunted and taken to the stationhouse.

Dennis conceded that he no longer thought the taunt was appropriate, but another officer, Jonathan Korabel, maintained the stop of the boy was a “lawful frisk.” He claimed the teen was jaywalking and started “yelling and making a scene” when officers tried to frisk him.

Almonor is hardly the NYPD’s youngest target. In December, the police were once again sued for cuffing and arresting a 7-year-old boy for stealing $5 from a classmate. Lawsuits over police misconduct cost the city $22 million in just one year.

The current case, Floyd v. City of New York, has exposed many harrowing new details about stop-and-frisk. Last week, other officers testified that they were pressured to meet quotas of 5 stop and frisks, 20 summons and 1 arrest every month. Another cop recorded his superior instructing him to specifically target “male blacks 14 to 21″ years old.

These instructions have been carried out with gusto; in 2011, the NYPD stopped young black men more times than the total number of young black men in all of New York City. Since Mayor Michael Bloomberg took office in 2002, more than 86 percent of the people stopped by the police were black or Latino. Almost 90 percent of these stops resulted in no ticket or arrest.

Thursday morning, local police released previously embargoed police records about the Newtown, Connecticut shooter, Adam Lanza. The records disclosed that, in five minutes, Lanza was able to fire 155 shots, partly as a consequence of the numerous 30 round high-capacity magazines he was carrying.

Most of the released documents were search warrants for Lanza’s car and home, which he shared with his gun-collecting mother (the weapons used at Newtown were taken from his mother’s stockpile). Put together, the findings in these warrants paint a disturbing picture of the arsenal available to Lanza:

– 1 NRA certificate for Adam Lanza and 1 NRA training book. Police investigators found a National Rifle Association certificate in Adam Lanza’s name, though the nature of the certificate was unspecified. Police also found a book titled “NRA Guide to the Basics of Pistol Shooting,” a book that’s commonly given out as part of NRA pistol training courses. Graduates of these courses are given certificates.

– 3 new guns. In addition the newly-identified shotgun in his parked car outside (it was a Saiga 12), a search of the Lanza home found an Enfield Albian bolt action rifle and a Savage Mark II .22 rifle. The latter contained live ammunition.

– 4 high capacity magazines, 2 of which were brought loaded to the crime scene. There were two high-capacity shotgun shell magazines for his shotgun at the crime scene, containing a combined 70 extra rounds for the fortunately-unused shotgun. Police also found two 20-round magazines at the Lanza residence.

– Over 1700 rounds of ammunition. These covered a variety of different calibers and gun types, and would have stocked 170 standard 10-round magazines or 56 of the 30-round high capacity magazines Lanza used to such deadly effect in the school.

– 13 types of bladed weapons. The Lanzas didn’t just collect guns; they also had a variety of knives, samurai swords, and one “six foot ten inch wood handled two sided pole with a blade on one side and a spear on the other.”

Though public outcry after the Newtown shooting generated more political momentum for effective gun law regulations than any other time in the past decade, the political effort is in danger of stalling out in the Senate.

In one of the more punishing blows to the class action mechanism since the 2011 Wal-Mart gender discrimination loss, the U.S. Supreme Court on Wednesday rejected a class lawsuit alleging that Comcast jacked up prices to Philadelphia-area customers through anticompetitive practices.

The plaintiffs may or may not have been able to prove antitrust violations by the cable company. We may never know, because the five-justice majority led by Antonin Scalia said they cannot be certified as a class, the mechanism that enables plaintiffs to band together with the necessary resources to go up against corporate behemoths. This decision is one of many by the Roberts Court to limit the class mechanism and erode corporate accountability through procedural rulings, but it may be the first in this string in which any justice, let alone two, read their dissent from the bench – an infrequent practice that typically connotes particularly strong disagreement with the majority decision. On this Wednesday morning, Justices Ruth Bader Ginsburg and Stephen Breyer had a particularly large and rapt audience for their scathing oral dissent, with court-watchers there to witness landmark arguments on marriage equality. What the audience got is a lesson on how obscure procedural cases with major implications for consumers are susceptible to manipulation.

The Comcast v. Behrend case involved a class of some 2 million plaintiffs in the Philadelphia region who argued that Comcast monopolized the regional market by exchanging territories with competitors — enabling everyone to charge higher prices. Plaintiffs who file class lawsuits must establish that they can prove their injury and damages on a classwide basis, and the majority in this case said they hadn’t met that burden. But here’s where it gets interesting. The majority’s holding does not answer the question the court had said it would answer when it agreed to review the case. It granted the petition on the much narrower question of what standard is required for admitting expert testimony in class cases, and this is what the parties addressed in their written and oral arguments. According to a passionate and fuming dissent from Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan, the plaintiffs were victims of a bait-and-switch that deprived them of even an opportunity to properly brief the issue:

The Court’s newly revised question, focused on predominance, phrased only after briefing was done, left respondents without an unclouded opportunity to air the issue the Court today decides against them. And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen. […]

Incautiously entering the fray at this interlocutory stage, the Court sets forth a profoundly mistaken view of antitrust law. And in doing so, it relies on its own version of the facts, a version inconsistent with factual findings made by the District Court and affirmed by the Court of Appeals.

