Eminent Domain

A bill left the Senate Judiciary Committee yesterday concerning television cameras in the Supreme Court. There would be a general rule in favor of cameras in the courtroom, unless the Justices felt that the details or nature of a case should preclude coverage. SCOTUS has quite the back and forth discussion going on in their comments section about this bill.

I've always been torn on this issue. I don't think there is anything wrong with the Justices have discretion on how they run their Court. I'm also worried about potential grandstanding and playing to the cameras. On the other hand, I would love to watch the oral arguments. I'm the kind of dork who sat drumming his fingers, waiting for the audio of the Hamdan case to get uploaded. I just find this stuff incredibly interesting. Regardless of how this plays out, I'll probably be fine with it.

I recently reviewed an unreleased, unnamed beer from the Leinenkugel's brewery. Well, its identity is no longer a secret. Leinenkugel's Sunset Wheat has hit the streets as of March 28th. The website has serving instructions and even makes some food pairing recommendations. This variety will be available year round. There has been a minor shake up in the Leinenkugel line up. Here's what they have to say...

Early Spring of 2006 we do have plans to discontinue Leinie's Northwoods and Amber Light-at least, short term-to make room for the increased production of Leinie's Honey Weiss and Berry Weiss, which are in large demand, and production of a new style of Leinenkugel's. (Northwoods is our brewmaster's favorite and Amber Light is Dick Leinenkugel's favorite.) Our distributors will be able to order Northwoods Lager and Amber Light through February and we expect them to be available through June ('06) in some markets.

It sucks that they have to discontinue anything, but I'm not surprised that Northwoods and Amber Light were on the chopping block. They are probably the least popular beers of their line up. I enjoy Northwoods and think that Amber Light is a decent, if somewhat typical, light beer. It looks like they are focusing on their Summer favorites, which is probably a good idea. I haven't met a beer drinking girl who doesn't like Berry Weiss. I love Honey Weiss. It's my Summerfest beer. It's a good idea to focus on producing these popular varieties and trim off the ones that don't have a big following. Leinenkugel's is making the right move here.

Isn't it weird how most bloggers break actual news stories and I break beer stories? Oh well, it's my area of expertise and the only area where I have actual "sources". I like being unique too.

Ah, Belgian beer. You are truly a harsh mistress. Delirium Tremens is a fairly popular Belgian beer. You'll be able to find it in bottles at better liquor stores and very good import bars. Its name comes from the medical term more commonly known as the DT's or the shakes. Delirium Tremens, the beer, is a Belgian pale ale. It's got a clear, golden hue to it. The aroma is pretty nice. It's got the predictable citrus smell with hints of addition fruits (apple?) and yeasts. It's quite aromatic. The flavors are a nice blend of citrus (with a blend of the typical orange flavor and a surprising grapefruit flavor) and yeast. It's got both fruitiness and body, which makes for a fulfilling combination. It's light on the tongue and fairly crisp. It's not incredibly complex, but it's tasty and easy enough to drink to keep you sipping it steadily. This is a sneaky beer though. The light taste masks the fact that it is 9% alcohol. Tread lightly on these grounds. This is a beer with teeth, even if you don't feel them until they've got ahold of you (which is why you should read my beer reviews).

Wisconsin State Supreme Court Justice Jon P. Wilcox is going to retire in 2007. Beyond his long and distinguished legal career, Wilcox made a huge impact with two very forceful dissents in the 2005 term.

Last summer, Wilcox wrote one of two dissenting opinions to a 4-2 Supreme Court decision that allowed a Milwaukee teenager with lead poisoning to pursue a case against a number of companies that made lead paint, even though the teen doesn't know which is responsible for his injuries. His dissent said the majority's opinion would have "drastic consequences" for those doing business in the state.

Wilcox also opposed a decision that threw out limits on pain and suffering damages in medical malpractice cases.

Those decisions are cited by some who say that Wisconsin's liability climate is slipping.

The concerns in his dissents were echoed by Judge Diane Sykes in her recent speech at Marquette.

Speaking of concerns, I'm concerned about who will be replacing Justice Wilcox...

Madison attorney Linda Clifford already intended to run for the Supreme Court in 2007 and said Tuesday that Wilcox's retirement doesn't change her plans.

Jim Pugh, spokesman for business trade group Wisconsin Manufacturers & Commerce, said he expected that the business community would seek to recruit a candidate with a philosophy similar to Wilcox's to fill his seat.

I'm worried about the direction that the WISC is going. Supreme Court elections don't exactly capture the public's attention. Justices who run for re-election rarely get defeated. I think that an open race like this is full of opportunity. It will also be important for the shifting ideological balance of the Court. Will it keep shifting in the direction that it has, or will this election hold the line?

A South Carolina bill would allow the execution of violent sexual offenders who commit multiple crimes against children.

The Jessica's Law legislation would allow prosecutors to seek the death penalty if a murder is involved and the defendant was deemed a sexually violent predator.

The bill also would set a minimum prison sentence of 25 years without parole if the victim is younger than 11, require more frequent registrations by those deemed sexual predators and require electronic monitoring once they were released from prison.

Bryant's amendment would allow prosecutors to seek the death penalty for those convicted a second time of criminal sexual conduct with a child younger than 11 years. Those currently convicted of such an offense face up to 30 years in prison.

This would definitely test the Constitutional limits of the death penalty. Offhand, I don't know of any Supreme Court case that addresses the issue of executing criminals in this situation. I remember a case from the late 70's (whose name escapes me) that said it was unconstitutional to execute someone for raping an adult woman. However, I don't know if the child issue has ever come up. If this bill passes, it will definitely make its way to a higher court. If the Supreme Court ends up taking the case, we will see an interesting split in how the various Justices handle Eighth Amendment, Cruel and Unusual Punishment cases.

McKinney Allegedly Punches Cop

According to sources on Capitol Hill, U.S. Representative Cynthia McKinney (D-GA) punched a Capitol police officer on Wednesday afternoon after he mistakenly pursued her for failing to pass through a metal detector.

Members of Congress are not required to pass through metal detectors.

Sources say that the officer was at a position in the Longworth House Office Building, and did not recognize McKinney, nor saw her credentials as she went around the metal detector.

The officer called out, "Ma'’am, Ma'’am,"” and walked after her in an attempt to stop her. When he caught McKinney, he grabbed her by the arm.

Witnesses say McKinney pulled her arm away, and with her cell phone in hand, punched the officer in the chest.

McKinney's office has not responded to requests for comment.

According to the Drudge Report, the entire incident is on tape.

Drudge continues, "The cop is pressing charges, and the USCP (United States Capitol Police) are waiting until Congress adjurns to arrest her, a source claims."

Couldn't have happened to a more deserving person.I didn't Photoshop that.


In other "haha" news, there is this post on Hit and Run. My hat is off to Tim Cavanaugh for the excellent title. Personally, I don't think I could fly on that airline. Too weird.

Yeah, that's going to go over well...

Maybe I need to write a second chapter in My Rules for Radicals focused on immigration protests. Obviously, these people need some public relations lessons.

Justice Antonin Scalia wrote a letter to the Boston Herald in response to their recent "obscene gesture" article (I summarized the issue here). Scalia ripped the paper for calling his gesture obscene. He said that the flicking of his hand under his chin was meant to be dismissive, not obscene. The article explains...

To back his interpretation of the gesture, Scalia in his letter quoted from Luigi Barzini's book, "The Italians:" "The extended fingers of one hand moving slowly back and forth under the raised chin means 'I couldn't care less. It's no business of mine. Count me out.'"

Scalia got in one final shot, which was directed simultaneously at the reporter and the politically correct forces in the country...

