NINOMANIA

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:: Monday, December 24, 2007 ::

NY Media Exchange Group Blog: Good Bye to My Friend Alan Wagner

:: David M. Wagner 5:13 PM [+] ::
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:: Saturday, December 22, 2007 ::

Alan C. Wagner, 1931-2007

:: David M. Wagner 10:33 PM [+] ::
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:: Friday, November 30, 2007 ::

The law profs behind the candidates, to the extent the candidates are telling (or the journalists are asking)

:: David M. Wagner 2:18 PM [+] ::
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:: Thursday, November 22, 2007 ::

Feminist educators openly acknowledge differences in our classrooms, but that does not mean we must tolerate all ideas....What happens to the feminist classroom when students challenge feminist principles?

:: David M. Wagner 8:31 PM [+] ::
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:: Tuesday, November 20, 2007 ::

High Court to Hear D.C. Gun Ban Case. Wonder what Justice Kennedy's philosophy of the mystery of life is this year.

:: David M. Wagner 2:10 PM [+] ::
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:: Saturday, November 17, 2007 ::

Navy says malfunction caused dummy bomb to drop. What a relief: here I was afraid a dummy had caused a malfunctioning bomb to drop.

But wherein lay the malfunction -- in causing the bomb to drop, or in the bomb being a dummy? I mean, how worried should Virginia Beach be here, you know?

:: David M. Wagner 9:35 PM [+] ::
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:: Saturday, November 10, 2007 ::

SEATTLE (AP) — A federal judge has suspended Washington state's requirement that pharmacists sell "morning-after" birth control pills, a victory for druggists who claim their moral objections to the drug are being bulldozed by the government.

I'm very happy for the druggists-plaintiffs, but I'm not sure I agree with their attorney who says:

"We believe strongly that forcing someone to choose between their religious beliefs and actually losing their business or their career is unconstitutional."

Well, Braunfeld v. Brown? See, I've never been able to agree that the Constitution requires all things Nice and prohibits all things Not Nice. Requiring objecting pharmacists to dispense abortifactients (whether or not their objections are religiously based) is extremely Not Nice; come to that, abortifacients are extremely Not Nice. But neither is addressed in the Constitution, and disobedience to a generally applicable statute that requires the dispensing of these genocidal poisons is not "the free exercise" of religion within any originalist reading of that term.

Of course a pharmacist in a state with an exemption-less "Plan B" dispensing requirement may have to face prison and/or loss of business as the cost of not participating in murder. What, you thought Free Exercise was a permanent all-purpose anti-martyrdom clause?

The AP report article goes on:

Some states also have laws that protect pharmacy employees who refuse to sell the contraceptive for reasons of conscience.

That's the way.

:: David M. Wagner 9:52 PM [+] ::
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:: Thursday, November 08, 2007 ::

The media are easily led

I haven't picked a new presidential candidate since my man, Sam Brownback, dropped out (I'm not likely to follow his advice and choose McCain: 1st Amendment, you know). I have had doubts all along about Giuliani on judicial nominations, and until this piece appeared on NRO this morning, there was little to allay those doubts. (See esp. p. 2.)

But what I do have a strong view on is what's driving media attention on which evangelical leader is endorsing whom. This is something that cashes out differently depending on whether you are in an MSM newsroom or in real life.

In an MSM newsroom, evangelical Christians look to their "leaders" to tell them how to vote, because they're "poor, uneducated, and easily led." In real life, as I have gotten to know them over the years, they make up their own minds about candidates, have upper-middle-class jobs and advanced degrees in fields with objective criteria of merit, attend the church of their choice, and throw away mailings from a wide variety of parachurch ministries.

This disparity of perception explains, I think, why the MSM can produce op-eds between elections explaining how Dr. X or Rev. Y is a spent force, no longer influential, but then, during election season, race to the front page with stories about whom Dr. X or Rev. Y has endorsed.

In real life, such endorsements are important but not determinative. Evangelical voters will make up their own minds anyway; endorsements provide more information to do that with. There has always been more diversity among American evangelicals than the MSM have been interested in believing (and when that diversity becomes impossible to ignore, the MSM report it as evangelicals "changing").

Now that diversity -- a diversity of prudential judgment, more than of basic beliefs -- is manifesting itself at the leadership level. Surprised? You were expecting, maybe, 1980? (True, we do have a divorced ex-actor in the mix, but he's not as sound as Reagan was.)

:: David M. Wagner 10:40 AM [+] ::
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:: Wednesday, October 24, 2007 ::

Southwick confirmed! Ed Whelan totes up the heroes, who include Senators Specter and Feinstein.

:: David M. Wagner 2:20 PM [+] ::
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:: Monday, October 22, 2007 ::

The suspense is over: Hu-Jintao Reelected Leader of the Communist Party of China, reports the national daily of Cuba.

:: David M. Wagner 3:22 PM [+] ::
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:: Thursday, October 18, 2007 ::

THE HUNTING OF THE SNARK -- Got one! Near the end of his Nebbia dissent, Mr. Justice McReynolds wrote:

The somewhat misty suggestion below, that condemnation of the challenged legislation would amount to holding "that the due process clause has left milk producers unprotected from oppression," I assume, was not intended as a material contribution to the discussion upon the merits of the cause.

291 U.S. 502, 559. Usually, if you wanted that much rudeness from McReynolds, you either had to meet him, or be Jewish.

:: David M. Wagner 11:36 PM [+] ::
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:: Tuesday, October 16, 2007 ::

Obama Reaches Out to Religious Voters

The candidate himself wasn't on the bill. But about 50 people showed up to talk about the war, poverty and trying to seize back the moral mantle some in the GOP claim. The night also featured an Obama video and a campaign altar call — an invitation to become a "congregation contact" and rally support for the candidate.

I don't know -- don't you think all this mixing of religion and politics threatens to tear down the constitutional wall of separaton between church and state? And be divisive? And exclusionary?

:: David M. Wagner 7:58 PM [+] ::
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:: Monday, October 15, 2007 ::

What Google ads tell us about the economics of lawyer advertising. (Hat-tip: Walter K. Olson, who is quoted with, as usual, a fine one-liner.)

:: David M. Wagner 1:16 PM [+] ::
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I don't know about this, but I agree on one point: if it happens, Massachusetts will be first, finding that it's a protected right under its 1780 constitution.

:: David M. Wagner 11:45 AM [+] ::
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Evidently, in reporting Sen. Craig's latest appeal, the headline writers are determined to avoid the embarassment into which their colleagues at Long Island's Newsday fell a number of years ago when convicted political boss Joe Margiotta filed an appeal, and the front page announced: "Margiotta Appealling."

It was a one-joke day on Long Island, as thousands of citizens went around shouting "Not to me!"

EDITED TO ADD: Ah ha, gotcha, KLEW-TV, Clarkston, ID: "Craig Appeals" Get a klew, KLEW!

:: David M. Wagner 9:49 AM [+] ::
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:: Friday, October 12, 2007 ::

More on Gordon Brown's "New" New Labour? Superbugs and "d.i.y." abortion

:: David M. Wagner 1:07 PM [+] ::
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:: Thursday, October 11, 2007 ::

Blogger Patrick Joubert Conlon reviews a book edited by Regent's own Charles W. Dunn. And here's the book!

:: David M. Wagner 3:12 PM [+] ::
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In my e-mail this morning:

"Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect"
Ohio State Public Law Working Paper No. 95
Center for Interdisciplinary Law and Policy Studies
Working Paper Series No. 64


Contact: JAMES J. BRUDNEY
Ohio State University College of Law
Full Text: http://ssrn.com/abstract=1008330
ABSTRACT: This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.....

James Brudney, James Brudney.... Ah, yes!....

From the Thomas/Hill hearings:
Senator [Arlen] SPECTER. On page 37, Judge Hoerchner, you refer to a conversation with Mr. James Brudney, would you tell us what the circumstances were of that, please?
Judge [Susan] HOERCHNER. A conversation between Anita and Jim Brudney?
Senator SPECTER. Between you and Jim Brudney.
Judge HOERCHNER. Between myself and Jim Brudney. Yes....

And a most interesting Bill Safire column written just after the hearings while the Thomas nomination was still pending....

:: David M. Wagner 2:49 PM [+] ::
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:: Monday, October 08, 2007 ::

U.K.: Anti-gay comments could cost you seven years in jail

:: David M. Wagner 2:47 PM [+] ::
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You're kidding -- did MoDo actually use "I Did Do It" as the title of her column about Justice Thomas's book? Looks like liberals can get away with racism in any quantity, and in any degree of putrescence.

:: David M. Wagner 1:05 PM [+] ::
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My latest in The Weekly Standard on state marriage law, this time a Maryland Supreme Court decision upholding marriage, with a glance ahead toward litigation in California, and Maggie Gallagher's work there.