And the dissenters go farther than this. Typically it is left to outside commentators to observe the activism that motivates a particular method of deciding a case. Not here, where the majority’s manipulation of the case was so egregious that the dissenters explicitly call them out on the practice:

Today the Court reaches out to decide a case hardly fit for our consideration. On both procedural and substantive grounds, we dissent. This case comes to the Court infected by our misguided reformulation of the question presented.

Whether this case’s ruling rejecting the plaintiffs’ methodology for determining damages will have impact on future class questions is not clear. According to the dissenters, this case sets no new precedent and should have no application outside of this particular case. According to lawyers who defend these cases, the ruling will make it still easier for companies to beat back class challenges. The primary take-away is that Comcast found an ally in the Roberts Court, whose five conservative justices remain virulently hostile to the class mechanism. At a minimum, the ruling deprived at least 2 million consumers of the opportunity to challenge an alleged Comcast practice that no one consumer could take on alone.

At yesterday’s marriage equality hearing, several of the Court’s conservatives took swipes at President Obama for refusing to defend the unconstitutional Defense of Marriage Act in court. Justice Scalia worried that “we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” Justice Kennedy compared Obama’s actions to President Bush’s infamous signing statements. Chief Justice Roberts, somewhat bizarrely, accused the President of lacking “the courage of his convictions” by saying DOMA is unconstitutional but continuing to enforce it.

But if Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts.

In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.

So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.

The New Hampshire House of Representatives is on a criminal justice roll. Last week, legislators voted to prohibit private prisons. This week, they passed a bill to repeal the ALEC-sponsored Stand Your Ground law, which authorizes the unfettered use of deadly force in self-defense. The NRA-backed laws, also known as “Kill at Will,” gained notoriety after the tragic killing of Florida teenager Trayvon Martin. Police cited Florida’s Stand Your Ground law as the reason for not initially arresting the suspect in that case. Reuters reports:

The National Rifle Association and gun rights supporters had campaigned to defeat the bill repealing the state’s “Stand Your Ground” law, arguing the change would embolden criminals and lead to greater violence against women.

The bill passed by a roll call vote of 189-184 after a heated debate. The proposed change may face tougher odds in the state Senate, which is narrowly controlled by Republicans.

If repealed, the state would return to the so-called “castle doctrine” under which there is a duty to retreat from a threatening situation unless it occurs inside a person’s home. […]

New Hampshire passed a number of laws loosening control on gun usage in 2011, when Republicans commanded large majorities in both chambers. Since regaining control of the House, Democrats have sought to push back on some of these measures.

In the wake of the Trayvon Martin tragedy, a Florida committee to reform the bill stacked with lawmakers who first proposed the law did not recommend any substantive changes, in spite of empirical research finding these laws were associated with a significant increase in homicides. Some 21 states have laws establishing that there is no duty to retreat, and at least nine include language stating that one may “stand his or her ground,” according to the National Conference of State Legislatures. The NRA has gone so far to offer insurance to cover the costs of a Stand Your Ground defense.

A Tucson, Arizona affiliate of the Armed Citizen Project will spend $12,000 on a new charitable initiative: handing out free shotguns in neighborhoods with high crime rates. According to the head of the Tucson initiative, an armed citizenry is the sensible solution to an underfunded police department facing budget cuts. The Arizona Daily Star writes:

“We need to take back our city, and it needs to come back to the citizens and not the criminals,” [Shaun] McClusky said. “Right now, the criminal element is winning.”

Over the next couple of weeks, McClusky and others will begin spreading leaflets and posting fliers in Midvale Park, Pueblo Gardens and a yet-to-be-determined midtown neighborhood to induce residents to sign up for the program.

McClusky, a failed mayoral candidate, likened gun violence to “saying spoons are responsible for making people fat,” even though armed citizens rarely stop violent crime, and their intervention can cause danger and bloodshed.

Tucson Councilman Steve Kozachik called the project “absolute lunacy.” “These people have lost their minds,” he said (sadly, they are far from the only ones).

Tucson is the site of an assassination attempt against former Rep. Gabby Giffords (D-AZ) two years ago. Thirteen people were injured and six others were killed in the shooting.

(HT: Talking Points Memo)

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
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