Eminent Domain

Happy Birthday, Chief.

EDIT: This is a nice reminder about CJ Roberts' age. He is going to be on the Court for a long, long time. Just the thought of that brings a smile to my face.

From the AP...

U.S. Supreme Court Justice Clarence Thomas, left, speaks with Trendle Smith, right, before Thomas spoke to a group at the University of Arkansas at Little Rock William H. Bowen School of Law, Friday, Jan. 26, 2007, in Little Rock, Ark. (AP Photo/Mike Wintroath)

Justice Thomas is a Diet Pepsi man. Who knew?

Bush v Gore is one of those Supreme Court cases that can cause a near riot in mixed company. Even as a young lad (I was a freshman in college when it came down), I knew that the case was going to be stuck in many a craw for years to come. Recently, members of the Supreme Court have vocally defended their actions in the case. Here is what Justice Scalia had to say recently...

Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore need to move on six years after the electoral drama of December 2000, when it seemed the whole nation hung by a chad awaiting the outcome of the presidential election.

"It's water over the deck - get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News.

Scalia has held this position for a long time. It seems like people always ask him about the case during Q&A sessions. I'm sure he's sick of it.

Justice Kennedy has chimed in recently too...

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

I really need to pick up Greenburg's book. I've heard nothing but rave reviews. Hopefully, I can swing by Borders Monday.

Former Justice O'Connor has something to add too...

O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I think O'Connor is on the mark here. The Florida Supreme Court was off in legal la la land. I also don't think much of the Court's per curiam opinion. I liked Rehnquist's concurrence much more, but it only had three votes. But that is what happens when the Court is rushed to produce something. I think that the Pentagon Papers case showed us that too. Justice Harlan's dissent, with its list of unanswered questions, showed just how bad a rushed Supreme Court ruling can be.

If you want to read an excellent book about the recount and the court battles, I would recommend Judge Richard Ponser's Breaking the Deadlock. Posner meticulously takes apart the entire time line of event and provides analysis and commentary. If you are one of those people who still can't "get over it," it's a worthwhile read.

I didn't watch the State of the Union last night. I was in class learning the ins and outs of local government law. The AP picture above shows four Supreme Court Justices in attendance. For you occasional SCOTUS fans, from left to right we have Chief Justice John Roberts, Justice Anthony Kennedy, Justice Stephen Breyer, and Justice Samuel Alito. Roberts and Alito have attended two years in a row. Breyer attends the SOTU a lot. he was there last year with Roberts, Alito, and Thomas. I wonder if he's just bored at night. "Hmm... nothing to do tonight, might as well go to the speech. I can get good seats!" This is the first time that I remember seeing the now much more visible Justice Kennedy at the SOTU.

I wonder if anyone has kept a record of which Justices attend the speech. Dorks like me find that incredibly interesting. I'm not exactly sure why I find it interesting. I suppose I just like to see the Justices out and about.

Tony Mauro has a great article posted over at the First Amendment Center about the recent grant by the Supreme Court to hear FEC v Wisconsin Right to Life. A little commentary on the article...

When President Bush signed the Bipartisan Campaign Finance Reform Act in 2002, he did so with reservations. The law, he said, presented "serious constitutional concerns."

Bush never should have signed the law if he had such serious constitutional concerns. I understand the political reality of the situation. I know that most people think McCain-Feingold is the greatest thing since sliced bread. Personally, I think it's just slightly better than cholera. It's a mess of a law that abridges political speech.

Here is the background on the case...

At issue in Federal Election Commission v. Wisconsin Right to Life is a series of ads financed by the Wisconsin anti-abortion group in 2004. The ads criticized by name Sens. Russ Feingold and Herb Kohl, both Democrats, for blocking Bush's judicial nominees. But because Feingold was running for re-election, the messages ran afoul of the law, which bans messages referring to clearly identified candidates within 60 days of a general election or 30 days of a primary -— if those messages are financed directly by corporations or unions. The law allows such ads if they are paid for by corporate or union political-action committees, which are governed by greater regulation and disclosure rules.

Just so everyone's on the same page, the ads told people to call Feingold and Kohl and tell them to stop blocking judicial nominees. They didn't say "don't vote for Feingold," "Feingold sucks," or any other number of things that you'd hear out of my mouth. However, the law would cover those ads that WI Right to Life ran.

In case you are wondering, the McCain-Feingold law has quite a legal team defending it in this case. Solicitor General Clement will be arguing on behalf of the government (as is his job). McCain and friends have hired former SG Seth Waxman to It's rare that I root against Solicitor General Clement, but I'm hoping that he really drops the ball on this case. James Bopp will be arguing on behalf of WI Right to Life. I don't know much about him aside from what's in his bio. I will be cheering him on though.

