Eminent Domain

It's Been Fun

2008-01-04T16:18:00.000-06:00

I know that I've got a sizable collection of posts that start "I know I've been gone for a while," but I thought that I could squeeze one more into the pack. I know I've been gone for a while, but forces much stronger than Blogger.com are to blame. The past month and a half has been eaten up mostly by what I will just call professional developments. When combined with my current day job, holiday and family stuff, and the random things that tend to come up, I haven't had any time to write anything. Honestly, I haven't even had time to keep up with my normal blog reading schedule. It's strange that I had the most free time to blog while I was in the middle of law school (since that takes absolutely no time commitment at all, right?).

Anyway, this is my last post for the foreseeable future. This isn't going to be a hiatus like I've done in the past. This is me quitting. I guess I should address the Why? question. Beyond the aforementioned time issues, I've lost my zeal for blogging. I just don't have the drive to spend hours reading, researching, and posting. It's become too much work and just not as fulfilling as it once was. I'm not ruling out a return eventually. Stranger things have happened. But as of right now, I don't plan on it. Like I said, something might happen to change my mind... a big Court case might energize me, new found free time might draw me back to the keyboard, or I might just miss it after a long enough break. The blog itself won't go anywhere. I'm not deleting it. I'm just not posting anything on it.

For the hell of it, I thought I'd include a little (very little) substance in this post. If you haven't noticed, there's an election going on this year. It's kind of an important one too. If you're a Supreme Court fan, it's a very important one. If you're a right of center Supreme Court fan, it's like the Battle of Stalingrad. The Court has (in general terms) four conservative votes, four liberal votes, and one idiosyncratic Justice Kennedy. Kennedy tends to be more conservative than liberal, but there is still no solid majority on the Court.

It is likely that the next president will appoint at least one new Justice. Justice Stevens is 87 years old. Justice Ginsburg is a not-to-spry 74. A retirement is likely between now and 2012. If the retiring Justice is a liberal (as are the two previously mentioned Justices), than something very important could happen. Either a Republican president can appoint a conservative Justice, swaying the Court to a solidly conservative majority. Or a Democratic president can appoint a liberal Justice, holding that seat on the Court in liberal hands for the next two decades. (Of course, there is a third option: the president appoints a moderate and not much changes. I think that any president of either party will work strenuously to not let this happen. That seat is too important).

So what is one to do? I don't particularly support any of the presidential candidates. There's just no one that really grabbed my attention. I decided that my best bet is to analyze (and I use that term loosely) each of the Republican nominees and see what I think at the end...

Rudy Giuliani - I like him personally. He revitalized NYC, he's run a large government, and he gets the terrorism issue. However, he's a bit of a nanny stater and authoritarian. I don't like his record on Second Amendment issues. He has made it clear that the judges issue is important to him, and I believe him. He's got a great legal advisor group around him. I really don't care much about his personal life, but I know that the guy has more skeletons in his closet than a haunted house. Is that good for a candidate, especially when there is a long campaign ahead? I doubt it.

Mike Huckabee - A snake oil salesman who wears his religion on both sleeves, his lapel, and on a sign taped to his back (just in case you forgot that he was a Christian minister). Pro-big government, naive national security views, and the biggest nanny stater this side of the right/left divide. What's not to not like? I'd stay home in November before I voted for him.

Duncan Hunter - Who?

John McCain - Strong on national security issues and terrorism. Most importantly, he's tough. He could survive the long and dirty campaign that is going to come. He would also be the strongest in the general election, if you believe the polls. Partially to blame for the McCain-Feingold campaign finance law (which I think is an unconstitutional abridgement of the First Amendment) and other domestic policy blunders. Also, part of the Gang of 14. Can he be trusted on the issue of judges?

Ron Paul - I agree with him on a lot of domestic issues, but I think that his foreign policy is dangerous, naive, and archaic. My complaints about Paul are the same complaints that I have about the Libertarian Party. I'm glad that his small government message is out there and gaining traction, though. It's something that the other Republicans need to remember.

Mitt Romney - I think that I have a genetic disposition against politicians from Massachusetts. I can't think of a single one that I like. It's hard to really know where Romney stands on the issues when he's changed his mind so much. There's nothing wrong with changing ones mind. It just seems odd that all of the changes have been fairly recent and would make him more appealing to Republicans nationwide. Coincidence? Comes across as way too polished and rehearsed. Spectacular hair.

Fred Thompson - I think that I agree with Thompson more on policy than I do with any of the other candidates. My concern is his ability to wage the kind of campaign necessary to win. He's been very slow to start. With all the hype that he had pre-candidacy, he should've been able to steamroll his way to the front of the pack. He's been low key, the anti-candidate. Unfortunately, that doesn't translate well in a world where campaigns live or die by the sound bite. The pundits talk him down, the media covers him less, and his support dwindles. If he can hang on, stay viable through Super Tuesday, and get the people who support him to actually vote for him, he's got a shot at the nomination.

So here I am, on the raggedy edge, looking to make my jump to one of the candidates, pledge my support and probably some cash, and ride things out to the bitter end. Right now, I'm backing Thompson. He needs to stay alive through January, though. And I'm not sure that's in the cards. He needs strong showings to, as he said (paraphrased), get the ticket to the next dance. If Thompson craps out, I'm throwing my support behind McCain. Yes, McCain. I have serious disagreements with the man, but I think he's strong enough to win the general election. I don't need 100% agreement to vote for someone. I didn't agree with President Bush on everything, but I voted for him twice. Hell, I'd probably vote for him again.

Believe me, I'm not happy about this election situation. I've never felt so underwhelmed and depressed by an election or a slate of candidates. If I had my choice, my presidential ticket would be Mark Sanford and Sarah Palin, governors of South Carolina and Alaska respectively. Unfortunately, they are nowhere to be found (actually, you can find them in South Carolina and Alaska). I'm stuck with what I've got, and I'm not very optimistic about the outcome. I have a bad feeling that a Democrat will be sworn in and replacing Justice Stevens in a little more than a year. So it goes, as Vonnegut would say.

Well, that's it. Last post. I'll keep up with the comments here, in case anyone wants to call me stupid for my picks. Thank you for reading all these years. I've really had a good time.

A Little More Complicated...

2007-12-06T17:07:00.000-06:00

I had a chance to listen to the audio from the Boumediene v Bush case last night. I previously guessed that this would be a clear 5-4, Kennedy joins the liberals case. After the argument, I'm not so sure anymore. Kennedy was oddly quiet. The questions that he did ask seemed to hint that he sided with the government. It was very interesting. I'm going to chew on this a little bit more, then post about it. Until then, here's Justice Kennedy being funny...

With all the talk about GITMO and enemy combatants, I thought the mood should be lightened.

Clinton on the Supreme Court

2007-12-05T23:37:00.000-06:00

Scary title, isn't it? I'm using the word "on" in place of "talking about," so hopefully that should calm some fears. But wait. Don't relax just yet. Here's Senator Hillary Clinton talking about who she would appoint to the Supreme Court and her views on the Roberts Court. Buckle up and grab a sick bag. This is rough...

"...the Constitution is an organic, growing, evolving set of principles..." Thank you, Senator Clinton, for giving me a pithy quote to use as a reason why I will never, ever vote for you for any political office.

Apparently, the Roberts Court is rolling back the 20th Century. I hadn't heard; I must've missed that in the pages of the US Reports. I can't wait for that legalizing child labor decision to come down, though. I will celebrate that day with cigars and brandy along with my fellow lumber and steel barons. It'll be like a Thomas Nast cartoon.

I love her whole "this (the Roberts Court) is an assault on progress"/dark era of child labor reference... but she doesn't believe in judge bashing. Oh, no. Only Republicans do that. Give me a break.

Honestly, there isn't a single candidate running for the presidency that I support. None of them make me want to run to the polls to vote for them. But I will take a Giuliani, Romney, Huckabee, Thompson, Paul, McCain, Tancredo, or Hunter-Supreme Court Justice over a Clinton, Obama, Edwards, Kucinich, Biden, Dodd, Richardson, or Gravel-Supreme Court Justice any day of the week.

Same Day GITMO Audio

2007-11-27T10:41:00.000-06:00

It looks like the Court will be giving us same day audio of the oral arguments in Boumediene v Bush...

The Supreme Court will hear arguments next week about the rights of prisoners who have been detained at Guantanamo Bay, Cuba, and will immediately release audio tapes of the proceeding.

The court made available same-day releases of audio tapes on two occasions last term, for cases involving abortion and the use of race in public school assignments. The quick release of audio tapes in major cases dates to 2000, when justices heard Florida ballot recount appeals that determined the outcome of the presidential election.

Television cameras are barred from the court and reporters are not allowed to use tape recorders there. But arguments are taped by the court and usually are released at the end of the term.

The cases to be argued next Wednesday deal with whether the Guantanamo detainees can contest their confinement in U.S. civilian courts.

I'm definitely going to check this out. As far as the case goes, I think it's a pretty easy call. Government loses 5-4, Kennedy joins the liberals. You heard it here last.

Female Dog Catcher for Supreme Court

2007-11-15T21:00:00.000-06:00

Best Democratic Presidential debate yet.

Not Impressed

2007-11-12T03:34:00.000-06:00

I spent a little time this weekend watching coverage of the presidential race (something that I've been avoiding like the plague). It made me remember this...

Rehnquist was not impressed with Bill Clinton and his wife. When told that the newly elected president was thinking of nominating Hillary as attorney general, the chief justice quipped, "They say Caligula appointed his horse counsel of Rome."

I miss Chief Justice Rehnquist.

The Right to Be Rude

2007-11-10T22:07:00.000-06:00

I love being able to make update posts. Remember this story from a while back? Here are the facts of the situation, for those of you with an aversion to clicking links...

The Volokh Conspiracy has been blowing up today with posts about a controversy at San Francisco State University. The whole mess stems from one of my favorite parts of campus life, the student protest. Here's what went down...
The College Republicans "offense" took place on October 17, 2006, when they held an anti-terrorism protest in SFSU's Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protesters, the flags they had copied contain the word "Allah" written in Arabic script.
The CRs were charged with violations of university policy for "attempts to incite violence and create a hostile environment" and "actions of incivility" in violation of the Standards for Student Conduct. The investigation portion of this drum head has ended and now the complaint is being sent to the Student Organization Hearing Panel for review" and "possible disciplinary proceedings."

Well, the wheels of justice have churned away (slowly as usual) and we've got some results. The CRs were cleared at the review panel, but they ended up filing a lawsuit because the civility code had a chilling effect on future speech. A federal magistrate has ruled the "civility" expectation in the student handbook unconstitutional. The intimidation and harassment rules are still in effect, as they should be (IF they are applied fairly). Overall, I'd call this a victory for free speech on campuses.

Four out of Nine

2007-11-01T21:59:00.000-05:00

The UK's Telegraph has published a list of the 100 most influential conservatives and the 100 most influential liberals. The lists are pretty decent and worth a look if you have a few minutes to kill. The lists did include four current Supreme Court Justices too...

8. JOHN ROBERTS
Chief Justice of the Supreme Court

George W. Bush will bequeath his successor a head of the Supreme Court who could be on the bench for the next 30 years, shaping the parameters of American life for the next generation and beyond. Roberts joined the court as chief justice in July 2005. He was originally nominated by the president as an associate justice to replace the retiring Sandra Day O'Connor, but was given the top job when William Rehnquist died. At 50, he was the third youngest man to lead the court.

Bush chose him as a reliable conservative and he has not disappointed so far. But the Christian Right's holy grail of overturning Roe versus Wade and making abortion illegal is not among his plans, although he backs limiting practices such as partial-birth abortion. On issues such as the future of Guantanamo, the death penalty, the limits of what constitutes torture, the reach of executive power and conducting the war on terror, the Roberts court will have far-reaching influence. Already the Supreme Court under Roberts has become more conservative.

62. JUSTICE ANTONIN SCALIA
Supreme Court Justice

The first Italian-American to be appointed to the Supreme Court, by Ronald Reagan in 1986, "Nino" Scalia, 71, is beloved by conservative Republicans. A committed Roman Catholic and father of nine, he is a much more forceful and intellectually flamboyant personality than his fellow conservative justice Clarence Thomas.

A strict "textualist" and strongly anti-abortion, he adamantly opposes attempts to interpret the US constitution in the light of modern mores. If he were not such a lightning rod for criticism from Democrats, he would have been a natural Chief Justice. Has an acid wit, barbed tongue and relish for taking on his opponents.

85. CLARENCE THOMAS
Supreme Court Justice

It has been 16 years since the contentious confirmation hearings that threatened to stop him becoming the first black Conservative Supreme Court justice were held. In his recent book, he described the experience as being “pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony".

Still only 59, he could be on the court for another three decades, making him one of the longest serving justices in history as well as a reliable Conservative vote on virtually every issue. Adored by the party establishment, a Republican candidate is guaranteed a round of applause when he cites Thomas as a model jurist.

64. JUSTICE JOHN PAUL STEVENS
Supreme Court Justice

Although appointed by a Republican president, Gerald Ford, Stevens, 87, is the most reliable liberal vote on the Supreme Court. Despite his age, he shows no sign of retiring and appears healthy. Has led the judicial movement to restrict the use of the death penalty and to tie the hands of the Bush administration in its attempts to battle the Islamist threat.

Will play a key role in smoothing the path of any new justices appointed by a Democratic president and, perhaps, in identifying his successor.

In case you couldn't figure it out, the first three Justices were on the conservative list and Justice Stevens was on the liberal list. He still claims to be a conservative, but I can claim to be a beagle. That doesn't make it so.

Harsanyi on the News

2007-11-01T15:28:00.000-05:00

I haven't been able to update lately. I've been pretty busy, so I haven't even had a chance to do much scouring for legal topics. I will have another Nanny State post soon, though. For those of you who can't wait, check out the NBC Nightly News tonight. Nick Gillespie of Hit and Run has been kind enough to inform us that David Harsanyi will be making an appearance to discuss some of that fun Nanny State kind of stuff. I'll be breaking my boycott of television news to watch.

Fodder for Ethics Class

2007-10-25T20:33:00.000-05:00

From Volokh...

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?

From Office of Lawyer Regulation v. Inglimo, decided last week by the Wisconsin Supreme Court (paragraph break added):

¶57 The relevant language of SCR 20:1.8(k) is as follows:

(k)(1) ... (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.... (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

¶58 The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other....

¶59 On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident).

Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.... [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

Who says a career in law is boring?

Beer Review: Bell's Octoberfest

2007-10-25T20:14:00.000-05:00

I've been dragging my feet on the reviews lately, which is bad for two reasons. First, people seem to like reading them. It's never a good idea to hack off your readers. Second, we're at the tail end of Octoberfest season. This is probably my favorite time of the beer year. Sure, the Winter seasonals are great (and many of them are already in stores), but there is nothing like a great Octoberfest.

