To Be (Ser) or To Be (Estar)

The other day I got a call from my son Political Sphere, on his way home from work (a summer internship clerking with a county judge in a small county closer to Dallas than to Houston). He has an hour-plus, mostly rural, commute, so sometimes he sets the phone on hands-free and we chat. He is working on an upcoming guest post, maybe two-parts—a legal analysis of the Windsor case (recent Supreme Court ruling on DOMA). And so, slightly related to that as conversations go, we talked about the Pope’s comments in Brazil over the weekend.

The Pope did not announce any new policy or doctrine, but his candid style seems to get media thinking they’re hearing something new. He said that people with same-sex attraction who nevertheless seek to obey God’s law will be treated the same as anyone else seeking to obey God’s law. The quote that got the attention was, “If someone is gay and he searches for the Lord and has good will, who am I to judge?” It was in response to a question asked during a casual press conference regarding whether there is a “gay lobby” at the Vatican, which he declined to acknowledge.

He reiterated the longstanding policy that homosexuality is a sin, and that same-sex attraction cannot be acted upon. But he separates out “people who are gay” from “people who struggle same-sex attraction.”

I’m thinking the difference is clarified by a little Spanish grammar lesson, so I will insert that here. The verb “ser” means “to be,” permanently: he is tall; she is Argentinian. The verb “estar” means “to be” in a temporary state: he is hungry; she is thrilled—or “She is (está) white as a ghost from fear” rather than “She is (es) white, with ancestors from Finland.”

"To Be or Not To Be"--Shakespeare
photo from here

The Pope seems to have a pastoring, shepherding instinct to seek out those who are (están) dealing with any human frailty, including same-sex attraction. When dealing with a behavior that may or may not be engaged in, one doesn’t say those people are (son) homosexual—a way of being at all times regardless of behavior choices. So, while his tone seems to meet the approval of the press, he simply restated the Catholic position, while subtly pointing out that “lobbying” for homosexuality or anything else at the Vatican, with the hope of changing God’s mind on whether something is sinful, is a waste of time.

So, back to the conversation with Political Sphere. He mentioned a quote by Desmond Tutu, also from this weekend, saying, “I would not go to a homophobic heaven. No, I would say sorry, I mean I would rather go to the other place.” The assumption here is that, because God makes some people “be” (ser) a certain way, God should be forced to accept behavior from them that He would not accept from someone He had not made to “be” that way. I’m thinking that someone bold enough to try to enforce such pronouncements on God is quite likely choosing to go to “the other place.”

So we were talking about the uselessness of making the assumption that some people can’t control their particular behaviors, and therefore we as a society need to embrace those people along with their behaviors and simply stop allowing those behaviors to be called wrong. And we came up with a string of analogies.

He said, “I don’t want the world to be gluttonophobic. I may someday come to control my urges, but in the meantime, the world has to accept that I must eat all I want.” Have I mentioned that Political Sphere is a giant? He has over 200 pounds of lean body mass—which requires a fair amount of sustenance, but is not the problem. It is the non-lean body mass that is the issue, and he would probably need to lose a notable amount to fit the Superman profile. (As his mother, I still think he’s adorable in a very large teddy bear kind of way, but I do want him to live a long and healthy life.) Does he eat too much? Maybe, but who has the right to judge? Applying the Desmond Tutu logic, people who “are” gluttons should be treated exactly the same way as “non-gluttons,” without any judgment of their behavior, because it’s right for them; it’s who they “are.”

I had written a similar analogy using kleptomania (which I’m realizing right now is not included in the Defense of Marriage collection—maybe I’ll print it here in the future on a quiet day). Political Sphere remembered that the specific point of that piece was the absurdity of the way the APA removed same-sex attraction from its list of mental disorders. But his point simply relates to the absurdity of accepting any behavior a person doesn’t have control over, which could become a long and sordid list.

And then we talked about the big news of the day in court. A certain attorney showed up at court Monday morning (in the morning!) drunk. And in his inebriated state he failed to recall that he was carrying his gun with him—into the courthouse. He was arrested and by now is on his way to rehab. The case scheduled that day, along with all his cases, will be turned over to other attorneys, causing a fair amount of upheaval. The best case scenario for this man is the possibility of deferred adjudication on the drunk and disorderly conduct charge, depending on his success in rehab. But that might not be possible because of the felony charge of carrying a gun into a place where it was not allowed. (I’m uncertain whether there was a screening at the door, as in the downtown courthouse where I’ve served as a juror, or whether he got in, was found to be drunk, and the gun was found on him after that point.) It may be that the felony charge will prevent him from ever practicing law again. He’s a prominent person in the small-town community, so this likely made the local nightly news and will show up in a state bar journal. He has caused himself some serious harm.

