Eminent Domain

Scott v Harris...

"Had they [the younger majority of Justices] learned to drive when most high-speed driving took place on two-lane roads rather than on superhigh-ways-when split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine-they might well have reacted to the videotape more dispassionately."

And...

"...like the time I caught the ferry over to Shelbyville. I needed a new heel for my shoe, so, I decided to go to Morganville, which is what they called Shelbyville in those days. So I tied an onion to my belt, which was the style at the time. Now, to take the ferry cost a nickel, and in those days, nickels had pictures of bumblebees on 'em. 'Give me five bees for a quarter,' you’d say.
"Now where were we? Oh yeah -- the important thing was that I had an onion on my belt, which was the style at the time. They didn’t have white onions because of the war. The only thing you could get was those big yellow ones..."

or...

"Big deal! When I was a pup, we got spanked by presidents 'til the cows came home! Grover Cleveland spanked me on two non-consecutive occasions!"

Compare and contrast.

Keeping with my theme today, I'm taking yet another break (this time from the painfully dull Turner cable TV cases) to talk about another presidential wannabe and the Supreme Court. Prof. Althouse took part in a conference call with Senator John McCain today. She asked the following question and got the following response...

... Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

Emphasis added. If you are a Republican presidential candidate, the first half of that answer is mandatory: strict construction (though I'm not exactly sure that that phrase really means anything anymore), won't legislate from the bench, yadda yadda yadda. The bold part caught Prof. Althouse's attention (and mine too). McCain wants someone who has military and/or private sector experience. Interesting. This isn't out of the ordinary, though. President Clinton originally wanted to name a politician to the Court. That obviously didn't pan out (and is slightly different than what McCain was proposing), but the instinct to look beyond the bench isn't all that odd.

Who could McCain pick? Well, there are a few people that immediately spring to mind. J. Michael Luttig is a former appeals court judge, legal conservative icon, and currently general counsel of Boeing. He's had an amazing career and is still in his 50s. Luttig was the first person that popped into my head.

Other options: Larry Thompson, former deputy Attorney General and current general counsel to PepsiCo. Christopher Cox, head of the SEC, former Congressman, and co-founder of Context Corp. Lindsey Graham, Senator, military service in the JAG corps, former appellate judge on the Air Force Court of Criminal Appeals, and open McCain supporter.

I'm sure I'm missing a ton of possible nominees that fit the McCain criteria. These were just the names I could come up with in about five minutes of thinking and Wiki'ing. The most acceptable of the list is Luttig. He would actually be a stellar pick and make me dislike McCain much less than I do now.

I'm currently in the library trying to figure out what the hell Justice Stewart thought about the Press Clause. I decided to take a break to discuss one aspect of the first Democratic Presidential debate (transcript available here, thanks Prof. Althouse). Actually, I'll be making one comment before jumping into my chosen topic. Does Gravel remind you of Grandpa Simpson? Am I the only one who gets that vibe from him?

Anyway, I really wanted to highlight the portion of the debate about Supreme Court Justices (editorial comments in bold)...

MODERATOR: And, Governor Richardson, we're going to start with you. The question is your model Supreme Court justice?

RICHARDSON: It would be Justice "Whizzer" White. White hated that nickname. Zombie Justice White is rising from the grave to seek vengeance on Richardson as I type this.

MODERATOR: How about someone who is among the living?

(LAUGHTER)

RICHARDSON: It would be -- in this particular case, Judge Ginsburg, who said that this was an erosion of a woman's right to chose and degraded the ability of a woman to protect herself health wise.

MODERATOR: OK.

Again, name or pass, Senator Dodd?

DODD: Well, I would mention Justice Brennan, but you've excluded him...

MODERATOR: Yes.

DODD: ... because of obvious reasons.

And I would agree with the choice made by -- Justice Ginsburg. I think she was eloquent in her dissent in this opinion, and certainly someone that I would -- I would respect.

MODERATOR: And, Senator Edwards?

EDWARDS: I missed it. No past justices? "I missed it?" What was he doing, playing with his iPod? Pay attention.

MODERATOR: A model Supreme Court justice alive today?

MODERATOR: And I've just been informed, this is taking so long, you'll be the final person to handle this question.

(LAUGHTER)

EDWARDS: Ginsburg or Breyer.

MODERATOR: All right. Justice Ginsburg or Justice Breyer, both of them sitting on the current court.

I was a little shocked when Richardson picked White. Justice White was a Kennedy appointee, but he was hardly a liberal. While he was a supporter of certain Democrat-favored policies like affirmative action, he railed against substantive due process. He dissented in Roe and wrote the majority opinion in Bowers v Hardwick. He would hardly be the poster boy for the judicial philosophy of the modern Democratic Party.

When restricted by the moderator, Richardson switched his pick to Justice Ginsburg. She was White's replacement on the Court, but they are far from philosophical clones. It's especially interesting that Richardson went on to praise Ginsburg for her dissent in Carhart II. Justice White surely would have been voting the opposite way in that case. I wonder if anyone will ask him to explain this.

Dood and Edwards took the safe road by picking Ginsburg and/or Breyer. They are the only two Democratic appointees currently on the Court. If they really wanted to stick it to the Republicans, one of them should've said that Souter was their model Justice. That would've been a big thumb to the eye to the GOP. Souter is still a very, very sore subject.

Before this exchange, there was a lengthy discussion about the Carhart II decision. If I didn't have to get back to my studying, I'd discuss that a little... maybe later. I hope that the Court is a more prominent topic in these debates.

Now that the Court has handed down the partial birth abortion opinion, obsessive Court watchers can turn their attention to another pair of controversial cases: the Parents Involved and Meredith school cases. These cases involve the use of race in assigning students to public schools. Many commentators are predicting that the addition of Justice Alito will make the Roberts Court hostile to these programs.

In my vain (or not so vain since it worked last time) attempt to predict what the Court will do, I'm playing my favorite game: Match the Opinion to the Justice. Let's go over the rules again...

The workloads have been traditionally balanced among the Justices (at least as far as the majorities will allow them to be). Generally, each Justice will get one majority opinion assignment during each sitting.

Unfortunately, the Court is taking its sweet time churning out the opinions, so I don't have much to work with from the November 27th sitting. Here's what I've got so far...

November 27 Sitting

BELL ATLANTIC V. TWOMBLY ???

LEDBETTER V. GOODYEAR ???

WEYERHAEUSER V. ROSS-SIMMONS HARDWOOD LUMBER CO. - Thomas

KSR INT’L V. TELEFLEX - Kennedy

MASSACHUSETTS V. EPA - Stevens

WATTERS V. WACHOVIA BANK - Ginsburg

PARENTS INVOLVED V. SEATTLE SCHOOL DISTRICT NO. 1 ???

MEREDITH V. JEFFERSON COUNTY BOARD OF EDUCATION ???

GONZALES V. DUENAS-ALVAREZ ???

ROCKWELL INT’L V. UNITED STATES - Scalia

Not much to go on, I know. I'll be filling in this post as the cases come down. There are some interesting aspects to the list already though. Four of the cases have been assigned. Scalia and Thomas have already written a majority opinion, but so have Stevens and Ginsburg. That leaves Roberts, Kennedy, Souter, Breyer, and Alito. Kennedy has been hostile to these race-based programs in the past. I'm assuming from past statements and oral arguments that Roberts and Alito aren't fans of them either. Souter and Breyer are much more likely to uphold the programs. Just as a matter of the odds, it looks like these programs will be struck down. Of course, that assumes a balanced assignment of the opinions from this sitting.