Tonight's selection is Bell's Octoberfest. Bell's is a very consistent, high quality Michigan brewery. I'm a fan of most of their line up. The Octoberfest has a clear, amber color to it. The aroma is dominated by the caramel smell from the malts, not surprising for this style. The taste is smooth and sweet. It's flavorful but not too heavy. The caramel taste of the malts coats the inside of your mouth, leaving a pleasant after taste. The finish is a little surprising. There is a small bite from the hops, but nothing overpowering. I definitely didn't see it coming, but the harshness is reduced as you continue drinking.

I urge you to get your hands on the Octoberfests while you can. Hacker-Pschorr's is great this year, as is Sam Adams' and Flying Dog's. Don't you just love Octoberfest?

I know I do.

Beer Review: Central Waters Happy Heron Pale Ale

2007-10-24T18:44:00.000-05:00

Yes, the beer reviews are back. I had a brief stint a while back writing reviews for a local newspaper. Shockingly, people actually want to read this crap. It's been a while, so here goes nothing. Tonight's selection is the Happy Heron Pale Ale from Amherst, Wisconsin's own Central Waters Brewing Company. I've never had a Central Waters beer before, so the pressure is on to wow me, fellas. The first thing that I notice is the thick, frothy head. I've never seen a headier beer (and I did properly pour it). The beer has a bright orange-golden color to it, not surprising for an American Pale Ale. The aroma is zesty and citrusy, balanced with a hint of graininess. It's an interesting blend. The beer itself is surprisingly light and easy to drink. It's not heavy at all. Since it is a Pale Ale, there is a hop kick to it. The bitterness of the hops doesn't hit you until the very end, but it's a nice jolt. It hits you on the back of your tongue. Overall, this is a crisp and refreshing beer. I only bought a single bottle of it, but I would definitely pick up a six pack in the future.

Nanny State: One for the Road

2007-10-22T00:35:00.000-05:00

I'm loving the book Nanny State so far. I'm loving it so much that I'm going to keep my series of posts about the book alive. After a chapter on food, author David Harsanyi moves on to its partner in crime, drink. I'm something of a beer aficionado, so this chapter hits very close to home. Like the previous chapter, this one is full of interesting and horrible examples of bad legislators and bad laws.

The first infuriating example is that of Debra Bolton. Miss Bolton is a lawyer, single mom, and resident of the DC area. She was pulled over shortly after leaving a restaurant (the parking attendant had shut off her car's automatic headlight feature, so her lights weren't on). The kindly police officer then had her take a field sobriety test. All is well until the breathalyzer comes out. Bolton blows a .03. Big deal, right? The one glass of wine she had at dinner didn't push her over DC's .08 blood alcohol limit. Wrong. Our nation's capital adopted a zero tolerance rule for alcohol. If you are behind the wheel and have anything above .01, you can be arrested. And in this case, Bolton was.

According to Harsanyi, this wasn't an isolated incident of one cop abusing (in my view) his discretion. Hundreds of these under-.08 arrests were made in 2003 and 2004 in DC. Thank goodness that these wine-with-dinner menaces are off the streets. It's not like Washington DC has any other crime that the police could be dealing with instead.

Let's switch to speech and advertising issues before my sarcasm breaks the Internet. Harsanyi also discusses the plight of Bad Frog Beer. The label of this microbrew had a picture of a frog giving you, the consumer, the middle finger. Harmless buffoonery? Nope. Bad Frog was banned in eight states. This was, of course, duked out in court. The Frog claimed First Amendment protection; the state of New York claimed that the cartoon frog would attract kids (because kids can often be found scoping out the microbrew selection of liquor and grocery stores). Well, the Frog won. Hey, a win for the good guys for once!

Harsanyi also mentions the Seriously Bad Elf issue. This one is pretty well known to those of us in the beer snob community. The Shelton Brothers are beer importers with a rather extensive list of beers in their fleet. One of them, Seriously Bad Elf, was banned in Connecticut. From the website...

BREAKING NEWS Seriously Bad Elf has been banned in Connecticut! That little red speck you see in the background of the label? Why, that's none other than Kris Kringle, Santa Claus, who, according to the Connecticut Department of Consumer Protection, cannot appear on a beer label. Sleep well, Connecticutians! Your government is working overtime to protect you. (By the way, you can buy Seriously Bad Elf in Massachusetts. And New York. And Rhode Island. But please do not carry the offending bottles across state lines.)

That's right, folks. Multiple states in the Union have laws banning the use of Santa Claus imagery to sell alcohol. Read that sentence again, just to let it sink in. Take a look at the label on the website. You can barely see Santa. There's another Shelton Bros. beer, named Santa's Butt, with a much better view of jolly ol' St. Nick. A rear view, to boot. The fight for vulgar beer labels marches on, though. Dan Shelton was a lawyer before he became a brewer. He's not taking this lying down.

This chapter really surprised me. I didn't think that the anti-alcohol sentiment was so strong in this day and age. The part of the chapter about MADD and its sharp ideological shift was especially interesting. The next chapter is on smoking, a vice that I actually don't embrace. Hopefully, that chapter gives me some great blog material.

Seriously, folks. Buy the book.

When is Rape Not Rape?

2007-10-21T13:30:00.000-05:00

Well, in Philadephia...

A DEFENDANT accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services."

Unbelievable.

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The rest of Jill Porter's column discusses the details of the incident at length and has more comments from the judge. Amazing.

The Fairness Doctrine

2007-10-21T01:01:00.000-05:00

While cruising my way through Friday's Investors Business Daily, I came across this interesting editorial about the Fairness Doctrine. The editors rip the Democrats for trying to revive the Doctrine, calling it an act of jealousy and frustration. While I agree that the Fairness Doctrine is horrible, I can't help but feel sorry for the Democrats in this situation. Since the demise of the Doctrine at the hands of President Reagan, conservative talk radio has become a major political force. The Left has not been able to muster the same AM-airwave power that the Right has in the past two decades. So I do feel sorry for them, but not too sorry.

There was a big flare up of Fairness Doctrine revival talk last Summer. John Kerry bemoaned the "imbalance" in our public dialogue. Dennis Kucinich pushed for the Doctrine to come back (or at least some serious deiscussion of it), and Hillary Clinton and Barbara Boxer supposedly didn't have a conversation about a "legislative fix" to the talk radio problem. Dick Durbin chimed in as well... "I have this old-fashioned attitude that when Americans hear both sides of the story, they're in a better position to make a decision." That's a lot of cranky D's.

With respect to Durbin's statement, I've never believed that there are only two sides to any story, issue, or policy. If the proponents of the Doctrine really cared about having a robust debate, they would have to broaden their scope. Why not have a libertarian viewpoint added to the mix, or a Green viewpoint, or a Socialist viewpoint (we even have one of those in the US Senate, Bernie Sanders)? There are two reasons. First, that's a lot of people trying to share limited airtime. Second and most important, the Fairness Doctrine isn't really about robust debate. It's about getting more liberal voices on the radio and/or pressuring media companies to carry fewer conservative talk shows.

The Supreme Court took up the Constitutionality of the Fairness Doctrine in Red Lion Broadcasting v FCC. The Court said that the Doctrine was Constitutional, discussing the scarcity of the airwaves, the ownership of the airwaves by the public (not by the private entities), and the fact that the stations are licensed by the government. That's probably the worst, most superficial explanation of Red Lion ever written, but I'm sure you get the main idea: the Court okayed the Fairness Doctrine. Would today's Court come to the same conclusion? I'm not sure, but I doubt that the Court would be unanimous like it was in Red Lion.

Why do I dislike the Fairness Doctrine so much? Am I that big a fan of talk radio? Not exactly. The Fairness Doctrine has a history of being used as a weapon against political rivals. Here's an excellent summary by Jesse Walker, which includes some examples...

In December 1961, Walter and Victor Reuther of the United Auto Workers, together with the liberal lawyer Joseph Rauh, wrote a 24-page memorandum to Atty. Gen. Bobby Kennedy. The memo urged the administration to deploy the FBI, the IRS, and, yes, the FCC to win "the struggle against the radical right," which to the Reuthers included not just the John Birch Society and the Christian Crusade but Sen. Barry Goldwater and the libertarian Volker Fund. The FCC, the authors wrote, "might consider examining into the extent of the practice of giving free time to the radical right and could take measures to encourage stations to assign comparable time for an opposing point of view on a free basis."

Okay, that seems a little ominous, but not exactly damning. It's just a memo. Wait, there's more...

In his 1976 book The Good Guys, the Bad Guys, and the First Amendment, former CBS president Fred Friendly quoted Bill Ruder, an assistant secretary of commerce under Kennedy and a PR consultant during Johnson's presidential campaign, on the advantages of the regulation. "Our massive strategy," Ruder said, "was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

Well, now that's a little more direct, an administration official stating that the Fairness Doctrine was used to harass political opponents. But let's be fair here, even the right wingers got in on the act...

Private activists directed by the Republican National Committee regularly filed Fairness Doctrine challenges against stations whose reporting angered the White House, and Nixon staffers found they could intimidate network officials merely by threatening to challenge their licenses if their coverage was deemed "unfair." Twenty-one times during the intense antiwar demonstrations of October 1969, Nixon told his underlings to take "specific action relating to what could be considered unfair network news coverage."

Government intimidation of news networks. Sounds like fairness to me.

I'm a lifelong Milwaukeean, so this example really jumped out at me...

In 1981, Milwaukee Mayor Henry Maier asked the FCC to intervene after WTMJ-TV ran 15 editorials criticizing his city government. The commission didn't find any violation of the Fairness Doctrine. When Mayor Maier asked the courts to force the regulators' hand, they also sided with the station. But in the meantime, the broadcasters had run up a legal bill of $17,000 defending themselves.

Here is an excellent example of why the Fairness Doctrine is horribly flawed. It didn't matter that WTMJ was right the entire time. They still had to fight Maier's attempt to sic the FCC on them. A fight like that costs a lot of money. If you think $17,000 is a lot of money, remember that this is in 1981 dollars too. Is this really the "fairness" that we want?

This quote by Nat Hentoff from the Walker article really nails it...

"When official Fairness Doctrine letters came to the station's owner from the FCC, the front office panicked," he wrote. "Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station."

Station owners had to spend significant amounts of money when they simply received Fairness Doctrine letters from the FCC. The owners got sick of the time and money spent in response, so they watered down their programming. Nothing controversial or thought provoking gets on the air because the owners don't want to deal with the FCC or pay the bills. That sure would correct the imbalance in our public dialogue. It would do it by ending the dialogue.

Nanny State: Twinkie Fascists

2007-10-20T23:41:00.000-05:00

A few days ago, I mentioned that I was reading Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and other Boneheaded Bureaucrats are Turning America into a Nation of Children by David Harsanyi. I toyed with the idea of doing a review after I finished the book, but I decided against it. Instead, I'm going to periodically post about things in the book that I find interesting. I'm a little over 100 pages into it, and I've already found a lot that I'd like to discuss.

Chapter 1, Twinkie Fascists, is all about food. I'm sure you all are aware of the concerted effort by a few busybodies to get us eating healthier. Creative people who hate your personal freedom and menu choices have come up with a wide variety of legislative fixes to your expanding waistline. Harsanyi mentions things like trans fat bans, laws regulating portion sizes at restaurants, and body mass index taxes. These are all very interesting and horrible, but one really takes the cake (literally). It happened in Texas of all places...

She [Texas agriculture commissioner Susan Combs] went out and banned all foods of "minimal nutritional value" at schools. Food and beverages like "carbonated drinks, frozen flavored ices (sicles), chewing gum, and candies (including hard candy, jellies, and gums, marshmallow, fondants, licorice, spun candy, and candy coated popcorn)."

This scatter gun ban also got rid of cupcakes, a birthday treat favorite of kids even back when I was in grade school. Then came one of the most absurd blocks of text I have ever seen in print...

To undo some of the damage, the Texas legislature attempted to pass a law that allowed cupcakes just for birthday parties. "We have an opportunity to really make the children happy here," said Representative Jim Dunnam, whose school-age daughter, Lauren, had asked him if he could make cupcakes legal again. Soon enough, Combs relented, offering a "cupcake clarification" to allow cakes at school birthday parties.

When I read this, the only thought in my head was "Are you f*cking sh*tting me?!" Is this really what government is for? Do you think Thomas Jefferson, John Adams, James Madison, and friends would be pleased with this? It would be one thing if these were just stupid regulations on the books somewhere that really didn't mean anything. But Combs was actually enforcing them and dished out more than $8,000 in fines to public schools.

I'm not against eating healthy or against offering healthy choices, especially with kids involved. However, these bans and zero tolerance policies are just stupid. Part of becoming an adult is learning to take responsibility for your own choices and actions. Sheltering kids from things like Crystal Lite and chewing gum isn't going to do anything to impart those life lessons. Beyond that, if a kid wants to have a candy bar at lunch, who the hell are you to say no? It's not like eating strychnine. This is just bad government and bad lawmaking.

When Fritos are outlawed, only outlaws will eat Fritos.

Another Thomas Interview

2007-10-19T18:11:00.000-05:00

This is yet another post in my continuing Thomas-palooza series. Here is a four part interview of Justice Clarence Thomas by radio host Mark Levin.

Part 1
Part 2
Part 3
Part 4

I haven't made it through the whole thing, so I can't offer much of a substantive critique. But I do know one thing: Mark Levin has a strange voice. This is the first time I've heard it.

Kevin Merida on Thomas and Marshall

2007-10-19T17:57:00.001-05:00

Journalist Kevin Merida, co-author of a recent book on Justice Clarence Thomas, stopped by Marquette Law School this semester to talk with Mike Gousha. Gousha, formerly of WTMJ, is the Distinguished Fellow of Law and Public Policy at Marquette. He's been bringing in a wide variety of community leaders, politicians, lawyers, and authors for discussion sessions.

Here is a video clip of Merida talking about some of the counter intuitive similarities between Justice Thomas and Justice Thurgood Marshall, the Justice that Thomas replaced...

There are a few more video clips on YouTube from Gousha events. Check them out to see what's going on at the law school between classes.

When Chuck Schumer Hides Under His Bed

2007-10-16T22:56:00.000-05:00

It's almost that time of the year again. The 2007 National Lawyers Convention of the Federalist Society is almost upon us. From November 15 to 17, the nation's conservative and libertarian lawyers will hang out in DC, talk shop, attend discussion panels, and have a good time.

Four Supreme Court Justices (Roberts, Scalia, Thomas, and Alito) will be speaking, as well as almost-Justice Bork, Ted Olson, Ed Meese, and Rudy Giuliani. That doesn't even being to scratch the surface of the big names in attendance either. Click the link above to see the discussion panels. It's incredibly impressive. I'm proud that the Seventh Circuit will be well represented by Judges Easterbrook and Sykes.

Guess who's not going? Me! I'd love to go, but it just isn't in the cards right now. It's at an inconvenient time and the cost is a little steep. Plus, I have no desire to rent a tux. If you have the means and the desire, I'd strongly suggest going.

Originalism, The Court, and Beyond

2007-10-15T22:55:00.000-05:00

I know that many people have already seen this (it's a bit old), but I thought I'd comment on this op-ed by Professor Steven Calabresi. Calabresi is a co-founder of that shadowy cabal, the Federalist Society. The essay discusses originalism, a theory of Constitutional interpretation, as well as other aspects of the Supreme Court. As I am a card carrying member of the Federalist Society (seriously, ask me to see my card sometime, I'd be glad to show you), expect a lot of agreement from me in my analysis of the piece.