But is this his fault? As Political Sphere pointed out, the man is alcoholic (using the word “ser”), so he can’t help it. He has the urge to drink alcohol, and who are we to judge whether that’s wrong for someone who is an alcoholic person? Should we not have different definitions of wrong behavior for people who are alcoholics? Their behavior can’t be expected to be the same as someone who is not an alcoholic, after all. So, for alcoholic lawyers, they should be accepted in court drunk on a Monday morning. And as for the gun carrying, no one really thinks he intended to cause harm with it; it was just a result of alcohol-caused stupidity, which is totally different for someone who is alcoholic than for someone who is not. As Bill Clinton would say, “It depends on what the meaning of the word is is.”

Family Superpower

I spend a lot of time with youth and young adult literature. Many of these feature young people with special powers, or at least special skills: magic (Harry Potter), electrical powers (Michael Vey), psychic control of objects (Freakling), wind (The Goose Girl), archery and strategy (Ranger’s Apprentice and Hunger Games). A young person goes about life thinking he/she is normal, or even less than normal, and then gets thrust into extraordinary circumstances that require using the newly discovered special skills.

There’s something fairly positive in the message that everyone has value, and everyone is important and special in some way. You just need to find your talent/purpose/superpower to benefit mankind.

I have been considering the idea that, in the ordinary real world we live in, some of us have significant advantages, just because of a connection to what has for millennia been ordinary: growing up in an intact, loving family.

The social data continues to grow, all of it showing advantages to children raised in intact families with married mother and father. I’ve written about the value of family, mothers, fathers, and marriage many times (a good starting list is in the April 23, 2012 post “More on Marriage”). I’ve written a few times (see “Family Ties to Economics” December7, 2012) about the well-established formula for preventing poverty:

1.         Don’t have sex before age 20.

2.         Don’t have sex until after marriage.

3.         Stay married.

4.         Obtain at least a high school diploma.

But what if there is an additional formula, not just for avoiding poverty, but for likely greater success? Last year I wrote  about Charles Murray’s book Coming Apart, which described four founding principles: industriousness, honesty, marriage, and religion. These were agreed upon as essential virtues by all the founders. They are agreed on as virtues today generally in the most successful areas (Murray referred to them as the SuperZips, identifying certain zip codes). The upper middle class adheres to these principles, and is thereby perpetuating success generation after generation, while lower middle class and lower class areas (by income and education) lack religious commitment, intact families, honesty, and all the behaviors that prevent decay.

As I write about at the Spherical Model, the answer to greater success is what it has always been for thriving civilization: strictly live the civilizing principles (essentially the Ten Commandments) and value family. Family is the way the civilizing principles pass from generation to generation. Schools can’t do it, especially without the support of the home. Government can’t do it. Without family, even the churches can’t do it.

I have a story, from almost two decades ago, that shows the passing on of the values. It was when our second son was in I believe fifth grade (still in public school at that point), and they were going through the first iteration of basic sex education. I had been to the school and reviewed the curriculum and talked with the school nurse ahead of time. While I would have preferred handling this entirely at home, this was before I became a homeschooler, and I felt satisfied with the way the school was teaching the information (family values included in that rather civilized corner of the country). Economic Sphere, as he frequently did, was excited about new information, and started a series of “did you know…” quiz questions when he got home. One of the surprising pieces of information was that children could be born even when their parents weren’t married. So we had a teaching moment.

Back in the day, our boys learning
superpower skills from their dad

At that time there was a young woman from our church, age 17, I think, who got pregnant and was going through the natural consequences. She was repentant, and wanted to repair her life and set things right. The young man was going off to college in another state, and they realized they did not want to be married. So she worked through the possibility of giving up the baby for adoption, a difficult decision for a young woman. Consulting with her parents, she concluded that placing the child with a married couple who had the same religious beliefs as her family would be best for the baby.