As I said, I will be filling this post in as the cases come down. When there are important changes, I'll make an update post too. These school cases, along with the abortion decision and the Wisconsin Right to Life campaign finance case will tell us a lot about the future of the Roberts Court.

I took a break from reading and ended up on YouTube. I kill way too much time on that darn website. Anyway, I found a bunch of video clips about the Supreme Court's recent Gonzales v Carhart decision. Some are actually pretty interesting. Note that I said "some."

Here's the This Week roundtable with George Stephanopoulos, George Will, Cokie Roberts, and Sam Donaldson. Donaldson wrongly says that Kennedy changed his vote from Stenberg. Cokie's offended by Kennedy's paternalist streak. George Will points out that Roe's original trimester scheme would've been screwed if the human gestation period was a prime number of months. You know, I never thought about it that way. Justice Blackmun really lucked out that "9 months" could be broken down into even sections.


Here is the rundown from Fox News. They hit the highlights of the case, have two talking heads from a pro-life and pro-choice group, and video of former Justice O'Connor is the reddest of outfits.


This video is from an outfit called Pro-Life News. This fellow was at the Court when the decision came down and has some video of the protesters. The music is painfully bad.


Ahh, The View. I think that this is probably the worst show on television. Maybe that's just the Y chromosome talking, though. Rosie O'Donnell is her usual self. She brays on about "the mother's life is at risk" (3:00 mark), and then gets slapped down because there is an exception in the ban for the life of the mother (there is no health exception in the ban though). She quickly switches gears to the "they're comin' for Roe!" line in order to cover her mistake.

Then she accuses the 5-vote, all-Catholic majority of breaking down the separation between church and state with their ruling. There's a lot of that going around lately. We all know that only a Catholic Justice would sign on to a decision that limited abortion rights... well, maybe a Lutheran from Shorewood would sign on too... or maybe an Episcopalian who played for the Lions would agree as well. Hmm, I'm pretty sure that those two weren't taking direction from the Vatican.

In any event, I hope Rosie realizes two things: 1. Justice Kennedy supports abortion rights (just not unlimited ones) so Roe isn't going anywhere, and 2. there are many people who reject the idea of a Constitutional right to an abortion based solely on the text and history of the Constitution, not based their religion.

It's always interesting to watch people talk about the Court, especially lay people. It can be depressing at times, but I'm always curious to see what they have to say.

I'm starting my exam season studying this week, so posting will probably be light. I'm sure that the Supreme Court will hand down about 400 major opinions, just to frustrate me. I'm sure I will pop in here and there, but most of my time will be devoted to hitting the books. This is my last set of exams for law school, so I'd rather not fail them.

By the way, if anyone is looking to hire a bright young law grad, e-mail me. I, like Mr. T, need work.

I said that I would post more about the Thompson decision, but instead I decided to go out for dinner and a few drinks. Sorry, I have my priorities. Fortunately, the folks at Volokh has a few posts about the decision. Eugene Volokh has a post quoting the important language from the opinion and providing some analysis. Check it out. If I decide to add anything, it will be posted tomorrow.

The Seventh Circuit Court of Appeals has released their opinion in US v Thompson. I've discussed the Georgia Thompson case previously and have been eagerly awaiting this opinion. I'm going to finish lunch and read the opinion (Chief Judge Easterbrook wrote for the court). Updates to come.

Now that we're a few days removed from the decision, I am even more convinced that Justice Thomas' concurring opinion in Carhart II is the most important, most cryptic, and most interesting opinion in the case. Justice Kennedy's majority was not much of a surprise. He made it clear in his Stenberg dissent that he felt that O'Connor and Souter stabbed him in the back and misapplied Casey's undue burden standard. Justice Ginsburg's dissent in Carhart II wasn't shocking either. It was interesting to see her move away from the privacy argument and push an equal stature argument. It's fun to watch the shifting rationales for the Constitutional right to an abortion. Any port in a storm, I guess.

As I said in this post, Justice Thomas' concurrence is the real gem of the case (Quick aside: I'd like to thank How Appealing's Howard Bashman for linking to that post and upping my traffic by about 500%). In that opinion, Justice Thomas, joined by Justice Scalia, called for the Court to overturn Roe/Casey and also hinted at a Commerce Clause problem with the Partial-Birth Abortion Ban Act. The Commerce Clause issue wasn't raised by the parties or the lower courts, so the Supreme Court didn't do anything with it. I want to discuss two questions: would Justice Thomas strike down the Partial-Birth Abortion Ban Act on Commerce Clause grounds, and why didn't Planned Parenthood or Dr. Carhart raise the issue?

I'm going to focus on Justice Thomas specifically. Personally, I doubt that Justice Scalia would have really struck down the Partial-Birth Abortion Ban Act as a violation of the Commerce Clause. While he had been a strong supporter of federalism in US v Lopez and US v Morrison, Scalia held back in Gonzales v Raich, the California medical marijuana case (I'll be discussing that case further in the post). Justice Thomas, as well as then-Chief Justice Rehnquist and Justice O'Connor, stuck to their federalism guns. Justice Scalia did not. I think that he joined the Thomas concurrence in Carhart II because of the anti-Roe/Casey statement, not the Commerce Clause statement.

To understand if Justice Thomas would strike down the Partial-Birth Abortion Ban Act on Commerce Clause grounds, it's helpful to look at his opinions on that issue. The two most enlightening ones are his concurrence in US v Lopez and his dissent in Gonzales v Raich. But first, let's look at the text of the Commerce Clause, just so it's fresh in our minds. Article I, Section 8, Clause 3 of the US Constitution grants to Congress the power...

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Congress has used that sentence to enact every kind of legislation under the sun, at least until the Rehnquist Court came along.

In US v Lopez, the Court looked at the constitutionality of the Gun-Free School Zones Act, which was authored by my home state senator and favorite Keebler elf, Herb Kohl. Basically, it was a federal law that banned firearms within 1,000 feet of a school. A 5-4 majority struck the law down as being beyond the powers of Congress under the Commerce Clause. The majority restricted Commerce Clause regulation to the channels of commerce, the instrumentalities of commerce, people or things in interstate commerce, and actions that substantially affect interstate commerce. In his concurrence, Justice Thomas went further. He didn't like the substantial effects test at all...

We have said that Congress may regulate not only "Commerce . . . among the several states," U. S. Const., Art. I, §8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life.

The police power is a broad power to pass laws to further the health, welfare, and safety of the public. States, not the federal government, hold the police power. Thomas also gave us some examples of things that are not commerce and cannot be regulated under the Commerce Clause...

But it seems to me that the power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce.

Emphasis added. It's an interesting list, especially the first item. Thomas also cites a few cases...

Chief Justice Marshall, writing for the Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that Congress had "no general right to punish murder committed within any of the States," id., at 426, and that it was "clear that congress cannot punish felonies generally," id., at 428. The Court's only qualification was that Congress could enact such laws for places where it enjoyed plenary powers--for instance, over the District of Columbia. Id., at 426. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce (or on any other subject of federal concern) was irrelevant to the question of congressional power.

