NINOMANIA

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:: Wednesday, December 29, 2004 ::

On this day sacred to Thomas Becket, I wish you a Merry Christmas. I hope you said as much to many people, and really annoyed them.

When I get back after New Years, I'll have some exciting Confrontation Clause stuff to share. After that, maybe I'll see you at AALS.

:: David M. Wagner 10:43 PM [+] ::
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:: Wednesday, December 22, 2004 ::

America's founders were opposed to the "establishment" of religion, whose meaning is clear enough to any Englishman: the new republic did not want President Washington serving simultaneously as Supreme Governor of the Church of America, or the Bishop of Virginia sitting in the US Senate. Two centuries on, these possibilities are so remote that the "separation" of church and state has dwindled down to threats of legal action over red-and-green party napkins.

-- Mark Steyn, Daily Telegraph (London), Dec. 12, 2004

:: David M. Wagner 11:56 AM [+] ::
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Senators Brownback and Coburn will join the Judiciary Committee, replacing Chambliss (who takes over Ag) and Craig. Brownback key to anti-abortion strategy, says home-state paper.

:: David M. Wagner 11:49 AM [+] ::
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:: Monday, December 20, 2004 ::

New blog by Prof. Dru Stevenson: South Texas Law Professor.

:: David M. Wagner 5:32 PM [+] ::
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:: Tuesday, December 14, 2004 ::

ACLU Files Suit in Pa. Over Evolution
Tuesday, December 14, 2004

HARRISBURG, Pa. — The state American Civil Liberties Union plans to file a federal lawsuit Tuesday against a Pennsylvania school district that is requiring students to learn about alternatives to the theory of evolution.

The ACLU said its lawsuit will be the first to challenge whether public schools should teach "intelligent design," which holds that the universe is so complex that it must have been created by some higher power.

The Dover Area School District was believed to be the first in the nation to mandate intelligent design when it voted 6-3 in October in favor of including the concept in the science curriculum.

continuation

Amazing. This is not a Scopes-type case, where the government prosecutes a teacher who taught a disfavored theory. Here, the government itself (the school board) is coming to the aid of a disfavored theory, and in so doing, is in effect broadening the intellectual options presented to students. The ACLU is suing to prevent this. When the subject at hand is that of human origins, the ACLU's take is that the First Amendment requires suppression of competing theories. It's trying to do exactly what Justice Douglas, reinventing Pierce in his Griswold opinion, called "contract[ing] the spectrum of available knowledge."

:: David M. Wagner 2:10 PM [+] ::
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:: Thursday, December 09, 2004 ::

TO MY CRIMINAL LAW STUDENTS (I mean -- oh, never mind):

Generally speaking, now that the exam is out, I can't answer substantive questions. However, this one came in before the exam was released, so I'll answer it:

I have looked online at the other exams and noticed that you gave points for things like battery and burglary, which we did not cover in this class. Do you want us to spot issues like that even if we did not go over them? If so, how in depth do you want the analysis to be?

Anything we discussed in class is "examinable." OTOH, the less we talked about it, the fewer points are likely to be attached to it.

:: David M. Wagner 8:18 PM [+] ::
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:: Tuesday, December 07, 2004 ::

Is this guy for real? At first I wondered why a law prof blogger would want to be anonymous. Then I had a look at his blog.

:: David M. Wagner 3:15 PM [+] ::
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:: Wednesday, December 01, 2004 ::

"Guarantee"-ed failure

Boston Globe: U.S. Justices Won't Hear Mass. Case, i.e. an appeal from Goodridge. Well of course not. This appeal was based on the "guarantee" clause, Article IV, Section 3: "The United States shall guarantee to every State in this Union a Republican Form of Government...." This is the archtypal non-justiciable clause, ever since 1849. Everyone is reasonably sure the clause does not mean that all states have to have GOP governors and legislative majorities, tee hee, but no one knows what it does mean.

(I have a hunch there's an anti-Catholic kick behind it: rule by a Catholic monarch was considered the antithesis of "a Republican Form of Government," and the Founders could not forget that the country was bordered by territories belonging to the crowns of France and Spain. Notice the "Invasion" clause that comes right after the Guarantee clause, separated only by a comma, which is less than separated New England and New York from Quebec, or Georgia from Florida.)

The suit the Supremes turned aside asked them to hold, basically, that the Massachusetts Supreme Judicial Court deprived Massachusetts of a "Republican Form of Government" by taking it upon itself to redefine marriage in that state. Courts violate the Guarantee Clause when they make decisions best left to legislatures? Oh yeah, I can see the U.S. Supreme Court holding that....

:: David M. Wagner 3:08 PM [+] ::
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:: Saturday, November 27, 2004 ::

It's a bit off-topic for this blog, I suppose, but here's a new non-law blog I'm enjoying.

:: David M. Wagner 3:29 PM [+] ::
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:: Wednesday, November 24, 2004 ::

Regent Law student Jamie Jeffords has a blog!

And so does Regent Law alum Randy Tunac!

:: David M. Wagner 11:50 PM [+] ::
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New blog: Underneath Their Robes -- News, gossip, and colorful commentary about the federal judiciary.

:: David M. Wagner 3:23 PM [+] ::
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:: Tuesday, November 23, 2004 ::

I've just come from teaching Maryland v. Craig in Criminal Procedure. GRRRGHGHRRRRGH. Mr. Chief Justice, conservatism in constitutional law is not all about locking people up. Justice O'Connor, your nanny pose in unbecoming.

This case gives us one of Justice Scalia's best dissents, of course, made all the more piquant by being joined by Justices Brennan, Marshall, and Stevens. "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion" -- and it just gets better from there.

Oh, that reminds me: Justices Brennan and Marshall (wherever you are) and Justice Stevens: doesn't this case give you any hesitation, any at all, about a "living Constitution" as you use the term? Maybe a clue about how a Constitution that "lives" under judicial management so as to "expand" rights can equally well contract and deny them?

As it happens, NR published today a piece by Sen. John Cornyn about judicial nominations, in the course of which he points out Justice Scalia's under-discussed record as a defender of criminal defendants' rights, when those rights are plainly in the Constitution. The Senator writes, inter alia:

Rights of the Accused: The judicial philosophy of Justices Scalia and Thomas has led to numerous decisions favoring criminal defendants, notwithstanding the contrary views of some of their colleagues. In Blakely and Apprendi, they authored or joined 5-4 majorities recognizing a robust right to jury trial under the Sixth Amendment. In Kyllo, Justice Thomas joined Justice Scalia's 5-4 majority opinion expanding Fourth Amendment protections against government searches based on new technologies. Justice Scalia's dissent in Maryland v. Craig, decided before Justice Thomas joined the Court, championed a broader Sixth Amendment right of criminal defendants to confront their accusers than that ultimately adopted by the Court.

Fortunately, there is language in Scalia's recent opinion for the Court in Crawford v. Washington that offers us a time-bomb underneath Craig: "The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." And: "It is not enought to point out that most of the usual safeguards of the adversary process attend the [out-of-court testimonial] statement, when the single safeguard missing is the one the Confrontation Clause demands."

That last line could have gone on to specify that it refers to the right to cross-examination, which after all is what was at issue in Crawford; but instead it's phrased so as to refer to the Confrontation Clause as such. Well done. Craig delendus est.

:: David M. Wagner 10:15 PM [+] ::
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:: Sunday, November 14, 2004 ::

The Hill -- Tide runs against Specter: Uproar continues over comments on federal judges

:: David M. Wagner 9:42 PM [+] ::
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Before the election, Justice Scalia turned out to be on the mailing list for a "piece" (as they say in the mass-mailing business) from Jim Carville, with an "in terrorem" on the outside on the envelope saying: "How would you like -- CHIEF JUSTICE SCALIA?" --

-- Whereupon hundreds of Federalist Society conference attendees rose to their feet and cheered. He made a two-handed "Aw get outta heah" gesture, and added: "I only said it because it's FUNNY!"

:: David M. Wagner 9:38 PM [+] ::
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Sen. Frist has now commented on Sen. Specter's Judiciary chairmanship prospects -- and it doesn't sound like rock-ribbed support.

:: David M. Wagner 8:58 PM [+] ::
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:: Wednesday, November 10, 2004 ::

Janet Dailey writes in London's Daily Telegraph:

There are lots of reasons why the liberal intelligentsia in the United States has so spectacularly fallen out of touch with the true democratic will of the country. Part of this is geographic - the electoral map with its huge mass of red states, fringed with blue bits hanging on for dear life at the edges, was clear enough. But the picture was far more complex than that map reflected: the real story is one of break-away Hispanic and black voters who went conservative on the social issues that John Kerry's campaign had thought to be a strong card with minorities. The truth in America, and in Britain, is that the Left-liberal axis has lost its way: it has failed to notice that its "liberalism" has become an off-putting orthodoxy with which most people do not identify. Government ministers have been pretty quick off the mark in noticing this: that is why [Home Secretary] David Blunkett is assigned the task of making anti-liberal noises. The Tories, alas, have yet to get the message. They still seem to think it is up-to-the-minute, state-of-the-art politics to talk like a sociology lecturer from the 1970s.