"From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene _ especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)," he wrote.

I try to avoid most Marquette issues in this blog for a variety of reasons. However, this issue is too bad to ignore.

My friend over at Res Ipsa has a post about his crusade against the somewhat problematic Student Bar Association here at MULS. The enigmatic SBA has been allowed to run without much attention from the students. Every week, they run Bar Review, a Thursday night event at a local bar. But that's about it. Occasionally, they have an SBA sponsored "brown bag lunch", a lecture on a legal issue. Other than that, no one is really sure what they do exactly. Maybe they do lots of other stuff, but no one knows that they do anything else. They have failed to post the minutes of their meetings (as is required) until Mike demanded it. They didn't update their webpage with current members (I haven't met anyone who really knows the roster of the SBA) until Mike demanded it. All of the new "transparency actions" that the SBA has acted on lately have been because of Mike's efforts. He should be applauded for that.

I was also tipped off from a source within the SBA that they were about to pass a resolution a few weeks ago that would've closed their meetings. You see, the SBA's meetings are supposed to be open to the students. However, I don't know a single non-SBA member that knew when the meetings were. That information was not posted anywhere. Some of the members decided to just get rid of that pesky open meeting clause. Only when Mike brought these concerns to light did the SBA post a list of members in the student lounge and send a mass e-mail telling everyone when the meetings were. Before that, they were totally flying under the radar.

Now, this article comes out in The Verdict. I hadn't read The Verdict until Mike showed me the column, but it blew me away when I finally read it tonight...

While I am on the subject of things that do not make any sense to me, I have to add to the list individuals who question the SBA's mission and internal operations. Inevitably, these same individuals follow that question with the statement, "Oh, I don't even know what the SBA is...is that the organization that hosts bar reviews on Thursdays...oh, I know nothing about it." The individual, who most recently had an issue with the internal operations of the SBA, decided to interrogate me and was critical of the organization without even becoming apprised of the facts.

Oh, whatever. Spare me your persecution complex. The SBA has done everything in its power to run itself outside of the view of the students. Not posting the minutes from their meetings is a violation of the SBA's Constitution (according to my SBA source, which is why they were trying to change it). When one student asks "what exactly do you guys do?", you say that he does not "make any sense"? That's just insulting.

No one knows what the SBA does or is because its members have been derelict in their duties. They ignore their Constitutional duties, then try to alter the Constitution to accommodate their apathy. Why do any real work when it's much more fun to have a neat title to put on your resume?

Mike sums up the events nicely...

For calling attention to the deficiencies of the SBA and its members, I have [been] (Me: I'll let that mistake by; he probably typed this while really angry.) publicly criticized in an article endorsed by the SBA. (Yes, there was more than a single person who told me I was in the Verdict, and knew about my Crusade, so the article was readily identifiable). For failure to perform duties laid out in its Constitution, and for general apathy, I get labeled and misquoted to sound like the dumbest student in the law school.

And in closing...

So hat's off to you SBA, this is one person who has a reason to be apathetic. I do not plan to continue to attend meetings, or keep an eye on you.

He's done.

I'm probably not. At the very least, my big mouth is going to spread this around the law school. The truth needs to get out.

I'm sitting in the library, staring at the clock, waiting for C-SPAN3 to get the oral argument of today's Hamdan v Rumsfeld case posted on their website.

What the hell has happened to my life?

EDIT: Quite a case. Hamdan's attorney Neal Katyal was asked fewer questions and interrupted fewer times than Solicitor General Paul Clement. Katyal's sparring partner was Justice Scalia (surprise, surprise) with Justice Alito asking a few critical questions as well. Justice Breyer was especially hard on Clement for not fully answering his questions. I stand by my prediction that I made in the comments of the Scalia post: 5-3, government loses.

The AP has their story up here.

The finals of the law school's Jenkins Moot Court Competition will be on April 4th. It looks like it's going to be an excellent competition, but I'm not sure if I'm going to attend. I get the feeling that my classmates would rather not have a packed crowd watching them. The nerves have to be running high considering the panel of judges that they are judging them. Judges Cudahy, Easterbrook, and Kanne of the 7th Circuit Court of Appeals have kindly taken time out of their schedules to oversee the finals. Wow, oral arguments before Judge Easterbrook. He's... intimidating during oral argument. Think Scalia but not as cuddly. I have a few mp3's of 7th Circuit cases and he's a tough customer. Maybe he won't be as tough on the law students... yeah, right. Good luck, gentlemen.

Either the folks at Confirm Them are reading my blog or we just think alike. Compare this post of mine (especially the end) and this post of theirs. Ah, Nelson Rockefeller. What a character.

All eyes seem to be on Justice Antonin Scalia this week. Comments that the lord of all things textual made in a recent speech in Switzerland have hit the news this week. Some people are calling for him to recuse himself from the case. There was also this incident outside of the Cathedral of the Holy Cross yesterday. A Boston Herald reporter asked Scalia if he fends off a lot of criticism for publicly celebrating his Catholic beliefs. Scalia's response...

"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture under his chin.

...

"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged. "It's none of their business," continued Scalia, who was the keynote speaker at yesterday's Catholic Lawyers' Guild luncheon. "This is my spiritual life. I shall lead it the way I like."

Well, that settles that.

The recusal issue is probably the more important though. During the speech in question, Justice Scalia expressed shock at the idea that detainees captured on the battlefield should receive a trial in civil courts. He called it a "crazy idea." A questioner asked about a hypothetical Guantanamo detainee. Justice Scalia responded, "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

What's the problem? Tomorrow, the Supreme Court hears oral argument in Hamdan v Rumsfeld, a case about a Gitmo detainee captured in Afghanistan. That case will address the following issues: Can a detainee held at Gitmo be tried for a violation of the laws of war in a military tribunal instead of a civil court, and do the Geneva Conventions protect Gitmo detainees. Some are saying that Scalia's statements after his Switzerland speech are enough to force him to recuse himself from the case.

Personally, I think recusal isn't needed here. I think the confirmation hearings are fresh in people's minds and there is some carry over from them. People are getting things confused (or deliberately confusing things). Roberts and Alito would not give any views about upcoming cases or issues that could be before the Court in the near future. They did talk at length about their past statements and opinions though. Established thoughts are fair game to talk about and discuss. It is only when a judge starts to break new ground, deciding the merits of a case before hearing it, that there is a problem. I think that Justice Scalia's views shouldn't be surprising or a cause for recusal. Take a look at his dissent in Rasul v Bush...

The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a petition against the secretary of defense. ... Each detainee (at Guantanamo) undoubtedly has complaints - real or contrived - about those terms and circumstances. ...From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive's conduct of a foreign war.

There is also this from the Hamdi case...

[The reasoning in this opinion] appl[ies] only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.

Those are his published views on the matter. We already know that he thinks this expansive view of civil court rights for non-citizens is shocking. He's said it before while on the Court. Repeating them is no cause for recusal, especially since he was asked a hypothetical question. Scalia wouldn't be foolish enough to answer a direct question about the Hamdan case.

The real reason that people are pushing for recusal is not because they take judicial ethics so seriously. They just want Scalia off the case. The Chief Justice is already off because he participated in the case while he was a judge on the DC Circuit. That means we only have eight Justices hearing the case. Removing Scalia would knock another vote away. The majority would only need four votes then. I'll give you two guesses where those four votes will probably come from (although I think the votes of both Kennedy and Breyer are in play here). The recusal crowd is more concerned about seeing the Bush Administration lose this case than they are about any real ethical issue.