...and...

United States v. Dewitt, 9 Wall. 41 (1870), marked the first time the Court struck down a federal law as exceeding the power conveyed by the Commerce Clause. In a two page opinion, the Court invalidated a nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked that the Commerce Clause "has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States." Id., at 44. The law in question was "plainly a regulation of police," which could have constitutional application only where Congress had exclusive authority, such as the territories. Id., at 44-45.

As you can see from his Lopez concurrence, Thomas has a very narrow ready of the Commerce Clause power.

In Gonzales v Raich, the Court decided that Congress can (by way of the Commerce Clause) preempt the states and ban the intrastate use of medical marijuana. The federal Controlled Substances Act and California's Compassionate Use Act were in conflict. Writing in dissent, Justice Thomas stated that local cultivation and consumption of marijuana is not "Commerce ... among the several States." Good originalist that he is, Thomas goes back to the Founding for his definition of commerce...

Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange-not all economic or gainful activity that has some attenuated connection to trade or exchange.

He went on to rail against the use of the substantial effects test...

The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design.

He takes the majority to task for their broad definition of commerce...

To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the " 'the production, distribution, and consumption of commodities.' "7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8—9 (O'Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite."

Taken with Lopez, Raich illustrates Justice Thomas' ideas about the limits of Congressional power under the Commerce Clause.

Since Lopez, Congress has sought ways to draft around the Court's restrictions. Post-Lopez, Congress reenacted the Gun-Free School Zones Act with added findings professing the importance of establishing gun free school zones to protect public safety and interstate commerce. As far as I know, the law hasn't been challenged again. The drafters of the Partial-Birth Abortion Ban Act added a little something too. The law contains a jurisdictional element...

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion...

Emphasis added. That, on paper, limits the applicability of the law to partial birth abortions within interstate commerce.

Now the $64,000 question: Would Justice Thomas strike the Partial-Birth Abortion Ban Act down on Commerce Clause grounds? I'd say yes. Based on my readings of his Lopez and Raich opinions, Thomas would have serious Commerce Clause problems with the Partial-Birth Abortion Ban Act. The mantra from the Roe/Casey opponents on the Court (Scalia and Thomas, previously Rehnquist and White also) is that abortion is an issue that should be left to the states. Overturn Roe/Casey, they've said, and the issue goes back to the state legislatures. The Partial-Birth Abortion Ban Act, if Constitutional under the Commerce Clause, would fly in the face of that. Abortion regulation would be a federal issue then. The states could be muscled out by Congress. Thomas' statements in Lopez and Raich show a hostility to this reading of Commerce Clause power.

I don't think that the jurisdictional element would be much of a hurdle either. When exactly does a partial birth abortion affect interstate or foreign commerce? Is it only when the woman or the doctor cross state lines in order to receive or perform the abortion? Is it when medical supplies used in the abortion are purchased in interstate commerce? Is that too attenuated? What about a doctor and patient who live in the same state and use only medical supplies produced and sold in that state? Is that abortion wholly intrastate and outside of the reach of the Act? I'm not exactly sure. I do think that Thomas is not kidding when he says that there are Commerce Clause issues with the Partial-Birth Abortion Ban Act.

My second question (I promise that this analysis will be shorter) is about the tactics used by Planned Parenthood and Dr. Carhart. Why didn't they make the Commerce Clause argument? If they peeled off Thomas (and maybe Scalia, though I doubt it), they would have had 5 votes to strike down the law. The decision to strike it down would be based on different grounds (Commerce Clause for Thomas, equal stature or whatever for the four dissenters), but it's still a win. In a comment at SCOTUSblog, Austin Evers asks the same tactical question...

At this point in my research, I believe strongly that the pro choice movement made a significant and decisive error in not raising a commerce clause challenge to this law. Instead of charging towards an almost certain 5-4 decision against them, they could have had a better shot at a 5-4 or better victory. Yes, the victory would have been without the benefit of a majority opinion, but they were heading towards that anyway.

At first glance, it makes no sense. Why not make the argument? Hoping that Kennedy would flip after his forceful dissent in Stenberg was a bad bet. Why not roll the Commerce Clause dice and try to pick up Thomas? I have a theory. I think that it goes back to the state-federal, post-Roe issue. Imagine that the Court overturns Roe/Casey. If you are in the pro-choice movement, what would you rather have: 50 fights in 50 state legislatures or one fight in Congress over the scope of abortion regulation? The pro-choice side is bound to lose, and lose big, in many state legislatures. They're not going to get abortion on demand from the Alabama legislature. There's no chance. The federal situation would be different. A Democratic-controlled Congress (which is especially more likely in the wake of Roe's demise) could regulate abortion under the Commerce Clause and take the issue away from the states. The pro-choice movement would be in a better position to protect abortion rights. Of course, that's just a theory of mine. I'm not exactly tight with the pro-choice legal movement and am not privy to their actual litigation tactics.

I do think that Carhart II could have gone the other way on a Commerce Clause argument. I guess we'll never really know, though. I'm going to take a nap now, because typing all of this has made me incredibly tired.

I recently came across this news story, and I felt the need to post about it. It's rare that one finds a news item that includes both criminal law violations and pet ducks...

A Seattle man has been charged with a slew of crimes that involved an alleged shoplifting, assaults and a pet duck named Mr. Peepers. Snohomish County Deputy Prosecutor Paul Stern on Thursday charged Kenneth Blaine Quinlan, 35, with two counts of third-degree assault and one count each of vehicular assault and hit-and-run.

That is a great name for a duck.

Authorities say that on March 23, Quinlan and his 39-year-old girlfriend drove to a Lynnwood shopping center, where he entered a Linens 'n Things outlet and she went into a Petco store, taking the duck with her.

Stern wrote in court papers that a security guard thought he saw Quinlan shoplift an iPod speaker system, and a scuffle ensued.

Police say the guard chased Quinlan to the Petco store, where Quinlan got the car keys from his girlfriend and tried to escape.

The man jumped into the driver's seat of the car as the woman walked out of the store with her duck. Not knowing what was going on, she tried to stop him from driving away and was knocked down by the open car door as it backed up. She dropped the duck.

Uh oh. Domesticated fowl in harms way! What will happen next?!

A Petco employee saw what was happening and "ran to save Peepers from the front of the car" just as Quinlan drove forward, Stern wrote. The car ran over the woman, inflicting serious injuries including broken bones in her foot and ankle, he said.

Charging papers say Quinlan continued driving and didn't stop until his vehicle struck another car nearby.

The girlfriend and guard were not seriously hurt. Mr. Peepers was OK.

There's not much to comment on here. It's a pretty straightforward legal issue. I just thought it was a funny story.

I'd like to take the opportunity to wish Justice John Paul Stevens a happy 87th birthday today.

Please retire.

I know that many people will think that my title is wrong (especially right now in the hours after the decision was handed down), but I think that the Thomas concurring opinion in Carhart & Planned Parenthood is much more important than the majority opinion. "Steve," you say, "Are you daft? This is the biggest abortion decision in years. It's one of the first major victories for the anti-abortion side." Sure, it's an important decision. I think that it will have huge political implications. Every presidential candidate has made their views on the case clear within hours of it being handed down. But there is much more going on in this case than the case itself.

