NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, January 29, 2003 ::
Blog break
The Supremes will no doubt dump copy on Monday as usual, but the Ninomaniac will be on his Candlemas break. See you next week.
:: David M. Wagner 4:14 PM [+] ::
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:: Tuesday, January 28, 2003 ::
On The New York Times
"P" at Sub Judice hits the nail on the head re why The Washington Post has a better claim to be the "paper of record" than The New York Times. SJ's links aren't working, but here's the heart of P's point:
What Does "Paper of Record" Mean Anyway? Respectfully, I have to stick by my judgment about the Post having taken the place usually assigned to the Times. There is a lot of common sense in the blogosphere (along with nonsense), and in this case I think its judgment is on the mark. Ever since the Raines era began, with the "News Analyses," the Bush hatred, the spiked columns, the spun polls, etc. ....
News and editorial coverage is different. You need more than a cosmopolitan upbringing and high verbal SATs (assuming those are needed); you need a breadth of sympathy and a spirit of fair-mindedness. However, in the past couple of years the Times' editors, and a lot of their writers, have come to strike me as deeply insulated and tone-deaf on lots of "red state" issues that are important to millions of Americans. Once this trait started to seep heavily into the news pages, it was over for me.
By contrast, I trust the Post to report the news, though I don't agree with it on everything. When it speaks in its own voice it displays an awareness of the complexity of issues. I think that is a necessary trait of the "paper of record." I'm willing to let the Post tell me about the world, even though its raw newsgathering resources are less extensive than the Times'. Richard John Neuhaus said it well: the difference is that the Post "is a liberal paper that knows it must engage opposing arguments."
I would only add that the presence of a conservative in-town daily competitor has encouraged these virtues in the Post. Maybe the revived New York Sun will eventually have the same effect on the Times. And pass me the WSJ too, while you're at it.
:: David M. Wagner 6:43 PM [+] ::
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:: Monday, January 27, 2003 ::
Mainly for bankuptcy buffs...
...which I'm not, but something here for statutory construction buffs as well: the Court, per Justice Scalia, held today that the Bankruptcy Code does not allow the FCC to cancel a station's license and re-sell it merely because said station is in bankruptcy. FCC v. NextWave Personal Communications Inc.
Justice Breyer is the lone dissenter, insisting that the statute be read in light what Congress (arguably) intended, rather than in light of what it enacted. Much reference, of course, to legislative history. As to this, Justice Scalia has obviously made his views sufficiently known, so he merely dismisses this part of Breyer's analysis as "the ever-available snippets of legislative history" -- and does this without losing Ginsburg or Souter of O'Connor or anyone!
:: David M. Wagner 2:41 PM [+] ::
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Packaging a delegation
Thanks to Statutory Construction Zone for alerting us to a recent Second Circuit case with a nondelegation angle:
Nutritional Health Alliance v. FDA (2d Cir. Jan. 21, 2003) (Parker)
Statutes/regulations construed: Food, Drug and Cosmetic [FDC] Act.
Conclusion: The FDA has been not been delegated authority by Congress to regulate the packaging of solid dosage dietary supplements and drugs for the purpose of poison prevention.
On the nondelegation issue, the court said: “Statutory purpose...is not in itself a source of delegated power. Thus, we cannot simply conclude that because the FDA is charged with regulation of food and drugs in order to protect public health, and its unit-dose packaging regulations were promulgated in response to a public health problem, therefore the FDA acted pursuant to delegated authority.” (citations omitted).
Go, Zone!
:: David M. Wagner 2:19 PM [+] ::
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:: Saturday, January 25, 2003 ::
Note to my Con.Crim.Pro. students:
We missed a day because of snow, but I don't want to fall behind the syllabus. Let's cover Leon and Scott, then Katz, Greenwood, and Riley, on Tuesday.
:: David M. Wagner 5:08 PM [+] ::
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Jack Balkin has a provocative op-ed about Roe and politics here. Matt Evans, appropriately provoked, responds here.
