The decision was unanimous, but Justice Clarence Thomas declined to join the part of Justice Sotomayor's opinion discussing why the cost of allowing immediate appeals outweighs the possibility that candid communications between lawyers and their clients might be chilled.

In a concurrence, Justice Thomas took a swipe at his new colleague, saying she had "with a sweep of the court's pen" substituted "value judgments" and "what the court thinks is a good idea" for the text of a federal law.

Nice to see things are starting off friendly.

However, I must admit I cheered a bit when I saw what other thing Justice Sotomayor managed to do, besides piss off Justice Thomas:

Justice Sotomayor's opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term "undocumented immigrant," according to a legal database. The term "illegal immigrant" has appeared in a dozen decisions.

And with good reason. The National Association of Hispanic Journalists launched a campaign back in March 2006 asking the media to "stop using dehumanizing terms when covering immigration," explaining:

NAHJ is concerned with the increasing use of pejorative terms to describe the estimated 11 million undocumented people living in the United States. NAHJ is particularly troubled with the growing trend of the news media to use the word "illegals" as a noun, shorthand for "illegal aliens". Using the word in this way is grammatically incorrect and crosses the line by criminalizing the person, not the action they are purported to have committed. NAHJ calls on the media to never use "illegals" in headlines.

Shortening the term in this way also stereotypes undocumented people who are in the United States as having committed a crime. Under current U.S. immigration law, being an undocumented immigrant is not a crime, it is a civil violation. Furthermore, an estimated 40 percent of all undocumented people living in the U.S. are visa overstayers, meaning they did not illegally cross the U.S. border.

In addition, the association has always denounced the use of the degrading terms "alien" and "illegal alien" to describe undocumented immigrants because it casts them as adverse, strange beings, inhuman outsiders who come to the U.S. with questionable motivations. "Aliens" is a bureaucratic term that should be avoided unless used in a quote

.

Language matters. The framing of issues matters. And it is amazing to see that Sonia Sotomayor is going to start reframing how we discuss and debate these types of issues, one pen stroke at a time.

Sotomayor Draws Retort From A Fellow Justice [NY Times]
NAHJ Urges News Media To Stop Using Dehumanizing Terms When Covering Immigration [NAHJ]

On Tuesday, the 5th Circuit Court of Appeals ruled that Jones's rape and false imprisonment were not, in fact, job-related — meaning the mandatory arbitration clause in her employment contract with KBR is unenforceable where those charges are concerned. You might recall that after the Department of Justice declined to bring criminal charges against Jones's rapists, that contract forced her into closed-door arbitration with KBR — and an arbitrator they hired — rather than a civil suit. After 15 months of getting jerked around, Jones decided to fight the arbitration contract and now, 2 years later, she's won that battle decisively.

Writes Stephanie Mencimer at Mother Jones

One of the judges who ruled in her favor, Rhesa Hawkins Barksdale, is a West Point grad, Vietnam vet, and one of the court's most conservative members, a sign, perhaps, of just how bad the facts are in this case. It's a big victory, but a bitter one that shows just how insidious mandatory arbitration is. It's taken Jones three years of litigation just to get to the point where she can finally sue the people who allegedly wronged her. It will be many more years before she has a shot at any real justice.

But finally, she has that shot. And maybe so do the other women who have come forward with allegations against KBR since Jones went public, but were just as hamstrung by the arbitration clause. As of February 2008, there were at least 38 of them.

Court rules that KBR employee's gang rape wasn't a personal injury ‘arising in the workplace' [Think Progress]
Court Okays Halliburton Rape Trial [Mother Jones]

Earlier: Iraq Sexual Assault Victim: "I Felt Safer On The Convoys With The Army Than I Ever Did Working For KBR"
"What, Don't You Always End Up In Need Of Reconstructive Surgery After A Night Of Good Consensual Sex?"

Andrade's defense attorneys claimed that Andrade reacted without premeditation, in a rage at finding out that Zapata was born male (which Guanabee suggests may have happened after the two had sex). One lawyer said, "Justin Zapata lived like a female, looked like a female, sounded like a female. That's what Mr. Andrade believed. And when he found it wasn't Angie, it was actually Justin, he lost control." But prosecutors countered that Andrade knew that Zapata was born male for 36 hours before he killed her, and that he did so "out of his dislike for homosexuals." The jury agreed, deliberating for only two hours before finding him guilty of both murder and hate crime — one of the first times hate crime law has been applied to a transgender victim. Andrade will serve a life sentence without parole.

A really telling — and disturbing — aspect of this case is the language used on both sides. Andrade's defense lawyers insisted on referring to Zapata as Justin, perhaps implying that Andrade's actions somehow made more sense because Zapata wasn't "really" a woman. Andrade himself referred to Zapata as "it" when he was first arrested. There's also an interesting contrast between the AP's description of Zapata as "biologically male" and the Times's "born male." Does the Times's version do a better job of acknowledging the complexities of biological gender?

Blogger Drew Wilson reminds us that Zapata's death was, sadly, not a first for Colorado. A Navajo teen, Fred Martinez, was killed in 2001 because he identified as a two-spirit, a Native American who occupies both male and female gender roles. Notably, his murderer, Shaun Murphy, was not convicted of a hate crime. The conviction of Angela Zapata's killer on this charge is the saddest kind of progress.

Murder And Hate Verdict In Transgender Case [NYT]
Jury reaches verdict in Colo. Transgender Slaying [Breitbart]
As We Remember Angie, Let's Not Forget Fred [Drew Wilson, Denver Gay Examiner]
Breaking: Allen Andrade Convicted Of First Degree Murder [Feministe]
Defense Says ‘No Hate Crime' In Angie Zapata Trial, Prosecution Proves Otherwise [Guanabee]

According to the New York Times, she first tackled the "problem" — cited by Chief Justice John Roberts at his confirmation hearing — that some justices use rulings from foreign judges when writing opinions. Reports the Times:

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Apparently, someone forgot to tell her that America is the repository of all wisdom ever.

