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:: welcome to 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 :: | |
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:: Wednesday, December 16, 2009 ::
Be sure to view the Livni video-statement in this link too. :: David M. Wagner 12:07 PM [+] :: ... :: David M. Wagner 2:46 PM [+] :: ... “Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.Count me in. :: David M. Wagner 8:27 PM [+] :: ... A student asks: In Con Law II class, I tried at the beginning of class to very poorly state an argument on why an incestuous Plaintiff ][i.e., a plaintiff arguing that incest is an unenumerated right protected by the Due Process Clause] would be able to win under Casey - which went with the Glucksberg approach - and used the Mystery Passage, etc. to find for the Plaintiffs. However, you later said under Lawrence, that the Plaintiffs would win as well b/c the Court left the door open. Can you please, please review for us the two approaches to analysis that we will be tested on at the end of the semester.Obviously, I am not the only one struggling to understand how the Court actually analyzes these things.Well, there's the Yale Law School answer: something along the lines of, look it up yourself -- I just do theory. But I actually don't believe in that sort of teaching, so I'll actually try, in this post, to go beyond what we've had time for in the classroom. First, let's clear up the basic confusion about what I said: Lawrence, and the Casey Mystery Passage, are favorable to our hypothetical incest litigants. Glucksberg is adverse to them. A state defending its incest laws could limit the damage from Casey by arguing that the Mystery Passage was deployed only in support of a right (abortion) already recognized by the Court. But Lawrence, which relies on the Casey mystery passage, is not so limited: to the contrary, it deploys the Casey Mystery Passage to recognize a right that was specifically rejected by the Court more recently than the abortion right was recognized. So, at the Incest Bowl, the teams are: On offense: Casey, Lawrence (and of course the cases, beginning with Griswold, that led to Casey) On defense: Glucksberg (and other cases, especially Michael H., that further explicate how tradition works as a tool of s.d.p. analysis) But what you really want to know is, how do these do contrasting analyses work? For the tradition-bounded Glucksberg analysis, this is fairly easy to answer (see infra). For Lawrence, it is not, because Lawrence is not a mode of analysis at all. It is a mode of attitudinizing. That is why I thought it was important to go through its opening paragraph and suggest that it compares unfavorably to the average freshman philosophy paper at CCNY. In apprenticing ourselves to the discipline of law, we made the sacrifice of agreeing to "think like a lawyer." We deserve better, for that sacrifice, than to find the Supreme Court thinking like a stoned teenager, and believing that doing so constitutes great judicial statesmanship. If I could tell you what "Lawrence analysis" consists of, I would. The best I can come up with is: if it's sex, or if it facilitates sex, then it's protected by the Due Process Clause. Not only can it not be prohibited: people who do it, or wish to, cannot be "demeaned." A long tradition of moral disapproval, far from strengthening the legislature's case, actually weakens it, b/c it constitutes an "irrational" motivation, suggesting in turn that "mere animus" against an unpopular group was the sole basis of the statute. Undoubtedly, the trend of the times is away from enacting sodomy statutes, towards repealing them, and away from enforcing them where they are still on the books. I suspect that in Lawrence we see a Court that simply couldn't wait for the obvious flow of popular opinion to become universalized in legislative and executive practice. Before that happened, the Court felt it had to get out there and be seen in its progressive plumage (having waited for Justice White to die, but, unchivalrously, not waiting for Justice O'Connor even to leave the Court). As the saying goes, "There go the people. I must join them, for I am their leader." In reality, no state other than Texas, and very few jurisdictions even there, needed the Supreme Court to tell them their police forces had better things to do than invade gay people's bedrooms. The Lawrence Court is taking a "heroic" stand against a largely imaginary dragon -- and in any event, an already-dying one. (As the good Dean Jeffries -- a Yale Law student in the early '60s -- reminded us in regard to Griswold: whatever problem the Griswold litigants were out to solve, actual difficulty in accessing contraceptives in Connecticut in that era could not by any stretch of the imagination have been one of them.) There is no certain limit to the application of Lawrence -- but there is also no certainty as to when the Court will or will not apply Lawrence (and/or the Casey Mystery Passage). We cannot know when a majority will decide it has to stand guard over getting it on (because liberty protects spatial autonomy in the higher sphere of free definition of the mystery of the upper atmosphere, or whatever), and when it will use a mode of analysis recognizable as legal. What did Lawrence tell us about why Glucksberg was inapplicable? Nothing. It ignored Glucksberg completely. It overruled Bowers despite the fact that Glucksberg constitutes substantial intervening authority that duplicated the analytic mode of Bowers and therefore actually strengthened its precedential weight. (And Glucksberg, needless to add, is not overruled.) So what, then, is the Glucksberg analysis, exemplified also by Bowers, and explained in more detail (esp. on the question of how to pick the right "level of generality" in defining the right that is being claimed) in Michael H. v. Gerald D.? Glucksberg analysis (text and tradition): 1. Check the constitutional text. If you're dealing with an "unenumerated right," then, by definition, the text doesn't solve your problem, but it's good to be reminded that in Constitutional Law we're always trying to interpret a written text, and that text trumps everything else, including tradition. 