Even with that best-case scenario, the decision was heartbreaking. Then it was made more so when the young man’s parents insisted that, if she was going to give up the baby, they would adopt it, because letting go of a grandchild was unacceptable. In that state, they had the right to override the mother’s decision about who should get to adopt her child. She didn’t want them to raise her child; they might be loving grandparents, but they hadn’t done so well at raising the baby’s father, and she really wanted her child raised in her religion. So she chose to keep the child.

She had loving parents who helped out for several years, allowing her to live with them as needed while she went through nursing school so she could support herself and the child. At the time of the conversation with my son, the decision was made to keep the child, and I believe the child had been born. Economic Sphere and I talked about how the child would be surrounded by people who loved him: both parents would be involved, and all four grandparents. But that child would never have the opportunity to live in a home with both parents at the same time.

It was a major “aha” moment. The starkness of that lack of both parents in the home was very clear—and practically unthinkable. Any child could see that you need both a father and a mother. No other arrangement fills the child’s needs.

Because of the way we lived, and because of the clarity of contrast, we had that opportunity to pass along essential values to a son at a young age—so the decision about risky behavior was made years before teenage hormones could interfere with the brain. That is the power of families. Teaching moments like that come up day by day through the years, continually building the power.

I don’t want single mothers and fathers to feel worse about their situation. They may want the best for their children as much as married mothers and fathers. And there is nothing that says they can’t succeed. There is simply the fact that the odds are against them. Church, neighborhoods, community organizations like sports leagues and scouts can help make up for deficits in single parent families. But only if the social capital cost isn’t overwhelming. In the better neighborhoods, the SuperZips that Charles Murray illustrates, the few exceptions to intact families are easily floated aloft with the strong families. But in the already struggling neighborhoods, there’s not enough social capital to make up for the overwhelming deficit.

The idea that a marriage can always break up if things get tough is a tempting escape. One of the strongest incentives to work on a marriage and make it better comes from growing up in families that stayed together. I find myself feeling grateful that all three of my children married people who came from such families. Mr. Spherical Model and I both came from such parents. And grandparents. And great-grandparents. Our tradition of lasting families is not a guarantee that families will always last, but it is an extra power.

If you want to give your children even more power, practically a superpower in today’s world, save sex for marriage; choose wisely who to marry, stay married forever, and take your children to church with you. And then let your children know the value of the gift you’re giving them, so they will value it in the generations to come.

Education Collection

This past month, upon reaching the 400^th post milestone, I did a collection of “best of” posts (part I, part II, part III), mainly related to the three overlying spheres of the Spherical Model. That left out some specific topics. So I followed up with the Defending Marriage collection. Today I'd like to add the Education collection.

If you know me, you know I spent ten years homeschooling my children. When I first started homeschooling, I felt so strongly about the decision that I thought it would probably be right for everyone who could possibly do it. I’ve modified somewhat over the years. Homeschooling is a lifestyle choice, and it takes energy and organization. Mostly, though, it requires a personality that gets excited about learning and helping others learn. That was natural for me, which made homeschooling amazingly fulfilling to my life—while it was also exhausting. I’m so glad we did it. But if someone knows about themselves that they don’t have the personality for it, what they really need to do is recognize their responsibility to see to the upbringing and education of their own children and see to it they provide the best opportunities they can manage. So I don’t as a rule proselytize toward homeschooling, although I’m often a resource for people thinking about trying it.

My friend Paige shared this homeschool field trip photo from 2008

However, after the election last fall, I came to recognize a greater urgency about parents seeing to their children’s education. Some of that comes from the intrusion of the federal government into every aspect of our lives, and the needed resistance to Common Core or any other centrally planned curriculum. Some of the change comes from the real frustration we face locally. Here in one of the most conservative states, in a part of town where conservatives dominate, where schools are considered (by someone else’s standards, not mine) to be high performing—here, of all places, you would expect the school board to reflect the parents and their values. But this election completed the turnover so that seven out of seven board members are moderate to liberal. They consider their constituencies to be the teacher organizations and the businesses that benefit from school spending (builders, curriculum providers, for example).

If in such a place we cannot guarantee that parents are the ones to respond to, then I have no hope for the efficacy of the public school system. Alternatives must take a greater role: private schools, charter schools, homeschools, online schools. Maybe there are alternatives we haven’t even discovered yet. But I do say, louder than I used to, that the federal government has absolutely no business sticking its nose into the education of my children and grandchildren. And state and local public schools have failed to prove that public school has a better purpose or outcome than providing the minimum skills for those whose parents can’t or won’t provide basics necessary for functioning in society.

