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 ::
:: 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.
AndThey'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.
AndIt'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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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.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.
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.
:: David M. Wagner 6:57 PM [+] ::
...
:: David M. Wagner 6:53 PM [+] ::
...
[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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