EDIT: The chuch story reminded me of one of my favorite political pictures. Here's Vice President Nelson Rockefeller showing a few hippies what he thinks of them...God, I love politics.

As stated previously, my posting has been rather light lately. Sorry but I've been needed elsewhere. I am a second year law student (or a 2L in the vernacular of the law school world). During the summer between second and third year, you must get a law or legal-related job. You just have to, or else you're going to be screwed for the near future. Some of my classmates have managed to get law jobs already. Some of them (like me) need to have jobs to live and pay the bills, and those are not the kind of jobs that most law students can get in the profession.

What have I been doing with my time? Applications, and lots of them. It's stressful. I know that I'm only seriously in the running for a tiny amount of these positions. And honestly, there is only one that I really, really want. Will I get it? Stay tuned to find out. There is one other that would be good, but the rest aren't really that interesting to me. They are just jobs. I'd prefer to do something that I love. Well, I have to get back at it...

There's been a fairly interesting development in the battle over the new abortion ban in South Dakota. If you are unfamiliar with the law, it...

...bans nearly all abortions, even in cases of incest and rape, and says that if a woman's life is in jeopardy, doctors must try to save the life of the fetus as well as the woman.

When it passed, I predicted that a court challenge would be filed almost immediately, the law would be struck down, then it would work its way up the court system through the appeals process. It turns out that there may be other plans...

But officials with Planned Parenthood, which operates the only clinics in South Dakota that provide abortions, said a lawsuit may not be filed immediately.

Instead, abortion rights supporters may try to take the issue before South Dakota voters in November. State law allows ballot referendums seeking to overturn legislation.

"When you take things to the courts you don't have the opportunity to engage the public in the process. You don't have the ability to build a movement," said Planned Parenthood spokeswoman Kate Looby.

This is an interesting move by Planned Parenthood. It would be fairly easy to mount a court fight. The Roe and Casey precedents are secure, and I doubt they are going anywhere soon. There are only two known votes against Roe on the Supreme Court, possibly four (depending on how Chief Justice Roberts and Justice Alito vote). The referendum plan is interesting because it shows that Planned Parenthood is actually thinking outside the box. They are trying to get the public mobilized through direct democratic action. In many ways, creating a movement is much smarter than just filing a lawsuit. It forces the issue into public debate and discussion. Planned Parenthood is betting that they'll win the debate. It's not a total gamble, because a lawsuit can still be filed (and will win).

Why the change in tactics? Well, it's possible that Planned Parenthood thinks that Roe is actually in danger. I found this part of the article interesting...

With two conservative justices recently appointed, and Republican President George W. Bush expected to get at least one more appointment before leaving office, abortion opponents believe the court would be primed to overturn the 1973 Roe v. Wade decision that established the right to abortion.

Now even Reuters thinks that President Bush will get one more Court appointment. That could be enough to hit the magic number of five.

Is five really enough though? Sure, it's enough legally, but is it enough politically? I've had conversations with my fellow law students about this. Imagine you are on the Supreme Court. You think that Roe is bad law and should be overturned. You also worry about the fall out from overturning it. Will the public be inflamed against the Court? Should that even matter when a Justice makes a decision?

I know that Scalia and Thomas would overturn it in a heartbeat. But what about Roberts or Alito or New Justice X? When the Casey case was before the Court in the early 90's, it was rumored that Justice Kennedy was going to vote to overturn Roe. The notes of Justice Harry Blackmun, released in 2004, state that Kennedy originally sided with the four Justices that voted against Roe. Why did he change his mind? Well, you'll have to ask him. Personally, I think that politics came into play. The joint opinion in Casey (authored by Justices Kennedy, O'Connor, and Souter) states that "people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail". They were worried about backlash.

I stand by my belief that Roe-Casey will never be explicitly overturned. They'll probably be chipped or hacked away at by the Court, allowing more restrictions. But a complete overruling is probably too drastic an act. The Court is a political body, not just a legal one. They'll tread lightly on this subject for now.

The 7th Circuit Court of Appeals handed down a decision in a Wisconsin prisoner's cruel and unusual punishment claim today. Freeman, an inmate with a wonderfully ironic last name, is currently housed in the Supermax prison. The prison has rules about prisoner behavior when receiving meals. One of these rules states that the prisoners must be wearing pants or gym shorts. Mr. Freeman, perhaps yearning for any kind of freedom, decided on numerous occasions that he didn't want to wear pants. The prison refused to give him meals unless he put on some pants. As a result of Freeman's below-the-belt disobedience, he lost 45 pounds. The cruel and unusual punishment lawsuit followed.

Writing for a unanimous three-judge panel consisting of himself, Judge Frank Easterbrook, and Judge Diane Wood, Judge Richard Posner affirmed the trial judge's ruling in favor of the prison.
Here is what Posner had to say...

...there is a difference between using food deprivation as a punishment and establishing a reasonable condition to the receipt of food.

He continues...

The pants requirement may not seem a reasonable condition on receiving food but it is. In the words of the appellees' lawyer in his opening statement to the jury, "There are two primary reasons. Number one, there are a lot of women security officers working in this facility so they are entitled to basic privacy. Secondly, there are security issues. Inmates throw urine, feces, expose themselves, ejaculate, and to prevent that from happening to any security officer, there is a rule that the inmate must be clothed."

Posner goes on two cite a few exceptions where the prison would have to force feed the prisoner to prevent him from seriously endangering his life. However Mr. Freeman's weight loss was because of his own bad behavior (which also included the ever popular painting of the walls with blood and shit), so his loss of meals was his fault.

Judge Posner is always a delight to read. Not to sound like too much of a hometown cheerleader, but I love the 7th Circuit. We have the best cases and the best judges.

Prof. Eugene Volokh, normally of the aptly named Volokh Conspiracy, has an informative article on National Review Online about the constitutionality of funeral protest bans. In case you missed the news, Fred Phelps and members of his church have been protesting at the funerals of gays and soldiers. The signs include "God Hates Fags", "Thank God for 9/11", and "Thank God for Dead Soldiers". Charming.

Prof. Volokh examines the limitations on legislatures to ban such speech. He states...

...the government (a) can ban loud picketing outside funerals, and (b) can probably ban all picketing immediately outside the funeral, but (c) must allow picketing or marching relatively near to funerals.

He then goes on to briefly examine six Supreme Court cases concerning the First Amendment and how they apply to this situation.

The article is a quick yet informative read. Give it a look.

You might be wondering about the title. This evening, I got to sample a brand new beer from Leinenkugel's. This is one of the perks of knowing a guy who knows a guy. I don't even know what this beer variety is called exactly. It's "Sun"-something, I think. Even my source didn't know the exact name. It was in a plain bottle with a simple black and white "free sample" label. The beer has a great yellow-gold color. It looks similar to a New Glarus Spotted Cow but brighter. The flavor is very interesting and unique. It tastes like a wheat beer but also has a lot of fruit flavor. It's not a bad fruit flavor either. Normally, fruity beers are overly sweet and taste fake to me. They also give you gut-rot from all of the sugar. This beer maintained an excellent balance. It was fruity, but the flavor fit perfectly.

The flavor had an overall citrusy flavor but there were hints of other fruits too, possibly pear or apple. It was a mystery. Honestly, my palate has never had such a hard time figuring out a beer. It wasn't overly light. It felt like you were drinking a real beer. However, it wasn't too heavy. By the time that I finished my bottle, I was still trying to place the flavors and categorize them. No such luck.

Keep your eyes peeled for a new Leinenkugel's variety in the future. This seems like a Summer beer to me. It's refreshing and easy to drink. I would expect it sometime in May.

EDIT: This beer is called Sunset Wheat.