2. If there's no clause giving protection to the right being claimed, ask whether the right is nonetheless "deeply rooted in our nation's history and traditions" (Glucksberg), "essential to a fundamental scheme of ordered liberty" and "implicit in the concept of ordered liberty" (Palko v. Conn., where, you'll remember, the 5th Am. textual privilege against double jeopardy was held not to be so essential for 14th Am. purposes) and "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Snyder v. Mass.), then it should have protection, despite not being textually protected. Ignore history-nihilists who say we can't know anything about the past. The vast majority of academic historians ignore such people: so should you. As for moderate history-skeptics, who say the past is knowable but permanently indeterminate, b/c our knowledge of it is always changing (hopefully improving), say, yes, but, we do know some things. E.g. it's unlikely that the long tradition of criminalizing sodomy and using opprobrious labels for it was actually a backhanded, ironic way of celebrating it. Some people argue (controversially) that 19th doctors favored abortion restrictions only b/c they wanted to keep the abortion business for themselves; but even if that were true, it wouldn't show that abortion was a "right," to be set alongside contracting, speech, and jury service.* 3. Defining the right: Since any claimed right can be squeezed up the pole of generality until you reach something like "good thing," we need to be more specific. "Good thing" is too general to deal with. It's true, but too trivially so to be meaningful, to say that "good things" are part of "our tradition." I suppose a legislature that legislated against "good things" would necessarily lack a rational basis for doing so, but that too is at best a trivial truth, b/c an "anti-good-things" bill is not something any legislator actually proposes. So we need to be more specific. But how much more? Not infinitely specific, right down to the hair color and musical preferences of the plaintiff. Defining the right with such ridiculous precision would leave the Court unable to find a tradition one way or the other. Take Meyer v. Nebraska. What were the rights claims there? They boiled down to two, and neither of them were articulated as "good things," or even something slightly less general, but still very general, like "intimate relationships." They were (1) the right to pursue a lawful and respected calling (that of teacher), and (2) the right of parents to select educational options for their children. The first has deep roots in American practice and in privileges-and-immunities jurisprudence. The second is a short-step inference from the fact that, although schooling in the U.S. has usually been delegated by parents to organized schools when possible, nonetheless, this has not always been possible, and in any case, parents have always been heavily involved in preparing their children for organized schooling, helping them succeed in it, and choosing among schooling options when options have been available. Note that the definition of the rights in Meyer did not get too specific. The Court did not define the rights-claim as, e.g., the right of German-American parents in Nebraska who go to churches whose names start with Z to direct the education of their children. Adding those details would have made it impossible to find a tradition either for or against the asserted right. They would also have added nothing meaningful to the claims. For the "Ninomaniac" take on how to get the level of generality/specificity "just right" in articulating an unenumerated rights claim under s.d.p., see footnote six of Michael H. v. Gerald D. There Scalia proposes that the right level is -- not the most specific level possible, as the Casey joint opinion erroneously claims he believes -- but rather the most specific level at which it is possible to find a tradition either for or against the resulting claim. Is this a perfect solution? At least it is a solution that can be defined -- unlike any that the dissent in that case suggests -- in terms other than leading to a preferred result. One objection to the Glucksberg analysis, especially when filtered through the Scalian approach to selecting a level of generality at which to define the rights-claim, is that by privileging tradition and demanding specificity, it tends to lead to conservative outcomes, and thus is not as neutral as its advocates claim. This is true, but only up to a point. As I pointed out in class, tradition, as used in s.d.p. analysis, describes what legislatures MAY do, not what they MUST do. The real function of Glucksberg, as opposed to Lawrence, is to limit the scope of judicial dictation to legislatures, and thus, to the people. As a result of Glucksberg, the people, through their state elections and state legislatures, can still debate assisted suicide and adopt and change laws accordingly. As a result of Michael H., with its strong "traditionalism," the people, through their state elections and state legislatures, remain free to decide whether blast-from-the-past adulterous dads should be able, or not, to assert parental rights over children of currently intact families. But as a result of Roe and Casey, the people must leave abortion unregulated before "viability" and cannot restrain it at any stage by any law that the Court might eventually conclude is an "undue burden" on the abortion right. And as a result of Lawrence, the loosening of sodomy laws, which was already in progress as a result of widespread social re-thinking, has suddenly been imposed as a top-down constitutional rule -- a rule, moreover, that would have profoundly shocked the original Framers, the framers of the 14th Am, and indeed every constitutional authority down to and including Justice Harlan II, who, in his dissent in Poe v. Ullman urging that Connecticut's contraception ban be overturned, wrote: [T]he very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical wellbeing of the community but has traditionally concerned itself with the moral soundness of its people as well. Indeed, to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any constitutional doctrine in this area must build upon that basis.367 U.S. 497, 545-546 (1961) --- * Prof. John V. Harrison, U.Va., says the framing generation of the 14th Am would have placed jury service, along with voting, on the "political" side of the then-current "civil rights"/"political rights" dichotomy, a view that aligns him, pro tanto, with Justice Field's dissent in Strauder (tho' Harrison agrees with Strauder on other grounds). It seems to me jury service bids fair to be seen as a more basic right than voting, from the p.o.v. of what the framers of the 14th would have seen a fundamental right to be. I base this on the Bill of Rights, which says a lot about juries, but nada, nil, bupkus about voting. :: David M. Wagner 10:49 AM [+] :: ... Win. :: David M. Wagner 12:07 AM [+] :: ... :: David M. Wagner 5:17 PM [+] :: ... :: David M. Wagner 3:04 PM [+] :: ... One wonders what those even are in Britain today. And how freedom's island, the fountainhead of the rule of law, got to be -- what it is today. Hat-tip: Josh Blackman. :: David M. Wagner 2:56 PM [+] :: ... :: David M. Wagner 11:05 AM [+] :: ... Imagine our relief. Actually, it appears that what got the passenger arrested was battery attempted kidnapping; interesting, though, that reporters would give the “lede” to the Bible factor. It’s a Fox/AP story. Fox calling attention to persecution of Bible-quoters -- or AP urging more of it? :: David M. Wagner 10:53 AM [+] :: ... :: David M. Wagner 8:09 PM [+] :: ... The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.The rest. :: David M. Wagner 11:32 PM [+] :: ... :: David M. Wagner 9:35 AM [+] :: ... Pardon me, but in what kind of legislation are the rights of others not involved? Oh I know -- in lots and lots of laws and regulations. But in saying so, all we're saying is that we don't like those laws and regulations, that we'd vote against them, that we're in the market for politicians who will abolish them, etc. etc. I.o.w., we're making a LEGISLATIVE judgment. But within the range of decisions that COURTS are allowed to make, what on God's green earth is the difference between a law in which "the rights of others are not involved," and any other kind of other law? Unless perhaps a "law in which the rights of others are not involved" is a completely irrational law that would fail the most lenient rational basis review -- thus de-necessitating the strict scrutiny for which McConnell is arguing. :: David M. Wagner 10:01 PM [+] :: ... :: David M. Wagner 12:07 AM [+] :: ... She demonstrated her clarity and technical skill in correcting several senators' misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them.Yeah? Robert Bork took that tack too, and look where it got him. :: David M. Wagner 3:36 PM [+] :: ... While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito. :: David M. Wagner 3:27 PM [+] :: ... The Roman Republic lasted for about 400 years, with an unsystematic, jerry-rigged constitution, resting on a foundation of political tradition, by which I mean a set of well-known but not externally enforceable rules about what one simply did or did not do in politics. In the 1st century BC, the system collapsed rapidly into civil war, dictatorship, political assassination, mass executions, and more civil war, followed a relatively benign empire that was itself eventually drawn into civil war, dictatorship, and the eventual replacement of the trappings of Roman authority by new rulers who considered them inconsequential. This collapse began because men for whom political goals -- good goals: reformist goals -- were everything discovered they could end-run the system by ignoring its traditions. What are silly old rules anyway, when the [insert one: masses/farmers/workers/poor] look to you for change? So out with formalistic rules that say that a man can't be consul twice. Or for life. And out with the rule that says consular legions must serve the people of Rome rather than the consul who commands them. I mention all this because it has to do with what I most vividly associate Ted Kennedy with, which is the successful political campaign to stop the Supreme Court confirmation of Robert Bork. Politically charged judicial nominations were far from unknown in 1987, but for decades leading up to that year, all successful campaigns to block Supreme Court nominees, and all unsuccessful yet serious ones, had gone through the pretense of focusing on factors other than the "ideology" of the nominee (the term "ideology," in this context, spanning political and jurisprudential views, and often implying a denial of the difference between them) was not what the fight was about, but rather, something to do with his "qualifications." Haynsworth? A bogus conflict-of-interest charge. Carswell? A general not-up-to-the-job charge that may not have been bogus. Fortas, for promotion to Chief? A conflict-of-interest charge that eventually forced his resignation from the Court. Rehnquist, for promotion to Chief? Ancient rumors about pollwatching in Arizona and unenforceable racially restrictive covenants on homes (you know: the kind Ted Kennedy had on his place too); those, plus the fact when he had back surgery, he took some meds for the pain, imagine that. Dan Manion, for the 7th Circuit? There were some typos in the briefs filed by his one-man, one-secretary, pre-spellcheck law office. Politics -- fears about the public-policy outcomes of the decisions these nominees would reach -- drove all of this, but apolitical pretexts were always found. At the time it seemed cloyingly insincere: why don't these activists come right out and say what they mean? On further reflection, and in post-Bork hindsight, we can see that these pretexts were our political system's last gesture of respect for the apolitical -- or at least, transpolitical -- nature of the Article III judiciary. They were there because a consul shouldn't serve more than one term, an army should be loyal to the state rather than to its general, and U.S. federal judges are not just politicians with life tenure. The proof of the strength of this tradition, as late as the spring of 1987, was that Robert Bork was the go-to example of the sort of Supreme Court nominee whom it would be easy for President Reagan to get confirmed, no matter the partisan composition of the Senate, because of his amazing and unquestioned record and qualifications, and despite his well-known judicial conservatism and his published critiques of precedents dear to the hearts of liberals (including ones that even Republican nominees burn incense in front of today, like Griswold). Joe Biden, chairman of the Senate Judiciary Committee at the time, said forthrightly some time in '86 or early '87 that he'd "have to vote for" Bork if President Reagan "sent him up." Qualifications