NINOMANIA

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:: Wednesday, December 27, 2006 ::

"We must obey God rather than men." -- Acts 5:29

"Finally, the article questions the critics' premise that when religious and professional expectations do conflict, religious expectations are necessarily better." -- Prof. Bruce A. Green, Fordham University School of Law

:: David M. Wagner 3:09 PM [+] ::
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:: Friday, December 22, 2006 ::

Here is how WSJ assistant editorial features editor and MSM die-hard Joseph Rago attacked blogs the other day; here is Iowahawk's take on what he really meant.

:: David M. Wagner 4:50 PM [+] ::
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:: Friday, December 15, 2006 ::

Two more Criminal Law questions

Prof. Wagner,

In regards to mens rea, there is a rule from one of the cases that a criminal statute that is otherwise silent as to intent should not be strict liability unless is was a crime known to the common law. Another case, as well as the MPC, says that strict liability should never be inferred from silence. How should we treat this difference for exam purposes? Thanks.

Ummm, actually, the rule is that a criminal statute that is otherwise silent as to intent should not be read as imposing strict liability AS LONG AS it was a crime known to the Common Law. Have another look at Morrissette.

Do we need to know MPC Section 204? I don't think we talked about it in class, but I'm not sure, and it's very confusing.

I don't (at least not by section number), so I don't see how I could expect you to! Otoh, if 204 refers to a concept that we talked about in class, you may need to know that concept.

:: David M. Wagner 12:10 PM [+] ::
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:: Thursday, December 14, 2006 ::

CRIMINAL LAW EXAM Q&A -- Your questions answered!

Professor Wagner~
Could you give our class some idea of what the final will be like? Will we need to know case names, names of specific rules/tests, or just criminal law rules applied to facts? Any insight you could give would be much appreciated. Thanks!

In general, no case names. The exceptions would be those few rules that we covered that are known by their case name (e.g. the "Redline rule," the "M'Naghten test"). There weren't many of those.

Prof. Wagner:
When an individual is actually an actor (active participant) in a crime, is it true that they are not liable as an accomplice, but rather as a principle in the 1st degree? Consider the following: A and B enter a house for the purpose of killing everyone insider. A enters the room of the children and kills them both, B enters the room of the parents and kills them both. In this hypo, is it true that A and B are liable for 1st degree murder of the respective victims, but also guilty under accomplice liability for the murder of the victims to which they didn't pull the trigger?Or is this simply felony murder to the victims to which they didn't pull the trigger?

I'm having a hard time drawing a distinction between when the liability of the "accomplice" is cut off for acts by the principle in the 1st. For example, if A goes into the bank to rob the bank, and B sits outside to drive the get-a-way car, it seems that if A kills someone while inside, both could be guilty of felony murder. However, what if A, finding the teller attractive, decides to rape her after robbing her. It seems as though B would not be liable as an accomplice to the rape, only the robbery b/c he didn't intend the rape. Is this correct?

They're accomplices to the crimes they did not directly commit. Remember, we're doing without "degrees" of complicity. (Of murder, yes; but not of complicity).

If I get more, I'll answer them.

:: David M. Wagner 3:32 PM [+] ::
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:: Monday, December 04, 2006 ::

New avenue of attack on originalism? Cornell's Prof. Bernadette A. Meyler says, yes, the Constitution presumes certain Common-Law background rules -- but those rules were themselves fluid! Their function was only that of "supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively."

To which judges should say: Well, if 18th century Common Law didn't 'settle them definitively,' then neither will we. Back to the legislature with you!

But what judges probably will do is to take up Prof. Meyler's invitation to be "be responsive to certain alterations in external conditions, rather than static and inflexible." (This despite the fact that the invitation may well be addressed by Prof. Meyler to all who have to interpret the Common Law, and not only to judges.)

:: David M. Wagner 1:31 PM [+] ::
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:: Saturday, December 02, 2006 ::

Cert also granted in this -- the "Bong Hits 4 Jesus" case. I love it: a little bit of Cohen, a little bit of Tinker and Hazelwood, and maybe a splash of Free Exercise. Far out!

:: David M. Wagner 10:49 PM [+] ::
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Cert granted today in this case. A chance to clarify Flast v. Cohen, or even, perhaps, to get rid of that anomaly in the doctrine of standing.

:: David M. Wagner 10:47 PM [+] ::
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Miller-Jenkins case. Lisa Miller made a legal mistake very early in this case when she applied to a Vermont court for dissolution. Arguably, this means that under PKPA and UCCJA, Vermont has to retain jurisdiction of the case. Including all its incidents, such as child visitation? Maybe, maybe not: according to my colleague Prof. Lynne Marie Kohm, the fact that the (artificial) conception of Isabella took place in Virginia should give Virginia jurisdiction over custody and visitation. But it's close.

Also, the recent success of the marriage amendment in Virginia may have had a paradoxical effect. Until then, a holding such as the the Court of Appeals has handed down might have implied legal recognition by Virginia of same-sex relationships in some form. The new amendment cuts off that potential collateral meaning, so the Virginia court was freer than before to defer to Vermont.

:: David M. Wagner 4:45 PM [+] ::
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:: Wednesday, November 15, 2006 ::

Justice Scalia was in fine form at the Yale Political Union last Thursday night, and participated in the ensuing debate as well as giving a speech. Though he had to leave the debate before its end due to leg-stretching needs (so YPU student leaders told me), he answered questions from students at the subsequent reception for about an hour.

The next day's write-up in The Yale Daily News suggests that many students were favorably impressed.

In the speech, he made one point that I have not heard him make off the bench before (though it's in his Casey dissent): that, while ideologically polarized judicial confirmations are regrettable, they are inevitable -- and even appropriate! -- as long as the Court conceives its business to be the writing of a new Constitution every day, or at least, whenever a novel but fashionable new rights-claim is made. The American people aren't fools, as he said in the Casey dissent and again at Yale, and they have naturally realized that if the Constitution is continually rewritten by the Court, their only bite at the lawmaking apple is the confirmation process, with their Senators representing them.

To my surprise and relief, even the most hostile questioners did not assume that originalism means restoring the status quo of 1787, in every detail, through judicial action. That's a common view in -- if not the liberal blogosphere -- then at least the liberal blog comment-o-sphere. I guess either people so, um, rudimentary in their understanding still don't get into Yale, or they do but they avoid the danger (with which Yale, thanks to its prestige, can still present them) of hearing a contrary argument straight from its foremost proponent.

No, the hostile questions and opposing speeches, most of which were quite intelligent, all pointed to problems with originalism. But Scalia had prepared for this: the final point in his speech was that originalism does have problems, but that all alternatives to it have even more problems, beginning with the fundamental problem of legitimacy.

The next morning, Scalia spoke at the Yale Law School. I was not there, but it was live-blogged here. Much of the same material as the evening before -- but note the frank discussion of how he and Thomas disagree over the scope of stare decisis. (Clearly the context here is the Commerce Clause: there's no disagreement between them over the stare-decisis nullity of, say, Roe.)

:: David M. Wagner 2:41 PM [+] ::
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:: Thursday, November 09, 2006 ::

I should be blogging about the partial-birth abortion oral argument yesterday, but the fact is, I have to teach a class and then dash off to the Yale Political Union to hear Justice Scalia keynote a debate on constitutional interpretation.

When I get back I may be able to post about the former, and, since it's a public event, the latter too.

:: David M. Wagner 8:10 AM [+] ::
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:: Saturday, November 04, 2006 ::

More on the New Jersey ssm decision: At NRO's Bench Memos, Ed Whelan stresses a different aspect of the New Jersey decision, one that I missed in the course of trying to compare NJ's Equal Protection analysis with that of other state courts that have recently addressed this issue. Ed points out that the NJ state constitutional text on which the court based its decision is a preambular passage that more closely tracks the Declaration of Independence than the 14th Am. E.P. Clause.

