How Obama’s SCOTUS Choice Might Affect Video Games

With the pending retirement of Justice David Souter from the U.S. Supreme Court, President Barack Obama will have the opportunity to name a replacement.

His choice could have a major impact on the constitutional issues relating to video games, especially if California Gov. Arnold Schwarzenegger decides to ask SCOTUS to consider February’s 9th Circuit Court ruling that his state’s 2005 video game law is unconstitutional. That decision from Schwarzenegger will come later this month.

Among names being floated for Souter’s seat are Gov. Jennifer Granholm (left) of Michigan and 7th Circuit Court Judge Diane Pamela Wood (right). Both have a track record with video game issues.

As Governor, Granholm signed into law a 2005 video game blocking minors from purchasing violent games. The video game industry filed suit and the measure was ruled unconstitutional later that year by a U.S. District Court judge.

For her part, Judge Wood has a rather different history with games. In 2001 she was part of a three-judge Circuit Court panel which overturned an Indianapolis law that sought to limit the access of minors to violent arcade games. That case, AAMA v. Kendrick was the first of what has become an uninterrupted string of court victories in such cases for the video game industry.

Whether Obama appoints Wood, Granholm or another choice, this could be the year that the constitutionality of restricting violent video game sales makes it to the Supreme Court. The possibilities become even more interesting given conservative Justice Antonin Scalia’s 2008 comment that such restrictions might pass constitutional muster.


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  1. 0
    JDKJ says:

    Apparently, there are times when "I’m done with this thread" can mean anything and everything other than "I’m done with this thread."

  2. 0
    JDKJ says:

    "My fellow Americans:

    As President of the United States, I am proud to announce my nominee for Supreme Court Justice: Ali-Amir Abdur Rahman. Mr. Rahman, by the way folks, was born in Kabul, Afghanistan . . . but I’m sure neither the American people nor the Senate Judiciary Committee will hold this fact against him and I anticipate his quick and painless confirmation to the Court.

    I’ll now take a few questions from the press corps."

  3. 0
    chadachada321 says:

    Who, Granholm? A bad governor, absolutely, but not nearly as retarded as Nancy Pelosi or Hillary Clinton

    -If an apple a day keeps the doctor away….what happens when a doctor eats an apple?-

  4. 0
    chadachada321 says:

    Freedom of (and from) religion means that that shouldn’t be a factor in choosing a Supreme Court Nominee. As for supporting the South, I do support state’s rights, and think that if a collection of states really wanted to secede that badly, they should be able to.

    Someone that knows the Constitution would understand that Lincoln (well, hell, most of the "good" and "just" presidents) overstepped his duties big time with much of the things before/during/after the civil war.

    -If an apple a day keeps the doctor away….what happens when a doctor eats an apple?-

    EDIT: Wow, my typing looks like the work of an immature 12-year-old. Basically what I want to say is that I can see why people would want a Supreme Court Justice to be native-borne, like the President, but I can see why it shouldn’t matter at the same time. Since it isn’t mentioned in the Constitution, I say go for it if you want to (then again, very very little was said about the Supreme Court anyways. The Constitution never gave them the right of judicial review, the right to declare laws unconstitutional, that right was first excercised in Marbury vs Madison. Good ol James Marshall…

  5. 0
    chadachada321 says:

    Both of my parents voted for Dick, lol. At least she’s ran out of terms for governor so we can get someone new/good.

    On the other hand, she did help with the movie and game industry tax breaks, so I thank her for that.

    Doesn’t excuse the fact that we have one of the highest business tax rates of any state, and people expect small businessess to flourish in Michigan…bah.

    -If an apple a day keeps the doctor away….what happens when a doctor eats an apple?-

  6. 0
    JDKJ says:

    We’re back to the "can’t name the people who drafted the Constitiution" issue? I though we’d moved beyond that? And you went beyond passing judgment on my rhetorical conclusions. You passed judgment on me personally. Not that your doing so bothers me much. I’ve passed my own judgment on you and concluded that you’re quite the idiot and, therefore, I treat your judgment of me accordingly.

