NINOMANIA

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:: Wednesday, February 23, 2005 ::

Big Federalist Society do at Harvard Law School this weekend. You'll all be there, right?

:: David M. Wagner 9:59 PM [+] ::
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Quote of the day:

Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed.

-- Justice Scalia, concurring in Barnes v. Glen Theatre

:: David M. Wagner 9:53 PM [+] ::
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:: Friday, February 18, 2005 ::

Death in the Afteroon has more Supreme Court drinks, with some recipes for real drinks actually named for members of the High Court.

Two remarks: (1) I could kick myself for not having thought of the "Whiskey Souter" myself. (2) Whoa, the one named for Sherman Minton is sure an interesting mix for a rather bland Justice!

EDITED TO ADD: I've added Death in the Afternoon to my blogroll. This Yale Law bloggeuse likes '80s music, Austen's EMMA, Dostoevsky's NOTES FROM UNDERGROUND, Salinger's CATCHER IN THE RYE, Tocqueville, and Aristotle. Clearly someone who believes, as I do, that lawyers should be readers, and not just of law. Heck, after hours of [insert your least favorite Supreme Court Justice or law prof here], you're entitled to some Austen, Dostoevsky, etc. etc.

Which reminds me: So, this classics prof goes up to this law prof and he says, "Hey, how come you guys make so much more money than we do?" And the law prof, he says, " 'Cause you guys get to read Aristotle, and we've got to read Harry Blackmun." Bada-BOOM!

:: David M. Wagner 4:30 PM [+] ::
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:: Thursday, February 17, 2005 ::

Well, not that choice

Should religious hospitals and their staffs be forced to become complicit in acts that violate their consciences, including acts that would make them complicit in homicide via abortion?

I'd say no, because (a) abortion is homicide, and (b), even if you reject (a), such compulsion would still violate the "choice" deal that people who accept (a) are supposedly being offered.

The ABA, however, may soon say yes, only they will say it this way (it's all in the spin action):

Recommendation 104, sponsored by the Individual Rights & Responsibilities Section and Health Law Section, opposed governmental actions and policies that they say interfere with patients' abilities to receive from their healthcare providers: (a) all of the relevant and medically accurate information necessary to fully informed healthcare decision-making; and (b) information with respect to their access to medically appropriate care.

The above is quoted from the current edition of The Federalist Society's ABA Watch (scroll down to "Religious Hospitals").

ABA president-elect Michael Greco says:

The ABA cannot be a part of that type of censorship. The government has no place to interfere between patient and doctor with information. The ABA cannot condone it.

The governmental role, it appears, consists of statutes that affirmatively recognize the right of medical personnel not to participate in abortion if they, um, choose not to. Such statutes are what the ABA may be about to oppose. (And btw, referring for abortion is a form of participating in it: go to any criminal law hornbook, look up "accomplice liability," and make the necessary connection to moral reality.)

:: David M. Wagner 2:37 PM [+] ::
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No constitutional right to polygamy, yet

The AP Reports:

[U.S. District Judge Ted] Stewart rejected the argument that Utah's prohibition on polygamy was an unconstitutional violation of religious and privacy rights and he ruled that the state has an interest in protecting monogamous marriage....

Stewart said the Lawrence v. Texas ruling by the U.S. Supreme Court, which overturned an anti-sodomy law as a violation of the privacy of consenting adults, grants no right to plural marriage in Utah.

"Contrary to plaintiffs' assertion, the laws in question here do not preclude their private sexual conduct," Stewart said. "They do preclude the state of Utah from recognizing the marriage of plaintiff G. Lee Cook to plaintiff J. Bronson as a valid marriage under the laws of the state of Utah."

:: David M. Wagner 2:21 PM [+] ::
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More Supreme Court drinks:

From Rick Duncan:
Scalia Sangria
White Russian
Black Cow
Ruth Bader Gin
"Harry of the Dog" Blackmun

From Angus Dwyer:
Whiskey straight with a Salmon P. Chaser
Arthur Goldbergschlager
Fortasified Wine
Byron White Russian (Rick got there first, Angus!)
George Shiraz, Jr.
Sherman Minton Julep

Unaccountably, I have not yet linked to Angus's blog, Mansfield Fox. I am about to correct this.

:: David M. Wagner 10:37 AM [+] ::
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:: Tuesday, February 15, 2005 ::

Meet the "genuine conservatives"

I think I'm picking up a new meme from the academic Con Law Left in response to President Bush's reelection, renomination of judges, and possible S.Ct. vacancies to fill. The meme is: We're the real conservatives; we favor continuity, going slow, and no suddent shifts in constitutional law -- not like those Bushies, who aren't real conservatives at all because they favor (gasp) change in the jurisprudential status quo.

The same move was made by numerous pundits in 1981: Reagan was not a "true conservative," see, because he wants to change things, whereas a "true conservative" would cherish the ancient folkways of the New Deal and the Great Society.

Prof. Kathleen Sullivan recently told an audience at Penn:

The purpose of a written Constitution is to prevent us from doing things that we regret. There is a notion of pre-commitment, a trump that serves exactly when temptation is greatest.