What is so important about the Thomas concurrence? Well, let's look at it...

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring.

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980-983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).

That's all of it. Those four sentences say more about the Roberts Court and the future of abortion jurisprudence than the previous 39 pages of Justice Kennedy's majority opinion. Let's go through it line by line. First sentence...

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).

Nothing controversial here, just a simple concurrence introductory sentence. It says, "Good job, Tony. You applied Casey correctly."

Second sentence...

I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. [citations omitted]

This is no surprise from Thomas. Both he and Justice Scalia add this statement to every abortion opinion that they write. They are making it clear that there is no right to an abortion in the Constitution.

Third and fourth sentences...

I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

Ah, the Commerce Clause issue. Thomas is hinting that there may be a constitutional problem with the federal PBA ban. You may remember the mini-revival of federalism principles during the Rehnquist Court. Five members of the Court put restrictions on Congressional power to enact laws under the Commerce Clause of the Constitution. Is Thomas hinting that he would've gone the other way if the parties raised the issue?

Thomas' Commerce Clause statements are interesting, but there's something more interesting going on here. What's missing from this concurrence? Roberts and Alito. They didn't sign on to this opinion. The question is: why? What about it made them not join? I think that there are a few possibilities:

1. Roberts and Alito will not vote to overturn Roe/Casey. It's one thing to take a different view in this case and depart from what the Court did a few years ago in Stenberg v Carhart (the state PBA ban case). It's another thing to upset decades of abortion jurisprudence and throw it all out the window. Many Justices believe that the longer a case is on the books, the greater the burden to overturn it. Roberts and Alito made statements similar to this during their confirmation hearings. The late Chief Justice Rehnquist changed his position on Miranda after voting against it originally. It happens. Perhaps Roberts and Alito think that Roe/Casey are too entrenched to overturn.

2. Roberts and Alito did not agree that there was a Commerce Clause problem with the PBA ban. Congress inserted a jurisdictional clause in the statute that explicitly stated that the law only applied to "partial-birth" abortions that are conducted "in or affecting interstate or foreign commerce." My memory of the post-Lopez Gun-Free School Zones Act is a bit fuzzy, but didn't Congress pass the law again (after being struck down on Commerce Clause grounds) and insert a similar jurisdictional clause into the new version?

3. Roberts and Alito do not want to show their hand on the constitutionality of abortion. The political fall out from this decision is going to be huge as it is. Imagine what would happen if there were four solid votes on the Court to overturn Roe/Casey. Then imagine that Bush or another Republican president got to appoint the next Justice. The battle over that nomination would be like nothing we've ever seen. Tactically, if Roberts and Alito wanted to see Roe/Casey overturned, they would stay stealth for as long as possible. Very Machiavellian.

4. Roberts and Alito did not want to alienate Kennedy. We all know that Justice Kennedy can be a sensitive guy. Imagine how it would look for him to be writing for a 5-vote majority where everyone else joined another opinion. And this other opinion would go much, much further than Kennedy's. It's not good internal politics to leave Kennedy hanging out there on his own. With the current make up of the Court, Kennedy is the swing Justice and the one to woo. Roberts and Alito might be making a play for his vote, just like Justice Stevens did in the greenhouse gas case.

The concurrence is full of questions, and I don't have any of the answers for them. I don't know when we will know the answers to those questions either. That's up to Roberts and Alito.

Unless you're under a rock, you've probably heard that the Supreme Court upheld the federal ban on partial birth abortions today. It was a 5-4 decision written by Justice Kennedy (Hey, I was right for once!).

The heart of the opinion is this...

The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not find support from all those who join the instant opinion. See id., at 979–1002 (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion —that the government has a legitimate and substantial interest in preserving and promoting fetal life —would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.

Emphasis added. Basically, Kennedy is saying that the Stenberg v Carhart majority read Casey wrong, and he's gonna fix it dammit. Anyone who thinks this decision means that Kennedy flipped on abortion is quite wrong (I've seen some message board commentary saying that already). Kennedy is wed to his part in the Casey opinion. He thinks it's still workable and goes through the analysis here.

I have to run down to school right now, but I'll have much more to say about this opinion. The concurring opinion is full of interesting points of speculation. More to come.

I'm going to be away from the computer for the rest of the weekend. Enjoy.

Former Attorney General John Ashcroft will be speaking at Marquette on Wednesday, April 25th. Various Marquette blogs have posted about the recent announcement. Ashcroft will be talking about his time as AG during the War on Terror. There will also be a Q & A session (which might get interesting) and a book signing for all you autograph fans.

Go and have a good time. I'll be sitting in my final Crim Pro class.

I spotted the link to this editorial on Prof. Hasen's Election Law blog. The folks at The Examiner have some harsh words for McCain-Feingold AKA the Bipartisan Campaign Reform Act AKA BCRA. The editors recall the stated goal of McCain-Feingold: to get money out of politics. Then they remind us that the 2008 presidential candidates have raised a combined $125 million in the first 3 months of 2007. Just imagine how much of that evil, evil money they'll have by the first primary.

As you can tell by the "evil, evil" bit and my previous posts on the topic, I'm not a big believer in the campaign money = corruption equation. I think it's a little more complex than that. Regardless, let's say that you share the worries of John and Russ. How should you feel about the effectiveness of their pet project legislation? Well, here's the editors...

There is a distinction to be made between "soft" and "hard" money in politics, but the common denominator is the cash, the corrupting influence that McCain-Feingold's backers sought to eliminate. Ever since Bill Clinton found creative new ways to channel foreign money into domestic politics, gathering and collecting from campaign donors has been raised — or lowered — to levels of sophistication and efficiency that would have amazed Boss Tweed. Despite McCain-Feingold, more money is flowing to candidates than ever before in American politics.

This is the pushing of the balloon effect. Push the balloon in one place, and the air will bulge out elsewhere. The "soft" money will get into the election somehow. There are too many clever lawyers, staffers, and lobbyists just sitting around, thinking of ways around BCRA.

If this was McCain-Feingold's only sin, the law wouldn't be that bad. Unfortunately for all of us, it's not...

What McCain-Feingold did accomplish was opening the door for Congress to decide what is acceptable political speech. For the first time in American history, individual citizens cannot join with like-minded others as members of a variety of associations to buy a broadcast spot to criticize an incumbent congressman by name for 60 days prior to the November election. In other words, this terrible law has unleashed the most corrupting influence of all in giving career politicians the power of government to silence their critics. McCain-Feingold must be repealed.

Agreed.

I had the opportunity to catch up on my legal gossip and gutter news at Above the Law. After checking out a few of the stories, I realized something. The people who enter the legal profession are not above any sort of behavior. Some law school deans are willing to bust a move for charity... and be videotaped...


Some law students are willing to take off their gear for Playboy TV (WARNING: This link is far from G-rated). No, I'm not embedding that video. If you're really interested, the URL is in the comments of the ATL post.

Remember, a law degree is not a guarantee of good judgment.

You read that right. This week's episode of Penn & Teller's Showtime series Bullshit is about women's breasts, breast feeding laws, and public nudity. When you've got a topic that is this wrapped up in legal issues, you're going to need an expert. Enter Prof. Eugene Volokh of the famous Volokh Conspiracy.

