Opinion L.A.

Observations and provocations
from The Times' Opinion staff

Category: Supreme Court

Justices take on healthcare reform law's 1st issue: What's a tax?

Supreme Court Obamacare protests
This post has been updated, as indicated below.

The Supreme Court devoted 90 minutes Monday to arguments on a question about the 2010 healthcare reform law that is deceptively simple: Does the Anti-Injunction Act bar courts from reviewing the legality of the individual mandate before it takes effect?

The Anti-Injunction Act is a federal law from 1867 that forbids courts to consider lawsuits that try to prevent a tax from going into effect. The point was to postpone any challenge to a new tax until after people started paying it.

The deceptively simple reading of the issue before the Supreme Court is whether the individual mandate in the Patient Protection and Affordable Care Act -- the requirement that all adult Americans obtain health insurance policies -- is a tax. To the extent that the mandate bears even a passing resemblance to a tax, it's because the Internal Revenue Service imposes a penalty on those who don't maintain insurance coverage for at least nine months of the year. The penalty is phased in over the first three years, starting with tax returns for 2014, and is based on the taxpayer's income.

Unlike excise taxes, income taxes, estate taxes and any other form of tax you can think of, however, the penalty isn't intended to raise money to support government programs. Washington isn't counting on that money to help pay for the insurance subsidies in the healthcare law; it's counting on compliance with the mandate to help keep down the cost of insurance. Indeed, the less money the IRS collects, the more successful the mandate and the healthcare reform law will be. The clear inference is that the mandate isn't a "tax" in the sense that Congress meant in the Anti-Injunction Act.

At least two factors, however, complicate the question. The first are Supreme Court precedents that take a broad view of what constitutes a tax -- precedents that led the Fourth Circuit Court of Appeals to throw out one anti-healthcare reform lawsuit as premature. As Judge Diana Gribbon Motz of the Fourth Circuit wrote, "An exaction qualifies as a tax even when the exaction raises 'obviously negligible' revenue and furthers a revenue purpose 'secondary' to the primary goal of regulation. Thus, the term 'tax' can describe a wide variety of exactions." (citations omitted)

The second is the contorted argument by the Obama administration that the courts shouldn't consider the mandate a tax for the purposes of the Anti-Injunction Act, but that they should consider it an exercise of Congress' power to levy taxes when evaluating its constitutionality. (Let's just pause for a moment on that dizzying thought.) Rather than trying to sort that out myself, I'm going to refer you to the nicely clarifying analysis done by Lyle Denniston at Scotusblog.

[Updated, 1:30 p.m. March 26: Justice Samuel A. Alito invited the Obama administration's solicitor general, Donald B. Verrilli Jr., to explain that apparent contradiction Monday. Here's their exchange:

Alito: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

Verrilli: No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.]

Denniston and my colleague David Savage sat in on Monday's arguments, and they both reported that the court seems ready to rule that the Anti-Injunction Act doesn't apply. If the justices are so inclined because they don't believe the mandate is a tax, that could make it easier for them to rule that Congress overstepped its bounds when it enacted the mandate. Another possibility, though, is that the court will carve out an exception to the Anti-Injunction Act that allows judges to consider some challenges to a tax before it takes effect.


Healthcare law's day in court

A shoot-first mentality in Florida

The Romney campaign's sketchy election strategy

-- Jon Healey

Photo: Protesters from the Tea Party Patriots against the healthcare reform law in front of the Supreme Court building on Monday. Credit: Jacquelyn Martin / Associated Press

The test-tube babies testing the limits of survivor benefits

Is a child conceived after the husband dies, using his sperm, eligible for Social Security survivor benefits? That's the fascinating question posed by Astrue vs. Capato, a case heard by the Supreme Court
Imagine a husband and wife conceive a child, but before the baby is born, the man succumbs to cancer. Should the baby be entitled to survivor benefits from Social Security, just as the wife and the couple's other children are?

That's an easy one to answer. Under federal law, all the biological dependent children are entitled to share in a deceased parent's survivor benefits, along with any dependent adopted children and stepchildren -- provided that they're not married and younger than 18 (unless they're full-time students, in which case they must be younger than 20, or disabled, in which case there's no age limit).

But what if the child is conceived after the husband dies, using his sperm? Are such children "dependent" on their father at the time of his death, which happened when they were just, umm, potential children?