In the United States, liberalism has not only overplayed its hand but it has tried to attach the spirit of the 1960s civil rights movement to causes that the great majority see as inappropriate. Everybody that the orthodoxy adopts becomes an honorary southern American black: persecuted, exploited and downtrodden. Gays, however wealthy, successful and influential they are, must be portrayed as social victims whose lives are made hell becausetheir unions are denied absolute legal equivalence with heterosexuals. It is quite true, as everybody is saying, that in Britain, gay marriage is not the explosive issue that it is in America, where Biblical authority has much more sway. (But the Westminster obsession with gay issues such as the age of consent certainly is out of tune with most people's sense of political priorities.)

:: David M. Wagner 10:09 PM [+] ::
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White House Counsel Alberto Gonzalez has been nominated to succeed Ashcroft as AG. I take it this makes a Gonzalez Supreme Court appointment substantially less likely.

:: David M. Wagner 1:19 PM [+] ::
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:: Wednesday, November 03, 2004 ::

Sooooo -- Bush is back, with 55 Republican Senators; plus, Captain Filibuster lost his seat. The Democrats will have to elect a new leader. To be sure, filibusters aren't that hard to organize, and many of the same staffers will still be around; but the new Minority Leader will have to learn the ropes, and then pull them with a smaller conference behind him than Daschle used to have.

Besides, no Senate minority party gets away with filibustering a Supreme Court nominee (Strom failed in it, after all) -- especially not with a President freshly reelected with a popular as well as electoral majority.

For conservatives, the only sour note is Arlen Specter chairing the Judiciary Committee. On that, there is much in what Timothy Carney writes here.

:: David M. Wagner 4:37 PM [+] ::
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:: Tuesday, November 02, 2004 ::

Me.

:: David M. Wagner 5:02 PM [+] ::
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Let me know if I have to explain why this makes today's election even more interesting.

:: David M. Wagner 10:08 AM [+] ::
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:: Thursday, October 28, 2004 ::

Retired Brennan clerk defends Scalia in The New York Sun.

:: David M. Wagner 1:43 PM [+] ::
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EU panel charged with vetting nation's nominees for the European Commission seeks to blackball Italy's Rocco Buttiglione for "expressing traditional religious beliefs on homosexuality and marriage during a Parliamentary review hearing."

:: David M. Wagner 1:28 PM [+] ::
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:: Wednesday, October 20, 2004 ::

Lots of interesting cert grants recently. Maybe by next week I'll have my life back a little bit, and I'll blog about them.

:: David M. Wagner 8:02 PM [+] ::
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Red Sox pitcher Curt Schilling said last night, about game 6: "I became a Christian seven years ago and I've never been touched by God like I was tonight."

:: David M. Wagner 11:55 AM [+] ::
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:: Tuesday, October 12, 2004 ::

Portland judge assails sentencing guidelines

PORTLAND (AP) - Although the U.S. Supreme Court has not yet ruled on theissue, a federal judge in Oregon issued an opinion this week attacking federal sentencing guidelines as an unconstitutional encroachment on judicial authority and discretion. U.S. District Judge Owen Panner's ruling Wednesday included a blistering attack on Congress and, in particular, U.S. Attorney General John Ashcroft's efforts to strip judges of their authority and discretion. Panner, whose opinion quickly rippled through legal circles across the country, determined that attempts by the congressional and executive branches to control how defendants are sentenced in federal courts overstepped the authority of Congress and the president.

He's right, of course -- except he doesn't take his point far enough: just as legislatures and executives shouldn't sentence, judges shouldn't be involved in determining "sentencing guidelines." Mistretta must be overruled.

:: David M. Wagner 1:17 PM [+] ::
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:: Wednesday, October 06, 2004 ::

Michael Moore files briefs....

:: David M. Wagner 10:24 AM [+] ::
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:: Tuesday, October 05, 2004 ::

Fanfan-Booker oral argument: the Sentencing Guidelines aren't toast yet, but they're getting warmer. The Blakely coalition seems to have maintained its unity at oral argument. Justice O'Connor last summer pronounced herself "disgusted in how we dealt with" the sentencing issue. How far would she and the other dissenters go? If a statute made the defendant's name a jury issue, and guilt or innocence a "sentencing factor," I assume they would agree the Sixth Amendment had been violated....

Amazingly (to me), the government argued that, in contrast to the Washington State guidelines struck down in Blakely, "the federal guidelines should survive because they are created by a commission within the judiciary" -- the very factor that made the U.S. Sentencing Commission unconstitutional from the get-go, except the Court got that one wrong.

:: David M. Wagner 3:45 PM [+] ::
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A state judge in Louisiana today has struck down an anti-same-sex-marriage amendment passed with 78 percent popular support three weeks ago. Had to, you know: it addressed two subjects -- same-sex marriage and civil unions -- so, you see, it had to go. Wonder which argument (due process or equal protection) the judge will use when the state electorate gets around this state-law obstacle with two separate one-issue amendments.

:: David M. Wagner 3:34 PM [+] ::
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The President does not support those portions of H.R. 10 that are likely to lead to outsourcing of torture, says White House Counsel Alberto Gonzalez says in a letter to the Washington Post. (Hat-tip: JURIST)

:: David M. Wagner 3:27 PM [+] ::
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:: Friday, October 01, 2004 ::

Today, just for a change, we bring you Manic Nino.

EDITED TO ADD: Fun though headlines like this one are (I admit to a fondness for if-it-bleeds-it-leads journalism), the actual facts seem to have been better captured by the NYPost's crosstown rival the NYDaily News, which wrote (hat-tip: How Appealling, of course):

[T]he jurist was making a rhetorical point - not revealing himself to be a swinger in black robes. The quote was taken "out of context," court spokeswoman Kathy Arberg said. The text of Scalia's Harvard speech shows that his "orgies" comment came as he derided a European court decision that struck down a ban on group gay sex. "Let me make it clear that the problem I am addressing is not the social evil of the [ruling]," he said. "I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged."

So that's what that's all about. Looking forward to the cartoons, though.

:: David M. Wagner 11:45 PM [+] ::
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:: Thursday, September 30, 2004 ::

I happen to be pro-refugee. If other conservatives don't like that, too bad. I'm adding the Immigrant and Refugee Appellate Center to my blogroll. Meanwhile, H.R. 10 wants careful attention lest it become a vehicle for sending refugees, or anyone, to places where they will be tortured. (Hat-tip: Eve.)

:: David M. Wagner 5:39 PM [+] ::
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Found this on How Appealling:

Justice in the Balance: Catholic Lawyers and Scholars Speak out on the Threat to Catholic Values Posed by a Kerry Presidency

:: David M. Wagner 5:07 PM [+] ::
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WASHINGTON (AP) -- The Supreme Court will get rid of a little bit of its secrecy next week when it abolishes the practice of keeping justices' names out of the official record of argument sessions.

This is a welcome development, though it will take the sportsmanship out of figuring out where the questions were coming from. Until now, we could only go by leitmotifs. If the question sounded like it was from another case (or planet), it was Breyer. If two questioners interrupted each other, it was Ginsburg and O'Connor. If it reminded you of first year, it was Souter. If there wasn't a question, it was Thomas. And if it was snarky, well....

:: David M. Wagner 4:07 PM [+] ::
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:: Tuesday, September 28, 2004 ::

Princeton Review is out with its first-ever guide to law schools. Regent is second, out of 117, in "quality of life," behind UVa and ahead of Stanford. And we're ninth (again, out of 117) in "Professors Rock (Legally Speaking)."

:: David M. Wagner 10:00 PM [+] ::
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Court will hear Connecticut eminent domain case. The linked Bloomberg.com story quotes a friend of mine, Institute for Justice litigator Dana Berliner.

:: David M. Wagner 4:21 PM [+] ::
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:: Monday, September 27, 2004 ::

Quote of the day:

The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U. S. 836 (1990) (right to be confronted with witnesses, Amdt. 6, does not).

-- Justice Scalia, dissenting in County of Riverside v. McLaughlin

:: David M. Wagner 7:33 PM [+] ::
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:: Sunday, September 26, 2004 ::

Scalia and Frankfurter

Over at Balkinization, guest poster Prof. Mark Tushnet speculates that, had Justice Frankfurter lived in the digital age, he would have inspired a blog much the equivalent of this one. I thank Professors Tushnet and Balkin for the link.

And now, my opinion. Frankfurter and Scalia, despite major differences which I will mention, were alike in that they clung to Anglo-American Common Law reasoning, and the legal ideals behind it, with a fervor that is perhaps only possible in those who, by family background, are outsiders to that tradition, and thus in some sense, converts to it, rather than being (to stretch the metaphor) "cradle Common Lawyers."

