NINOMANIA

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:: Thursday, June 25, 2009 ::

Well, as a colleague and supporter of the American Center for Law and Justice, I probably shouldn't say much about today's decision concerning the 4th Amendment and school "strip searches"; nor about my doubts about expanding an already unwieldy rule-of-reason (really, rule-of-what-we-like-or-don't-like) 4th Am regime; nor about my firm agreement with Prof. Akhil Amar that the 4th Am NEVER contemplated judges (as opposed to juries) deciding what constitutes a reasonable search; nor about my increasing agreement with Justice Thomas that Tinker should be overruled immediately and that the idea that students have rights inside public schools does nothing but perpetuate misleading fantasies and sap support for home-schooling.

So here's me, NOT blogging about any of these things.

:: David M. Wagner 7:33 PM [+] ::
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:: Monday, June 22, 2009 ::

Northwest Austin: ThomasMania

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 [+] ::
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:: Monday, June 08, 2009 ::

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.

-- Justice Scalia, dissenting in Caperton v. Massey

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 [+] ::
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:: Friday, June 05, 2009 ::

This would be huge it were a Republican administration and nominee -- not the memo itself, which is defensible and is counterbalanced by other items in the nominee's record, but holding it back, regardless of who precisely was responsible for that. "Clerical error," yeah right.

:: David M. Wagner 10:54 PM [+] ::
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