Angry over a recent Washington Supreme Court decision finding the state must put more funds into basic education, GOP state lawmakers are proposing the additional money come from downsizing the state Supreme Court to 5 justices from 9. Senate Bill 5867, sponsored by failed US Senate candidate state Sen. Michael Baumgartner (R-WA), would make the justices draw straws to decide who had to hang up their robes:

“On June 30, 2013, all existing judges of the state supreme court, shall meet in public to cast lots by drawing straws,” the bill says. “Effective July 1,2013, the positions of the four judges casting losing lots by drawing the shortest straws shall be terminated.”

The bill’s sponsor, state Sen. Michael Baumgartner, said the job cuts could save about $1.5 million in salary and administrative costs.

“Every dollar we save by eliminating these four positions would be automatically funneled to K-12 education to help meet the guidelines the Supreme Court laid out in the McCleary decision,” Baumgartner said in a news release.

In the education case, McCleary v. State of Washington, 7 justices decided the state was failing to uphold a constitutional obligation to fully fund basic education. The decision stated that education was the “paramount” obligation, and funding cannot be cut purely to mitigate the state’s budget shortfall. To this end, the court now requires annual reports of progress by the Legislature. Eliminating 4 seats, as Baumgartner proposed, would almost definitely take out at least some of the offending justices.

The bill was introduced just a week after the court dealt conservatives another blow; a 6-3 decision invalidated a requirement that two-thirds of the Legislature must agree to any tax increase.

States with more gun laws have lower levels of gun fatalities, according to a new study from Boston Children’s Hospital. While the study, published in the journal JAMA Internal Medicine, does not establish cause-and-effect, nor which particular gun laws are most effective, it does suggest a positive relationship between gun control and gun violence prevention. According to NBC News:

“It seems pretty clear: If you want to know which of the states have the lowest gun-mortality rates just look for those with the greatest number of gun laws,” said Dr. Eric W. Fleegler of Boston Children’s Hospital who, with colleagues, analyzed firearm-related deaths reported to the Centers for Disease Control and Prevention from 2007 through 2010.

By scoring individual states simply by the sheer volume of gun laws they have on the books, the researchers noted that in states with the highest number of firearms measures, their rate of gun deaths is collectively 42 percent lower when compared to states that have passed the fewest number of gun rules. [...]

As proof, Fleegler pointed to the firearm-fatality rates in law-laden states such as Massachusetts (where there were 3.4 gun deaths per 100,000 individuals), New Jersey (4.9 per 100,000) and Connecticut (5.1 per 100,000). In states with sparser firearms laws, researchers reported that gun-mortality rates were higher: Louisiana (18.0 per 100,000), Alaska (17.5 per 100,000) and Arizona (13.6 per 100,000).

The authors of the study openly acknowledge that correlation research has a much more limited application than research that establishes cause-and-effect, and conclude that further study is necessary. But in an accompanying commentary, Dr. Garen J. Wintemute of the University of California, Davis, Sacramento, laments that anything more than this sort of simple and cost-free analysis of already-available data has been alarmingly difficult achieve, thanks to a chokehold on funding that has cleared the field of researchers with gun expertise. Even with President Obama’s recent executive order calling on the Centers for Disease Control and Prevention to resume the gun violence research it ceased in the 1990s, it is up to Congress to fund that research (Obama called for $10 million), and will require a sustained, significant commitment to develop new academics whose careers are focused on gun violence. Wintemute writes:
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The US Supreme Court seems poised to invalidate a key section of the Voting Rights Act after last week’s hostile oral argument. Conservative justices insisted that special protections for minority voters in historically discriminatory districts are now obsolete. While Justice Antonin Scalia brashly attacked the law as “a perpetuation of racial entitlement,” Chief Justice John Roberts attempted a more measured statistical argument. Roberts claimed that Section 5′s focus on southern states was outdated because Mississippi has the highest black voter turnout, while Massachusetts has the lowest.

Statistics guru Nate Silver dismantled Roberts’ argument in his New York Times column today, pointing out that Roberts cherry-picked two states outside the norm:

In fact, it would be dangerous to infer very much from Massachusetts and Mississippi. In 2004, for instance, while Mississippi was reported to have strong black turnout, black turnout was poor in Arizona and Virginia, which are also covered by Section 5.

Silver examined data in states covered by Section 5 versus states not covered by Section 5, finding little difference in black voter turnout:

However, Silver argues, Roberts’ reasoning that the improved minority turnout in covered states means the Voting Rights Act is no longer necessary is flawed. It may well be that the Voting Rights Act is responsible for correcting the huge regional disparity in voter turnout in 1964. Therefore, Roberts’ examples of Massachusetts and Mississippi turnout say little about the actual effects of the VRA.