The text in question says:

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”

Says Ed:

Based on this provision, and on previous judicial decisions construing it, the New Jersey Supreme Court has just ruled (unanimously) that all the rights and benefits of marriage need to be made available to same-sex couples. This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades. So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text. Not a single justice on the New Jersey Supreme Court did a simple sanity check: Is it remotely plausible, remotely compatible with democratic principles, to read this constitutional provision as supporting the court’s result? One could, with equal implausibility, maintain that the Declaration of Independence declares that the rights and benefits of marriage must be extended to same-sex couples.

And that's comin' up down the road. This is one reason why I cringe just a little when my West Coast Straussian friends (among whom I number the editors of the fantabulous, rockin', you-all-should-use-it casebook that I use) tell us not to worry 'cause constitutional interpretation is rightly controlled by the good ol' Declaration.

:: David M. Wagner 9:52 PM [+] ::
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My recent Weekly Standard pieces on state same-sex marriage decisions: on California; on New Jersey.

:: David M. Wagner 9:33 PM [+] ::
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:: Wednesday, October 25, 2006 ::

On same-sex marriage, New Jersey joins Vermont rather than Massachusetts.

:: David M. Wagner 3:33 PM [+] ::
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:: Saturday, October 21, 2006 ::

Never too early to overrule the Ninth Circuit.

:: David M. Wagner 1:31 AM [+] ::
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:: Thursday, October 12, 2006 ::

From the California In re Marriage Cases opinion -- file under "great case names":

* Citizens for Responsible Behavior v. Superior Court, 1 Cal.App.4th 1013 (1991)
Drat that irresponsibly behaving Superior Court! Join me, Citizens!

* Knight v. Superior Court, 128 Cal.App.4th 14 (2005)
Avaunt, thou scurvy court: I will joust with thee!

:: David M. Wagner 12:05 AM [+] ::
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I've just sent off to The Weekly Standard my take on the California same-sex marriage decision from last week.

Just in time, The American Prospect, reviewing Mark Graber's new book on Dred Scott, critiques "a romanticized view of legislatures as being better able to resolve difficult social questions than courts." Yes, the Ninomaniac -- last of the romantics.

:: David M. Wagner 12:00 AM [+] ::
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:: Friday, October 06, 2006 ::

California intermediate appeals court holds state constitution does not contain a right to same-sex marriage. The opinion can be found here; click on "In re Marriage Cases" (hidden in plain sight, wot?)

:: David M. Wagner 12:50 PM [+] ::
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:: Tuesday, October 03, 2006 ::

Ask your Justice about tequila!

:: David M. Wagner 11:30 PM [+] ::
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:: Thursday, September 28, 2006 ::

Efforts Mount to Cut Costs of Textbooks. Of course, many students don't wait, and just by from Half.com or other online sources.

:: David M. Wagner 11:58 AM [+] ::
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:: Tuesday, September 26, 2006 ::

Jewish-Owned Clinic's Decision to Close Saturdays Interferes With Religious Freedom -- The Law Should Force Them To Open Saturdays: Yes, that's the legal theory of the Spring Valley (N.Y.) NAACP....

So notes Eugene Volokh at the Conspiracy, with appropriate links and comments. In Con Law II this morning we touched on how direct application of the 14th Amendment to individuals, by-passing the state action requirement, could have totalitarian implications. This suit may be an example.

:: David M. Wagner 10:59 AM [+] ::
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The Court's cert grants from this morning

:: David M. Wagner 10:52 AM [+] ::
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:: Sunday, September 24, 2006 ::

Men's rea: Last week in Criminal Law we studied Regina v. Prince, an old British chestnut concerning Sec. 55 of the Offences against the Person Act of 1861 -- the statute that put the Miss in "misdemeanor."

:: David M. Wagner 9:05 PM [+] ::
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A Tale of Hoffmann: So Virginia, over Chief Justice Hassell's dissent, now has it own "mini-Kelo," called Hoffmann Family LLC v. City of Alexandria. (Hat-tip: Virginia Appellate News & Analysis)

The only fact that makes it "mini" is that the seized property remains in government hands, making the "public use" factor a mite bet less of a laugh than it was in Kelo. Alexandria needs a drainage culvert, and it seized the Hoffmanns' land to serve as one. Problem is, this will actually be a smaller and less effective culvert than the one previously used -- and the reason the old one will no longer be used is that a private developer wishes to build on it. If that isn't a taking for a strictly private use, it'll do until one comes along -- as it did in Kelo.

:: David M. Wagner 8:57 PM [+] ::
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:: Wednesday, September 20, 2006 ::

Criminal law question from a student:

Trying to grasp just what we are getting at in class on the topic of mens rea.
I found a passage that seems to explain when mens rea applies and when you can offer mistake of fact/law as a defense. The only problem is I don't understand what it means. Maybe you can help.

P. 220 of the casebook, number 2

"Ignorance of the offense definition is no defense. On this principle, defendant may be acquitted for ignorance that conditions specified in the definition were present; but may not be acquitted merely b/c she did not know that such conditions constituted defining elements of a proscribed offense."

Yes: the accurate meaning of "ignorance of the law is no excuse" is not that all are presumed to know the entire law, but rather that knowledge of illegality is not ordinarily an element of the crime.

And what does "not ordinarily" mean? It means that the legislature can make knowledge of illegality an element, but will not be presumed to have done so if that statute doesn't say so.

And when does a statute say so? Well, mens rea terms such as "knowingly" or "willfully" are enough to raise the issue....

:: David M. Wagner 1:09 PM [+] ::
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:: Monday, September 18, 2006 ::

20th anniversary of Scalia confirmation

:: David M. Wagner 11:09 PM [+] ::
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:: Thursday, September 14, 2006 ::

Welcome to Katherine McDaniel and her Clerkship Notification Blog!

:: David M. Wagner 7:17 PM [+] ::
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:: Wednesday, September 13, 2006 ::

The boy who cried persecution

Maybe it's because I'm prepping the glorious Smith decision again for teaching tomorrow, but my blood is up about people -- and I mean folks who are in some cognizable sense "my" people -- using their faith as a shield against the normal rules that normal people have to live by.

Writing on WorldNetDaily here, Judge Roy Moore claims that Navy chaplain Lt. Gordon J. Klingenschmitt is "is being tried before a special court-martial for his public opposition to the new Navy policy prohibiting chaplains from praying in the name of Jesus during certain command functions." But as WorldNetDaily more accurately reports here, Lt. Klingenschmitt was actually up (and was convicted today) on a charge of disobeying a direct order "not to wear his uniform during media appearances without permission, unless he was conducting a "'bona fide worship service.'"

We don't even have to get into the claim that the press conference/protest meeting that he attended in uniform, contrary to orders, was actually a "worship service." It was obviously no such thing within the ordinary meaning of that term as used by the vast majority of Americans, but we can let that pass for now -- because the only thing Lt. Klingenschmitt was convicted of was disobeying an order concerning how he dressed, which of course is well within the authority of his military superiors. He was subjected to no prohibition on prayer whatsoever, nor on praying in the name of Anybody in particular; only on what he could wear while doing so. And even as to that, he was free to choose anything from white tie to beach jammies -- just not his uniform.

Now, maybe this was the first court-martial in a gazillion years for disobeying an order not to wear the uniform on a particular occasion, in which case maybe we're seeing a discriminatory prosecutorial choice. I don't know, and it would be hard to prove. But if that's what Lt. Klingenschmitt's supporters think is going on, then that's what they should complain about, as distinct from what they are complaining about. He was not on trial for praying, nor for his "public opposition" to the Navy's latest lamebrained policy: he was on trial for disobeying an order concerning his uniform.

Get some perspective, Christian activists. Don't make everything a martyr-story. We'll have enough of those coming soon enough; don't make it worse by crying wolf now.

:: David M. Wagner 9:35 PM [+] ::
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:: Tuesday, September 12, 2006 ::

Welcome to a new school year. This term I'm teaching Con Law II (individual rights), and Criminal Law.

You know, Wisconsin v. Yoder has got to be the worst decision ever to reach the right result. It expanded the educational rights of parents, but only if they're Amish, or Amish-like; and in so doing, it recognized a "state interest" in "combatting ignorance," which had never been recognized before. With victories like this, who needs defeats?

Meanwhile, news on D.C. Circuit nominee Peter Keisler:

* Sen. Kyl says he'll be confirmed this fall.