:: David M. Wagner 12:52 PM [+] ::
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:: Saturday, October 06, 2007 ::

Rep. JoAnn Davis, RIP

:: David M. Wagner 10:29 PM [+] ::
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:: Thursday, September 27, 2007 ::

Drudge dishes on text of Justice Thomas's 60 Minutes interview this coming Sunday. On Anita Hill:

She did not take slights very kindly and anyone who did anything, she responded very quickly," he says. When Kroft rejoins, "Didn't take 10 years?" Thomas replies, "It didn't take 10 minutes."

:: David M. Wagner 5:04 PM [+] ::
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:: Saturday, September 22, 2007 ::

Slate reviews the reviews of Toobin's the The Nine, including one by my Facebook friend and blogrollee David Lat.

:: David M. Wagner 11:38 AM [+] ::
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:: Tuesday, September 18, 2007 ::

Mukasey nomination: If this were the start of the administration, I might want someone who doesn't carry the burden of a Nan Aron and a Chuck Schumer recommendation. For a Supreme Court appointment, I certainly would. But for a short seat as AG, I support this nomination -- if only for the way Judge Mukasey once faced down Bill Kunstler:

William M. Kunstler, a lawyer for one of the Muslim defendants in the 1993World Trade Center bombing, asked Mukasey to recuse himself from the case because he is Jewish. Kunstler accused the judge and his wife of having ties to Israel that would influence his opinions. In his official response, Mukasey wrote that "to respond to such inquiries is to concede the relevance of the information" to the way he might rule from the bench.

I can't say the same for some of his erstwhile supporters. From the same Washington Post article:

"He's not an ideologue for the sake of being an ideologue," said Andrew Ruffino, a former law clerk of the nominee's.

Yes, I'm sure a lot of people will recognize themselves in that: got up one morning, said to heck with first principles, let's just be ideologues for the sake of being ideologues! Way to understand the other side, Andrew! Then this:

Said Bruce Ackerman, a Yale law professor who was a classmate of Mukasey's: "He is not a hyper-charged Federalist Society type. He is not a glad-hand networker."

So that's what the Federalist Society is all about: caffeine and rope lines! The academic conferences are just window-dressing, then, and all the A-list liberals who come to them are dupes...!

:: David M. Wagner 12:08 PM [+] ::
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:: Friday, September 14, 2007 ::

L'affaire Chemerinsky: what is UC Irvine thinking of? Obviously I don't care for Chemerinsky's advocacy, but on the deanship, federal prosecutor and potential UC Irvine Law faculty recruit Laurie Levenson has it exactly right:

"If there's room for Ken Starr and John Eastman to be the dean of a law school, there's room for Erwin Chemerinsky," Levenson said, referring to the conservative constitutional scholars who are deans at the Pepperdine and Chapman law schools, respectively.

:: David M. Wagner 5:53 PM [+] ::
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:: Tuesday, September 11, 2007 ::

Is your religious readling list BOP-approved?

:: David M. Wagner 10:17 AM [+] ::
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:: Tuesday, September 04, 2007 ::

New book says Souter almost resigned after Bush v. Gore

If accurate, this means that a lifelong Republican, appointed by a Republican president, was "shattered" that a decision by his Court recognized the election of a Republican president (who happened to be the son of the one who appointed him).

Evidently Mr. Toobin's book is written for the kind of people who find Bush v. Gore not only wrong (lots of Supreme Court decisions are wrong) but so outrageously earth-shakingly regime-threateningly wrong that the only question to be asked is the state of one's emotional health in its aftermath.

Funny -- I know a lot of people who have other Supreme Court decisions to put in that category, but not Bush v. Gore. In fact, they tend to be decisions in which Justice Souter had a hand.

I also recall that when a group of public intellectuals wrote in First Things about the outrageous earth-shaking regime-threatening wrongness of certain other decisions, notably Planned Parenthood v. Casey, certain people were likewise "shattered" -- not at Casey, but at the fact of commentators questioning (quite that sharply) the Court. I hope those same people won't worry too much about Justice Souter's implied criticism of his colleagues. I don't think they will.

Are there other instances of a Justice being "shattered" by a result of the Court? Mr. Justice Frankfurter suffered a stroke shortly after Baker v. Carr, and had to retire. Baker, of course, began the mainstreaming of the idea that the Equal Protection Clause applies to voting -- an idea that led, ultimately, to the majority holding in Bush v. Gore....

:: David M. Wagner 5:35 PM [+] ::
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:: Friday, August 31, 2007 ::

Fieger indicted. Schadenfreude savored.

:: David M. Wagner 12:05 AM [+] ::
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Defending Strauss

:: David M. Wagner 12:03 AM [+] ::
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:: Monday, August 27, 2007 ::

Gone-zales. And there's no Deputy AG either, so SG Paul Clement will be acting AG.

I remember another "Just Us Department" -- in 1988, when Mr. Meese left, and the Deputy was the mild-mannered Utahan Hal Christensen, who had replaced the gifted but not so mild-mannered Arnold Burns.

Anyway, the Deputy never needed to take over, because President Reagan moved swiftly to nominate former Pa. Gov. Richard Thornburgh, who sailed through the Senate and was ready to take the oath of office the day Mr. Meese left.

This time, the betting is that Senate Democrats will "pull an Elliot Richardson," i.e. refuse to confirm a successor unless that successor pledges to appoint a special prosecutor to investigate [insert alleged Bush/Gonzales scandal du jour here]. I assume Fred Fielding has thought this through....

:: David M. Wagner 10:36 PM [+] ::
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:: Thursday, August 23, 2007 ::

Fourth Circuit will take Al-Marri decision en banc. (Thoughtful W.Post editorial here: hopes panel will be upheld but also criticizes the breadth of its holding.)

Federalist Society debate here. Scotusblog discussion of panel opinion here.

:: David M. Wagner 11:29 PM [+] ::
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:: Friday, July 27, 2007 ::

Greetings, fellow participants in SEALS '07!

If you have found this blog while I am giving my talk on federal preemption, I will not be offended if you scroll down and read my past blog posts, as I fancy myself more a writer than a speaker anyway.

I will let you know when it is time to look up and applaud.

Thanks for visiting!

:: David M. Wagner 10:08 PM [+] ::
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:: Monday, July 16, 2007 ::

Parents' rights in Blairite Britain:

Parents cleared of abuse want children back
By Ben Leapman, Home Affairs Correspondent
Last Updated: 12:01am BST 15/07/2007

A couple whose two baby daughters were taken away by social services have been told that they will never see their children again, despite being cleared of abuse allegations....

And in Nixon-Carter-Reagan-Bush-Clinton-Bush America:

DCF Vs. Parents: Unfair Tactics?
Judge's Rebuke Of Agency Worker Renews
Concerns About Child Welfare Cases
By COLIN POITRAS Courant Staff Writer
July 16, 2007

Three years after a Superior Court judge chastised the Department of Children and Families for deliberately distorting facts in a child abuse and neglect case, concerns about the agency's fairness toward parents persist....

:: David M. Wagner 7:54 PM [+] ::
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:: Thursday, July 12, 2007 ::

Harriet Miers a no-show; vulnerable to contempt charges.

You know, I've never been a Harriet Miers fan, but you've got to admit, she's having a rough decade.

My regard for her would go way up if she were to appear before the Senate Judiciary Committee, and if she were to begin her statement (thick magnolia-mouth drawl): "Well, Senators, it's not exactly the hearing I had in mind -- but thanks just the same."

:: David M. Wagner 5:26 PM [+] ::
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:: Sunday, July 08, 2007 ::

Today's dose of Greenhouse Gas is entitled "On Wrong Side of 5 to 4, Liberals Talk Tactics."

Political activists within the liberal camp came up with a plan quickly enough: to “take back the court,” in the words of Norman Lear, a founder of People for the American Way, which sent 400,000 e-mail messages last week as part of a campaign to make the court a central issue in the 2008 Senate and presidential elections.

That would be just great, provided conservatives do the same thing. As a help, Ms. Greenhouse reminds us of the heady era when plans such as construing the Equal Protection Clause to require socialism filled the most elite law reviews:

As the defensive effort became all-consuming, the energy and vision that had animated liberal legal scholarship shriveled to the point that it has been decades since anyone has returned to the ideas that came close to fruition on the Supreme Court of the 1960s: enshrining equal education as a fundamental right or making the alleviation of poverty a constitutional imperative sound like left-over fantasies from a bygone age.

"Equal education as a fundamental right" -- any bids on what that would do to private education and home schooling, esp. with Cass Sunstein now arguing that secular authorities may have authority to ban "sex discrimination" in religious institutions? (ht: NRO Phi Beta Cons blog)

And speaking of Prof. Sunstein, Ms. Greenhouse shows herself more easily surprised that one suspects she really is:

The tension is apparent even in those liberals who sing the praises of judicial “minimalism,” as Cass R. Sunstein of the University of Chicago Law School does. In a provocative posting this spring on The New Republic’s Web site, he deplored “the absence of anything like a heroic vision on the court’s left,” a surprising complaint given his well-known advocacy of judges deciding cases as narrowly as possible.

That CS should advocate minimalism when the Court is (supposedly) conservative, while also advocating "a heroic vision on the court's left" -- big surprise there, yeah. My heart's still going pitti-pat, I'm so surprised.