Penn & Teller had a few legal questions for Prof. Volokh. They wanted to know if exposing your breasts in public constitutionally protected expression, as argued by a woman on the show. Prof. Volokh said that First Amendment protection goes beyond mere speech and writing. It does cover some expressive speech like flag waiving or burning. So is this behavior protected too? Prof. Volokh said that breast exposing isn't usually in this category though. Most of the time, people who are exposing their breasts aren't trying to express anything. The laws that ban the behavior are in place because the behavior is seen as intrusive on unwilling viewers.

Showtime usually reruns the show a few times during the week, so keep your eyes open for it. It's worth watching if you're a fan of Penn & Teller, Prof. Volokh, or breasts.

A column by Georgetown Law Prof. David Cole has gotten a lot of attention on law blogs lately. Volokh, PrawfsBlawg, Concurring Opinions, and others have all chimed in about this topic: laptops in the law school classroom.

Prof. Cole banned laptops in his classroom. He had two reasons for instituting this policy...

Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes.

In addition, laptops create temptation to surf the Web, check e-mail, shop for shoes or instant-message friends. That's not only distracting to the student who is checking Red Sox statistics but for all those who see him, and many others, doing something besides being involved in class. Together, the stenographic mode and Web surfing make for a much less engaged classroom, and that affects all students (not to mention me).

This is a pretty touchy issue among law students and, apparently, some law professors. The vast majority of my fellow students use laptops in class. Even though I own a laptop, I'm not one of the in-class users. I have a few reasons for this. First, it's easier for me to take notes by hand. It's easier for me to scribble something out and jot additional notes in the margins than it is for me to manipulate Word at note-taking speed. Second, I spend enough time staring at computer screens enough as it is. Adding a few more hours a day of computer screen staring isn't going to do my eyes any favors. Third and finally, I just like handwriting my notes. I'm used to it. It's comfortable for me. However, I recognize that I'm in the minority. Most of my classmates are pro-laptop. They take better notes by typing into a word processing program.

Prof. Cole has good points. The one that stands out to me is the distraction point. It's hard to not be distracted by other students using the internet, playing solitaire, or IMing people. It's not that I'm incredibly interested in what's currently the hot topic on PerezHilton.com or anything. When websites load, IMs pop up, screens change, or whatever, it draws one's attention. It's reflexive. Even if you put on blinders to kill your peripheral vision, you still have to deal with all the laptops in front of you. Of course, there are always distractions in any classroom. I don't think it's fair to focus on laptops as the one great evil.

I'm not sure I agree with Cole's point about handwriting forcing a student to think critically and process information. That might work for some people, but it might not work for everyone. In fact, I think it's a safe bet that it doesn't. Some people just take better notes using a computer. That's the best way for them to process information. I say let them. I'll suffer through being occasionally distracted while they update their MySpace profile.

I'm sort of in a standing mood lately. Standing was one of the issues (the only issue, if you ask me) in the Massachusetts v EPA case. It also plays a major role in a case from my beloved and very active Seventh Circuit. The case is Winkler v Gates, better known as the Boy Scout Jamboree case.

First, here's a little background on the issue. A group of taxpayers are challenging a federal statute, 10 U.S.C. § 2554, that requires the United States military to assist the Boy Scouts organization with its Jamboree, a big to-do held every four years. These plaintiffs are saying that the statute violates the Establishment Clause of the First Amendment because the Boy Scouts exclude atheists and agnostics. The federal district court (that's the lower trial court) said that the plaintiffs had standing, that the Boy Scouts were a religious organization, and that the statute violated the Establishment Clause and was unconstitutional.

Now we find ourselves in the Seventh Circuit Court of Appeals. Judge Diane Wood is at the pen for the majority. I'm going to quote from her opinion and give some analysis. In case anyone wants to cry bias, I'd like to state that I was never a Boy Scout or Cub Scout. I'm just not a big kerchief person.

Judge Wood begins with the standing issue, identifying Article III standing (Lujan standing) and prudential standing (Newdow) before diving right into the issue of taxpayer standing...

At one time, the Supreme Court did not recognize any doctrine of taxpayer standing in federal court. A taxpayer's stake in any government action, the Court pointed out, "is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, [is] so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." Frothingham v. Mellon, 262 U.S. 447, 487 (1923).

Frothingham was a taxpayer challenge to the Maternity Act, which gave federal money to the states to improve maternal and infant mortality. Frothingham said that she as a taxpayer had been injured because the program will increase the tax burden on her and take her property without due process. Yeah, that went nowhere. The Court did not want to grant her standing, because that would give virtually anyone standing to challenge any federal action that uses money. Government couldn't operate like that.

Where there is a rule, there is an exception. Judge Wood then discusses Flast v Cohen as the exception to Frothingham...

The Flast Court described the concededly limited set of cases in which a litigant would have standing to assert claims solely in her capacity as a taxpayer:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. 392 U.S. at 102-03.

Faithful readers may remember this language from my post on the Hein case. Judge Wood explains the distinction...

The Court distinguished Frothingham as a challenge under the Due Process Clause, which, unlike the Establishment Clause, does not impose a specific limitation on Congress's power to tax and spend

Now, we get to the legal issue of the case...

The more difficult question is whether the Jamboree statute is the type of legislative enactment that the Flast Court had in mind. Is it an "exercise[ ] of congressional power under the taxing and spending clause of Art. I, § 8," or do we have only an "incidental expenditure of tax funds in the administration of an essentially regulatory statute"?

To determine what kind of statute we've got here, Judge Wood says we need to look at two cases: Valley Forge and Bowen. Valley Forge was a challenge to a transfer of an old military hospital to Valley Forge Christian College. A federal statute gave the secretary the power to transfer property to public and private entities as a way to put surplus property to use. The Court said that there was no taxpayer standing because this was a use of the Property Clause of the Constitution, not the taxing and spending power. Bowen involved a challenge to a federal grant program that the petitioners claimed violated the Establishment Clause. The Court found a sufficient nexus between the taxpayer standing and the tax-spend power.

So which one are we dealing with here?

Judge Wood looks at the statute. Basically, it lets the Secretary of Defense lend equipment, personnel, and facilities to the Boy Scouts. It's reproduced on pages 9 through 11 of the opinion if you want to read it all.

Judge Wood asks if the Boy Scouts are a religious organization. She recognizes that there are religious aspects to scouting, but there is no affiliation with any particular religious denomination. They let anyone in who can accept the Oath and the Scouting laws (atheism and agnosticism don't cut the mustard on that one). Most significantly, anyone (including members of the general public) can attend the Jamboree.

Judge Wood believes that this case is not like Bowen...

More persuasively, the Secretary contends that Winkler lacks standing because the Jamboree statute is not a "taxing and spending" statute but rather is authorized by Congress's powers under the Property Clause, Art. IV, § 3, cl. 2, and the Military Clauses, Art. I, § 8, cls. 12-14. The military is, in other words, just regulating its own property and manpower.

Wood recognizes that some money is spent, but Congress needs to expend some tax dollars anytime it does anything. There will always be some incidental use. The Jamboree statute has support in many areas of the Constitution...