Both were “New Deal” Justices. If that label sits oddly on Scalia, consider that he, like Frankfurter, stands for broad legislative power and a sharply restrained, though still independent, role for the Court. Scalia appears to accept without remainder the Reagan administration view (which I more than once articulated on the word-processor screen as a DOJ speechwriter -- whether I fully adhere to it now is a separate question) that there's not a dime's worth of difference between the judicial activism of the Lochner era and that of the Warren and early Burger Courts.

Frankfurter and Scalia are most noticeably similar in Free Exercise cases. Both stand for the privileges and dignity of self-government over against the self-defining, self-expressing individual. One and the same strain of republicanism can be seen in Gobitis ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."), the Barnette dissent ("[T]he history out of which grew constitutional provisions for religious equality and the writings of the great exponents of religious freedom -- Jefferson, Madison, John Adams, Benjamin Franklin -- are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not in fact disguised assaults upon such dissident views."), Smith ("The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind...."), and the Boerne concurrence ("Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases.").

But the resemblance starts to fade after that. It does not even extend to the other side of the Religion Clause, as Frankfurter took the religion-as-troublemaker view (see McCollum: "Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects" etc. etc.), which is self-evidently far from Scalia’s view (see the Weisman dissent: "The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated").

They were also rather different cultural characters. Though both in a sense “ethnic,” Frankfurter’s personal merger into Harvard-based WASP culture was fairly complete, while Scalia – himself not lacking in Harvard credentials -- retains just enough Italian-American truculence to be willing to call American law to account for how it lives up to its Common Law roots, and to do so with a convert’s fervor. He doesn’t care whether he’s invited to give the graduation speech as long as he can loudly remind the college of its mission. He’s not trying to get into the Club; he’s trying to revive the principles that built the society that made the Club possible.

Behind many of the opinions in which Justice Scalia extols the “Anglo-American” legal tradition, and the dissents in which he warns against the statist seductions of Continental law, I hear a voice that says (and please understand that these are my words, not Justice Scalia's):

“I know about a tradition older than yours. My people discovered legal science in the lecture-halls of Bologna while yours were discovering novel disseisin at the Sussex Assizes. Mine were giving the most advanced law the world had ever known to the entire Mediterranean world while yours were marauding their way across the wastes of northern Europe. I have given my tradition up because I was raised instead in yours, and because yours protects freedom better than mine did. Do not let it go. For once it is gone, others will be waiting to take its place that you know not of. Do not let it go.”

:: David M. Wagner 8:16 PM [+] ::
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:: Monday, September 20, 2004 ::

Criminal law questions

A student asks:

Do general and specific intent have any correlation with the concepts of mala in
se and malum prohibitum, respectively? Some of the note portions of the text
indicated that if something was wrong in itself, only general intent is required
(this also supplements your in-class definition about the same evidence proving
both the act and intent.

I think the answer is yes. I've tried to imagine a malum prohibitum crime that is neither strict liability nor specific intent, and I haven't succeeded yet. In order for a jury to jump rationally from proof of a voluntary act to proof of mens rea, the act has to be recognizable as bad; otherwise, you're talking strict liability.

Another student asks:

I am still confused about the difference between specific and general intent. I
understand the concept about specific intent being about the consequences beyond
the act. However, could you further explain general intent to me? What are some
other examples of general intent besides battery?

Statutory rape might be an example, except in jurisdictions that make knowledge of the victim's age an element. Common-law rape might be another example, though there are arguments over whether, if at all, knowledge of the woman's non-consent should be an element. If it isn't, then rape is a general-intent crime.

There's a reason why the general/specific distinction has been criticized, and why LaFave in his hornbook ignores it except for his discussion of intoxication as a defense.

The easy part of this problem is that whenever you see a statute or a common-law definition that includes words like "with intent to..." or "with knowledge of...", you can be sure you're looking at a specific intent crime.

:: David M. Wagner 11:22 AM [+] ::
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:: Monday, September 06, 2004 ::

Here, at PolState.com, two Virginia politics-watchers say more or less what I think about Ed Schrock.

:: David M. Wagner 3:14 PM [+] ::
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:: Tuesday, August 31, 2004 ::

Down here the big news is that Rep. Ed Schrock won't run for reelection because of a website that has "outted" him as gay. Unlike Gov. McGreevey, Rep. Schrock has no coordinate financial corruption scandals: just the fact (if such it is) of being an active homosexual, along with the fact of co-sponsoring the FMA and taking other stands that find no favor with the Village Voice.

I don't know. It seems to me that "I live with this temptation out of the public eye but I don't think it's a lifestyle that should have societal endorsement" is a perfectly consistent and intelligible stance, one that would dispose of the "hypocrisy" charge, and not one that would cause too much political trouble with the Evangelical base. Those folks are more attuned to the reality of human "sin nature" than their enemies give them credit for. Of course, given that Mr. Schrock is married and a father, any public statement short of denial would be problematic. Maybe that's why he feels he has to decline reelection.

:: David M. Wagner 11:03 AM [+] ::
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:: Friday, August 20, 2004 ::

Finally, a few thoughts about Hamdi.

The majority opinion is a skyhook. It flails about in the arena of legally untethered policy judgments, and then at length alights upon, of all things, Mathews v. Eldridge as its basis of analysis. So questions of national survival (never mind mere "security") get "balanced" by the Court, for all the world as if they were administrative determinations about what kind of a hearing Joe gets before his disability checks get cut off.

That's because, for this Court, every constitutional issue is a Due Process issue, and every Due Process issue is a matter of "balancing," which is to say, the Court reviewing the legislative decision (or, in this case, the executive one), deciding whether it likes it, and allowing it, disallowing it, or (as in this case) modifying it, accordingly.

For this, we have to thank first of all Charles Reich -- The New Property, 73 Yale Law Journal 733 (1964) -- for teaching us that there is no problem too minute to be a matter of constitutional law (as in Mathews), and second of all, the Burger Court, for teaching us that no problem is so large that the Court can't solve it by some "balancing test" or other.

Where does that leave Our Hero? In dissent, disagreeing both with the majority and with the separate and contrasting dissent of Justice Thomas. Yes, a sharp Scalia-Thomas clash; needless to say, this is where to look for the "intellectual feast" (to coin a phrase) in this set of opinions.

Justice Thomas takes the position taken by the Fourth Circuit below, and, I confess, by me on this blog, before I read the Scalia dissent. The Thomas view is a straightforward, energy-in-the-executive, Curtiss-Wright take on the president's national security powers, bolstered by a lack-of-judicial-competence argument based on separation of powers as well as on -- lack of judicial competence. (The way the word "competence" has changed meaning since the 18th century makes it a lot of fun.)

So, would Thomas say that Youngstown was wrongly decided? No, because in that case we had a clear lack of congressional authorization (perhaps even a positive congressional disapproval, depending on how you interpret the congressional debate over Taft-Hartley); here, Thomas is convinced (as is the majority) that Congress made a blanket delegation to the President for purposes of dealing with the 9/11 crisis.

This gets my nondelegation juices going. An assignment of power that broad may well be too broad. Scalia would not agree, because he thinks the nondelegation doctrine is pretty much non-justiciable. See David M. Wagner, American Trucking: The "New Nondelegation Doctrine" is Dead (Long Live the Old One?), 11 U.of Baltimore J.of Env.L. 25 (2003).

But even if the nondelegation doctrine is not applicable (and there are good reasons, rooted in the history of that doctrine -- don't get me started -- to think it isn't), that doesn't mean we're forced back onto Mathews-type Due Process balancing. "Due process" is a catch-all, given that other parts of the Constitution protect, with greater specificity, rights that, if not specified, might well be inferred into Due Process. And one of these is -- ta daaah -- the "Great Writ" of habeas corpus, and the suspension power of Art. I Sec. 9.

You see, Yaser Hamdi is a U.S. citizen. Accident of birth, sure; unfortunate, perhaps. But there it is. And in the case law of habeas corpus, only Ex parte Quirin -- described by Scalia as "not this Court’s finest hour" -- stands against the dominant view that U.S. citizens may not be held indefinitely without being charged with a crime; unless Congress has exercised the suspension power, which nobody here claims it has done (though the majority attributes virtually unlimited meaning to Congress's Sept. 18, 2001 Authorization for Use of Military Force, 115 Stat. 224).

Thomas makes a cogent point: the Suspension Clause allows Congress to suspend habeas, not in any or all cases where "the public Safety may require it", but only "in Cases of Rebellion or Invasion". So suspending the Writ was not an option here.

Two possible answers:

1. 9/11 was an invasion within the meaning of the Suspension Clause. Dicey, because the Framers probably envisioned something more like what we did to Iraq (not that there's anything wrong with that) than what the terrorists did to us. I.e., "invasion" may imply occupation. Otoh, it was certainly a physical incursion into our territory with hostile intent and effect. Maybe the word "invasion" has Law of Nations bag-and-baggage that I'm not aware of.

2. Hamdi was in rebellion. He was nabbed in Afghanistan, bearing arms against the United States. Congress could so find, and suspend the Writ. But does the Suspension Clause contemplate prisoner-specific suspension? Isn't that the real meaning of Bill of Attainder, where the legislature legislates someone's guilt, or gives specific persons diminished procedural rights?