So, I’m collecting the posts I’ve written related mainly to education. This includes a series of related posts this past March:

3-28-2011 What Works for Schools 

4-7-2011 Commencement  

5-7-2011 Public School Economics Lesson    

5-10-2011 New Paradigm for Education    

7-20-2011 What Make IQ So Racist?  

10-26-2011  Parental Rights   

10-2-2012 Local, Local, Local  

10-3-2012 The Priorities Question, School Board Part II   

11-12-2012 Paradigm Shift Underway  

3-15-2013 Natural Feeding and Teaching   

3-18-2013 Education vs. Indoctrination   

3-20-2013 Skeptical of Accreditation  

3-22-2013 Parental Right to Educate  

3-25-2013 Oppression through Education  

4-5-2013 More on CSCOPE  

4-15-2013 Homestyle Education, Part I  

4-17-2013 Homestyle Education, Part II  

4-20-2013 Homestyle Education, Part III  

4-22-2013 Homestyle Education, Part IV  

5-17-2013 You Might Be Living Under Tyranny If…, Part II (Romeike update)    

If you’re Texas local, and you’re even considering the possibility of homeschooling, Texas Home School Coalition is holding its annual convention next week, August 1-3. Full info here: http://thsc.org/events/convention/   The theme this year is Standing Firm. It will be, as usual, at the Waterway Marriott in The Woodlands, about an hour north of Houston, just off I-45. The most it will cost is $35 per adult for non-THSC-members at the door. A good deal. I feel nostalgic thinking about the good things I’ve learned at past conventions, and some of my favorite book and materials shopping as well.

Summer Reading

Summer reading is supposed to be fun and light, to enhance the enjoyment of sun and leisure. On the other hand, what better time to dive into something heavy than when there’s extra reading time? It was summer the year I read Atlas Shrugged (tiny print, 1100 pages). I’ve tackled The Lord of the Rings trilogy in summer (and other times). This summer I just finished a re-read, after several decades, of Adam Bede by George Eliot.

I read it on my Kindle, where it was free, so it didn’t have pagination, but the library lists it as 509 pages. It was first published in England 1859, near the same period as Jane Austen. George Eliot was also a female author, Mary Anne Evans, using a male name in order to be taken seriously (although women were published during that time). Technically she wrote in the Victorian period, while Jane Austen wrote in the Regency period, although Adam Bede takes place during the earlier period. Another difference is that Austen mainly wrote about the noble class. Adam Bede includes some characters from that class, but the main focus is on craftsmen and farmers and common workers. Adam Bede and his brother are journeyman carpenters.

This was a book club choice, which was my reason for picking it up again. I didn’t love it the first time through, although it was memorable. But this time there were things I appreciated more. The main part I remembered, which I found annoyingly unbelievable, was that a young woman, Hetty, who makes butter at her uncle’s dairy farm, gets pregnant and gives birth—and no one knows. The pregnancy follows a brief affair with the local heir to the estate, Arthur. This was taboo on every level, since he could not marry a young woman so far beneath his class. For her own comfort, she then turns to an engagement to Adam Bede, who has loved her all along. But then she discovers the pregnancy. Months go by, and just weeks before the wedding (I’m reckoning at least seven months into the pregnancy, maybe eight), she sets out to find Arthur and ask for help, so that she doesn’t end up a destitute beggar. But his regiment has moved on, and she is out of resources to keep seeking him. She sleeps in haystacks and occasional inns on her way to a young preacher woman, who had been kind to her.

Mistaking a home for an inn, she is allowed by a kind couple to stay, and that night she gives birth. Within a day she has gone back out on the road. She had previously considered killing herself by throwing herself in a pond, but couldn’t do it. Now, with a baby, she considered throwing the baby in the pond, but she can’t do actual killing. She ends up partially burying the baby under some sticks and bark, and half hopes someone will find the baby alive and rescue it. A farmer does find the baby, but it doesn’t survive. Hetty is tracked down and arrested for killing her baby.