That's quite true -- in a sense. E.g., "to be confronted with the witnesses against him" means "to be confronted with the witnesses against him," even if the reasons not to confront the defendant with the witnesses against him appear very good. (Yeah, I'm assuming incorporation. 'Nother day.) At the same time, the Constitution-as-check-on-government rhetoric, at such a high level of generality, is perfectly consistent with Lochner (when we're "tempted" to regulate working conditions) and Roe (when we're "tempted" to protect the lives of the human unborn).

Then consider Bruce Ackerman, writing in the London Review of Books (I found this through Jack Balkin's blog -- thank you, Jack!):

There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation.

Yes, you'll have noticed how conservative the legal profession is. Can't walk into a big firm these days without being solicited for a Republican campaign. Can't visit a law school without stumbling into a faculty teach-in on the sanctity of human life or the importance of traditional marriage. Moving right along:

Bork was a cutting-edge neo-conservative of the 1980s, but his successors may well go far beyond him, striking down laws protecting workers and the environment, supporting the destruction of basic civil liberties in the war on terrorism, and engaging in a wholesale attack on the premises of 20th-century constitutionalism.

The Constitution, of course, is a late 18th-century document, and its most transformative and influential amendments are a set of mid-19th-century documents. But what Ackerman wants to protect -- the tradition that turns him into a walrus-mustached Tory swinging his stick at the confounded radicals -- is "20th century constitutionalism." Oh, that tradition!

But wait -- there are "genuine conservatives" out there after all:

Or then again, Bush may hesitate. Despite his professed admiration for neo-con jurists such as Antonin Scalia and Clarence Thomas, he may offer up genuine conservatives, such as Sandra Day O’Connor, who reject radical change as a matter of principle.

So, all you "genuine conservatives," pack up your monocles and shooting sticks and go join Justice O'Connor and Prof. Ackerman and "reject radical change." You have nothing to lose but your reputations as liberals, and somehow I don't think those are in real danger.

:: David M. Wagner 6:10 PM [+] ::
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:: Monday, February 14, 2005 ::

Con Crim Pro students: You were wondering when U.S. v. Place would go nose-to-nose with Kyllo? Well here it comes.

:: David M. Wagner 10:32 PM [+] ::
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Supreme Court drinks

We're a dry campus, but someone must have some use for these (and who knows, maybe even some recipes):

Nino Vino
O'Connor's Lite
The Dryer Breyer
Ruth Vermouth
RehnqMist
Johnny Hugo Black
Thermos Marshall
Sutherland Comfort
Brandi-on-Eis
Taney Port
Tennessee Sour Mash (a.k.a. McReynolds)
Bushrod's Irish

Got some of your own? Send 'em in, maybe I'll publish 'em.

:: David M. Wagner 10:19 PM [+] ::
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:: Saturday, February 05, 2005 ::

Fletcher v. Peck: Do you Yazoo?

:: David M. Wagner 11:09 PM [+] ::
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New York Post: Gay Wed Shocker

:: David M. Wagner 7:02 PM [+] ::
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A thought inspired by Smith:

The free exercise cases of the 1980s (Lyng, Lee, O'Lone, Goldman) made Smith both inevitable and desirable, in the sense that one is never well served by thinking one has protections that one does not in fact have.

Hence, Wagner's Law #63: If you rely on strict scrutiny, you'll get strictly screwed.

:: David M. Wagner 1:08 PM [+] ::
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Con Crim Pro questions from a student:

1. The book on page189 talks about direct observations by police and throws out a couple of questions pertaining to the reasonable suspicision the police must have to stop someone. I guess my questions is about the questions that the book asks. How much should the court rely on officer's expertise in assessing potential criminal behavior. In the case they mention, Brooks v. United States, the officer knew that the perpetrator's already had prior convictions for larceny. But what if he hadn't, would there still have been reasonable suspicision?

For reasonable suspcicion, the officer needs only "articulable facts" that support the suspicion. The idea seems to be to rule out mere hunches but allow just about everything else. More when we look at Terry itself. (For latecomers, this question came up in the context of Ybarra and Summers.)

2. I guess my only other question is about no-knock entry. I'm assuming per the opinion entered by the court in Richards v. Wisconsin has unanimously rejected that the police NEVER have to knock in a drug case. Does this just mean it's another reasonable suspicision standard? Discretionary?

Richards simply affirms that the presumption in favor of knock-and-announce prevails in drug cases as in all other cases. It can be overcome by "exigent circumstances," and this may indeed be more likely in drug cases, but the Court rejected a per se exception for drug cases.

:: David M. Wagner 1:01 PM [+] ::
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:: Thursday, February 03, 2005 ::

I didn't watch the SOTU (that's "state of the Union speech" for you non-Washingtonians), because I have my priorities straight: I took my daughter to see Tristan und Isolde at the Virginia Opera!

However, a friend writes:

Biggest laugh: when Bush slams judges legislating from the bench, and then winks, presumably at Justice Souter (the only member of the Court present) who the cameras caught smiling in response.

Of course, a wink is precisely what we won't be satisfied with in the next nomination, and Souter is the reason.

EDITED TO ADD: Rick Duncan says Breyer, not Souter, was the only Justice to attend the SOTU.

:: David M. Wagner 2:37 PM [+] ::
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:: Tuesday, February 01, 2005 ::

My friend Prof. Rick Duncan has a blog!

:: David M. Wagner 5:54 PM [+] ::
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