Meanwhile, several covered states have vote-suppressing legislation waiting in the wings for the invalidation of Section 5. Arizona Republicans are pushing legislation to ban anyone working on behalf of a political organization from bringing sealed mailed ballots to a polling place — a hugely successful get out the vote initiative used in 2012 for Latinos in Phoenix. Virginia just passed a restrictive voter ID law nearly identical to the Texas voter ID law struck down last year for harming minority voting rights. Texas is also waiting to enact a redistricting plan tossed out by federal judges for the map’s “substantial surgery” to dilute predominantly black districts. Without Section 5, all these laws would be allowed to go into effect, with clear implications for minority turnout.

Two major gun manufacturers revealed their quarterly sales this week, and both reported huge earnings, due in large part, it seems, to the slaughter of 20 children at Sandy Hook Elementary and the subsequent conversation about changing gun laws.

The Atlantic Wire analyzed the profits of both Ruger and Smith & Wesson’ over the course of time, and noticed a dip in sales immediately after Newtown, followed by a spike that kept both companies on an upward trend that began in 2010:

The Atlantic Wire also points out that the number of total background checks conducted over the last few months has similarly spiked:

The gun manufacturers’ reports corroborate an anecdotal trend noticed by many gun shops in the weeks after Newtown; that people were buying up a huge number of weapons and ammunition.

It’s worth noting, however, that the number of gun owners in the US has been on the decline. Rather, those people who own guns are stocking up on more firearms.

Texas needs to rethink how schools handle misbehaving students, according to Chief Justice Wallace Jefferson (R), who will push for reforms in his State of the Judiciary address on Wednesday. Jefferson, who was appointed by Gov. Rick Perry (R), is backing 3 Democrat-sponsored disciplinary bills:

Senate Bill 393 would end the practice of ticketing for students with disciplinary problems that are currently considered criminal misdemeanors, and replace it with a system of “progressive sanctions,” including warning letters, community service and referrals to counseling. SB 394 would expand confidentiality for youths who have had misdemeanors dismissed, to keep their records clean. SB 395 would allow juveniles convicted of certain nonviolent offenses to settle their court costs through community service, or have them waived if they are indigent. All three were authored by state Sen. Royce West, D-Dallas.

Ticketing for nonviolent misdemeanors forces students to go to court, Jefferson told the Senate Jurisprudence Committee on Tuesday. [...] “What used to be, in our day, a trip to the principal’s office now lands you in court,” he said. “We’re overcriminalizing low-level, nonviolent offenses in the classroom … and then they’re on a path to our criminal justice system.”

The Chief Justice has been outspoken about the dire need for school disciplinary reform — with good reason. A whopping 60 percent of Texas junior high and high school students are either suspended or expelled, with nearly half ending up in the juvenile justice system. 97 percent of these disciplinary actions were because of a minor infraction, like a dress code violation or being late to class. Unsurprisingly, black, Latino, and special education students are much more likely to be disciplined. While the harsh punishments do not seem to deter bad behavior, most students hit with multiple disciplinary actions drop out of school.

More than 275,000 non-traffic tickets are issued to students as young as six years old every year, putting a misdemeanor charge on that student’s record. Usually, these tickets are issued for minor offenses; in one recent example, a 12-year-old girl received a ticket for wearing too much perfume. Another student, an 11-year-old boy, was charged with assault after hitting a bully with a notebook.

As Jefferson argues, these misdemeanor tickets introduce children into the school-to-prison pipeline early on. One-third of Texas youth in juvenile lock-down facilities have dropped out of school, while 80 percent of adult inmates in the state are school drop-outs.

The overuse of disciplinary action not only takes a toll on the students, but also on state resources. Texas spends $227 million a year on school discipline and $87 million on school security and campus policing. After the Newtown shooting, some Texas Republicans have pushed for even greater security, demanding an armed “marshal” be present in every public school. While there has been no conclusive evidence that armed guards make schools safer, they do guarantee that student arrests for minor infractions will skyrocket.

Leading up to a committee oversight hearing with Attorney General Eric Holder, eight former heads of the Drug Enforcement Administration sent a letter to Senate Judiciary Committee leadership, asking them to urge Holder’s enforcement of federal marijuana law. But the harshest words came in an advisory that accompanied the letter. In the press release, former DEA administrator Robert Bonner, a lawyer who briefly served as a federal trial judge, went so far as to accuse state employees implementing the new marijuana legalization laws of committing a felony:

The Colorado and Washington laws permitting and regulating the commercial cultivation and sale of marijuana are in direct conflict with federal law which makes these activities illegal. Under the U.S. Constitution, federal laws are supreme and trump state laws that conflict with them.

Indeed, those who carry out the Colorado and Washington legislation are aiding and abetting violation of federal law, itself a felony under federal law. This may not be the perfect storm, but it can only lead to the perfect train wreck. That is why we are urging Attorney General Holder, as he did in the case of the Arizona immigration law, to file a lawsuit challenging the Colorado and Washington laws without delay.

Bonner’s allegation against Washington and Colorado’s civil servants misrepresents the nature of the two laws, and of the principle of federalism. The federal Controlled Substances Act does make possession and distribution of marijuana a federal crime. But, because of what is known as the anti-commandeering principle, it does not and could not compel the states to enforce federal law, nor could it obligate states to create their own laws criminalizing the substance.

