Eminent Domain

Over the course of the day yesterday, I managed to plow my way through the much awaited Hamdan v Rumsfeld decision. I don't know if there is a legal blog without a Hamdan post. A few reactions worth checking out...

Orin Kerr on the difference that the decision will make... "...I think Hamdan is important but not earth-shattering. On one hand, the Supreme Court made clear that it is very much a player, and it upped the ante from its 2004 decisions. If the 2004 decisions rejected the concept of a law-free zone, Hamdan rejects the concept of a Congress-free zone. On the other hand, the Court has upped the ante only a notch. It has avoided a grand confrontation between the Executive and the Judiciary, at least for now."

Jack Balkin calling the decision "democracy-forcing", ensuring that Congress will be more involved in the War on Terror.

Randy Barnett at Volokh reacting to Balkin and identifying the two major errors of the Bush Administration's prosecution of the War on Terror.

John Yoo is critical of the decision (shocking, I know)... "The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA."

Senator Specter has some legislation ready. It is more of a response to the previous Rasul v Bush decision, but it fits here too.

Mark Tushnet analyzes the decision and has some advice for Supreme Court litigators... "As long as Justice Stevens is on the Court, never, never rely heavily on an opinion from which Justice Rutledge dissented strongly." Stevens clerked for Rutledge and apparently wrote a hell of a lot of the opinions.

Stephen Bainbridge suggests that Congress could just strip the courts of their jurisdiction under Article III Section 2. It's a pretty gutsy move, though.

Orin Kerr also had this handy "How to Navigate the Hamdan Decision" breakdown...

Justice Stevens wrote the main opinion -— 73 pages long - which is a 5-Justice majority opinion in part and a 4-Justice judgement of the Court in part.

Justice Breyer wrote a 1-page concurrence joined by Souter, Kennedy, and Ginsburg.

Justice Kennedy wrote a 20-page concurrence, parts of which were joined by Souter, Ginburg, and Breyer.

Justice Scalia wrote a 24-page dissent on the jurisdictional and abstention issues that was joined by Thomas and Alito.

Justice Thomas wrote a 49-page dissent on the merits, joined by Scalia and in part by Alito.

Justice Alito wrote a 10-page dissent on the merits, joined in part by Thomas and Scalia.

Happy reading.

Con law and legal ethics expert Professor Ronald Rotunda has an article trying to explain the recent history and current state of campaign finance law according to the Supreme Court. He summarizes the holding of Buckley v Valeo, which is where the mess started. Then he mentions McConnell v FEC...

McConnell v. Federal Election Commission (2003) upheld almost all of the Bipartisan Campaign Reform Act of 2002, in opinions that totaled nearly 300 pages. The case was a loss for groups like the ACLU, the AFL-CIO, and the Chamber of Commerce, which filed briefs opposing the restrictions on grounds of free speech. (Newspapers routinely report that only "“conservatives"” oppose these restrictions; they must not read who signs the briefs.) And it was a tremendous victory for those who support government regulation.

If you read the entire McConnell opinion, your eyes will bleed. Mine did.

But seriously... Rotunda moves on to the most recent opinion, Randall v Sorrell. He looks at Stevens' dissent, which I did not cover in my post...

Stevens, dissenting, also argued that Buckley should go, because he believed it protected free speech too much. He yearned for the cost-free campaigns represented by the Lincoln-Douglas debates, but neglected to mention that in that long-ago time, they campaigned for the Senate before there was a Seventeenth Amendment, when there was no popular election for U.S. Senators.

With all due respect to Justice Stevens, this was a pretty Grampa Simpson moment in his opinion. I was waiting for him to start talk about the time he caught the ferry to Shelbyville and tied an onion to his belt (which was the style at the time).

After describing the tome-like opinions that the Court has given us in the past, Rotunda sees a glimmer of hope...

What will the future bring? Longer opinions, if the Court tries to keep the complex distinctions of the prior cases.

There are hints, however, that the Court may not do that. Breyer'’s plurality (joined by Roberts and Alito) advised that the appellate courts should review the record "“independently,"” and not defer to the lower courts to make sure that the restrictions on campaign financing are "narrowly tailored."

So perhaps hope is warranted for a shorter decision in the future, one that remedies the confusion created by the Court's past decisions on campaign finance.

As nice as that would be, I don't know if it's going to happen. I think that we are stuck with the long campaign finance opinions, at least with these Justices (a situation that may change soon).

As I read LULAC v Perry, I had many flashbacks to Vieth. It seems like the Court is still in the same position that it was two new Justices ago. Partisan gerrymandering is still a justiciable question, but there is still no test or standard that the Court accepts. Justice Kennedy is still holding out hope that someone, anyone will create a test that gets his stamp of approval. Don't hold your breath on this happening soon. From his statements in this opinion and in Vieth, I doubt Kennedy will find a test that he likes. He will keep brushing the proposed tests aside and settling these cases ad hoc.

The Court did say that mid-decade redistricting was okay, deferring to the state legislatures in this regard. Justice Kennedy's use of quotes from the Constitution in Part II-B are a sign that this is a settled issue. A majority of the Court will treat this type of redistricting as a hands-off issue. I'm not sure that this will cause a torrent of states to redraw their district lines mid-decade. The racial vote dilution avenue still seems to be a strong case to bring (at least for 5 members of the Court), so any hasty redistricting could be attacked on those grounds. However, if the legislatures are careful to not dilute the power of a racial vote, they may be able to pass the Court's non-test test.

The opinion by Chief Justice Roberts is especially interesting. He and Justice Alito disagreed with Kennedy's assertion that District 23 violated Section 2 of the Voting Rights Act. They had a very narrow reading of that Section. It was interesting that they did not discuss explicitly whether partisan gerrymandering was ever unconstitutional. The two new Justices are looking at precedent very carefully. This, paired with Justice Alito's concurrence in Randall, are a signal to parties before the Court: If you want us to overturn something, you better give us a good reason. I'd like to highlight one quote in particular from the opinion. "It is a sordid business, this divvying us up by race." This one little sentence in the last paragraph of his opinion may tell us a lot about the Chief's (and probably Alito's) views on race issues.

I won't go into the other four (shudder) opinions in this case. The SCOTUS blog has excellent analysis if you're really interested. Gerrymandering is such a strange issue. Many commenters on various websites, blogs, and message boards have been saying that it is one of the biggest problems with our political system. That argument certainly has merit. If you are looking for competitive races, then gerrymandering is a huge problem. I don't think that partisan gerrymandering is unconstitutional, though. The lack of any workable test (including Souter's weird five part test proposed in Vieth) is a signal that it is a political question that the courts should not answer. If you are really mad about gerrymandering, get mad at the legislatures not the Court.

In case you are wondering, the term "gerrymander" was named after Eldbridge Gerry creatively drew the Massachusetts districts in 1810. The term is a combination of his last name and the word "salamander", which is what one districts supposedly looked like. We have a long, proud tradition in this country of using political power to keep and maintain political power. Here is an artist's rendering of the original gerrymander...

Hey, we can top that. We've got two hundred years of experience and computers to help us gerrymander in modern times. Here are a few of my personal favorites. First, Los Angeles...

I think that some of those district shapes would qualify under the Court's old "uncouth" definition. The shapes of 38 and 39 are pretty interesting. My favorite one is 46. When you find it, keep looking. Because there's more of it.

Second, District 17 in Illinois...

Look at how narrow it is where it borders the southwest corner of Adams County. You've gotta love state legislatures. They sure can get creative.

The Supreme Court handed down a phone book, I mean, opinion today in League of United Latin American Citizens v Perry. This was more commonly known as the Texas Redistricting Case. Based on the summaries and news accounts, it looks like most of the districting plan was upheld by the Court. Claims of partisan gerrymandering just do not have enough votes for a win on the Court. As I pointed out in my post about the oral argument in this case, District 23 was the major problem. The Court said that this district did violate the Voting Rights Act.

The case produced 132 pages of opinions. Luckily, I have nothing to do this afternoon. The two other cases from today, Beard v Banks and Sanchez-Llamas v Oregon are on my back burner for now. I doubt I will be able to get to them for a while either.