* Two senators who should be helping and not hindering -- Grassley, and, of all people, Sessions -- may be holding up Keisler over a scruple about the number of judges on the D.C. Circuit. (Keisler would be #11; the court is authorized to have twelve, and Judge Rogers may be about to take senior status.)

* Legal Times tells Keisler's story, keyed to the Judiciary Committee hearing he had back on August 1.

:: David M. Wagner 10:37 PM [+] ::
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:: Thursday, August 17, 2006 ::

Many thanks to readers who keep popping back here for new stuff. Summer time is, of course, crunch time for law-review writing, so blogging as been thin. So, what's been up?

* The ABA says presidential signing statements are unconstitutional. That is -- umm, is it OK to talk about the ABA? I -- umm, well, I don't agree, any more than any President or OLC of either party ever has. It boils down to, does enforcing the law (the core Executive Branch mandate) ever involve interpreting it? Of course it does. A signing statement is just a heads-up on the probable (not definite) direction of executive interpretation of the law in question.

As for Congress conferring standing on itself by statute to challenge signing statements: first, Congress can't do that if standing is a constitutional requirement ("case or controversy") rather than just a judicial docket-management device. Besides, what relief would Congress ask for -- an injunction to the President to enforce the law differently than he said he would in his signing statement? Congress retains its law-making powers, you know. Reconceptualizing itself as a plaintiff and invoking the equity jurisdiction of the federal courts strikes me as a bizarre alternative to simply passing a new law.

* A U.S. District Judge has just ruled the Administration's NSA "eavesdropping" plan unconstitutional. I'll probably disagree with the holding when I read it, but I'll say this -- it's nice to have a country with courts in which the government can lose.

:: David M. Wagner 12:47 PM [+] ::
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:: Wednesday, August 09, 2006 ::

The resource on presidential signing statements

:: David M. Wagner 6:50 PM [+] ::
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:: Wednesday, July 26, 2006 ::

Washington Supreme Court upholds that state's DOMA. More comments as I read through and reflect. First off, it seems clear that the "wrong side of history" argument is losing its power to terrify. The New York Court of Appeals brushed it off at the end with an appeal to democratic process; the Washington Supreme Court does it even more sharply, near the beginning:

Judge Bridge's dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, and not because five members of this court have dictated it.

Take that, "Justice Marshall delivered the opinion of the court" of Massachusetts!

:: David M. Wagner 3:08 PM [+] ::
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:: Monday, July 17, 2006 ::

I'm in The Weekly Standard this week, on the New York same-sex marriage decision, with some comments as well on the Massachusetts SJC's decision allowing the anti-Goodridge amendment onto the ballot (with a threat by two concurrers to strike the amendment down even it becomes part of the Massachusetts Constitution, and, as such, part of the document that gives the SJC whatever power it has to strike down anything; unless it relies on the U.S. Constitution, which Justices Greaney and Ireland conspicuously do not do).

The first few grafs of my piece are here. For the rest, you need to subscribe. And you should.

:: David M. Wagner 2:23 PM [+] ::
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:: Tuesday, July 11, 2006 ::

Harry:
I think your hearing aid is emitting quite a high pitched sound. Can it be adjusted?
- Sandra

-- and other notes passed between Justices during oral arguments and kept by Justice Blackmun! (That one was Nov. 9, 1992.)

Many thanks to Timothy R. Johnson, Associate Professor, Department of Political Science, University of Minnesota, who put up the site.

:: David M. Wagner 6:07 PM [+] ::
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:: Friday, July 07, 2006 ::

Natural law conference in D.C., Fri. July 14

The Ralph McInerny Center for Thomistic Studies will be holding its second conference, on Natural Law Today, on Friday, July 14, from 1:00 to 4:45 p.m., in the Russell Senate Office Building, Room 385. The conference is free and open to the public.

The first speaker will be Roberto de Mattei, Vice President of the National Research Council of Italy, who will address the topic of E.U. vs. Natural Law: From the Treaty of Nizza to the Project of a European Constitution. Steven Long, of the Ave Maria Department of Philosophy will follow with a talk on Natural Law in Contemporary Society.

The two speakers will be followed by a Roundtable on Natural Law Today, with four featured participants. Michael Cromartie of the Ethics and Public Policy Center will discuss Protestants and Natural Law: Yesterday and Today. Thomas Hibbs, Dean of the Honors College, Baylor University will speak on Natural Law and Popular Culture. Joshua Hochschild, Department of Philosophy, Mt. St. Marys College, will speak onNatural Law and Subsidiarity.Pia de Solenni, founder of Diotima, will conclude with a presentation on What Does Natural Law Have to Say to Feminism.

The conference schedule will include time for questions and answers and discussion after each of the two talks and the roundtable.

The purpose of the Ralph McInerny Center for Thomistic Studies is to foster a renewal of Thomistic studies in the contemporary world. It aims to promote a strong and accurate rereading of Aquinas philosophy and theology but, at the same time, to make Aquinas thought fruitfully converse with contemporary culture, especially in the areas of bioethics, legal theory, economics, political theory, literature, science, and sociology. (For more detail on the Thomas International Project, go to www.thomasinternational.org. )

:: David M. Wagner 2:00 PM [+] ::
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OK, I've had a chance to look over the NewYork opinion.

Maggie Gallagher has often argued that to support same-sex marriage, one must deny either that straight sex has a much higher likelihood of leading to babies than does gay sex, or that children need both a mother and a father. (Her debating opponents often validate this observation by proceeding to deny the second proposition.)

This is relevant to the rational-basis portion of the New York opinion, which holds that a rational legislature could hold both those propositions, in which case extending marriage to opposite-sex but not same-sex couples, in the interest of children, easily clears the r.b. threshold.

The court also (in both the plurality and the concurring opinions) addresses Loving v. Va. in a very thorough way. Loving was mainly about race, and the "right to marry" that it announced dissolves state-imposed restrictions on marital choice only insofar as those restrictions are based on race. This reading of Loving is bolstered by its own text, and also by the terms of the U.S. Supreme Court's denial of cert. in an early ssm case.

The dissent relies on the U.S.S.Ct's revisionist reading of Loving in Zablocki v. Redhail, which (a) was about divorce, not ssm, and (b) is an outlier anyway; see Sosna v. Iowa. The dissent also quoted from the NAACP's amicus brief -- not from authorities cited in the brief, but the brief itself, as though the NAACP somehow "owns" Loving and can authoritatively float revisionist readings of it. (The NAACP may not be speaking for many of its constituents, if this lament by the Rev. Al Sharpton is factually accurate.)

If I may do some ssp here, I've written about the Loving analogy in: David M. Wagner, Marriage and Banking: Examining Miscegenation Laws to Test the Proposition that Loving v. Virginia Leads to Goodridge v. Department of Public Health, 7 Fl.Coastal L.Rev. 389 (2005).

:: David M. Wagner 1:31 PM [+] ::
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:: Thursday, July 06, 2006 ::

Currently taking a look at Hernandez et al. v. Robles et al., four consolidated cases in which the New York Court of Appeals (the state's highest court) held 4-2 that the state constitution does not create a right of same-sex marriage, and Perdue v. O'Kelley, in which the Georgia Supreme Court reinstated a voter-approved constitutional amendment banning ssm, which a lower court had struck down. (Hat-tip for the links: How Appealing.)

May comment further, may not. The least one can say is that the "march of history" argument for ssm is looking thinner.

:: David M. Wagner 5:16 PM [+] ::
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:: Tuesday, July 04, 2006 ::

Happy Fourth!

Check this out: I'm against the flag protection amendment!

It's not that I'm as confident as Justice Scalia is that Texas v. Johnson, which he joined and has often publicly defended, is correct: I accept that its fact pattern isn't O'Brien, and that the Texas law imposed a direct rather than an indirect burden on expressive conduct -- but then, I've never been persuaded that "speech," "press," or any other term in the First Amendment (emphatically including "religion," which is clearly a term of limitation within the Free Exercise Clause) affords general protection to any conduct that can plausibly be termed "expressive." The reasoning of Johnson puts at risk the principle of states' and localities' "contra bonos mores" power, which Scalia defended in his Barnes v. Glen Theater concurrence, and of course his Lawrence dissent.