Calabresi, concerned about the moans and groans in the media about the "dramatic rightward shift" of the Roberts Court, felt that the real work of the Court should be looked at in much more detail. The media loves to focus on the results or a pithy quote from a dissenter or something similarly superficial. The real question is this: How exactly should the Court decide cases? That is the real question. The actual result of the case is usually not as important as how the Court actually got to that result.

The professor knows that originalism is not the prevailing method of interpretation in legal circles. In fact, it's often viewed with scorn. But Calabresi makes a spirited defense of the theory...

For starters, the long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.

No leftist ever says of Roe v. Wade: Let's let President Bush's lower court judges construe that opinion in light of the "evolving standards of decency that mark the progress of a maturing society." Leftists and indeed all non-originalists would be utterly outraged if this were to happen.

Funny how the "standards of decency" are only allowed to "evolve" in one direction, isn't it?

Calabresi also discusses precedent and stare decisis, a topic of much conversation during the Roberts and Alito confirmation hearings as well as at the close of the last term...

Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties.
...
This authority is also a practical necessity. Because the Court is composed of human beings, it is inevitable that it will make mistakes. This includes big mistakes about the meaning of the Constitution that, left uncorrected, work a continuing, significant distortion on how our government functions.

This whole discussion has always puzzled me. Some people seem to have a blind loyalty to Court precedent (and many of those people sit on the Senate Judiciary Committee). Oddly enough, their loyalty only applies to precedent that they like. Roe v Wade? Iron clad! Bowers v Hardwick? Overturn it now! I guess I shouldn't be puzzled. It's just hypocrisy, nothing new to politics. I just can't believe that these windbags don't get called on it more often. Anyway, Calabresi is right. The Court is a body of fallible human beings. They make mistakes. Those mistakes should be correctable without the Senator from Massachusetts from having a coronary. Of course, it's not that cut and dry in the real world. This is really a much more complex isssue to be saved for another post.

Next, the separation of powers argument for originalism...

Non-originalist judicial review severely distorts the allocation of powers that is central to the Constitution. That document limits and defines powers by assigning them carefully and precisely to different federal and state institutions.

Originalists believe it is critical that these constitutional allocations of power be respected. We think the Constitution is enforced by the Madisonian system of checks and balances, of separation of powers, and of federalism. We do not think that the Supreme Court is some kind of Supreme Council of Ayatollahs that can do anything it wants do on a 5-4 vote.

Unfortunately, some people do see the Court this way. The judicial system has become the last refuge for hacked off individuals with weird agendas. These are people who can't get their preferred policy enacted through normal democratic means. They lawyer up, head to court, and hope to find a judge that will buy whatever bull plop they're selling. Usually, the error is corrected by an intermediate appellate court, but occasionally it isn't. The Court itself doesn't have a stellar track record in this area. Some incarnations of the Court (Warren Court, I'm looking in your direction) enacted their preferred policies under the color of Constitutional law.

Calabresi hits us with a money quote near the end...

No sane framer of a constitution would ever have written a document that required bicameralism and the president's signature to pass ordinary laws, while leaving the most sensitive issues of morality and religion up to an unelected, unaccountable, life tenured, elite group of judges to be decided on a 5-4 vote.

Amen to that.

In closing, I want to return to a comment that the good professor made at the beginning of the piece. He said this...

...on Jan. 20, 2009, six of the nine current justices will be over the age of 70, an age at which many people either retire or begin to wind down their affairs. There is thus a very real possibility that the next president could appoint as many as four justices in his or her first term alone. We may be getting ready for the biggest turnover in the membership of the Supreme Court since Richard Nixon's election in 1968 brought the Warren Court to an end.

Emphasis added. The 2008 presidential election is winner take all, as far as the Court goes. If a Republican wins the White House (and manages to make conservative appointments to the Court), the balance will shift solidly to the right for many years to come. If a Democrat wins, the current balance will likely be maintained, and some additional ground may be gained back.

If I was a gambling man (and I occasionally am, just not lately), I would lay down a decent chunk of change on me being very sad come November 2008. I'm open to being pleasantly surprised, though.

Nanny State

2007-10-14T21:01:00.000-05:00

I've been away for a few days, but I should have some things to talk about in the near future. I recently picked up the book Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and other Boneheaded Bureaucrats are Turning America into a Nation of Children by David Harsanyi. I felt obligated to purchase it for two reasons. First, it has one of my favorite words ever (priggish) in the subtitle. Second, it discusses one of my favorite (or more precisely, least favorite) aspects of modern America: the rise of the nanny state.

I'm only about 40 pages into the book, currently on the chapter about food, but I like it. Here's the blurb from Booklist...

Besieged by do-gooder legislators and activists pushing health, safety, or "family values," Americans have been subjected to bans on everything from trans fats to cookie-scented ads in bus shelters to happy hours. Harsanyi offers a catalog of rules imposed by "Twinkie fascists" and "playground despots" who are micromanaging all manner of bad habits and immorality that threaten to remove from citizens the right to choose how they live their lives. For example, he notes that the Centers for Disease Control has evolved from an agency concerned with infectious diseases to one concerned with overeating. Conceding that one person's idea of government intrusion is another's idea of prudent policy, Harsanyi stakes a claim on common sense as the judge. Laws against illicit drugs and prostitution are good for the public welfare; laws against smoking outdoors are intrusive. This is not just a rant against overzealous legislators but a thoughtful look at how the government is overreaching into everyday life and how Americans are quietly going along with it. An interesting look at freedom and personal responsibility.

If I'm feeling really ambitious, I'll post a review when I finish reading it. Until then, Harsanyi has a blog that is well worth a look if you are interested in the book, the subject, or the author.

A Breyer Vid

2007-10-10T23:42:00.000-05:00

Justice Stephen Breyer on judicial activism and short-sleeved shirts...

Okay, he didn't really discuss the shirt, but it's the first time I've seen Casual Breyer and wanted to make note of it.

Now There Are Three

2007-10-04T23:07:00.000-05:00

Well, it looks like we're going to have a primary election for the Wisconsin State Supreme Court after all. Burnett County Circuit Judge Michael Gableman threw his hat into the ring to take on Justice Louis Butler next year. Sun Prairie attorney Charlie Schutze jumped into the race in early September, so now we have three names on the ballot. Gableman is running as a non-partisan, but Schutze seems to be taking a more direct approach...

"No seat on the Supreme Court should ever go unopposed especially when that seat is currently held by a liberal political appointee and not an elected official," Schutze said.

And from his press release...

"I am deeply concerned about the unfriendly business environment that has been created in this state by the high court's careening to the left to protect special interest groups at the expense of common sense," Schutze stated. "We continue to lose our best and our brightest graduates to companies outside of the state. We handicap our businesses with the burden and cost of over-regulation, provide little or no incentives to our companies and employees, and yet we blame them for the ills of our economy."

Gableman has posted a video introducing himself to the voters...

This is going to be a very important race. The balance of the court could be shifted with this election. Currently, the court has three liberals, three conservatives, and one swing vote. A loss of one of the liberals, Butler, could dramatically change the direction of law in the state.

The South (and Vermont) Will Rise Again

2007-10-04T21:18:00.000-05:00

I spotted a link to this story on Drudge last night. Two secessionist groups, the Vermont-based (AKA liberal as hell) Middlebury Institute and the League of the South (possibly, slightly right wing?), met in Tennessee to break bread and smack talk the Union. Both of these groups have gripes about policy in the United States, and they think that the answer is to split a handful of states from the country...

If allowed to go their own way, New Englanders "probably would allow abortion and have gun control," Hill said, while Southerners "would probably crack down on illegal immigration harder than it is being now."

There are definitely regional differences across this great nation of ours. It's bound to be that way; it's a big country. While not a complete solution, I think that a revival of federalism principles would soothe some of these tensions. It's okay to let New York do one thing, policy-wise, and let Alabama do another. We tend to federalize everything though. It seems like the federal government expands its reach every year.

Of course, federalism won't solve everything. It won't do much to calm the ire of the Middlebury folks about the war and issues like that. But I think it would do the country some good to allow differences of opinion and policy in the states. After all, they are the laboratories of democracy.

Is secession constitutional? Well, that depends. Prof. Michael Dorf wrote an interesting article after the 2004 elections about that very topic. Dorf says that unilateral secession isn't allowed, but mutually agreed upon secession might be okay.

The argument made by unilateral secessionists is the following...

Because the Constitution derived its initial force from the voluntary act of consent by the sovereign states, secessionists argued, a state could voluntarily and unilaterally withdraw its consent from the Union.

In this view, the Constitution is a kind of multilateral treaty, which derives its legal effect from the consent of the sovereign parties to it. Just as sovereign nations can withdraw from a treaty, so too can the sovereign states withdraw from the Union.

Dorf lists President Lincoln's arguments against unilateral secession, but he points out the problems with each one. The professor then offers the best counterargument, one not explicitly made by Lincoln...

Whatever the status of the states when they entered the Union, they perpetually gave up important attributes of sovereignty in doing so. Among these was--and is--a right of unilateral secession.

In this view, it is significant that Article VII sets out the provision for original ratification, and that Article IV empowers Congress to admit new States, but that no provision of the Constitution authorizes a state to leave the Union. The juxtaposition of what the Constitution says about states entering the Union and what it does not say about them leaving, indicates that the door to the Union swings in but not out.

Dorf also quotes the 1868 case of Texas v White where the Court said "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

Dorf goes on to discuss mutually agreed secession, which he thinks is probably okay. There are problems about how it would be done, though. What if Congress controlled the process...

Suppose that Congress simultaneously received secession petitions from all the blue states, and that the Congressional delegations of these states all supported these petitions. Suppose further that a minority of the Congressional representatives of the red states also supported the petitions. (Their reaction: "Good riddance.") Adding the votes of representatives from the blue states to the votes of representatives from the minority of red states would yield a pro-secession majority in the existing Congress.

But notice what happens if Congress permits secession under these circumstances: Secession will have been allowed even though a majority of the representatives of one of the resulting pieces--the remaining red state rump United States--opposed it. That hardly seems consistent with the notion of secession by mutual agreement.

One might thus conclude that Congress can only approve a secession petition if the controlling bill obtains a majority of the votes of representatives of non-seceding states in both houses of Congress.

But while that solution makes some theoretical sense, it is also, from a constitutional perspective, arbitrary. Why this particular mechanism rather than some other mechanism--such as a national referendum, or a two-thirds (or three-quarters or three-fifths) vote in the existing Congress?

Dorf then looks to the amendment process as a possible solution...

Although the Constitution sets forth a number of mechanisms for its own amendment, the same procedure has consistently been used: Proposal of amendments by a two-thirds vote in each house of Congress, followed by ratification by three-fourths of the state legislatures. This formula seems well designed to ensure that any secession petition has the backing of the nation as a whole.

I don't expect chunks of the nation to break off in my lifetime. I just don't see enough support for it. The groups mentioned in the article are definitely on the extreme side of this issue. Most people are content to complain about the results of an election, the enactment of a law, etc. and then go on living their lives in our 50-state Union without raising much of a ruckus.

Shut Up!

2007-10-03T23:32:00.000-05:00

Is it just me or is everyone currently hellbent on shutting everyone else up?

First General Wesley Clark wants to get Rush Limbaugh pulled from Armed Forces Radio over the "phony soldiers" imbroglio. Check out the video in the link. He thinks it's a good idea for Congress to step in, make judgment calls about the "propriety" of discourse on public broadcasts, and yank Rush. Tucker Carlson points out that the same standard won't be applied to PBS and NPR, entities that routinely broadcast opinions (opinions that many people disagree with or find downright offensive). Clark claims that the standards would be applied consistently. Clark fails to understand that he's calling for judgment calls that are subjective in nature. The majority in Congress (which, I should remind the Democrats, does change over time) will have free reign to pull commentators from public broadcasts just because they disagree with the propriety of the content. This is just screaming to be abused.

In the video clip, Clark even goes as far to say that political discourse should be "rated." "I'd like to see A-rated, B-rated, C-rated political discourse," sayeth the General. I used to have a favorite saying, "You'd have to go to college to come up with an idea that stupid." Well, you'd have to be a Rhodes Scholar to come up with an idea this stupid.

Next, the San Francisco Board of Supervisors is targeting Michael Savage. The Board tried to pass a resolution condemning him for hate speech. They are up in arms about Savage's comments about illegal aliens. I don't know for sure, but I'm betting that Savage is against them. Just a hunch. The resolution would've passed, but something happened...

The only thing that stops resolution from passing is a San Franciscan by the name of Ed Jew (an American-Asian) vetoes the vote. Not only that, but Jew had the stones to stand up and defend Savage's First Amendment right to free expression. If only such a person existed in Washington DC - on either side - we'd all be better off.

Jew said, "For the record, I do not agree with comments allegedly made by Mr. Savage, but the First Amendment gives him the right to make those comments."
How refreshing to hear such an obvious point said in public.

Refreshing indeed. But, of course, it didn't go unanswered...

[San Francisco Supervisor Gerardo] Sandoval responded with a personal challenge to Jew. "If this commentary was directed at the Chinese-American or the Asian community, you would not be resorting to this rigid formalism on your part," he said.

...which is about as school-yard and knee-jerk as it gets. David Harsanyi responds...

I have no idea if Jew would adhere to ideological and political consistency if his own ethnicity were attacked daily on the radio. But I do know Sandoval's comment gives us a peek into the mindset of many officials these days. To them, freedom is no longer a priority. Not if it offends them.

And for the sake of consistency, I should mention that I think that the Congressional condemnation of the MoveOn.org General Patraeus ad was as unnecessary as the San Fran/Savage resolution.

Even though I talk about these incidents together, I think there is a distinction between simple condemnations (although Daniel A. Horowitz sees some legal issues with the San Fran one) and Clark's proposal. The condemnations can be viewed simply as more speech in the free marketplace of ideas, where Clark's proposal would get Congress into the business of removing speech based on its content. Is it really so bad that Congress or the San Francisco Board speak on an issue? After all, they are just adding another viewpoint to public discourse. Well, maybe there is something bad about it. Prof. Timothy Zick thinks so...

There are three problems, although as I say no technical First Amendment violation has occurred. As a matter of bedrock First Amendment principle, we expect the government to maintain neutrality with regard to political expression. Institutional condemnation of this sort, as opposed to individual statements of displeasure or disgust, violates that principle. Second,and relatedly, as you note the Senate's voice is a "powerful" one. Given its power, the Senate can distort the marketplace of ideas. Finally, this form of public condemnation may have the effect of chilling expression on matters of public concern. That will surely not be the case with respect to MoveOn.org, which seems quite pleased to have the attention of the Senate and the President. But speakers with different agendas may quite understandably wish to avoid irritating the Senate with their own sharp attacks -- even if what they have to say is fully protected expression.