:: David M. Wagner 1:44 PM [+] ::
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:: Thursday, June 28, 2007 ::

The honesty factor in the discussion of Parents Involved, never likely to be very high, has started out low indeed, with the New York Times headline calling the Seattle and Louisville programs "integration plans." That assumes a fact in dispute: whether these two school districts were in fact trying to achieve integration, or whether their programs aimed instead at the related but crucially different goals of diversity or racial balancing.

As a matter of using English in an explanatory rather than an obfuscatory manner, "integration" implies a previous situation of segregation, which the school district seeks to remedy.

Justice Thomas argues that a racial balancing program is "integration" when, but only when, a state of previous segregation has been identified by a court and that court has ordered racial balancing as a remedy -- a "jealously-guarded exception" to the general rule against taking race into account in state action.

One doesn't have to agree with Thomas all the way on this -- e.g., perhaps a status quo ante may have been segregation, and the present remedy may therefore properly be called integration, even without that judicial finding and remedial order -- but at a minimum, the race-conscious remedy must be in response to past segregation by the state actor that formerly segregated. In today's two cases it is undisputed that de jure segregation was never the case in Seattle, and that in Louisville, it was the case in times past, but has been adjudicated no longer to be so.

Now if you want to argue that racial balancing is integration even without previous segregation, the Breyer dissent will give you a lot of help in doing that. But the New York Times doesn't argue this point at all: it assumes it, and writes its headline to reflect it, and to inculcate it into the many influential yet unreflective people who will read that headline (and perhaps only the headline) and assume they understand these cases because they "read it in the New York Times."

And then it gives us a photo of Breyer looking like he's praying, and Roberts looking like he's saying "Get outta here." Breyer the prophet, Roberts the "umpire" calling the prophet out. Just happened to be the best pictures available in the Times's photo library....

:: David M. Wagner 11:04 PM [+] ::
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The heavy fighting today was in Parents Involved, the schools/race cases, and the 120-inch guns are the Breyer dissent and the Thomas concurrence and Roberts plurality portion replying to it. Thomas:

Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

Thomas, concurring, slip. op. at 2, then dive for cover.

To the extent this concurrence gets discussed in upcoming days, what will really frost some people's shorts is that in Part III, page after page, Thomas links Breyer's defer-to-local-authority reasoning to the reasoning of the Plessy majority and the briefs for the school districts in Brown and other desegregation cases.

:: David M. Wagner 11:43 AM [+] ::
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OK, Panetti doesn't rely on foreign law (except insofar as it relies on the Court's own precedents that do so). Much of the controversy involves trying to construe a precedent by Justice Powell, a sisyphean undertaking to begin with. Decisions like this, that give capital defendants a bite at the apple late in the process, when (according to Justice Thomas's dissent) state procedure already affords him numerous bites, have the effect of backloading and prolonging such litigation. That's not a good thing, but I can't get too fussed about it.

Some more analytic rigor in 8th Am. analysis would be most welcome, but again, "death is different," so if conservatives are going to lose one today, this was definitely the one to lose.

Now, about Leegin Creative and overruling Dr. Miles: the debate here is not only about the anticompetitive effects vel non of vertical price restraints, but also about the standards for overruling precedent. Justice Breyer in dissent embraces the idea -- more commonly associated with conservatives advocating the overruling of Roe -- that the Court should be less willing to overrule statutory precedents, as opposed to constitutional ones, because erroneous statutory precedents can easily be nullified by Congress.

Yes, says the majority, but the Sherman Act (like death?) is different, because it has always been understood by the Court as giving it a mandate to create a "common law" of antitrust, and therefore the Court properly takes account of shifting trends in the market and in scholarly opinion, both among lawyers (Robert Bork is extensively cited) and economists.

Aside from the fact that use of the term "common law" in connection with anything at the federal level of American lawmaking makes me want to scream and break things, the majority is right. I myself won't call it common law, because that's what states do, and I won't call it delegation, because that's what Congress tries to get away with doing to agencies (and almost always does). But it's pretty clear that Congress foresaw in the Sherman Act, and has since then been content with, the courts exercising wide interpretive latitude in this area.

:: David M. Wagner 11:02 AM [+] ::
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Gotta get me one of them "Brighton" belts from Leegin Creative. (Assuming arguendo that they make some for men.) According to the Brighton site, In addition to the belts, Leegin also makes:

• Casual and dress belts sold under the Leegin label.
• Updated contemporary and fashion forward belts sold under the Onyx and Billy Belts labels.
• Honest belts, the basic all-American belt featuring rich heavy cowhides.
• Western belts and hatbands sold under the SilverCreek, Justin, and Tony Lama labels.
• A myriad of special belts sold to other belt companies and to private label retailers (belts sold under the retailer's own label name) such as: Lands' End, L. L. Bean, Eddie Bauer, J. Crew and many more. Unique styles fashioned of materials collected from the farthest reaches of the globe under the One World label.

Go wild!

:: David M. Wagner 10:36 AM [+] ::
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The Chief has delivered the race-in-schools case. Since I quoted Lyle for the issue, allow me to quote him for the first take on the outcome:

Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

:: David M. Wagner 10:21 AM [+] ::
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Whoa! Kennedy (not Stevens, as widely expected) is delivering Leegin Creative, the antitrust case, and Dr. Miles is overruled (also contrary to what the smart money had said).

This means, inter alia, that over in the chief's chair at the D.C. Circuit, I've got one happy antitrust professor!

Kennedy and the liberals also prevail in Panetti, the death penalty case, just as I and everyone else on the planet expected. The only question is the extent of the opinion's reliance on "international sources," and the decibel level of the dissent.

:: David M. Wagner 10:14 AM [+] ::
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And what is it we're waiting for?

*An antitrust opinion, testing a creaky old precedent called Dr. Miles which held that it is always a violation of the Sherman Act for manufacturers to set a minimum price for retailers to charge;

* whether the 8th Am. allows for the execution of the mentally "incompetent" under the standard used by the 5th Circuit (obviously it will turn out not to, and obviously Justice Kennedy has written the opinion; the only question is whether Justice Scalia will bother explaining UHgain why the Court is not supposed to be an ongoing constitutional convention and why a selective survey of what's done in the cooler international destinations should not determine the meaning of the U.S. Constitution);

*a decision on raced-based student allocation in public K-12s. Lyle Denniston summed up the stakes in this one as follows:

The core question is whether a public school system that is not trying to dismantle officially segregated schools may nevertheless assign some students to schools based upon their race, in order voluntarily to try to break down “racial isolation” – that is, students going to school mainly with classmates of the same race. The Court has never ruled on the use of race in K-12 schools except as a means to end official segregation.

:: David M. Wagner 10:05 AM [+] ::
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So here I am again, sitting at my viewing station, waiting for the Supreme Court to dump copy, not unlike Klingsor waiting for Parsifal to come along. (Actually, Parsifal is the "guileless fool," so he's not like the Supreme Court at all....)

I can remember when getting an early copy of a Supreme Court opinion meant having press credentials, elbowing your way to the press officer's desk through hundreds of reporters the press officer likes better than you, then tucking the opinion under your arm like a football and running for the endzone.

I Love Magic!

:: David M. Wagner 9:55 AM [+] ::
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:: Wednesday, June 27, 2007 ::

Today's Tom Toles cartoon on the Washington Post editiorial page: Supreme Court building bedecked with banner reading "BONG HITS 4 CONSERVATIVES."

Well that'll make a great decoration for my office door for a few weeks, but seriously folks, I'm not the only conservative who thinks the situation is more -- what's the word? -- nuanced than that. The Family Research Council joins me in having reservations about Morse v. Frederick:

FRC is concerned about restrictions on the free speech of students because it is often religious or conservative speech that is restricted, but in this case the Court ruled narrowly that the banner promoted illegal drug use and was therefore validly found to be disruptive.

Yes -- in fact, so narrowly that there is now a separate 1st Am. rule just for drug advocacy in public schools. Isn't there someone on the Court who usually objects to rules so narrow that they apply only to the case at issue -- and who did so, loudly, in a case decided the same day as Morse? Two, actually?

Meanwhile, Norm Ornstein is upset that CJ Roberts isn't "institution-minded" like he thought. I don't know what exactly being "institution-minded" entails, but apparently for Mr. Ornstein it rules out being vote #5 in 5-4 opinions, which, when you think about it, makes being "institution-minded" very hard to do, because you only end up being vote #5 on the other side.

Prof. Charles Fried, when he was Solicitor General, used to defend advocacy strategies that displeased conservatives with the observation, "I can count to five." Apparently this ability is not to be despised.

Yes yes yes, I know a Chief can, theoretically, craft a position so narrow that it provokes little or no controversy within the Court, as this Chief notably did in Ayotte, an abortion case of all things (written by Justice O'Connor, but issued during that interregnal period when she was still on the Court but Roberts was already Chief). But that won't always work: the conservatives aren't the only ones on the Court with some strongly held views.