  7. 0
    Gaming Observer says:

    My point is simply that you’re not showing that you actually know what you’re talking about, and making arguments based on "what other people thought was reasonable" – when you can’t even name those people or their intentions – isn’t an argument at all.  It’s just lazy.  Lazy like getting offended and shifting your argument to profanity when somebody is passing judgement on your conclusions.

    We don’t make progress by hanging on to old superstitions or getting angry.  Why do I need to point this out?

    In the interests of civility, I’m done with this thread.

  8. 0
    JDKJ says:

    If you knew it came from the Framers, then why were you requiring me to state where the idea came from in order to rely on the idea? Some kinda trick question? Then you accuse me of not making sense?

    And I don’t need you to tell me about the infallability of the Constitution and the folks who wrote it. It was my forebears that they originally made 3/5 of a person and completely excluded from participation in the political process. We were just too busy picking that fucking cotton to be allowed to take time-out to vote. For someone who don’t know shit about me, you’re plenty quick to pass judgment on me. 

  9. 0
    Monte says:

     Things is, if the framers of the constitution wanted the justices limited to just those with natural born citizenship, then they could have and would have placed it in the constitutional. I mean, we have non-natural born citizens serving in many facets of government… when it comes down to it the president and vice president are the only positions that is set for only natural born citizens…

    There is only one reason to be vague and that’s to be open minded… I mean by not making a rule they are essentially saying, "let the future generations decide for themselves"… if you don’t want certain things to happen, then you should hard code it… when it comes down to it, there is nothing stopping a non-natural born citizen from going to law school and becoming the best damn judge there is… quite frankly, if a non-natural born were to picked by the president and he was a great choice, then i think many members of the senate would be willing to support him… He knows the laws and has good judgement as good or better than most over judges, so their becomes less reason to select him…

    Unlike selecting a judge with weak or little legal background, this is a very easy scenerio to imagine happening when you allow non-natural born citizens to serve in nearly every other facet of government… a trust worthy and loyal citizen of the US is not necessarily limited to JUST those naturally born here. If the framers really did not want this, they would have set the rule in stone. 

  10. 0
    JDKJ says:

    Would it help you knock off the "fear and ignorance" accusations if I informed you that I’m not even a U.S. citizen? Matter of fact, Americans don’t even rank that high on my list of favorite nationalities. You’re beginning to make it sound like I’ve some sort of vested interest I’m trying to protect. I don’t.  

  11. 0
    Gaming Observer says:

    You’re not making much sense here (so I guess I need to dispense with your easily dispensable entire response – sorry, had to, too easy).

    We know it came from the framers.  My point is that you’re making and relying on an argument that you don’t even understand yourself.  That anybody else does the same is not an excuse.

    You, sir, have a frightful case of the "me-too mob mentality", and should really question things more.  The constitution is not infalible, nor were the people that wrote it, and it deserves to be challenged on a regular basis.

  12. 0
    JDKJ says:

    Let me first dispense with the more easily dispensed of your concerns. The person(s) who though it was a good idea to make the Presidency available to natural-born citizens only can be found among the signatures to the U.S. Constitution. They’re often refered to collectively as "The Framers." Secondly, if I can’t properly argue what the Framers intended when they drafted the Constitution, then why can certain the Justices of the Supreme Court? Scalia can’t hardly write an opinion without the pharse "the original intent of the Constitution . . . ." Not that I’m an "originalist," but it does appear to me to be a well-established school of interpretative thought.  

  13. 0
    Gaming Observer says:

    To suggest that something is debatable, doesn’t mean that the conclusion is any less obvious, or any less ridiculous.  Fear and ignorance are not arguments, they’re propaganda.

  14. 0
    JDKJ says:

    I suspect that fear of "sneaky foreigners" was precisely what prompted the Framers to included the citizenship requirement for the Office of President. Does it still bear any relevance in today’s day and age? That’s certainly debateable. And debateable enough to make Bear Bogg’s position something less than "ridiculous."