Tomorrow, Hamdan. Justice Stevens will write for the Court, the government will lose, but no one knows how big the loss will be. That, like many other things, is in the hands of Anthony McLeod Kennedy. I have to work and then have a game, so there will probably be no updates tomorrow.

While reading my copy of the Milwaukee Journal Sentinel, I noticed the AP story about the Kansas v Marsh decision. They state (and I did too in a previous post) that this was another of the Alito breaks the tie decisions. It was reargued after Justice O'Connor left the Court. But Tom Goldstein of SCOTUS makes this interesting point worth noting...

In the third reargument, Kansas v. Marsh, the retirement of Justice O'Connor seems not to have made a difference. Marsh was argued first in December, then reargued. The eventual opinion was written by Justice Thomas and Justice Alito joined the opinion. The principal dissent was written by Justice Souter. Justice Thomas ended up with no opinion from the December sitting, indicating that Marsh was the opinion he would have authored for that sitting had it not been reargued. Justice Souter wrote a majority opinion for that sitting, indicating he did not lose a majority from that sitting. So it is fair to conclude that Justice Thomas had a majority in Marsh before Justice O'Connor's retirement and retained it when Justice Alito joined the Court.

So Thomas had the majority in December, because Souter already had a majority opinion from that sitting. O'Connor would have voted the same way as Alito then. Good eye, Mr. Goldstein.

I'm really making some progress in yesterday's Court opinions. I'm halfway through US v Gonzales-Lopez and I finished Kansas v Marsh. While the majority opinion is interesting, I found Justice Scalia's concurrence in Marsh incredibly interesting. He uses the opinion to respond to some of the claims made by Justice Stevens and Justice Souter in their dissents.

He takes issue with Stevens' criticism of the Court even granting cert to hear the case. Scalia in the text...

Our solemn responsibility is not merely to determine whether a State Supreme Court ‚“ha[s] adequately protected [a defendant’s] rights under the Federal Constitution,‚” post, at 2 (Stevens, J., dissenting). It is to ensure that when courts speak in the name of the Federal Constitution, they disregard none of its guarantees‚—neither those that assure the rights of criminal defendants, nor those that assure what Justice Black, in his famous dissent in In re Winship, 397 U. S. 358, 385 (1970) , called ‚“the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society.” Turning a blind eye to federal constitutional error that benefits criminal defendants, allowing it to permeate in varying fashion each state Supreme Court’s jurisprudence, would change the uniform “law of the land” into a crazy quilt.

Then the icy gaze of Scalia turns to the Granite State's favorite bachelor, Justice David Souter. Scalia states that Souter's dissent...

...essentially argues that capital punishment is such an undesirable institution‚—it results in the condemnation of such a large number of innocents—that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced.

Scalia then goes on to state that judges should not praise or criticize legislatures according to the judge's personal policy preferences. Not satisfied with taking on members of the Court, Tail Gunner Scalia takes aim at (I'm assuming) Europe...

There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently‚—and indeed, many of them would still have it if the democratic will prevailed.)

Some judges are reluctant to criticize other judges on their court. Scalia is taking on entire hemispheres. You gotta love a guy like that.

Scalia uses a substantial portion of his concurrence to attack the idea that innocent people are being executed left and right...

It should be noted at the outset that the dissent does not discuss a single case‚—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Scalia then makes a point that I've been trying to make for a long time...

...the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.

That is the system working. That's the whole idea of having multiple layers of protections for the accused. I'll leave the remainder of the opinion to Scalia himself. He goes on at great length, attacking the validity of a handful of studies cited by the dissenters.

This is where Court decisions get entertaining. There are already a lot of Scalia haters out there attacking him for this concurrence. Prof. Althouse points out the column in Slate by Dahlia Lithwick that goes after Scalia. She calls the concurrence "real wackiness" and a "scorched earth diatribe". In my post, I had a little fun with Scalia (the tail gunner remark and the attacking Europe thing). As the cliche goes, I kid because I love. I also kid because people like Lithwick don't. Scalia is trying to make his point in the most effective way possible. It is strongly worded and passionate. There is nothing wrong with that. Lithwick portrays it as being an unhinged rant. I think that's a bit unfair to the Justice. Unfortunately, most of the people who read her article won't read the actual opinion.

The funniest part to me is that Clinton's former acting Solicitor General Walter Dellinger has this response to Lithwick...

Whoa! Your critique of Justice Scalia's concurrence in the Kansas death-penalty case is pretty scorching. But to be fair to Scalia: Justice Souter's dissenting opinion starts this fight by raising potential death-penalty problems that are just not at issue before the court. Scalia then responds to these unnecessary jabs with massive verbal retaliation.

Souter drew first blood, legally speaking.

This post was entirely too long.

I've been plowing through Randall v Sorrell tonight and have a few initial thoughts. It is important to note the views of Chief Justice Roberts and Justice Alito. This is the first time that either of them have taken on the issue of campaign finance law on the Court. Neither one of them signed on to the Thomas concurrence, which stated his (and Scalia's) opinion that all contribution limits violate the First Amendment. As they stand, they feel that some limits are acceptable. I'm skeptical that they will be pulled to Thomas' view, but they may be persuaded to Kennedy's less extreme view.

Justice Breyer's plurality opinion settles nothing but this case. These cases will continue to come before the Court, where the all-knowing Nine will decide if the limits "go too far". Breyer is a huge believer in cost-benefit analysis, and you can see this balancing and weighing in full effect here. It drives me nuts because it seems so freaking ad hoc. Eh, that's Breyer. I think he sees his role on the Court as Captain Oversight... over everything.

Justice Alito's concurrence is short but incredibly important. He uses it to address the issue of stare decisis and the possibility of overruling Buckley v Valeo. Alito makes it clear that if you want him to overturn something, you better devote a decent chunk of your brief explaining why he should do it. I think this shows that Alito is serious about stare decisis. He wants a compelling reason to overturn precedent. Take note, all of you petitioners for next term.

Justice Stevens dusted off his favorite "money isn't speech" argument in his dissent. Eugene Volokh has a post explaining why that nifty catchphrase (that I heard way too many times in my Legislation class last semester) is pretty hollow...

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 - or even $200,000 -— for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response.

Everyone, including 86 year old Supreme Court Justices, should stop using this slogan.

My overall feeling after reading the case is best described as lukewarm. I'm glad that the Vermont laws were struck down. I wish that there was a more coherent opinion, maybe even a majority opinion instead of a plurality. I would prefer some bright line rules in this area, but I know that's asking for the moon. I'm interested to see where Roberts and Alito will draw their "too low" lines for contribution limits. The story of campaign finance law ends the same way again, to be continued...

Before I take on any of the weighty issues of today's opinions, I think I'll take a look at a John Roberts puff piece in USA Today. It's actually an interesting look at the Justices and their kids (or lack thereof). It's been over a century since a sitting Chief Justice had young children. The public was introduced to the Roberts kids along with their father. Who can forget Jack's dance party...


Here's the Chief remembering the incident...

"I'm standing there ... thinking about what I'm going to say," Roberts recalled in a speech this spring. "Jack is dancing in front of the spotlights. ... I'm looking at Jane and wondering, 'Why aren't you doing anything?' " Roberts said he agreed later with his wife's assessment that if she had made a move, Jack might have escalated and, Roberts said, "untied the president's shoes."

Aside from strolling down memory lane, the article makes an interesting point about the Chief and fatherhood...

The University of Chicago's Hutchinson says the experience of fatherhood is likely to bring a new dimension to Roberts as one of nine justices deciding the law of the land. Hutchinson says parenthood causes an individual to think about issues such as the quality of schools and Internet predators. "It offers a window into what we worry about in society," Hutchinson said.

It remains to be scene if this perspective will add anything to Roberts' jurisprudence.

Today, the Supreme Court decided to hear Massachusetts v EPA, a case that will decide whether the EPA must regulate carbon dioxide from cars as a pollutant under the Clean Air Act. This is going to be a major case for the next term, and I expect the politics of this issue to make it one of the most high profile cases.