However, the effort to undo Johnson by amendment is disturbing for two reasons:

1. If the flag amendment ever did become part of the Constitution, it would set a risky precedent: what else will be disovered to be too "sacred" to be abandoned to the First Amendment? We live in an age of "political correctness," remember? If we get into the habit of putting offendedness-preventing clauses into the Constitution, what will future ones look like?

2. It trivializes the amendment process. It's purely symbolic, and everyone knows that. Not so with the marriage protection amendment: loss of the publicly available concept of marriage -- I should say, further loss of it -- would do much more than symbolic harm. But when a Republican-controlled Senate debates these two amendments in one summer, the impression naturally arises that neither is anything more than rightwing pandering. Which, in the minds of some Senators, it may be. But not in reality.

3. Consequently, while I don't find much to agree with in this Christopher Hitchens column (well-written, as always), I do like this part:

You may believe if you choose that Hillary Clinton has abruptly decided to stand between her country's star-spangled banner and its unsleeping enemies. I cannot quite shake the feeling that she is instead putting the flag between herself and her potential critics. Is it this kind of degraded election-year parody that the sponsors of the proposal seriously wanted to encourage? In Iraq, our most desperate field of battle, our troops do not display the flag on patrol because they are in someone else's country. No thinking soldier needs to have this explained to him, or her. But in Washington, the alleged "defense" of the flag depends, for its swing-votes, on people whose very stock-in-trade is cowardice. That ought never to have happened, and is an insult to those who serve, and ought not be permitted to happen again.

:: David M. Wagner 6:12 PM [+] ::
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:: Sunday, July 02, 2006 ::

Senate race: Jim Webb seems to think there's no difference between commanding Marines in Vietnam and persuading voters in an election. In his latest blast, he implies that it's questioning his patriotism to point out that he took the same stand on an issue (the flag amendment) as did Senators Kerry, Schumer, and Kennedy. (I wonder how those Senators feel about the inevitable implication.)

Webb is getting so testy -- and so inclined to flak his concededly stellar military record for political gain -- that the Allen campaign is promoting press attention to Webb's latest press release.

:: David M. Wagner 8:53 PM [+] ::
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:: Friday, June 30, 2006 ::

Before I mess up my mind with the learned commentary of others, I'll just say this about Hamdan.

Practically, it may not make too much difference in the short run. For one thing, the President could seek a legislative fix from Congress, as Breyer pointed out; though if Breyer had in mind recent prognostications of an imminent Democratic Congress, then his just-go-to-Congress line was rather snarky.

Moreover, the President could reconfigure the military commissions so that they are either exactly like courts-martial, or so that they are marginally more like them then they presently are, along with a formal presidential finding that exact parity with courts-martial is not "practicable." The lack of such a statement, and Justice Thomas's reliance on DOD press statements to show the "non-practicability" of court-martial-like procedures, cost the pro-President side some points here. No doubt all remembered the scorn that Justice Jackson, concurring in Youngstown, heaped on "unadjudicated, self-serving statements" by the Executive Branch ("even when the author was oneself.") Obviously, presidential statements can't come pre-adjudicated, and they'll always be vulnerable to a perception that they're "self-serving," but the more formal they are, and the more congressional notice is involved, the better.

But the real harm in the Hamdan decisions is that, as I think all the dissenters pointed out, the Court brazenly sets itself up as the final arbiter of "military necessity." The consequences might be nil, or they might be revolutionary.

We'll get some idea of which, the first time someone with standing sues for an injunction against a presidential war order. Imagine the Baker v. Carr of war: while presidential orders under his commander-in-chief powers have traditionally been viewed as nonjusticiable, we hold today that manageable standards exist in our Equal Protection jurisprudence, such that for outmoded, Federalist-Papers-based notions such as energy of the executive, we can now substitute the teamwork of activist lawyers and progressive judges in the managent of American military policy....

:: David M. Wagner 11:59 AM [+] ::
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:: Thursday, June 29, 2006 ::

Assisant Attorney General Peter D. Keisler has been nominated to the Court of Appeals for the D.C. Circuit, on which he once clerked for Judge Robert Bork. The seat is the one vacated by John Roberts upon his elevation to Chief Justice. My own $0.02 at ConfirmThem.com is here.

:: David M. Wagner 11:51 PM [+] ::
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Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof.

Slip op. at 70. I don't get it. You mean, the U.S. is bound by treaty terms it refused to ratify, unless it specifically objected to them at the time the ratification decision is made?

:: David M. Wagner 6:54 PM [+] ::
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Can a condition "glare"? I mean, I've heard of "glaring exceptions," but never of a "glaring condition," at least not until Hamdan, opinion of the Court, slip op. at 50.

:: David M. Wagner 2:41 PM [+] ::
...

Well, well -- some members of the Court are willing to rediscover the nondelegation doctrine, at least when the military is the delegee. See Hamdan, Stevens opinion, slip op. at 38.

:: David M. Wagner 10:44 AM [+] ::
...

"Uh, no. Definitely not."

:: David M. Wagner 10:16 AM [+] ::
...

While we wait for the Hamdan decision(s), I'll venture some (probably uncontroversial) predictions.

1. The controlling opinion will be written by Stevens, for the reasons given at SCOTUSblog here.

2. It will be badly splintered.

3. It will uphold military tribunals as a general matter, but will subject them to Due Process standards that will be determinable only by future SCOTUS decisionmaking.

4. Those standards will be linked in some way to Geneva Common Article 3 (see SCOTUSblog's prediction here), which arguably is less incongruous than basing them on Mathews v. Eldridge, as the Court did in Hamdi, but will nonetheless be vague, and will leave doors open to the further direct application of international law by the Court, without implementing legislation from Congress.

5. Scalia will file a yummy dissent on that point.

:: David M. Wagner 9:33 AM [+] ::
...

:: Wednesday, June 28, 2006 ::

The Texas redistricting case, LULAC v. Perry

OK, I'm not really qualified to comment on those parts of the controlling opinion that are based strictly on the Voting Rights Act. I'll note only that the Chief, dissenting on the VRA parts of the opinion, and joined by Justice Alito, flatly accuses the majority of misreading the District Court opinion under review, and of holding that district lines that are otherwise minority-advantageous violate the VRA because they are deficient on "style points" (Roberts's words.)

Fun end-of-term stuff, and rather far from the Marshallian consensus-building of Roberts's first few weeks in office!

Bottom line, politics dep't: District 25 will have to be tweaked, but all the rest of the plan is good to go. On the whole, the result is favorable to Texas Republicans. Now, back to the law.

The rest of the decision is about the application of the Equal Protection Clause to political gerrymandering. The very idea may well seem daft, because it potentially envisions the Supreme Court using the EP Clause to adjust party balances in political outcomes.* No wonder the case in which the Court first held that political gerrymandering is justiciable, Davis v. Bandemer, did not produce agreement on what standard to use in this newly-opened territory for EP jurisprudence.

Today, Scalia and Thomas, in partial concurrence & partial dissent, say flat-out that political gerrymandering should be held to be a non-justiciable "political question," and they criticize the majority rather sternly for neither doing so nor, on the contrary, laying down a test, so that states can know if their district lines violate EP or not. The middle course -- maintaining the gerrymandering is justiciable but holding that plaintiffs have not made out a case of it here, while giving not the remotest hint of what such a case would look like -- is, say our heroes, "not an available disposition of this appeal."

Roberts and Alito do not join Scalia and Thomas in calling for the overruling of Bandemer right now, but they leave the door open do it, noting that this issue "has not been argued in these cases." Even Kennedy, writing the controlling opinion, appears at any rate disinclined to entrench EP-based judicial control of gerrymandering any further:

In Davis v. Bandemer, 478 U. S. 109 (1986) , the Court held that an equal protection challenge to a political gerrymander presents a justiciable case or controversy, but there was disagreement over what substantive standard to apply. That disagreement persists. A plurality of the Court in Vieth v. Jubelirer would have held such challenges to be nonjusticiable political questions, but a majority declined to do so. We do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution. [Internal cites omitted.]