McCain-Feingold was originally upheld by a narrow 5-4 ruling. Justice O'Connor joined the liberals on that one. There is hope that the additions of Chief Justice Roberts and Justice Alito will be enough to swing the vote the other way. I'd love to see the entire law gone, but I'll be happy with a lot of these as applied challenges succeeding and gutting the law that way.

One of my classmates e-mailed me this interesting feature story in the current issue of the Milwaukee Magazine. Writer Geoff Davidian discusses judges hearing cases where possible conflicts of interest exist. The system used by Wisconsin is at the core of the controversy. Here's an excerpt...

The federal court system bars judges from hearing cases where they have a financial interest at stake. But Wisconsin is one of many states that have moved to a system that allows judges to decide what level of investment by them creates a conflict. In essence, Wisconsin leaves it to judges to impartially rule on whether they can be impartial in trying a case against a company in which they have an economic stake.

University of Southern California Law School professor Greg Keating calls states with a system like this "pretty lax."

Local attorney John Carter, former head of the Milwaukee County Ethics Board, says an honor system for judges does not assure citizens that justice is impartial. "It's absolutely the appearance of a conflict to sit in judgment in a case where the judge has an interest in the outcome," he charges.

The article is very provocative. I'm going to refrain from making any analytical commentary because I'm not familiar enough with the ins and outs of the Wisconsin judicial standards concerning conflicts. I'd definitely want to read more before passing any judgments on the behavior discussed in the article. It's worth a read though.

I was flipping through the Milwaukee Journal Sentinel this morning and took a quick look at the letters to the editor. They're consistently pretty stupid. Basically, they are whatever talking points that political ideology X or Y is hammering on currently with some local goon's signature at the bottom. I shouldn't have been surprised when I saw this letter under the Iraq section, but it reminded me of an ugly truth...

Let's call on the court

With President Bush so wrong in establishing and running the Iraq war - and Congress a bit wishy-washy and certainly not unified - we should ask the Supreme Court to take hold of this terrible case, which has always been against the Constitution of the United States of America.

Irma Jo Sutton
West Allis

If you ever find yourself agreeing with this, punch yourself in the eyesocket over and over until you change your mind. Rarely can a single, solitary sentence be so devoid of thought. There are a few points that I would like to make.

First, you have to be crazy to think that the Supreme Court is the proper branch of government to dictate what should or should not be done with respect to Iraq. The power to authorize war is given to Congress, and the role of commander in chief is given to the president. The Supreme Court is given no war powers. The Court is made up of nine lawyers, lacking any notable foreign policy experience. In spite of the fact that they are all intelligent people, these are not the folks that you want formulating the war strategy.

Second, the Court is not accountable to the public. The president and the Congress are accountable to the public. Why would you want these two branches making the important military decisions for the nation? If you don't like the way the war is going, you can make your grievances known at the ballot box. And the voters did just that in November. If the new Democratic Congress doesn't have the will to cut off funding and end the war (if that is what you want), then you elected the wrong people.

Third, what "terrible case?" There is no case working its way through the DC Circuit called US v Iraq. How exactly is the Supreme Court supposed to get involved? Okay, I'm having a little fun here. I'll give Irma Jo the benefit of the doubt. Maybe her poorly written sentence was really trying to convey her belief that the war is unconstitutional. I think that's the thrust of her "against the Constitution" phrase. Good luck proving this one.

This person's view of the Court has probably been horribly warped by the past efforts of the Warren Court. A feel-good Court if there ever was one, the Warren Court made Constitutional rights out of good ideas or policies that the Justices liked. The ugly truth that I referred to at the beginning of this post is that many people think that the courts should act like this. They want judges to "fix" political messes created by the elected branches.

I'm sure that Irma Jo would be just tickled if the Supreme Court somehow declared the Iraq War unconstitutional and over. But that would take a hell of a lot of power to do. Maybe Irma Jo would be okay with that. But I'm sure that someday the Court would use this plenary power to do something that she would be absolutely against. Then she'd be up in arms. Unfortunately, there would be nothing that she could do. You can't vote the Supreme Court out of office. Maybe then she would think twice about wanting unelected branches of government to usurp power from the elected branches.

I heard about an interesting event this week in Milwaukee while at the law school today...

The Milwaukee Lawyer Chapter of the American Constitution Society invites law students to "A Conversation on Judicial Independence," featuring the Honorable Patience Drake Roggensack, Wisconsin Supreme Court, on Jan. 25, 12:00 - 1:30 p.m., at the Milwaukee Bar Association, 424 East Wells St. There is no cost to attend this event. Lunch will be provided. Please RSVP by completing form at http://www.acslaw.org/chapters/lawyer/milwaukee/rsvp.