The Bush Administration is refusing to regulate CO2 under the CAA. As the article states, Bush favors voluntary actions and development of new technologies to curtail such emissions. Unfortunately for him, a group of cities, states, and environmental groups do not feel the same way. They sued the government to force the EPA to regulate. Let the fun begin.

The Court really had no choice but to take this case. The lower court opinion, which did side with the Bush Administration, was just a mess...

One judge said the states and other plaintiffs had no standing because they had not proven harm. A second judge said even if the law gave the EPA authority to regulate carbon dioxide, the agency was not obligated to do so. A third judge, in the minority, said the EPA was violating the law by not regulating the chemical.

The Court tends to take cases when the circuits are split. If a three judge panel is this split, then the Justices will probably take a look at it. It helps the rest of us to know what the hell is going on with the law.

This part of the article made me smirk...

"It is encouraging that the high court feels this case needs to be reviewed," said Sen. Jim Jeffords of Vermont, who has campaigned in Congress to regulate carbon dioxide. "It is high time to stop relying on technicalities and finger pointing to avoid action on climate change."

Okay, Senator. If you want to avoid these technicalities and years of court battles, change the law. The CAA is not chiseled into stone. If you think that the CAA should cover carbon dioxide, bring it to the floor of the Senate. Put it to a vote. Save all of us this major headache.

Anyway, what will happen? Tough call. Is CO2 an "air pollutant" under the CAA? According to Section 302(g), an air pollutant is broadly defined as "any physical, chemical, biological, radioactive... substance or matter which is emitted into or otherwise enters the ambient air." Like I said, it is a broad definition. The government can counter, saying that CO2 is a colorless and odorless gas that does not contaminate or defile things. It also makes life possible on earth. That, in turn, can be countered by saying that CO2, like many other chemicals, can become harmful in excessive amounts. I think that this case will come down to the Justices' views on whether CO2 falls under this definition. That will probably be colored heavily by their personal views about the science of this claim. No matter what happens, it's going to be huge.

The Supreme Court has made my night very, very busy. As predicted, the Court handed down five opinions today. The Vermont campaign finance case, Randall v Sorrell, was one of them. I have been eagerly awaiting this one. I didn't expect the Court to give me a nice, crisp opinion. Campaign finance cases are always a bit of a mess. But this one... this one is going to take a machete to hack through. Take a look at the caption...

Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., joined, and in which Alito, J., joined as to all but Parts II-B-–1 and II-–B-–2. Alito, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Stevens, J., joined as to Parts II and III.

I did manage to check the news reports about the cases today at work, so I know that the law was struck down 6-3.

I dislike these campaign contribution laws, because I think that they are infringements on the First Amendment. I also take perverse pleasure in the fact that this was a campaign reform law trumpeted by then-Governor Howard Dean. Apparently, Dean was very upset when he heard that the Court was hearing this case...


Has anyone seen the kitten since the decision came down?

Anyway, I'm also looking forward to reading the 5-4 Kansas v Marsh decision. This is one of the famous (or infamous) "Alito makes the difference" cases. His vote and the Chief's vote to uphold the Kansas death penalty law should bring lots of comfort to the lethal injection enthusiasts out there.

The weirdest line up today was in US v Gonzales-Lopez, a 5-4 Sixth Amendment decision where Justice Scalia joined the liberals. The dissent was written by Justice Alito. I guess this is yet another nail in the Scalito coffin, huh? Prof. Althouse sums it up nicely, "Let's say it again: Alito is not Scalito."

I was wrong about the Court's schedule. The next day for opinions will be Wednesday, not Thursday. It is possible that there will be opinions on Thursday, but the Chief might be trying to finish off the term as soon as possible. Luckily, I have the day off on Wednesday, so I won't be so behind in my Con Law.

EDIT: It looks like the Chief will announce when the term will end on Wednesday, so we will probably have two more days of opinions.

On Friday, the Washington Legal Foundation had its Supreme Court media briefing to discuss what happened on the Court during this term. SCOTUS has some great coverage here. Giving us the rundown are Supreme Court litigators Tom Goldstein, Andrew Pincus, and Miguel Estrada. If you have an hour and fifteen minutes to kill, you can watch the archived video here.

The SCOTUS post has a list of the highlights from the speeches. There are two comments that I would like to highlight. First, the issue of appeals court reversal...

The Ninth Circuit has been reversed more times (15) than the First, Third, Fourth, Fifth, Seventh, Eighth, Tenth, and D.C. Circuits combined. But, as Goldstein noted, the rate of Ninth Circuit reversals (83% or 15/18) is only slightly above the high court's overall average (75%). Conspiracy theories notwithstanding, Goldstein surmised that the high court might just be trying to tell the Ninth (and, to a lesser extent, the Sixth) that "it would be good if they followed the law."

Everyone (including me) loves to beat up on the Ninth. While their reversal average is not that much greater than the other circuits, the sheer number of reversals tends to make everyone lose sight of that. When you hear case after case from the Ninth being reversed, it's hard to remove the thought from your head that they are totally out there.

The second issue I'd like to point out is the authorship of forthcoming opinions...

Based on the breakdown opinion authorship, Goldstein predicted, and Estrada agreed, that Stevens will write Hamdan.

They are probably correct. Roberts had to recuse himself in that case, making Stevens the senior Justice and therefore the one who assigns the opinion. As Goldstein points out, Stevens has not written an opinion from the March sitting of the Court yet. There is no reason for him to not take one of the biggest cases of the term. It will probably be 5-3, with Scalia, Thomas, and Alito dissenting. We'll know if this is true by the end of the week.

Tonight's episode of America and the Courts features the memorial service for the late Chief Justice William Rehnquist. There were many speakers, including Rehnquist's son and former clerks. Even though it was a memorial service, it wasn't totally depressing. There were some funny moments and some laughs. Rehnquist would've wanted it that way. Here are a few of the Justices having a good time...


None of the speeches are too long, and they are full of great Rehnquist stories. It's worth watching.

It's usually a pretty big deal when a sitting Supreme Court Justice writes a book. Justice Stephen Breyer's Active Liberty is no exception. The book has gotten a lot of attention. I have yet to read it, but it is on my Summer reading list. Judge Michael McConnell has read it, and he's got a few things to say about it.


McConnell criticizes Breyer's simplification of Constitutional history, specifically the events surrounding the drafting of the Constitution. Breyer doesn't seem to focus on the Federalist and Anti-Federalist debates. McConnell also thinks it is interesting that Breyer seems to ally himself with the Anti-Federalist point of view in the book. McConnell says that there is nothing wrong with that, and there's not. The odd part is that Breyer's record on the bench does not go along with that. The Anti-Federalists and other active liberty folks like Thomas Jefferson believed that government power should be in the hands of locals or the states. McConnell points out the following...

Justice Breyer, by contrast, regularly votes with the wing of the Supreme Court that rejects constitutional claims for the autonomy and authority of state and local governments and supports a broader reading of federal power.

Breyer was a dissenter in the federalism decisions of the Rehnquist Court. He goes on to attack the federalism decisions as being anti-active liberty. Of course, that all depends on what the local and state governments do with their powers. McConnell points out that Breyer even concedes that the federalism cases have encouraged citizen participation in government. Isn't that active liberty?


McConnell's review continues on for many pages. He examines Justice Breyer's actual active liberty jurisprudence and its components. There are some notable items missing from Justice Breyer's discussion. Things like stare decisis and the citation of foreign law get little or no examination in the book. McConnell's review seems very comprehensive. I'm still going to read Breyer's book and make up my own mind. I have a feeling that I'll have many of the same criticisms that Judge McConnell has. Even so, I'm glad that Justice Breyer wrote the book. I hope more Justices follow his lead.

I have yet to read the opinions handed down by the Supreme Court yesterday. Work and a kickball game (we lost) kept me away from reading these. How Appealing has the links here, which I will slowly work my way through tonight and tomorrow hopefully. I'm very interested to read these. There are a few interesting splits between the Justices, including a few concurrences.

Since those five opinions were delivered, ten cases remain on the Court's docket. SCOTUS has the list...