:: David M. Wagner 5:03 PM [+] ::
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Judge Jerry E. Smith on How Appealing
Howard Bashman of How Appealing has started a great new feature: using the prestige that he so conspicuously earned as a lawyer and blogger, he is now publishing original interviews with federal appeals court judges. His first such "guest" is Judge Jerry E. Smith of the Fifth Circuit, who, as the author of Hopwood, is the only judge below the U.S. Supreme Court represented in the casebook I currently use (Charles Shanor's American Constitutional Law, from West).
You definitely need to go to the interview and read the whole thing; but here's an appetizer:
16. How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?
Judicial activism could mean many things, but primarily it is the substitution of the court's view for the policymaker's view, in cases where the decision properly should rest with the policymaker, or substituting the court's view for what the Constitution says, where a constitutional provision is at stake. A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite.
:: David M. Wagner 4:39 PM [+] ::
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:: Saturday, January 18, 2003 ::
The "under God" debate goes on
Mitchell J. Freedman writes in:
In the CNN report you linked, Scalia is reported to have told a lone protestor, who held a sign saying he wanted church separate from state, that if the protestor wanted to put his views to a majority vote, that was the way to go under the Constitution. Otherwise, "under God" should stay in the Pledge of Allegiance.
Scalia, as usual, gets away with ridiculous assertions because people are so afraid of his so-called "intellect."
Scalia's statement, in fact, goes against the grain of the Founders' view of the Bill of Rights, particularly the First Amendment. The Founders' saw the First Amendment as protecting people from laws that the "majority" passes--and that the Amendment protects the belief of the "minority" viewpoint. That's why there shall be no "establishment of religion." That's why there is no "prior restraint" on speech that most people might find odious.
Perhaps Scalia's speech, when it's reprinted in full, will more accurately state his views. But in the meantime, his comment to the protestor looks more like a cheap shot--and shoddy constitutional philosophy.
Justice Kennedy took a similar approach in Lee v. Weisman: that the Establishment Clause, as a matter of course, privileges the religious minority and/or dissenter. But it doesn't: it prohibits a national church; and, if you insist, a government church at the state and local levels as well -- though my friend Akhil Amar has recognized that "the nature of the states' establishment-clause right against federal disestablishment makes it quite awkward to mechanically 'incorporate' the clause against the states via the Fourteenth Amendment." Akhil Amar, The Bill of Rights 33 (1998).
Bottom line: if an overwhelming political majority wants to set up a national church, and one lone protestor resists, the protestor wins in court. But where the alleged mixing of church and state is anything less clear and radical than that, the decision is not one that the Constitution has removed from the democratic process.
Are you sure you don't want to revise your blog to pay homage to the Yankee from Olympus? I know the Yankee's faults, particularly his support of eugenics (so prevalent among most of the elite of the early 20th Century), but on many matters of jurisprudence, Holmes was quite remarkably humane and consistent--unlike Nino.
Not a chance. As if Buck weren't enough by itself to knock any Justice off the ridiculous pedestals on which Holmes has been placed, his First Amendment jurisprudence gave us the "clear and present danger" test, which was certainly an innovation -- see Christopher Wolfe, The Rise of Modern Judicial Review 181-202 (1986), and generally David Lowenthal, Present Dangers: Rediscovering the First Amendment (2002) -- and not obviously a good one, as it was based more on Holmes's scepticism about truth (hence the "marketplace of idea" concept) than on a principled commitment to free speech. (Wolfe explains this very well.)
:: David M. Wagner 7:11 PM [+] ::
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The Washington Post's website is reporting: Bush Set for High Court Battle: Strategy Is to Nominate Ideological Conservative.
Excerpts:
[White House Counsel Alberto] Gonzales is still very much in the running and might well be nominated -- if not at first, then eventually, the officials said. But they said for the first time that they are taking the conservatives' complaints [about Gonzales] to heart and would not automatically recommend putting him up first....