3. You're right, Justice Thomas: Congress could not have suspended the Writ on the facts prevailing in the aftermath of 9/11. And so Justice Scalia is right: Hamdi has to be charged as a criminal (with all the Due Process that this entails), or released.

:: David M. Wagner 4:01 PM [+] ::
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:: Thursday, August 19, 2004 ::

Students: A good Volokh post on why it's a bad idea to be too passive in the law-school classroom. Hat-tip to colleague Prof. Michael Schutt.

:: David M. Wagner 8:39 PM [+] ::
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Orientation days at Regent Law. "Ickle firsties!"

:: David M. Wagner 8:38 PM [+] ::
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:: Tuesday, August 17, 2004 ::

Illinois Governor Launching Program to Reimport Drugs
Move May Force FDA's Hand
By Marc KaufmanWashington Post Staff WriterTuesday, August 17, 2004; Page A13
Despite opposition from a federal agency, Illinois will soon become the nation's first government to help residents buy cheaper drugs not only from Canada but from the United Kingdom and Ireland as well.

Say, isn't there a potential problem here with Article I Section 10 -- "No state shall enter into any treaty, alliance, or confederation...."? Sounds like the Governor of Illinois has entered into a de facto trade pact with Canada, the UK, and Ireland, giving Illinoisans a commercial advantage over other states and undercutting the unitary nature of U.S. foreign policy.

:: David M. Wagner 8:59 PM [+] ::
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:: Monday, August 09, 2004 ::

Well, well. I now have a blog outlet in addition to Ninomania: The Yale Free Press. Vast. Right. Winged.

:: David M. Wagner 11:43 PM [+] ::
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Thomas for Chief?

:: David M. Wagner 11:01 PM [+] ::
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:: Monday, August 02, 2004 ::

Supreme Court to settle sentencing rules.

Most likely it will strike them down under Blakely. I hope Scalia concurs separately to say that the Guidelines are additionally unconstitutional because Mistretta was wrongly decided and judges cannot, in fact, participate in legislating.

:: David M. Wagner 11:22 AM [+] ::
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:: Thursday, July 29, 2004 ::

I just used a copy of Goodridge to whack a spider.

Just thought you should know.

:: David M. Wagner 4:11 PM [+] ::
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:: Wednesday, July 28, 2004 ::

Crooked Timber -- welcome to my blogroll!

:: David M. Wagner 6:39 PM [+] ::
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:: Wednesday, July 07, 2004 ::

"Law and Torture," by Prof. Ruth Wedgwood (no lefty) and former DCI James Woolsey, originally published in the WSJ, June 28, 2004.

:: David M. Wagner 2:59 PM [+] ::
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:: Tuesday, July 06, 2004 ::

Comments comin' up on the Court's end-of-year work-product. In the meantime, grok this: my law alma mater, George Mason University, has made me even prouder of it than I already was by opening a legal-aid clinic for needy members of the military services.

Says acting dean Dan Polsby:

"It's not exactly a secret that the culture of higher education in America is anti-military," Polsby said. "We're a little different in the law school. We're near the Pentagon, with a lot of military and naval officers in our student body. I just don't think we drink very deeply from the same cultural springs that some of our brother and sister schools drink from."

Cheers, Dan!

:: David M. Wagner 3:21 PM [+] ::
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:: Saturday, June 26, 2004 ::

Torture memos -- first comment

I'm going to be away for a few days, with limited computer access, so if the Court upends the nation again and I don't comment immediately, that's why.

When I get back I hope to post something about the "torture memos". The one I've looked at so far -- the one from OLC in August of 2002 -- makes a rather strange move, it seems to me, in construing the "intent" term in the federal torture statute. It's first-year black-letter law that something done "knowingly" is done intentionally. You aim to blow up Mr. A; you do it by blowing up a commercial on which Mr. A and 200 other people are flying --> you're guilty of 201 counts of murder, not one. You may only have "intended" to kill Mr. A, but you knew other passengers would die too.

So why would OLC lawyers think that the torture statute is not violated if the defendant "merely" knew his acts would cause torturous pain? The answer may have to do with the fact that the statute, rather unusually, uses "specifically intends" as its mens rea term -- but that still may not give OLC a solid argument.

More when I get back.

:: David M. Wagner 10:32 PM [+] ::
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:: Friday, June 25, 2004 ::

Blakely v. Washington: Another Scalia libertarian crim pro opinion that scrambles the usual coalition. Held: factors leading to an upward departure from legislated sentencing guidelines must be found by a jury, beyond a reasonable doubt, and not be a judge.

The line-up: Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and Kennedy, J., joined except as to Part IV—B. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined.

To savor:

This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).5 These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476—483, 489—490, n. 15; id., at 501—518 (Thomas, J., concurring), and need not repeat them here.

This is a matter not only of defendants' rights but also of constitutional structure:

Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”)....

Between Blakely and Crawford, this has been a good year for the Sixth Amendment, and for Our Hero's project of reviving its protections. (And a deservedly bad year for the state of Washington. How 'bout them apples?)

:: David M. Wagner 5:49 PM [+] ::
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:: Thursday, June 24, 2004 ::

SG Olsen to return to private practice.

:: David M. Wagner 10:39 PM [+] ::
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:: Friday, June 18, 2004 ::

Another unanimous reversal for the Ninth Circuit.

:: David M. Wagner 1:05 PM [+] ::
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:: Thursday, June 17, 2004 ::

A leftist e-zine called BuzzFlash has interviewed Katrina vanden Heuvel, editor of The Nation magazine, and caused an embarrassment to the American left -- or would have done, if the left were embarrassable.

The interviewer said, and Ms. vanden Heuvel agreed, that

If one were even to accept at face value a strict constructionist's viewpoint -- which Scalia doesn't in reality accept because he's actually an interventionist judge and an activist judge in defiance of the Constitution -- but in any case, if one were to accept what he claims as strict constructionism, we would still have slavery in this country and women wouldn't have the right to vote.

KvH: I think that's absolutely right....

These are the intellectual leaders American leftwing journalism -- and they think strict construction/original intent/original meaning jurisprudence means refusing to apply the 13th and 19th Amendments?

Don't let your guard down, American conservatives -- but don't panic either. The other side's heavyweights are lightweights.

:: David M. Wagner 6:16 PM [+] ::
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:: Monday, June 14, 2004 ::

Newdow doesn't have standing! Newdow doesn't have standing!

Great victory for the First Amendment, and even more for the standing doctrine.

:: David M. Wagner 11:25 AM [+] ::
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:: Tuesday, June 08, 2004 ::

Spence Publishing is bringing out a lot of titles on constitutional law, religious liberty, and other subjects, expressing perspectives that would otherwise have a hard time trying to fit into the straitjacket of contemporary publishing, whether academic or commercial. I now proudly display their banner in my left margin (and will just as proudly pocket my cut if, as you should, you click there and buy a lot of their books).

:: David M. Wagner 12:05 AM [+] ::
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:: Monday, June 07, 2004 ::

PRESIDENT REAGAN

Justice Scalia's remarks:

"Ronald Reagan needs no one to sing his praises. The man who presided over the bloodless dissolution of the Soviet Empire will go down in history as one of our great presidents.

"He was shamelessly patriotic and infectiously optimistic. My sympathies go out to his family, in particular to his wife, Nancy, who enabled him to fill out his time here in privacy and dignity. May he rest in peace."

Thanks to How Appealing for the link. Other obits and coverage here, here, here, and here

:: David M. Wagner 6:58 PM [+] ::
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:: Friday, June 04, 2004 ::

Raoul Berger writes: "On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text." Government by Judiciary 7 (1977).

Wait a minute. If the intention really is "unmistakably expressed", then it is part of the text -- and in such a case, why talk about intent at all? As one who used to write speeches defending the "jurisprudence of original intent", let me suggest that legislative intent has no importance whatsoever when it conflicts with legislative text. This is because text is voted on, and intent is not.

(As for those speeches, we became aware after a while that we should have been talking instead about a "jurisprudence of original meaning".)

:: David M. Wagner 10:58 AM [+] ::
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:: Monday, May 31, 2004 ::

Must have your recipe for duck soup!

The inchoate but powerful Ad Hoc Conspiracy to Embarrass Our Hero has succeeded in getting Chief Justice Rehnquist to establish a "panel" to study "federal judicial ethics."

You write a blistering dissent in a gay-rights case, no prob. You hunt ducks with the Veep when there is a case pending in which the Veep is the nominal defendant, no prob. But do BOTH, and you'll be on the receiving end of a "panel".

All members of the panel are federal judges, with one exception: the Chief's administrative assistant, Sally M. Rider. Informed readers who wish to clue us in on what she will bring to the table are invited to write me.

:: David M. Wagner 3:56 PM [+] ::
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Is the Ninth Amendment actually an anti-McCulloch clause?