  15. 0
    Gaming Observer says:

    "My position stated in response to Bear Dogg’s critic, which I’ll now reiterate, was and is that someone had good reason to conclude that the Presidency of the United States should be held by none other than a natural-born American and, therefore, it isn’t far-fetched (certainly not "ridiculous") to apply the same reasoning in opposition to the nomination of a Supreme Court Justice."

    Until you can name the person who originated that idea, and why they did so, then you should really not be arguing any position at all.

    It’s a lazy, biggoted argument to suggest that you’re simply relying on "what the founding fathers intended", etc.  Those aren’t the words you’re using, but that’s what you’re saying, and it avoids having to actually make an argument about why (in the first place) a non-American born person shouldn’t hold the Presidency, and then (in the second place), why the same assertion could be reasonable if applied to a SCJ.


  16. 0
    Gaming Observer says:

    Is it also important that a Supreme Court Justice believe strongly in Jesus and support the South?  Come on.  Where do you draw the line?

  17. 0
    Gaming Observer says:

    I’m with Liz on this one.  In fact, I’d take it a step further.

    Frankly, being born in America (these days) is as easily argued to be a handicap to rational thought than an advantage to… what, I’m not sure.  What exactly are we preserving?  The pretense seems to be that some sneaky foreigner – not born here or indoctrinated with our ideals – may actually change things!  Oh noes!

    Believe it or not, vast and beautiful cultures exist outside of our borders and they do plenty of things a lot better than we do.  Perhaps we should be embracing diversity instead of ignorance, and not be equating foreign with negative.

  18. 0
    JDKJ says:

    You completely mischaracterize my position. I never stated that only natural-born Americans should serve on the Court. Bear-Dogg said that (and he never actually said that, either, but it was close enough to that). A poster responded to Bear Dogg with the assertion that his position was "ridiculous." My position stated in response to Bear Dogg’s critic, which I’ll now reiterate, was and is that someone had good reason to conclude that the Presidency of the United States should be held by none other than a natural-born American and, therefore, it isn’t far-fetched (certainly not "ridiculous") to apply the same reasoning in opposition to the nomination of a Supreme Court Justice. Good for the goose, good for the gander. That was and is the crux of my argument. Which is not at all the same thing as saying that "only American-born people should serve on the Supreme Court." I said no such thing. Not even close.

    And I will also reiterate that your argument is somewhat belied by the fact that the President, Vice-President, and Members of Congress are all elected to those positions. The Framers, believe it or not, were notoriously distrustful of the popular electorate’s ability to vote worthy and appropriate candidates into offices (they saw them as being a sort of "unwashed masses") and, hence, the safe-guard of the Electoral College and the requirement of "qualifications" for political office. The Justices, on the other hand, are not elected. They are nominated by the President and appointed with the advice and consent of the Senate. The Senate never was and still isn’t the same creature as the House. Senators, then and now, tend to be far removed from the unwashed masses. It isn’t far-fetched to conclude that the Farmers thought that the Senate, this august body of mostly well-to-do patricians, was more than capable of weeding out the rabble nominees and therefore felt no need to create any intial barriers to entry in the form of age, national origin, or other "qualifications."  

  19. 0
    Liz Surette says:

    Allowing Congress to have a say in what qualifications a Supreme Court nominee should have is completely different than your original postulate that only American-born people should serve on the Supreme Court just because "someone thought" it was a good idea that the President must be born in the US. Articles I and II enumerate citizenship and residency requirements for the President, Vice President, and Congress–you think they would’ve said "oh and we want these to apply to the judiciary too but we’ll just leave them out"?

  20. 0
    JDKJ says:

    Not neccessarily true, at all. They did put the "with the advise and consent of the Senate" clause in, however. Perhaps they foresaw that this clause was sufficient to ensure that those who’s allegiances to the U.S. were questionable because they weren’t natural born Americans would indeed be questioned by the Senate and if found lacking, consent would be withheld. And, in fact, the process has perhaps worked as intended. There’s no constitutional requirement that a Supreme Court Justice ever have attended law school or have any other sort of legal training. But try getting someone like that past Judiciary. Good luck. Similarly, there’s no constitutional requirement that a nominee have served on a federal appellate court. But it has become an unwritten requirement, thanks to Judiciary. Bush, Snr., knew better than to put Thomas up for consideration before having him serve a token stint on the D.C. Court. Judiciary would have shot him down like a clay pigeon. Short story is, they didn’t put much of anything in the way of qualifications in Art. III because they trusted the Senate to impose it’s own slew of qualifications. And the Senate has done just that.   