Justice Patience Drake Roggensack of the Wisconsin Supreme Court will discuss the philosophy underlying judicial independence, its importance and effect in the three tiers of the Wisconsin court system, its relationship to the judiciary's interaction with the other branches of government, and how it relates to the development of common law doctrines, statutory interpretation and constitutional interpretation.

I would love to attend this, but I don't think my schedule will allow it. Justice Roggensack is one of my favorite members of the WI Supreme Court, so seeing her speak would be great.

ABC has a huge excerpt of Jan Crawford Greenburg's new book on the Supreme Court, Supreme Conflict. Here's a portion about Chief Justice Rehnquist's expected last day on the bench...

Rehnquist announced his opinion in the Texas case, and he struggled to provide even the briefest of summaries. Unable to eat because of his cancer, he'd become thin and stooped, and his skin appeared gray. His trademark booming baritone, which had silenced many a lawyer, sometimes in midsyllable, was gone. His voice now was weak and reedy from the tracheostomy. Rehnquist ticked off the names of the six other justices who'd also written opinions in that Ten Commandments case.

"I didn't know we had that many people on our Court," Rehnquist said slowly, his breathing labored. Then he smiled as he looked to the justices on his left and right, and the courtroom exploded in laughter. Rehnquist thanked the Court's staff for its work over the term. The audience grew completely still. The other justices peered intently at Rehnquist. This would be the time for the announcement. Rehnquist seemed to pause briefly. Then he banged down the gavel and carefully rose from his seat.

The other justices, looking confused, slowly began to follow. Only O'Connor seemed to have a sense of purpose. She turned and stepped beside her old chief, ready to help him if he needed her arm. Then the old chief shuffled back to his chambers, leaving all of Washington to wonder and wait.

I'm really looking forward to reading this book.

It's that time of the year again. The Federalist Society Student Symposium is quickly approaching. I will be making the pilgrimage to Northwestern for two days of discussion on Law and Morality. As always, the FedSoc has put together an excellent program. Here is a list of the confirmed speakers...

Judge William H. Pryor, Jr. - United States Court of Appeals for the Eleventh Circuit

Judge Diane S. Sykes - United States Court of Appeals for the Seventh Circuit

Judge Timothy M. Tymkovich - United States Court of Appeals for the Tenth Circuit

Judge Richard C. Wesley - United States Court of Appeals for the Second Circuit

Prof. Ron Allen - Northwestern University School of Law

Prof. Hadley Arkes - Amherst College

Prof. John S. Baker, Jr. - Louisiana State University Law School

Prof. Randy E. Barnett - Georgetown University Law Center

Prof. Lillian R. BeVier - University of Virginia School of Law

Prof. Robert Burns - Northwestern University School of Law

Prof. Stephen Calabresi - Northwestern University School of Law

Prof. G. Marcus Cole - Stanford Law School

Prof. Lino A. Graglia - University of Texas at Austin School of Law

Mr. Kevin J. Hasson - Founder and President, Becket Fund for Religious Liberty

Prof. Orin S. Kerr - George Washington University

Prof. Andrew Koppelman - Northwestern University School of Law

Prof. Steven Lubet - Northwestern University School of Law

Prof. John McGinnis - Northwestern University School of Law

Prof. Michael S. Moore - University of Illinois College of Law

Prof. Michael J. Perry - Emory University School of Law

Prof. Saikrishna B. Prakash - University of San Diego School of Law

Mrs. Phyllis Schlafly - Best-Selling Author, Founder of Eagle Forum

Prof. Louis Michael Seidman - Georgetown University

Prof. Geoffrey Stone - University of Chicago Law School

Prof. Amy Wax - University of Pennsylvania Law School

I'm very excited to hear Judge Pryor's keynote address about his time as Alabama's attorney general. Apparently, he will be discussing his role in the Ten Commandments monument issue there. It's always nice to hear Judge Sykes speak. I'm sure she will represent the Seventh Circuit and MULS well as usual. I'm also looking forward to seeing Volokh Conspirators Prof. Kerr and Prof. Barnett in action. Part of me is also interested to see Prof. Geoff Stone. Stone and I are polar opposites ideologically speaking. Still, he's a good advocate for his positions, even when they are completely wrong.

The program looks very interesting, and I look forward to attending. A weekend in Chicago isn't bad either.

I took a little "me" time recently. I always told myself that I would quit ED when doing it stopped being fun. It stopped being fun back in mid December. That and a half dozen other things prompted me to take a leave of absence and get away for a while. I'm back now, physically and mentally. Classes start this week, and that will probably get me back into the legal mindset that I need to write. I have enjoyed doing this for a long time and expect that I will again. I just really needed a break from this and well, everything.