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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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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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