That's the fascinating question posed by Astrue vs. Capato, the case in which the Supreme Court heard arguments on Monday. A little less than a year after Robert Capato died of throat cancer in 2002, his widow, Karen Capato, became pregnant through in vitro fertilization, using sperm her late husband had frozen prior to undergoing chemotherapy. She gave birth to twins about a year and a half after his death.

Karen Capato sought survivor benefits for the twins, but the Social Security Administration and an administrative law judge rejected the application. The judge held that the twins weren't entitled to any share of Robert Capato's estate under the applicable law in Florida (where the couple had lived), therefore they weren't eligible for survivor benefits.

The U.S. 3rd Circuit Court of Appeals overturned that decision, noting that there was no dispute that the twins were Robert Capato's biological offspring. The appeals court's reasoning was consistent with a handful of decisions in similar cases across the country, but ran counter to several other rulings. The Obama administration appealed, and the Supreme Court is expected to rule on the issue by summer.

It's worth noting that federal law caps the total amount of survivor benefits paid to any family. The Capato twins have three siblings, at least one of whom qualifies for benefits, so the issue there may be more about how the pot is divided than the size of the pot.

But what do you think? Take our ridiculously unscientific poll, leave a comment, or both!


Sure you can go home again

The Klimts and the Supreme Court

McManus: Will Romney be the GOP's Dukakis?

-- Jon Healey

Photo credit: David Hill / Center for Reproductive Medicine

The Klimts and the Supreme Court


It was about art, but it wasn’t an art case that E. Randol Schoenberg presented to the Supreme Court in 2004. It was about the legal matter of jurisdiction.

Schoenberg was representing an elderly Los Angeles woman, Maria Altmann, the Vienna-born heiress of a Jewish fortune that had vanished into the hands of the Third Reich. The trove included two striking portraits of Altmann’s aunt by Austrian painter Gustav Klimt. My "Patt Morrison Asks" column visits with Schoenberg about the high-stakes case.

Schoenberg’s argument that the law regarding international jurisdiction and seized property as applied to those and other Klimt paintings should be restored to the family won the day in the 9th Circuit federal court. "The issues in the lawsuit -- jurisdiction, retroactivity, immunity -- had almost nothing to do with the [historical] facts." But then the case was appealed to the U.S. Supreme Court. 

"I went in with gallows humor and low expectations." To Schoenberg's surprise, the Supreme Court sided with him 6-3. "That was huge." His reasoning: not to make the case "a sob story about an old woman seeking vengeance or whatever, but a legal argument that was very technical and not pulling at the heartstrings."  And he directed it at Justice Antonin Scalia.

"My argument was pitched directly towards Justice Scalia because he had written a concurring opinion in a previous case which I thought was really good for us. I thought if I get Scalia I’ll get some others. If I don’t get [Justice Ruth Bader] Ginsburg and [Justice John Paul] Stevens I’m lost. My problem was the middle, and I thought if I can get Scalia, then the ones in the middle might come along, and that’s what happened. [I presented] it in a dry way, which I thought would appeal to him."

And, he bought Scalia’s book in the Supreme Court gift shop.


Marcel Duchamp's turning point

Photos: Gustav Klimt's five paintings

When art and politics collided in L.A.

-- Patt Morrison

Photo: E. Randol Schoenberg. Credit: Francine Orr / Los Angeles Times.

Legal experts predict a Supreme Court win for 'Obamacare'

Supreme Court 2010 file photo
Betting on whether the Supreme Court will declare "Obamacare" unconstitutional this year? At least some of the smart money is on "no."

The American Bar Assn. devoted all 40 pages of the latest Preview of United States Supreme Court Cases magazine to the high court's review of Obamacare, formally known as the Patient Protection and Affordable Care Act. (The court is scheduled to hear arguments about the law's constitutionality this month.) For this special issue, the editors of Preview polled "a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court" to get their predictions on how the court would rule.

The result: 85% said the act would be upheld, mainly because they believed the court would find the requirement that all adult Americans obtain insurance coverage to be constitutional. A small faction -- 9% -- believed the court would hold that the challenge to the law was premature because the provisions being challenged won't go into effect until 2014. Most of those polled also said that if the court struck down the individual mandate, it would leave the rest of the act intact.

Granted, these are just educated guesses. The ABA didn't identify any of the experts it polled, so it's hard to know how much their own views of the healthcare law or the Constitution's commerce clause influenced their prognostications. We probably won't know the actual disposition of the appeal until the very end of the current Supreme Court term in late June or early July.