Maybe the condemnations and Clark's "Congressional censor" solution are BOTH bad, just different degrees of bad. Zick may be right on this one. I reserve my right to change my mind on this.

Thomas Confirmation Hearings

2007-10-02T21:59:00.000-05:00

For those of you looking for a trip down memory lane, here's a link to the text from the Clarence Thomas confirmation hearings. Enjoy.

Video: Thomas on 60 Minutes

2007-10-02T12:31:00.000-05:00

In cases you missed it Sunday night...

Part 2...

Part 3...

Enjoy.

JCG Interviews Thomas

2007-10-01T21:31:00.000-05:00

This has been an exciting time for Court watchers and Justice Clarence Thomas aficionados. Thomas has been everywhere in the media lately to promote his new autobiography. I managed to catch half of his interview on 60 Minutes last night. I would've seen the whole thing, but I was in a medication-induced coma thanks to my current battle with illness. I think I have malaria. Anyway, I enjoyed the interview. I don't think that I've ever heard Justice Thomas' voice that much.

After watching the 60 Minutes episode, I spotted a link to another interview with Thomas. This interview was conducted by ABC's Jan Crawford Greenburg. It's quite long, but I highly suggest it. I thought that I would point out some of the highlights.

He says his critics — the people who question whether he is smart or qualified to be on the Court or who suggest he merely does what a white Supreme Court colleague dictates — are as also as bigoted as the whites of his childhood in the deep South.

"People feel free to say about me what they think about lots of blacks," Thomas said in an interview in his chambers at the Supreme Court. "Because of the heterodox views I've taken, they have license to say it about me with impunity."

I've noticed this criticism of Thomas quite often. "He's just following Scalia." "He's Scalia's puppet." Sure, Scalia and Thomas often vote the same way (they agreed in full in 74% of the 06 term's cases). If you consult that same chart, you'll notice that Justices Souter and Ginsburg have the same "agreement in full" percentage. Odd that we never hear about one being referred to as the other's puppet.

Of course, if one where to actually read the opinions written by these Scalia and Thomas, it would be obvious that they have distinct views on the law and the Constitution. The Thomas-as-Scalia's-puppet line is usually parroted by people who know nothing Court aside from what they read on blogs (crappy ones, not finely written ones like this one).

Back to the interview...

"And I always find it fascinating that people who claim, well, you did this because you went to Yale, all these good things happened because you went to Yale," Thomas says. "I couldn't get a job out of Yale Law School."

Thomas came to believe whites assumed he wasn't as smart as his white Yale classmates, and when he couldn't get a job when he was graduating, he saw that as proof: Because he was black, he says, people believed his degree was not as good as a white student's degree. He saw no "benefit" from affirmative action.

Emphasis added. And I thought the job market was bad now... But seriously, this point illustrates Thomas' reasons for opposing affirmative action. AA is discussed a lot in the interview, since it is still a very hot topic and Thomas has written and talked extensively about it. His insights on the subject are very interesting.

This part really popped out at me. At the time, Thomas was working for John Danforth (the a state attorney general)...

He recalls, for example, Danforth stopping by his office when the attorney general was preparing to argue a case defending abortion restrictions. Danforth's position was that the federal government had no business telling the states what to do on abortion. Thomas responded: "The state had no business telling women what to do with their bodies."

This part jumped out at Prof. David Bernstein as well. I know that this statement was made years ago but consider this: Wouldn't it be interesting if Thomas was personally pro-choice? I'm guessing that he probably isn't, but it is possible to follow Thomas' judicial philosophy and still be pro-choice.

This part about Thomas' selection for the Court is interesting...

Had the White House seriously vetted Thomas, or closely analyzed his views, it would have probably been more reluctant to nominate him, because he'd given countless speeches while at EEOC expressing a range of controversial opinions, not only about the law and the Constitution, but also on his critics and his admiration of Louis Farrakhan and the Black Muslim theory of self reliance — all of which would be fodder in his confirmation hearing.

Anita Hill aside, would Thomas be nominated to the Court today? I have my doubts. The vetting process, especially in the current administration, seems very sensitive to things like "countless speeches... expressing a range of controversial opinions." I think that those strict standards developed largely because of the Souter and Thomas nomination experiences of Bush 41.

And finally, the man, the myth, the mouth, Joe Biden...

His confirmation hearing began September 10, 1991, and Thomas immediately was confronted with aggressive questions by Sen. Joe Biden, the committee chairman. In their private meetings before the hearings, Thomas wrote that Biden led him to believe he would begin with "softball questions," but he instead "threw a beanball straight at my head."

He wrote that the words of the song "Smiling Faces" by the Undisputed Truth came into his head: "Smiling faces tell lies/And I got proof."

"Now, I, too, had proof: Senator Biden's smooth, insincere promises that he would treat me fairly were nothing but talk," Thomas wrote.

More Biden...

Biden, by that point, also had seen Hill's detailed statement, which Thomas did not know. But he offered Thomas his assurances: "Judge, I know you don't believe me, but if any of these… matters come up, I will be your biggest defender."

"He was right about one thing: I didn't believe him," Thomas wrote. "Neither did Virginia. As he reassured me of his goodwill, she grabbed a spoon from the silverware drawer, opened her mouth wide, stuck out her tongue as far she could, and pretended to gag herself."

I laughed about this part for a while.

Thomas also talks about his problems with alcohol, his gripes about the Reagan Administration's handling of race issues, and his financial difficulties. I know I sound like a broken record, but the interview is excellent. I'm looking forward to reading Thomas' book.

A Look Back and A Preview

2007-10-01T21:20:00.000-05:00

It is the first Monday in October and that means that the Supreme Court is back in business. If you are like me, you're probably pretty foggy about what the Court is tackling this term. Hell, you might even be foggy about what the Court did last term (hint: it was a pretty damn good term). If that's the case, the Federalist Society is there to help you out with an event entitled A Preview of the Supreme Court October 2007 Term, With a Look Back at the October 2006 Term. Here's the panel...

* Ted Cruz, Texas Solicitor General
* Gregory G. Katsas, Acting Associate Attorney General, U.S. Department of Justice
* Joan Larsen, Lecturer, University of Michigan Law School
* Glen Nager, Jones Day Reavis & Pogue partner and Issues & Appeals chair
* William Otis, former Chief of Appeals of the Eastern District of Virginia U.S. Attorney's Office
* Jan Crawford Greenburg, ABC News Legal Correspondent (Moderator)
* Introduction by Lee Liberman Otis, Director, Federalist Society Faculty Division and Senior Vice President

Audio and video are available here. I would recommend the video. The 2 hours and 7 minutes will just fly right by, I promise.

The Right's "Supreme Vision"

2007-10-01T21:05:00.000-05:00

This is a clip from a CNN program called "God's Warriors," which focuses on the Christian Right. This particular clip is about Jerry Falwell's work to change the direction of the Supreme Court and Constitutional law. Falwell's Liberty University Law School has always interested me. I know that some of people have a huge problem with the obvious religious bent to Liberty's graduates and their work. I've ready comments on message boards that ridicule the very idea of the school. However, you can't really fault Falwell and Co. for talking this path. If major policy issues (especially ones with religious aspects) are decided in the courts in general and in the Supreme Court in particular, then people who are concerned about these issues need to be trained in the legal martial arts.

The First Monday in October

2007-09-21T17:09:00.001-05:00

On the first Monday in October, the Supreme Court begins its new term.

On the first Monday in October, Eminent Domain is back.

Summer Recess

2007-07-29T23:57:00.000-05:00

I'm sure it's painfully obvious, but I'm taking a break from blogging this Summer. Hey, if the Supreme Court can take a Summer recess, so can I. Honestly, I'm just too busy looking for a law/lobbying/political/suit-and-tie job (once again, if anyone has any leads, e-mail me), working a day job to keep food in my stomach, and enjoying the amazing weather with what free time I do have. There just isn't a lot of time in that schedule to comb over Court of Appeals decisions. I will be back once things settle down. Until then, enjoy all of the op-eds and Chuck Schumer speeches about how the Roberts Court is destroying America. Personally, I think the future looks bright ahead.

Summerfest

2007-07-03T00:33:00.000-05:00

It looks like a few bloggers are going to Summerfest. Owen and Wendy saw Big & Rich Sunday night. The Esenbergs were in attendance last night for Roger Waters (and they have some political commentary about the show). I was at Summerfest last night too but not for Roger Waters. I saw Bang Camaro and Social Distortion.

Bang Camaro is a Boston band with a simple concept: the best parts of heavy metal are awesome guitar riffs, guitar solos, and sing-a-long choruses. Why not make a band that has only those things? The band is 20 members strong, most of them singers. It was quite a sight. They really own the stage. I even got to meet a few of the guys by chance. I was walking around the grounds and just sort of ran into them. Classy gents, all the way. WARNING: there is some saucy language in this clip.

Social Distortion needs no introduction.

The two nights that I've been to Summerfest have been great. It's made me really appreciate living in Milwaukee.

I'm Banned by the WI Department of Veterans Affairs!

2007-06-29T15:51:00.000-05:00

What an honor!

Thanks for the tip, Jones.

Daily Show on the Recent Court Cases

2007-06-28T00:20:00.000-05:00

Court coverage starts around the 2:40 mark. It's fairly funny.

That Mean Ol' Roberts Court

2007-06-27T20:21:00.000-05:00

Well, Dahlia Lithwick has done it. She's made me annoyed/angry/hacked off enough to make a real post. Occasionally, she and former acting Solicitor General Walter Dellinger have "conversations" about the Supreme Court. Since we are currently at the end of the Court's term, Slate has dusted off this feature for our reading pleasure.

If you are really interested, you can scan through all of the entries. They're fairly readable and have some interests parts. I'm happy to see that Dellinger sees McCain-Feingold as being Constitutionally problematic ("...I don't see how you can limit "independent expenditures" intended to influence elections without limiting the speech of those who own the New York Times, the Washington Post, and the Fox empire as well. And that's a place we simply can't go.") I'm not shocked that Lithwick agrees with Souter, cursing those "sham issue ads" and damning anyone who dares pool their money in the corporate form to speak on an important political issue. She strikes me as one of those people who gets all twitchy and bug-eyed when talking about those "evil corporations."

Dellinger also says that Hein was properly decided. I always knew I liked this guy, even if he was acting SG under Clinton. I saw him talk at a Federalist Society event, and he seemed like an affable guy. I'm kicking around the idea of a Hein post, because I (like Dellinger) don't see how the case could have come down differently. He would also overrule Flast v Cohen, which I guess makes those evil conservatives on the Court not so crazy.

The real reason I wanted to post about this conversation was highlighted over at Volokh by Prof. Kerr. Lithwick talks about the chorus of "They're so mean!" exclamations by the Left about the Roberts Court. Lithwick doesn't think the meanness factor is really the issue, but she's struggling to put her finger on her real problem with the Roberts Court...

Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
. . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.

Prof. Kerr opened the question up to the Volokh readers, and they're having a field day with it. I'd like to add my analysis.

Lithwick wants a Justice who is not a judge in the purest sense of the word. She wants a Justice that will take emotion into account when deciding a case. She wants them to appeal to "what is right" or "what is just." Of course, those things are defined by her worldview and her political preferences. This "unforgiving role of the courts" that she mentions is so jarring to her because she wants (and I pain to use this word) an activist court. She wants a Supreme Court that will stick its nose in places where I (and those of a similar philosophy) think that the courts have no business.

The Hein case is a perfect example. Lithwick wanted the taxpayers to have standing to sue over the faith-based programs. Why? She doesn't like the programs. That darned Bush and his religious nature really sticks in some craws. She thinks the programs violate the Establishment Clause. Fair enough. But what's her solution? Do whatever it takes to get a challenge into the courts ASAP, even if it means expanding the very narrow and very wrong Flast taxpayer standing exception.

The majority of the Roberts Court won't do that, though. Sure, Kennedy might get a little soft at times, like in Massachusetts v EPA, but he's stuck with the conservatives a heck of a lot this term. Generally, the majority won't fall into that trap. They'll enforce rules, like the standing requirements, and read exceptions to those rules, like Flast, narrowly. That's the source of Dahlia's complaints. Lithwick sees a problem (ex. the faith-based initiatives) and wants something, anything to be done about it by the Court. The Roberts Court won't play that game, so she's left stamping her feet in frustration. The proper way to deal with those programs is not through Flast. Find someone with an actual injury that satisfies the standing requirements or use the elected branches to change the policy. Procedure is important.

She'll deny that this is really want she wants, as she does in the conversation with Dellinger. Look at what she says about Flast...

But I am not sure that Flast v. Cohen is so readily dismissed as a constitutional disaster: a naked judicial power-grab that finds the constitutional wrongs first and only then invents a theory of standing to advance it.

Emphasis added. That is exactly the kind of jurisprudence that Lithwick wants from the Court. Then, she talks about how the Establishment Clause is different because forced religion makes Americans "nuts." Seriously? Because Americans go bonkers over forced religion, we can throw open the taxpayer standing doors willy nilly? That's not really a compelling legal argument to me. That's an argument based on emotion, based on that gut feeling of "something's wrong and I want the Court to fix it dammit."

I think that Lithwick wants O'Connor back on the Court, or at least someone in the O'Connor mold. Justice O'Connor saw herself as some sort of Great Moderator on the Court. It was often up to her, and her alone, to keep the Court "fair" and "just." Many of her decisions were not made based on some theory of Constitutional interpretation. They were based on her gut, on her views of fairness. Her tests were often incredibly fact-specific, offering little guidance to the lower courts. She would tell the district courts to take a list of factors into account and balance them. How could they apply them fairly and consistently? Justice Kennedy has a similar problem but to a lesser extent.

I'm not surprised that Lithwick mentioned the suggestion of the Fray posters (the commenters) that the Court needs less lawyers. Unless people are considering the idea of dairy farmers and chemists on the Court, this means that they want more politicians on the Court. Hmm... Justice O'Connor was a politician in Arizona for many years. Politicians are poison for the Court (see: Earl Warren). I have no great love for Justices Ginsburg and Breyer, but I'm glad that President Clinton didn't get to put Mario Cuomo and Bruce Babbitt on the Court as he originally wanted. Politicians are used to that "see a problem, find a solution" manner that tends to ignore the niceties of Constitutional law and the proper, limited role of the courts.

Lithwick wants to turn back the clock. Based on her love of Flast, she'd like to crank it back to the Warren Court. Knowing how unlikely that is, she's probably willing to go back a few years to the heyday of the Rehnquist Court. Remember the good ol' days when Justice O'Connor would use her crystal ball to tell us that affirmative action would be unnecessary in 25 years? Live in the now, Dahlia. Embrace the proper, limited role of the Court. Learn to fight your policy battles in the political realm. You'll be much less cranky over the Roberts Court then.

What I've Been Reading Lately

2007-06-26T14:00:00.000-05:00

FEC v WRTL

Against Universal Health Care, National Review Online

Hein v Freedom from Religion

The American Left's Silly Victim Complex, Adbusters

John Paul Jones: Sailor, Hero, Father of the American Navy by Evan Thomas

Urge to blog growing...