Anyway, can anything be more O'Connorian than the majority opinion in Morse (written by Roberts) and the plurality opinion in Hein (joined by him)? I don't mean for conservative readers to mark me down a Roberts-hata, but re both him and Alito, the "OMG he's different from St. Sandy" rhetoric is a little overblown.

One more opinion-delivery day this season....

:: David M. Wagner 6:17 PM [+] ::
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:: Monday, June 25, 2007 ::

Turns out I was dead wrong when I said our local paper, The Virginian-Pilot, was "having a go" at Regent Law the other day. Look at this editorial. I am humbled; we are delighted.

(Note that the editorial also discusses George Mason U. Law, and its days in the former Kann's department store. Hey, I was there!)

:: David M. Wagner 3:24 PM [+] ::
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More about Thomas's Morse concurrence

The Alito concurrence, joined by Kennedy, indirectly replies to Thomas. Though without coming near Thomas's level of historical research (perhaps they will do so in the future if it become necessary; perhaps I should), they rely on a supplement to Thomas's narrative: even if public schools were originally poolings of local parental authority, they are no longer such:

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority—including their authority to determine what their children may say and hear—to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis.

(Yes, as you can see, now that the opinions are up at Cornell's extremely useful site, whence they can be cut and pasted, unlike the Court's own pdf versions, I'm getting lazy and starting to quote a lot. I'll stop now.)

:: David M. Wagner 1:33 PM [+] ::
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Thomas's Bong Hits concurrence and the Meyer-Pierce doctrine

Justice Thomas contributes a remarkable concurrence to Morse v. Frederick, the Bong Hits case, arguing that Tinker was wrongly decided. This concurrence will have to be taken seriously. It is based on history, specifically, the fact that public schools were halls of almost Dickensian teacher-authority and student-docility, even in times when states were enacting 1st-Am.-like protections in their state constitutions (so there goes the incorporation problem).

Thomas also relies on the in loco parentis doctrine, in a way that is very friendly to traditional parental rights: parents had the right (some might say the duty) to discipline their children, and so schools that acted in loco parentis had the same right.

In an important footnote, Thomas notes that Tinker's reliance on the Court's preeminent parental rights cases, Meyer v. Nebraska and Pierce v. Society of Sisters, was misplaced. Of course: these are parental rights cases, and tend to support Thomas's in loco parentis theory more than Tinker's students' rights theory. But Tinker, though written by Justice Fortas, shows the influence of Justice Douglas's career-long project to uproot Meyer and Pierce from parental rights (which he did not like: see his dissent in Yoder) and reformulate them as 1st Am cases. He tried this in Griswold, though without the Tinker trick of making Meyer and Pierce be about students' rights, when they are clearly about parents' and teachers' rights.

As my earlier posts show, I am not viscerally sympathetic to Thomas's position, nor committed to agreeing with it. But it will have to be thought about.

:: David M. Wagner 12:39 PM [+] ::
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Morse v. Frederick, aka Bong Hits: Well, from the lineup, I guess I'm a liberal today.

I fear that what we have here is a drug exception to the First Amendment.* At least if you think Tinker was bascially right about public-school students' 1st Am rights -- and the Court purports to adhere to it -- then what else can we make of the Chief's opinion placing "advocacy of use of illegal drugs" at the head of his opionion for the Court?

A few years ago the Court declined to recognize an across-the-board "drug exception" to the Fourth Amendment "knock and announce" requirement. But in myriad other ways, the war on drugs has greatly changed our law, and not necessarily for the better.

Another, more benign way to read this is that a bubble of Fraser-Kuhlmeier authority travels beyond the campus, to any "school-sanctioned event" during "normal school hours." I have no problem with Fraser or Kuhlmeier, but I'd just as soon they stayed back in the school building, or in venues where the speaker could reasonably be taken as speaking for the school.

*I trust I'm not turning into John Paul Stevens, but he says something similar in his dissent, which I had not yet read when I wrote this post: "[C]arving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment."

:: David M. Wagner 12:19 PM [+] ::
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"Flast in his first book wrote about, wrote about..."

The Hein plurality opinion contains some good language on the separation-of-powers importance of standing. It goes on to distinguish Flast v. Cohen by -- well, do you remember the Monty Python sketch about the "Summarizing Proust" competition? Well, as Justice Scalia's scathing concurrence (a type of opinion that I believe he invented) in this case shows, the years since Flast have seen a number of "Distinguishing Flast" competitions, won by a bewildering variety of contestants -- so bewildering that, as Scalia discusses, Judges Flaum and Easterbrook declined to take this case en banc, not because they agreed with the panel's expansion of Flast, but because Higher Authority was too inconsistent to be worth the full circuit's time in trying to apply it.

The distinction that wins today's Distinguishing Flast contest is the distinction between a specific and directive line-item in an appropriations bill, and an executive actions funded out of more general appropriations to the executive branch. Thus, I suppose, a line-item that says "the Secretary of Education shall give a speech praising religion" would give rise to Flast standing, but the speech itself, funded by an appropriation that merely allows him a salary, does not.

Interestingly, this distinction could have been based on a strict, Thomas-esque reading of the constitutional clause allegly violated: it is directed at Congress, which is told to "make no law respecting an establishment of religion." It does not prohibit executive officers from praising religion in their speeches; in fact by its terms it is not directed to executive (or judicial, or state) officers at all.

But this cannot be the plurality's meaning, because it goes on to list several hypothetical violations of the Establishment Clause by the President, so as to assure us that such conduct would not go unredressed even after today's ruling.

Scalia's concurrence is a comprehensive tour of the wanderings of the standing issue, leading to the conclusion that it would be better -- and more consistent with post-Flast cases -- to overrule Flast than to "beat[] [it] to a pulp" and then "send it out to the lower courts...more incomprehensible than ever."

Has Flast been weakened, or is it now in a "whatever doesn't kill me makes me stronger" position? Of course, Roe could be sustituted for Flast in much of the Scalia concurrence....

Final note: in quoting Tocqueville, Scalia uses the Mansfield translation, which is -- wait for it! -- Straussssssssssssian!! Watch for exposes in the New York Review of Books, impeachment demands from the Larouchies -- the works!

:: David M. Wagner 11:55 AM [+] ::
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Judging from Lyle's post (which seems a bit hastily written -- but hey, he's writing off an audio feed in a press trailer so he can be the firstest with the mostest, so let's cut him a lot of slack), the election law case is only moderately great.

That's all from me until I've had a shifty at the opinions.

:: David M. Wagner 10:50 AM [+] ::
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Oooooo! The election case must be really great if Souter is reading his dissent from the bench...!

:: David M. Wagner 10:41 AM [+] ::
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Hey, Washington Post -- love ya, baby, but you're being a little narcissistic in keeping your website full of your continuing story on Cheney when the Supreme Court is busily dumping copy. CNN and Fox are laming out too. Well done, friends at SCOTUSblog!

:: David M. Wagner 10:35 AM [+] ::
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Sounds like the students lost the Bong Hits 4 Jesus Case. For the record, I was for the students here, on the assumption that the conduct was not on school property and not at an event where the reasonable observer would assume the school had approved the message. Apparently Chief Justice Roberts and at least four other Justices see it differently.

:: David M. Wagner 10:24 AM [+] ::
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Hein v. Freedom From Religion Foundation, the case on taxpayer standing to challenge in Establishment Clause cases, seems to have come down 5-4, and SCOTUSblog says Justice Alito is delivering the opinion. SCOTUSblog (Lyle Denniston reporting) says: "The Court did not overrule Flast v. Cohen, also two Justices in the majority urged it to do so." Gosh, I wonder who!

:: David M. Wagner 10:11 AM [+] ::
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:: Saturday, June 23, 2007 ::

So here's what I wonder about TSAA v. Brentwood Academy (Brentwood II): why didn't Thomas join the Kennedy concurrence? If he had, it would have become the opinion of the Court: TSAA would still win; a wildly off-purpose expansion of the First Amendment would still have been avoided; but the expansion of Ohralik beyond attorney-client communications, deplored by Kennedy and the three who joined him (including Our Hero), would have been avoided.

Was it because Thomas insisted on advocating (quite rightly) the reversal of Brentwood I, which held, outrageously, that a private voluntary association, governing private and public school sports equally, is a state actor? But he could still have written separately on this point, just as he did (Scalia joining him) in Gonzalez v. Carhart, to stake out his ground that the precedents are wrong though the Court applies them correctly.

Maybe it was because he also wanted to stress his disagreement with the majority's use of Pickering. Kennedy and his concurrers agree with the controlling opinion on this one. But Kreacher wonders: this case has yielded an opinion that is partly for the Court and partly plurality. Couldn't it have yielded a Kennedy opinion, joined in full by the Chief, Scalia, Thomas, and Alito, with Stevens et al. writing separately (if they insist) to apply Ohralik and Pickering?