None of the family she lived with, nor her fiancé, had any clue that she was pregnant—far enough along that the baby is born alive without help of hospital or special resuscitation. (As far as I can tell, she never feeds it.) I know dresses in that day were high waisted and hid a lot of figure flaws. But I went through multiple pregnancies as a tall person who showed later and less than shorter women (and this woman was described always as small, rounded, and pretty in a kitten-like way), and there was simply no disguising the situation that final trimester. No one noticed anything?

Nevertheless, the way the hypothetical but common situation was handled in this book is an interesting comparison to today.

The young woman and the “gentleman” both knowingly engaged in self-indulgent uncivilized behavior—that they shrank from having anyone learn about. Adam had discovered them kissing, on the day before Arthur was to leave for his regiment, which resulted in a fistfight over honor along with a requirement for Arthur to write to Hetty making it clear to her the relationship could never go further. Adam had no reason to believe the affair had gone further, and didn’t even consider the possibility, because he couldn’t believe evil of the woman he loved. It was inconceivable that two otherwise honorable people could do the heinous act of sex outside of marriage.

So there is tremendous pressure on a young woman who has submitted to passions and finds herself pregnant. She will be rejected by family and polite society. Her baby will also be an outcast. She will be unemployable. It was not unheard of for gentry to have a “natural child” whose care and keeping they paid for, usually anonymously. But clearly the woman who gets pregnant out of wedlock suffers much more than the man involved.

In this story, Arthur does indeed suffer. He finds out about Hetty’s trial just at its end and is unable to help. She is hanged as the law requires. But his shame and guilt are such that he turns over the running of the estate to a trusted friend and leaves for war. He suffers deprivations and illness, forgoes any idea of future love relationships, willingly suffers his self-imposed banishment for many years.

The minds of the characters, even the most flawed ones, are not evil. At worst they are selfish, weak, and overly concerned about opinions of others and personal comfort. That such characters could get into this situation is both unsurprising and pitiable.

One thing the book handled well was the repentance process. There’s a scene where the young woman preacher, Dinah, goes to the prison to be with Hetty. Her loving way of presenting the possibility of repentance and accepting God’s forgiveness is quite beautiful. Loving without condemning is key. And among a mainly civilized people is surprisingly rare. The telling of Adam’s movement from craving vengeance to forgiveness is beautifully and believably done. I’m glad I re-read the book just for that.

Is there a better way to discourage the family-decaying behavior so widely accepted today without the life-condemning consequences of Adam Bede’s world? For the sake of civilization, I hope so.

There’s a hierarchy of outcomes (outlined in more detail at the Spherical Model). Marriage is the first option (and in a civilized world, class level isn’t a preventive to marriage between the two parents). If that is neither possible nor desirable, the best way to provide a two-parent home for the precious child is adoption. And in a civilized society, where families and children are highly valued, families willing to adopt exceed available adoptive children. (That is mostly true today, despite arguments about unwanted children; the ordeal to adopt is a significant sacrifice.) Being raised by the repentant mother, with help from extended family and community (especially church community—not government subsidy) is a third option. It guarantees less for the child, but the mother is likely to be lovingly attached to the child, and, depending on how she lives her life, she may encounter a possible marriage partner who will adopt the child as his own.

Other outcomes tend to be less and less civilized. And the drain on social and economic capital becomes increasingly greater.

What is needed is valuing and strengthening marriage, condemning behaviors that decay the family (sex outside marriage always fits in that category), but not condemning people. Persuade people, with love, toward better behavior—toward love of civilization, toward love of God, who loves them and recommends the path, not to control our lives and prevent enjoyment, but to offer us lives with the greatest abundance of happiness.

How to have an abundance of happiness in our world is a story we need to get better at telling.

SCOTUS 2012-2013 Voting Patterns, Part III

We’ve been looking at the 2012 session of the Supreme Court, which ended June 30, 2013. Part I looked at the full list of cases and how often each justice voted with either a liberal or conservative bloc. Part II looked at just the cases in which there was disagreement, 39 of the total cases, and then measured the percentage of cases in which each justice voted with either bloc.

Today we’ll look at how many were close decisions, and how many had greater agreement.

There were 22 close decisions, decided by a single vote. A 4-5 vote means 4 conservative dissenting votes (which may or may not all have come from the usual conservative bloc), and 5 majority votes going with the liberal bloc. A 5-4 vote means 5 conservative majority votes and 4 liberal dissenting votes. Some of the cases note an abstention. Note that this relates to the dispersion of the justices’ votes, not necessarily the ideology of the decision. Also note that this data does not include the 35 cases with complete agreement. One thing I noticed was that the easy decisions tended to come early in the session, with the more divided cases being pushed to the end. The most controversial decisions show up in June, and likely late June.

Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
4-5	8	40.9% favor L
3-5-1	1
5-4	12	59.1% favor C
5-3-1	1
Total	22	56.4% are close decisions

 

Moderately Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
3-6	6	100% favor L
2-6-1	1
6-3	0	0% favor C
5-2-1	0
Total	7	17.9% are moderately close decisions

 

High Agreement Decisions
Vote Dispersion	Number of Such Cases	Percentage
2-7	3	40.0% favor L
1-8	1
7-2	3	60.0% favor C
8-1	2
7-1-1	1
Total	10	25.6% are high agreement decisions

The very mixed case of Missouri v. McNeely is considered a 1-8 decision, because there were 8 majority or concurring opinions in all or part, and only 1 dissent without partial agreement. The dispersion, however, doesn’t well identify the differences of opinion on that particular case. Some of the closer cases are also more mixed than this broad look shows.

If you look at all 39 decisions, 20 leaned toward the liberal bloc, and 19 leaned toward the conservative bloc. That’s 51.3% L and 48.7% C. So there’s a slight lean toward L overall. However, on the close cases, the lean is toward C. The majority of cases (without total agreement) are close cases. That means that for the time being there is a slight advantage toward C.

Five years into this administration, so far there has been no change to the conservative bloc on the court. Two liberal justices were replaced, with Justices Kagan and Sotomayor. If either Ginsburg or Breyer were to step down, the replacement is certain to be at least as liberal as the current justices. This is somewhat likely: Justice Ginsburg is 80 and has served since 1993. Justice Breyer, who has served since 1994, is a relatively young 75 (next month), so I expect he will stay.

If any of the other five steps down, even Kennedy, the weight toward the already solid L bloc shifts so dramatically that taking any controversial decision to the Supreme Court would be assumed to go toward the liberal direction. How likely is a change to these five? Here’s the age and length of service data.

Justice	Age	Year Appointed	Length of Service
Thomas	65	1991	22 years
Scalia	77	1986	27 years
Alito	63	2006	7 years
Roberts	58	2005	8 years
Kennedy	77	1988	25 years

(Happy Birthday to Justice Kennedy next week.) The conservative bloc is relatively young. Barring sudden health problems, it is quite likely the four conservatives will stay throughout this presidential term. I think they know how crucial their point of view is to the court. I believe it is also relatively likely Kennedy will stay; I think he knows he is a swing vote, and his leaving would cause some upheaval to the country that he could avoid simply by waiting until someone else makes a change first. He can’t do that indefinitely, but he can probably do it until after another presidential election.

Observations

It would take a deeper look at the Court to reveal all that this session can tell us. But I will make just a couple of observations based on specific cases. (I wrote more here, "On the Court," and here, "Marriage Rulings.")

Fisher v. University of Texas at Austin concerned using race in acceptance policies. In the specific case, a young white woman, who was just under the automatic admittance level, was refused admittance when a black woman with lower qualifications was admitted. The young woman was discriminated against because of her race. In recent past cases, race has been allowed in admittance as one of many factors a university could use. While that policy isn’t completely wiped out, this case makes it clear that using race will cause discrimination against someone, and the trend is toward avoiding race in selection criteria for that reason. This has been a conservative argument for a long time, so it is surprising that the liberal bloc also agreed. Justice Sotomayor abstained, but only Justice Ginsburg dissented.

The other case that reflects the trend of social belief is the US v Windsor case, concerning the federal Defense of Marriage Act. The case itself concerned inheritance law for two women "married" in Ontario, Canada. Their "marriage" contract was recognized by the state of New York, but when one of the parties died and left her estate to her partner, Windsor, the federal government refused Windsor the federal estate tax exemption for surviving spouses.

I have some sympathy for the parties involved; a person ought to be able to say how their estate should be dispersed without the federal government coming in and glomming on to major portions of it. But the difficulty is in using the case to redefine “spouse” and “marriage.” It is likely the problem could have been avoided if the parties recognized that their contract was not recognized in the country they immigrated to; they could therefore have drawn up trusts and other contracts to accomplish the inheritance with as little tax damage as possible. Instead they use the case to force policy on the entirety of their new country. On purpose?