Made in America

2007-06-12T22:00:00.000-05:00

I posted this Sunday night on my MySpace blog...

The series finale of the Sopranos was incredible. I'm blown away. I have the feeling that a lot of people are going to bitch endlessly about it. I've already read a lot of message board/Internet anger about how it ended. People are calling for the head of David Chase. I disagree totally. The episode was brilliant, and here's why...

First, the least important part of the brilliance (but the part that actually had me yell out "YES!"). Phil died. And not only did Phil die, he died horribly. Shot in the head in front of his family, then had his skull crushed by an SUV's wheel. He earned it.

The ending itself was the real pay off, though. From the moment that Tony sat down in the diner booth and "Don't Stop Believin" started playing, my heart was racing. It was pounding like crazy. The episode was almost over. The series was almost over. This was it.

Every person in the diner became a suspect. Every time the door opened, I was on the edge of my seat. I was thinking "when is it going to happen?" Is the guy at the counter going to kill him? Has Carlo given them enough to put Tony away and are the feds on the way? Who are those two shady guys that just walked in? Then I realized it. I had become Tony Soprano.

Seriously. Bear with me here.

That paranoia, that tension, that suspense that I felt watching that scene, was the same paranoia that Tony lived with every day. He was always looking over his shoulder. "When is the other shoe going to drop?" Tony lived everyday like that in every situation, even the most benign ones (like having dinner with your family at a cheap diner).

The ending was great because you got to make it whatever you wanted. Did the guy at the counter go into the bathroom to get a gun (an obvious Godfather reference), come out, and kill Tony? Or did he kill Tony, Carm, and AJ just as Meadow walked in? Did nothing happen at the diner and the feds finally got enough to indict Tony (thanks to Carlo)? The ending is whatever you make of it. There is enough for us to think about, and debate about, for a long time.

Oh, and I think that the cat is Adriana reincarnated.

This is proof that I am alive and still have the ability to type. Sorry about the lack of posts lately. I've been very busy and very detached from my computer. I also haven't really had anything law-wise that I wanted to talk about for a while. My muse took a powder, apparently. Hopefully she comes back soon.

I'm Out

2007-05-31T21:35:00.000-05:00

I'll be out of town this weekend. Hopefully, nothing major will happen in my absence. I'm planning on having a big post about entrapment when I get back, considering that is on the minds of many people right now. Maybe Alderman (for now) McGee will call into another radio show and sing another song too. Hopefully, it will be something cool, like Journey's "Any Way You Want It" or Rick Astley's "Never Gonna Give You Up,"... it should at least have a good beat. Anyway, adios.

PS: I've had that picture for months and no reason to post it. Since I'm going on a road trip, I guess it's apt.

More McGee

2007-05-29T22:46:00.000-05:00

If you're looking for a great round up of links, Badger Blogger is the go to blog for all things McGee. You can even take a look at the alderman's mug shot. I had no idea that he was only 5'9". Michelle Malkin is covering the story nationally too. Be proud, Milwaukee.

According to the Journal Sentinel (ha, I know the person who wrote that entry), McGee will be back in court tomorrow for his initial appearance...

Ald. Michael McGee appeared briefly before a state court commissioner this afternoon on two felony charges: Solicitation to commit a felony/conspiracy and solicitation to commit a felony/substantial battery. Due to the nature of the charges, his initial appearance was then postponed until 2 p.m. tomorrow so that he could appear before a judge instead of a court commissioner.

McGee was dressed in an orange jail jumpsuit and waved to a couple supporters in the courtroom. He did not speak during the brief hearing.

I have no plans tomorrow. Should I go to the court house for the initial appearance?

For those of you playing along at home, here is how a felony prosecution works in Wisconsin. Tomorrow, McGee will have his initial appearance. The initial appearance is a short hearing where the DA files the criminal complaint, the judge sets bail, and McGee's legal representation is determined (AKA who is his lawyer). It's a very fast proceeding.

Within 10 days of the initial appearance, there will be a preliminary hearing. The preliminary hearing is like a mini-trial. The state has to prove probable cause. If probable cause is found, then the defendant is bound over for trial.

Within 30 days of the prelim, the DA must file a document known as the information. This document contains the charges being brought against the defendant. It does not have to have the same charges as the criminal complaint (but that's another can of worms that would take many posts to fully explain).

At the arraignment (the next step in the prosecution), the defendant enters a plea to the charges in the information. It's usually not guilty, though that can and often does change. Then we enter pretrial. This is where discovery, motions, and plea negotiation happen. After that, we have a trial, which is where the really fun stuff happens.

Hopefully, there will be more information about this case tomorrow. Right now, I'm going to lay down because I have sunburn.

The Continuing McGee Drama

2007-05-29T12:40:00.000-05:00

Well, Alderman Michael McGee Jr. was arrested last night on public corruption charges. Color me shocked. Here's the story...

McGee is under investigation on potential public corruption charges, according to sources familiar with the probe, which has been placed under seal. Further details are expected to be announced today during a joint news conference by U.S. Attorney Steven Biskupic and Milwaukee County District Attorney John Chisholm.

It was unclear late Monday where and under what circumstances McGee was arrested, but sources said the arrest was made earlier than planned because investigators suspected the potential for violence

And an interesting update...

Court documents related to the arrest of Ald. Michael McGee remain under seal and are not expected to be released for several days, Milwaukee Deputy District Attorney Kent Lovern said this morning.

Lovern would not say why the documents are under seal, but said state law requires that they be sealed and there is a specific process that must occur before they are released.

"We understand the public wants to know, has a right to know and will know, but there is a protocol that we have to follow in accordance with Wisconsin law that says how and when this information will be disseminated to the public," Lovern said.

And how about a leak for good measure...

Ald. Michael McGee is expected to be charged by federal prosecutors with soliciting a bribe, according to a source familiar with the investigation.

The source, who asked not be named because the case remains under seal, said McGee could face additional federal charges as well as state charges of threatening violence. Whether the soliciting charge would come today, or would follow other charges, is unclear, given he's being held on a state charge.

The news conference is in about 15 minutes. I'm not sure how much information that the DA and USA will give us, especially if the case is under seal. This is going to be an interesting Summer.

EDIT: Here is the federal criminal complaint, courtesy of Prof. McAdams. It's quite a read.

GA Judge Lets Rip

2007-05-28T20:33:00.000-05:00

And in this case, I think it's deserved.

Alito Gets a Degree Too

2007-05-28T20:18:00.000-05:00

Justice Alito was decked out in his graduation garb at Seton Hall last week. He got an honorary degree and gave the commencement speech. This picture reminded me of something. I really liked the graduation gown that I got for my law school graduation. It wasn't one of those cheap, thin things that you get for high school graduation. This gown was heavy duty. It reminded me of a judge's robes. I was mad when I had to give it back (it was a rental).

Alito's got a cool gown. I'm pretty sure that is a Yale gown. One of my professors had a similar one on for our ceremony, and he's a Yalie. I don't like the hat though. I'm not a fan of the rounded, puffy hat. It looks too much like a throw pillow for a couch. I don't really like the square mortar board either, though. But I hate it less.

This concludes my first and only fashion post.

The Ohio "Stripper Bill"

2007-05-28T17:47:00.000-05:00

Trouble is brewing in Ohio for fans of exotic dancing. A "stripper bill" is on its way out of the Senate, headed to the governor, and expected to become law. Here is what the bill does...

The measure would force strip clubs, adult bookstores, peep shows and other adult entertainment venues to close between midnight and 6 a.m. Those with liquor licenses could stay open until last call, but nudity would be banned after midnight. Partial nudity would be allowed, but dancers would have to conform to the existing state law by wearing at least G-strings and pasties.

It also institutes a no-touch rule between patrons and nude or partially nude dancers. It would be a first-degree misdemeanor to touch someone's clothed or unclothed private parts and a fourth-degree misdemeanor to touch other body parts.

I'm a little confused by the wording in the article. It says that nudity would be banned after midnight, but partial nudity would be allowed if the dancers conform to existing law that requires G-strings and pasties. So, is total nude dancing allowed (the previously mentioned "nudity"), just before midnight? Or are the G-string/pasties requirements considered "nudity" and always in effect, even before midnight? Or am I just reading this wrong? I have no idea. Whatever.

Now, onto the really juicy stuff...

Strickland press secretary Keith Dailey said the governor did not find constitutional flaws in the bill, which received wide support in the House and Senate.

Ah, the constitutionality question. Does this bill pass muster?

Well, stripping does have some First Amendment protections. The Court considers it expressive conduct, sort of like miming but hotter. The case on point that immediately comes to mind is Barnes v Glen Theater, Inc. In Barnes, the Court dealt with a law banning public nudity and requiring the wearing of G-strings and pasties. The Rehnquist, O'Connor, Kennedy plurality upheld the ban, but they stated that stripping was "expressive conduct within the outer perimeters of the First Amendment." The G-string/pasties requirement was a minimal restriction, so it was allowed. It still let the speaker (or stripper, in this situation) express her message. Barnes was anything but clear, though. The plurality picked up two votes from Scalia and Souter, both filing separate and very different concurrences based on very different reasoning.

There are limits to the First Amendment protections, though. In Schultz v. City of Cumberland, the Seventh Circuit Court of Appeals ruled that it was constitutional to ban totally nude dancing. The court applied the framework laid out in Barnes and another case, City of Erie v Pap's AM. As an aside, that case also said that banning particular movements or actions by the dancer was unconstitutional. Legislators can't be correographers, I guess.

Buffer zones are another issue. Lower federal courts have upheld some dancer-customer buffer zones, while a few others have struck them down. The trend seems to be to uphold the buffers, though. If you're interested in more of the caselaw in this area, I recommend this page by the First Amendment Center. I used it as a refresher while writing this post.

I'm not exactly sure what a court would do with this law. I think that most of this law is easily constitutional under the current caselaw. The Court does not have an absolutist view of First Amendment rights. Some restrictions are allowed (time, place, and manner restrictions, generally applicable laws, etc.). Here, the state is only slightly regulating the expressive conduct, like the distance and coverage requirements. These have been upheld, as stated previously. I think that a court would uphold the G-string and pasties requirements.

However, the touching penalties seem a bit troublesome. Simply touching someone anywhere on their body is considered a fourth-degree misdemeanor, a crime. Sure, it's a minor crime, but it's a crime nonetheless. My gut reaction is that that part of the law wouldn't be enforced in practice. Are the police really going to charge a dancer for touching a customer's shoulder? I'm skeptical. However, I'm not from Ohio so I can't really speak about what their police would do. The other touching restriction, the "private parts" touching, seems like an easier call.

Personally, I think that the law is pretty silly. If you don't like these clubs, don't go to them. Of course, silly does not mean unconstitutional. Under the current caselaw, I think that this is Ohio's decision to make.

Beer Review: Samuel Adams Honey Porter

2007-05-27T20:52:00.000-05:00

It's been a long, long time since I've done a beer review. There are a few reasons for that. First, my beer reviewing skills were being used elsewhere. Second, I haven't kept beer in the fridge on a regular basis lately. I just haven't been buying it for some reason. Third, I haven't been posting much at all. It really is some form of writer's block. I've started a handful of posts that I've never finished. My goal tonight is to finish a post and drink this beer.

Samuel Adams Honey Porter is part of their Brewmaster's Collection. The beers in this group are some of the best that Sam Adams has to offer. I picked up the Brewmaster's case this weekend. It's a 12 pack of beer with 6 different varieties. If you are looking to try a lot of new styles of beer without blind buying a 6 pack, this is the way to go.

The Honey Porter is a dark, fragrant beer. It's black with a mocha colored head. The aroma a strong and sweet. It reminds me a lot of coffee, sort of a brewed (non-beer) scent with hints of malt and honey. The flavor is a lot like what I expected. It is very smooth with no carbonation. There are light hop flavors, but those are overpowered by the smooth, coffee-like malts. There is no strong bite in the Honey Porter. This isn't exactly what I would call a Summer beer. It is thick and it is heavy. I certainly wouldn't buy a 6 pack of this for a weekend cook out. It's the kind of beer that you have when you just want one and you want to enjoy it. This is a sipper. It's a good beer, but it definitely has its time and place.

Supreme Discomfort Discussion

2007-05-25T10:57:00.000-05:00

Supreme Discomfort is a new book about Supreme Court Justice Clarence Thomas. I've read a few Thomas books in the past (Judging Thomas and Resurrection come to mind immediately), but I haven't had the chance to read this one yet. It's on my Summer reading list though.

In these two video clips, Gwen Ifill interviews the authors, Kevin Merida and Michael Fletcher...

The book sounds like an interesting examination of one of the Court's most interesting personalities.

The Least Hated Branch

2007-05-23T08:26:00.000-05:00

The Judiciary (Supreme Court) has the highest approval rating of the three branches of government at 51%. That's kind of like being valedictorian of summer school... not exactly a source of pride. I'm sure that this has something to do with the lower profile of the Court. Most of the public is ignorant of most of their docket. The big cases make the news and cause shifts in approval for a while. Speaking of the big cases, here's some polling info on the recent partial birth abortion cases...

It will be interesting to see how the public reacts when the school-race cases are handed down.

An Eventful Morning

2007-05-21T16:28:00.000-05:00

At 9:30 this morning, I swore the attorney's oath in front of the Wisconsin Supreme Court. I am officially licensed to practice law in the state of Wisconsin. Heavy, I know.

I arrived at the State Capitol building early this morning and headed to the second floor, home of our Supreme Court. I signed in with the friendly people from the Board of Bar Examiners at their table, showed them my ID, paid them for their hard work, and got my information packet. The first group of my classmates was already lined up when I arrived, waiting to enter the court room. We were broken into groups alphabetically by last name. My H last name put me in the center of group #2.

Slowly, more of my groupmates showed up, signed in, and joined me in our hallway waiting game. A lot of people brought their families. My parents were there, but took a short tour of the Capitol before the ceremony. That left me alone for a while. I took the time to chat a little with a few friends, but honestly, not much was said. We've spent the last two days together for our hooding and graduation ceremonies. There had been more than enough waiting time between, during, and after those ceremonies for us to say just about everything that we had to say to each other.

Eventually, the first group came out of the court room and the rest of us were all lined up for our turn. Our families were let in before us so we could have the privilege of marching into the room in front of them. Isn't it great to have an entire room of people staring at you? As we filed in, I saw that one of my old classmates Quinn had shown up for the ceremony. He graduated a semester early and works in Madison. It was a pleasant surprise.

We all walked into the court room and made our way to the chairs placed right in front of the bench. And I mean that it was right in front of it. I was in the second row of seats, but I could have touched the bench if i leaned all the way forward in my chair. The marshal of the court gave us all some instructions about the ceremony. Then she disappeared to get the Justices.

After a few minutes, the marshal gave the "all rise" order and the seven Justices walked into the court room. They took their places behind the bench, and we were told to sit. Chief Justice Abrahamson welcomed us and gave us a brief rundown of the ceremony. There were remarks from the Director of the Board of Bar Examiners. He certified that we all had the character and fitness to serve as lawyers. The BBE basically does a background check on us. Dean Kearney of the law school then spoke, moving for us graduates to be admitted to the state bar. As he introduced us each by name, we stood up.