The result we have would be explained if Roberts, Scalia, Kennedy, and Alito all believe quite strongly, and in contrast with Thomas, that the relationship between Brentwood Academy and the TSAA is indistinguisable for 1st Am. purpses from the employee-employer relationships in the Pickering line of cases. But why would they think that? Just as the plurality's application of Ohralik threatens to make non-attorney-client communications as vulnerable to regulation as attorney-client communications, doesn't the majority's appication of Pickering threaten the 1st Am. rights of private schools by treating them as employees of a voluntary and organization they have joined for non-economic reasons? (Well, for reasons different in kind from the reasons people take jobs.)

Hm.

:: David M. Wagner 10:03 PM [+] ::
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:: Wednesday, June 20, 2007 ::

Scalia stands up for Jack Bauer at Canadian conference. I note that the Toronto Globe and Mail, on second and subsequent references, calls him "Judge" Scalia. But then, they speak Canadian up there.... :)

:: David M. Wagner 2:46 PM [+] ::
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:: Monday, June 18, 2007 ::

The local paper put us under the microscope this morning, and it could not help but notice our climbing average LSAT and skyrocketing bar-pass rate under our present Dean.

Should I have said the paper "had a go at us," as I was planning to? My colleagues don't think so. Well, I'm an old newspaperman as well as an old law prof, and I couldn't help noticing that a freshman House Democrat's smarmy questioning about our decade-ago bar-pass rate at the Goodling hearing appeared above the fold.

Also, who needed those quotes from Jon Stewart and Bill Maher? Stewart and Maher are -- hello? -- co-me-di-ans. In what other context is the work product of comedians cited to make a substantive point? Leno and Letterman have a go every night at whoever's in the White House, but no editor would think of citing them to help define Clinton, or even Bush.

Yet, on the jump (beloved colleagues: the "jump" is the part of the story that's further inside the paper; no need to thank me), we find some very interesting things, e.g.:

Location was key for Joe Migliozzi Jr., a 1994 graduate. Neither evangelical nor conservative, Migliozzi chose Regent as it was the law school closest to his home in Norfolk.

Migliozzi, who is the lead death penalty defense attorney in southeastern Virginia, said Regent's law education became "incredibly well-balanced" under Brauch.

As for ideology, "there are a number of people attending that school who do so strictly because of what Pat Robertson represents to them," Migliozzi said. "I don't think that is a majority anymore."

I don't know Migliozzi, but I'd like to. Then there's this:

Barry W. Lynn, a minister and lawyer who leads the liberal Americans United for Separation of Church and State, said he found Regent students eager to debate ideas when he visited the school.

"If someone walks into a courtroom and says, 'Oh, the lawyer on the other side graduated from Regent, I don't have to prepare,' they're likely to have his or her head handed to them on a platter," Lynn said.

:: David M. Wagner 7:17 PM [+] ::
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I've been arguing online today about Bowles v. Russell, where the Court, 5-4, held that a criminal defendant seeking habeas review in federal court is bound by the time limit fixed in the Fed.R.App.P., notwithstanding that the federal trial judge told him he had three extra days; the 14-day limit (itself a limit on an extensnion only available in limited circumstances that apply here) is jurisdictional, the Court says.

Conservatives, especially Christian ones, have to hate cases like this, because the rule-of-law principle is pitted against justice itself. Bowles is "only" facing a 15-year term, but nothing in the Court's opinion turned on its not being a capital case. Indeed, the case has prompted memories of that of Roger Keith Coleman, who was in fact executed. His federal appeal from his Virginia conviction was likewise jurisdictionally barred, and in turning it aside, Justice O'Connor -- not Justice Scalia, mind you, but Justice O'Connor, the one who was willing to devise a new legal rule for almost every fact pattern she saw -- began the opinion: "This is a case about federalism."

Coleman's guilt has since been sustained by DNA tests long sought by his supporters, but there was enough that was hasty about his trial that, even if it was "a case about federalism" in the posture in which it reached the Court, one has to wince.

And yet -- and yet -- do we declare all procedural deadlines merely advisory in criminal cases? Would that be itself the rule of law, and if so, would the rule of law be well served by the consequences? No one should be happy about the Bowles case, but I'm not yet persuaded it's wrong.

:: David M. Wagner 7:00 PM [+] ::
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:: Wednesday, June 06, 2007 ::

Festive day on the Wall Street Journal editorial page!

First, the lead editorial traces (in light of a possible Murdoch takeover) the admirable history of the Journal's independent "free men and free markets" editorial page. Sort of thing that makes me remember with fondness my own days as a cub editorial writer (for a different paper). I love teaching law, and I worked hard to get here; but if I were ever to stop, I could happily imagine being an editorial page editor, or even just senior editorial writer. I'll tell you this: the space pressure in editorial writing (and in blogging) makes for much better writing than the bloated, sycophantic genre known as law-review writing.

Then, Holman Jenkins Jr. has a piece likewise inspired by MOAS (Murdoch-originated angst syndrome). Main point: entrepreneurs who make their money primarily in the news business make the best newspaper owners. In illustrating this point, Jenkins spots the particular virtues of both the Murdoch-owned (but Alexander Hamilton-founded) New York Post and the Graham-family-owned Washington Post:

What makes the New York Post such a delight is partly the entertaining suspicion (most of the time probably unwarranted) that hidden agendas and childish rivalries are behind the decision to bash this muckety-muck and spare that. Not for nothing is the Post the favorite read of New York's catty media, social and business elite....

As for the Washington Post:

...[I]t's an exceptionally brainy newspaper.

Intelligence as a quality is hit or miss in most newspaper writing and editing. At the [Washington] Post, they seem to have instituitionalized it. You rarely find the collapses of critical judgment that seem to be routine at other papers when, say, a trial lawyer appears claiming evidence of racism in the auto dealership industry or at an oil company.

Absent too are the excesses of billboard journalism -- the habit of editors casually intruding a noisy paragraph that oversells and distorts the story below, leaving an unsatisfying jumble of facts that don't live up to the assertions at the top.

We don't love everything in the Post or all its reporters, and it has certainly benefited from conservative competition from the Washington Times....

Amen to that. The Washington Times, which of course has issues of its own, will probably never overtake the Post -- but it long ago established itself as what Washingtonians call a "necessary second paper." The capital's new giveaway tabloids are also a breath of fresh air; it's a scandal for Washington to be a one-paper town, as it was from the demise of the Star in 1980 to the birth of the Times in '82. Jenkins continues, re the competition-improved Post:

...[T]he Post's editorial page has become remarkably more sensible in recent years.... The company itself is principally in the news business....

Do WSJ reporters fear that Murdoch will insist (as he should) on tighter writing? Says Jenkins:

He's not the only one. Washington Post Executive Editor Len Downie has instructed his crew to write shorter too -- and the Post already strikes me as a very well-written paper: News stories are rounded, complete but not overwritten. They also have a semblance of being written by somebody with a living mind, not just re-executing the media's general template on a given news event....

And last but not least, Brian M. Carney writes about the differences between American and European approaches to global warming.

:: David M. Wagner 9:44 PM [+] ::
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:: Monday, June 04, 2007 ::

SCOTUS nomination this summer?

Jan Crawford Greenburg reports:

The White House is not expecting a retirement, but it wants to be ready if a surprise announcement occurs, sources said.

And so:

The White House is developing a short list of possible Supreme Court nominees so President Bush can move swiftly if a justice retires at the end of June....

Who? Women and minorities first. There are some outstanding ones, especially JRB, and she's on the list:

[A]dvisers are focusing on possible nominees who are believed to be solid
judicial conservatives and would galvanize the base at a time when Bush
desperately needs its support....

In that camp are federal appeals court Judges Priscilla Owen and Janice
Rogers Brown....

Galvanize me!

:: David M. Wagner 4:52 PM [+] ::
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:: Thursday, May 31, 2007 ::

The dissent is never the "lede," unless....

:: David M. Wagner 2:05 AM [+] ::
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:: Friday, May 25, 2007 ::

An especially warm welcome to recent readers from Richmond, L.A., and Bonnie, IL.

:: David M. Wagner 11:23 PM [+] ::
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:: Thursday, May 24, 2007 ::

Washington Post blogpost on yesterday's hearing. Don't miss the comments.

EDITED TO ADD: I've fixed the link. Well, I think I did....

:: David M. Wagner 5:58 PM [+] ::
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:: Wednesday, May 23, 2007 ::

A star is born: Rep. Artur Davis, D-AL, was impressive today. While he lost points for not always letting the witness answer fully, for the most part he showed himself a smooth prosecutorial questioner, and something about him -- the velvety voice? -- makes him a natural for CSPAN to have as a guest and for reporters to flock to after the hearing. We'll hear more from him, for good or ill.

:: David M. Wagner 6:03 PM [+] ::
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So let me jot this down, pending comparison with the official hearing transcript:

Rep. Steve Cohen, D-TN: Is there a disproportionate number of Regent Law graduates at the Department of Justice?

Monica Goodling: There are many more from Harvard and Yale.

Rep. Cohen: That's very refreshing.

Of course the correct expression is "Yale and Harvard," but I assume Miss G. will correct that in due course. The more important question is, what was Rep. Cohen thinking of? "Refreshing"?