The conclusion is that they do not, but no guidance is given on how they could. Why not? That looks like a job for Obvious Man: no one EP standard for gerrymandering would command five votes on this Court. Reason enough, I think Scalia would say, to pull out of EP review of gerrymandering altogether. Indeed, he is charitable enough to note that Kennedy's opinion here "ably demonstrates" the perpetual elusiveness of a "judicially discernable standard" for such claims.

So I think that in a case where the issue is raised and briefed, a majority now exists to overrule Brandemer.


*Some would say that happened in Bush v. Gore, but the majority holding there was driven by vote-dilution concerns filtered through the Court's one-person-one-vote EP cases, not by political gerrymandering concerns.

:: David M. Wagner 12:10 PM [+] ::
...

Rum tum tiddle um.... This is the part where I can't comment yet on a major decision, b/c it isn't up yet at LII or the Court's own website, and as for the news sites, the reporters are too busy ploughing through their copies looking for the "liberal" v. "conserative" angle to tell us what it says after "Held:" on the syllabus page. Rum tum tiddle um....

:: David M. Wagner 10:27 AM [+] ::
...

The Texas redistricting decision is coming down. Lyle Denniston has it first.

:: David M. Wagner 10:19 AM [+] ::
...

:: Tuesday, June 27, 2006 ::

This year's election law/free speech case, Randall v. Sorrell, produced no majority opinion. The campaign contribution limits in Vermont's Article 64 were struck down, but no progress was made in dismantling the political-speech-restrictive aspects of Buckley v. Valeo.

Justices Thomas and Scalia, concurring, stuck to their free-political-speech guns, as they did in dissent in the Shrink Missouri case. Justice Alito did not go that far, but didn't shut the door to it. Justice Kennedy, also concurring, placed himself in contemplative isolation. ("Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.") The controlling opinion, by Justice Breyer, had little to do with the First Amendment.

Excellent posts at SCOTUS Blog here and (on the question of the Chief's role) at Election Law Blog here.

:: David M. Wagner 6:40 PM [+] ::
...

Two criminal procedure cases yesterday:

Kansas v. Marsh, in which the Court, 5-4, upheld Kansas's death penalty. Justice Thomas wrote the opinion of the Court. Justice Scalia's concurrence is something in the nature of a Brandeis brief, because it responds to an anti-death-penalty Brandeis brief in the form of Justice Souter's dissent. (A Catholic blogger comments here.)

Scalia's justification for Brandeising here is that when dodgy research (as he believes the research cited by the Souter dissent to be) is cited in a Supreme Court opinion, even a dissent, it's there in the U.S. Reports to be cited by others with the mantle of at least some degree of Supreme Court authority. ("Look! Not only does this research say thus-and-such, but four Supreme Court Justices and their super-smart clerks thought it was solid enough to cite!") So it's not a matter of "He started it," it's a matter of evening out the playing field.

U.S. v. Gonzalez-Lopez: Opinion for the Court by Justice Scalia. Held: it is reversible error to deny a criminal defendant the retained counsel of his choice, and such error cannot be harmless.

This opinion continues Justice Scalia's crusade for a literal reading of the Sixth Amendment, that is, his crusade against the tendency to throw all he specific Sixth Am. rights into a general pot marked "fair trial" and then uphold brazen denials of those rights as long as the trial was "fair."

Past landmarks of this crusade have been his opinion for the Court in Coy v. Iowa, and his dissent (one of his angriest) in Maryland v. Craig.* In those cases, as in this, he was joined by the Court's "liberals," and the "conservatives" were against him. The "conservatives" are wrong.

Justice Alito, in dissent, matched literalism with literalism and read the Sixth Am. right to "assistance of counsel" as focusing above all on "assistance," with choice of counsel being, if not minor, then at least sufficiently secondary to be subject to harmless-error analysis. This is consistent with the Strickland line of cases on "effective assistance of counsel," which assume that ineffective assistance is no assistance at all. But the words "of counsel" are also in the text, and while we'd have to look at Founding-era usages of this expression to be sure, they seem to imply respect for defendant's choice. "Assistance of an attorney" would mean any competent attorney would do. "Assistance of counsel" implies that it's someone from the defendant's existing "stable" or "team," if such a person can be found.

(Book we need to finish/re-read: John Langbein, The Origins of the Adversary Criminal Trial.)

* "In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation, because the Court has no authority to question it."

:: David M. Wagner 1:56 PM [+] ::
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:: Friday, June 23, 2006 ::

A word to the wise? Justice Scalia's dissent in last Monday's Youngblood v. W. Va. ends thusly ("GVR" = granted, vacated, and remanded):

I suppose it would be available to the West Virginia Supreme Court of Appeals, on remand, simply to reaffirm its judgment without further elaboration. Or it could instead enter into a full discussion of the Brady issue, producing either a reaffirmance or a revision of its judgment. The latter course will of course encourage and stimulate our new “GVR- in- light- of- nothing” jurisprudence. Verb. sap.

"Verb. sap."? Verbum sapientii?

:: David M. Wagner 3:12 PM [+] ::
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:: Wednesday, June 14, 2006 ::

Well, I haven't posted for a while, and it may be a few days before I can post again, so let's give a quick Scalia-sguardo at what's been going on.

* Terrence Boyle may finall get a vote. (North Carolina federal district judge, up for promotion to the 4th Circuit, and in line for most-often-renominated at the next Robies)

* Underneath Their Robes: Scalia on clothes, and on cars. And a link to me!

* The Court decided Garcetti v. Ceballos, holding that the First Amendment is not violated when a government employee is disciplined as the result of something he wrote as part of his professional work-product. Critics are saying, oi, just what we need -- another category of unprotected speech. But the Kennedy opinion (5-4; Alito may have made the difference) points out the holding sought by plaintiff would have made meaningful evaluation and supervision of government employees impossible as long as the work-product involves anything spoken or written. That kind of judicial micro-management of government, no one needs, and the First Amendment does not compel.

* The Court also decided House v. Bell: again, a Kennedy opinion (welcome to the "Kennedy Court"!), this time expanding the range of the Court's own de novo review of evidence in habeas cases where defendant seeks to revive a procedurally defaulted claim of "actual innocence" based on new evidence. The difference between the majority and the Roberts-led dissenters is over the degree of deference owed to the District Court's evaluation of the evidence. Mixed review. In capital cases one wants to think that mistakes, if any, by the District Court, even if upheld by the Court of Appeals, will be caught by the Supremes. OTOH, this comports ill with the deference always owed to triers of fact, on issues of fact, as this deference was explained in the applicable precedent, Schlup v. Delo.

'Tsall for now.

:: David M. Wagner 1:11 PM [+] ::
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:: Thursday, May 25, 2006 ::

I see dead judges: Or, as Howard Bashman puts it, just how long is life tenure? Former Third Circuit Judge Edward Becker, "one of the most influential federal appeals judges," who died last Friday, "served as senior judge until his death." In fact, the Third Circuit has issued an opinion of his that was apparently not received for filing in the clerk's office before he entered into eternity. This situation thus forces the somewhat ghoulish question, does an opinion "count" if the judge who delivers it is, um, no longer among us at the time of said delivery?

To make matters worse, the case, Petruska v. Gannon University, a Title VII "ministerial exception" case, was a 2-1 split decision (against applying the exception), so: even apart from the written opinion, does the outcome change? (Further thoughts from Howard here.)

:: David M. Wagner 12:29 PM [+] ::
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:: Monday, May 15, 2006 ::

Sign of the times

If you merge into I-64 north/west bound, toward Richmond, Washington, and points north, starting at Regent University's highway entrance (exit 286), you will shortly see a billboard on your right that is frequently rented by our University. Years ago it showed a gaudy, Thomas-Kinkade-ish sunrise, the words "Get Your Graduate Degree at Regent" in large letters, and then, in smaller letters: "Well, you asked Him for a sign!" I liked that one a lot.

Currently we are again using that billboard, this time for the Law School specifically, to showcase our recent ABA national moot court winners. There are pictures of Dean and Dannielle and others. (But why, I wonder, no picture of Liz? I mean really...!)