04-1170 -- Kansas v. Marsh (constitutionality of a death penalty law that requires death if plus and minor factors are in balance) (re-argued case)
04-1528 (and two companion cases) -- Randall v. Sorrell (constitutionality of state ceilings on campaign expenditures)
04-1739 -- Beard v. Banks (right of dangerous prison inmates to have access to newspapers, magazines and photographs)
04-10566 (and a companion case) -- Sanchez-Llamas v. Oregon (state court duty to obey World Court ruling on arrested foreign nationals' access to consular officer)
05-18 -- Arlington School District v. Murphy (parents' right to recover fees for expert witness in disabled child education case)
05-83 -- Washington v. Recuenco (harmless error analysis for error in sentence enhancement)
05-184 -- Hamdan v. Rumsfeld (Supreme Court power to decide constitutionality of war-on-terrorism war crimes tribunals, and the merits of that constitutional question)
05-204 (and three companion cases) -- League of United Latin American Citizens v. Perry (validity of Texas congressional redistricting plan)
05-352 -- U.S. v. Gonzalez-Lopez (remedy for denial of access to counsel of choice in a criminal case)
05-5966 -- Clark v. Arizona (right to make an insanity defense to disprove criminal intent)

Hamdan will be the case that gets the biggest press coverage, since it is a War on Terror case. I'm predicting a big loss for the government in this one, especially since the Chief had to recuse himself (he ruled on the case when it was before the DC Circuit). I'm also interested to see what happens with the Texas redistricting cases and the Vermont campaign finance cases. I tackled the Texas cases in these two posts. I took a look at the Vermont case here. These are a little too close for me to call, but I can't wait to see what the Court does with them.

The Court is scheduled to finish the term at the end of next week. I'm guessing that there will be another five decisions on Monday and five more on Thursday. They can take more time, but I have a feeling that the Chief wants to end his first term on time. Rehnquist would have wanted it that way.

There is also the possibility that there may be a retirement this year. If it did happen, it would happen sometime shortly after the term ended. The Justices like to give the president and the Senate enough time to nominate and confirm a replacement before the Court returns the first Monday in October. My fingers are crossed...

According to Matt Drudge, President Bush has issued an executive order strongly supporting the rights of property owners. The policy is as follows...

It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

If you are wondering why an order like this would be issued today, just ask Suzette Kelo. Many thanks to Howard Bashman for refreshing my memory that today is the one year anniversary of the Supreme Court handing down the Kelo decision.

EDIT: Ilya Somin at Volokh thinks that this order this a whole lot of nothing. The problem lies in the language of the order...

Read carefully, the order does not in fact bar condemnations that transfer property to other private parties for economic development. Instead, it permits them to continue so long as they are "for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

If you've studied land use law, zoning, eminent domain, and all of those other fun things, you know that "general welfare" and "public purpose" language creates a hole big enough for a truck to drive through. The courts will almost always defer to the legislature's determination of what generally benefits the public. This executive order isn't really a major change in policy, and it certainly doesn't kill Kelo. I don't know if the president could even make that kind of policy change via executive order. I guess the only thing it really does is commemorate Kelo turning one year old.

Today is Justice Clarence Thomas' 58th birthday. I wish him many more and many more years on the Court. George HW Bush really got it right when he picked Thomas. He joined the Court at such a young age that he's got a chance to spend 40 years on the Court. Let's hope so.

The line item veto legislation of Wisconsin Congressman Paul Ryan is scheduled for a vote Thursday. Ryan describes this as one of the "tools we need to root out unnecessary spending." This isn't the first time that federal line item veto legislation has been discussed. The earlier line item veto was struck down as unconstitutional by the Supreme Court in 1998 in Clinton v City of New York. In this interview, Ryan explains why his bill will survive the judicial review of the Court...

I'm glad you brought up the Supreme Court, because I agree with its 1998 ruling striking down the earlier version of the line-item veto. That version didn't preserve Congress's constitutional role in the legislative process. In contrast, our line-item legislation (H.R. 4890) preserves Congress' power of the purse by requiring an up-or-down vote in both the House and Senate under an expedited process before a president's rescission request becomes law. This is fundamentally different than the earlier line-item veto, and it ensures Congress has the final say on any proposed spending cancellations. In fact, Charles Cooper, an attorney who argued against the earlier line-item veto before the Supreme Court has testified in Congress three times that H.R. 4890 is constitutional.

Simply put, our proposal would allow the president to single out wasteful spending items or narrow, special-interest tax breaks (tax pork) in legislation he signs, put a temporary hold on that spending and send a message to Congress asking for the item or items to be rescinded. Both houses of Congress would have to consider this request on an expedited timeframe and hold an up-or-down vote, without amendments, within 14 legislative days.

Is this going to be enough? It's hard to say, but Ryan has some supporters in the legal world. In testimony before the House Committee on the Budget, law professors Viet Dinh and Nathan Sales stated that Ryan's version satisfies the Bicameralism and Presentment Clause of the Constitution, thus avoiding the problems found in the earlier version that was struck down by the Court.

I'm not even going to fathom a guess about what the Court will do with this. The previous version was not struck down on an easy liberal-conservative split. The six Justices in the majority (who struck down the veto) were Stevens, Rehnquist, Kennedy, Souter, Thomas, and Ginsburg. The dissenters were O'Connor, Scalia, and Breyer. But before it gets to One First Street, it's got to get through both Houses of Congress and through the lower courts. We might be waiting for a while.

The eminent domain numbers are way up. No, I'm not talking about a surge in popularity of this blog. I'm talking about post-Kelo uses of eminent domain to take property for private development. The Washington Times has the story here. Check out the numbers...

In the year since the Kelo decision, nearly 6,000 properties nationwide have been threatened or taken under that precedent, more than half the number that had been seized over a previous five-year period, said a report released yesterday by the Institute for Justice.

The Institute of Justice is the libertarian public interest law firm that fought on behalf of Suzette Kelo in her battle to keep her home. They rock.

Exactly what sort of property are municipal governments trying to take and give? Well, these properties...

"The vast majority ... involved the removal of lower-income residents and smaller businesses to attract wealthier people or more prominent businesses," Ms. Berliner wrote.
"Of the 117 projects, nearly half involved taking low-income houses, apartments and mobile home parks to construct upscale condominiums or other upscale residences and new retail development. Cities across America are working hard to drive out the working poor," she said.
She said the city of Baltimore is "on an eminent domain spree" because it intends to seize 75 properties for private development in this year alone

It should be noted that the Kelo backlash came from both property rights wackos (like me) but also from poor, inner city community leaders.

Kelo was not all bad news. It caused many legislatures to enact controls over how and when eminent domain can be used. Wisconsin was one of the states that did just that. It's nice to see that our state government can do something right for once.

Senate Judiciary Committee Chairman Arlen Specter is taking the Supreme Court Justices to lunch. One by one, Specter is treating each of The Nine to lunch in the Senate dining room. What's on the menu? These topics...

They have discussed the administration of the courts, their confirmation hearings and one of his pet issues: bringing television cameras into the court chamber.

He has also grilled them about instances when the court has struck down laws by questioning what it called Congress's "method of reasoning." It was a concern Specter raised during the Supreme Court confirmation hearings he presided over months ago.

I have a feeling that the Justices were fairly critical of the confirmation hearings. At least I hope that they were. After watching the days of idiocy that Roberts and Alito had to sit through, I would hope that their colleagues spoke up.

Concerning the cameras... good luck, Senator. I just don't see it happening, not while Justice David "Over My Dead Body" Souter is still on the Court. The last thing he wants to be is a TV star. Justice Thomas also has concerns about the cameras, and I'd think that the rest of the Justices wouldn't push for cameras unless everyone was on board with the idea.

Specter is the kind of Senator that doesn't really believe that Congress has limited powers. He's not big on Commerce Clause restrictions or the federalism revival of the Rehnquist Court. When he started in on this topic during the confirmation hearings, I felt my eyes rolling back into my head. This is an issue that Specter just has wrong.

As a Justice Thomas fan, this part of the article jumped out at me...

Sen. Chris Dodd (D-Conn.), sitting a few tables away, joked that he was offended that Specter and Thomas didn't stop to greet him but then noted that he voted against Thomas's nomination.