still trumped ideology. Ted Kennedy changed all that, with help from leftwing organizer Ralph Neas. Surveying the activist landscape the day Bork's nomination was announced, Neas concluded: "This is eminently doable." Kennedy made his infamous "Robert Bork's America" speech right before the start of the Fourth of July break, with the intent, and the effect, of preventing centrist Democrats from committing to confirm him, and of "problematizing" (as they say nowadays) a formerly unproblematic nomination. He then spent his Fourth poolside phoning activists, donors, etc. All this without the slightest pretense that Bork was anything other than an outstanding legal scholar and an accomplished federal judge, and without the remotest allegation of wrongdoing. From beginning to successful end, the Kennedy/Neas campaign against Bork was based on his legal views and his judicial votes. A member of a Kennedy-favored constituency lost an appeal in Bork's court? Speech -> press release -> headline: "Bork Seen as Hostile to [insert constituency here]." He criticized (as did Justice Black) the reasoning of Griswold, or (as Justice Frankfurter did) the reasoning of Baker v. Carr, or (as Justice Harlan II did) the reasoning of Reynolds v. Sims? Message -> activist groups -> letters to Senators: Bork wants to take away our contraceptives and our votes! Of course, it worked. Hanging on to consular power works too, and so does commanding leader-specific armies, if by "works" you mean accomplishing results. But the judicial confirmation process has been turned into a dishonest ballet at best and Grand-Guignol at worst, many distinguished nominees (when one adds in the lower federal courts) have been denied confirmation, and -- for conservatives, anyway -- a stark and early career crossroad within law has been established: go for a federal judgeship, or engage in candid, searching critiques of constitutional law. Thanks to Ted Kennedy, you can no longer do both. The ideologue-scholars wrote that the law/politics distinction is fictitious: it took Ted Kennedy to enshrine this destruction in our national practice. As I see it, this is his most lasting legacy. All that said -- RIP. :: David M. Wagner 10:18 AM [+] :: ... :: David M. Wagner 11:53 AM [+] :: ... :: David M. Wagner 12:55 PM [+] :: ... Sonia Sotomayor is now a Supreme Court Justice. Now that she has joined the Court, one third of the Justices are now from New York City. This explains why the customary opening of a Court session has changed from "All rise" to "Hey — I’m judgin’ over here!” :: David M. Wagner 10:38 PM [+] :: ... Just a couple of Sotomayor reflections. I've been trying to find her good points rather than her bad points, and as readers know, I've found some. That said, the "wise Latina" thing really does seem to point to a more deeply-seated identity politics that I had at first apprehended. This is a problem. I'm even more concerned about the volume of important cases in which Judge Sotomayor has silently concurred, or else written cursory, we-affirm-the-district-court-for-the-reasons-it-gave kinds of opinions, when more may have been called for. As a wag I know asked: if America's best-known Puerto Rican entertainer can be called J-Lo, can America's best-known Puerto Rican jurist be called So-So? Should conservative senators vote against confirming Sotomayor? I do not have a definite opinion on this (and it's unlikely to matter anyway). It is obvious that her voting patterns on the Court will be basically in line with core Obama constituency values. Based on past Democratic Senate voting patterns and the fact that Republican courtesy in confirmation votes is generally wasted, I could see voting repeatedly against any nominee this president sends up. But (keeping in mind that Justice Thomas was confirmed by a Democrat-controlled Senate and that some Democrats voted for him), I could see being statesmanlike and voting for her if she refrains from making that impossible by her answers in the hearings. Then there's the whole "So-So" thing. It wasn't a right-wing racist misogynist who first raised issues about the Judge's with-its: it was Jeffrey Rosen. It was conservatives of my personal acquaintance who said, wait a minute, back in the '70s, even with a little grade inflation, you didn't graduate Princeton cum laude without with-its. And Yale Law School? Maybe it wanted Hispanic women, but it had a lot to choose from and it chose her. So plainly, she's qualified. But maybe, just maybe, she's not the most potentially influential nominee Obama could have chosen. Would anyone be cynical enough to vote for her just because of that? Meanwhile, let Randy Barnett provoke thought with this. :: David M. Wagner 12:07 PM [+] :: ... The intrinsic merits of this rule aren't in question here. Personally, when I see a small-time lawyer advertising as "Jethrow Puddlewhacker & Associates," I have heretore been inclined to assume that the "associates" are his secretary, his computer, his coffee-maker, and the Ford pick-up he uses to get to the courthouse. But the organized bar feels differently -- somehow it feels the public needs to be warned against inadvertently consuming the services of solo practitioners, even though solos are some of the best lawyers around for the money (shameless promotion of friends here, here, and here -- notice that all these solo firm names are rule-compliant!) -- and, well, rules are rules. We certainly know what the fate of a Republican nominee who "broke the rules" would be.... This issue was dug up out of Sotomayor's Senate questionnaire by Eric Turkewitz on his New York Personal Injury Law Blog. It was subsequently "reported" by The New York Times with nary a hint that it was Mr. Turkewitz, or anyone else in the blogosphere, or anyone other than The New York Times, that had done the work. Apparently at the NYT, if you read it on a blog, that's reporting per se. See Credit is a Two Way Street, a post on Scott H. Greenfield's Simple Justice: a New York Criminal Defense Blog. A hat-tip to Walter K. Olson via Twitter. :: David M. Wagner 1:23 PM [+] :: ... :: David M. Wagner 1:22 PM [+] :: ... So here's me, NOT blogging about any of these things. :: David M. Wagner 7:33 PM [+] :: ... After today's Northwest Austin decision on the constitutionality of the Sec. 5 of the Voting Right's Act under the enforcement provision of the 15th Amendment -- or