:: David M. Wagner 11:18 AM [+] ::
...

More evidence that it's a good idea for Christians to maintain a voice in international human rights law, rather than let that train leave the station (or get further down the track) without them -- JURIST reports:

A new report by the Irish Human Rights Commission [advocacy website] released [press release] Friday has found that Ireland may be in breach of international human rights laws because the country does not currently recognize same-sex marriages [JURIST news archive].

:: David M. Wagner 11:05 AM [+] ::
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:: Friday, May 12, 2006 ::

Mike Luttig: There, um, goes the judge.

PowerLine scorns the theory that Judge Luttig was motivated by the Bush Administration's change of stance in the Padilla case. Sure, the buckets of money that Boeing no doubt offered must have been a factor. But the impact of the Padilla business can't be so quickly dismissed.

Here Judge Luttig busted his buttresses to bring in a unanimous panel opinion upholding the President's power to declare an American citizen, arrested on American soil, to be an enemy combatant -- and then, faced with a cert petition and uncertainty about the outcome from Higher Authority*, the administration says, never mind, he's just a criminal after all, we can try him according to normal criminal procedures.

The Administration will say it still insists on, and values, the principle of the Luttig panel opinion; it's just that the application of that principle to Padilla's case changed, in the judgment of those who must make such decisions. But Luttig might answer that his colleagues on the Fourth Circuit only joined the opinion because they bought the argument that treating Padilla as an enemy combatant was one of those, whatya call 'em, "compelling state interests." And now it's not something that need be done at all?

As one who occasionally teaches Con Law II (including Equal Protection and substantive due process), I can appreciate that when the government claims a c.s.i., or any legal equivalent thereof, the interest in question had just better really be compelling, given what a c.s.i. finding amounts to -- a license to violate otherwise-applicable constitutional rights.

I can't be sure what Luttig's motives were, but it's hard not to sympathize with his doctrinal position.


* Here at Regent we know who "Higher Authority" really is, but in the U.S. Courts of Appeals, there is a tendency to refer in this fashion to the U.S. Supreme Court.

:: David M. Wagner 10:51 AM [+] ::
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:: Monday, May 08, 2006 ::

You need to read this:

Banned in Boston:
The coming conflict between same-sex marriage and religious liberty.
by Maggie Gallagher
The Weekly Standard, 05/15/2006, Volume 011, Issue 33


To get you started:

Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.

By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.

Emphasis added. For my latest $0.02 on the orientation/race analagy, see David M. Wagner, Marriage and Banking: Examining Miscegenation Laws to Test the Proposition that Loving v. Virginia Leads to Goodridge v. Department of Public Health, 7 Fl.Coastal L.Rev. 389 (2005).

:: David M. Wagner 1:46 PM [+] ::
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:: Sunday, May 07, 2006 ::

Yesterday was our Commencement, or, as one of the parking signs would have it, Commen Cement. Congratulations to the Class of 2006!

:: David M. Wagner 6:09 PM [+] ::
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:: Wednesday, April 19, 2006 ::

"A CONSERVATIVE KENNEDY?"

We mean Bobby, not Anthony -- I mean, be reasonable.

Our law school is holding a discussion next Tuesday evening, April 25, at 6:30 in the Moot Court Room, on Michael Knox Beran's book on Bobby, The Last Patrician.

The claim: Bobby was actually a critic of big government. Provoked? Ted, you there? Come on over!

:: David M. Wagner 9:57 PM [+] ::
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:: Tuesday, April 18, 2006 ::

Strengthening Chevron without dissent?

Yesterday, the Supreme Court issued a summary opinion -- granting cert and remanding in one brief, per curiam opinion -- in Gonzalez v. Thomas. It's a refugee case, and I wish the Thomases all the best.

Legally, I think this opinion marginally strengthens the Chevron principle, since it slams the Ninth Circus, 409 F. 3d 1177 (2005), for prematurely deciding the ultimate issue in the case, without remanding for the agency to take another whack at it. Chevron, likewise, contained language deploring the tendency of the Courts of Appeal to issue binding statutory interpretations where Congress has assigned interpretive authority to an agency.

On the minus side, there's a glancing reference to agency "expertise," which to my nostrils points more in a Skidmore/Mead direction.

:: David M. Wagner 7:38 PM [+] ::
...

ABA Moot Court: Regent rules!

I'll let our Associate Dean give you the news. Here's his e-mail about it; I've highlighted the names of our many winners.

Once again, I begin this email by praising God for his blessing. He gets the glory for our successes!

Our students won the National Appellate Advocacy Competition this past weekend! The team of Dannielle Hall (3L), Dean Scharnhorst (3L), and Andrew Baugher (2L) defeated Seton Hall in the final round to become national champions. The team also received the Best Brief award. Andrew received the sixth place National Oralist award and Dannielle received the 8th place National Oralist award.

2Ls Trisha Festerling, Jonathan Shumate, and Seth Lowry also made an impressive showing at the tournament. The team came in 6th overall and advanced to the national quarter finals (top eight teams). Notably, they knocked out South Texas (So. Texas won the tourney last year). The team also won the 5th place Best Brief award.

These successes place both of our teams in the top 6 teams out of 152 competing in the tournament across the nation.

Last weekend we also had much success at the John J. Gibbons Tournament at Seton Hall. The team of Christy Murphy, Liz Munson, and Nathan Bruner advanced to the finals of the tournament. Liz and Christy received the 1st and 2nd best oralist awards based upon their performances in the preliminary rounds.

I'd like to add a personal note of congratulations to Dannielle, who did an independent study with me; to Dean, with whom I worked on the Law Review; and to Liz, who was for a while my research assistant and pulled together an awful lot of early cases on parents and schooling!

:: David M. Wagner 7:25 PM [+] ::
...

Happy Easter!

In last Sunday's Wizard of Id cartoon, the "Padre" (a Franciscan, it seems) tries to get the king to come to church.

KING: What for?
PADRE: It's Easter.
KING: We're having a big egg hunt at the palace.
PADRE: Why? You ran out of big eggs?

Well, the king does go to church, see, but he kind of makes a mockery of it by wearing a bunny suit. So the Padre goes to the egg hunt -- carrying a big ol' gun.

:: David M. Wagner 7:20 PM [+] ::
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:: Monday, April 10, 2006 ::

To my Criminal Law students: time for The Carrier's Case:

That Judge Bryan is really a crazy clown.
When will he learn that there’s larceny goin’ down?
Woad Runner, Woad Runner, where have you gone to sulk?
If not intent, then we’ll get you for breaking bulk.

Woad Runner
The Sheriff is after you
Woad Runner
If it’s larceny you’re through!

Woad Runner, Woad Runner, did he have possession? Yes!
So then no larceny – no, take another guess.
Woad Runner, Woad Runner never burgles anyone --
Just rummaging through stuff is his idea of having fun!

Woad Runner
The Sheriff is after you
Woad Runner
If it’s larceny you’re through

:: David M. Wagner 8:07 PM [+] ::
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:: Saturday, April 01, 2006 ::

Wall Street Journal makes it official: George Mason U. rocks! From the article by Brendan Miniter:

Mason began as an extension of the University of Virginia in 1957 and became independent 15 years later. Such relative youth is a clear advantage. The school came into its own after the 1960s generation passed through the halls of higher education. Student protest, and the effort to appease it, never became part of its culture.

George W. Johnson, GMU's president from 1978 to 1996, exploited this advantage. He grounded the school in technology, computer science and economics, leaving to elite institutions the competition for hot (read: postmodern) humanities scholars. He also exploited the school's proximity to Washington, using it as a selling point to bring professors to the area and also pulling into the professorial ranks various policy analysts, intellectuals and former government officials.

...

Mason's law school isn't even three decades old, but it has already climbed into the first tier of the U.S. News & World Report rankings....

:: David M. Wagner 12:21 AM [+] ::
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:: Thursday, March 30, 2006 ::

Massachusetts SJC upholds 1913 law: out-of-staters not eligible for Massachusetts same-sex marriages.