In the meantime, you can look at Preview -- the healthcare issue is free online -- and second-guess the unnamed court-watchers. The editors asked the experts to predict how each justice would vote on each of the four issues before the court. Here's how their answers broke down:

Most members of the group predicted a unanimous ruling that the challenge to the law was not premature, although 44% felt that Justice Sonia Sotomayor would dissent.

The group predicted a 6-3 decision to uphold the individual mandate, with Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy joining the court's liberal wing in support, and Justices Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. dissenting. Kennedy was seen as the most likely to go the other way, with 47% predicting he would vote to hold the mandate unconstitutional.

(I'm no expert, but I suggested two years ago that Scalia would be sympathetic to the mandate, based on the concurring opinion he wrote in the case of Gonzalez vs. Raich.)

Asked whether the court would throw out the entire law if it ruled against the individual mandate, those polled predicted an 8-1 ruling in favor of letting the rest of the law remain in effect. Similarly, they expected an 8-1 split in favor of the law's expansion of Medicaid, which two dozen states have challenged as unconstitutional. The sole dissenter on both issues, the group projected, will be Thomas.


Romney and the Mormon factor

Voters aren't the only ones who need photo IDs

Al Gore, Sean Parker call for 'Occupy Washington' movement online

--Jon Healey

Credit:  Pablo Martinez Monsivais / Associated Press

The Supreme Court shouldn't make resume-padding a crime

Xavier AlvarezWednesday was a bad day for liars at the Supreme Court. Even liberal justices seemed unsympathetic to a Pomona man who was prosecuted under a law known as the Stolen Valor Act for boasting at a public meeting that he had received the Medal of Honor. (That wasn't his only whopper. He also claimed to have played professional hockey and to have been injured while rescuing a U.S. diplomat during the Iran hostage crisis.)

The U.S. 9th Circuit Court of Appeals struck down the law. One judge drolly argued that if "false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit. Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic'  and 'I didn't inhale' could all be made into crimes."

Members of the Supreme Court weren't about to salute that parade of horribles.  Chief Justice John G. Roberts Jr. asked the U.S. solicitor general if the government also could punish people who lied about attaining a high school diploma, but Roberts didn't seem to find the idea all that objectionable. Even more revealing of Roberts' attitude was a question he posed to the lawyer for Xavier Alvarez, the Medal of Honor wannabe: "What is the 1st Amendment value in a lie, pure lie?" 

The lawyer fumbled at first but later re-framed the issue in what I think is a persuasive way: "Our founders believed that Congress as a general principle doesn't get to tell us what we as individuals can and cannot say."  Obviously there are exceptions: If Alvarez had lied about his military record to obtain money, he would have been  guilty of the eminently prosecutable crime of fraud. But in itself a  pathetic claim to military glory -- a claim easily debunked by a visit to the Internet -- isn't the sort of statement a free society should criminalize.


Dealing with undocumented drivers

GOP's reckless saber-rattling on Iran

Which political force is more powerful: gas prices or optimism?

-- Michael McGough

Photo: Xavier Alvarez. Credit: Inland Valley Daily Bulletin

The Supreme Court and the slaughterhouse

Could Southern California Republican congressman Elton Gallegly please step in, and make one of his last acts in Congress a humane one –- one more time?

The Supreme Court just threw out a California law, saying the state overstepped its constitutional authority when it ordered changes in how slaughterhouses euthanize pigs and cows and goats who can't walk into the slaughterhouse chute.

It’s a complicated matter, and the justices ruled unanimously on the constitutional question that state law can’t be stricter than federal law in some matters. They didn’t rule on the humane issues or food safety questions, two of the matters that prompted California’s law. The pork industry took California to court, and won.

The questions of possibly tainted meat from potentially ailing animals -– pigs, cows, goats -- getting into the food chain was one of the confluent forces in the California law; the other was about animal cruelty. The public was horrified at a humane group’s video of cows that couldn’t walk being prodded and forced into the slaughterhouse to feed the American appetite for cheap and plentiful meat.

Gallegly stepped in once before on an animal welfare issue. The Supreme Court had ruled that a law banning the sale of animal cruelty videos violated free speech rules.

That law had originated in a ban on "crush videos," showing little creatures getting stomped to death by women, which evidently feed some creepy niche sexual thrill.

