NINOMANIA

 Subscribe in a reader

:: Friday, May 23, 2008 ::

"The first question is, is there standing?" Not much, by the time I get through with these exams.

:: David M. Wagner 3:53 PM [+] ::
...

:: Monday, May 19, 2008 ::

Interesting things about Dept. of Revenue of Ky. v. Davis:

* My friends in the libertarian litigating community took it on the chin: only two Justices -- Kennedy and Alito -- bought into their claim that the Dormant Commerce Clause doctrine is a fountainhead (as it were) of judicial enforcement power for the free market.

* In dissent, Kennedy is -- once again -- off and running with high-flying generalizations, this time about history and economics. He cites at least one Lochner-era precedent, albeit one authored by Holmes. So, those who say Kennedy is a neo-Lochnerian: you're probably right. But whether he gets more than one vote besides his own depends on the doctrine being applied: Justice Alito's very brief dissent explains that he joins Kennedy's only because of the stare decisis status of the Dormant Commerce Clause doctrine...

*...speaking of which: Scalia and Thomas differ here, as they have before in Dormant Commerce Clause cases, on stare decisis. Scalia (concurring in all but III-B and IV) says, keep the DCC but don't extend it; Thomas says (I paraphrase freely) the DCC is twaddle, and who really needs stare decisis anyway, but Kentucky's differential taxation system for its own bonds vis-a-vis those of other states can be upheld solely on the grounds that states have long favored their own bonds in their tax systems, and Congress, though it has power to override this practice, has not done so; therefore -- concur in judgment only.

I'm with Thomas on this one.

:: David M. Wagner 12:02 PM [+] ::
...

It is very bizarre, I must tell you, to "write" a Scalia opinion while reading it for the first time. Just now, I was reading his opinion for the Court in U.S. v. Williams; I got to the page break at the end of page two:

After our decision in Free Speech Coalition, Congress

and the voice in my head said "went back to the drawing board." Then I scrolled down and continued with page three:

went back to the drawing board and produced legislation

It is fun being a Ninomaniac.

Btw, he continues:

with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650.

Actually it's not unlikely at all, given Congress's recent bipartisan addiction to acronyms.

We shall refer to it as the Act.

By all means. Better than breaking into a chorus of "Hava PROTECTA."

:: David M. Wagner 11:19 AM [+] ::
...

At oral argument in Ressam, Justice Scalia seemed concerned about the inherent unfairness of criminalizing the mere "carrying" of an explosive while commiting another felony, even one unrelated to the explosives. But in the Ressam decision issued today, he joined Justice Thomas's concurrence, agreeing with the Court that such is the meaning of 18 U.S.C. §844(h)(2). The only parts he and Thomas refused to join were the legislative history parts. Hm.

:: David M. Wagner 11:13 AM [+] ::
...

:: Thursday, May 15, 2008 ::

Gay marriage has been decreed for California by its Supreme Court; the decision is here. Highlights I've had time to take in so far:

* Sexual orientation is a suspect classification for Equal Protection purposes in California.
* Equal benefits are not enough: the word "marriage" has to be thrown in too, otherwise same-sex couples' feelings will be hurt (the technical term for this, "dignity and respect," is borrowed from Dworkin), and this is an unconstitutional injury.
* Tradition is a source of suspicion, not of authority: because we "used to" think interracial marriage was bad, and we "used to" think many jobs were out of bounds for women, the long-establishedness of opposite-sex marriage counts against it.
* Marriage is about the adults primarily; children are an afterthought.
* Marriage is about relationships, not about generations.

Obviously the court did not, as I suggested in the post below it might, avail itself of any split-the-difference options. Full speed ahead, we know what's right, we have the power and we'll use it.

If this isn't the "judicial activism" issue on which McCain can win the presidency, then he probably can't win it. Which may well be the case.

:: David M. Wagner 1:21 PM [+] ::
...

I'm going on a weekend-long retreat this afternoon, so I can't promise to comment on the California same-sex marriage decision until long after everyone else in Blogistan has done so. Try to live with that disappointment. Besides, the first five or so moves in the argument, either way, are by now familiar. If the California court manages to say something new, either way, that will be worth commenting on next week.

This report from ABC raises the possibility that the court could split the difference by striking down the state's current referendum-enacted one-man-one-woman law but punting the rest of the issue back to the legislative process. It would thus evade a charge of judicial activism and end-running the people's will, while at the same time, I would suggest, setting up a dynamic whereby the legislature would act under the virtual certainty that its work would keep getting struck down until it "gets it right."

:: David M. Wagner 11:08 AM [+] ::
...

:: Wednesday, May 14, 2008 ::

The California Supreme Court will announce its ruling tomorrow, at 1 pm eastern time, on whether the California Constitution implies a right to same-sex marriage.

The recent trend in state courts has been toward recognizing that such a seismic change should be made, if at all, by the people's representatives in the legislatures. A writer at HuffingtonPost, however, thinks the California court is ready to transform society like a Dworkinian "Hercules," and is "readying itself for a backlash" -- "backlash" being the appropriate term when the people don't fall into line (when they do, their "voice" must prevail, and contrary judicial opinions constitute and "end run" around them).

:: David M. Wagner 6:49 PM [+] ::
...

This is, ida know, a crapton of months overdue, but I'm finally linking to the blog of the learned dean of our university's School of Government, Charles W. Dunn: the Chuck Dunn Report.

:: David M. Wagner 12:09 PM [+] ::
...

:: Tuesday, May 13, 2008 ::

Why you can't support Kant. (Hat-tip: MDSS)

:: David M. Wagner 11:21 AM [+] ::
...