Obviously graduates of elite schools have the inside track, at DOJ as everywhere else -- but does Mr. Cohen mean that there is, or should be, some sort of rule to that effect? Like, an administration comes under suspicion of misconduct if its Yale-and-Harvard quotient at DOJ falls below some specified level?

Or is the problem not under-representation of the big boys but over-representation of schools that don't have the advantage of centuries to boost their present standing?

And Rep. Mike Pence, R-IN -- glad you liked your own Christian conservative school, but I would guess not everyone here would endorse the easy elision of those two terms. In that regard, I note the witness's interesting comparison of her year at American U. and her two years here.

But look -- I can't believe the committee Democrats aren't getting competent political advice, and I can't believe competent political advice would tell Mr. Cohen to sound the elitist theme, or to make this about upstarts from Virginia Beach challenging their Ivy League betters. That may be red meat to some corners of the leftist blogosphere (those that are either elitist themselves, or are willing to turn elitist opportunistically), but I can't believe it plays well with the general voting public.

:: David M. Wagner 1:05 PM [+] ::
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:: Sunday, May 13, 2007 ::

Thanks to those who keep checking in. Right now I'm doing pretty much nothing but grading exams and getting ready for a conference. Will be back with my snark on shortly.

:: David M. Wagner 11:08 PM [+] ::
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:: Monday, April 23, 2007 ::

Just turn a few pages, and you can read some great stuff about us in The Boston Globe [my comments in brackets]:

The bar exam passage rate of Regent alumni , according to the Princeton Review, rose to 67 percent last year. Brauch said it is now up to 71 percent [correct], and that half of the students admitted in the late 1990s would not be accepted today [correct, and as a member of our Admissions Committee, I'm here to tell you]. The school has also recently won moot-court and negotiation competitions, beating out teams from top-ranked law schools.

Adding to Regent's prominence, its course on "Human Rights, Civil Liberties, and National Security" is co taught by one of its newest professors: Ashcroft.

Even a prominent critic of the school's mission of integrating the Bible with public policy vouches for Regent's improvements. Barry Lynn , the head of the liberal Americans United for the Separation of Church and State, said Regent is churning out an increasingly well-trained legal army for the conservative Christian movement.

"You can't underestimate the quality of a lot of the people that are there," said Lynn, who has guest-lectured at Regent and debated professors on its campus.

And I see from the March 26 2007 print edition of Virginia Lawyers Weekly that one of our alumnae just made partner at Kaufman & Canoles: Vonda W. Chappell, '95, focusing on estate planning, probate and trust administration, corporate law, and real estate, out of Kaufman's Chesepeake office.

:: David M. Wagner 6:57 PM [+] ::
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Bloglink added: Virginia Lawyers Weekly blog

:: David M. Wagner 6:53 PM [+] ::
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:: Saturday, April 21, 2007 ::

"Since I am almost certainly the only tuition-paying Regent student on earth who's also a lefty blogger," writes blogger Sara Robinson, "I suppose it's incumbent on me to say a few words." Here are the words she says, and very interesting they are too, especially:

[O]ur class discussions, both in real-time lecture and e-list posts, have been surprisingly wide-ranging and non-doctrinaire. I've cherished my interactions the young Southerner who turned me onto the whole gestalt of the Emerging Church movement, who is also active in voluntary simplicity and global anti-slavery movements.

And

They're not my grandmother's [Unitarian] prayer group. But they are people I'd be glad to make room for on the political front lines of the various interests we do share.

And

It's so very tempting to stereotype and demonize. After all, the religious right has done it to us for years. But accuracy and fairness -- the only two true allegiances of any journalist -- demand that we take the time to take off our own ideological filters, wander into their communities, stay awhile, and commit to listening to them on their own terms. When it comes to the emerging evangelical elite at places like Regent, we will often have our prejudices more then confirmed. But we may also be rewarded with more friends and allies than we might have imagined.

:: David M. Wagner 3:01 PM [+] ::
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:: Thursday, April 19, 2007 ::

The Carhart decisions

A pretty good piece of work by Justice Kennedy. Some very blunt language about the nature of abortion has now gotten into an opinion of the Court. Not only about the partial-birth kind: though it's dicta, since it's not strictly necessary to the result reached, the Court spoke about abortion in general in a way that pointedly avoided the common euphemisms.

With language that applies Casey without endorsing it, Kennedy manages to keep Scalia and Thomas on board for the whole decision, thus making it a decision of the Court.

The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , did not find support from all those who join the instant opinion. See id., at 979–1002 (Scalia, J., joined by Thomas, J., inter alios, concurring in judgment in part and dissenting in part).

No kidding. (And now we know what happens to Supreme Court Justices when they die, like Rehnquist and White: they become alios.)

Whatever one’s views concerning the Casey joint opinion, it is evident [that] a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals [disallowing the statute].

Well now you're talkin'. One can affirm that Casey does not lead to a right to partial-birth abortion without affirming Casey itself. "Join me," as they say.

Why not overrule Stenberg? Because, if you believe the Court, there were enough differences between the statute there and the statute here that revisiting Stenberg was not necessary.

That said, however, there is no sign that Kennedy thinks more highly of Stenberg now than when he wrote his blistering dissent in that case; ergo, the votes may well have been there to overrule it. As Scalia said explictly in his concurrence in Webster, and implicitly in Smith (whether to apply and/or extend Sherbert was an issue whether the parties briefed it or not), the application of an assertedly controlling precedent always draws that precedent into question, because the Court has to decide whether that precedent really controls, or whether something else does.

So again, why not overrule Stenberg? Possibly because Roberts, Kennedy, and Alito do not share Scalia's Webster view, which in any case Scalia has not consistently held (e.g. in his Troxel dissent he disclaimed any desire to overrule Meyer and Pierce because "that has not been urged").

The new Chief has spoken in favor of narrower decisions that produce consensus, rather than sharper ones that produce 5-4 margins and an irate dissent. But here, they went for the narrow holding -- and they still got a 5-4 margin and an irate dissent. So that sure worked, didn't it.

Thomas, of course, had his say separately (Scalia joining), to reassert that he does not recognized the validity of Roe, Casey, or Stenberg.

Should pro-lifers and judicial conservatives be alarmed that Roberts and Alito did not join the Thomas concurrence? Not necessarily. That would have produced a Kennedy-only viewpoint, even though that viewpoint would stand as an opinion of the Court. Cf. Lee v. Weisman, where Kennedy wrote the opinion based on his "coercion" theory of high-school graduations, while all four of the Justices who joined his opinion wrote separately to take much stronger separationist stands. This made the Kennedy opinion, even though it was "of the Court," seem like an idiosynchratic outlier.

If Roberts and Alito had previously, as Supreme Court Justices, expressed the same views that Scalia and Thomas did in Casey, then I would consider it alarming that they did not do so here. As it is, they have no past Supreme Court stances to reiterate; therefore, their better course was to bolster the Kennedy opinion, and keep their counsel on the underlying issues for now.

:: David M. Wagner 12:19 AM [+] ::
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:: Tuesday, April 10, 2007 ::

Editorial privilege

Adam Cohen, a former Southern Poverly Law Center attorney who now writes editorials for The New York Times, has this signed piece today on Bush and executive privilege. Three comments:

1. In U.S. v. Nixon, a criminal prosecution was underway, and the demand for documents was part of it. The President and his associates were being investigated by the executive branch itself, the only branch authorized under the Constitution to conduct criminal investigations, apart from impeachment. (Set aside, for now, whether such splits in the executive branch are constitutional; see the Morrison v. Olson dissent.)

Here, the clash is not between elements within the executive branch, but between the executive branch and Congress. The separation of powers issues are therefore much more acute. I don't have a view right now on exactly what impact this will have on the executive privilege issue, but that it will have one seems likely; Cohen does not even flag the issue.

2. Cohen writes:

It’s odd to hear President Bush invoke executive privilege because it is just the sort of judge-made right he has always claimed to oppose.

Actually I don't think Bush's rhetoric on constitutional issues has included, in terms, an attack on "judge-made rights," though it ought to. But no President of either party has ever disparaged executive privilege, for any reason, and to imply that a President who espouses textualist constitutionalism is somehow bound to reject executive privilege is just editorial cutesiness.

3. Mr. Cohen is very taken with Justice Powell's question at oral argument in U.S. v. Nixon, “Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?” He doesn't provide Mr. St. Clair's answer, and I don't feel like listening to the whole argument on Oyez just for the sake of this post, but a possible answer would have been: "Your Honor, there is no public interest in concealing any crime, and we do not rely on any. We rely, rather, on the public's strong interest in a President's ability to act with energy and dispatch, as the Constitution envisions [click here for Publius's take], through the medium of candid advice from trusted counsellors."

(I added the brackets because, as you know, one should never say "click here" to the Supreme Court. We teach that in App. Ad., don't we?)