Gallegly, who is retiring from Congress, became a hero to animal groups for crafting a new law, along with some of his colleagues, that met those constitutional requirements for banning those so-called crush videos.

President Obama signed the law. Justice Samuel Alito, in perhaps a rare moment of agreement with the president, had dissented in the Supreme Court animal-cruelty video case.

In his opinion, Alito quoted from a Humane Society brief in describing this cruelty porn.

Warning -– this is very rough reading, so stop right here if you can’t deal with it:

[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten's eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal's head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.

Alito also wrote of the "criminal conduct" in the dog-fighting videos that brought the case to the Supreme Court, saying, "The videos record the commissions of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos."

Another law that also meets constitutional muster could address the slaughterhouse animal treatment issue. Beyond that, the Agriculture Department could be a lot more vigorous in pursuing this as a safety issue of "downer" animal meat in the public food supply.

The ultimate answer to any of these practices that occur in the course of slaughtering billions of animals, whether on family farms or by ritual killing techniques or in mega-slaughterhouses, is also perhaps the best chance of survival of our species too.

It’s a move toward a vegetarian diet. Meat protein generally consumes more land and water and energy than vegetable protein, and all of those -– land, water and energy -– are going to be scarcer and more expensive in the decades to come. 

Because we humans feel pretty helpless to do anything to change the world by our lonesomes, I once asked Jane Goodall what was the single thing that one individual could do to make the biggest impact on the planet and the prospect of human survival, and she said, "Stop eating meat."

Until we do, isn’t it the least we can do to treat with respect and consideration these animals we kill by the billions in order to feed ourselves?


Fatter cows, sicker people

Clearing the air on mercury

Patt Morrison Asks: Alice Waters

-- Patt Morrison

 Photo: Pigs in the food chain. Credit: Reuters

Lawyers, labor, leaders rally for court funding

A campaign by attorneys and labor and business leaders to restore funding to state courts is beginning to get some attention, and it's about time. As The Times notes in an editorial Tuesday, courts stand apart because of their essential role in a society of law. Every part of California government has to take -- and has taken -- serious budget cuts, but the justice system must be first in line for restoration.

Instead, under Gov. Jerry Brown's budget proposal, courts are first in line for further "trigger" cuts if voters reject taxes and if other hoped-for revenue fails to materialize.

A committee known as the Open Courts Coalition, headed by Los Angeles attorney Paul R. Kiesel and Burlingame lawyer Niall McCarthy, is calling on the Legislature to keep the courthouse doors open in 58 Superior Courts around the state by keeping court funding intact and gradually restoring $350 million that has been cut in recent years. The group closed off a block of Grand Avenue between Disney Hall and the Stanley Mosk Courthouse on Jan. 18 for a rally to support the courts; speakers included former Gov. Gray Davis and former state Supreme Court Justice Carlos Moreno.

In a video prepared by the group and delivered to Sacramento lawmakers on Jan. 13, members of the legal, business and labor communities do their best to get the Legislature's attention. (See the video at the top of this post.)

"Courts strangely are much like fire and police," says Milo Brown, court employees business representative for AFSCME Council 36. "You never think about them, you're never concerned about them, until you need them."

"The work you do in the Legislature, what you bring to the governor to sign into law, is meaningless if there is no forum to enforce it," says California Chief Justice Tani Cantil-Sakauye.

Participation and cooperation of the Los Angeles Superior Court as well as statewide court leaders and representatives of court employees is significant, because they are sharply at odds on actual court expenditure and management issues. Here are some examples of participation by court supporters with a stake in keeping the courts functioning.

Cantil-Sakauye visited The Times' editorial board this month to discuss court funding and unhappiness expressed by many judges with centralized leadership -- the Judicial Council, which Cantil-Sakauye heads -- and with a costly case management computer system. Listen to her remarks here, here and here.

Stand Up for Justice


Gov. Brown's vision

Spare California's courts from cuts

Chief justice: 'We've become slower, thinner, smaller'

--Robert Greene

Photo: Court workers, attorneys, judges and business and labor leaders gather for a rally to restore court funding on Jan. 18 in downtown Los Angeles. Credit: Lance Rubin / Open Courts Coalition.

Supreme Court votes for states' rights in Texas redistricting case

Supreme Court
For those who follow political and legal controversies over the Voting Rights Act, there were a couple of eyebrow-raising features of the Supreme Court’s decision last week in a Texas case.