:: David M. Wagner 3:44 PM [+] ::
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:: Friday, May 21, 2004 ::

A total of 6,298 students will graduate at George Mason University's 37th annual commencement on Saturday, May 15, in the Patriot Center. Edwin Meese III, Board of Visitors rector and former U.S. attorney general, will deliver the commencement address.

Gosh, I love my law alma mater!

:: David M. Wagner 5:29 PM [+] ::
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:: Tuesday, May 18, 2004 ::

"Anti-gay speech" banned in Canada

I've alluded to this already; here's a Fox news item about it. As far as I can tell, no prosecutions have been launched yet under this law, known as C-250, and conceivably the worst fears of Canada's religious conservative may be overblown. On the other hand, regional "human rights commissions" in Canada have already come down hard on persons found insufficiently enthusiastic for the gay cause (see infra).

The following quotes are from World Magazine, May 8, 2004:

The bill does state that a person won't be prosecuted for anti-gay speech "if, in good faith, he expressed ... an opinion based on a belief in a religious text." But at least one Saskatchewan court has already held that certain Bible passages expose homosexuals to hatred.

Even without C-250, London, Ontario, officials recently slapped a Christian mayor with a $10,000 fine for refusing to proclaim "Gay Pride Day." A Christian businessman in Toronto was fined $5,000 for refusing to print materials for a gay-rights group.

In light of C-250's passage, church-law analysts already are advising religious leaders on how to shield themselves. Attorney Bruce W. Long in a March issue of Church Law Bulletin wrote: "Churches and religious organizations may want to consider ... avoiding public criticisms of identifiable groups ... limiting opinions to private conversation, and if targeted or investigated, relying on the constitutional right to remain silent."

Such self-censorship would normally send free-speech lawyers bounding into court. Of course, Canada isn't the U.S. and doesn't have our First Amendment and its relevant caselaw, such as Brandenburg (allowing direct prohibition of speech only when that speech causes a "clear and present danger" of physical harm to persons and property; downstream, speculative harms are not enough).

Canada does, however, think of itself as part of the English Common Law tradition which has always respected (if less punctiliously than U.S. law) the right of free speech.

I'll be following what happens under this law. The utter lack of interest in it among American academic free-speech scholars has been amazing -- or, on second thought, maybe quite predictable.

:: David M. Wagner 9:12 PM [+] ::
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:: Saturday, May 08, 2004 ::

Is there a life -- and especially a life of the mind -- in the practice of law?

Let's solve that question the way lawyers do: by arguing about it!

There's a very interesting debate going on here about such questions, and related ones: Did I make the right choice in going to law school? What are the trade-offs? What is practice like, and is it for me? The initial post is by a badly disillusioned lawyer. There are lots of those out there. But if you click on the link, be sure to read the comments as well: they show the variety of legal careers out there, with praise for both the humblest and the highest-flying career tracks.

A recurring theme is: Does the "life of the mind" that you experiences as humanities undergrads cease as soon as you enter law school, or if not, then as soon as you start working as a lawyer? The poster and commenters express widely differing views.

:: David M. Wagner 11:13 PM [+] ::
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:: Thursday, May 06, 2004 ::

Judge Rules Schiavo Law Unconstitutional

Yes, on two grounds, one of which you were probably expecting, the other probably not.

1. The law, which allowed Gov. Jeb Bush to order that Terri Schiavo not be killed by starvation/dehydration, violates Terri's "right to privacy" -- a right that somehow always ends up meaning either killing or being killed.

2. The law was also an unconstitutional delegation of power to the Governor. Well, well -- not used (by the U.S. Supreme Court anyway) to strike down any law since 1936, this doctrine suddenly comes back to life when handy to advance the culture of death.

:: David M. Wagner 5:42 PM [+] ::
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:: Thursday, April 29, 2004 ::

A currently circulating abstract reads as follows:

"Unity of the Graveyard and the Attack on Constitutional Secularism"
Brigham Young University Law Review, 2004

BY: STEVEN G. GEY
Florida State University
College of Law

Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=509463

Paper ID: FSU College of Law, Public Law Research Paper No. 105
5487

ABSTRACT:
"Once it is conceded that a political structure defined by religious principles will exclude those who do not choose to adopt those principles, then there is little left in the search for religious unity. If cultural and political unity is a desirable goal, therefore, we must search for a secular alternative to the religious unity model. I sketch the outlines of two such secular options in this essay. One, which I will term the affirmative case for constitutional secularism, takes as its starting point the essential functions of a democracy, and uses those essential functions as the lodestar for political unity. The second, darker model, which I will term the negative case for constitutional secularism, is based on the indisputable recognition that the very factors that make religion exclusive and disunifying are also the factors that can lead diverse groups of religious adherents to give up their quest for unity through dominance in exchange for a guarantee of survival. After exploring in a bit more detail the nature of religious exclusivity, I turn to the a fuller explanation of the two options for achieving real - i.e., secular - national unity."

Well, I don't concede that "a political structure defined by religious principles will exclude those who do not choose to adopt those principles", at least not without further definition of "exclude".

But let me concede it for now, and then ask: why would unity based on cultural or political principles have a less oppressive "excluding" effect than unity based on religion? I will read Prof. Gey's article with interest, to find out what these "cultural and polititical principles" are that can supposedly be enforced -- excuse me, can be made the basis of national unity -- without stepping on the necks of those "who do not choose to adopt those principles".

On a related note, should this be of concern to us if we want to protect those "who do not choose to adopt" the "unifying" princples of the state?

:: David M. Wagner 12:15 PM [+] ::
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:: Thursday, April 22, 2004 ::

TO MY CON LAW STUDENTS:

Conerning this paragraph in Question Two of your exam:

Second, regardless of how you come down on the standing issue, discuss how Rick's case will fare if the court decides he does have standing and hears his case on the merits; i.e., discuss his argument that Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban.

The "either/or" construction is NOT -- am I clear? NOT -- an invitation to you to pick one or the other.

Read it again. Rick's argument = "Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban". You are asked to discuss "Rick's argument". Since Rick's argument includes both of the sources of power that Congress is relying on, obviously you have to discuss both.

The reason I included the words "under either the Commerce Clause or the 14th Amendment" was to remind you to discuss both, not to give you the option of choosing one and ignoring the other.

Sheesh.

:: David M. Wagner 11:09 AM [+] ::
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:: Wednesday, April 21, 2004 ::

"It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want without a check."

-- Justice Stephen Breyer, in today's oral argument in the Guantanomo detainees' habeas corpus case

Oh it does, does it? Some of us feel rather the same way about the judiciary....

:: David M. Wagner 12:06 AM [+] ::
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:: Thursday, April 15, 2004 ::

Law 681 -- CONSTITUTIONAL LAW:

One of you wrote in to ask:

I am pretty confused about the anti-subordination and anti-classification arguments. I understand that these are two ways to read and try to understand the equal protection clause, but that's about it. Also, you mentioned congruence and proportionality and I wasn't sure how that fit in.

You're right: these are two ways of understanding the Equal Protection Clause. They are not themselves arguments, but arguments can be made for and against each view.

They are what you might call academic terms: I've never known the Court to use them. But when, say, O'Connor or Scalia says that all racial classifications by government are suspect, even when plausibly linked to a benign motive, they are reading the E.P. Clause as a strict rule against racial classifications.

Likewise, when Marshall or Stevens or Souter says the Clause permits benign or remedial racial classifications, they are reading the clause as primarily a means of counteracting past racial subordination.

"Congruence and proportionality" are the two restraints that the Court has put on Congress's use of its powers under Sec. 5 of the 14th Amendment, whenever Congress construes the content of Sec. 1 (citizenship, privileges or immunities, due process, equal protection) more broadly than the Court has done.

So, two contrasting situations:

1. Congress is using its Sec. 5 powers to enforce Sec. 1 within existing Supreme Court definitions of the Sec. 1 rights. In this case, no need for Congress to show "congruence and proportionality".

2. Congress is using its Sec. 5 powers to ban something that has not been held by the Supreme Court to violating Sec. 1; or, even better, Congress is using its Sec. 5 powers to ban something that the Court has specifically said does not violate Sec. 1. (Example: Katzenbach v. Morgan, where the Court had previousely held that literacy tests as a prerequisite for voting do not violate Sec. 1, but Congress banned them anyway, invoking its Sec. 5 powers).

To defend this statute, the government must be able to show that Congress's action was "congruent with" and "proportional to" an actually existing threat to some Sec. 1 right. Morgan was a case where Congress was able to make that showing; City of Boerne v. Flores was a case of the opposite, where the statute was far out of proportion to any threatened violation that Congress had been able to point to.

Congruence and proportionality apply only when Congress is legislating under the powers it has under Sec. 5 of the 14th Amendment (or under one of the similar "congressional empowerment clauses" found in other amendments). It does not apply to Congress using its original powers (see esp. Art. I Sec. 8).