Such a case was bound to appear eventually. But the majority ruling, with Kennedy sneering at the vast majority of all the people in the history of the world who see a value in what has always been marriage, was beyond the pale. Scalia’s dissent was equally cutting in return, pointing out how un-Court-like it was for such personal social ideas to be put forward as Court ruling void of connection to the actual written law.

I don’t know what the eventual fallout will be, but it is clear that controversial decisions can be decided either based on the law or based on social opinion trends, which have been manipulated by media in opposition to mounting social data.

The Supreme Court was never intended to have such power over the people. It is meant merely to keep the legislative and executive branches in check, so we are not deprived of our Constitutionally protected rights. I pray that these nine people will agree more—by reading and understanding the Constitution, as their oath requires them to do.

SCOTUS Voting Patterns 2012-2013, Part II

In our last post, there was only room to deal with the overall mass of data. Today we’ll pare it down a bit, to see if that leads to any further insights. Data comes from the Supreme Court website, slip opinions.

I decided to make an assumption, that when the court is in agreement (unanimous, or all majority and concurring), those cases deal with technicalities of the law, rather than political ideology. I don’t know if that is true, but I thought it would be worth looking at only the cases in which there is disagreement. Of the 74 cases, 35 cases were full agreement cases. That left 39 cases to look at for patterns of disagreement.

In this chart, dissent (minority opinion) is in green; majority and concurring opinions are in red. The light blue shows individual abstentions. There’s still a pretty good sea of agreement, but it’s much more balanced between agreement and dissent than when the unanimous cases are included.

 

This is admittedly a broad brush. Concurring opinions may mean there’s agreement with the direction of the judgment, but for different reasoning. Sometimes there is agreement with exceptions, or agreement only on specific points. The Missouri v. McNeely case was particularly mixed, with various combinations of agreement and dissent on various points. Here’s how the decision is summarized:

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, J.J., joined, and opinion with respect to Parts II-C and III, in which SCALIA, GINSBURG, and KAGAN, J.J., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, J.J., joined. THOMAS, J., filed a dissenting opinion.

I took this oddity into consideration when counting dissent and majority opinions, with several of the justices getting half a count each way on this particular case. The chart below, similar to the one in Monday's post, deals with just the 39 cases in which there was disagreement. Majority and concurring opinions are combined, in yellow; dissents are in green, abstentions are light blue. Then I look at the ratios in which each justice joins with the conservative bloc and the liberal bloc.

To review, a bloc requires at least three of the like-minded justices voting together; when either side was two/two on a case, Kennedy would determine whether there was a bloc vote. I show both the ratio (number of times voting with the bloc over the total number of cases) and the percentage of voting with the bloc.

 

From this we can look at who most frequently agrees and disagrees. I thought it might help to rate them by percentage. 

Justice	%w/C bloc	C Rating		Justice	% w/L bloc	L Rating
Roberts	92.3%	1		Kagan	97.4%	1
Alito	81.6%	2		Ginsburg	92.3%	2
Thomas	76.9%	3		Breyer	89.7%	3
Scalia	76.9%	3		Sotomayor	89.2%	4
Kennedy	74.9%	5		Kennedy	48.7%	5
Breyer	41.0%	6		Roberts	41.0%	6
Kagan	28.9%	7		Scalia	41.0%	6
Sotomayor	27.0%	8		Alito	26.3%	8
Ginsburg	25.6%	9		Thomas	25.6%	9

Kennedy, as you’d expect, is rated in the middle with both blocs. It does appear that the liberal bloc is more solid: all four vote with the bloc better than 89% of the time. Only Roberts is that connected to the conservative bloc. But Roberts isn’t as disconnected from the liberal bloc as the liberals are from the conservatives. Breyer is equally connected to the opposite bloc as Roberts is. But Kagan, Sotomayor, and Ginsburg are connected to the conservative bloc well under 30% of the time. Only Thomas and Alito are that disconnected from the liberal bloc, but they are also much less connected to their own bloc. In other words, Thomas especially, and also to some extent Alito, vote the way they think regardless of the opinions of colleagues.

We haven’t yet looked at how many of the 39 cases are close decisions, and how many were less narrow rulings. Nor have we looked at individual differences on some specific cases. So there's enough for next time, in Part III.