:: David M. Wagner 7:49 PM [+] ::
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:: Monday, April 02, 2007 ::

Massachusetts v. EPA: Well, standing just sat, especially if you're a state. See Jonathan Adler's comments here and here.

Say, weren't special rules for states a bad idea according to Justice Stevens (and also Justice Souter, part of today's majority), in the Seminole Tribe line of cases?

:: David M. Wagner 2:34 PM [+] ::
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:: Friday, March 30, 2007 ::

Scalia v. Miller! Or, New Joisey v. Brooklyn.

It's even funnier if you had, as I did, Prof. Miller's taped lectures on Civil Procedure as a constant companion in law school.

:: David M. Wagner 2:20 PM [+] ::
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:: Tuesday, March 27, 2007 ::

“The Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face.”

A serious challenge to Maryland v. Craig -- whoo hoo! Prof. Friedman, of Confrontation Blog, comments here.

Also (and hat-tip to Prof. Friedman), see this article in the ABA Journal about the Scalia-liberal coalition that is reviving originalism in Confronation Clause jurisprudence. Stanford Law prof. and Confrontation expert Jeffrey Fisher is quoted:

“Someone said to me, ‘Isn’t it crazy that Scalia writes all your opinions?’ But that’s the way I wrote the arguments,” says Fisher, who co-chairs the amicus committee for the National Association of Criminal Defense Lawyers. A former clerk to Justice John Paul Stevens, Fisher worked at Seattle-based Davis Wright Tremaine, where he still is a partner....

Explaining the lineup, Fisher says that labeling won’t garner a majority. “You have to think about issues that cut across the divide,” he says. “You have to look at it not so much in terms of politics, but jurisprudentially.” [Emphasis added]

Indeed, Fisher aimed his pitch right at Scalia’s jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution’s text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history.

As it happens, my next article, forthcoming in our law review here at Regent, looks at Crawford v. Washington for signs that Craig is toast. Craig delendus est!

:: David M. Wagner 3:56 PM [+] ::
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Webb says he did not give aide his gun. Hm, there seems to be an epidemic of Washington bosses leaving staffers out to dry just at the moment. Some will say, hey, that's what staffers are for; plus, it's not like they're hard to replace. Perhaps that piece of Washingtonian cynicism is correct. But it does not look good to whatever portion of the electorate is watching, whether it's done by Democrats or Republicans.

:: David M. Wagner 3:51 PM [+] ::
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:: Sunday, March 25, 2007 ::

On Establishment Clause jurisprudence, written in a (Hugo) black humor

I love teaching the First Amendment, but one of the undeniable downsides of the assignment is having to re-read and teach those pompous and ignorant history lessons that Justice Hugo Black kept on working into his "landmark" opinions on the Establishment Clause.

For example, one reads in Everson this stock narrative:

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.

Or, from Engel v. Vitale:

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.

Actually, among "our early colonists to leave England" there were basically two groups, the Virginians and the Massachusettsers. The Virginians came here to get rich off tobacco and to boink Native Americans, so let's leave them to one side and talk about the Massachusettsers.

The Massachusettsers came over, as they themselves said in a document that Mr. Justice Black must at least have heard of, to found a new civil polity "for the glory of God, and advancement of the Christian faith...." They wanted, Justice Black goes on, to be free from "the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England." Yet they considered themselves still part of the Church of England (though a dissenting part), and their leaders attended its services when back in the mother country, much to the distress of ultra-purists like Roger Williams. (Philip Hamburger, Separation of Church and State.)

The community the Massachusettsers established was not even remotely committed to "religious freedom" in Justice Black's sense, in which religion is something, as he puts it in Engel, "personal." Of course it's personal, but it also has a communitarian dimension. As Justice Scalia put the matter in his Weisman dissent:

Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the "protection of divine Providence," as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the "Great Lord and Ruler of Nations."

Since our Massachusettsers (or, more popularly, "the Pilgrims") came over to constitute a religious "people," Justice Black constantly has problems accounting for the absence within the early Plymouth community of "religious freedom" in the modern "personal" or individualistic sense.

Once one understands what the Pilgrims' ideals and goals were, one sees that it makes no more sense to expect personal religious liberty within the Plymouth community than within a Discalced Carmelite convent. But since this concept is simply not in Justice Black's toolkit, he is forced to opine that something just went wrong. From Engel:

It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.

See? An "unfortunate fact." A wrong turn taken. Actually the Plymouth community worked out, for at least two generations, exactly as it had been meant to; but Justice Black can see only a mistake; sort of the way, to someone with no depth perception, a turning disk looks like a circle turning into a line and then into a circle again.

In Everson he acknowledges that "[t]hese practices of the old world [i.e. religious persecution] were transplanted to and began to thrive in the soil of the new America." But still, it is essential for him that these things be, not merely a regrettable corollary of the Pilgrims' (and others groups') projects, but somehow the very antithesis of them. If the leaders of the Plymouth community and the members of Virginia's House of Burgesses didn't get the memo, then by golly, plain ordinary folk must have:

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.

So now I'm confused: did "our" colonists come over to establish religious freedom, or did they come over the perpetuate European mischief until the Founding generation came along to overturn their wickedness? (Or until Justice Black came along and deployed, for the purpose of overturning state "establishments of religion," a text originally drafted to protect state establishments of religion?)

Let me not be understood as carrying unlimited water for the Plymouth community. I'm RC myself, and they wouldn't have liked me a'tall. But that doesn't reconcile me to sitting still for bad history lessons from some Masonic textbook or other that wanders into the United States Reports. Early Anglo-Americans should be understood as they understood themselves, not as they've been transformed into stock characters (good or evil) in some Deweyite morality play.

Furthermore, in Engel, when all the "historical" data on torture and martyrdom has been recited by the Court, we're talking, when all is done, about the dadburn "New York State Regents' Prayer," fer krynout loud. Yes, shocking as it may seem, New York State public school teachers and students were coerced (on what sanction, the record doesn't show: the Court itself only says they were "directed") to say every day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

My gosh! Did the hills of New Hyde Park run with blood? Did they, Black? Were caravans of anti-Almightarians forming up to seek freedom out west? Were they, Black? Did the New York State Regents' High Court of Inquisition torture and burn those who didn't say this prayer loud enough? Did it, Black? Could one see every night on Cronkite the pitiful sight of atheists dying in the streets of second-class citizenship? Could one, Black?

Chuck it, Black.

(With apologies to G.K. Chesterton.)


EDITED TO ADD: A word about the connection between that Chesterton poem and my post.

Mr. F.E. Smith, later 1st Earl of Birkenhead, the lawyer and MP whom Chesterton was having a go at, had a cow about a minor (and probably long-overdue) adjustment of the status of an ineffectual religious establishment in Wales. Justice Black, whom I was having a go at, had a cow (several, actually, over time) about some arrangements that he thought were establishments of religion, that were just as ineffectual, religiously, as the Anglican establishment in Wales, and much less harmful (e.g., in contrast to the situation with Anglicanism in Wales, no one in New York was taxed for the support of full-time Regent's Prayer sayers).

In other words, the common theme is the tendency of otherwise sensible men to have cows over "religious establishment" bagatelles, as if feeling guilty for having missed the truly dangerous church-state action of the 4th or 11th or 16th centuries and needing to cadge themselves a slice of those heroic pies.

In fairness to "F.E.," he could gently take a judge down a notch when he had to:

(1)
JUDGE: Mr. Smith, I've heard your explanation, but I am no wiser than before.
SMITH: No, m'lud, but you are better informed.

(2)
JUDGE: Mr. Smith, are you showing contempt for this court?
SMITH: No, m'lud, I am concealing it.

:: David M. Wagner 1:04 PM [+] ::
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:: Wednesday, March 21, 2007 ::

Due Process limits on punitive damages?

I've just finished an on-line debate sponsored by the Manhattan Institute, "against," or I should say "with," my revered mentor and torts professor, Prof. Michael Krauss. You can read it here.

The subject was the Supreme Court's use of Due Process to cap what Michael aptly calls "bet the company" punitive damage awards. The news hook was the Court's recent decision in Philip Morris v. Williams, a coalition-busting case in which Justice Breyer led the Court further into (what I would call) a neo-Lochnerian grove, and the lead dissenter was Justice Ginsburg -- joined in full by Justices Scalia and Thomas.

In this debate I agreed with -- Justice Ginsburg! Ha ha! No, really, I did -- and with Our Hero too, natch. But (and this is what made the debate fruitful as well as interesting), I became convinced that the "excessive fines" clause of the Eighth Am. may -- may -- provide protection against what punitive damages have turned into in the last twenty years or so. Go, read.

Many thanks not only to Michael but also to Walter Olson and Vanessa Mendoza.

:: David M. Wagner 12:26 PM [+] ::
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Constitutional showdown over subpoenas and executive privilege? Orin Kerr at the Conspiracy says "litigation would be likely to narrow the scope of executive privilege rather than expand it."

Well, we know at least this, from Jan Crawford Greenburg's book if not from research and common sense: neither Roberts nor Alito were chosen because they don't like executive power...!