Also, c & p do not apply to the states. The c & p limitation is ultimately a consequence of the principle that Congress's powers are enumerated rather than plenary. Since states have plenary powers, they need only worry about the substantive limitations placed on them by the 14th and other amendments. (But note: the 14th is now read as including the Bill of Rights and applying it as a limit against state governments as well as against the federal government.)

:: David M. Wagner 11:40 AM [+] ::
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Law 681 -- CONSTITUTIONAL LAW:

The exam will be available (and posted on Blackboard) on the morning of April 21, and due back by the end of the day on Tuesday April 27.

All requests for variances from this timetable are hereby denied.

Watch for announcements about review session(s) and an opportunity -- probably on the 21st -- to take the exam in a timed setting.

:: David M. Wagner 11:24 AM [+] ::
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:: Wednesday, April 07, 2004 ::

Amanda Strassner, blogger at World Magazine, has opted to attend Regent University School of Law, and tells you why here.

:: David M. Wagner 8:32 AM [+] ::
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:: Tuesday, April 06, 2004 ::

Fetuses feel pain, doctor testifies

:: David M. Wagner 10:26 PM [+] ::
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:: Monday, April 05, 2004 ::

MEDIEVAL ACADEMY OF AMERICA annual conference

Well, you know, I am a member. I mean, I wasn't born a lawyer -- it just sort of happened. Anyway, here are some notes:


Model Infernal Code

I gave a paper (this was the proximate cause of my being there) on criminal mens rea as it relates to the categorization of sins in Dante's Inferno. My point was that while Dante considers intent to defraud more blameworthier than intent to kill, the worst of all is the combination of the two, such that the Ninth (and lowest) Circle of Hell actually punishes something closely akin to "first degree murder," with its overtones of calculating deliberation.

Prof. Steven White, who specializes in medieval French romance (I mean medieval French poems about knights -- sheesh, I have to explain everything to you lawyers!), remarked that "treason" in the French romances seems to have the same homicidal aspect that I had identified as common to all the Ninth Circle sinners.


Sentimental reunion

The light was green on memory lane as I met again, for the first time in 20 years, folks who had been at one time somewhere within the orbit of historian John Boswell. Now, Prof. Boswell is best known for this book, and this one, and regular readers of this blog will assume -- and they'll be right -- that I agree with few, if any, of his conclusions. And it's not only a matter of conclusions: there's also a matter of -- if not culture wars, then at least -- a cultural tiff.

Prof. Boswell is no longer among us.

...e quant' io l'abbia in grado, mentr' io vivo
convien che ne la mia lingua si scerna.

Informal talks were had about somehow organizing, or maintaining communications among, those who were influenced by Prof. Boswell in some way. That I certainly was: through his courses that I took, he introduced me to serious research in medieval history, and to medieval law. He also introduced me to Professors Robert Stacey, Robin Chapman Stacey, and Ralph J. Hexter, that last of whom had the thankless task of improving my Latin. Fortunately for Ralph, Hugh Thomas was also in that course.

If part of the Boswellian legacy is learning to look past assumptions and engage with the unexpected, then something good may come of this project.


Taking care of Byzness

I attended several panels. I was very impressed by one about Byzantine iconography. It featured a paper by Krista Kotsis, grad student at the University of Washington), entitled "Beautiful Empresses," about how the the spinmeisters of old Constantinople used feminine pulchritude to promote veneration of the imperial couple as God's delegates. Harvard grad student Alicia Walker demonstrated Byzantine craftsmen's use of "pseudo-Kufic script" -- that's polite for "mock-Arabic" -- as a decorative motif when a note of "otherness" seems called for.

I don't have time to write up all the panels I attended and folks I met; just two, real quickly:

* Thomas Madden, Crusade scholar and chairman of the history department at St. Louis University -- read your articles in Crisis, NRO, etc., and very honored to meet you!

* Students at Baylor: This fall, drop whatever you're signed up for and take any course you can with that new medieval literature professor, K. Sarah-Jane Murray. Besides being a freshly-minted PhD from Princeton, and having a lot of interesting things to say about St. James, St. Patrick, and the medieval narrative theme of the "holy foreigner," she also has an uncanny ability to keep a room spellbound, and a smile that could wake the dead and set them swing-dancing.

:: David M. Wagner 4:03 PM [+] ::
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:: Monday, March 29, 2004 ::

Wabbit season

Prof. Ronald Rotunda has an op-ed here on the recusal issue, showing pretty clearly that Justice Scalia's position rests on precedent, while the opposite position -- some of whose proponents are becoming altogether unhinged and calling for Scalia's impeachment -- rests on politics.

Question: Should Justice Jackson have recused himself in the Steel Seizure case, given that (as he pretty obviously hints in his concurrence) the government's case relied in part on memos that Jackson himself had written as Attorney General? Isn't the perceived need to agere with oneself at least as strong as the perceived need to agree with one's duck-hunting partner? (I don't think either is very strong, but maybe you do.)

:: David M. Wagner 11:25 AM [+] ::
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:: Thursday, March 25, 2004 ::

Newdow, Souter, and a weird doctrine on standing

I doubt the Court will hold that Newdow lacks standing to bring the "Under God" case, but along the way, Justice Souter made an interesting gambit at oral argument: he played the "parents' rights" card to deflect the standing issue. Newdow, he suggested, has standing to vindicate his own rights as a parent trying to bring up his daughter with his values, even though he is not the custodial parent.

What if the Court were ever to adopt this view? Wouldn't it would lead to a flood of non-custodial parents (whether divorced or, like Newdow, never married) flocking into court to challenge the custodial parent's decisions, not as being adverse to the "best interest of the child," but as being violations of the non-custodial parent's personal rights? Does Souter have any idea what he might be pushing the Court, and us, into?

Here's the actual exchange on this point, courtesy of the Pasadena Star News. Note how Cassidy, counsel for the school district, eventually nudges the discussion around to the "best interest of the child" doctrine, the vague but familiar child-custody standard into which Souter's standing doctrine would throw a monkey-wrench:

JUSTICE DAVID SOUTER: As I understand it, and you correct me if I'm wrong, as I under stand it, he's saying, look, simply as the father of this child, I have an interest which is in fact being infringed here.

Even though under state law the mother of the child has the right to cast the final decision on matters of morals, education, religion, I nonetheless have an interest as a father, and that in terest is in seeing that my child is not subjected to what I be lieve is an unconstitutional religious interest or religious influ ence. What is your answer to his claim that that is enough to give him personal standing?

CASSIDY: I have to answer that question, Justice Souter, based upon how the school district perceives respondent's rights, and in this case, the school district must look to only a single decision-maker.

It's the only way a school district can function. It's the same way this court should approach, we would suggest, the standing issue.''

SOUTER: Well, the mother isn't a decision-maker for the school district, neither is the father a decision-maker. If there's going to be a decision-maker, it's ultimately going to be a judicial decision-maker on the constitutional question. He is simply saying, I have a right to raise that question by virtue of my interest as a father, even though at the present time under state law I cannot control her presence or absence at the school.

CASSIDY: We would submit, Justice Souter, that the question is truly what is in the best interest of the child. That's ultimately the determination made when we look to parents' rights in custody disputes under state law.

:: David M. Wagner 7:02 PM [+] ::
...

"Under God" oral argument...

...took place in the Supreme Court yesterday. There are dozens of news accounts out there; start with this one, which I choose because Lyle Denniston is an old-fashioned just-the-facts reporter, the dean of Supreme Court journalists, and one of the very, very few in his profession who doesn't make me ecstatic that I left it for this profession. (I didn't know he had moved to the Boston Glob, though. When I would occasionally meet him in my DOJ days, he was with the Baltimore Sun.)

Now, as to the argument: With the obvious caveat that oral argument doesn't necessarily tell you jack about how the case will come out, I was surprised that so many members of the Court leaned on the many dicta in earlier cases about how "Under God" in the Pledge is just one of those things (along with "In God We Trust" on the currency) that is self-evidently not an establishment of religion.

Justice Stevens, however, did manage to remind everybody that these were only dicta, and Justice Ginsburg, more incisively, noted that they were made without benefit of briefing and argument.

I was also surprised at how many Justices, including Ginsburg, were willing to question whether "Under God" in the pledge is a "prayer". This is weird, because the existing Establishment cases have never turned on a judicial determination of what is or is not prayer. No, Jaffree is not an example of just that: the legislature had added the words "or prayer" to the statute, so the Court there had no occasion to rule on whether a moment of silence is a prayer or not.

Ginsburg also said that the phrase "under God" is "two words sandwiched in the middle of something, and the child doesn't have to say those words." This remark implicates two Establishment precedents.

One is Lynch v. Donnelly, in which the fact that a manger scene was accompanied by ("sandwiched in the middle of", if you like) certain "secular" symbols like Santa Claus and reindeer enabled the display, as a whole, to pass muster. (Hey, don't ask me how a character whose title is "Santa" can be a "secular" symbol!)