Thomas still holds a serious grudge against many of the Senators for how he was treated during his confirmation hearings. Either he's still mad at Dodd, or he just can't stand looking at those goofy eyebrows.

The newest Supreme Court Justice and my favorite Yalie was in attendance at the annual dinner of the Yale Law School Association last night. The entire night was "off the record", so the post on Wonkette doesn't have much information about what anyone said at the event. However, there are some great pictures. Other persons of note in attendance were Senator Arlen Specter, Chief Counsel of the Senate Judiciary Committee Michael O'Neill, newly confirmed Judge Brett Kavanaugh, and former O'Connor clerk/current Alito clerk/brother of The Conspiracy Sasha Volokh. Sounds like quite a party.

I am really out of it lately. I had no idea that Solicitor General (and Cedarburg native) Paul Clement gave the commencement address at Marquette University Law School. You'd think that I would know about these major events happening in my own backyard, but I guess I didn't get the memo. His remarks are here. Clement was introduced by Dean Joseph Kearney who, like Clement, is a member of an elite group: former Scalia clerks.

Over at the University of Chicago Law Faculty blog, Judge (and Professor) Richard Posner and Professor Geof Stone are having a debate on the topic of "Civil Liberties and the War Against Terrorism." I'm eager to see what these two have to say about the topic, even if I already have a pretty good idea what both of them will say. Glenn Reynolds, Mr. Instapundit and a law prof himself, weighs in with this comment...

Not so much nuanced discussants like Posner and Stone, but press coverage and political rhetoric generally, tend to suggest that there's a "trade-off" between national security and freedom. But that's misleading. You don't buy national security by getting rid of freedom; you may, in fact, wind up less secure. (This is a point I was making back on September 13, 2001). Nor is it necessarily the case that improvements in national security burden freedom. They may, in fact, have no impact at all, or even result in more freedom in some ways. It just depends. Programs have to be judged on their merits.

I agree. Unfortunately, politics has taken away much of the rational discussion about this topic.

I have been neglecting my beer review duties lately. Mostly, I've been sticking to old favorites. Tonight's selection is the Cherry Wheat from Samuel Adams. I'm becoming a pretty big Sam Adams fan. They have a surprisingly diverse line of beers. After my experience with the New Glarus Cherry Stout, I am a little wary of cherry beers. I certainly enjoy cherry flavor, just not when it is combined with rotten wood flavor. It has a hazy orange color that is darker than most wheat beers. I am guessing that has to do with the cherry addition. You can really smell the cherries. It reminds me a bit of a popsicle. The flavor is fairly interesting. Based on the aroma, I expected to be hit with nothing but overpowering cherry flavor. That's not the case. It tastes like a sweet wheat beer with hints of cherry. The cherry is there, definitely. But it is never too overpowering. It is sweet, so I doubt I could drink this consistently over the course of an evening. However, one or two would be great. This is a very refreshing, summer night kind of beer.

The recent Hudson decision has sparked a bit of discussion about the Exclusionary Rule and its possible demise. Akhil Reed Amar, one of the top legal scholars in the nation, has an interesting article about the case in Slate. While the topic is a fairly complex area of 4th Amendment doctrine, Amar presents it in a very readable format. It's well worth a read.

We no longer have to wait for the Rapanos opinion. Justice Scalia wrote for the plurality of himself, Chief Justice Roberts, Justice Thomas, and Justice Alito. Justice Kennedy concurred in judgment but supplied his own take on the case. Justice Stevens offered up a dissent for the liberals, and Justice Breyer added one of his own for good measure. Oh yeah and the Chief had a concurring opinion too. What a lovely legal mess.

The fractured nature of the ruling isn't much help for the lower courts. The consolidated cases here are kicked back down to the lower courts, but everyone else has to assume that Kennedy's concurrence will be "the law". The Chief's concurrence expressed his disappointment about the results of the case. He said, "lower courts and regulated entities will now have to feel their way on a case-by-case basis." This isn't really a surprising result. Cases that involve huge statutes like the CWA rarely end with a crisp, clear opinion. However, this case showed us a lot. Roberts and Alito both joined Scalia's opinion. I feel fairly confident to call this a solid conservative voting block (fairly confident... because I still have some doubts).

Where was the "drama"? Well, the drama was at the Court itself. Majority opinions are announced from the bench. Today, both Justice Kennedy and Justice Stevens decided that they would also read their opinions from the bench. In total, almost half an hour was spent by the Justices reading opinions. I guess that there were some very strong feelings about this one. No wonder it took them this long to announce this case...

EDIT: I found this video on You Tube...

This is John Rapanos' side of the story. Obviously, it is biased towards his case (as am I). If there had been a video of the government's side of the case, I would've posted it too. Unfortunately, I don't think the Army Corps of Engineers is down with You Tube yet.

Monday mornings are anything but slow at the Supreme Court. To start things off, the Justices decided to accept another abortion case for the following term. It's been a while since the Court has taken up the issue, so two cases for next October's term are a sign that something interesting may happen. Both of the cases deal with the Partial Birth Abortion Act of 2003. That law was struck down by appeals courts in both San Francisco and St. Louis. A similar PBA ban was struck down by the Supreme Court in a 5-4 decision in 2000's Stenberg v Carhart.

The CNN article has a nice big picture of Justice Sam Alito included with the text. All eyes seem to be on him, but I am starting to wonder about that. Doing the rundown of the Justices, 7 of the 9 members of the Court were on the Court in 2000 for Stenberg. Justices Stevens, Souter, Ginsburg, and Breyer voted to strike down the ban. Justices Scalia, Kennedy, and Thomas voted to uphold the ban (and in very strongly worded dissenting opinions). We don't know what Justice Alito will do, but we also don't know what Chief Justice Roberts will do.

Many people, including myself, have assumed that Roberts will be a lock to vote to uphold the ban. His mentor Chief Justice Rehnquist did. However, he may defer to the precedent of Stenberg. I've been thinking about Prof. Cass Sunstein's analysis of Roberts' previous opinions as a judge. Sunstein stated that Roberts is a judicial minimalist who strongly believes in precedent. On the other hand, those were appeals court opinions. Being on the Supreme Court is very different. Maybe Roberts was just waiting to get on the Court to "do some damage". Either way, I think that Roberts' vote should be watched with as much interest as Alito's.

There is something about the Supreme Court and baseball. I just don't get it. Justice Stevens is a well-known Chicago Cubs fanatic. Chief Justice Roberts used the umpire analogy extensively during his confirmation hearings. Justice Alito was spotted at a Nationals game recently. Alito may be looking to take the mantle of Biggest Supreme Court Baseball fan from Stevens. Stevens threw out the first pitch at a Cubs game not long ago. Today, Alito has matched him in that regard...


Justice Alito did attend the Phillies Phantasy Camp in the 90's, so I'm betting it was a pretty good pitch.

I am way, way behind on my updates, but I hope to catch up. This article caught my eye recently. Justice Antonin Scalia is one of the most visible members of the Supreme Court. Here's what the article has to say...

Scalia, 70, has come to personify a national debate over the proper role of judges. In his opinions, he advocates -- often with sharp rhetoric -- limiting abortion rights and affirmative action. Outside the court, he's often at the center of dustups, whether it's tangling with scholars at a Swiss university or hunting ducks with the vice president.

I'm not sure I agree with this. It's possible that the "national debate" that the article is discussing differs from the national debate that I think we are having/should be having about judges. Perhaps the writer thinks that the debate is simpler, a conservative-liberal debate about the Constitution. I think that Justice Scalia has become the media focus on the Supreme Court, but it's not because of any grand philosophical debate. He's in the spotlight because he's quotable, provocative, and direct. In other words, he's a good news story.

This is a often made and true point...

"He's unyielding, he's rigid," said Mary Cheh, a constitutional law professor at George Washington University in Washington. "He likes to be pugnacious and provocative in setting out his views. It's hardly the formula for crafting coalitions."

Justice Scalia isn't a Court politician. He isn't the behind the scenes vote collector that someone like Justice William Brennan was. That does hurt Scalia's ability to turn his dissenting opinions into majority opinions. I think it also guaranteed that he would not be Chief Justice (though I doubt he really wanted the job anyway). However, Scalia's style is not totally negative...