Once we were all on our feet, Justice Bradley took over and administered the oath to us. The oath is pretty long and contains great words like "lucre." After "So help me God," everyone clapped for us and seven hundred camera flashes went off. My mom claims that she got a great shot of the back of my head during the oath, which is... great. But hey, it's better than nothing.

After the oath, Justice Butler made some remarks about the importance of the legal profession and its role in society. The state bar president also made some remarks, praising our hard work, pledging to help us in our careers, and urging us to get involved with the state bar. The Chief Justice closed the ceremony. She reminded us all of the importance of an independent bar and an independent judiciary. She urged us to get involved in pro bono work and to use our talents to help people who can't pay our normal hourly rates. And that was that.

After leaving the court room, I said a few good-byes to my classmates. We all had to go over to Monona Terrace for a reception, but I didn't intend on staying long so I decided to say bye while at the court. I talked to Quinn briefly, making sure to give him a hard time for taking a break on taxpayer time. He works for the state.

At the Terrace, I picked up my state bar materials (including my first name tag with the "Atty" title in front of my name) and signed the roll of attorneys (it's a big book with names). A glass of water later, I was on my way home. Quite a morning.

I have...

2007-05-18T00:41:00.001-05:00

...serious writer's block.

And People Wonder Why I Don't Vote Democrat

2007-05-10T20:54:00.000-05:00

Beer tax proposal rises next week

Rep. Terese Berceau, D-Madison, and State Sen. Fred Risser, D-Madison, announced today they would introduce legislation next week to raise the beer tax for the first time since 1969.

Under their proposal, the tax on a 12-ounce bottle of beer would increase from 2.4 to 3 cents a bottle, generating approximately $40 million a year for alcohol abuse prevention, treatment and enforcement.

Thanks to Owen for the pointer.

Finished

2007-05-09T17:16:00.000-05:00

Last night at 8:30 pm, I walked out of my last exam of law school (God willing that I passed them all). It's been a long and difficult ride. It's also been a lot of fun and very fulfilling. Now that exams are over, I should be posting much more often. There are a bunch of pending Supreme Court decisions, the looming possibility that cert will be granted in the Parker DC handgun ban case, and a bunch of other legal news to discuss. I certainly won't be lacking material.

It feels weird to get out of "exam" mode and into "never going to school again" mode. The exam period really takes over my entire life. I missed out on a lot of cool stuff during the last few weeks. I missed the WisPolitics Blog Summit, which I was interested in attending. I missed the Seventh Circuit Judicial Conference, which was being held a few blocks down the street from school. I missed out on having a beer with Simon while he was here for the aforementioned conference. I missed seeing the Brewers crush the Pirates last Friday (box seats with full catering too). Sacrifices were definitely made during this exam period, but that's the way it has to be. And hey, I got a J.D. out of it (I hope).

Now I'm getting back to the job search process. If anyone knows of any cool legal or political job opportunities, drop me an e-mail at the linked address in the box at the top of the right hand column.

Stevens Dissents

2007-04-30T22:07:00.000-05:00

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.

McCain's Kind of Justice

2007-04-27T16:09:00.000-05:00

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.

Take Your Pick

2007-04-27T10:42:00.000-05:00

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.

Who Has the School Cases?

2007-04-25T09:15:00.000-05:00

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.

Carhart YouTube-palooza

2007-04-24T02:03:00.000-05:00

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.

Good Times Ahead

2007-04-23T16:54:00.000-05:00

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.

More on Thompson

2007-04-21T00:49:00.000-05:00

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.

Seventh Circuit Releases Thompson Decision

2007-04-20T14:25:00.000-05:00

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.

Thomas, the Commerce Clause, and Carhart II: Did He Really Mean It?

2007-04-20T11:22:00.000-05:00

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.

Bizarre Duck Triangle

2007-04-20T10:05:00.000-05:00

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.

Happy Birthday, Justice Stevens

2007-04-20T10:04:00.000-05:00

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

Please retire.

Why the Concurrence Says More than the Majority

2007-04-18T16:45:00.000-05:00

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.

The Difference That One Vote Makes

2007-04-18T15:59:00.000-05:00

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 9791002 (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever ones 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.

It's Easier than Going Before the Judiciary Committee

2007-04-14T23:04:00.000-05:00

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

Ashcroft Comes to Marquette

2007-04-13T16:38:00.000-05:00

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.

McCain-Feingold: Still Bad Legislation

2007-04-10T23:23:00.000-05:00

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.

Things I Learned Today from ATL

2007-04-10T23:11:00.000-05:00

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.

Penn & Teller, Eugene Volokh, and Breasts

2007-04-09T23:02:00.000-05:00

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.

Laptops in the Classroom

2007-04-09T16:11:00.000-05:00

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.

Boy Scouts, Jamborees, and Standing

2007-04-05T23:20:00.000-05:00

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.

Seventh Circuit Judicial Conference

2007-04-05T22:52:00.000-05:00

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.

Georgia Thompson Update

2007-04-05T22:24:00.000-05:00

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.

JPS <3's AMK

2007-04-05T21:53:00.000-05:00

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.

7th Circuit Frees Thompson

2007-04-05T15:21:00.000-05:00

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.

Greenburg on Bush v Gore and Justice Thomas

2007-04-04T12:28:00.000-05:00

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.

What's My Name

2007-04-04T01:30:00.000-05:00

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.

Esenberg on the WI Supreme Court

2007-04-03T02:54:00.000-05:00

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

Second Annual Hylton Rankings

2007-04-03T02:33:00.000-05:00

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.

The Election

2007-04-03T00:04:00.000-05:00

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.

"Today's decision is SCRAP for a new generation."

2007-04-02T17:09:00.000-05:00

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 Agencys 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 States 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 States 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 Commonwealths 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 groups standing to challenge a railroad freight rate surcharge on the groups 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 groups 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 lawyers 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.

Lots of Hot Air from the Court

2007-04-02T16:34:00.000-05:00

This was a busy Monday at One First Street in DC. Today, the Supreme Court handed down a 5-4 decision in Massachusetts v EPA, better known as the Greenhouse Gas case or the Global Warming case. Justice Kennedy gave the liberal wing their fifth vote, letting Justice Stevens write for the majority. Here's Lyle Denniston from SCOTUS with a pithy summary...

Ruling 5-4, the Supreme Court on Monday found that the federal government had the authority to regulate greenhouse gases that may contribute to global warming, and must examine anew the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. In the most important environmental ruling in years, the Court rebuffed the Environmental Protection Agency's claim that regulating those gases was beyond its authority, and the agency's claim that it need not take action even if it did have the power to do so.

When I read that this morning, I let loose a few choice words. I just don't see how this case meets the Lujan requirements for standing. But then again, I don't think like Stevens, Kennedy, Souter, Ginsburg, and Breyer.

I'm going to take a look at the two dissents in a pair of posts soon. Chief Justice Roberts tackled the standing issue in one and Justice Scalia discussed the merits in the other. Expect gushing praise from me.

One of the other interesting events today surrounded the other environmental law case, the Duke Energy case. I don't really care that much about the case itself. I care about who wrote it (see this post to remember why). Justice Souter wrote for the Court. The only cases from the October 30th sitting that haven't been handed down are the partial birth abortion cases and the James case. Only Justice Kennedy hasn't written a majority opinion for that sitting. I have no doubt now that he's got the partial birth abortion cases (I think that the Chief is probably writing James).

As we have seen many times before (including today in Mass. v EPA), Kennedy holds the swing vote of the Court. Constitutional law is in the hands of Anthony Kennedy. Tremble with fear. Melodrama aside, I think Kennedy will hold fast on PBA and uphold the ban.

Disclosure

2007-04-02T16:11:00.000-05:00

I missed the birthday of the atrocious McCain-Feingold campaign finance reforms during my hiatus. Thankfully, other critics marked the occasion with some commentary. John Samples over at Cato's blog had a few things to say about the topic of disclosure...

Policymaking in First Amendment area begins with a presumption of liberty. That is, strong reasons must be given to restrict basic liberties.

Mandatory disclosure of campaign finance activity requires such strong reasons. The U.S. Supreme Court has given three reasons for mandated disclosure: to deter corruption, to inform citizens so they can predict what a candidate might do in office, and to help enforce contribution limits.

Not much is known about how the policy of mandated disclosure actually relates to these "state interests." No one has been much interested in examining their effects because no one much objected. Mandatory disclosure was thought of as the least intrusive means to regulate campaign finance and political activity. Hence, even people inclined to criticize campaign finance regulation were heard saying, "it's only disclosure."

Campaign contribution disclosures do seem to get an easier pass than most other forms of regulation in this area. Samples then points us to a study from Dick Carpenter and the Institute for Justice discussing the effects of disclosure. It's only disclosure, right? Where's the harm? Well...

Indeed, both proponents and opponents of increased campaign regulations often simply assume that mandatory disclosure is a benign regulation that shines light on valuable information without any real costs. But, as we find, there are consequences, and they may in fact be quite costly to privacy and First Amendment rights while yielding little, if any, benefit in return.

Bob Bauer also took a look at the study, and summed up the most interesting aspect...

It discovered that disclosure is attractive in principle—unless it threatens to affect the individual engaged in the evaluation. Some 80% of the more than 2,000 citizens sampled concur that government should compel disclosure of donor information, but more than half object to the publication of their own name and personal information—and an even larger majority oppose employer identification as part of any disclosure requirement.

Here's more on the "chilling effect," straight from the study...

This opposition translates into a lower
likelihood of becoming involved in political activity
through donations, meaning that mandatory
disclosure "chills" citizens' speech and association:
• A majority of respondents would think twice
before donating to a ballot issue campaign if
their name, address and contribution amount
were disclosed.
• An overwhelming plurality would think twice
before donating to a ballot issue campaign if
their employer’s name were revealed.
When asked why they would think twice,
respondents cited, among other things, privacy
and safety concerns, fear of retribution, and the
revelation of their secret vote.

But these costs are outweighed by the benefits the public receives from the disclosures, right? Not really...

Not only are there serious costs associated
with disclosure, it's a regulation devoid of the
benefits typically touted by proponents, namely
"better," more informed voters:
• A little more than a third of respondents
knew where to access lists of campaign
contributors or took the time to read such
information before voting. Therefore, citizens
appear to know nothing about a law they
strongly support and appear uninterested in
accessing the information it produces.

Pop quiz. Where do you find the campaign contributor lists? No clue?

Election Laws Gone Wild

2007-04-02T15:56:00.000-05:00

Owen at Boots and Sabers recently had a complaint filed against him with the state elections board. His crime? A "Blogs for Ziegler" tag (a graphic that doubles as a link, for those of you non-tech people) on his site. The tag lacks a disclaimer, according to the complaint. As far as I can tell, the regs don't cover this exact issue. As one of the comments points out, this situation may be similar to the exemptions for pins, buttons, pens, and other small items. Owen wasn't paid to put the button on his site, so he's probably in the clear anyway (as pointed out in another comment).

The whole situation just seems foolish. The continuing regulation of political speech in the name of "clean elections" and "campaign finance reform" lends itself to these goofy, partisan attacks.

Back with a Vengeance

2007-04-02T15:47:00.000-05:00

Where the hell have I been? Good question. Well, first off, we recently had an unexpected death in the family, so that occupied a lot of my time and mental energies. After things had settled down, I was ready to get back to blogging and my usual routine. Unfortunately, that's when my DSL connection decided to take a crap on me. After many days of frustration and tech support calls, I got my replacement DSL modem and am back.

Today, tonight, and tomorrow, I will be tackling a few subjects on here. We have an election tomorrow and I'd like to say a few things about it. The Supreme Court just handed down the worst opinion on standing that I've read since the SCRAP decision (to echo CJ Roberts). And there are some news items that I think you should check out. Posts to come...

A Question from the Back of the Room

2007-03-13T18:27:00.000-05:00

In a comment in this post, Nick asked me the following questions...

Unrelated question that I want you to answer: why is Wisconsin supreme court popularly elected? Would it be advantageous to give them long terms and maybe make their appointments similar to the way in which the US justices are appointed?

What are their term lengths, anyways?

Explain.

I spend the bulk of my time on my often-neglected blog (I apologize, but I've been busy with school, FedSoc, and finding a friggin' job) talking about federal judges. As you civics fans may know, federal judges that sit on District Courts, Courts of Appeal, or the Supreme Court are appointed by the president, confirmed by the Senate, and sit for life terms during good behavior. This only applies to these judges, known as Article III judges. It does not apply to Tax Court judges (they have 15 year terms) or administrative law judges or other federal judge-ish positions. One may ask why we elect judges in this state instead of following suit with the feds. There are historical and policy reasons why Wisconsin chose to handle the judiciary this way.

I'm going to quote heavily from this paper, A Call for Change: Improving Judicial Selection Methods, by MULS Professor Jason Czarnezki. Here is some of the background on judges in this state...

An elected judiciary is certainly consistent with Wisconsin's Jacksonian tradition of promoting public participation in government. Wisconsin Supreme Court Justices are elected to ten-year terms in statewide, non-partisan, April elections, and vacancies are filled by gubernatorial appointment with the appointee expected to stand for election to a full ten-year term the following spring (unless another supreme court seat will be contested). Judges on the courts of appeals and the circuit courts are also elected to shorter six-year terms of service.

Prof. Czarnezki elaborates on the Jacksonian influence on the election policy...

The constitutional drafters of Wisconsin felt such elections would not hamper judicial independence because judges would be elected by diverse citizens from large geographic areas with little political stake in the results. This is a key point. These drafters did not want an appointment system because they worried that, unlike citizens (who presumably would pick the most qualified jurists), the governor or
legislature would be biased in making appointments leading to a judiciary with a lack of independence. In addition, gubernatorial or legislative appointment was inconsistent with the Jacksonian ideal of popular sovereignty, and, thus, Wisconsin became the second state to require that all judges be elected by the people.

The federal system is often criticized as having an element of cronyism to it. Senators usually have a lot of say in who is nominated to the District Court in their state. Presidents have been criticized for appointing "their people" to the appeals court bench and beyond (cough cough Justice Fortas cough). The Jacksonian response is to put the judiciary in the hands of the people.

Prof. Czarnezki is not sold on the benefits of the election process. He has concerns about the consistency of decisions by elected judges. Also, judges in this state get re-elected so easily that any benefits of the election are minimal. Really, how many people get fired up over a circuit court race? Hell, how many people are fired up about the Supreme Court race? I don't think that many people could name a single Justice on the Wisconsin Supreme Court.

I think that the federal system and our state system have positive and negative aspects. The state system does suffer when the public isn't engaged in the electoral process. However, the election gives people a chance to draw fine lines within the government on policy issues. What do I mean by this horribly worded phrase that I can't seem to articulate in an understandable way no matter how many times I try to rewrite it? Here's the example that jumped out at me as I was thinking about this...