Congress usually does not indicate which of its manifold powers it is exercising when it passes a particular piece of legislation, and some pieces of legislation undoubtedly rest on multiple constitutional clauses. The Jamboree statute is a good example. It apparently relies, in part, on the Property Clause, Art. IV, § 3, cl. 2; the Military Clauses, Art. I, § 8, cls. 12-14; and even the Commerce Clause, Art. I, § 8, cl. 3.

Judge Wood finds more support for the statute in its own language. There is another purpose: military recruiting...

Even assuming that it is correct to characterize the BSA as a "religious" organization, this statute is for the purpose of assisting the military in persuading a new generation to join its ranks and in building good will. This is a secular and valid purpose. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S.Ct. 1297 (2006)

I literally laughed with glee when she cited Rumsfeld v FAIR in this opinion. That decision is going to stick in the craw of the elite law school FAIR folks for a long time to come. More on the recruiting issue...

Furthermore, a court is poorly equipped to second-guess the military's own assessment of the benefits of the Jamboree. In a time when the armed forces regularly spend significant funds both for recruitment and public relations, Congress's decision to authorize them to take advantage of a built-in audience of potential recruits is reasonably related to the activities authorized by the Military Clauses.

Since the statute is an exercise of Congressional power under the Military and Property Clauses, not the taxing and spending power, the taxpayers do not have standing to challenge it. The 2010 Jamboree is on.

Judge Diane Sykes wrote a concurring opinion, agreeing that there is no standing but for other reasons. She reads the Flast exception much more narrowly than the majority...

the better course is to follow the admonition in Valley Forge, apply the Flast exception to the Frothingham rule with "rigor," and limit Flast's reach to factually similar claims until the Supreme Court tells us otherwise. That means no standing here, but for a threshold reason rejected by the majority: because the Jamboree statute does not establish a congressional grant or direct appropriation program of the type at issue in Flast and Bowen.

Judge Sykes thinks that the majority here and others on the Seventh Circuit in the past have been too lose with the standing rules. I guess there's a lot of that going around, right Justice Stevens?

Judge Sykes also makes a point about the bizarre injury claim of the petitioners. She looks at the order issued by the lower court...

This order was dated June 22, 2005, and it notes that "[t]he injunction the plaintiffs are seeking specifically excludes the upcoming 2005 Jamboree." Whether the plaintiffs' forbearance in this regard was the product of generosity, the spirit of compromise, or a desire to avoid the public relations fallout that would have attended their eleventh-hour scuttling of the 2005 Jamboree (if that's what would have occurred), their conduct undermines any claim that they were suffering a grave constitutional injury.

So they were being "injured" by the Jamboree statute... but they were willing to let the 2005 Jamboree happen on the off chance that their injunction might cause its cancellation and a PR nightmare. Yeah, I'm really doubting the severity of the injury here too.

Well, the Jamboree is on. We're all invited too, I guess. If you read all the way to the end of this very long post, thanks for being interested or being really bored.

The Seventh Circuit Bar Association and Judicial Conference will be descending on Milwaukee May 6 through the 8th. You can check out a PDF of the program here. The line up is unbelievable. Here are a few highlights that I find extremely interesting. First is a panel about the media and the Supreme Court...

9:45 AM – 10:45 AM Traditional Media's Coverage of the Supreme Court
Moderator: Mike Gousha, Distinguished Fellow in Law & Public Policy, Marquette University Law School
Panelists: Joan Biskupic (USA Today); David Savage (LA Times); Stephen Henderson
(Washington Bureau of McClatchy Newspapers); Professor Jonathan Turley (George
Washington Law School); Dean Joseph D. Kearney (Marquette University Law School)

Next is a legal blog panel...

11:00 AM – 12:15 PM The "New" Media: Bloggers and the Courts
Moderator: Honorable Diane S. Sykes, Circuit Judge, United States Court of Appeals
for the Seventh Circuit
Panelists: Professor Ann Althouse, University of Wisconsin Law School ("Althouse"); Howard Bashman, Law Offices
of Howard J. Bashman ("How Appealing"); Professor Jason Czarnezki, Marquette University Law School ("Empirical Legal
Studies"); Professor Richard Garnett, University of Notre Dame Law School ("Prawfsblog"); Professor Christine Hurt, University of Illinois College of Law ("Conglomerate"); and Professor Eugene Volokh, UCLA Law ("The Volokh Conspiracy")

Two of my former professors are on that panel. That's kind of cool. And I'm very familiar with the work of everyone else on the panel too.

I have a feeling that this debate is going to be excellent...

Debate: Constitutional Rights and Other Legal Issues in the War on Terror
Moderator: Honorable Frank H. Easterbrook, Chief Judge, United States Court of Appeals for the Seventh Circuit
Panelists: Honorable Richard A. Posner, Circuit Judge, United States Court of Appeals for the Seventh Circuit; Professor Geoffrey R. Stone, University of Chicago Law School

Posner and Stone know each other very well, so I'm expecting the debate to be very polished and nuanced. I'm sure they won't hold back either.

And to end the night Monday...

Annual Reception & Dinner
Insights from the Supreme Court
Observations by Honorable John Paul Stevens, Associate Justice, United States Supreme Court Special Presentation of the American Inns of Court Professionalism Award to Honorable Janine P. Geske, Distinguished Professor of Law, Marquette University Law School
Evening Address
United States Solicitor General Paul D. Clement

That's quite a line up: an Associate Justice of the Supreme Court, the former Chief Justice of the Wisconsin Supreme Court, and the Solicitor General. Unfortunately, I am a broke law student, so I can't attend any of the food-related events. They're a little too pricey for me.

I'm also in a bit of a jam with scheduling. This event has been scheduled during the exam period here at MULS. I have an exam Monday night and Tuesday night. What to do, what to do... I'm going to see if I can fit a few of those panels into my schedule. I really want to go, but it might not be possible. School comes first. We'll see. If you can attend, I highly recommend that you do. This is quite the collection of brilliant legal minds.

Madison.com has a detailed but horribly formatted article about the Seventh Circuit Court of Appeals' reversal of Georgia Thompson's conviction. I did my best to pound out a summary of the oral argument highlights in this post. Here are a few highlights from the article...

In arguments court, the charges against Thompson were called unfounded.
"I have to say it strikes me that your evidence is beyond thin," federal Appeals Judge Diane Wood told prosecutors. "I'm not sure what your actual theory in this case is."

Sorry but the formatting of this article really drives me nuts. Even the paragraphs lean left in Madison... Anyway, here's Michelle Jacobs, spokesperson from the US Attorney's office in the Eastern District...

"We convinced a...jury, and we convinced (U.S. District Court Judge Rudolph T.) Randa but I think we're going to see that we didn't convince the three-judge court of appeals," Jacobs said. "I think it's very unlikely that we'll petition for a rehearing."

I don't see how the office could seriously ask for a rehearing. The three judge panel was made up of Chief Judge Easterbrook, Senior Judge Bauer, and Judge Wood. This isn't exactly a bleeding heart panel. Let's hear from an expert...

Michael O'Hear, a law professor at Marquette University, said the Court of Appeals decision is unusual.
First, he said appeals court judges typically issue decisions weeks or months after hearing oral arguments rather than on the same day. Second, instead of ordering a new trial, which is typically how appeals panels rule in favor of defendants, the judges acquitted Thompson.
"If this was a finding of insufficient evidence, what they're saying is it's unjust that Georgia Thompson has been in prison the last few months," O'Hear said.

