NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: 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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
...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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
:: David M. Wagner 3:49 PM [+] ::
...
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 [+] ::
...
:: David M. Wagner 2:57 PM [+] ::
...
:: David M. Wagner 11:36 AM [+] ::
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:: David M. Wagner 6:22 PM [+] ::
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