:: Monday, May 12, 2008 ::

BLT, the Blog of Legal Times, is snarking that Scalia and Garner, by giving a CLE course based on their book, are turning it into "performance art"; BLT's post links to Garner's web site, Law Prose.

To which I say: I didn't know Bryan Garner had a web site! Well, now I link to it!

:: David M. Wagner 3:06 PM [+] ::
...

:: Wednesday, May 07, 2008 ::

Scalia's C-SPAN interview with Brian Lamb

On smart young people choosing the legal profession rather than science or the humanities:

[I]t is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn’t like to do anything else. I mean, it’s really what I’m sort of cut out for, but I do think that overall the talent that comes into the law in this country is really an excessive proportion of the talent out there, which says something about the legal system, I suppose, that it’s gotten very complex, it’s gotten – it’s worth paying a lot of money to get the best and the brightest minds.

I’m not sure the system ought to be that way. It ought to be simpler, and we ought to be able to devote a lot of our best minds to like – to teaching, to engineering, to something useful.

Well, you know, lawyers are facilitators. We enable the work of the world to proceed smoothly, and in an atmosphere of freedom, and that’s all very important, but at the end of the day, we don’t have a product. We facilitate actions and activities by other people.

...

I am often wrongly praised as, you know, being son of an immigrant as though I’ve lifted myself up by my own bootstraps. My father was indeed an immigrant, but he was an intellectual, much more intellectual man than I am, actually.

He was a professor of romance languages at Brooklyn College. Always had a book in front of his face, in French or Spanish or Italian. He taught all three of those languages.

...

I didn’t decide to be a lawyer until I, you know, was in my last year of college and had to decide what I was going to do next year, and I ended up really not being able to make up my mind. I had an uncle, uncle Vince, who was a lawyer and seemed to have a good life and to enjoy what he did, so I said, ”I’ll go to law school.” But I can’t say I set my cap on being even a lawyer, much less a judge.

How not to bomb in an oral argument:

[T]he worst thing is a lawyer that does not have clearly in mind the theory of the lawyer’s case, and therefore when the lawyer gets questions, it’s as though, you know, wow, I never thought of that. If you don’t have your theory clearly in mind, every question is, you know, comes out of nowhere, and you’re scrambling for some answer.

On Bush v. Gore and "get over it":

[I]t would have come out the same way had the court not intervened because the press did an extensive study of each of the counties in Florida and had the votes, didn’t count the dimpled chads and the hanging chads and all of that. Had they been counted the way Mr. Gore wanted, he would still have lost.

And lastly, we – no, not lastly, penultimately, we didn’t go looking for trouble. The court didn’t uninvited leap into this electoral dispute. It was before the courts because Mr. Gore had brought it before the courts. He wanted the courts to decide the election, and when the matter came to us, it was simply a question whether the last word was going to be the Florida Supreme Court or the United States Supreme Court as to who would win the Presidential election.

When one of the parties to the cases said the Florida Supreme Court violated the federal Constitution, what were we supposed to do, turn the case down as being not important enough? Hardly.

And the ultimate point is that to refer to just so-called conservative majority, I don’t think conservative-liberal makes any sense in the context of the Supreme Court, but the vote as to whether the federal government would intervene in this dispute was not even close. It was seven to two. People forget that. By a vote of seven to two, the Supreme Court held that the Florida Supreme Court had violated the Constitution.

So, you know. Get over it, Brian.

On the subjunctive:

We used to have a formulary conclusion of all of our opinions on the D.C. Circuit. It would go for the foregoing reasons, the judgment of the – it is ordered that, solid caps, ordered that the judgment of the District Court is affirmed.

That used to drive my father up the wall. I mean, he would say, ”Son, you can’t say it is ordered that it is affirmed. You have to use a subjunctive. It is ordered that it be affirmed.”

So I ended up being the only judge on the D.C. circuit who would have his opinions ordered that it be affirmed. Made my father happy.

On what good law professors do:

[T]he professors teach themselves rather than the law. The law is just like chewing gum. It’s what they use to develop your mental jaws, and you spit it out because the law will probably change by the time you’re in practice for 20 years. It’s important to have good teachers.

Now some law schools are better teaching law schools than others, and the best thing to get is a school that both has very intelligent professors and professors who place a premium on teaching.

You know, I’ve been in academia, so I know the game, and unfortunately the incentives are all long. You get to be a prominent academic by publishing, not by teaching. You become attractive to other law schools if you want to move up the ladder by your publications, not by your teaching. That’s sort of unfortunate.

On his recently ramped-up availability to the media:

I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not.

So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know....

Scalia T-shirts, get your Scalia T-shirts....

:: David M. Wagner 5:38 PM [+] ::
...

Mildred Loving, RIP. I adopt as "for the editors" the statement of the Family Research Council:

America lost a true pioneer for civil rights yesterday as Mildred Loving, a black woman famous for her successful challenge of a state interracial marriage ban, died at the age of 68. Together with her husband Richard, the Loving case, which reached the Supreme Court in 1967, was an important landmark in the battle for racial equality. Never one to take credit for her courage, Mildred said last June, "I never wanted to be a hero--just a bride." Although homosexual activists are fond of portraying the Lovings' victory as a precedent for their cause, the Loving case didn't alter the definition of marriage but affirmed it by allowing any man to marry any woman. The nation is indebted to Mildred for a legacy that so aptly lives up to the couple's shared name.

EDITED TO ADD: PBS interviews Bernard Cohen, the Lovings' Supreme Court counsel. Hat-tip: colleague Prof. Gloria Whittico.

:: David M. Wagner 12:22 PM [+] ::
...