Among the right's favorites for the court are J. Harvie Wilkinson, chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, and J. Michael Luttig, another judge on the same court. Also mentioned are Edith Jones, a judge on the New Orleans-based U.S. Court of Appeals for the 5th Circuit, and Solicitor General Theodore B. Olson. Administration officials said another possibility is Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia....
"The rallying cry on the right for 'No more Souters' is really intense," said Clint Bolick, a former Reagan administration Justice Department official. "Conservatives think that they've got an explicit promise to nominate conservative justices."
:: David M. Wagner 6:26 PM [+] ::
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Canon Lawyers Obstructing Gremlins is now Canon Lawyers Obliterating Ghosts. Speaking of ghosts, CLOG is halfway there itself, with no new posts since December 14.
"Hark, I hear the canons snore!" -- from an old Broadway joke, suitably amended.
:: David M. Wagner 11:57 AM [+] ::
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:: Friday, January 17, 2003 ::
Jack Balkin, and a Roe conference at Yale
Snaps to Eve Tushnet for informing me that Yale's Prof. Jack Balkin is blogging (he's now in my blogroll), and about this event that he is organizing. Eve will be there. What a coincidence -- so will I, as an act of penance.
:: David M. Wagner 6:34 PM [+] ::
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:: Thursday, January 16, 2003 ::
Sentencing phase, double jeopardy, and the death penalty
Sattazahn v. Pennsylvania: The Court allows imposition of a death sentence where, in previous penalty phase, the jury had deadlocked on the sentence, the judge imposed a life sentence, and the defendant appealed.
Opinion by Justice Scalia, mostly for the Court, but partly a S.-Chief-Thomas plurality. O'Connor, of course, registers her disagreement with part of the Scalia opinion.
My comments, if any, later.
:: David M. Wagner 5:30 PM [+] ::
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:: Monday, January 13, 2003 ::
The Man's Fredericksburg Speech on Religion Clause Jurisprudence
Click here for early report. Whoo hoo!
:: David M. Wagner 9:31 AM [+] ::
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:: Thursday, January 09, 2003 ::
Eugene Volokh's excellent summary of the 4th Circuit's latest Hamdi opinion (see post immediately below) is here.
:: David M. Wagner 4:11 PM [+] ::
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:: Wednesday, January 08, 2003 ::
Yaser Hamdi case
Earlier this afternoon the 4th Circuit, in its third decision concerning imprisoned U.S. citizen and Taliban warrior Yaser Hamdi, held in a unanimous panel opinion that, as a matter of separation of powers, the judiciary should not order the executive to produce proof that a person said by the executive to be an enemy combatant, and accordingly held as a POW, actually is such.
I haven't completely made up my mind about this one, but certain points likely to get lost in tomorrow's headlines (assuming this decision makes them) are:
* This is not a criminal case. No charges are pending against Hamdi. The procedural safeguards of our criminal justice system apply only within that system (as many parents accused of child neglect have found out to their surprise).
* Regardless of how you think war powers are distributed between the executive and legislative branches, it is a simple textual fact that war powers are given to these two branches and not to the judiciary. Allowing lawsuits over battlefield decisions would be a spectacularly bad idea, and arguably, the opposite result in the Hamdi case would have led us in that direction.
* It is perhaps not a coincidence (it rarely is when you're talking about the handiwork of the Framers) that the two branches that share war powers are also the two branches that are politically accountable. That accountability may be the best (and only) reply to the natural objection: "But then the President can designate anyone an 'enemy combatant'...."
* The show-cause order imposed on the executive branch by the district court, and reversed in yesterday's circuit opinion, would have required the executive to provide, inter alia, the names and addresses of those who interrogated Hamdi. Granted, these would have been produced "in camera", not in public, but -- ask yourself this: is the possibility of disclosure of one's name and address (the latter being the place where most people keep their loved ones) to a judge who may share it with terrorists' attorneys likely to attract responsible, law-abiding people to the profession of government interrogator? Isn't it more likely to staff that profession with precisely the sort of people we don't want in it (and who tend to be attracted to it anyway)?