Finally, a heated split decision comes from the Roberts Court. In a 5-3 decision, the majority said that police without a warrant can't search a home when one occupant says it's okay but another says it's not. Justice Souter wrote for the majority, which consisted of Souter, Stevens, Ginsburg, Breyer, and Kennedy. Justice Stevens and Justice Breyer filed concurring opinions. The Chief Justice, Justice Scalia, and Justice Thomas all filed dissents.

The gloves definitely came off in these decisions. There is some strong language and the Justices clearly have different views about the legitimacy of these searches. The issue of domestic violence is batted back and forth among the various opinions. The Chief and Justice Scalia see this requirement of unanimity of occupants as a problem. What if the battered woman wants the police to enter, but the abusive husband says no?

Justice Souter's response is the following...

No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.

However, that does assume that the courts will give the police a fairly wide berth in determining if a threat does exist.

Justice Scalia joined the Chief's dissent and used is short, 3 page dissent to respond to the critique of originalism in Justice Stevens' concurrence. Justice Thomas' dissent takes the view that this was not a Fourth Amendment search at all. He states...

...when a citizen leads police officers into a home shared with her spouse to show them evidence relevant into their investigation into a crime, that citizen is not acting as an agent of the police, and thus no Fourth Amendment search has occurred.

He cites Burdeau v McDowell which characterizes the Fourth Amendment as a restraint on sovereign authority, not all government agency actions.

I'm a bit surprised at how strongly worded some of these opinions are, especially Justice Souter's majority opinion. He's not what you would call a firebrand. However, he had no problem taking on his new boss. There had been rumors that Souter might retire, citing boredom with the Court and a desire to leave Washington DC. Based on this opinion, maybe the old guy has been invigorated and given a new zeal for his work.

Many websites and bloggers have been buzzing about Justice Ginsburg's February speech concerning the use of foreign law in Supreme Court cases. I refrained from commenting because I felt that the issue was being explored thoroughly elsewhere.

Today, the Washington Post decided to respond to Justice Ginsburg in an editorial. They take issue with some of the insinuations that she made. It seems like she compared those who oppose using foreign law to some shady characters. Here's the Post...

And one doesn't need to be Chief Justice Taney -- or a South African racist or an aspiring domestic terrorist -- to believe that it would be better if courts did not interpret America's founding documents in light of foreign authorities that postdate them. Justice Ginsburg has a strong case to make without stooping to such insinuations.

I agree. You can legitimately make the case for the use of foreign law. I think it's totally wrong, but the case can be made without painting your opponents as backwards and closeminded.

Both Chief Justice Roberts and Justice Alito rejected the use of foreign law when asked about the subject during their confirmation hearings. Confirm Them reproduced the relevant part of the Chief Justice's testimony...

If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -— because they're finding precedent in foreign law -— and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

"As somebody said in another context..." Guess who that "somebody" was?

In case you missed it, there were anti-war protests this weekend. You may have missed these protests because they weren't well attended in the U.S. (with some exceptions). Check out these pictures taken at the San Francisco rally. Personally, I don't agree with the goals of these individuals, yet I have a soft spot in my heart for them. I feel bad for them because I'm almost certain that I, Lockean property rights advocate and right wing sympathizer that I am, would be a better protester and activist than they are.

Let's look at why these protests fail and how to fix them...

1. Timing is everything. I understand that the organizers wanted to have the rally on the third anniversary of the start of the Iraq War. For something like this, anniversaries are useless. Ask any random person what day the Iraq War started, and I bet they have no clue. Ignore the anniversary thing. Why on earth would you want to have a protest the Saturday morning after St. Patrick's Day? Half of the country is "sleeping it off". They don't want to get up early and march for hours. They want to eat some Froot Loops and watch a mid-morning movie. The protest only works if you can get people to show up.

2. Dress for success. Every time I see footage or still pictures from these protests, I see protesters dressed like they are at some twisted version of UC-Berkeley's Mardi Gras. Exhibit A...While the combination of the Moscow Hockey League Tee and the print shirt that appears to be from the Cosmo Kramer collection is unique, I don't think it presents a good image. Do not wear anything with Che Guevara's mug on it. Do not wear anything that has the words "fuck" and "Bush". Do not wear anything that is dirty. Do not wear any kind of "costume". This protest is supposed to be serious business about an important political issue, right? Then don't dress like you're at Fantasy Fest. Wear something neat and clean.

3. Pick an issue and stick to it. Look at those pictures from the San Fran rally. Do you have any idea what this protest is about? I see anti-Bush, pro-Palestine, anti-Israel, anti-Big Oil, pro-Soviet (way to stay current...), anti-capitalist, pro-Iraqi insurgency, pro-Cuba, pro-Marxism, pro-Venezuela, anti-Republican, anti-military recruiters, and anti-U.S. signs. Some of these topics fit together, others don't. If this is a rally about the Iraq War, focus on the Iraq War. Fidel Castro has very little to do with that war. Even if you love Fidel with all your heart, this isn't the day to proclaim those tender feelings. When you blend all of these interests, the entire protest becomes one big mush of Leftism.

4. Keep the hypocrisy to a minimum. Integrity goes a long way. Don't do this...Something about "FREE" and the $1 "donation" doesn't work for me logically. You decry capitalism, praise socialism, then use the protest to sell your crap. That's capitalism. Hand out your fliers and underground newspapers. Don't set up a t-shirt booth. This is supposed to be political action, not a Marxist flea market. Also, keep an eye open for me at the next protest in Milwaukee. I'll be the guy selling kaffiyehs to fund next semester's tuition bill.

5. Marginalize the weirdos. Every crowd has its loons. These protests seem to cater to them. I know that it's impossible to keep them out of the protest totally, but you don't have to give them the microphone. The Raging Grannies are just plain creepy. They are a goofy gimmick and should be treated as such. I know they've probably been at these protests since the Hitler-Stalin Pact and maybe that's earned them some cred, but they're not helping. They only contribute to the sideshow atmosphere that makes normal people (even those who might be receptive to you) roll their eyes and walk away.

6. Ditch the cliches. No bongos. No drumming of any kind. Absolutely no dancing, especially you white people. I was at a protest at UWM a few years ago that included all these elements. Most of the "dancing" could've easily been mistaken for a grand mal seizure. Again, this is supposed to be a serious political event, not a chance to shake your ass to a bad drum beat. This city is full of clubs where you can do that if that's what you want. No "hey, hey, ho, ho" chants. No chants period. They all sound the same, and they are rarely clever. They are usually shrill, annoying, and likely to piss off anyone in earshot. Stick with non-vulgar, legible signs and a serious attitude.

If your goal is to change people's minds, I think that these protests are a waste of time. My version of protesting might be a little better at that end but probably not by much. If you want to do something worthwhile with your time, focus on winning elections. Find intelligent, articulate candidates to run for office. Support them with your time and money. This will have much more of an impact than blowing a morning and an afternoon walking around a city.

Maybe I'm missing the point. Maybe the goal isn't actual change. Maybe the goal is just to feel good about oneself. "I protested, I did my part." To me, that seems cheap and easy. Working on a campaign is a lot more time consuming. It's a real sacrifice of energy. The protest is more fun though. Maybe that's what it's about, having fun and feeling like you made a difference. It might be even simpler than that...Protests are full of cute Palestinian girls.

Today, the Supreme Court issued two opinions, both decided 8-0. While there are nine members on the Court, Justice O'Connor's vote in the cases does not count (since she's no longer on the Court), and Justice Alito cannot vote in a case that was argued before he was sworn in.