Even if he hasn't won full-fledged converts, Scalia has reshaped the way attorneys and judges think about the law, court observers say. That's especially true with cases that involve interpreting federal law, where lawyers now routinely begin arguments by discussing the words and even the punctuation used by Congress.

"He's one of those very few justices who come along in a generation who really change the law," said Christopher Landau, a former Scalia clerk who now practices at Kirkland & Ellis in Washington. "He doesn't always win, but now people are arguing things on his terms."

The real legacy of Antonin Scalia may not be written by the man himself. It may be written by the next generation of judges and Justices, the people influenced by Scalia's views. Just from what I have witnessed at my school, I know that there are a ton of Scalia disciples out there. These are the people who have a dog eared copy of A Matter of Interpretation and read the Casey dissent for fun. They are out there and they will do a lot to form the future of the law.

As I said, that "may" be what happens. Scalia still has a few years left in him on the Court. He wrote the majority in this week's Hudson decision. If there was one more solid conservative vote (not Kennedy's squishy vote), Scalia could be writing for the majority much more often.

It's way too nice out today. I know that I said I would re-do my Hudson post from yesterday, but I really have no desire to do it. The short version is this: the decision was right, the Exclusionary Rule has been a failure as a policy to prevent police misconduct anyway, and Mapp could be overruled and I wouldn't shed a tear. Okay, now for a better topic.

I'm a week late on this, but local newspaper MKE gave the Bartender of the Week award to one of my favorite bartenders. Mike Romans is the owner and operator of Romans' Pub, a great microbrew bar in the picturesque Bay View area of the South Side of Milwaukee (my home). It's a cool local bar with great atmosphere and great beer. There are almost 30 microbrews and imports on tap. In addition to the great beer, you also get to be served by one of the most entertaining bartenders around. Here's a taste of Mike's humor...

This is a place for beer drinkers who don't mess around, although the Miller and Bud people will find their needs fulfilled if they insist upon it - so long as they can stand their High Life being referred to as "ball-wash."

Miller and Bud products are not on tap at Romans'. Order one and you're getting it in a bottle and probably made fun of by half the people in the bar. This is the kind of bar where you can expand your beer horizons. Try new things. It's fun.

Romans' has a website here. It's not flashy, but it doesn't have to be. Mike keeps it updated religiously, so you always know exactly what's going to be on tap that night. If you're going down there tonight, I'd recommend the Great Lakes Dortmunder Lager. Order one, sit outside on the patio, and enjoy the evening.

A massive computer failure at work gave me the day off today. Unfortunately, a massive computer failure in my laptop destroyed the posts I wrote about today's Supreme Court decisions. If you are interested in the opinion links, How Appealing has them. I will reformulate my Hudson post sometime tomorrow, because I feel that the decision is important and correct.

I am altering the clock on this post to park it on the Thursday timeslot. Technically, it is Friday right now. Very Friday, actually. But after my laptop freaked out and nuked my two posts that I spent quite a bit of time on, I walked away from the computer. I decided to kill the rest of the day outdoors instead of retyping my screed against the Exclusionary Rule. Hopefully, tomorrow will be full of law blogging goodness (and a beer review possibly)...

The Supreme Court Bar will meet on Thursday in order to honor the work of late Chief Justice William Rehnquist. Tony Mauro has the story...

But even as Rehnquist's admirers prepare to praise him, his legacy is unsettled. After a respectful mourning period, his opinions and those of the Rehnquist Court are taking a beating, with even Republicans and conservative academics critiquing his record in ways that could pressure his successor and former law clerk, John Roberts Jr., to complete what he left undone.

I'm not shocked that liberals would be critical of the Rehnquist Court. I understand the frustration from conservatives too. But let's look at things realistically. The Rehnquist Court was miles better than the Warren and Burger Courts. Rehnquist's Court also had a very slim conservative majority, so we were pretty lucky with what we got from them. I also think that it's possible that Chief Justice Roberts will continue the work of his former boss. As a Supreme Court litigator, Roberts knows how frustrating these big holes in Constitutional law can be. I think that he's looking to really get some work done and bring a little clarity to the legal situation.



Mauro also has this interesting information...

Meanwhile, new information has emerged about Rehnquist: His long-private 1948 master's thesis has been published, a former aide has confirmed that Rehnquist once planned to retire in 1991, and the originator of his early nickname, the "Lone Dissenter," has stepped forward.

Wow, imagine if that happened. Who would George HW Bush have named Chief? The very thought both intrigues and scares the living crap out of me. Later in the article, it states that Rehnquist had no confidence that Bush could win re-election. He called that one.

Mauro has quotes from notable people like Judge J. Harvie Wilkinson, Godfather of Property Rights Richard Epstein, Professor Douglas Kmiec, and others. I'm sure that we will be reading law review articles and hearing speeches about the Rehnquist Court for many years to come. I think Prof. Kmiec has the situation pegged nicely with this quote: "He could have spent his life as a lone ranger, or he could bring Tonto along with him, as he did." Rehnquist spent his first years on the Court frequently as the lone dissenter in many cases. Unfortunately, one vote dissents do not make the law. Rehnquist realized that he sometimes had to temper his views to get those four other votes he needed. That's the reality of the Court; the magic number is five. If he didn't get that number, Rehnquist would end up with Justice Stevens deciding what the law is, and that would be bad.

As the clock ticked past midnight, it officially became Flag Day. In honor of this holiday, I bring you a two part post. First, here is an interesting video of Rick Monday of the Chicago Cubs in 1976.

Two weekend revolutionaries jumped onto the field during a Dodger game to burn a flag. Get a hobby, fellas. Monday ran at them, grabbed the flag before the match ignited it, and the hippies were escorted from the field. Good, clean family fun for all.

Second, it appears that Congress is ready to re-re-re-visit the Flag Burning Amendment. The support for the amendment seems to be strong, and it still maintains a majority support among the American people according to Gallup...

The divisions on the issue are not entirely partisan. Activists count 14 Democrats among the 66 proponents, including Sen. Dianne Feinstein of California. Of 34 senators believed to oppose the amendment, three are Republicans, including Majority Whip Mitch McConnell, R-Ky.

Meanwhile, the Gallup organization pegged national support for a flag amendment at 71 percent in 1989 but found support had slipped to 63 percent by 1999, and to 55 percent by last summer.

The Supreme Court has ruled on whether flag burning is protected speech. In a 5-4 decision, the Justices said that it was. This amendment would let Congress enact laws that prohibit desecration of the flag.

I've talked about flag burning on here before, but I think that the pending amendment demands another look at the issue. I think Rick Monday was right to stop those two morons from burning the flag. However, I think he was right because they had no right to jump out onto the field, interrupt the game, and potentially damage the outfield. Here I am, quoting myself on the issue...

Personally, I think that burning the American flag is an abhorrent, disgusting act usually done by attention whores who are willing to do anything to get a TV camera focused on themselves. Even so, I think that the amendment is a bad idea.

One problem is enforcement. What exactly qualifies as "an American flag"? Is it just the standard size flag or all sizes? Does it have to be flag-like in appearance or can it be in some other form, like a picture of the flag on a poster or an image of the flag on a shirt? What if a similar flag that looks almost exactly like the American flag is burned? Does that count too? These are court battles waiting to happen, and will probably end up with a more scatter brained set of rulings than our Free Exercise and Establishment Clause jurisprudence.

Another problem is the free speech issue. I think that free speech and expression are important parts of the foundation of this country. As I have said, I think flag burning is disgusting. That's also why I like the fact that it's legal. If you burn the American flag, you are sending a clear message to me about yourself. I will make my personal judgment about you accordingly. I would rather have that information (knowing who the flag burning types are) than not know. I believe that you have the freedom to burn the flag, and I also have the freedom to think that you are a scumbag for doing it.

Part of the First Amendment is putting up with speech that you don't like. I think that the speech/conduct/symbolic speech line is very blurry at times, especially on this issue. I'm angered when I see someone burning a flag, but that doesn't mean they shouldn't be allowed to do it. I'd still say no to the amendment if I had a say in the matter.

Writing in the Denver Post, John Aloysius Farrell has a column about the changes in the Supreme Court over the past two years. He states...