Just some thoughts. Or at least I think they are.
:: David M. Wagner 8:33 PM [+] ::
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:: Tuesday, January 07, 2003 ::
And favorite recipes too, no doubt
Back on December 20, Chief Justice Rehnquist had some face-time with President Bush. This was at the Chief's request, not the President's. According to statements given to the media, their talk was about -- judicial salaries.
Whatever you say, Chief.
:: David M. Wagner 2:22 PM [+] ::
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The Supremes will no doubt dump copy on Monday as usual, but the Ninomaniac will be on his Candlemas break. See you next week.
:: David M. Wagner 4:14 PM [+] ::
...
"P" at Sub Judice hits the nail on the head re why The Washington Post has a better claim to be the "paper of record" than The New York Times. SJ's links aren't working, but here's the heart of P's point:
What Does "Paper of Record" Mean Anyway? Respectfully, I have to stick by my judgment about the Post having taken the place usually assigned to the Times. There is a lot of common sense in the blogosphere (along with nonsense), and in this case I think its judgment is on the mark. Ever since the Raines era began, with the "News Analyses," the Bush hatred, the spiked columns, the spun polls, etc. ....
News and editorial coverage is different. You need more than a cosmopolitan upbringing and high verbal SATs (assuming those are needed); you need a breadth of sympathy and a spirit of fair-mindedness. However, in the past couple of years the Times' editors, and a lot of their writers, have come to strike me as deeply insulated and tone-deaf on lots of "red state" issues that are important to millions of Americans. Once this trait started to seep heavily into the news pages, it was over for me.
By contrast, I trust the Post to report the news, though I don't agree with it on everything. When it speaks in its own voice it displays an awareness of the complexity of issues. I think that is a necessary trait of the "paper of record." I'm willing to let the Post tell me about the world, even though its raw newsgathering resources are less extensive than the Times'. Richard John Neuhaus said it well: the difference is that the Post "is a liberal paper that knows it must engage opposing arguments."
I would only add that the presence of a conservative in-town daily competitor has encouraged these virtues in the Post. Maybe the revived New York Sun will eventually have the same effect on the Times. And pass me the WSJ too, while you're at it.
:: David M. Wagner 6:43 PM [+] ::
...
...which I'm not, but something here for statutory construction buffs as well: the Court, per Justice Scalia, held today that the Bankruptcy Code does not allow the FCC to cancel a station's license and re-sell it merely because said station is in bankruptcy. FCC v. NextWave Personal Communications Inc.
Justice Breyer is the lone dissenter, insisting that the statute be read in light what Congress (arguably) intended, rather than in light of what it enacted. Much reference, of course, to legislative history. As to this, Justice Scalia has obviously made his views sufficiently known, so he merely dismisses this part of Breyer's analysis as "the ever-available snippets of legislative history" -- and does this without losing Ginsburg or Souter of O'Connor or anyone!
:: David M. Wagner 2:41 PM [+] ::
...
Thanks to Statutory Construction Zone for alerting us to a recent Second Circuit case with a nondelegation angle:
Nutritional Health Alliance v. FDA (2d Cir. Jan. 21, 2003) (Parker)
Statutes/regulations construed: Food, Drug and Cosmetic [FDC] Act.
Conclusion: The FDA has been not been delegated authority by Congress to regulate the packaging of solid dosage dietary supplements and drugs for the purpose of poison prevention.
On the nondelegation issue, the court said: “Statutory purpose...is not in itself a source of delegated power. Thus, we cannot simply conclude that because the FDA is charged with regulation of food and drugs in order to protect public health, and its unit-dose packaging regulations were promulgated in response to a public health problem, therefore the FDA acted pursuant to delegated authority.” (citations omitted).