The first case is US v Grubbs, which involved the constitutionality of an anticipatory search warrant. Here in an opinion by Justice Scalia, the Court unanimously overturned a Ninth Circuit decision authored by Judge Stephen Reinhardt. None of that should be shocking to anyone who follows the Ninth in general and Judge Reinhardt in particular. There was a concurring opinion in regard to part III of the majority opinion. Justice Souter, joined by Justice Stevens and Justice Ginsburg, qualifies and sharpens a few points from part III. The trio warned against the broad statement that a warrant does not to spell out the condition that must exist before the warrant can be executed.

The other case was Merrill Lynch v. Dabit, a securities case. It's 17 pages of a topic that I hate, so I'm not going to read it. This opinion was written by Justice Stevens.

Most Supreme Court cases are unanimously decided, but I'm curious to see how long this keeps going. As a general rule, the most contentious cases are released later in the term. There's a long way to go and many more cases to decide.

While browsing How Appealing, I saw this intriguing quote...

"Contrary to popular belief, the Fourth Amendment does not require that a search be based on probable cause to believe that the search will yield contraband or evidence of crime. The amendment requires that warrants be based on probable cause, but forbids only unreasonable searches."

That's Judge Richard Posner of the 7th Circuit Court of Appeals writing in today's US v Burton. The opinion by Posner is joined by Judge Diane Sykes and Judge Ilana Rovner concurred in the judgment. I have to run to class, but I'm interested to see what this was about...

In case you missed it this weekend, Marquette University Law School adjunct Professor Rick Esenberg has an opinion piece in the Milwaukee Journal-Sentinel about the NSA program and Senator Feingold's censure proposal. Newspapers aren't always generous with space or citation links, so Prof. Esenberg has expanded thoughts on his blog here.

I'm inclined to agree (and it's not to suck up, I don't have a class with Prof. Esenberg). I haven't commented on this issue until now because I think it is a pretty complex legal question. I haven't had the free time needed to exhaustively research the scope of Article II power (I do have some social life). Most of the people who have been harping back and forth about it don't even look at it like that. They see it as a political issue to use as a soapbox (see: Feingold).

I'd be interested to see how the Supreme Court would deal with the constitutionality of some of FISA. However, I think that this whole thing will be resolved before any case makes its way through the court system.

Duke Law Professor Erwin Chemerinsky has an interesting little opinion piece in the Richmond Times-Dispatch about the recent decision concerning the Solomon Amendment. Chemerinsky was one of the plaintiffs arguing against the Constitutionality of the law. He also thinks that the Court totally got the case wrong...

The Court's decision is inconsistent with basic, longstanding First Amendment principles. It is well-established that the government cannot condition a benefit on a requirement that a person give up a constitutional right.

Chemerinsky is one of the top Constitutional law scholars in the country and an occasional Supreme Court litigator. He was also unanimously rebuffed by the Court.

George Mason Law Professor Joseph Zengerle has a view from the other side. George Mason was the only law school (though they had some help from people from other institutions) to submit a brief in favor of the government's position. George Mason is also famous (infamous?) for being a repository of conservative and libertarian legal scholars. Their position was...

...that the power of Congress under the Spending Clause of the Constitution to "raise and support Armies" allowed the conditioning of federal money on granting law school access to JAG recruiters equal to that provided other employers.

There is something about that argument that is instinctively right to me. Apparently, the Court agreed too.

I have to apologize for the light posting lately. I have a few things that I've wanted to post about on here, but I just haven't had the time this weekend. The upcoming week looks like it will be hectic too, so posting may still be light. Tonight, I'm enjoying a bottle of Flying Dog's In-Heat Wheat Ale while watching Governor Mitt Romney on C-SPAN's Q & A. Yeah, I do see the strangeness of having a beer while watching the Mormon who I'm currently favoring for president in 2008.

Flying Dog is a really cool Denver brewery. They are well known for their cool bottles and packaging. Ralph Steadman (whose work you may be familiar with from Fear and Loathing in Las Vegas) does all of the art. The beer is pretty good too.

The In-Heat Wheat Ale (sporting a great drawing of some dogs about to... yeah) is Flying Dog's Hefeweizen. Like other hefeweizens, it has a cloudy, flat gold color. Skipping the filtration process keeps things nice and cloudy. It's very fragrant, sort of sweet and yeasty, yet fruity too. The flavor is a little different than most other hefeweizens that I've had. There is more of a fruity, citrusy flavor. The beer is incredibly light in your mouth. While that makes it very drinkable, it might be too light for people used to something heavier. The flavor tends to dissipate too quickly for my liking. That factor plus the lightness encourages you to take a drink more often. These beers go fast.

For a hefeweizen, I would say that this is average. However, American hefeweizens never tend to live up to the Germans, so that's something to keep in perspective. For a beer in general, I think this is great. It's got all of the makings of a good summer beer. It's light, refreshing, and perfect for a hot July night. I recommend Flying Dog in general. They're a cool micro with a decent selection.

Former Scalia clerk and Bench Memos guru Ed Whelan has an article in the new issue of the Weekly Standard (available now on Whelan's site) about federal judges and why we get them. Consider these two men...

A Los Angeles-area attorney, Smith, 64, has specialized for nearly four decades in real estate transactions--a specialty that has little bearing on the questions that occupy federal courts. In his one term as a member of a state antidiscrimination commission, he "distinguished himself" by "his time-management skills," says one of his supporters. He recently explained his decision to step down from the commission by implying disdain for his fellow party members: "I'm a Republican, but I'm a Republican with a heart."

...

Consider also David L. Bunning, whom President Bush nominated to a federal district judgeship in 2001. Thirty-five years old when he was nominated, Bunning had been a lawyer for only ten years. Citing his "very limited and shallow" experience with civil cases, his not "particularly challenging" criminal caseload as a federal prosecutor, his unimpressive writing, and his middling academic record, the ABA rated Bunning "not qualified" for a judgeship. Whether or not one credits the ABA rating--a minority of the committee did find Bunning "qualified"--it would be difficult to argue that Bunning was prime judgeship material.

Bunning was easily confirmed to his judgeship with no resistance from the Senate Democrats. Smith is on the fast track to getting his seat too. Why?

The answer may surprise you, but it shouldn't if you've been paying attention to the politics of judges in the past few years.

For the key facts driving Smith's candidacy are that Barbara Boxer, the ultraliberal senator from California, recommended his nomination and that Smith is the brother of Oregon's Republican senator Gordon Smith. His brother and Boxer, Milan Smith says, "are very good friends." As for Bunning, the district judgeship that he now occupies is in Kentucky, the home state of Republican senator Jim Bunning, who, not coincidentally, is his father.

Whenever someone refers to the Senate as "the world's greatest deliberative body", I can't help but laugh. Whelan's article goes on to explain in detail how Senators control large aspects of the judicial nomination and confirmation process.

I have nothing against Smith or Bunning. They might become excellent judges. However, it's impossible to say with a straight face that they are top legal minds. They got their judgeships because of who they are and who they know. Isn't it odd that these judges are not the "controversial" ones? The ruckus over judges during the past few years centered on the overly qualified candidates. People like Miguel Estrada, Terrence Boyle, William Pryor (eventually confirmed), and Brett Kavanaugh were blocked by Senate Democrats. Their resumes are a little deeper than real estate practice and a light federal docket.

Brilliant, skilled judges are dangerous for the Democrats for many reasons, like when a vacancy develops on the Supreme Court. Someone needs to light a fire under Senator Specter's chair and get him to get these worthy judges confirmed.