The court rejected an interim redistricting plan necessitated by population growth that will give the state four new seats in the House of Representatives. The plan was drawn by a federal court in Texas, which rejected a map drawn by the state legislature.

The lower court’s plan was friendlier to the creation of minority districts than the legislature’s version. But the justices ordered the lower court to go back to the drawing board and use the legislature’s plan as a “starting point” for a map to be used in the April 3 primary. They criticized the lower court for having "substituted its own concept of the 'collective public good' for the Texas Legislature's determination of which policies serve the interests of the citizens of Texas."

The legislature’s map is still awaiting approval -- or disapproval -- by a special federal court in Washington, D.C. Under Section 5 of the Voting Rights Act, states with a history of racial discrimination in voting must “preclear” voting changes with either the attorney general or the D.C. court. Meanwhile, opponents of the legislature’s map sought to block it based on another part of the Voting Rights Act covering the entire nation. Thus the Texas federal court’s map.

The legalities are complicated, the politics less so. The legislature’s map was drawn by a Republican majority. It is opposed by Democrats and Latino activists who say it dilutes minority voting power.

Hovering over the dispute is an argument by conservatives that Section 5, which like the rest of the Voting Rights Act was inspired by the discriminatory practices of the 1950s and 1960s, is unconstitutional. The Supreme Court has not squarely addressed that issue, but -- ominously for minorities and the Democrats they tend to support -- it said in a 2009 case that Section 5 raised “serious constitutional questions” related to states’ rights. This week’s decision cited that language.

So what’s so intriguing about this decision? First, it was unanimous, coming in an unsigned opinion with no recorded dissents. That suggests that even liberals on the court take seriously the idea that federal judges are too ready to override the decisions of legislators in states with a history of old-fashioned voting discrimination. That’s a sign of the times. So is the fact that the court that overrode the legislature in the Texas case was located -- in Texas! The reason Congress gave preclearance authority to a federal court in Washington was that it didn’t trust federal judges in the South to enforce the Voting Rights Act.

Is that an obsolete assumption? If so, is the Voting Rights Act itself a relic? Sooner or later the Supreme Court will have to address that question.


Say no to retroactivity

Sue your own state? Why not?

Challenging eyewitness evidence

-- Michael McGough

Photo: The Supreme Court. Credit: Andrew Harrer / Bloomberg

L.A.'s condom law hardly curtains for porn

Condoms Porn
The L.A. City Council seems able to easily pass resolutions about matters like corporate personhood and the boycott over Arizona's immigration laws. This one was much closer to home: It voted to require condom use in porn films within the city limits.

The porn industry is the Hollywood shadow, prospering to the tune of billions of dollars, principally in the San Fernando Valley. Of late, cases of HIV have shut down some shoots -- one consideration that led to the council's vote.

The argument against the condom law was the usual -- that the business will pick up and go elsewhere. But run away to where? Temecula? Vallejo? State law already requires condom use by porn performers; L.A., as the place where many of the productions are based, is putting its own teeth in the state law.

And the moralizing posses in other cities may not be as welcoming of this particular new business.

As for other states to take the porn trade to -- Arizona? Oregon? Anything-goes Nevada? As my colleague Ron Lin pointed out in his story, New Hampshire is the only other state where such shoots are legal -- and if porn producers don't like how condoms look in their movies, they really won't like goosebumps.

The porn industry already regularly lobbies Sacramento, to the amusing discomfiture of some politicians,  so if its advocates are unhappy about a state health and safety requirement that's being backstopped by L.A., they can hit the hallways of the state Capitol again.

The porn makers say condoms can ruin the fantasy for porn watchers, and that entertainment is all about fantasy. But even the fantasy factories have been drawing some lines, like the one about smoking onscreen.

Our Ted Rall had his own fantasies -- journalistic ones -- about where this regulation might lead: to the Realistic Plot Act (as if) or even the Morning-After Visualization Act.

I still have to get my mind around the idea that if you have sex for money without cameras rolling, it's prostitution, and with the cameras rolling, it's art -- just as a woman stomping defenseless little animals to death with high-heeled shoes is animal cruelty unless you make a video and call it free expression. Thankfully, President Obama signed a law sponsored by Republicans and Democrats to prohibit making, selling and distributing "crush videos" -- and making it a prison offense to do it.