Basically, this does not happen often. I personally have never encountered a federal appeals court doing this (with a caveat that I'm not a huge criminal law guy). Obviously, this is big news. I really hope that the panel churns out that opinion quickly, because I bet it's going to be a doozy.

EDIT: I'd also like to add this link to a post by talk radio host Jessica McBride. She's got a good analysis of the situation...

Obviously, the three-judge Republican leaning panel didn't buy any element of the government's case. They didn't think Georgia had anything to gain, or the taxpayers to lose. They didn't think the government proved "significant" political connections between the governor and Adelman or a political quid pro quo in the Thompson case. They didn't believe Adelman didn't win the travel contract outright. They didn't believe that a state worker who injects a subjective reason into a procurement decision, absent a political quid pro quo or evidence of criteria manipulation, should be convicted of a federal crime over it. Hence, their weird Brad Pitt analogy (it will take too long to explain it; listen to the audio).

I was trying to transcribe the Brad Pitt analogy in my original post but gave up. Basically, Judge Wood wanted to know if Thompson would have committed a crime if she directed the contract to Adelman if their rep looked like Brad Pitt. The question is this: if a government employee interjects a subjective rationale into the contract awarding process, has that employee violated federal criminal law? If you want to get the full effect (Judge Easterbrook really hammers this point home at the end of the argument), just listen to the entire argument.

McBride also looks at the judges on the panel in this post...

Judge Diane Wood. Appointed by Clinton in 1995. Rumored to be possible appointee of Kerry if he'd become president. Clerked for Harry Blackmun. Former prosecutor in Clinton Justice Department and professor. A liberal but received easy confirmation.

Judge Frank Easterbook. Appointed by Reagan. Former law school professor.

Judge William Bauer. A former U.S. attorney nominated in 1975 by Gerald Ford.

So, it's not a liberal panel run out of control.

Far from it. Judge Wood is fairly liberal, but she's also incredibly intelligent and takes her job as a judge very seriously. She's no Stephen Reinhardt. If I was a Democratic president (scary thought for us all), I'd put her on the Supreme Court the first chance I got. While she was the dominant questioner, it's obvious from their own statements and by the result that Easterbrook and Bauer agreed totally that the conviction was wrong and the case was without merit.

Carve that into a tree or write it into the latest volume of the US Reports. Justice John Paul Stevens is the eldest member of the Supreme Court. He can also count to five. The combination of decades of experience and pre-school level math skills have clued him in on two important things: Justice Kennedy is the swing vote for any majority, and Justice Kennedy loves to have his ego stroked.

Check out these posts from Ed Whelan at Bench Memos. Why on earth did Stevens include the Georgia v Tennessee Copper Co. case in Massachusetts v EPA? It is the case, as Chief Justice Roberts said, that the petitioners never cited in their briefs before the Court or the DC Circuit, that not one of the many amici supporting petitioners ever cited, and that not one of the three DC Circuit judges ever cited. Where the hell did this case come from? Justice Kennedy brought it up during oral argument. Whelan thinks that Stevens put it into the opinion to get Kennedy's vote...

It seems quite likely that everyone but Kennedy recognized that Tennessee Copper was irrelevant to the standing question but that Stevens drafted his opinion to pander to Kennedy's vanity - and Souter, Ginsburg, and Breyer gladly signed on. Such is the sorry state of Supreme Court decisionmaking by these five justices.

This isn't the first time that Stevens has done this, as evidenced by the second Bench Memos link.

Justice William Brennan used to tell his clerks, "Five votes can do anything around here." Stevens knows this. He learned well from the politicking Brennan how to win votes and influence Justices.

The Seventh Circuit Court of Appeals released Georgia Thompson, the former state employee convicted of illegally directing a contract to a Adelman Travel. You can read the short order here. Here is the text of it if you're not into link clicking...

The judgment of conviction is reversed, and the case will be remanded with instructions to enter a judgment of acquittal. An opinion will be issued in due course. The time to file a petition for rehearing is extended until 14 days after the court issues its opinion.
This extension of time also means that the mandate will be deferred. But Thompson is entitled to immediate release from prison, on her own recognizance. The United States must make arrangements so that she may be released before the close of business today.

I'm listening to the audio from the oral argument right now. Here are a few statements made by Thompson's lawyer...

There is nothing in the indictment that charges that she even knew about the campaign contributions and certainly nothing in the evidence that shows contrary... A retrospective view by the government concerning the contributions... contributions were within the limits of the law... She could not get a promotion... career civil servant... This court will become a clearinghouse for all kinds of retrospective looks second guessing the discretionary acts of government employees in light of information that they didn't know about at the time...

The government's lawyer states that there is evidence about the political connections between Adelman Travel and Doyle. Judge Wood thinks that the connections are weak. The owners had met with Doyle, Doyle spoke at the company anniversary party which is not an odd move for a politician, and the owners made contributions within the legal limits. The government's lawyer then stumbles (It's painful... I've been there during oral arguments too...) because there aren't the smoking guns in the record that Judges Wood and Bauer seem to be seeking. He responds that there were meetings between Adelman reps and administration officials, unlike the other bidders. Judge Bauer asks if Doyle and the Adelman people were prosecuted, since they were the ones who were responsible. Why go after Thompson, he asks.

My hands are about to fall off trying to keep up with this. Basically, the court seems to be concerned that the evidence was way too thin to punish Thompson under the criminal law. I'm looking forward to reading the opinion.

Jan Crawford Greenburg's book Supreme Conflict is high on my recommended reading list. Anyone who is interested in the modern Supreme Court should read it. I found these two clips on YouTube recently. They show Greenburg discussing a few of the topics in the book. First, she talks about the internal Court politics involved in Bush v Gore...

Second, Greenburg talks about the effect that Justice Thomas has had on the Court...

Just read the book already so I can stop trying to sell it to you.

There are some interesting legal battles in Europe...

STOCKHOLM, Sweden - Metallica may be a cool name for a heavy metal band, but a Swedish couple is struggling to convince officials it is also suitable for a baby girl.

Michael and Karolina Tomaro are locked in a court battle with Swedish authorities, which rejected their application to name their six-month-old child after the legendary rock band.

The Swedish National Tax Board refused to register the Tomaro girl's name. Apparently they aren't heavy metal fans.

The couple was backed by the County Administrative Court in Goteborg, which ruled on March 13 that there was no reason to block the name. It also noted that there already is a woman in Sweden with Metallica as a middle name.

The tax agency appealed to a higher court, frustrating the family's foreign travel plans.

This is just bizarre. For the record, I think that Metallica is a dumb name and this girl will get teased like crazy in school. Parents shouldn't give their kids names that will make them the target of ridicule. Childhood is hard enough. However, I don't think that it's the job of any government agency to veto names. This is the parents' choice (and mistake) to make.

Maybe the Tax Board is just mad that the Tomaros picked Metallica (an American band with a Danish drummer) instead of a Swedish band. Opeth would be a pretty name for a girl. Or maybe not.

For those of you who don't like to read, here is Rick Esenberg talking about the Wisconsin Supreme Court.