:: David M. Wagner 10:59 AM [+] ::
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:: Wednesday, March 29, 2006 ::

According to the redoutable Lyle Denniston, writing at SCOTUSblog, the consensus (though not universal) is that the guvmint got pretty well shellacked in yesterday's Hamdan oral argument.

:: David M. Wagner 12:59 PM [+] ::
...

Read it yourself: photocopy of Scalia's letter to The Boston Herald. Or forget the photocopy, here's the text:

To the Editor:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture - inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning - which was that I could not care less.

That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians:
“The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’ This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi. The general, who had conquered Sicily with his volunteers and was moving on to the mainland, had seen him, a robust youth at the time, dozing on a little stone wall, in the shadow of a carob tree, along a country lane. He reined in his horse and asked him: ‘Young man, will you not join us in our fight to free our brothers in Southern Italy from the bloody tyranny of the Bourbon kings? How can you sleep when your country needs you? Awake and to arms!’ The young man silently made the gesture. Garibaldi spurred his horse on.” (Page 63.)
How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)

Sincerely,
Antonin Scalia

:: David M. Wagner 12:51 PM [+] ::
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:: Tuesday, March 28, 2006 ::

Recuse in Hamdan? Fangool'!

According to The Washington Post:

Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.

In his dissent in Rasul v. Bush, Justice Scalia wrote:

Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction–and thus making it a foolish place to have housed alien wartime detainees.

The Freiburg remarks are hardly a surprise. Nor are they are comment on the Hamdan case as such, as his Knights of Columbus remarks a few years back were a comment on the Newdow case.

:: David M. Wagner 9:45 PM [+] ::
...

:: Monday, March 27, 2006 ::

"Fangool'," we used ta call in New Yawk.

:: David M. Wagner 7:19 PM [+] ::
...

:: Thursday, March 23, 2006 ::

Justice Scalia, responding to Justice Stevens's concurrence in today's decision on consent searches, Georgia v. Randolph:

There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ”.... This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding....

Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.

:: David M. Wagner 11:54 AM [+] ::
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:: Monday, March 20, 2006 ::

NY Post editorial: Scalia's good sense

:: David M. Wagner 10:00 AM [+] ::
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:: Friday, March 10, 2006 ::

More on Rumsfeld v. FAIR. A friend writes:

I do enjoy the professoriat not quite understanding how they've ended up where they are. I mean, using federal funding to suck universities into conforming to a nationally-dictated agenda seemed like such a good idea from 1964 to 1994. Remember how cool it was when all those yahoo schools had to dump their wrestling teams and give thefunding to women's ultimate frisbee instead? Good times.

:: David M. Wagner 2:40 PM [+] ::
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:: Monday, March 06, 2006 ::

How does he do it? Roberts delivers dissentless, concurrenceless opinion solidly upholding the Solomon Amendment.

:: David M. Wagner 1:14 PM [+] ::
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:: Thursday, March 02, 2006 ::

A good week

Good news: where the "compelling state interest" test applies, it actually requires a compelling state interest! This apparently obvious yet historically doubtful point seems to be the main lesson of Gonzales v. O Centro Espirita Beneficteuniao do Vegetal, in which Chief Justice Roberts, yet again, produced unanimity on a potentially controversial issue. (What on earth are we going to call this case? I'll go with "Centro Espirita" for now.)

Roberts has also waved his unanimity wand in another abortion-related case, bringing to an end NOW's 20-year campaign to bankrupt Joe Scheidler and intimidate pro-life protestors with RICO treble damages. In another unanimous opinion, delivered by Justice Breyer, the Court says, nope, the whole thing was a mistake, because it turns out the Hobbs Act, on which NOW was relying as a predicate felony for its RICO suit, does not forbid violent conduct unrelated to extortion or robbery.

Just about everybody got to deliver a unanimous opinion this week. (Unanimous meaning 8-0, because these cases were argued before Justice Alito was confirmed.) Justice Thomas did an antitrust opinion, something he had excelled in on the D.C. Circuit. Even the opinions with dissents produced atypical splits. Thomas dissented from a Scalia opinion on the applicability of federal arbitration rules to state proceedings, and from a Kennedy opinion on the Federal Tort Claims Act in which Scalia joined.

Roberts several times joined the majority when only Scalia and Thomas were in dissent, but then, Rehnquist often did that too. Before anyone starts writing "strange new respect" op-eds, remember that Roberts joined the Scalia dissent in Gonzales v. Oregon, a decision that could conceivably have been rightly decided but was not rightly reasoned. (It was actually a nondelegation case, and as such, should have been an easy one for the U.S. under Whitman v. American Trucking.)

:: David M. Wagner 12:03 PM [+] ::
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:: Wednesday, February 22, 2006 ::

Court will hear partial-birth abortion case.

:: David M. Wagner 1:53 PM [+] ::
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:: Tuesday, February 14, 2006 ::

Constitution changes with time? "[Y]ou would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism; it is a legal document. It says something and doesn't say other things."

And the Left of course doesn't have a clue. ThinkProgress.com summarizes the speech as "The Constitution is dead, you idiot." Yes, and that's why you have constitutional rights. Under a "living Constitution," your rights could expand or contract, or even disappear (your right to confront witnesses against you in a criminal trial, for example), according to the whims of Justices discerning Holmes's "felt necessities of the times," or according to the whims of what you "democrats" dread most: political majorities, which, over time, tends to prevail in the Supreme Court when it isn't anchored to the Constitution.

:: David M. Wagner 5:20 PM [+] ::
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Any of you students planning to take the bar in Texas? It's now a three-day exam, you know. Yeah, after the essays and the Multistate, you get shot by Dick Cheney.

:: David M. Wagner 11:41 AM [+] ::
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Ha! I'll bet now there won't be such a hissy fit from the profs and the press when Scalia goes hunting with Cheney!!

:: David M. Wagner 11:30 AM [+] ::
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:: Monday, February 06, 2006 ::

GONZALEZ v. OREGON: DEAD PARROT

Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.

-- Justice Kennedy, for the Court


Even if there were an antiparroting canon, however, it would have no application here. The Court’s description of 21 CFR § 1306.04 (2005) as a regulation that merely “paraphrase[s] the statutory language,” ante, at 10, is demonstrably false.....

Since the Regulation does not run afowl (so to speak) of the Court’s newly invented prohibition of “parroting”; and since the Directive represents the agency’s own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is “plainly erroneous or inconsistent with the regulation”; otherwise, it is “controlling.” Auer, supra, at 461 (internal quotation marks omitted).....

-- Justice Scalia, dissenting

:: David M. Wagner 2:51 PM [+] ::
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:: Tuesday, January 31, 2006 ::

Justice Alito. Deal with it.

:: David M. Wagner 2:37 PM [+] ::
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:: Monday, January 23, 2006 ::

:: David M. Wagner 5:43 PM [+] ::
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:: Thursday, January 19, 2006 ::

Ed Whelan corrects media misstatements of Ayotte's holding, here and here, proving again that illawterate journalists are a menace to society.

:: David M. Wagner 12:43 PM [+] ::
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:: Wednesday, January 18, 2006 ::

A liberal blogger reports on a conversation with Senate Minority Leader Reid:

I complimented Senator Reid for invoking Rule 21 and shutting down the Senate to compel Senator Pat Roberts and the Republican Senate establishment to stop dragging its feet on its investigation into the administration's use and potential abuse of WMD intelligence. Reid relished telling the tale of how it all unfolded.

I told him that such demonstrations of backbone needed to be less rare -- and that the absence of such resolve in the Alito confirmation process was disheartening. He said that he was meeting today with the Democratic caucus to see if there are 41 Senators willing to say no to Alito -- and really say no (meaning a filibuster). He indicated that there was only a 50/50 chance that there were 41 Senators and sounded doubtful.

:: David M. Wagner 6:49 PM [+] ::
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Ayotte, 9-0, O'Connor writing:

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

And that's about it. Sounds like a victory for the Salerno facial/as applied distinction, but I'm not sure. Also sounds like this one will be back. Nothing else could have prevented separate concurrences, unless the new Chief wields a much sharper whip than his prededessor, on colleagues much older than himself.