Let's say that you are one of the people who voted for Jim Doyle in the last election and voted for the Marriage Amendment. To me, that says "I like Doyle as governor generally but I disagree with his position on the Marriage Amendment." Fair assessment? Under our current system, if that voter wants, he/she can choose to vote against Linda Clifford in the Supreme Court election. She has been fairly clear about her views on gay marriage and the Equal Protection Clause, so someone who supported the Marriage Amendment might be uncomfortable with her on the court. If we followed the federal system, Doyle would be able to just appoint Clifford and bypass "the will of the people" on that one. Maybe you think that's a good thing, maybe you think that's a bad thing. It certainly is a possibility though.

Basically, the federal system is all or nothing. You are electing the chief executive and he/she will make the call on these issues. That can be troubling to some people who may agree with the policy positions of the executive but not the judicial philosophy of the executive, or vice versa. The state system gives voters the chance to make distinctions. Maybe the voters don't take advantage of that opportunity as much as they should. Does that mean we should scrap the system? I don't know. You, the voter, can do us all a favor and just get a little knowledgeable about who your state judges are. There are never that many of them up for election at one time. Learn a little about them and (if they aren't running unopposed, though they often are) vote for the best candidate. It's your right.

From My Cold, Dead Hand

2007-03-09T14:16:00.000-06:00

The DC Circuit Court of Appeals struck down the Washington, DC handgun ban today. I'm currently hacking my way through the 70-some pages of opinion. The important part is that the DC Circuit, in a 2-1 ruling, said that the Second Amendment contains an individual right to bear arms (as opposed to a collective right, AKA the National Guard right). I'll have more on this later, but right now, I'm going to see 300. I have my priorities.

Wait Wait... Don't Tell Breyer

2007-03-07T21:38:00.000-06:00

Justice Stephen Breyer will be appearing (well, not really... it's radio) on the episode of NPR's "Wait Wait... Don't Tell Me" that airs on March 17th...

He will, unsurprisingly, be the first justice to appear on the program, host Peter Sagal said. "We're immediately starting at the very top. Well, pretty close," Sagal said in a telephone interview.

Breyer will participate via telephone on March 15 in the program's "Not My Job" segment in which celebrities attempt to answer three extremely obscure questions.

Sagal seems pretty interested in internal Court dynamics, especially the important issue of food choices...

Sagal, who was prepping for an appearance by White House spokesman Tony Snow, said he has not settled on Breyer's three questions. But the host said he is curious about how the justices get along, among other things.

"How do you decide what to order for lunch when having a working lunch at the Supreme Court? Does the chief justice say, 'Let's see, there are four votes for Chinese food?" Sagal said.

How many votes are needed to grant cert to sweet and sour chicken?

She Lost a Shoe

2007-03-07T15:32:00.000-06:00

I previously linked to a post by Jan Crawford Greenburg about Justice Ginsburg's sluggish exit from the Court post-oral arguments. It looks like Ginsubrg's delay was caused by a missing shoe that she kicked off during oral arguments. Aside from shedding some light on a heavily discussed event, I think this story is one of those great "humanizing" moments. Supreme Court Justices have this air of grandeur (at least in my eyes). It's nice to know that at least one of them wants maximum comfort during argument sessions. Take a load off, Ruth. Those dogs are barking.

David Lat at Above the Law is also looking at the drama behind the story. He thinks that Linda Greenhouse, veteran Court reporter for the NYT, broke Shoe-gate in order to one-up Greenburg. Here's House...

Jan Crawford Greenburg, an ABC News correspondent who covers the court, posted a startling item last week on her blog, Legalities. Under the heading "Faith and Frailty," she wrote that the "real drama" of an argument concerning the Bush administration's religion-based initiative came when the argument ended.

Justice Ruth Bader Ginsburg's delay in getting to her feet and leaving the bench, Ms. Greenburg wrote, seemed a sign of possible ill health and "made me think I'd better start pulling those possible retirement files together."

The alarming item quickly made its way around the blogosphere, puzzling court insiders who know that Justice Ginsburg, 73, is in fine health and keeps to a schedule that would exhaust most people who are decades younger....

The explanation is, quite literally, pedestrian. According to her chambers, Justice Ginsburg had kicked off her shoes during the argument and could not find one of them.

Here's Lat's commentary, in traditional Lat-fashion...

OUCH. Jan Crawford Greenburg did some phenomenal reporting work for her fantastic new book on the Court, Supreme Conflict. But in a single breezy, casually tossed-off "Reporter's Notebook" item, Greenhouse makes Greenburg look like a rank amateur.

We conduct a close reading of Greenhouse's column, after the jump.

Okay. Let's parse the specific language used by Greenhouse in her write-up:

"a startling item" = "sensationalized and tawdry"

"[t]he alarming item" = "JCG is the National Enquirer of One First Street"

"quickly made its way around the blogosphere" = "I can't believe she got link love from Drudge for this crap. Actually, maybe I can."

"puzzling court insiders" = "Just 'cause JCG scored a few good interviews for that book of hers doesn't make her a TRUE 'court insider' -- like MOI."

"According to her chambers, Justice Ginsburg..." = "I still have the best access to the justices, especially those on the liberal wing of the Court. And I'm not ceding my turf to same Jan-ny Come Lately!"

Linda's implicit message to Jan can be summed up as follows: "You can speculate all you want in that pretty little head of yours. But THIS is what we call reporting, dearie. Try it sometime -- you might like it."

I guess this can be viewed as Greenhouse trying to defend her throne from the up and coming Greenburg. This really won't change my Court-related reading habits though. I avoid Greenhouse like the plague. Her bias and cheerleading is just too much for me. Greenburg is much more readable, in my opinion.

Conflicts of Interest

2007-03-07T15:02:00.000-06:00

After reading this editorial in the Milwaukee Journal-Sentinel this morning, I felt a need to comment on the Judge Ziegler recusual situation. I previously said that I wasn't going to comment much on the Wisconsin Supreme Court race, but I've decided to change my mind (as you can tell from my recent posts). I reserve the right to change my mind.

For those of you not up to speed, here's the pithy version of the situation...

State Supreme Court candidate Annette Ziegler has ruled in at least two dozen cases involving a West Bend bank of which her husband, J.J. Ziegler, is a director. And there are no indications that she offered to withdraw from those cases or notified the parties of her conflict.

As a Ziegler supporter, I'm not happy about this. I'm not a judicial ethics expert, but my time interning with a judge has given me a little insight into recusal issues. I'm a big believer in erring on the side of safety. If the complete facts about the situation have been disclosed, I am troubled by Judge Ziegler's decisions in these cases. I'd like to have a more detailed account of the cases involved before passing any judgment though. Ethical issues can be very tricky (anyone who has taken Ethics in law school will attest to that) and very fact specific. Hopefully, more information will become available.

My go-to guy on this race has been Rick Esenberg. He comes through again with this great post tackling this issue. Rick, once again, offers much more insightful commentary than I can muster. Cut me some slack. He's been in practice for a while. Here's Rick...

I have commented on allegations that Ziegler acted on cases when she had a conflict of interest. More facts have come out and, although the reportage has not been awful, there is a "he said, she said" quality about it that obscures key points - some in a way that is favorable to Judge Ziegler and other in a way that is not.

Agreed. The articles haven't been bad, just not as meaty as one would like. Based on the the facts as reported, Rick seems troubled too...

First thing, if the facts are as reported then Judge Ziegler was wrong in not recusing herself or obtaining waiver in cases involving West Bend Savings & Loan. SCR 60.04(e)(4)(1) makes recusal or waiver mandatory when, among other things, a judge's spouse is a director of a party. No judgment call to make.

Rick also mentions that things might be different in default judgments. I think that there is definitely an argument there, but I would have to look deeper into Wisconsin ethics decisions to make a judgment on that.

Rick also highlights the difference in the ethics rules when the judge owns stock in a party...

But there is a slightly different test when the question is whether you should recuse yourself because you own stock in a party. That is not automatic. In that case, recusal or waiver is required when a judge "has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. "

This does bring us back into the realm of the gut check so statements that recusal is "mandatory" whenever there is a "conflict" may serve for the West Bend Savings matters but not for other matters under examination. For example, in cases involving United Health Care (in which the Zieglers apparently own stock), she may well have decided that her interest could not be substantially affected by the matter. In some cases, the idea that the judge must make a judgment call is not "truthy." It is the truth.

There are instances where the judge must make a judgment call, or "gut check," about the situation.

As I have said, I'm troubled by the situation. I would like to know more about these cases. And before anyone asks, no, I'm not voting for Linda Clifford now.

Nino = Hamilton?

2007-03-06T00:13:00.000-06:00

While strolling through the ample law section of Raynor Library (the non-law library at Marquette), I spotted a new book on the shelf. I'm that big of a nerd that I would notice a new item in a section. I've walked through it often. The book is called The Political Thought of Justice Antonin Scalia. The subtitle is "A Hamiltonian on the Supreme Court. " Author James Staab thinks that Justice Scalia has an intellectual ally in Founding Father and Aaron Burr bullet depository Alexander Hamilton.

I haven't gotten far enough into the meat of the book to make any substantive comments or criticisms of it, but the introduction quotes a fairly famous Scalia quote to back up the point...

Scalia urged the members of the audience - "as Hamilton would have urged you - to keep in mind that the federal government is not bad but good. The trick is to use it wisely."

That was from a speech in 1982 at a conference on federalism. I'm looking forward to getting deeper into this book in the coming weeks.

The introduction also contained an explanations of six of the major schools of legal conservatism. If you are one of those people who lumps everyone that's to the Right of Justice O'Connor into one big pile, then you need to read this section. I'm not a big legal theory guru, but I think that people should understand the differences between the philosophies of Judge Richard Posner, Professor Randy Barnett, and Justice Clarence Thomas. In case you want to look them up on your own, the six schools that Staab discusses are Burkean traditionalism, conservative pragmatism, Legal Process, libertarianism, natural law, and originalism. Google at your leisure.

Expect a book report in the future. Maybe I'll even get a pizza for it.

More on WISC Judicial Philosophy

2007-03-06T00:06:00.000-06:00

Rick Esenberg recently linked to the same article that I discussed in this post. He also has problems with Wisconsin Supreme Court candidate Linda Clifford's judicial philosophy. Here's Rick being much more eloquent than I was...

The problem, of course, is that we generally expect judges to apply the law and the legislature to make it. Although the constitution can trump legislation, we accept that because, at some point, the constitution was consented to by the people. The people decided to place certain limitations upon their elected representatives.

If you allow the constitution to "breathe" (i.e., "change") to reflect what you think society needs, you have lost the legitimacy that the consent of the people confers. They never agreed to whatever it is you think the constitutional document is exhaling today. You have substituted your judgment for theirs.

We could have chosen to be governed this way. We could have said that we'll just elect seven wise people to do whatever they think is right. But we didn't. We chose democracy and a judiciary that applies the rules (statutes and constitution) that the people make.

He closes by giving the voters a choice...

Of course, there are nuances, subtleties and matters of degree involved here. We can make it as complicated as it needs to be, but, at the end of the day, this isn't lawerly inside baseball. It goes directly to who gets to make the decisions that govern our common life. If you want to be ruled by judges, then a living, breathing and mutating constitution is a good thing. If you don't, it's not.

You decide.

Well said.

Remember This When Voting for WISC

2007-03-02T17:21:00.000-06:00

Owen at Boots & Sabers links to this Sheboygan Press article about the two Wisconsin Supreme Court candidates. The paper interviewed the candidates separately about the race. The most enlightening part of the article discussed judicial philosophy...

The two candidates have differing opinions on how they'll serve on the bench.

Ziegler calls her role as a judge "traditional," saying there are three branches of government for a reason.

"I think the judiciary's job is to apply the letter of the law, legal precedent, sound conclusions based upon the facts of each individual case based on those things," Ziegler said. "Not the whim of the day or not my political or ideological preference. That gets checked at the door."

Clifford said she would not be a "strict constructionist" when it comes to applying the law.

"I am willing to let the (state) constitution breathe and reflect what society needs in any given context," she said.

Personally, I don't want Linda Clifford making the call on "what society needs." If she's into that kind of policy making, she should run for the legislature. I would rather have judges follow the philosophy that Judge Ziegler endorses. That philosophy recognizes the proper role of the judiciary and respects the concept of separation of powers.

Thinking about this election and our state's highest court reminds me of Judge Sykes' Hallows Lecture about WISC's 2004-2005 term. This was the term when the court did the following (to quote Judge Sykes)...

- rewrote the rational basis test for evaluating challenges to state
statutes under the Wisconsin Constitution, striking down the statutory
limit on noneconomic damages in medical malpractice cases;

- eliminated the individual causation requirement for tort liability in
lawsuits against manufacturers of lead-paint pigment, expanding "risk
contribution" theory, a form of collective industry liability;

- expanded the scope of the exclusionary rule under the state
constitution to require suppression of physical evidence obtained as a
result of law enforcement's failure to administer Miranda warnings;

- declared a common police identification procedure inherently
suggestive and the resulting identification evidence generally
inadmissible in criminal prosecutions under the state constitution’s
due process clause; and

- invoked the court's supervisory authority over the state court system
to impose a new rule on law enforcement that all juvenile custodial
interrogations be electronically recorded.

Judge Sykes continues...

Together, these five cases mark a dramatic shift in the court's jurisprudence,
departing from some familiar and long-accepted principles that normally
operate as constraints on the court's use of its power: the presumption that
statutes are constitutional, judicial deference to legislative policy choices,
respect for precedent and authoritative sources of legal interpretation, and
the prudential institutional caution that counsels against imposing broadbrush
judicial solutions to difficult social problems.

When voting in this race, ask yourself: do I want this kind of judging to continue? Do you want the courts making important policy decisions that should be left to the legislature? I don't. I'm voting for Judge Ziegler.

Only in a Posner Case...

2007-03-01T12:04:00.000-06:00

I was doing some reading for my Media Law class this morning and came across Haynes v Alfred A. Knopf, Inc., 8 F.3d 1222. This is a Seventh Circuit case from 1993. Nicholas Lemann wrote a book about sharecropper migrations from the 40's to the 70's. He discussed the socioeconomic troubles they faced generally, but he also specifically told the story of one woman's hardships. In the course of telling the story, some shaddy details about the woman's ex-husband came to light (drinking, adultery, unstable employment, etc). He sued for libel and invasion or privacy. He lost.

The best part about the case is that Judge Richard Posner was at the pen. Two lines in particular jumped out at me...

"Although it is well known that every human being defecates, no adult human being in our society wants a newspaper to show a picture of him defecating."

And...

"Entering one's bedroom with a bottle in one hand and a cigarette in the other is not foreplay."

You may need a little more factual background to get the context of the second one. It's pretty funny on its own though. Posner should write every case for every court in the country. It would make my reading for class much more enjoyable.

Is Justice Ginsburg Okay?

2007-03-01T01:26:00.000-06:00

In her post about the Hein oral argument, Jan Crawford Greenburg included an interesting observation. Here is what happened after the arguments ended...