And last week the Supreme Court sent a jolt through American educational and legal circles by announcing that it will consider the issue [use race as a criterion when assigning students to particular schools] in its upcoming term.

The arrival of President Bush's two appointees - Chief Justice John Roberts and Justice Samuel Alito - appears to have altered the dynamic in the marble temple at One First St.

Since Roberts and Alito arrived, the court has also announced that it will weigh the constitutionality of bans on partial-birth abortion.

Does anyone want to argue that elections don't make a difference?

One cannot deny that the retirement of Justice Sandra Day O'Connor has changed the Court. I think that the Court as a whole has been nudged to the Right, but not by much. However, the nudge Right may be enough on certain issues to make a dramatic difference. I'm not convinced that the school case is going to be the rematch from Grutter that many are predicting. The particulars of the school race programs are not the same as the Michigan affirmative action cases. I'm going to wait to see the briefs until I make a call on that case. There just isn't a lot to go on right now.

The partial birth abortion case is another matter. I think that it is very likely that the PBA bans will be upheld by the Court this time. When the Court examined this in Stenberg v Carhart, it ended in a tight 5-4 decision. Notably, Justice O'Connor joined the 4 liberals to make the majority. Justice Kennedy, the current swing vote on the abortion issue, wrote a blistering (and what I would call angry and incredulous) dissent. He could not believe that the majority would strike down the PBA bans. If Chief Justice Roberts and Justice Alito side with Kennedy, Scalia, and Thomas, then the PBA bans will be upheld. Then things will get really interesting...

As seen on Volokh, the San Francisco gun ban has been struck down by a state trial court. Measure H, as it was known, was placed on the ballot last November and passed with 58% of the vote. The ban would have stopped handgun sales and possession by residents in the city of San Francisco.

The decision, linked here, was not much of a surprise. In 1982, the year of my glorious birth, a California appeals court struck down a similar San Francisco gun ban. The problem with the ban, aside from its stupidity, is that it conflicts with a CA state law. I guess the view is that the regulation of guns is seen as an issue for the state governments, so municipalities cannot regulate here. Strangely enough, CA courts have allowed some more limited gun bans, like West Hollywood's ban on Saturday Night Specials. It's all a matter of degree, I suppose.

Just as a quick federalism note, this is not a 2nd Amendment case. This is a state case decided under CA state laws. The Bill of Rights, which was originally only applied to the federal government, has been applied to the states. The idea is called incorporation. However, the entire Bill of Rights has not been incorporated yet. If my memory serves me, the 2nd Amendment, the 3rd Amendment, and the Grand Jury Clause of the 5th Amendment have yet to be explicitly incorporated against the states. Never expect the law to make a shred of sense.

There hasn't really been a big 2nd Amendment case before the Court in decades. It's possible that one will work its way up though. There is a similar gun ban case in the DC Circuit right now (it's the Washington DC gun ban, that's why it's in federal court). The piecemeal process of incorporation is really odd. I know that there is not much outcry to get the 3rd Amendment incorporated, but still. It's the principle of the thing. I realize that the 2nd Amendment is a hot button issue to some people because they don't like those icky guns. However, the Court shouldn't be worried about that. If the Bill of Rights is to be applied to the states via the 14th Amendment, apply the whole thing.

Jonathan Adler and I are two of many people waiting for the opinion in Rapanos v United States and Carabell v U.S. Army Corps of Engineers. These cases, jointly argued, challenge the federal government's regulatory power under the Clean Water Act. Unfortunately, the opinion did not come down today, but it's possible that it will be issued as soon as Thursday.

Prof. Adler sums up the situation...

The CWA applies to all‚ "navigable waters of the United States" (which the Act defines simply as "waters of the United States"”). As interpreted in prior cases, this jurisdiction extends to cover wetlands adjacent to navigable waterways (but does not reach isolated, intrastate waters). At issue in each case is how far the CWA's jurisdiction extends beyond navigable waters and adjacent wetlands, specifically whether the Act applies to wetlands adjacent or hydrologically connected to tributaries of navigable waters. In one case, the wetlands are adjacent to a ditch that drains into a creek that in turn drains into a tributary that is connected to a navigable waterway many miles away. In the other, the wetland is directly adjacent to a tributary, but it is hydrologically separated by a man-made berm.

Statutes like the CWA are full of fun terms like "navigable waters". When asked during environmental law what I thought the term should mean, I said that it seemed like water that you could traverse with a kayak. That's my stunning legal mind at work. Of course, that isn't what it meant (and I knew that because I did read for class that day). The term, as pointed out by Alder, is defined in the statutue. The definition isn't exactly helpful though. These cases are trying to determine exactly how much of a hydrological nexus is needed for the feds to step in and regulate.

The positions of the opposing sides are as follows...

The federal government argues that jurisdiction under the CWA extends to all wetlands with any hydrological connection to navigable waters, no matter how small or insignificant. "One drop"” is enough, according to Solicitor General Paul Clement at oral argument. Rapanos'’ attorneys at the Pacific Legal Foundation make an equally ambitious argument, that the CWA does not apply past those wetlands truly adjacent to navigable waters‚– and that if it did it would press against the limits of the federal government'’s Commerce Clause power.

As Adler states, expect something in the middle from the final opinion. It's going to come down to whom on the Court holds that crucial fifth vote and which side that Justice is more likely to favor.

I think that the most interesting part of this case won't necessarily be the opinion itself (though it might be). The votes and possible opinions of Chief Justice Roberts and Justice Alito will be what I am watching for in this case. This case may give us an important preview of the new Justices' views on federal regulatory power, which may tell us an awful lot about an awful lot.

From the SCOTUS blog, here is a list of the cases and issues that the Supreme Court has yet to decide for this term...

04-607 -- Laboratory Corp. v. Metabolite Laboratories (patentability of a naturally occuring process)
04-1034 (and a companion case) -- Rapanos v. U.S. (Clean Water Act application to wetlands)
04-1170 -- Kansas v. Marsh (constitutionality of a death penalty law that requires death if plus and minor factors are in balance) (re-argued case)
04-1360 - Hudson v. Michigan (remedy for violation of knock-and-announce rule for police entering a home) (re-argued case)
04-1376 -- Fernandez-Vargas v. Gonzales (right of deported alien to return to U.S.)
04-1528 (and two companion cases) -- Randall v. Sorrell (constitutionality of state ceilings on campaign expenditures)
04-1739 -- Beard v. Banks (right of dangerous prison inmates to have access to newspapers, magazines and photographs)
04-8990 -- House v. Bell (scope of right to present new evidence to show innocence of crime)
04-9728 -- Samson v. California (authority to search parolee without a warrant or suspicion)
04-10566 (and a companion case) -- Sanchez-Llamas v. Oregon (state court duty to obey World Court ruling on arrested foreign nationals' access to consular officer)
05-18 -- Arlington School District v. Murphy (parents' right to recover fees for expert witness in disabled child education case)
05-83 -- Washington v. Recuenco (harmless error analysis for error in sentence enhancement)
05-128 -- Howard Delivery v. Zurich American Insurance (priority in bankruptcy of claim for workmen's compensation premiums)
05-184 -- Hamdan v. Rumsfeld (Supreme Court power to decide constitutionality of war-on-terrorism war crimes tribunals, and the merits of that constitutional question)
05-200 -- Empire Healthchoice v. McVeigh (private contractor right to enforce benefits for federal government employees)
05-204 (and three companion cases) -- League of United Latin American Citizens v. Perry (validity of Texas congressional redistricting plan)
05-259 -- Burlington Northern Railway v. White (proof needed to show retaliation claim under Title VII job bias law)
05-352 -- U.S. v. Gonzalez-Lopez (remedy for denial of access to counsel of choice in a criminal case)
05-409 -- Kircher v. Putnam Funds Trust (federal appeals court power to review remand of securities case to state court)
05-416 -- Woodford v. Ngo (scope of exhaustion of claims requirement under Prison Litigation Reform Act)
05-5224 and 05-5705 (two cases, perhaps one opinion) -- Davis v. Washington and Hammon v. Indiana (exclusion of evidence of "excited utterances" in 911 calls or at a crime scene, under Crawford v. Washington)
05-5966 -- Clark v. Arizona (right to make an insanity defense to disprove criminal intent)
05-7053 -- Dixon v. U.S. (burden of proof on defense of duress or coercion in criminal case)
05-8794 -- Hill v. McDonough (procedures available for challenges to lethal injection method of execution)

I bolded the cases in which I have the most interest. With so little time left, we're looking at multiple opinion days a week. It's kind of exciting in a way, but also frustrating. I don't have enough time to read them all, so I'm going to be picky. I can't wait to see if something comes down tomorrow...