Go, Zone!
:: David M. Wagner 2:19 PM [+] ::
...
We missed a day because of snow, but I don't want to fall behind the syllabus. Let's cover Leon and Scott, then Katz, Greenwood, and Riley, on Tuesday.
:: David M. Wagner 5:08 PM [+] ::
...
:: David M. Wagner 5:03 PM [+] ::
...
Howard Bashman of How Appealing has started a great new feature: using the prestige that he so conspicuously earned as a lawyer and blogger, he is now publishing original interviews with federal appeals court judges. His first such "guest" is Judge Jerry E. Smith of the Fifth Circuit, who, as the author of Hopwood, is the only judge below the U.S. Supreme Court represented in the casebook I currently use (Charles Shanor's American Constitutional Law, from West).
You definitely need to go to the interview and read the whole thing; but here's an appetizer:
16. How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?
Judicial activism could mean many things, but primarily it is the substitution of the court's view for the policymaker's view, in cases where the decision properly should rest with the policymaker, or substituting the court's view for what the Constitution says, where a constitutional provision is at stake. A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite.
:: David M. Wagner 4:39 PM [+] ::
...
Mitchell J. Freedman writes in:
In the CNN report you linked, Scalia is reported to have told a lone protestor, who held a sign saying he wanted church separate from state, that if the protestor wanted to put his views to a majority vote, that was the way to go under the Constitution. Otherwise, "under God" should stay in the Pledge of Allegiance.
Scalia, as usual, gets away with ridiculous assertions because people are so afraid of his so-called "intellect."
Scalia's statement, in fact, goes against the grain of the Founders' view of the Bill of Rights, particularly the First Amendment. The Founders' saw the First Amendment as protecting people from laws that the "majority" passes--and that the Amendment protects the belief of the "minority" viewpoint. That's why there shall be no "establishment of religion." That's why there is no "prior restraint" on speech that most people might find odious.
Perhaps Scalia's speech, when it's reprinted in full, will more accurately state his views. But in the meantime, his comment to the protestor looks more like a cheap shot--and shoddy constitutional philosophy.
Justice Kennedy took a similar approach in Lee v. Weisman: that the Establishment Clause, as a matter of course, privileges the religious minority and/or dissenter. But it doesn't: it prohibits a national church; and, if you insist, a government church at the state and local levels as well -- though my friend Akhil Amar has recognized that "the nature of the states' establishment-clause right against federal disestablishment makes it quite awkward to mechanically 'incorporate' the clause against the states via the Fourteenth Amendment." Akhil Amar, The Bill of Rights 33 (1998).
Bottom line: if an overwhelming political majority wants to set up a national church, and one lone protestor resists, the protestor wins in court. But where the alleged mixing of church and state is anything less clear and radical than that, the decision is not one that the Constitution has removed from the democratic process.
Are you sure you don't want to revise your blog to pay homage to the Yankee from Olympus? I know the Yankee's faults, particularly his support of eugenics (so prevalent among most of the elite of the early 20th Century), but on many matters of jurisprudence, Holmes was quite remarkably humane and consistent--unlike Nino.
Not a chance. As if Buck weren't enough by itself to knock any Justice off the ridiculous pedestals on which Holmes has been placed, his First Amendment jurisprudence gave us the "clear and present danger" test, which was certainly an innovation -- see Christopher Wolfe, The Rise of Modern Judicial Review 181-202 (1986), and generally David Lowenthal, Present Dangers: Rediscovering the First Amendment (2002) -- and not obviously a good one, as it was based more on Holmes's scepticism about truth (hence the "marketplace of idea" concept) than on a principled commitment to free speech. (Wolfe explains this very well.)
:: David M. Wagner 7:11 PM [+] ::
...
