On today’s BradCast: Another day, still more chaos in these United States, threatening to all but drown out two major civil and privacy rights cases heard this week by the U.S. Supreme Court and covered in detail on today’s show. [Audio link to full show is posted below.]
But first, Desi Doyen joins us for an update on the out-of-control wildfires in and around Los Angeles today, threatening tens of thousands of structures and many more residents, who have been forced to flee several large blazes fueled by dry conditions and record winds. Also in danger: Animals, priceless works of art and one of Rupert Murdoch’s mansions.
Next, calls from fellow Democrats for Sen. Al Franken to resign blew up on Wednesday in the U.S. Senate, after another unnamed woman reportedly stepped forward to claim the Minnesota Senator tried to kiss her after a radio program back in 2006. Franken denies the claim and calls it “preposterous”, but may be forced to resign anyway on Thursday, less than one week before Republicans in Alabama may elect Roy Moore, an accused child molester, to the same U.S. Senate. Desi has a few choice thoughts on the Franken matter as well.
Then, we’re joined by Slate legal reporter MARK JOSEPH STERN, to discuss two important cases heard at the U.S. Supreme Court this week. Stern, who was at the Court during oral arguments for both, explains what is at stake in each, and how the Republicans’ blatantly stolen seat occupied by Justice Neil Gorsuch will radically effect each case.
The first, Carpenter v. United States has to do with the U.S. Government’s argument that law enforcement has the right to obtain anyone and everyone’s cell phone location data, even without obtaining a warrant from a court first, in what appears to be a clear violation of the U.S. Constitution’s 4th Amendment privacy rights for freedom from unreasonable search and seizure.
“The case almost sounds too crazy to be true,” Stern tells me, detailing the Government’s argument that “because customers voluntarily turn over the data to a third party — their cellphone companies,” which keeps records of which cell phone towers are used and by whom, customers “have no right to privacy with regards to that information.”
The second, Masterpiece Cakeshop v. Colorado Civil Rights Commission is an even more insane “free speech” and “religious expression” case. It was brought by a virulently anti-gay baker in Colorado who claims his bakery shop has the First Amendment right to discriminate and refuse to sell a cake to two men celebrating their same-sex wedding. The Colorado Civil Rights Commission and the state courts disagreed with the baker, Jack Phillips of Masterpiece Cakeshop, who appealed to the U.S. Supremes. Surprisingly they took up the case after Phillips was also joined by Trump’s U.S. Department of Justice over the summer.
Stern details the liberal Justices’ skeptical (and even hilarious) questioning of whether Phillips’ argument that he is an “artist” exercising creative free speech — not blatant discrimination — could also be extended to florists and hair stylists and make-up artists, among many others.
“This is an embarrassment,” says Stern. “What happened here is a clear-cut case of discrimination.” He also highlights one key irony underscoring the entire case: “The Supreme Court’s conservative justices have really been lecturing gay people for years that they should stop turning to the courts to vindicate their rights and, instead, go through the democratic process to secure their equality under law. And here we have a case of gay people doing exactly that. Gay people in Colorado fought long and hard to change the law to protect their right to equal service in public accommodations. They succeeded. And now, those same Supreme Court conservatives who said you have to do this through democracy, are now poised to say, ‘Actually you don’t get to this,’ and nullify the rights that they secured through the democratic process.”
Depending on how Justice Kennedy decides in a likely 5 to 4 opinion one way or another — on a case that would have been a cake walk for civil rights advocates before Republicans stole the Court majority — what could very well result is legalization of mass discrimination of people of all races, religions and sexual orientations by any and all manner of businesses in the U.S. for decades to come…
Damn Brad.
Sorry about those fires! It seems more real, being so close to familiar and important places!
“…Carpenter v. United States has to do with the U.S. Government’s argument that law enforcement has the right to obtain anyone and everyone’s cell phone location data, even without obtaining a warrant from a court first, in what appears to be a clear violation of the U.S. Constitution’s 4th Amendment privacy rights for freedom from unreasonable search and seizure.
“‘The case almost sounds too crazy to be true,’ Stern tells me, detailing the Government’s argument that ‘because customers voluntarily turn over the data to a third party — their cellphone companies,’ which keeps records of which cell phone towers are used and by whom, customers ‘have no right to privacy with regards to that information.'”
How will self-styled “conservatives” or “strict constructionists” decide the matter? Perhaps history will serve as a guide. And the country’s birth certificate is a good place to start.
He has erected a multitude of new offices, and sent hither swarms of Officers to harass our people and eat out their substance.
That grievance referred to writs of assistance–general search warrants. Royal agents could go where and when and do as they pleased. And that is the reason for the Fourth Amendment.
So the self-styled “conservatives” or “strict constructionists” who are strong on “original intention” should have an easy decision. In fact, it should be unanimous. Well, maybe the Frozen Trucker Case Judge will dissent. But does that sound almost too crazy to be true?
http://www.u-s-history.com/pages/h1205.html
Marvin –
Shockingly, as Stern notes in his article (linked in the OP above) and as we discussed during the show, it’s the “Frozen Trucker Case Judge” (Gorsuch) who is actually leading the “resistance” to law enforcement on this one, and bringing along a number of the liberals along with him! Thus, Stern’s description of Gorsuch’s surprising streak of independence on this one, and his use of originalist context to do it!
Thanks, Brad, I missed the link and just read it. As Gomer Pyle would say, “Well, golly! Shazam!”
How can the cake issue be about free speech, when the buyer is choosing the design and wording on the cake?