:: David M. Wagner 12:20 PM [+] ::
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:: Tuesday, March 13, 2007 ::

We use Turnitin here at Regent.

:: David M. Wagner 6:15 PM [+] ::
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:: Friday, March 09, 2007 ::

Going great guns: In Parker v. Fenty, the D.C. Circuit (Silberman, Senior Circuit Judge, writing) has resoundingly adopted the individual-rights theory of the Second Amendment, long advocated enthusiastically by gun groups -- and reluctantly yet firmly by leading liberal scholars such as Sandy Levinson.

Like the First Amendment, the court says, the Second allows for reasonable regulations of the rights that it protects -- but D.C.'s 1976 gun law isn't one of them

In dissent, Bush I appointee Karen LeCraft Henderson scoffed at the notion that a court can resolve the academic debate, noting that the majority has just added x-number of pages to the "pile." Ewwww, "pile"!

She also adopted the view that "the District of Columbia is not a state within the meaning of the Second Amendment," a view that could have interesting implications for Bolling v. Sharpe now that D.C. has "home rule," rather than the direct federal control that prevailed at the time of Bolling.

Bolling, you'll recall, held that what the Equal Protection clause of the 14th Am. requires of the states, the Due Process clause of the 5th Am. requires of the federal government. But D.C. isn't run by the federal government any more; not directly, anyway. So, I would guess that in Judge Henderson's view, the coming of home rule to D.C. legalized segregated schools in the District, unless she can find, which I cannot, some reason why D.C. is not a "state" for 2nd Am. purposes but is one for the 14th.

:: David M. Wagner 11:37 PM [+] ::
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:: Wednesday, March 07, 2007 ::

So, you all want to know what I think of the Libby verdicts?

Well for one thing, it's typical Indepedent Counsel/Special Prosecutor work: if you can't nail anyone for the crime you were appointed to investigate, just use the grand jury process to manufacture one. No two people ever remember the same phone call the same way. Just get your man to tell the grand jury how he remembers it -- and in the difference between that recollection and those of others will be found your career-making perjury and/or obstruction verdict.

A pardon? It's a crucial weapon of self-defense for the executive branch. What makes this case something other than a perfect example of the "pardon power as separation of powers defense mechanism" theory is that here, the aggressor was not Congress (as in Ted Olson's case) but a rogue branch of the executive: the CIA, in making that referral to the Justice Department.

The pardon power is not the executive's only defense mechanism. The execrable "Independent Counsel Statute" no longer being in force, the AG had complete freedom to refuse the CIA's request for a Special Prosecutor. (Under the IC statute, he would have been obliged either to appoint an IC or explain publicly that there was no -- no -- grounds for investigating further. Of AGs who served during the IC regime, only Janet Reno had the cojones to do that, in re Al Gore and the dialing-for-dollars inquiry.)

So, what I'm getting at here is, based on what I can see (which of course is not the whole picture), the executive branch should have repelled this attack at its first defense perimeter -- the AG -- rather than its last, the pardon power. This is the only reproach I can offer to my esteemed faculty colleague John Ashcroft, to be set against his manifold virtues and many acts of courage and wisdom.

For further sound reading on this issue, see today's Wall Street Journal editorial, yesterday's National Review Online editorial. Today's Journal also has a pro-pardon op-ed by Ron Rotunda, not yet on-line.

:: David M. Wagner 5:21 PM [+] ::
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:: Tuesday, March 06, 2007 ::

Troxel too fuzzy? Try Fausey:

The Family Research Council has submitted an amicus brief in support of cert in a parent's rights case, Fausey v. Hiller, in which the Court could clarify -- as it omitted to do in its last parent's rights case, Troxel v. Granville -- what the standard of review is when third parties seek visitation or other rights over children whose own parents have not been adjudicated unfit.

This case puts FRC, as amicus, on the same side as the estimable Howard Bashman, who is representing the plaintiff.

I note that in Howard's reply brief in support of cert, there is a section devoted precisely to the concerns voiced by Justice Scalia when he declined to join the majority in Troxel: "Providing States a Clear Legal Standard to Safeguard Troxel's Fundamental Right Will Not 'Constitutionalize' New Areas of Law Or 'Enmesh' the Court In Case-By-Case Adjudication."

Bingo. Though, myself, I'd have done without the scarequotes around "constitutinalize" and "enmesh." But whatever. Good luck. Scalia's views are trenchant as always, but it is Justice Thomas's concurring view in Troxel (including his intriguing footnote) that the Court should adopt.

:: David M. Wagner 10:48 PM [+] ::
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:: Wednesday, February 21, 2007 ::

Yesterdays SCOTUS cases feature a wonderful assortment of alignments. For me, I can live with a Court in which the major disputes are intra-"conservative".

As for the punitive damages case, Scalia has always maintained that punies, however outrageous, are not a matter of due process. By not insisting on a wholesale critique of substantive due process, he was able to join Ginsburg's dissent. In other cases we had some Scalia-Thomas splits.

The D.C. Circuit's decision on detainee habeas is my kind of case, in this sense: it features both an argumentative opinion and a spirited dissent, both of which go deeply into 18th and 19th century sources.

I don't know what to make of Judge Rogers's distinction (in dissent) between a constitutional right and a limitation on the powers of Congress, but a distinction like that might serve to reconcile the (dubious, imo) holding of the Court in Missouri v. Holland and the plurality opinion in Reid v. Covert: Congress can add to its powers by treaty, but can't override constitutional rights by treaty.

:: David M. Wagner 3:03 PM [+] ::
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:: Monday, February 19, 2007 ::

Welcome, Weekly Standard readers! (Scroll down two posts for what you're looking for.)

:: David M. Wagner 1:30 PM [+] ::
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I am very much enjoying Jan Crawford Greenburg's new book, Supreme Conflict. I am not used to seeing MSM reporters recount con-law conflicts with such balance.

Besides, having had a seat for some of the battles she describes -- I won't say front-row, but perhaps fifth or sixth row orchestra for some, second-row first tier for some others -- I find myself both reliving old things and learning new things. "Yeah, I remember that. And that. And -- wait, is that what happened? Yeah, I remember that, and that, and that, and -- Huh? Ged outta here!" etc. etc.

I will now link to Ms. Greenburg's blog, Legalities.

:: David M. Wagner 1:22 PM [+] ::
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:: Wednesday, February 14, 2007 ::

"Initiative 957" -- Washington State's alleged mandatory-procreation proposal

A splinter of the same-sex marriage movement is trying to score some quickie debating points by pretending to agitate for a law in Washington State -- "Initiative 957" -- that would require married couples to have a child within three years of marriage, and criminalize divorce for married couples with children.

The idea, of course, is to caricature some of the (already misunderstood) arguments of gay marriage opponents, and to develop that caricature into a political stunt to convince voters that a law like this is the inevitable consequence of rejecting gay marriage.

Those who have followed this debate know that ssm opponents have always rejected the view -- attributed to them as something they "must" believe -- that infertile opposite-sex couples cannot validly marry. Profs. Robert George and Gerard Bradley have explained this at length in many venues. See e.g. George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301 (1995).

As for criminalizing divorce: ssm proponents are right that opponents should, in all justice, devote some of their energy to curbing divorce. I in fact have done so, arguing in an FRC paper that no-fault divorce is an experiment gone awry. But no serious critic of divorce (or even any un-serious one, afaik) has ever argued for criminalization.

What's more, they are right not to, for at least two reasons: (1) criminilization, in general, is a seriously overused move in American policy-making, across a wide range of issues; and (2) criminalization of divorce is simply not our legal tradition. Divorce critics may indeed want to return to a status quo ante, but that status quo ante is not a regime of criminalized divorce: it's a regime of divorce based on fault.

Would Initiative 957 even be constitutional, based on precedent (if not text)? Its supposed proponents are claiming to base it on a line in the Washington State Supreme Court's decision of last summer, upholding the state's marriage law, to the effect that procreation is a "legitimate state interest." But, as these legal activists surely know, a "legitimate state interest" is, by definition, entirely subordinated to constitutional rights. Initiative 957 would clash -- not with Loving v. Virginia, which is about race more than about marriage -- but with a string of cases dealing with marriage as traditionally understood, notably Turner v. Safley, Zablocki v. Redhail, and Michael H., and of course the key dicta in Meyer and Pierce.

Simply put, a state power to annul an existing marriage against the wishes of the parties would be a novel and unprecedented power-claim. The Washington State Supreme Court's decision last summer allowed the state to decline to recognize a new and revolutionary form of marriage. That is universes away from allowing the state a new and revolutionary power to destroy existing marriages.

The ideologically opposite analogy for Initiative 957 would be something like this: a socially conservative group forms a committee with a name like "Citizens for Marriage Equality," and proposes a law annuling the parental rights of parents who refuse to raise their children in a "gay-affirming culture." Nobody this side of Jim Dwyer would support that, and even he hasn't advocated it, afaik. Such an "initiative" would be a mendacious piece of political theater -- just like "Initiative 957".

:: David M. Wagner 11:05 AM [+] ::
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