rather, not on the constitutionality of the Sec. 5 of the Voting Right's Act under the enforcement provision of the 15th Amendment, since the Court decided 8-1 to shrink from going there -- I open Blogger today in great depression to speculate that there is in fact only one conservative on the Court today ("most activist Supreme Court in history," ma fesse -- this Court wouldn't overturn a rock to find water in a desert), and that it is Justice Thomas. Many decisions worth commenting on are coming down right now, but I am currently crashing on an essay about education and the Constitution, and so will not be able to comment fully, if at all. This is awkward for me, because on the off-chance that I have any readers, I owe it to them to comment case by case, and also because this essay is about the constitutional position of home-schooling, yet I am becoming increasingly convinced of the view of public schooling in America expressed -- solely -- by Justice Thomas in the Bong Hits case. Perhaps this helps, more than it hurts, any possible theory concerning home-schooling, but my larger point today is: I do not understand why Truth-Tellers on the Court are like Vampire-Slayers in the Buffyverse -- only one at a time. :: David M. Wagner 4:41 PM [+] :: ... A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. Caperton was a lose-lose from the day it was filed. If it came out one way, it would mean judges "bought and paid for" by union bosses (I chill with NRTW lawyers from time to time, and they will be happy with this outcome) would continue to hear cases against union bosses. If it came out the way it in fact did, free speech in the form of campaign contributions would/will be chilled; i.e., the speech-defying McCain-Feingold project will be advanced. The separate dissents by Chief Justice Roberts and Justice Scalia dwell on a different problem altogether: the expansion of Due Process jurisprudence to cover something it had never covered before (with the narrow exceptions mentioned in the second paragraph of the Chief's dissent); in this case, judicial recusals. Recusal used to be discretionary. Now -- well, there are two ways to look at it. Either the Constitution began to cover recusals on June 8, 2009; or it always did and the Supreme Court only discovered this on June 8, 2009. Neither formulation speaks well for the intellectual seriousness of constitutional law. And this, in an opinion by Justice Kennedy. Who says Ted Olson doesn't know what he's doing, or worse, is being dishonest with his gay marriage lawsuit? In a year or two, the Supreme Court is going to claim to "solve" the gay marriage issue -- in favor, of course -- by a 5-4 vote with a Kennedy opinion. Get ready. (The Court's refusal to hear the Pietrangelo case is not to the contrary. Wrong case, wrong time, wrong aspect of the issue, wrong advocates.) :: David M. Wagner 2:26 PM [+] :: ... :: David M. Wagner 10:54 PM [+] :: ... While much of the right gears up against Judge Sotomayor, I myself (am I a little corner of "the right"? I blog: you decide) keep finding reasons to find her a remarkably friendly nominee, considering the President whose constitutional job it is to choose the Justice this time around. In what looks like a free-speech ain't-she-mean story, we learn that Judge S. "ruled against" a high school student who called school officials "d_____ bags" on her blog because they had interfered with some piece of fun or other that she was arranging. Said officials then disqualified her from running for school government. So then her mom, of course, sued. After all, what's the cost of litigation compared to that student government line on the college app? Even if they lose, it's a heckuva story for the app essay. Well, to begin with. First, on the merits, this case is squarely within Bethel v. Fraser, with strong backup as well from Hazelwood v. Kuhlmeier. A Circuit Judge is bound by Supreme Court precedent. The school district wins. The 2nd Circuit panel ruling was unanimous. E-Z. Second, the holding was not on the merits, but on a preliminary injunction, to which a plaintiff is entitled only if she has a strong chance of prevailing on the merits. Since Miss Avery Doninger didn't have a sheep's chance in a raptor's cage of prevailing on the merits, her request for a prelimary injunction bordered on the frivolous. But there's more. In days of old when knights were bold, parents who didn't home-school realized that delegating the education of one's children to others -- especially to the government -- is kind of an all-or-nothing deal, and that those entrusted with this difficult task can't really carry it out if they're constantly being micro-managed by parents whose children, by definition, can do no wrong. As a result, parents realized that their children can, in fact, do wrong, and as a result, gave school officials some slack, and their kids some discipline. Not any more. Now any conflict between Hunnybun and Authority is WAR, so Miss Doninger's mom sued. And got a perfectly correct result from our friend Judge Sotomayor -- well actually from Judge Livingston, but she was joined on the unanimous panel by Judges Sotomayor and Preska. I don't look for these examples; I just find 'em and comment on 'em. The esteemed Wendy Long may have been right when she called Sotomayor "a liberal judicial activist of the first order." As soon as Ms. Long finds a case by Sotomayor (as distinct from a snippet of a speech or two) that actually demonstrates this, I'm sure she'll pass it along to the rest of "the right." :: David M. Wagner 2:19 PM [+] :: ... "Abortions rights backers," the moribund paper of record would have us believe, are experiencing "unease" about Judge Sotomayor. She might even, they allegedly fear, be that fifth vote to strike down Roe. OK, what is this really about? That becomes clear in the third graf: “Discussion about Roe v. Wade will — and must — be part of this nomination process,” a NARAL spokesperson is quoted as saying. You see? This is about making sure that an explicit commitment about abortion becomes a canonical part of the confirmation hearing process. Justices Roberts and Alito avoided discussing abortion and/or Roe, and they relied on the precedent of Justice Ginsburg, who -- rightly, of course -- also declined to discuss it. NARAL is trying to reverse the Ginsburg precedent. Meanwhile, have a look at the Sotomayor decisions that, if we are to trust the NYT (maybe I should stop right there), are considered alarming by "abortion rights advocates": In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.So, to "aborton rights backers," people who allege police brutality don't even deserve a day in court if they are "anti-abortion protestors"? Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.So "abortion rights advocates" are down with forcibly deporting women to China where they face forced abortion or sterilization, or punishment for resisting these? In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”So the abortion-rights agenda means fighting that biological nature and that special reverence, and forcing dads to stay back in China even when the moms are admitted here as refugees? Hey, I read it in The New York Times...! :: David M. Wagner 10:28 PM [+] :: ... To Donohue, no surprise: if Judge S. is a Catholic, then she's the "right kind" of Catholic, meaning, the left kind of Catholic. Shifting gears, Donohue then makes another point: On a personal note, I must say that having spent four years in the 1970s teaching in a Catholic elementary school in Spanish Harlem, I loved working with the Puerto Rican people. Indeed, I feel some of the pride that Puerto Ricans rightly feel today. Good for them—this is their special day.Without endorsing ethnicity as a way of picking a Justice, I can get down with that. I'd rather it were Emilio Garza or Miguel Estrada, but hey you know, it's good to be in America. :: David M. Wagner 3:49 PM [+] :: ... The legal issue on Prop 8 was which side of a unique California line it falls on. It seems that when the California Constitution was written, its drafters, like constitution drafters in many other western states, wanted to include a plebiscitary amendment process. At the same time, they wanted to make it just a tad difficult for the people to use the amendment process to transform the mode of government utterly. So if, e.g., the people were seized with a sudden desire to turn California into a monarchy, that would be a "revision," not an "amendment," and would require more elaborate procedures than "merely" a vote of the people. So -- you were expecting this by now -- the argument made by Prop 8 opponents to the California Supreme Court was that once that Court itself had declared same sex marriage to be required by the equality principle of the California Constitution, as it did in 2008, undoing that decision is more like changing California from a republic to a monarchy than like, say, changing the Governor's term of office or something of that nature. It appears the California court did not agree. The Court also upheld the 18,000 same-sex marriages contracted between In re Marriage Cases and the enactment of Proposition 8. Observations: 1. Faced with a chance to split a difference, appellate courts will generally take it: compare Grutter/Gratz, Van Orden/McCreary. 2. If the meaning of Prop 8 is that the California Const never recognized same sex marriage, then it makes no sense to recognize the interim ssms; however... 3. If its meaning is that the CA Const recognized ssms for a few months but now no longer does, then recognizing the interim ssms does make sense. 4. In any case, people have a reasonable interest in stability in their legal status, even if their legal status is one that conflicts with natural law, good public policy, and popular will. Net net: I don't see the court's holding on the interim ssms as a biggie. Maybe someone will prove me wrong. :: David M. Wagner 1:21 PM [+] :: ... David Lat tweats that Judge Sotomayor should "thank" Jeff Rosen. Could he be referring to this column, for which my own hat-tip must go to Jordan Sekulow? Rosen's May 4 anti-Sotomayor piece concludes (nearly): Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"Sotomay-oh-may. I think the drift of the argument here -- I mean, the left's anti-Sotomoyor argument: we'll see in the next few days whether the meme develops, or whether they keep it quiet -- is that given the chance to appoint a true antidote to Scalia, and with the Best. Senate. Ever., Obama has kind-a sort-a blown it. Can anyone say Soutermayor? :: David M. Wagner 10:57 AM [+] :: ... So, with rubber-stamp strength in the Senate, he goes for a nominee with high enough ethnic oomph and low enough radical negatives to have gotten through even if the opposition were in control. Hmm. Maybe he knows/thinks he'll get another slot next year (off-year-election politics be darned). Maybe he thinks there's no way 2010 will produce a marginally more Republican Senate, or that 2012 might bring even more extensive changes. Hmm. Hmm. David Lat, you were one step too smart for this President! :: David M. Wagner 10:31 AM [+] :: ... :: David M. Wagner 2:18 PM [+] :: ... Fwiw, I think David Lat makes a good predictive case for Judge Diana Wood. Whether she would be a "WW III" pick is another question. In any case, the role of Senate Republicans should be clear. It will not be to stop the nominee (outside of some extreme nomination, or a nominee with important non-philosophical barnacles, just as, um, unpaid taxes). It will be to raise the visibility of the judicial role as a national issue. The confirmation process will be a teaching moment. Of course, you can't teach if you don't know, but someone in the Senate Republican Conference must know.... :: David M. Wagner 6:30 PM [+] :: ... :: David M. Wagner 4:37 PM [+] :: ... First, the obvious: Obama is not going to appoint someone who will make me happy, and one should avoid, for the sake of not looking like idiots, the kind of press-release bilge that the Nan Arons of the world routinely put out when a Republican president has a vacancy to fill, demanding a liberal nominee under color of "fairness," "constitutional values," or even -- don't laugh -- "balance on the Court," as if they wouldn't love nine Brennans if they could get them. That said, some names on the Fox list are more reasonable, and others more rebarbative, than others. Confining myself to this list, and postponing the details for later in the interest of making a timely statement (cf. Kennedy, Edward, 4th of July, 1987), here are the ones from the list that, it seems to me, would ignite World War III among Republican Senators and conservative groups. (I assume some of these are trial balloons. Consider me a needle.) Harold Koh Janet Napolitano