She also spoke about why it is that it's only in the last 50 years that many other countries instituted judiciaries that have the power to strike down legislation that makes it though the Democratic process.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Values, like, say, not torturing people and the importance of judicial process? It's a good warning that sometimes elected officials might use the legislative process to subvert that, I mean, we wouldn't want that to happen here.

She covered that, too:

"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.' "

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

"Because you're an American," is probably the answer to that.

Ginsburg also discussed her role in creating the term "gender discrimination," which is a forehead-slapper if I ever heard one.

She helped introduce the term "gender discrimination" as a synonym for "sex discrimination," she said, explaining that her secretary had proposed the idea while typing a brief to be submitted to male judges.

" ‘The first association of those men with the word "sex" is not what you're talking about,' " the secretary said, Justice Ginsburg recalled. " ‘Why don't you use a grammar-book term? Use gender. It has a neutral sound, and it will ward off distracting associations.' "

The Washington Post pointed out that is was in one of the most famous gender discrimination cases of late — the Lilly Ledbetter pay discrimination case — that Ginsburg threw up what she terms "a red flag."

Ginsburg, unlike some of her colleagues, often makes her case in public speeches. And, when she thinks her colleagues have misinterpreted a statute, she writes a dissent that on Friday she called a "red flag," essentially asking Congress to take action.

Her dissent in the court's 2007 decision that threw out an Alabama tire company manager's suit alleging discriminatory pay made Lilly Ledbetter a heroine on the left and led Congress to change the law, presenting Obama with his first major bill to sign.

In other words, she doesn't hide behind her robes.

Of course, she had trouble hiding behind her robes just a little bit.

"Now, there I am all alone, and it doesn't look right," Ginsburg said. She said she watches the number of women at each session of the Supreme Court bar, notices that four of the nine members of Canada's Supreme Court are women, including the chief justice, and sees the female reporters who cover the court.

"It's lonely for me. Not that I don't love all my colleagues. I do," Ginsburg said.

I guess we need just a little thought about gender discrimination on the court in addition to at the court.

Dahlia Lithwick, writing for Slate, thinks we need both.

But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, the researchers examined whether male and female judges decide cases differently, and went on to look at whether the presence of a female on a panel of judges affects the behavior of her male colleagues.

Here's what they found: The male judges were 10 percent more likely to rule against alleged sex-discrimination victims. And male judges were "significantly more likely" to rule in their favor if a woman judge served on their panel.

And, Lithwick points out, it's not just conservatives, either.

History proves that you can be the most empathetic, open-minded, and sensitive jurist in all the world-and still be a complete dolt about gender. It's why liberal lion William Brennan could write so expansively about equality and fairness and justice while still refusing to hire female law clerks. It's why Ginsburg was denied a clerkship with the legendary judge Learned Hand. (He refused to hire her because he liked to use salty language.)

Oh, fuck that noise.

Lithwick finally points out that, if and when Obama does have an opportunity to appoint a Supreme Court justice, he'll have plenty of women to choose from.

When it comes time for Obama to appoint a new justice, he'll have an embarrassment of female talent to choose from: To name just a very few, potential candidates include appeals court judges like Diane Wood, Sonia Sotomayor, Kim McLane Wardlaw; his new solicitor general, Elena Kagan; gifted academics such as Stanford Law School's Kathleen Sullivan and Pamela Karlan; Michigan Gov. Jennifer Granholm; and private attorneys like Teresa Wynn Roseborough.

An embarrassment, that is, because Ginsburg is currently the sole woman on the Court despite that kind of legal talent on both sides of the aisle.

Ginsburg Shares Views On Influence Of Foreign Law On Her Court, And Vice Versa [NY Times]
Ginsburg Gives No Hint Of Giving Up The Bench [Washington Post]
The Fairer Sex [Slate]

The writer of the LA Times piece, Mark D. Stern, cites a number of legal cases in which no argument privileging gay rights over religious rights have actually, you know, won, but he's afraid they might and thus his freedom to discriminate in the name of his religion might be trumped by the freedom of gay people not to be discriminated against under the equal protection clause. In addition, according to Stern, freedom to practice one's discriminatory religion as one sees fit should also extend to the religion institution's right to benefit from government monies in providing services to a larger community while still engaging in practices determined to be against the equal protection clause. Thus, since a religious hospital benefiting from government largess might have to treat gay people for, like, cock ring accidents or whatever "those" people do, religious institutions will be forced to accept gay people into their congregations and perform gay ceremonies in violation of their constitutional right to discriminate as they see fit under their interpretation of religious texts and thus in one fell swoop the gays will have corrupted not only all of Marriage but all Religion and the end of the world will be at hand.

I was actually going to sit and debunk his arguments once I'd mocked them, but I basically think it's not really necessary. He can't come up with a single court decision that supports his claim that the right to freedom of religion is being eroded by the courts and the LGBT community's legitimate equal protection claims. He argues that some instances (also unsupported by documentation) of religion-sponsored organizations that provide non-religious services (with government support) to a larger community being told not to discriminate against the LGBT community is tantamount to forcing the Catholic church to perform gay weddings in violation of papal doctrine. His arguments are so specious on their face that I realized I don't have to debunk them. Anyone reading will just know that they are simply in service of his (let's be charitable and call it ) religious belief that homosexuality is bad and the government should do what it can to not allow "those" people equal protection under the law. Fuck that guy.

Will Gay Rights Trample Religious Freedom? [LA Times]