Excerpts:
[White House Counsel Alberto] Gonzales is still very much in the running and might well be nominated -- if not at first, then eventually, the officials said. But they said for the first time that they are taking the conservatives' complaints [about Gonzales] to heart and would not automatically recommend putting him up first....
Among the right's favorites for the court are J. Harvie Wilkinson, chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, and J. Michael Luttig, another judge on the same court. Also mentioned are Edith Jones, a judge on the New Orleans-based U.S. Court of Appeals for the 5th Circuit, and Solicitor General Theodore B. Olson. Administration officials said another possibility is Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia....
"The rallying cry on the right for 'No more Souters' is really intense," said Clint Bolick, a former Reagan administration Justice Department official. "Conservatives think that they've got an explicit promise to nominate conservative justices."
:: David M. Wagner 6:26 PM [+] ::
...
"Hark, I hear the canons snore!" -- from an old Broadway joke, suitably amended.
:: David M. Wagner 11:57 AM [+] ::
...
Snaps to Eve Tushnet for informing me that Yale's Prof. Jack Balkin is blogging (he's now in my blogroll), and about this event that he is organizing. Eve will be there. What a coincidence -- so will I, as an act of penance.
:: David M. Wagner 6:34 PM [+] ::
...
Sattazahn v. Pennsylvania: The Court allows imposition of a death sentence where, in previous penalty phase, the jury had deadlocked on the sentence, the judge imposed a life sentence, and the defendant appealed.
Opinion by Justice Scalia, mostly for the Court, but partly a S.-Chief-Thomas plurality. O'Connor, of course, registers her disagreement with part of the Scalia opinion.
My comments, if any, later.
:: David M. Wagner 5:30 PM [+] ::
...
Click here for early report. Whoo hoo!
:: David M. Wagner 9:31 AM [+] ::
...
:: David M. Wagner 4:11 PM [+] ::
...
Earlier this afternoon the 4th Circuit, in its third decision concerning imprisoned U.S. citizen and Taliban warrior Yaser Hamdi, held in a unanimous panel opinion that, as a matter of separation of powers, the judiciary should not order the executive to produce proof that a person said by the executive to be an enemy combatant, and accordingly held as a POW, actually is such.
I haven't completely made up my mind about this one, but certain points likely to get lost in tomorrow's headlines (assuming this decision makes them) are:
* This is not a criminal case. No charges are pending against Hamdi. The procedural safeguards of our criminal justice system apply only within that system (as many parents accused of child neglect have found out to their surprise).
* Regardless of how you think war powers are distributed between the executive and legislative branches, it is a simple textual fact that war powers are given to these two branches and not to the judiciary. Allowing lawsuits over battlefield decisions would be a spectacularly bad idea, and arguably, the opposite result in the Hamdi case would have led us in that direction.
* It is perhaps not a coincidence (it rarely is when you're talking about the handiwork of the Framers) that the two branches that share war powers are also the two branches that are politically accountable. That accountability may be the best (and only) reply to the natural objection: "But then the President can designate anyone an 'enemy combatant'...."
* The show-cause order imposed on the executive branch by the district court, and reversed in yesterday's circuit opinion, would have required the executive to provide, inter alia, the names and addresses of those who interrogated Hamdi. Granted, these would have been produced "in camera", not in public, but -- ask yourself this: is the possibility of disclosure of one's name and address (the latter being the place where most people keep their loved ones) to a judge who may share it with terrorists' attorneys likely to attract responsible, law-abiding people to the profession of government interrogator? Isn't it more likely to staff that profession with precisely the sort of people we don't want in it (and who tend to be attracted to it anyway)?
Just some thoughts. Or at least I think they are.
:: David M. Wagner 8:33 PM [+] ::
...
Back on December 20, Chief Justice Rehnquist had some face-time with President Bush. This was at the Chief's request, not the President's. According to statements given to the media, their talk was about -- judicial salaries.
Whatever you say, Chief.
:: David M. Wagner 2:22 PM [+] ::
...
