NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: 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 [+] ::
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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 [+] ::
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"Uh, no. Definitely not."
:: David M. Wagner 10:16 AM [+] ::
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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 [+] ::
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:: 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 [+] ::
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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 [+] ::
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The Texas redistricting decision is coming down. Lyle Denniston has it first.
:: David M. Wagner 10:19 AM [+] ::
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:: 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 [+] ::
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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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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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:: 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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:: David M. Wagner 2:41 PM [+] ::
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:: David M. Wagner 10:44 AM [+] ::
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:: David M. Wagner 10:16 AM [+] ::
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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 [+] ::
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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 [+] ::
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:: David M. Wagner 10:27 AM [+] ::
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:: David M. Wagner 10:19 AM [+] ::
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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 [+] ::
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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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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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* 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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