The US News and World Report law school rankings are out. I really don't care. I do care that the newest Hylton Rankings are available at the ELS blog. I'm a big fan of Professor Hylton's work in this area and have no problem shamelessly promoting his list again.

Normally on election days, I post that stupid Weekly Standard picture with Chris Dodd, Joe Lieberman, and Barney the Dinosaur that says "IT'S ELECTION TIME!" I make some smart remark about Dodd's eyebrows, we all have a laugh, and we hit the polls. I'm not really in the funny business mood today. In fact, I'm feeling very serious about this election.

I got a copy of Rick Esenberg's paper A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court in the mail today. One of the perks of being in the Federalist Society is that they constantly send you cool stuff. I knew about all of the cases in the paper before I read it. They are fairly famous/infamous in the Wisconsin legal community. But oddly enough, I couldn't help but shake my head in shock and disgust over what the majority of our state's Supreme Court has done since the 2004-2005 term. I strongly urge that you read it before voting.

This list of criticism and commentary really struck me...

Public commentary about the Wisconsin Supreme Court as "activist" began in the wake of the 2004-05 term, the first term following the resignation of Justice Sykes (appointed to the Seventh Circuit by President Bush) and her replacement by Justice Louis Butler, a trial court judge in Milwaukee and former public defender, by Democratic Governor Jim Doyle. After a series of decisions expanding the ability of plaintiffs to recover damages in various ways, the Wall Street Journal ran an editorial referring to Wisconsin as "Alabama North," a magnet for trial lawyers. Anticipating the remarks of Judge Sykes, Milwaukee County Circuit Judge Michael Brennan wrote that the court's decisions raised "concern about the proper exercise of judicial authority under the state's constitution." A national advocacy group led by Dick Armey, former majority leader of the U.S. House of Representatives called
Wisconsin a "Tort Hell Tundra." Susan Steingrass, a law professor at the University of Wisconsin observed that "[i]t's an interesting court to watch now. Nothing's for sure."

Laudable or not, something was happening. Joseph Kearney, Dean of Marquette University Law School, observed that "[b]y any measure, this was an extraordinary year at the Wisconsin Supreme Court." According to Kearney, "[f ]rom tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches."

The court was extremely reckless. As Judge Sykes explained in her speech last year (which you should also read) and as Esenberg explains in his paper, the new majority threw caution and precedent to the wind, rewriting the rational basis test, telling the police how to do their jobs, and handing down a variety of other surprising rulings. Unfortunately, Justice Jon Wilcox, one of the frequent dissenters, is retiring. If his seat is taken by a Justice with a judicial philosophy in line with that of the majority, the court will slip further into la la land. I believe that Linda Clifford and her "I am willing to let the constitution breathe and reflect what society needs in any given context" philosophy is exactly in line with the unbound rulings of the majority. She will add another vote to the Abrahamson, Bradley, Butler, and often-Crooks group of Justices that has been so willing to substitute their preferred policy judgments for those of the legislature and the people of this state.

I don't really care about most of what has been said in this election campaign. Most of the ads and attacks have been lame and unimportant. The discussions about judicial philosophy have been sorely lacking, and they are the discussions that matter the most. I am not happy about Judge Annette Ziegler's conflict of interest problems that she's had while on the circuit court. I think that she should have recused herself in those cases. But we've got two candidates in this election. Two choices, that's it. We don't get perfect candidates, and this election has shown that. I'm not voting for Judge Ziegler because she is perfect. I'm voting for her because her judicial philosophy is closer to mine. It's closer to that of Justice Wilcox, Justice Roggensack, and Justice Prosser. It's closer to the role that I see as legitimate for a member of the judiciary.

This state cannot afford to have a Supreme Court that judges (and I use that term loosely) like the majority has in the last few terms. The best candidate for the job is Judge Annette Ziegler.

The title quote is one of the reasons why The Chief is quickly becoming my favorite writer on the Court. I'd like to take a look at the Chief's dissent in today's Massachusetts v EPA case. CJ Roberts focused on the issue of standing. Since I'm quote happy today, I'm going to quote the explanation of standing from Wikipedia...

In the common law, and under many statutes, standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. To put it simply, the party suing has to have something to lose if the law is left on the books.

Basically, you need to have standing to get your foot in the courthouse door. There are three requirements that a petitioner must meet to have standing. These were discussed in Lujan v Defenders of Wildlife...

1. Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

Now, onto the Chief's dissent. Prepare for heavy quoting...

Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

In his opening, the Chief makes it clear that this dispute has no place in the courts.

Here's the Chief on what the petitioners must show...

[P]etitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.

Then the majority decides to throw a curveball at us...

Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”

Can't get into court under the normal standing rules? Let's make some new ones up! The Chief then criticizes the majority's "creative" reading of the Georgia v Tennessee Copper Co. case...

In contrast to the present case, there was no question in Tennessee Copper about Article III injury. See id., at 238– 239. There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had “an action at law.” Id., at 238. Tennessee Copper has since stood for nothing more than a State’s right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. See, e.g., Maryland v. Louisiana, 451 U. S. 725, 737 (1981). Nothing about a State’s ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.

Over at Volokh, Orin Kerr points out the dueling footnotes between Roberts and Stevens over this case. Roberts points out an interesting fact about the Tennessee Cooper case...

All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either.

Emphasis added. You know, Justice Stevens, I think you were just getting a little "creative" in your reading of Tennessee Cooper. A means to an end, maybe?

Roberts points out that the petitioners haven't shown the injury in fact, causation, and redressability requirements for standing. The injury in fact must be "particularized" under Lujan. The Chief says it can't be...

The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon “harmful to humanity at large,” [citation omitted], and the redress petitioners seek is focused no more on them than on the public generally— it is literally to change the atmosphere around the world.

The Chief goes on to rail against the “"imminent"” or "“certainly impending"” loss of Massachusetts coastal land...

One of petitioners’ declarants predicts global warming will cause sea level to rise
by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth’s coastal land and its current elevation,
and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177– 178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land.

Article III standing demands more than this, or at least it had in the past.

The Chief also thinks that redressability is problematic for the petitioners. There is no way to predict if the rest of the world will reduce carbon emissions. Any decrease in the U.S. could be drowned out by increases in China or India. The injury wouldn't be redressed by any decision of this Court...

No matter, the Court reasons, because any decrease in domestic emissions will “slow the pace of global emissions increases, no matter what happens elsewhere.” Ante, at 23. Every little bit helps, so Massachusetts can sue over any little bit.

Roberts at his snarky best.

Finally, I'm going to quote the SCRAP stuff. SCRAP refers to the US v Students Challenging Regulatory Agency Procedures case. What a great acronym. As the Chief says...

SCRAP involved “[p]robably the most attenuated injury conferring Art. III standing” and “surely went to the very outer limit of the law”— - until today.

Here's what the case was about...

In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that increases in railroad rates
would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area, resulting in increased refuse that might find its way into area parks, harming the group’s members.

SCRAP became infamous among standing cases...

Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude
on the politically accountable branches.

The majority decided to monkey around with the standing rules today. As an exercise of raw judicial power, it's their right to do so. I still think that it was wrong and motivated by the policy preferences of the five Justices. Standing is an important separation of powers protection. It keeps disputes that are not "cases or controversies" out of the courts and in the democratic process where they belong. The majority thumbed their noses at that principle today.