  21. 0

    We’ve had Supreme Court Justices who weren’t natural born citizens in the past. That’s something that’s really a non-issue. He was Michigan’s Attorney General for several years and an awful governor. On one hand, due to her history I wouldn’t want her anywhere close to have any sort of power in the US but on the other I’d love to get her out of Michigan.

  22. 0
    chadachada321 says:

    I’ve also seen some pretty bad American judges that manage to STAY on the courts.

    -If an apple a day keeps the doctor away….what happens when a doctor eats an apple?-

  23. 0
    Liz Surette says:

    But they didn’t think not being born in the US was an appropriate disqualification for a Supreme Court Justice or else they would’ve actually put it in Article III. I’ve seen some pretty sharp eggs on Circuit Courts and state supreme courts who were born outside the US who execute the office and uphold the Constitution just fine. If they didn’t, they wouldn’t be on those courts. 
    I can understand where you’d be worried about knowledge of how to apply American law and so forth, but I don’t see how they’d automatically be lacking in that.

  24. 0
    BearDogg-X says:

    I look it at it this way: She can’t qualify to run to for President, therefore she shouldn’t be considered for a Supreme Court spot.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  25. 0
    JDKJ says:

    Well, someone thought that not being born in the U.S. was an appropriate disqualification for the Office of President of the Unitied States. It ain’t completely far-fetched to think that those same reasons — whatever they may have been — bear some relevance to the Office of Supreme Court Justice.

  26. 0
    TBoneTony says:

    Hope that the best person can get the job, and also take the job responsibility and also allowing themselves to stay away from any Videogame related issue unless if they are willing to at least PLAY the videogames they are talking about before trying to pass laws against them.



  27. 0
    Bigman-K says:

    Schwarzenegger can still appeal the law! I thought the grace period for appealing that law was done and over with along time ago. Don’t they only have 30 or 60 days to appeal the ruling to the SCOTUS after the ruling is made. 

     "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  28. 0
    Wormdundee says:

     Really? You’ll discount Granholm simply because she wasn’t born in the US? I’m not saying I would prefer her, but that’s a pretty ridiculous statement to make.

    Not being born in the US is not what makes her less qualified.

  29. 0
    JDKJ says:

    I can’t see Granholm getting past Senate Judiciary. She’s got absolutely no judicial experience. The only bench she’s ever sat on is a park bench.

    And the "split among the Circuits," while an often-stated and compelling reason for the Court to take a case, isn’t an absolute requirement. The Court can take any appelate case that comes before it as long as four of the Justices vote to do so. Not to say that they will or won’t. Just to say that the absence of divided opinions doesn’t neccessarily mean they won’t.   

  30. 0
    BearDogg-X says:

    I don’t think this will be the year SCOTUS will look at video games, mainly because there’s no difference of opinion among the appellate courts. The 7th(Indianapolis), 8th(St. Louis; Minnesota), and 9th(California) Circuits have all rejected the anti-video game laws as unconstitutional. Until a different Circuit Court of Appeals rules in favor of a state(which looks unlikely), SCOTUS won’t consider the issue.

    As far as Obama’s choice to replace Justice Souter, it probably won’t affect much. It would probably stay a 5-4 split in favor of the conservatives. I would prefer he choose Wood over Granholm, not just because of the eventuality of a vote on the constitutionality of anti-video game laws, but because Granholm was not born in America.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  31. 0
    Ratfunk says:

     Oh, please, please, PLEASE, not Granholm. She has a terrible track record, not only with video games, but as a Governor. She should not be getting promoted, but getting ousted.

  32. 0
    Father Time says:

    Granholm bears an uncanny resemblence to Hillary Clinton, so much that I thought Dennis accidentally posted Hillary’s pic.


    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

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