I'm currently watching a fairly dull episode of C-SPAN's America and the Courts. This week's foray into Article III land highlights the oral argument in a 9th Circuit Court of Appeals detention case. I gave up at about the 20 minute mark and turned to iTunes for all of my audio needs. I already decided that I want the government to lose this case anyway. I have no substantive reason why they should lose, but the attorney for the Department of Justice is wearing the ugliest damn tie that I have ever seen. It looks like jungle camouflage. If I were a judge, I would find poorly dressed attorneys in contempt of court.

America and the Courts is usually a great show, but they've had some really crappy episodes lately. The best ones (in my opinion) are the speeches by the Supreme Court Justices. I think that the recent speech by the Chief Justice would've made a great episode. I'm also disappointed that C-SPAN never tells us what is going to be on each week until right before it airs. The website isn't updated very religiously and the DirecTV guide is no help either. I love the show and usually recommend it to people who are interested in the courts, but it's been lacking lately.

EDIT: Hey, look. The government did lose.

Happy St. Patrick's Day. Today, most people will be focusing their attention and pint glasses towards Guinness or some crappy green-dyed domestic macrobrew. While I heartily endorse (and will be drinking) Guinness, today is a great time to expand your beer horizons. Guinness also makes Harp and Smithwick's. Smithwick's is one of those beers that I only have every so often. It's good, but it's not in my general rotation. I always mess up the pronunciation, even though I know how it should be said. The "W" is supposed to be silent, so it's pronounced "Smithicks" in the US. The Irish have about twenty different ways they say it. My brain just won't remove the W sound before my mouth says it.

It's got a nice, brown-chestnutty color that one would expect from an Irish ale. It's often billed as being red or "ruby" colored, but I think it's closer to brown than red. Poured properly, there should be a very thick head. There is a little malty aroma, but it's nothing strong or memorable. The flavor is dominated by the malts. It's got a grainy but surprisingly smooth flavor. It's very drinkable. The main reason that Smithwick's isn't in my general rotation is that I usually like it with food (and I don't eat at bars very often). Just as a personal preference, I like to have "red" beers with any sort of bovine critter-dominated meal. Between Guinnesses, give Smithwick's a try today.

Prof. Hurt over at The Glom has brought this law student blogger directory to my attention. I know that there are a few more Marquette University Law School bloggers, and I think we should all get on the list. Why? First, increased readership is always good. Second, all of the student bloggers are fairly intelligent and represent the school well. Third, shameless self-promotion (half the country probably has no idea Marquette exists).

Most of us legally inclined folks have heard of majority opinions, concurring opinions, and dissenting opinions. But do you know what a dubitante opinion is? This often overlooked category of court opinion is the topic of a short article by Marquette University Law School Professor (and ELS blogger) Jason Czarnezki. The article is only 8 pages (including footnotes), so it's a pretty quick read. Take a look.

In a speech Wednesday at the New England School of Law, Justice Antonin Scalia criticized the idea of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage. Justice Scalia said...

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check,"

This may shock some people, but they don't teach us in law school to be brilliant arbiters of great social issues. I agree with Justice Scalia that questions of morals, ethics, and philosophy should be decided by the public, not by the small minority of us who battle through three years of law school.

Having judges decide these issues has another effect...

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

If anyone (like Senator Joe Biden) wants to know why the confirmation system is "broken", it's because the litmus test for judges on these controversial issues has become question number one. Judges should be doing lawyerly work (reading and interpreting texts), not crafting policy for an entire nation.

Law.com has an interesting article on Chief Justice John Roberts. The Chief is heaped with praise for how well the Court has run in his short tenure.

Inside the Court, employees speak of a more accessible chief justice who eats lunch in the public cafeteria from time to time. His fellow justices -- of all political stripes -- have embraced Roberts, pointing to vastly different private conferences, in which they are able to speak at greater length about pending cases than William Rehnquist ever allowed.

I've acknowledged this in the past. Chief Justice Roberts is changing the focus in the private conferences. Instead of staking out positions and taking a vote like former Chief Justice Rehnquist did, Roberts is using conversation and discussion to narrow the issue and find common ground. In a recent response comment, I said "I don't think that Roberts will persuade the other Justices away from strong ideological beliefs. However, he can persuade their decisions to be more focused. That, in effect, will temper some of those strong ideological beliefs". He's not going to talk Justice Ginsburg into overturning Roe, but he can get a decision like Ayotte v Planned Parenthood out of her (and persuade her to not write a separate opinion).

What makes Roberts so good at his new job? The same stuff that made him good at his old job...

"There's a family resemblance between a brief that is trying to persuade the Court and an opinion that reflects the views of the Court," says Thomas Baker, a professor at Florida International University College of Law who was Rehnquist's first administrative assistant as chief justice. "Someone as able as Roberts can listen carefully to his colleagues and can build and craft an opinion that brings and keeps his colleagues in the fold."

In his previous life, Roberts was one of the most successful Supreme Court litigators. He knows that Court and those Justices better than they know themselves.

And just because I want to, here's more praise for the Chief...

Off the bench, Roberts' colleagues have indicated they are happy with the new chief justice, says former Solicitor General Theodore Olson. "One of the justices told me, 'I think that he could be one of our greatest chief justices,'" Olson says, declining to name names. "Another said, 'I think he's going to be great; he's been wonderful so far.'" Olson, a partner at Gibson Dunn & Crutcher, adds that justices speak about Roberts "as if he was born to be chief justice of the United States, much like Tiger Woods was born to be on a golf course."

It's going to be a great 30 years of the Roberts Court.

An article in The American Spectator focuses on three female jurists and their recent speeches. Those three women are former Justice Sandra Day O'Connor, Judge Edith Jones of the Fifth Circuit Court of Appeals, and Judge Diane Sykes of the Seventh Circuit Court of Appeals. Sykes' speech, given at Marquette University, is praised by writer Quin Hillyer as "a compelling case that the Wisconsin high court in 2004-05 has, not just in results but in conventions of legal reasoning, made a radical (and dangerous) shift away from accepted norms." As I have stated in the past, I totally agree.


Hillyer also acknowledges the recent high profile attention that Judge Sykes has received and why it is deserved.

It is for good reason that young Judge Sykes (born in 1957) is on many handicappers' short lists for the next Supreme Court opening. Her speech, a critique of the most recent term of the Wisconsin Supreme Court (of which she was a member until joining the federal appellate court in 2004), was a model of clarity, sound reasoning, and correct (humble, textualist) judicial principle.

She has strong Senate support and has been on her court for almost 13 years. That's a long, Alito-like record. Judge Williams reminds me a lot of Justice Rehnquist during the early to mid 1970s. This might make her a more attractive pick than Judge Sykes.

Allison Eid was sworn in as the new Chief Justice of the Colorado Supreme Court on Monday. Governor Bill Owens has been very blunt about why he chose her. He said the following when he originally appointed her as an Associate Justice...

"I did want to appoint a conservative, and I've done so."

You certainly can't argue otherwise, looking at her history. The article continues...

Between 1993 and 1994, she clerked for U.S. Supreme Court Justice Clarence Thomas, and a year before that, she clerked for Judge Jerry E. Smith, a Ronald Reagan-picked Republican who sat on the Fifth Circuit U.S. Court of Appeals. Recently in Colorado, she served as the chief legal officer for Attorney General John Suthers, also a Republican.

She has published papers about, and she speaks regularly on, an issue near and dear to many Republicans - tort reform.

Justice Thomas was on hand for Eid's swearing in yesterday.The old article about her initial appointment reminded me of Colorado Senator Ken Salazar calling Justice Thomas "an abomination". That, in turn, reminded me of Senator Reid saying "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice." It's no secret that Justice Thomas is my favorite Supreme Court Justice (although the Chief is fast becoming one of my legal heroes). I would love to stop one of the aforementioned senators and ask them to name one opinion that Justice Thomas has written and why it was so horrid.