What does the Supreme Court do to honor one of its retiring members? They get together to watch a movie. The nine Justices and retired Justice Sandra Day O'Connor decided to spend Wednesday afternoon enjoying the John Wayne classic Red River.

This reminded me of the other movie views that the Court used to have. As recounted in The Brethren, the Justices would often view movies that were the subject of cases before the Court. These were usually indecency cases, so the movies were a little on the adult side. They watched them for, you know, research purposes...

The latest round of financial disclosure reports give us an interesting look at the travel habits of the Supreme Court Justices. So who is going where? Let's take a look at the newbies...

Roberts and Justice Samuel Alito, both nominated last year, accepted free trips just twice last year. The trips were sponsored by universities and were made before Roberts and Alito were picked by President Bush. Roberts taught a law school class in London last July, shortly before his nomination to the high court.

And now for the other Justices...

Kennedy visited Thailand for a meeting of Asian judges, lectured at Hong Kong University, taught a course in Salzburg, Austria, and attended an American Bar Association meeting in Prague, Czech Republic.

Breyer was in Paris for an ABA event, took part in a project on terrorism and the law in Bellagio, Italy, lectured in Melbourne, Australia, and attended events in Bordeaux, France, and Jerusalem. Closer to home, he spoke in Boston and Des Moines, Iowa.

Among the other justices' travel: Justice John Paul Stevens took a trip to Chicago to throw out the first pitch of a Cubs game and speak to a group of lawyers, Justice Ruth Bader Ginsburg spoke at West Virginia University in Morgantown and the University of Kansas in Lawrence and Justice Clarence Thomas taught at Creighton University in Omaha, Neb.

Once again, Justice David H. Souter was the least-traveled justice. He reported one trip, to Harvard Law School. Souter took no paid trips the previous two years.

Not included was Justice Antonin Scalia, who was granted permission to file his information late. Scalia reported taking 15 trips in 2004, including to Japan, New Zealand and Greece.

Oh, that Justice Souter, such a recluse. I've never actually seen a recording of him give a speech. The coolest trip is easily Justice Stevens throwing out the first pitch at Wrigley Field. Not bad for an octogenarian.

I just saw this pretty cool comment/story on Confirm Them...

I went to the Nationals game last night (they beat the Phillies), and one of my friends said "Hey, look over there! It's George Will." When I turned to look, I didn't see Will, but you know who I saw instead? Sam Alito!

That's right, sportsfans, the newest Supreme Court Justice was at the game with George Will. I don't know about you, but it warms my heart to know that a Justice of the Supreme Court hangs out with George Will.

So me and my friends went up to him and got him to sign our tickets and got a picture with him. He was nice about it and said it made him feel like a baseball player. He was on his way out, but a couple other people recognized him and got pictures too. He was nice, but I think a little surprised by being recognized. I say get used to it, Mr. Justice. You're going to be a great Justice for a long time, and that's going to make you a hero to lots of people. You're going to be signing autographs for a while.

That's such a cool story. It makes me wish that I was spending the Summer in DC. It's pretty interesting that Justice Alito is going to baseball games with one of the nation's most prominent conservative columnists. [sarcasm on]Oh no, I guess the cat's out of the bag that Alito is conservative...[sarcasm off]

This.

As part of his duties, Justice Antonin Scalia administered the oath to the new Secretary of the Interior, former Governor of Idaho Dirk Kempthorne (who has a really neat name). Here's an excellent shot of Scalia's back.



Here is Scalia deep in thought, possibly thinking about lunch at his favorite pizza place, AV Ristorante.



For more information on Justice Scalia, pizza, and AV Ristorante, please consult Judge Alex Kozinski's article My Pizza with Nino.

Damn you, nice weather and internship, for keeping me away from my blog. Also, Blogger was down for like 5100 hours today because the hamster fell off the wheel in the server or something.

Anyway, I found this editorial from the Wall Street Journal rather interesting and timely. In it, the editors lay some heavy blame on Justice Anthony Kennedy over the current gay marriage battle being waged in both the federal government and the states. Here's what they've got to say...

Justice Kennedy wrote the majority opinion in the 2003 Lawrence case that banned state anti-sodomy laws. So sweeping was his "privacy right" language that it took only a few months for the Massachusetts Supreme Court to use Lawrence to justify its decision to impose a right to gay marriage there. Politicians in New York and San Francisco began issuing gay marriage licenses, never mind state law.

I disagreed with Lawrence for pretty much the same reason that Justice Thomas dissented. I think that a law that bans sodomy is stupid (I think Thomas called it "uncommonly silly" or something along those lines). However, I don't think there is a right to sodomy in the Constitution. Imagine if there was an explicit right to sodomy in there. I think we would all be wondering exactly what was going on in that hot room during the summer of 1787 in Philadelphia.

Okay, now that we have the image of the Founding Fathers sodomizing each other fresh in our minds, let's get back to Constitutional Law. While I didn't agree with Justice Kennedy's decision in Lawrence, I think that it's a little unfair to place so much blame in his lap (especially putting him in the title of the editorial). This vague expansion of the Right of Privacy has been a movement in the Supreme Court and Con Law in general for decades. You can trace it from Griswold through Roe, making a short detour through Casey, and ending up square in Lawrence-ville. Lawrence was the last major decision, and the one that was most on point, so it (and Justice Kennedy) gets the most attention. I guess this is the position that Justice Kennedy will occupy until one of the Court's liberals retires though. He will be the swing vote on these issues, and he will be the new media star for it.



Honestly, the whole gay marriage issue is really boring to me. That's why there hasn't been a post about it on here until this one (and this is hardly an examination of the issue). However, if this is something that gets you going, Professor Bainbridge has an interesting post and discussion going about the Republican Party and views of the Marriage Protection Amendment. I love how he's technically on vacation in Napa Valley, yet still manages to post more than me. I feel like such a failure...

Four opinions were announced today by the Supreme Court. They include Anza v Ideal Steel Supply Corp, Mohawk Industries v Williams, Zedner v US, Whitman v Department of Transportation.

Zedner has drawn some attention because it was written by Justice Alito. It is the second Alito decision that can be deemed pro-criminal defendant. Wait a minute... I thought Alito was supposed to be a blood-thirsty prosecutor, ready to trample on the rights of the accused. Well, I guess the Alito opposition rhetoric was just full of hot air.

The opinion also drew attention because of the Justice Scalia concurrence attached to it. Here, Scalia rejects Justice Alito's use of legislative history in the majority opinion. This is an issue that Scalia has been waging a not-so-quiet war of concurrences against for years. Tony Mauro may be over-hyping this with the title of his article, "Alito Opinion Draws Wrath of Scalia". I've read Scalia wrath, and I don't think this comes close to wrath. He's been filing these concurrences for a long time. What is interesting is that Alito could've easily deleted this part of his opinion. He chose not to (and had all of the Justices except Scalia on his side on this point). Wait a minute... I thought Alito was just a Scalia clone. You know, "Scalito" and all that jazz. Well, I guess the Alito opposition rhetoric was just full of hot air. Hmm... I sense a pattern.

Rounding out the day at One First Street in Washington DC, there was a very interesting case grant today. The Court decided that it would hear argument in two cases, Parents Involved in Community Schools v Seattle School District, and Meredith v Jefferson County Board of Education. The cases concern the use of race in student assignments in school districts. The Court has not said if elementary and high schools can pursue a racially diverse student body as a valid, constitutional goal. This is going to be a huge case. So far, I think this is the one to watch for the next term. Based on past cases of this nature, it's going to be a close one too.