Kathleen Sullivan Rosemary Barkett In a separate category are two state governors on the list: Deval Patrick of Massachusetts, and Jennifer Granholm of Michigan. Some will say state governors per se should not considered; I disagree. But there may be particular reasons why these candidates are risky choices. Patrick's popularity in-state has tanked, I hear, and for reasons. Granholm would mean yet another go-round of the "pro-abortion Catholic" controversy, which Obama may not mind, or may even desire; otoh he may be tired of it, coming after Biden, Notre Dame, and Sibelius. :: David M. Wagner 12:08 PM [+] :: ... :: David M. Wagner 11:23 PM [+] :: ... It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.The full story. :: David M. Wagner 4:34 PM [+] :: ... Very oily: first, send out Rahm Emanuel to say, no, prosecuting ex-DOJ officials for the legal memos they wrote is a bad idea. Then, say well maybe we'll do it after all, but it's up to the AG, and maybe Congress will want to do a bunch of stuff here, but we're not sure yet. Whether with economic or with legal measures, this administration seems to love uncertainty. Keep those you're dealing with guessing. The phrase "criminalization of policy differences" -- which first arose in the '80s, and with good reason, given how Congress was trying to deal with the Reagan administration, first over EPA issues and later over the Latin-American policy -- is at risk of becoming a cliche. But the message is clear: conservatives, don't go to Washington, or if you do, don't commit conservatism. It is easily shoehornable into some sort of criminal category, and Democrats are willing and eager to follow through. Senate Intelligence Committee Chairman Dianne Feinstein (D., Calif.) has said she would like to conduct her own inquiry. I'm sure she would. Note (in the linked WSJ article) Senator Leahy's use of the term "truth commission." That's the name for what they had in South African during the transition away from apartheid. That's what the Leahys of the world think is going on, and, more to the point, what they want you to think is going on. 2009 = 1945, and we're now in a Nuremberg phase. :: David M. Wagner 7:46 PM [+] :: ... :: David M. Wagner 11:30 AM [+] :: ... :: David M. Wagner 2:32 PM [+] :: ... :: David M. Wagner 11:30 PM [+] :: ... :: David M. Wagner 5:21 PM [+] :: ... :: David M. Wagner 11:55 AM [+] :: ... First, if you haven't already, read Eugene Volokh's post about slippery slopes, inspired by the Iowa decision. Some slopes are slippery, others aren't. This one is, regardless of past outrage by editorialists and gay activists over the other side's "absurd" slippery-slope arguments. I would just add: the Iowa decision and the Vermont were timed to influence, and to provide "emerging consensus" cover for, the California Supreme Court, which will use these events to support a finding that Prop 8 was a "revision" and not an "amendment," and hence not enactable through the initiative process. Not convinced? Just remember where you read it first. So, what's the next step? What, you had to ask? (For future reference: the usual euphemism for reparations is "transitional justice." Recognize it when you hear it.) And the religious liberty angle? Maggie Gallagher sums up the emerging fate of any non-supporter of same-sex marriage who doesn't want to go into the anti-same-sex-marriage biz full time (with all the litigation and security costs that this will entail): The deal they will be offered by the government and the culture dominated by same-sex marriage is: Mute your views on marriage so you may continue your other good works. Many good and brave people, to preserve their ability to save lives in Africa or to protect the poor in this country, will take that deal.Me -- I've got quite a few crusades going. I want to separate federal powers, keeping as much lawmaking as possible in Congress and out of the judiciary, and as much independence as possible in the executive. I want to end the unjust regime of withholding legal protection from human children because of their gestational status. I want to learn more and teach more and political philosophy and legal history. I want to protect and preserve marriage, and you know goddarn well what that is. And I want to keep going to the opera, whether people who recognize me there like it or not. I can't back down from any of these. :: David M. Wagner 2:49 PM [+] :: ... :: David M. Wagner 2:31 PM [+] :: ... :: David M. Wagner 12:42 PM [+] :: ... I mean, if the coup was illegal, then the monarchy is still in power in Hawaii, and Congress had no right to accept its application for statehood. Plus, there's the ambiguous but obviously anti-monarchical Guaranty Clause: surely no potential state can be assumed to desire statehood when the Constitution gives Congress power to change its state government. Perhaps statehood, plus the Guaranty Clause, cures the illegality of the coup, since the coup simply achieved, avant la lettre, what the Guaranty Clause would have empowered Congress to do anyway. :: David M. Wagner 5:26 PM [+] :: ... :: David M. Wagner 6:01 PM [+] :: ... :: David M. Wagner 4:46 PM [+] :: ... :: David M. Wagner 11:40 PM [+] :: ... Well, a personal story, for perspective. I was once (I think it was 1994) on a CourtTV interview show with Rep. Frank (whom I had never met in person), on the issue of the proposed ENDA bill. After the show, I started to talk to him, just to be civil-like, and also to clarify that I didn't entirely agree with the views of a third panelist on the show whose views he might reasonably have attributed to me. Ignoring my proffered hand, he snarled: "Don't try to be friendly with me. This is personal. You're trying to destroy my life." So I'm not too surprised at this latest tantrum, but at the same time, I don't think it helps either Rep. Frank or the public debate to make national events out of such incidents. That said, it may bear noting that the insult in the above-linked item is directed at several Justices, b/c the implication is that Scalia controls them or that they routinely vote with him. I just hope Rep. Frank knows more about banking than about the past several years of voting patterns on the Supreme Court. :: David M. Wagner 2:26 PM [+] :: ... :: David M. Wagner 5:06 PM [+] :: ... :: David M. Wagner 2:58 PM [+] :: ... :: David M. Wagner 5:22 PM [+] :: ... Phenergan's wake -- and the