Daniel J. Solove at Concurring Opinions has a post about the declining pass rates for people taking the bar exam. Here is Solove quoting an article in the National Journal...

Some observers point to higher pass scores required by some states as the culprit, others note a proliferation of new and unaccredited law schools, and still others blame a lack of preparation provided by all law schools. Indeed, the situation has become such a concern that law schools have begun implementing for-credit bar review courses into their curricula.

Whatever the reason, the failure to get an attorney's license is creating a crisis situation for a growing number of graduates who sit for the exam, often burdened with crippling debt. . . .

Of the reasons listed, I tend to agree with Solove and place the blame on the higher scores required to pass. States like California have been doing everything possible to limit the amount of lawyers accepted to their bar. Even Kathleen Sullivan, sainted Constitutional law scholar of the Left, failed their bar exam.

The only answer that makes sense is that the states are making it harder to pass in order to protect their market from being filled with too many lawyers. I think that blaming the new and unaccredited law schools is a cheap shot. I get the sense that the same market share issue for lawyers in a state has spread to law schools and their cut of the students (and their tuition money). The new schools are just targets of the old ones, angry that the new schools are horning in on their action. I'm also not persuaded by the argument that law schools aren't preparing students for the exam. Have they ever? It's been common practice to spend a decent chunk of time post-graduation just studying, taking bar exam courses, etc. That's just the norm.

I think Solove is onto something with getting rid of the bar exam. Here in Wisconsin, we have the diploma privilege. If you graduate from one of our two excellent law schools (and take the required courses), you are admitted into the state bar. No exam necessary. Solove is especially critical of the exam...

It doesn't test the critical analytic abilities needed to practice law; instead, it is basically a memory test about a bunch of rules that are often obsolete. One has to suppress thinking on the Bar Exam.

Lawyering is not about memorizing rules. It's about knowing how to research, think, and form an argument. The exam really just seems to be a means to control the amount of lawyers in a state's market.

Justice Ruth Bader Ginsburg spoke at the University of Toledo yesterday. Her remarks touched on a few topics.

Ginsburg, now the only woman on the court after the retirement of Sandra Day O'Connor, said having two women on the court brought a sense of caring and concern to the bench.

Hear that? That's the sound of my eyes rolling. Justice Ginsburg was asked how long she would stay on the Court...

She said she'll be there as long as she has her health.

"Every day I look at John Paul Stevens who's about to turn 86 and I think maybe I can make it too," she said.

Justice Ginsburg is 72 right now. Forgive me for being ghoulish, but I just don't see her going for another 14 years. I think she's going to try though. The only thing that would make her retire is being totally unable to function as a Justice. She certainly does not want to retire while this president is in office. I put both her and Justice Scalia in the "I'm not retiring until they have to carry me out of here" wing of the Court. They just see the stakes as being too high. If anyone does retire soon, it will be the aforementioned octogenarian, Justice Stevens.

Judicial activism is a term that gets thrown around a lot. In recent years especially, it's become one of those ubiquitous political phrases that is thrown around by both sides of the political spectrum. I cam across this letter in today's Milwaukee Journal Sentinel concerning judicial activism...

So much for liberal activist judge argument

Two letters to the editor in the March 5 Sunday Symposium referenced "liberal judges" or "judicial activism" in relation to previous court rulings on gay marriage bans across the country. Considering that well over 30 states have gay marriage bans or have passed resolutions stating marriage can only be between a man and woman, I guess activist judges have not been too successful in this case.

Now, we see that South Dakota has passed a very restrictive abortion law, with the intent to take it to the Supreme Court and overturn Roe vs. Wade. Based upon conservative logic in labeling judges as "activists," Justices John Roberts, Antonin Scalia, Samuel Alito, Clarence Thomas and any other judge who votes to overturn the existing law and precedent of Roe vs. Wade also becomes an activist judge. Correct?

The liberal activist judge argument is old, tired and about to be turned back against conservatives.

Eric Gass
Milwaukee

I suppose that the definition of "judicial activism" is in the eye of the beholder. Oddly enough, part of an essay assigned in my American Constitutional History class asks us to define judicial activism. As far as the question posed by Mr. Gass, I would have to answer "incorrect". In my view, overruling an activist decision is not activism. It is correcting a mistake.

I think Mr. Gass is building a very weak strawman. He's saying that any time the Court overturns a precedent, it is acting activist (or at least, he is labeling his political opponents as thinking that way). I can't speak for everyone, but I see activism as something very different. Activism is when a judge ignores the text of a constitution or a statute and enacts his or her preferred policy judgment in a case. That is where the Constitutional problem lies with Roe. I've quoted this part of Justice White's dissent many times but it's right on the money...

I find nothing in the language or history of the Constitution to support the Court's judgment... The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

Even if you agree with the results of Roe, do you like the standard it sets? Do you want a court of nine people making broad policy decisions for the entire country? When this standard is set, we are all in danger. As we have seen in the last year, the make up of the Court changes. When it swings to the side of the political spectrum that you don't agree with, do you want the Court deciding these policy issues for you? Or would you rather leave this to the legislatures, which are electable (and defeatable)? I think that the answer is easy.

Is it March 17th already? No, but it's close. As a service to you, the reader, I am going to tell you how to get the most out of your St. Patrick's Day experience. While I am not full-blooded Irish, I do have Irish blood (90 proof) flowing through my veins and a teeming, multi-branched family tree to back up my Irish Catholic heritage. Here is how your March 17th should unfold...

Morning
Ingest: Start your day off like any good son or daughter of Erin would, a good Irish breakfast. Irish breakfast foods include pork sausages, bacon, eggs (usually fried), black pudding, white pudding, Irish soda bread (made with whiskey), barmback (weird ass fruit bread), and wash it down with an Irish coffee (coffee with whiskey). Personally, I think this meal was invented as a dare. Consume at your own risk.
Listen to: St. Patrick's day is all about music. While enjoying (choking down) your breakfast, I would suggest something mellow but with Irish connections. Try Byzantium - The Book of Kells & St. Aidan's Journey by Jeff Johnson and Brian Dunning.

Noon/Afternoon
Ingest: You've got about 6,000 calories in your stomach from breakfast. It's time to attack that huge mass of pork and grains with a few beverages. I'd go with an Irish beer, like Harp or Smithwick's. They are tasty but not too heavy. Hopefully, a few beers will get the digestive system working and get that breakfast out of you as quickly as possible.
Listen to: Irish traditional, drinking, and folk songs (I'm using these terms in the broadest way possible). Everyone should know a few of these songs, regardless of your ethnic origin. I'm a fan of Dirty Old Town, Spanish Lady, Finnegan's Wake, Step It Out Mary, and about a hundred more. No Danny Boy. For the love of God, no Danny Boy.

Early Evening
Ingest: Eat something. I don't care what, just make sure it's got some substance to it. If you can get your hands on it, I'd recommend a big bowl of colcannon. It's sort of like mashed potatoes made with two pounds of butter, bacon or ham, and cabbage. Wash that down with a few pints of Guinness.
Listen to: With this much "good cheer" (alcohol) in you, you'd better be singing now or else you're just no fun. Continue with the Irish tunes from the afternoon, but add a few tracks from The Pogues and Dropkick Murphys.

Evening
Ingest: Irish Car Bombs. For the three people in the world who don't know what an Irish Car Bomb is, it's a shot of Jameson Whiskey with a little Bailey's Irish Cream, dropped into half a pint of Guinness and slammed. This is why you ate three pounds of potatoes earlier in the evening.
Listen to: Flogging Molly.

