How much jewelry is enough?

One of F. Scott Fitzgerald's most famous quotes comes from his 1926 short story, The Rich Boy. He wrote, "Let me tell you about the very rich. They are different from you and me." The Rich Boy is not one of Mr. Fitzgerald's most famous works. But the quote is famous because it rings true to many people.

An idea to save the Voting Rights Act

The Supreme Court has invalidated Section 4 of the Voting Rights Act. That provision sets forth a formula for determining what jurisdictions must get "preclearance" from the Department of Justice to change voting practices (even trivial things such as the location of a polling place).

Technically the Court just said that the Congressional formula is no longer "appropriate legislation" given the changes that have occurred since the Voting Rights Act was passed in 1964. So Congress could theoretically fix the provision by coming up with an up-to-date formula. But many think that's likely to be impossible given the political realities in Congress. The main reason they kept approving the old formula was that it was political poison to get into the weeds of renegotiating the formula. So the provision is fixable in theory but dead in fact.

But what if Congress just passed a law that delegated the responsibility to come up with a good formula to some federal agency? They could even say the formula has to be revisited and revised every year, or whatever, thus ensuring that it would always be up to date. This would bypass many of the political obstacles to getting the provision fixed, and it would also meet the Court's argument that the provision was based on antiquated factors.

There are probably big problems with this idea, and I'm certainly no expert on the Voting Rights Act or the unconstitutional delegation doctrine, but I thought I'd just throw it out there for discussion.

What will we look like on the Tricentennial?

Mr. Gillette and I have made a solemn oath to live until our great nation's tricentennial in 2076. In that year, I will turn 100 and Mr. Gillette will turn 110—assuming we are able to elude history's greatest monster. Many reader(s)™ have, I assume, wondered how we will look when we are out celebrating 300 years of USA! USA! USA! Slate has a nice story with pictures of some current centenarians. I assume we will look a little better than these folks, thanks to technology, but I would settle for this:

Bart Torvik and Mr. Gillette in 2076

Some advice for the Supreme Court

Now that the Supreme Court is done working until October, perhaps some of the justices will hit the beach for some rest and recreation. If so I hope they read this NPR report on some of the best and worst beaches when it comes to water pollution and the accompanying public health threats like hepatitis, dysentery, and stomach flu. Those threats are also known as the hat trick of a bad vacation.

In the unlikely event you come here for breaking news.

The Supreme Court found DOMA unconstitutional in a 5-4 decision. You can read the opinions and dissents here. Mr. Torvik's prediciton is at least half right.

Prediction:

The Supreme Court will decide the gay marriage cases today.

When the Girlfriend Consents Too Much

Usually it is a good thing when your girlfriend consents. But there are exceptions. One of those exceptions is when the girlfriend consents to a search of your house and computer after she's called the cops because she found child pornography on your computer.

That was the situation under review by the Wisconsin Supreme Court in State v. Sobczak. The specific issue was whether the defendant's girlfriend of three months had authority to consent to the warrantless search of the defendant's computer. She had been using the computer, apparently with the defendant's consent, while she was staying the weekend at his parents' house. But when the defendant went off to work, she went clicking around, found videos of child pornography, and called the cops. I think they broke up.

The court found that the girlfriend did possess the necessary authority to consent to the search. Professor Orin Kerr thinks this is the right result:

[O]vernight guests have a “measure of control of the premises” when “the host is away.” Although this passage is hardly free from ambiguity — a “measure of control” isn’t clear about how much of a measure it confers — I would think that the most basic measure of “control” of a house is the ability to invite someone to enter the common areas of the home. If I’m right about that, Podella was exercising that right by allowing the officer to enter the common area of the home when Sobczak was away. Granted, she did so in one of those “unlikely” circumstances in which the guest found evidence of the homeowner’s crime, and the homeowner would not want the guest to invite in the cops. Olson indicates that if the homeowner is present and objects, the homeowner’s veto controls. But the homeowner was not present to object in this case, so I don’t think that conflict of interest matters.

Chief Justice Abrahamson dissented. One of her disagreements with the majority was that it relied on the characterization of the houseguest as the defendant's "girlfriend," and the evidence didn't necessarily support the conclusion that they were so initimately involved. Instead, the record was that they met online, had been dating for three months, and that she'd accepted his invitation to spend the weekend at his parents' house while they were away. Then, in an apparent swipe at the majority, the Chief Justice says,

The majority apparently assumes that a 22-year-old man is having a romantic, intimate relationship with a 20-year-old woman whom he invites over for the weekend while his parents are away.

What do you think, Mr. Gillette: did the majority make a reasonable inference?

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

My last post?

Today I drank a bottle of Dr. Pepper which had an expiration date of February 2013. If I never post again, you know why.

Was Snowden Really a Spy?

News broke yesterday that Edward Snowden, the NSA leaker, has been indicted under the Espionage Act. Though this is unsurprising, it has provoked some outrage. To some, Snowden is a whistle-blower doing God's work—an insider and true believer who became disenchanted by what he learned of the NSA's abuses and excesses, and felt the only choice was to make them public. Such conduct seems unworthy of criminal prosecution.

As a civil libertarian who's highly skeptical of government power, I am glad that the documents we have were leaked, and look forward to more. But I'm not sure Snowden is really wearing a white hat.

It seems increasingly plausible, in fact, that Snowden wasn't an insider who became disenchanted, but rather an outsider who purposefully infiltrated the NSA with the specific intent to make its secrets public. For example, the Los Angeles Times reports that Snowden has long been critical of the NSA:

A self-taught computer whiz who wanted to travel the world, Snowden seemed a perfect fit for a secretive organization that spies on communications from foreign terrorism suspects.

But in hundreds of online postings dating back a decade, Snowden also denounced "pervasive government secrecy" and criticized America's "unquestioning obedience towards spooky types."

At least online, Snowden seemed sardonic, affably geeky and supremely self-assured. In 2006, someone posted to Ars Technica, a website popular with technophiles, about an odd clicking in an Xbox video game console. A response came from "TheTrueHOOHA," Snowden's pen name: "NSA's new surveillance program. That's the sound of freedom, citizen!"

It is strange that a person who made these comments would be granted a top-secret security clearance and allowed access to the country's most secret double-secrets, unless it was all just a clever cover story (which I doubt). On the other hand, it makes me feel a bit safer that the NSA's all-seeing surveillance wasn't all-seeing enough to know they had given an obvious mole super-user access to their servers.

But it also provides a possible answer to another nagging question: why was a lowly nerd like Snowden given access to these super-secret documents? One possibility is that he actually wasn't given access to these documents, but took it. In other words, he used his admin privileges to probe the NSA's databases and went looking where he shouldn't have, all with the specific intent of exposing anything he found and considered objectionable.

Obviously, this is rank speculation on my part. ("Rank Speculation" would be a great sub-title for this blog, after all.) But if it's true that Snowden was on a mission to divulge, and that he went looking for documents he wasn't supposed to look at, it's harder to be outraged at the decision to prosecute him—even if you think (as I do) that his actions ultimately further the public interest.

UPDATE (6/24/2013):

According to the South China Morning Post, Snowden now admits that he took the Booz Hamilton job with the specific intent to gather and divulge the NSA's secrets:

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."