This may be the only case on record in which Supreme Court Justice Samuel A. Alito Jr. has agreed publicly with the president, in his dissent from a court ruling that found that an earlier law about animal cruelty videos -- in that case a Virginia man selling dogfighting videos -- was too broad. Alito dissented, noting the "excruciating pain" of living creatures, something contrary to the values of society.

Adult sex videos are about consenting adults, not unconsenting animals, but no one should have to put himself or herself at risk of AIDS, and the law is there to back that up -- even if the lawmakers themselves sometimes need a kick-start to remember that.


Safe sex in the porn industry

Condoms in porn: Moving industry out of state could be difficult

Condom rule: First step in porn master plan?

--Patt Morrison

Photo: An editor works on a video at porn firm Vivid's headquarters in 2007. Credit: Ken Hively / Los Angeles Times

The fate of the Twinkie -- financially, legally, deliciously

Could it be RIP for the Twinkie, that mainstay of cultural jokes and teen diets?

Hostess has filed for bankruptcy, again, and who knows whether the snack company's survival has a Sno-Ball's (cream-filled cake with pink frosting and coconut flakes)] chance in h-e-double-hockey-sticks, as Mitt Romney would say.

Hostess makes HoHos and Twinkies and "old school" cupcakes with ingredients that read like  Margaret Thatcher's homework; Thatcher studied chemistry and was a research chemist before going into politics, and she helped to develop emulsifiers for ice cream, though I don't expect Meryl Streep spent a lot of time at the soft-serve machine prepping for "The Iron Lady."

If Twinkies do vanish from the snack shelves, we should remember that they still have a place in California jurisprudence.

After former San Francisco Supervisor Dan White shot and killed Mayor George Moscone and Supervisor Harvey Milk in 1978, he was convicted of manslaughter rather than murder, and faced less than eight months in prison rather than the death penalty, in part because of what became known as the "Twinkie defense."

Popular culture has wrongly reduced the Twinkie defense to the notion that eating Twinkies makes you go crazy and do things like shoot people. But in point of fact, the real Twinkie defense was the evidence that White -- a fitness buff and former athlete, a devotee of nutrition -- got so depressed that he'd stoop to pigging out on sugar, candy, sodas and junk food (Twinkies and their ilk), and that that exacerbated his depression.

It fit into his lawyers' case that all of that was evidence of mental illness, which meant that White couldn't have maliciously premeditated the killings –- and therefore could not  be prosecuted for murder, only for voluntary manslaughter. The jury agreed. (White committed suicide less than two years after he was released from prison.)

The Twinkie defense shorthand so outraged Californians that voters and legislators limited the "diminished capacity" courtroom arguments -- the range of psychiatric considerations under which White's case was defended -- and replaced it with the idea of "diminished actuality." In Sacramento, one unhappy legislator even reportedly waved a Twinkie in the air to illustrate his point.

The Twinkie defense even reached the U.S. Supreme Court --  not as a case but during an argument in a 2006 case, United States v. Gonzalez-Lopez, during which Justice Antonin Scalia, talking about the right to counsel, declared: "I don’t want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Jurisprudence aside, whatever perils the cupcake genre poses to those who eat them, the TSA in Las Vegas found last month that a cupcake-in-a-jar might be a threat to national security: agents confiscated a containerized cupcake a woman was carrying onto her flight. The TSA pointed out that your standard-issue off-the-shelf cupcake was fine but that a cupcake sealed in a jar constituted a gel.

And that, I suppose, is its own kind of Twinkie defense.


The end of the Hostess Twinkie?

Twinkies maker Hostess seeks bankruptcy protection

Hostess Twinkies’ shelf life is forever, at least in ‘Ghostbusters’

-- Patt Morrison

Photo: A box of 10 Hostess Twinkies is seen in this photo taken on Jan. 11. Credit: Paul J. Richards/AFP/Getty Images



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About the Bloggers
The Opinion L.A. blog is the work of Los Angeles Times Editorial Board membersNicholas Goldberg, Robert Greene, Carla Hall, Jon Healey, Sandra Hernandez, Karin Klein, Michael McGough, Jim Newton and Dan Turner. Columnists Patt Morrison and Doyle McManus also write for the blog, as do Letters editor Paul Thornton, copy chief Paul Whitefield and senior web producer Alexandra Le Tellier.

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