Late Evening
Ingest: Irish whiskey. I don't care if it's Jameson, Tellamore Dew, John Powers, Bushmills, whatever. At this point in the night, even those of you who don't like the taste of Irish whiskey should be able to handle it.
Listen to: Who cares? It's not like you'll notice it anyway.

Early Morning
Ingest: Water and Taco Bell.
Listen to: Drunks smashing empties and fighting in the streets after bar close.

Be safe, drink responsibly, and saol fada chugat!

It's been a long weekend. Usually, the first weekend of Spring Break is restful and easy. Between work and activities, I've been putting in some long hours. Tonight, I'm going to relax with the season premiere of The Sopranos and a beer or two. The victim for this evening is New Glarus Yokel. What the hell is that? That's what I thought when I saw it in the store. Brewmaster Dan Carey is one busy guy. New Glarus has been churning out new varieties at a steady pace. There was a new stout too, but I decided that one new beer was enough. The Yokel is a lager (I seem to be on a lager streak lately). It has a nice, lightly cloudy hue to it. It's got more aroma than most lagers. Many lagers are like smell vacuums, but this one actually has a little character to it.

The Yokel has a fairly interesting flavor. It's got a three-barley blend (Wisconsin, German, and English) along with German hops. The hops are fairly weak. They are there, and you can taste a hint of them, but they are definitely not at the front of the favors. That sort of earthy, grainy flavor comes on in a burst while the beer is in your mouth, but it leaves fast. I think it leaves a little too fast, personally. I could see the Yokel being a favorite of people who primarily drink macrobrews. That doesn't mean that it's a bad beer. It's good for what it is: a drinkable, accessible lager with a little flavor.

George Mason Law School Professor Peter Berkowitz has an article in The Weekly Standard about the Court's recent upholding of the Solomon Amendment. George Mason was the one law school who submitted a brief in favor of the government's position in that case (that's the position that won, in case you forgot). The focus of his article is the following...

Roberts's opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?

You have to wonder that, don't you? When the Court hands down a unanimous opinion, it's a sign that the law is pretty clear. Shouldn't law professors at prestigious universities like Yale, Harvard, Columbia, and Chicago be able to predict the outcome of an easy case? Well, after the case, the petitioners had this response...

Joshua Rosenkranz, who represented FAIR, told the Washington Post that the law schools always saw the suit as a "scrimmage in a broader war" about equality--a revealing remark from an attorney who had just suffered a dreadful defeat in a high profile First Amendment case.

So this was all just politics? It was a protest suit?

This whole lawsuit seems strange to me. The people who direct their anger at the military recruiters seem strange to me too. "Don't Ask, Don't Tell" is not military-made policy. It's policy passed by Congress. If you really want it changed, why not petition Congress? I think that simply arguing policy is a better route than Constitutional law. Argue that our military needs every committed person that it can get, regardless of sexual orientation. Argue that all patriotic Americans should be allowed to serve their country in the military. It certainly seems more legitimate to change a policy via the legislative process than trying to shoehorn it into the Constitution. But I guess we have a history of doing such things in the past...

Chief Justice John Roberts gave his first speech as Chief Justice this Wednesday. Originally, the Chief was not going to deliver any speeches during his first term on the Court. What made him change his mind? An invitation from this woman...When Mrs. Reagan asked Roberts to be the guest speaker at the annual (and aptly named) Reagan Lecture at the Ronald Reagan Presidential Library, he couldn't turn the former first lady down. Roberts served in the Office of White House Council for President Reagan.

I find this segment of the article especially interesting...

He expressed special thanks to the archivists at the Reagan Library for preparing thousands of pages of documents related to his work in the Reagan administration for the Senate Judiciary Committee.

One of the documents was a 1986 resignation letter he wrote to Reagan that said, "As a lawyer it was a source of great satisfaction to serve a president who appreciated the framers' vision of a limited federal government of laws, not men."

Nice quote.

EDIT: You can watch the Chief's speech here. There's probably going to be a commercial at the beginning, just so you know. There is also a short Q&A session at the end. The Chief Justice is a pretty funny guy. It's worth a look.

The National Center for Men filed a lawsuit today in federal court contending that lack of male reproductive rights violates the U.S. Constitution's equal protection clause. A few quotes from the article...

The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.

Why he's going to lose...

State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. Melanie Jacobs, a Michigan State University law professor, said the federal court might rule similarly in Dubay's case.

"The courts are trying to say it may not be so fair that this gentleman has to support a child he didn't want, but it's less fair to say society has to pay the support," she said.

The response...

"Roe says a woman can choose to have intimacy and still have control over subsequent consequences," he said. "No one has ever asked a federal court if that means men should have some similar say."

This lawsuit doesn't have a snowball's chance in Hell, but it's still pretty intriguing.

Imagine that this did make it to the Supreme Court. Do you think that Justice Breyer or Justice Kennedy would cite this international law? They're such fans of scoping out what other countries are doing with their jurisprudence. Why not take into account that decision by the European Court of Human Rights?

Over the course of the next week, I will probably be making changes to Eminent Domain. Bear with me until I figure everything out. I haven't decided if I'm going to keep this template or not. Apparently, it looks messed up when viewed with Internet Explorer. I use Firefox, so I had no idea. I'll try to figure out what the issue is in the code, but you should use Firefox anyway. I'll try to keep the construction mess to a minimum.

For those of you who can't be bothered to read the entire speech that Judge Diane Sykes gave at Marquette University Law School Tuesday night, here is a condensed version. This is an edited down version of the speech that will appear in tomorrow's Milwaukee Journal-Sentinel. I have a feeling that people will be talking about this for quite a while...

For those of you out of the MULS loop, the plans for a new law school are being hammered out right now. Of course, I will be graduated and practicing law (God willing) by the time construction begins, but I'm still interested in what the new school is like. I'm also interested in it because our current building has become something of a hazard. For instance, take my Business Associations class today. This classroom has, I believe, 8 rows. Each row is made up of a few segments which are joined into one long desk with attached chairs. Behold my MS Paint skills...

Unfortunately, the back row decided that it had had enough of its career of holding laptops, casebooks, and water bottles. That segment of the back row collapsed. Fear not, the three students sitting back there were not injured. We all had a good laugh at their expense though. Just to be on the safe side, I'm bringing some extra support struts to reinforce my row.

I've been trying to put more pictures on here lately. I think they are nice to have, just to break up the text. It's also helpful to put a face with a name, especially for those of you who don't know who the Supreme Court Justices are (there will be a quiz next week). In my search for Supreme Court pictures, I've stumbled across the Reuters/AP photo archive that Yahoo uses. There are a few interesting pictures on there...Here are Justice and Mrs. Alito at the Kuwaiti Ambassador's home. That's Kirk and Anne Douglas on the left. Supreme Court Justices get invited to all the best DC parties.


Here is Justice Ginsburg moments before she leapt at Chief Justice Roberts in an attempt to suck blood from his neck. Fortunately, Anthony Hopkins was in the room and oak staked her before she could harm the Chief.


One of these things is not like the others, one of these things just doesn't belong...


While being honored by the National Association of Women Judges, Chief Justice Roberts pulls the old "she's stabbing me with the pin" routine. I have a feeling that he has a very nerdy sense of humor (nothing wrong with that either).


Chief Justice Roberts: "Please retire so I can have my five vote majority."
Justice Stevens: "Why the hell can't I stay in Florida for this?! I'll e-mail you a picture, just Photoshop it in..."


Justice Thomas: "Breyer, if you don't shut up about cost-benefit analysis, I'm gonna kick your ass."