:: David M. Wagner 12:35 PM [+] ::
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:: Tuesday, January 17, 2006 ::

Gonzalez v. Oregon: So -- we interpret the Commerce Clause and executive interpretive power narrowly when they are deployed against the culture of death, but broadly at most other times. Am I getting with the program?

As Justice Thomas notes in his separate dissent, the outcome here may be right if the outcome and reasoning in Raich are wrong, but not if Raich is right.

:: David M. Wagner 4:25 PM [+] ::
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:: Friday, January 13, 2006 ::

Do people like this congressperson from Florida really think they're contributing anything to the debate? She's not only talking shrill ideology (notice that "privacy" and "equality" can't stop with killing babies, it's also "unthinkable" that Terri Schiavo's "family" can't bump her off); she's talking shrill ideology that's already been talked all week by most of the Democrat side of the table.

Does she think she's advancing the debate, or is this just political positioning, impressing the folks in Miami, staking a claim to be the next Bella Abzug, whatever?

:: David M. Wagner 12:21 PM [+] ::
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:: Thursday, January 12, 2006 ::

Washington Post: Alito Likely to Become a Justice

:: David M. Wagner 11:08 PM [+] ::
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The glow-in-dark praises Judge Alito has received from an ideologically diverse panel of 3rd Circuit colleagues create a problem for the Democrats. Their strategy in response has now been revealed by Sen. Leahy: claim that because these judges' opinions might be reviewed by Alito if he is confirmed, they can't be expected to speak freely. Yup, they came all the way to Washington (from the west coast, in the case of Judge Alito's former boss, Judge Garth) just to brownnose.

It took less than a minute to say, but Leahy managed to claim that these six present and former federal judges are cowards and aggressive sycophants, and that Alito is the kind of guy who would use Supreme Court opinions to get even with former colleagues for criticizing him. It's so sleazy, I'm tempted to accuse Leahy of exploiting a stereotype about Italian-Americans.

Sens. Sessions and Cornyn have called Leahy on this. Meanwhile, Sen. Durbin explicitly "associated" himself with Leahy's comments.

EDITED TO ADD: Apparently Feingold was the first to float this puppy.

:: David M. Wagner 4:55 PM [+] ::
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:: Wednesday, January 11, 2006 ::

The story about Mrs. Alito's tearful reaction to the attacks on her husband appears to have traction. Daily Kos is in panic mode over it, talking about "crocodile tears." Way to win the hearts of Americans, Kos!

:: David M. Wagner 11:25 PM [+] ::
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Schumer wants to know: "what was your state of mind" when you included Concerned Alumni of Princeton among the groups you listed on your 1985 application for a political position in the Reagan Administration?

Duh, duh, and double duh.

Alito got the answer right, but perhaps not the framework. He mentioned that he had listed his political donations but not his charitable donations, and trusted observers to understand the analogy. He is too confident in the intellectual honesty of his opponents.

I suggest he put it this way: Senator, at the time I applied for that job, my resume was strong on the technical-legal side, but weak on the political side. As the job was a political one, this was a problem. Those looking at my record could see Princeton yadda yadda yadda, Yale Law yadda yadda yadda, law review yadda yadda yadda, clerkship yadda yadda yadda, but they wouldn't have any reason to think I supported the political platform of their Administration unless I gave them some reason to think so. That was why I listed every conservative association I could plausibly claim, rather than listing every organization I am or ever have been a member of.

Do you see now, Senator? That application wasn't a xanga where the idea is to express everything most important to you. It was an occasion to compensate for a relative weakness in my resume, in pursuit of a job where that weakness was a potential problem.

:: David M. Wagner 5:24 PM [+] ::
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Specter smacks down Kennedy: Now that's the Specter I remember from '91...! More here.

With a "growing sense of inevitability" about Alito's confirmation (though, indeed, let's not get complacent), the Senators of the Left are probably just doing their command performances for their activist groups. Most of them need to keep those people happy for reelection, just as the Senators of the Right have to do for their groups. Reelection is never a serious concern for Kennedy (though Mitt Romney gave him a run for the money); in his case, it's probably true ideological fervor.

Say, did you see where Kennedy is going to "write" a children's book about his imaginary pet Portuguese water-dog, named "Splash"? I. Am. Not. Making. This. Up.

:: David M. Wagner 1:07 PM [+] ::
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:: Monday, January 09, 2006 ::

Yes, you're right: the velocity of posting has picked up here at Ninomania now that the Alito hearings are underway (and exam grading is done). However, on Tuesday the 10th I have some family business to attend to that may keep me away from the Web. Stay tuned, as always, to Confirm Them and Bench Memos.

:: David M. Wagner 10:31 PM [+] ::
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So Dick Durbin thinks Sam Alito caused the death of the West Virginia coal miners. The Dems are certainly pulling out all the demagogic stops.

:: David M. Wagner 2:54 PM [+] ::
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Blanton at Confirm Them writes:

The Democrats will light a fire under the great American racial divide and send Alito into the flames and, with him, kick off the 2006 Democratic campaign to recapture Congress from white sheeted Republicans....

According to my loose tongued Democrat friends, the Democrats are going after Alito on voting rights and civil liberties and, in the process, intend to take down a few Republicans....

By the time Democrats are through with Alito, they hope to have made the case that Alito will be a pawn of Bush in Bush’s war against the American people. From eavesdropping to voting, Alito will be painted as a foe of civil liberties. The loss of liberty will be their theme and Alito will be their victim in the process. The drunk staffers assured each other that it polled well.

Democrat Senators are certainly picking up these themes. Quin adds:

So far, the answers to the one-man, one vote issue have been highly academic, but far, far from being effective sound bites. WE MUST HAVE AN effective sound-bite. So far we don’t. The fact is that Alito’s views on the reapportionment cases are thoroughly respectable. But if we can’t explain in a sound bite why they are respectable, then we open the door to letting the Dems start ot add on their other “equality” issues to pound home the message Blanton warns about.

:: David M. Wagner 1:22 PM [+] ::
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Senator Kennedy: "Judge Alioto." Sheesh.

:: David M. Wagner 12:45 PM [+] ::
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Specter and Leahy have made their opening speeches, and they clearly share a theme: Alito's job is to be just like O'Connor, and these hearings are his chance to convince them that that's what he'll do. Specter added a meditation about many "surprises" the abortion issue brings, with special attention to how Souter changed.

Both are leaning even more on the NSA issue than the "choice" issue. Clearly the "save Roe" issue is not going to carry it for the Democrats; it's doubtful that the safe-communications-for-terrorists issue will either.

Specter seems to want it both ways: he wants an "independent" Court, yet he blasts the Court for criticizing Congress's reasoning in U.S. v. Morrison (Violence Against Women Act). Utterly independent of the President, utterly dependent on Congress -- that seems to be the kind of Justice a President should look for, according to Specter and Leahy. Leahy would add that the nominee should also be black, hispanic, or female, though he exonerated Alito of personal responsibility for not being any of these.

:: David M. Wagner 12:25 PM [+] ::
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Alito resources, courtesy of the Committee for Justice

:: David M. Wagner 12:24 PM [+] ::
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:: Thursday, January 05, 2006 ::

A very interesting blog to which my attention has just been called: Judging Crimes, by Joel Jacobson.

:: David M. Wagner 11:17 AM [+] ::
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:: Monday, January 02, 2006 ::

What image will Alito project at the hearings? One moot-committee participant leaked this:

"I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is."

:: David M. Wagner 5:16 PM [+] ::
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So, Guy Walks Up to the Bar, and Scalia Says... On Court jesters, of whom Our Hero is the leader, though Roberts and Breyer may also be a rising stars. From the article:

Consider, for instance, the golden opportunity on Halloween this year when a light bulb in the courtroom's ceiling exploded during an argument.

It takes two justices, it turns out, to screw up a light bulb joke.

"It's a trick they play on new chief justices all the time," Chief Justice John G. Roberts Jr., who joined the court that month, said of the explosion.

"[Laughter.]"

"Happy Halloween," Justice Scalia retorted.

"[Laughter.]"

And then, the kicker. "We're even more in the dark now than before," Chief Justice Roberts said.

"[Laughter.]"

:: David M. Wagner 12:27 PM [+] ::
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