The other is of course Barnette, which held that students cannot be obliged to say the Pledge. Some of us would say that Barnette, by removing the coercion problem, also removed any Establishment Clause problem; yet the Court has held many times since then that most religious activities in public schools are unconstitutional, even when no student was coerced to participate. Justice Ginsburg obviously knows this, and one hardly thinks she's raring to overrule Engel, Schempp, Lemon, and Weisman -- so why did she make Newdow answer the no-coercion question?

:: David M. Wagner 6:50 PM [+] ::
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:: Friday, March 19, 2004 ::

From the non-recusal memo:

I daresay that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana on the vice president's jet. Justices accept the former with regularity. While this matter was pending, justices and their spouses were invited (all of them, I believe) to a Dec. 11, 2003, Christmas reception at the residence of the vice president - which included an opportunity for a photograph with the vice president and Mrs. Cheney. Several of the justices attended, and in doing so they were fully in accord with the proprieties.

Full text here.

:: David M. Wagner 5:31 PM [+] ::
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:: Thursday, March 18, 2004 ::

Justice Scalia lays it on the line in William & Mary speech

From a report by David Levia of the Associated Press:

WILLIAMSBURG — The U.S. Supreme Court has become a political institution where nine lawyers using the "enormously seductive living Constitution" have only helped to curb the liberties and freedoms guaranteed under it, Justice Antonin Scalia said Tuesday....

"I cannot do the horrible, conservative things I would like to do to society," Scalia said, adding that he believes he must follow the script laid down by the Founding Fathers....

"I don't like bearded sandal-wearing weirdos burning the flag," he said, but he voted in favor of the ruling that gives people the right to do so under the First Amendment.

[In appointment and confirmation of judges, Scalia said,] political views are paramount, with abortion the litmus test. This subjects the Constitution to control by the party in power, Scalia said, giving control to the legislative branch that it's meant to protect against.

Asked whether the issue of gay marriage would come before the Supreme Court, the justice said it would likely be brought up in the context of whether laws in one state must be recognized in another.

"That's probably how it will come up," he said. "I don't know how it will come out."

Full text of AP's report here.

:: David M. Wagner 4:20 PM [+] ::
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:: Wednesday, March 10, 2004 ::

Boy Scouts again

On March 8 the Supreme Court denied cert in an appeal by the Boy Scouts from a Second Circuit decision allowing Connecticut to kick the Scouts of the list of approved charities for workplace giving by state workers.

I haven't read all the opinions below in this one, but according to an editorial in today's WSJ, one judge at an earlier stage of this case said that the Scouts "pay a price" for exercising their First Amendment rights.

Well, there are situations in which that happens without violating the First Amendment. Nothing in that amendment or its historically demonstrable original meaning says that government must make all exercise of speech, press, religion, etc. utterly costless.

OTOH -- there is a line of cases that seems to hold that any burden on political association, not just criminal penalization for it, violates the First Amendment: I refer to the Elrod-Branti-Rutan line of cases holding that political hiring and firing violate the First Amendment.

I don't know what arguments the Scouts made in the Connecticut case, but I'd like to argue some day either that Elrod, Branti etc. mean government cannot treat the Scouts less favorably than other organizations because of the Scouts' exercise of their First Amendment rights -- or (drum-roll, please) that Elrod etc. were wrong and should be overruled.

:: David M. Wagner 5:48 PM [+] ::
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Recusal

From a Wall St. Journal editorial yesterday:

There's something to be said for having Sandra Day O'Connor recuse herself from any case involving anyone who attends those Beltway dinner parties she is so fond of. Justice Anthony Kennedy is also known to be highly sensitive to the press reviews of his decisions. Perhaps both of them should have to disclose the names of every public official--and every journalist--they socialize with. We are talking "appearances," after all.

On the other hand, what a crock.

:: David M. Wagner 1:28 PM [+] ::
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:: Monday, March 08, 2004 ::

Want to think hard about lethal injection as currently practiced? Want to faint? Achieve either or both by reading this. (Via How Appealing)

:: David M. Wagner 3:49 PM [+] ::
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Jeff Jacoby: an important op-ed on why same-sex marriage is not a civil-rights issue:

Those first four sit-in strikers, like the thousands of others who would emulate them at lunch counters across the South, weren't demanding that Woolworth's prepare or serve their food in ways it had never been prepared or served before. They weren't trying to do something that had never been lawful in any state of the union. They weren't bent on forcing a revolutionary change upon a timeless social institution.
...
The marriage radicals, on the other hand, seek to restore nothing. They have not been deprived of the right to marry -- only of the right to insist that a single-sex union is a "marriage." They cloak their demands in the language of civil rights because it sounds so much better than the truth: They don't want to accept or reject marriage on the same terms that it is available to everyone else. They want it on entirely new terms....


And what would Dr. King say? Jacoby writes:

The civil rights movement for which he lived and died was grounded in a fundamental truth: All God's children are created equal. The same-sex marriage movement, by contrast, is grounded in the denial of a fundamental truth: The Creator who made us equal made us male and female. That duality has always and everywhere been the starting point for marriage....


Great piece. Click here to read the whole thing.

:: David M. Wagner 3:04 PM [+] ::
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ScrappleFace: 9th Circuit strikes down Iraqi constitution. (For those in doubt: yes, it's a joke.)

:: David M. Wagner 2:57 PM [+] ::
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Guess what was on top of Blogger's "recently updated" list just now? After Abortion. Go visit.

:: David M. Wagner 11:36 AM [+] ::
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:: Friday, March 05, 2004 ::

Look, I know the Republicans are the kick-me party, but the only explanation for party-wide self-abasement on this scale is that someone's "got something" on someone. Allowing one's own staffers to be criminalized while saying absolutely nothing about the memos in question and the issues they raise -- that's beyond the usual caliber of yielding the high ground without a fight, even for Republicans.

:: David M. Wagner 6:22 PM [+] ::
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:: Wednesday, February 25, 2004 ::

This honks.

More to come. For now, just this: the Court says the anyone-but-ministers program in this case (Locke v. Davey) differs from the anti-"ritual"-chicken-slaughter statute in Lukumi because it was not punitive. But that is not what mattered in Lukumi: what mattered was that a statute on its face singled out religiously-motivated conduct for disfavored treatment, as does the gerrymandered scholarship program here.

More tantrums (tantra?) as I study the case further. (A "designated public tantrum," surely.)

:: David M. Wagner 6:03 PM [+] ::
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:: Tuesday, February 24, 2004 ::

Olympic Airways v. Husain: Thomas-Scalia split

...on an issue of treaty interpretation. Scalia wants to know why the Court (per Thomas) is eager to look to the law of "other" (i.e. western European) nations to find out whether our Constitution allows sodomy laws or execution of the mentally retarded, yet does not care that its interpretation of a particular treaty is in conflict with that of most of the other signatory nations -- and this when there is a canon to the effect that treaty interpretations by other signatory nations are persuasive authority, while there is no canon to the effect that other nations' municipal law means diddly as far our Constitution is concerned.

So do I. Obviously.

:: David M. Wagner 2:53 PM [+] ::
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Bush endorses marriage amendment

Text of his statement here, via Jurist.

Comments on particular passages:

After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization.

Well said. The equation old=good is not valid, but that mistake is not our legal system's problem right now, at least not where neo-substantive due proces is concerned. Quite the opposite. The systematic hermeneutic-of-suspicion against tradition is a cheap substitute for thought in both Lawrence and Goodridge.

Yet there is no assurance that the Defense of Marriage Act will not itself be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.

Shouldn't concede that this would be the effect of the Full Faith and Credit Clause in absence of DOMA; that's not settled. But yes, the amendment is necessary to bring certainty to this area.

And what's up with the rhetoric on the other side about "tampering" with the Constitution? Amending the Constitution isn't "tampering" -- it's a procedure set forth explicitly in Article V because the Framers understood it might sometimes be necessary. Did the 39th Congress "tamper with the Constitution"?

You want "tampering"? How about judicial opinions that read constitutional text in ways that would have been considered "at best facetious" by the Framers -- and pretty much admit this is what they are doing, claiming authority to do it in the notion that "later generations can see that laws once thought necessary and proper in fact serve only to oppress" -- so we'll just decree the necessary adjustments without bothering with the Article V process, OK?

So who's talking about "tampering with the Constitution"? Time-serving politicians, from both parties, who want to keep safe by taking a verbal stand against same-sex marriage without actually doing anything to prevent it.

:: David M. Wagner 2:17 PM [+] ::
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Time I tried one of these "Quizillas" that are all over the blogosphere:

YOU ARE RULE 11!

You were designed to make sure that attorneys in
federal cases make reasonable inquiries into
fact or law before submitting pleadings,
motions, or other papers. You were a real
hardass in 1983, when you snuffed out all legal
creativity from federal proceedings and
embarassed well-meaning but overzealous
attorneys. You loosened up a bit in 1993, when
you began allowing plaintiffs to make
allegations in their complaints that are likely
to have evidenciary support after discovery,
and when you allowed a 21 day period for the
erring attorney to withdraw the errant motion.
Sure, you keep everything running on the up and
up, but it's clear that things would be a lot
more fun without you around.


Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

Yeh-heah! No wussy notice-pleading for me! (Oh btw, it's "evidentiary", with a t.)

:: David M. Wagner 12:19 AM [+] ::
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:: Monday, February 23, 2004 ::

The University of North Carolina at Wilmington confronts a problem: too many Christian groups on campus. Via Mark Shea.

:: David M. Wagner 6:43 PM [+] ::
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Are some law profs too political? I'm afraid I'm the worst person to ask. Instead, why don't you ask Prof. Cass Sunstein?

:: David M. Wagner 4:37 PM [+] ::
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:: Saturday, February 21, 2004 ::

Southern Appeal joins the fun over Pryor.

:: David M. Wagner 11:24 PM [+] ::
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Instapundit nails the New York Times.

:: David M. Wagner 11:23 PM [+] ::
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Court grants cert in Padilla case. In a nutshell, Ex parte Quirin but with citizenship.

Will DOJ at least try the "political question" argument?

:: David M. Wagner 11:09 AM [+] ::
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CNN: Schwarzenegger: City on 'dangerous path'
Saturday, February 21, 2004 Posted: 5:41 AM EST (1041 GMT)

Schwarzenegger: Certificates issued to same-sex couples do not meet state legal standards.

SAN FRANCISCO, California (CNN) -- Californian Governor Arnold Schwarzenegger has warned San Francisco to stop issuing marriage licenses to same-sex couples in defiance of state law.

The marriage-license disneyland going on in San Francisco (and, briefly, in one county in New Mexico) may make what's going on in Massachusetts seem irrelevant. Wrong way around: San Francisco is irrelevant, at least for now, because California's cities have no jurisdiction to issue marriage licenses not authorized by state law. In Massachusetts, the legislature is actually debating a real amendment that could actually pass. That's where the activists should concentrate.

:: David M. Wagner 11:01 AM [+] ::
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:: Friday, February 20, 2004 ::

The President has recess-appointed William Pryor! The link is to a Federalist Society press release that also includes a link to the Society's legal analysis of the constitutional issues behind recess appointments.

It was Pryor's polarized confirmation hearing, you'll recall, that got Republicans to try out the "anti-Catholicism" charge against Judiciary Committee Democrats. Whether it's a fair charge is debatable (yes, Chuck Schumer wants to make it impossible for a Catholic who is serious about his faith in all its ramifications to be confirmed as a federal judge, but no, Catholicism per se was not Schumer's target); but clearly the charge gained traction in a way that other GOP protests against Dem obstructionism had not. Schumer was put distinctly on the defensive by it.

Be sure to take in the views of Parents and Friends of Gays and Lesbians, Earth Justice, Sen. Pat Leahy (who is actually ranking minority on the Committee, though Schumer tends to take the lead on nomination issues); and of course the "civil rights coalition". Here is a press release by black conservatives, calling attention to Pryor's support among African-Americans in his home state of Alabama.

:: David M. Wagner 6:04 PM [+] ::
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Cybercast News Service: Company's 'Tolerance' Clause Prompts Religious Discrimination Lawsuit. Via northern-Irish blog A Tangled Web.

:: David M. Wagner 1:32 PM [+] ::
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:: Saturday, February 14, 2004 ::

By an Amherst College journalist; emphasis added. -- DW

Repressive Tolerance

Some Questions Are Beyond the Pale For A "Liberal-Arts" College
By Ethan Davis
Posted February 13, 2004

You would think that a sitting Supreme Court Justice would be treated with respect pretty much anywhere. But not at Amherst College in Massachusetts, where on Tuesday Antonin Scalia was forced to pick his way through crowds of jeering protesters just to get to his lecture.

Once inside, Justice Scalia spoke eloquently, lucidly and politely on originalism in constitutional law. Interpreting the Constitution as it was originally written, he argued, is the only way to restrain liberal and conservative judges alike from imposing their personal preferences on the country. Five out of nine unelected lawyers, Scalia said, should not be legislating for the entire nation. If the Supreme Court makes a mistake, the people can only rectify it by constitutional amendment. Directed by their professors to believe that Scalia would engage only in "vitriolic name-calling," the audience was temporarily mollified. There were embarrassed looks as some of the less radical ones quietly removed their black armbands, and Scalia spoke without interruption for close to 45 minutes. During the question and answer period, some protesters tried to get the speech back on track with long-winded, accusatory questions (defying their own instructions to refrain from dialogue), but the speech ended without major incident.

The next evening, with Justice Scalia safely out of the way, the campus gathered for a "debriefing." Tony Marx, the newly inaugurated president of Amherst College, moderated the discussion, which quickly turned into an assault on the legitimacy of Scalia's presence on campus. Because President Marx allowed each person to speak only once, the four or five conservatives present, including political science professor Hadley Arkes, bore the brunt of the exchange.

Austin Sarat, the professor of law, jurisprudence and social thought who was one of the signers of the faculty boycott letter, delivered a long monologue. "The scope of legitimate debate on a college campus is narrower than in the world at-large," he declared. "Whether homosexuals are covered under the equal protection clause is not a debatable subject on a college campus." Furthermore, Professor Sarat announced, he did not find Antonin Scalia to have an "interesting mind." He would have much rather seen another justice, such as Sandra Day O'Connor, onstage.

Members of the College Democrats proclaimed that Amherst had exceeded the bounds of acceptable dialogue by inviting Scalia. Parroting the professors' letter of protest, they again condemned Scalia's alleged "vitriolic name-calling" and unwillingness to engage in reasonable dialogue. When asked about their curious silence on September 11, when Barbara Ehrenreich called President Bush a "moron" and expressed her fear that George W. Bush was going to "bomb a bunch of brown people," the Democrats changed the subject. The "discussion" then dissolved into a spat between the far-left and the moderate-left over whether Scalia violated Amherst's Statement of Respect for Persons. How strange that this endorsement of reasonable dialogue came from the same students who had been wearing black armbands and chanting profanities the evening before.

The only surprise of the night was that the professors and students finally said explicitly what campus conservatives have known for a long time. Dissent is legitimate, so long as it comes from the left. So much for a liberal education.

Ethan Davis is a student at Amherst College in Massachusetts, and co-editor of The Indicator, a non-partisan campus political journal.

:: David M. Wagner 3:46 PM [+] ::
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:: Friday, February 13, 2004 ::

Interesting post here from Lex Communis about the legal battle over the remains of "Kennewick Man", a battle that shows that when opposition to anthropological research is rooted in politically correct identity politics, rather than in adherence to Scripture, it can go far indeed.

:: David M. Wagner 6:58 PM [+] ::
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Terry Schiavo's parents/protectors win two procedural rounds. JURIST's "Paper Chase" blog tells us: "In the first case the court ruled that Bush's attorneys can question witnesses in the court battle over the hastily-passed law that purportedly gave the Governor authority to intervene." (Emphasis added)

There are major reasons to question how "brain-dead" Terri Schiavo really is, what her wishes really would be, and what her husband's motivations really are in wanting her to die. See Wesley Smith's article here, reprinted from The Weekly Standard; also here at NRO. So tell me, "mainstream" folks: why is the side wanting the patient to die always right, in your book? What's so attractive about death, that you are instinctively drawn to the party trying to inflict it?

:: David M. Wagner 6:32 PM [+] ::
...

The crime known as "false pretenses"

:: David M. Wagner 11:04 AM [+] ::
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:: Tuesday, February 10, 2004 ::

This debate at Harvard didn't quite take place as advertised: the pro-same-sex-marriage side pulled out. More as it becomes available.

:: David M. Wagner 5:56 PM [+] ::
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:: Wednesday, January 28, 2004 ::

Just in case you wanted to read those memos showing close collegiality between liberal interest groups and Democratic staffers on the Senate Judiciary Committee, you can access them here.

:: David M. Wagner 8:03 AM [+] ::
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:: Monday, January 26, 2004 ::

Media: How shall we beat up on Scalia this week?

How Appealing links here to several editorials calling for Justice Scalia to recuse himself from the Vice President's energy policy case (issue: whether Cheney must reveal whom he met with to discuss the administration's energy policy) due to his longstanding friendship with Cheney, reified in their recent duck-hunting expedition.

Look. Chief Justice Marshall didn't recuse himself in Marbury even though he was a participant in the underlying events. Recusal standards have tightened since then, and no one is more sensitive to them than Justice Scalia, who recused himself in the Newdow case, apparently because he had criticized the Ninth Circuit's ruling in a speech.

Even this was unnecessary, imo. He didn't recuse himself in Lukumi, even though, in Smith, he had cited with apparent approval the District Court's opinion in Lukumi (an opinion that he later voted to reverse when the case got to the Supreme Court).

Left or right, people who rise to the Supreme Court generally know other Washington players. There would be no eligible candidates for the Court if they had to recuse themselves whenever people they know -- even people they are friends with -- have cases before them.

:: David M. Wagner 4:18 PM [+] ::
...