Washington and Colorado have opted to remove some of the state criminal penalties that they independently imposed for marijuana, and to implement a system for determining which dispensaries and suppliers are breaking their new state laws by licensing those that follow their rules. The purpose of this licensing and regulation scheme is to determine which actors are criminally liable – not to aid and abet individuals in violating federal law. None of this, of course, shelters those dispensing or possessing marijuana from prosecution under federal law, which is why many public figures have urged appropriate use of prosecutorial discretion, and even a change to federal law. But it does mean that those state officials merely implementing the rules should not be subject to prosecution.

Bonner’s assertion that these laws are in direct conflict with federal law is likewise on shaky legal ground, and his analogy to the DOJ’s immigration challenge is misplaced. In the field of immigration, the federal government’s argument was that it had staked out sole authority in particular areas of immigration policy such that states could not regulate at all. In the field of drug policy this is not at all the case. In fact, the federal government wanted the states to share the burden of enforcing drug policy by imposing their own drug laws. Having permitted the states to regulate drug use as they choose, it cannot now claim that state laws criminalizing some but not all drug use are too lenient for the feds’ liking.

In fact, most of the 18 states and the District of Columbia with medical marijuana laws already have a regulatory scheme in place, and it is worth noting that the federal government has not filed suit to preempt any of these laws, nor has any civil servant been charged or convicted of aiding and abetting drug use.

Bonner and the other former DEA officers who signed the letter are part of a group called Save Our Society From Drugs, which describes itself as committed to defeating “ballot initiatives, statutory proposals and other attempts to ‘medicalize’ unsafe, ineffective and unapproved drugs.” It refers to medical use of marijuana as a “scam.” The group funded ads countering Colorado’s ballot initiative, and is bankrolled by a GOP mogul who once led a drug-rehab facility shuttered over egregious child abuse allegations.

In the letter accompanying this press release, the S.O.S. members called on Judiciary Committee leaders Patrick Leahy (D-VT) and Chuck Grassley (R-IA) to chastise Holder for his approach to marijuana enforcement. But neither senator took them up on their suggestion, with Leahy instead expressing hope that marijuana enforcement would not be a priority so long as sequester-imposed budget constraints limit the DOJ’s ability to maintain even a basic level of safety. Holder reiterated a recent comment that the DOJ would announce its marijuana policy “relatively soon.”

Lochner v. New York is widely viewed as one of the worst Supreme Court decisions in American history. It is taught in law schools, alongside decisions upholding segregation and permitting Japanese detention camps, in order to instruct budding lawyers on how judges should not behave. Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women “aren’t discriminated against anymore”, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation. In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism. Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example — but Lochner placed any law benefiting workers on constitutionally weak footing. Needless to say, the “right to contract” it invented appears nowhere in the Constitution.

Nevertheless, Sen. Rand Paul (R-KY) took several minutes out of his lengthy talking filibuster yesterday to praise this “abomination” of a decision on the Senate floor:

You get to the Lochner case. The Lochner case is in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him — among the other things I’m asking him today — to rethink the Lochner case. . . . I think it’s a wonderful decision.

Watch it:

Although its not entirely clear what exploiting workers has to do with drone strikes, the primary subject of Paul’s filibuster, the senator seemed to think that Lochner was relevant because that case claimed that its fabricated right to contract flowed from the Constitution’s “due process” guarantee.

Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped “end Jim Crow,” a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head. Lochner was decided in 1905, and, while Paul is correct that the Lochner Era justices very occasionally struck down discriminatory laws, Jim Crow was still very much alive when Lochner was overruled in the 1930s. The Supreme Court decision that did the most to eradicate Jim Crow — Brown v. Board of Education — rested on the Constitution’s guarantee that no person shall be denied the “the equal protection of the laws,” not on some fabricated right to contract. And Brown alone was insufficient to overcome the campaign of “massive resistance” segregationists mounted in defense of Jim Crow.

What finally killed American apartheid was big, centralized government of the kind Paul and his fellow tea partiers love to hate. The Civil Rights Act of 1964 required business owners to contract with minorities — something that would undoubtedly been unconstitutional under Lochner. And, of course, the same Voting Rights Act that is now endangered in the Supreme Court tore down Jim Crown voter exclusions. Sen. Paul, for his part, has incorrectly suggested that the Civil Rights Act violates the Constitution.

Paul’s endorsement of Lochner reflects a disturbing evolution in Tea Party thought. For much of Obama’s first term, Tea Party conservatives rallied behind “tentherism,” the false belief that most of what the federal government does is unconstitutional. Unlike tentherism, which applies only to federal laws, Lochnerism prevents both the federal government and the states from enacting necessary legislation. Although a handful of the most radical federal judges openly embrace Lochnerism or similar reasoning, this particularly virulent misreading of the Constitution was largely absent from elected officials’ rhetoric until Paul’s speech yesterday.

(HT: Josh Blackman)