national economy's If you had to narrow down to a mere two the reasons why we moved from the Articles of Confederation to the Constitution, it would probably come down to the international weakness of thirteen separate nations or three smaller confederacies, and the economic mayhem wrought by conflicting regulations in different states. Foreign policy and interstate commerce -- the two things that would have to be determined at the federal level, even if nothing else was. Even as Obamanomics expands federal power in ways the Founders did not intend, the Supreme Court has started diminishing it, and vindicating state power in ways many of the founder were positively afraid of. The result will not be "federalism" -- it will be the concurrent hyper-regulatory state that New Deal Justices have dreamed of since they developed what has since been called the "presumption against pre-emption" in Rice v. Santa Fe Elevator Corp. in 1947. Perhaps the FDA honks. Perhaps there shouldn't be an FDA. Perhaps the FDCA is unconstitutional after all, as not being a regulation of interstate commerce, but rather of manufacture (I'm sure Justice Thomas would find this line of argument appealing). But short of such radical conclusions that are not even being proposed, FDA approval of labelling constituted, until this week, a safe harbor that made the interstate market hospitable to cutting-edge medicine. Now, FDA approval, complicated and demanding as it is, will not be enough: every medicine (and probably device as well) will also have to run the gantlet of trial lawyers representing injured clients (the benefitted majority not being in court) in front of non-medically-trained juries. These, not the FDA, will now impose standards -- and not, to head off a standard canard, just for their own states. No manufacturer can afford to produce for fifty different tort standards, each of which could change with the next case. A judgment in one state has nationwide impact, but without nationwide input, just as Maryland's taxing of the Bank did in McCulloch. What's up with Justice Thomas's concurrence? Remember, he renounced the Dormant Commerce Doctrine, back in his dissent in the Camp Newfoundland case in 1997; with it, he renounced (we now discover) the idea that the Court can or should do anything (at least under the Commerce Clause) to police the state-federal regulatory boundary. That's why for him, if compliance with both the FDA mandate and the state jury-imposed standard is physically possible -- no conflict. No conflict, no preemption. This leaves out of account whether Congress has "occupied the field" in a manner that should, in the interest of the U.S. as an economic unity, displace state policymaking. He has some good points about the Court's use of slender evidence to establish Congress's purpose, but even if one ignores (as one should) legislative history, internal administrative deliberations, and post hoc rationalizations of agency counsel, the very existence of the FDCA (assuming it's constitutional) says something that Thomas doesn't want to hear. Hamilton to Thomas. Hamilton to Thomas. Please pick up. Walter Olson's take at Overlawyered.com is here, with many valuable links, especially this essay by Michael Greve. :: David M. Wagner 5:33 PM [+] :: ... Summa decision: A government monument on government space is government speech; it does not turn the space in which it is placed into a "forum" requiring "equal space" for other, conflicting monuments. This case was argued, on behalf of the city of Pleasant Grove City, UT, by the American Center for Law and Justice. Thus, subject to Establishment Clause restrictions,* governments may set up (e.g.) Ten Commandments monuments, without thereby taking on an obligation to "accept" equally-sized monuments from every sect that may wish to deposit one. The opposite result -- devoutly wished by those who dislike public Ten Commandment monuments -- would have led to their "voluntary" removal, as the better alternative to turning public parks into monument dumping-grounds. A remarkably consensual outcome, too, though with multiple concurrences. *As to those restrictions, Our Hero has something to say in his concurrence (joined by Justice Thomas): Even accepting the narrowest reading of the narrowest opinion necessary to the judgment in Van Orden [allowing, against an Establishing Clause challenge, a Ten Commandment monument on the grounds of the Texas State Capitol], there is little basis to distinguish the monument in this case: Pioneer Park includes “15 permanent displays”; it was donated by the Eagles as part of its national effort to combat juvenile delinquency; and it was erected in 1971, which means it is approaching its (momentous!) 40th anniversary. :: David M. Wagner 11:40 AM [+] :: ... As a believer in the unitary executive, I'm skeptical as to whether Congress has power to vest the Census in the Secretary of Commerce in such a way that the President isn't allowed to interfere. But if a President does interfere, the electorate may and should draw its own conclusions. Another learned friend recalls that the first Bush administration became the target of a media squawkfest when a junior staffer in the White House merely asked someone at Commerce about the Census. It got to the point where the staffer was publicly denounced by the Secretary of Commerce and others. Adds my correspondent with grim humor: "I suppose the storm over Obama's plan will erupt any day now." :: David M. Wagner 4:43 PM [+] :: ... :: David M. Wagner 1:33 PM [+] :: ... Regent moot team returns with honors
:: David M. Wagner 7:03 PM [+] :: ... :: David M. Wagner 10:43 AM [+] :: ... a. defends himself b. assumes the victim posture c. auditions for Vatican Ambassador in the Obama administration d. a and c e. all of the above :: David M. Wagner 5:27 PM [+] :: ... :: David M. Wagner 1:18 PM [+] :: ... Colleague Craig Stern on standing: "Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue." 12 Lewis & Clark L.Rev. 1169. One finding: "[C]onstitutional standing has more to do with the meaning of “judicial Power” than with the meaning of 'Cases' and 'Controversies.'" :: David M. Wagner 1:25 PM [+] :: ... Hey, West: "What can brown do for you?" Plenty. :: David M. Wagner 1:24 PM [+] :: ... :: David M. Wagner 10:42 AM [+] :: ... :: David M. Wagner 10:06 PM [+] :: ... |
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