As intense as the arguments were—and as fun as it was seeing Roberts in action—the real drama of the day occurred at the end of the argument. Typically, the justices rise from the bench, turn around and leave the courtroom for their chambers in very short order. Usually, spectators wait no more than a few seconds before the last justice disappears behind the red curtains. Then the court officers allow us all to file out of other exits at the front and sides of the courtroom. But today, we all were held in place for nearly a half a minute more –an eternity to a TV reporter--as Justice Ginsburg slowly collected her things and carefully left the courtroom. Justice Souter lingered behind at his chair, waiting to walk alongside her—almost as if he wanted to see if she needed assistance.

I've never had the pleasure of seeing an oral argument live, but I've heard the entrance/exit procedures described numerous times. Jan continues...

It was strikingly odd. I was standing next to Jim Vincini of Reuters, and we looked at each other with some alarm. No one could recall seeing Ginsburg in such slow motion, and it immediately begged the question of her health—which of course begs the question of whether any of the justices are going to be leaving the court anytime soon and give George W. Bush his third nomination. I have predicted with confidence that no one else will leave by design, and I've flatly rejected any suggestions that Justice Ginsburg was not at the top of her game physically. She'll be 74 next month, and she's active and social—and said to be recovered from her bout with cancer. People who don't know Justice Ginsburg always say she looks so slight, so frail. But that's Justice Ginsburg. She is slight. Even when she fell asleep during oral argument awhile back, I didn't read anything into it since she'd just returned from out of the country and could easily have been suffering from jet lag.

It's hard to read a lot into this simply because Justice Ginsburg was never exactly Heather Mitts. She's a small, thin, elderly woman. It's not outside the realm of belief that she'd have a hard time getting around sometimes. But this behavior was out of the norm enough to get the attention of two veteran Court reporters. Maybe we can read something into this.

I stand by my belief that no more Justices will choose to retire before the end of the Bush presidency. That leaves the door open for a Justice being forced to retire though. At some point, health and age problems can become too much that a Justice just has to step down. It can happen at an inopportune time, politically speaking. Douglas stepped down under Ford. Brennan and Marhsall stepped down under Bush 41. It has happened before, it can happen again.

Who Has PBA?

2007-02-28T22:37:00.000-06:00

With Justice Alito authoring the opinion in the Whorton case, some concerns have been raised about which Justice will be writing the majority opinion in the partial birth abortion cases. There has been a little discussion about it in the comments on Confirm Them. It's fairly easy to predict which Justice is writing if you have the right information at the right time. 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.

Making use of the calendar for the October 30th Session and the list of opinions handed down, I sketched out a "match the opinion to the Justice" chart on a sheet of paper. Each Justice has written a majority opinion for that sitting except Kennedy and Souter (there was one per curiam opinion also). The only opinions left are James v US (defining a "violent felony" under federal law), Environmental Defense v Duke Energy (a Clean Air Act case about proper venue and the definition of... z z z z....), and the twin powerhouse of Gonzales v Carhart and Gonzales v Planned Parenthood (the constitutionality of the Partial Birth Abortion Ban Act).

So who has PBA? Kennedy. Regardless of how you think it will come out, it's gotta be Kennedy. If he stuck to his guns (and his vigorous dissent in Stenberg v Carhart), then he is writing for a five Justice majority (Roberts, Scalia, Kennedy, Thomas, Alito) upholding the ban. Roberts would have assigned Kennedy the opinion to keep his vote. Strategic opinion assignment has been a common practice in the past. The best way to keep someone's vote if he/she is squishy on the case is to let them write it. Even if you think that Kennedy has double crossed conservatives again, he's still got the opinion for the very same reasons. Stevens (the senior liberal Justice) would have assigning authority for the other potential block of five. He'd give it to Kennedy to keep his vote as well.

My prediction right now is Kennedy writes, ban is upheld. Watch me be totally wrong and look stupid.

Faith-Based Standing Fun at the Court

2007-02-28T22:27:00.000-06:00

Today, the Supreme Court heard oral arguments in Hein v Freedom from Religion Foundation. This case has a lot of Wisconsin connections. Just check out the Milwaukee Journal Sentinel article about it...

Anne Gaylor, Wisconsin's best-known atheist, has fought to keep church and state separate for almost 30 years. But the 80-year-old Gaylor marked a first Wednesday when a lawsuit she brought was heard by the United States Supreme Court.

...

Two others from Wisconsin have high-profile roles in the litigation.

Jay F. Hein of Shawano has directed the White House's faith-based initiatives office since August. He, too, was in court, but let the Justice Department do the talking.

Doing that was Paul D. Clement, the U.S. solicitor general, who grew up in Cedarburg.

This case is a challenge to the Bush Administration's faith-based initiatives executive order. The real legal issue here is standing. Standing means that you can bring the lawsuit in court. Generally, the Court isn't big on giving someone standing based on the fact that they are a taxpayer. That policy goes all the way back to Frothingham v Mellon in 1923. But there is an exception. Flast v Cohen said that taxpayer standing would be permitted in certain circumstances...

The nexus demanded of federal taxpayers has two aspects to it. 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. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.

Straight from Earl Warren's pen. In that case, the Department of Health, Education, and Welfare had been spending money on religious schools.

Here is what Jan Crawford Greenburg, who was in attendance at the oral arguments, had to say...

Chief Justice Roberts really ran the show, completely directing the argument against taxpayer standing-and even stepped in a couple of times to help Solicitor General Paul Clement explain why the atheist group, Freedom from Religion Foundation, had no legal right to sue. Roberts nailed Andrew Pincus, the group's lawyer, with a pointed question right out of the box: "I don't understand, under your theory, why couldn't any taxpayer sue our marshal for saying, 'God save this honorable court?'" It was Pincus's very first question, and it turned the argument. By the end, it appeared that the atheists were going to be on the losing side-though the justices didn't seem especially taken with Clement's proposals, either (or, for that matter, with the line-up of their own precedents they have to take up to decide the case).

The Chief in the drivers seat as usual... Roberts was made for that job.

Scanning through the argument transcripts, I'm a little puzzled about how this will come out. I know that this is starting to get repetitive, but Kennedy has the controlling vote here. I think it's safe to say that the ideological blocs will form as they tend to do, and Justice Kennedy will once again hold the final vote. Kennedy did seem sympathetic to the President's position though. At one point, he expressed concern about the courts being too involved in who the President "can talk to." We'll have to see what happens.

My Weekend with the FedSoc

2007-02-28T12:32:00.000-06:00

Wow, what a weekend. As I previously mentioned, I made the trip to this year's Federalist Society Student Symposium at Northwestern Law School. Our chapter managed to get 13 students to attend, which is pretty impressive considering that the chapter was barely active until this year. As an officer, I will take as much credit for that as humanly possible (even though I probably deserve very little). I promised that I would take notes, but I didn't. "Do I really want to carry a legal pad with me all weekend?" Nope. I also lost the materials that Northwestern gave me. Fortunately, my memory is pretty good. I also enthusiastically point you to Simon's post about the event. He's even got pictures (I forgot my camera... I wasn't exactly at top form that weekend).

I'm going to take you through my weekend using this schedule of events. Day 1...

3:00 p.m.:
Registration -Thorne Auditorium

5:45 p.m.: Opening Remarks - Thorne Auditorium

6:00 p.m.: Debate - Religion in the Public Square
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Mr. Kevin J. Hasson - Becket Fund for Religious Liberty
Rev. Dr. Michael Newdow - Restore our Pledge of Allegiance

Moderated by: David McIntosh - Mayer, Brown, Rowe & Maw

7:30 p.m.: Panel - What is Morality? The Philosophical and Theological Foundations of Moral Debate
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. John S. Baker, Jr. - Louisiana State University
Prof. Randy E. Barnett - Georgetown University
Prof. Robert Burns - Northwestern University
Prof. Michael J. Perry - Emory University

Moderated by: Prof. Richard Garnett - University of Chicago

9:00 p.m.: Cocktail Reception
(Atrium, Northwestern University School of Law)

Northwestern's building is beautiful. At the registration desk, they gave us a sheet of paper with a "walking tour" of the facilities. After about 5 minutes, I had to turn back. I was getting a little depressed and jealous.

The Religion in the Public Square debate was great. I read the schedule a few times earlier, but it never clicked in my head that Michael Newdow was the Michael Newdow. In case you are as dense as I was, he sued over the constitutionality of "under God" in the Pledge. He and Hasson really duked it out. I got to briefly talk to Newdow at the cocktail reception too. That was kind of a surreal moment. I give him credit for coming to a FedSoc event and give credit to the FedSoc for inviting him. It really made for a lively debate.

The philosophical/theological panel was a little above my pay grade. Prof. Perry was unable to attend, so Prof. Garnett pinch hit for him as best he could. I'm a big Randy Barnett fan, so it was cool to see him speak. His discussion of public versus private morality was accessible enough even for a lightweight such as myself. Surreal moment number 2 of the trip: standing at a urinal next to Prof. Barnett.

The cocktail reception was... well, a cocktail reception. I got to meet FedSoc President Gene Meyer. He's a great guy and was very interested in what we were doing at Marquette. Our chapter got a mention in the Federalist Paper magazine for our same sex marriage debate (I lost my copy of the magazine too... I was really in rare form). For those of you who are really curious, they served Miller Lite, Goose Island Honker's Ale, and wine. I was torn by my regional loyalty (a Milwaukee guy needs to support Miller when in a foreign environment) and my taste buds (Goose Island is just a better tasting product). I alternated. If the Rehnquist Court can be described as a "split the difference" court, I can be a "split the difference" beer drinker. Afterwards, I hit the town with a few fellow Federalists.

Day 2...

8:00 a.m.: Breakfast
(Atrium, Northwestern University School of Law)

Missed it.

9:00 a.m.: Panel - Moral Choices and the Eighth Amendment
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Ron Allen - Northwestern University
Prof. Michael S. Moore - University of Illinois
Prof. Laurence P. Claus - University of San Diego

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

Missed it.

11:00 a.m.:
Debate - Same-Sex Marriage: Marriage, Public Policy, and the
Constitution
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Louis Michael Seidman - Georgetown University
Prof. Amy Wax - University of Pennsylvania

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

Finally got there. The discussion itself was interesting and probably the best analysis of the issue that I have seen, heard, or read. Prof. Seidman provided us with a line that was on week too late for me. Someone recently asked me what Lawrence v Texas was about. I explained it to them in the very traditional facts, legal issue, majority analysis, dissenters, implications kinda way. If I had gotten the question after the conference, Icould've quoted Prof. Seidman. "Lawrence constitutionalized the one night stand." I feel compelled to mention that Moderator/Judge Sykes, MULS grad and proud FedSoc supporter, was also nice enough to track our chapter down Friday night between panels to visit with us.

12:30 p.m.: Lunch Break

2:00 p.m.: Panel - Government Promotion of Moral Issues
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Lillian R. BeVier - University of Virginia
Prof. G. Marcus Cole - Stanford University
Prof. Lino A. Graglia - University of Texas
Prof. Steven Lubet - Northwestern University

Moderated by: Prof. Steven Calabresi - Northwestern University

Prof. Lubet was unable to attend, so FedSoc co-creator Prof. Calabresi stepped in for him on this panel. One of his points concerned people who get morality from the law. There are people out there who think "well if it's legal, it's gotta be okay to do." I never really thought about that before, but it scared the hell out of me. After studying law for a few years, I recognize the jumbled, and at times contradictory, mess that it can be. I don't care where you get your moral code (well, to an extent I care), just don't get it from the law.

4:00 p.m.: Panel - Morality of First Amendment Jurisprudence
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Andrew Koppelman - Northwestern University
Prof. John McGinnis - Northwestern University
Mrs. Phyllis Schlafly - Eagle Forum
Prof. Geoffrey Stone - University of Chicago

Moderated by: Prof. Orin Kerr - George Washington University

I went into this panel knowing that it would be good. These are four people that have no problem speaking their minds. The panel focused on pornography and obscenity. Schlafly railed on the Warren Court for gutting obscenity laws. Prof. Koppelman, who is quite liberal, agreed that porn is harmful. I never realized this, but people like Schlafly with strong conservative views often find allies on this issue with very liberal feminists. Koppelman didn't go that far though. He sees porn as harmful but not enough to ban it. Prof. Stone then spoke, sans notes, and proposed a hypo: if there was no concept of obscenity in law, how would we go about creating one and for what purpose? Prof. McGinnis then screamed at us about federalism for a few minutes. If you haven't seen him speak, you don't know what you are missing. This was my second experience seeing Prof. McGinnis and it's always a treat. I agree with his substantive comments and love how animated he is.

6:00 p.m.: Cocktail Reception
(Chicago Marriott Downtown Magnificent Mile)

7:00 p.m.: Banquet, featuring Keynote Speaker
(Chicago Marriott Downtown Magnificent Mile)

Featuring:
Judge William H. Pryor, Jr. - Eleventh Circuit

The reception and banquet were fun. President Meyerrecognized the MULS crew as one of the chapters that brought 10 or more students. It was nice to get our name in there with all of those Top 25 schools. Prof. Orin Kerr was presented with the Paul M.Bator Award. The Federalist Society awards this to an academic under 40 for excellence in teaching, scholarship, and commitment to students. Judge Pryor was up next. He spoke about his time as Alabama Attorney General and the Moore/Ten Commandments monument controversy. I haven't been able to track down a transcript yet, but I'm watching the FedSoc site to see if it pops up.

I had a great time at the symposium. It was great seeing such an incredible line up of speakers and meeting so many interesting people. I'm sure that I will be making the trip to the Lawyer's Convention every year post-graduation. I may even go to the Student Symposium again. I met quite a few practicing attorneys there too. Next time, I'll even bring a note pad.

This Weekend

2007-02-23T01:01:00.000-06:00

I apologize for being neglegent in my posting this week. Oddly enough, I commented to a fellow law student recently how long it had been since the Supreme Court handed down a case. A day later, they dropped a ton of them on us. With my reading for class, I have barely even had the time to start reading the Philip Morris case. I'm not through it yet, but I'll join the chorus of commentators who are upset that Roberts and Alito signed on to a substantive due process decision. Politically, I'm not a big fan of unrestrained punitive damages. I've seen too many juries that "have something to prove" and deal out damages like someone drunk on power. But I can't agree that the Constitution places substantive restraints on those damages. Oh well, you can't expect absolute purity. That's just setting yourself up for heartbreak.

There will be no posts this weekend, as I will be in Chicago attending this year's Federalist Society Student Symposium. You can check out the MULS FedSoc blog for more details. I look forward to getting out of Milwaukee for a weekend, hearing some excellent speakers and debates, and maybe even having a little fun. I'll try to take notes and post about it when I get back.

This Year's Hallows Lecture

2007-02-21T15:37:00.000-06:00

The MULS Hallows Lecture was last night. I wasn't able to attend because I was in class, but the text of the speech has been posted on the MULS website. You can access it here. Judge Carolyn Dineen King of the Fifth Circuit Court of Appeals gave the talk, entitled Challenges to Judicial Independence and the Rule of Law: A Perspective from the Circuit Courts. I only had time to skim the speech, but it looks interesting and timely. Judicial independence seems to be on the minds of many, including Supreme Court Justices.