NINOMANIA

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:: Monday, December 13, 2010 ::

Obamacare mandatory-purchase rule UNCONSTITUTIONAL, says U.S. Dist. Ct. E.D.Va.

With nothing worse than a regrettable split infinitive to dampen the news, Judge Hudson finds the Commerce Clause does not authorize Congress to command individuals to make an involuntarily entry into the stream in interstate commerce.

The opinion

:: David M. Wagner 12:56 PM [+] ::
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:: Tuesday, November 30, 2010 ::

Ed Whelan, at NRO's Bench Memos, explains why Judge Stephen Reinhardt, the archliberal who has drawn a slot on the 9th Circuit's panel to hear the appeal in Perry, the Prop.8/same-sex marriage case, is obligated to recuse himself. And no, it's not just b/c his vote is so predictable (that is no ground for recusal).

:: David M. Wagner 11:57 AM [+] ::
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:: Saturday, November 27, 2010 ::

LOLFoundingFatherz!

:: David M. Wagner 5:34 PM [+] ::
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:: Wednesday, November 24, 2010 ::

Summarizing Adarand: Strict scrutiny applies to all racial classifications (federal and state/local, openly invidious and apparently benign); but strict scrutiny doesn't mean you're strictly screwed.

:: David M. Wagner 4:30 PM [+] ::
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:: Saturday, November 20, 2010 ::

Via Above the Law: Justice Scalia's remarks at Federalist Society conference dinner

:: David M. Wagner 10:54 PM [+] ::
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:: Sunday, November 07, 2010 ::

I got a job with a large bank, and I never again needed to shovel manure. Corporations use something called PowerPoint instead.

-- Scott Adams, in today's Wall Street Journal

:: David M. Wagner 12:14 AM [+] ::
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:: Saturday, November 06, 2010 ::

George Mason Univ. School of Law [reverential pause] announces:

Professor Neomi Rao and Professor Jeremy Rabkin participated in a panel discussion held in New York on Friday, October 22, as part of the International Law Weekend conference of the American Branch of the International Law Association.

The topic of the conference, which was presented by the International Law Association and the International Law Students Association, was "International Law and Institutions: Advancing Justice, Security and Prosperity." The conference was attended by hundreds of legal practitioners, representatives of the governmental and non-governmental sectors, and law students.

Rao and Rabkin appeared on a panel entitled, "Responsibility to Protect: The Relationship Between Human Dignity and State Sovereignty." Joining them on the panel were Frank Chalk, Professor, Concordia University (History), and Director of the Montreal Institute for Genocide and Human Rights Studies; Fernando R. Tesón, Tobias Simon Eminent Scholar, Florida State University College of Law, and Co-Chair, ABILA Formation of Rules of Customary International Law Committee; and moderator Julian Ku, Professor of Law, Hofstra University School of Law.

Read more about the conference

:: David M. Wagner 6:47 PM [+] ::
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:: Thursday, October 28, 2010 ::

Match wits with the Tribe!

Progressives! Thanks to Ed Whelan, of NRO and the Ethics and Public Policy Center, you can now compare your pre-Sotomayor, pre-Kagan SCOTUS picks with those of Prof. Larry Tribe! Are you too a master left-activist? Did you make the same picks, or if not, did you make better arguments for other ones?

Here's what the master said.

Now, we at Ninomania did not do backflips over Justice Sotomayor's intellectual voltage at the time of her nomination, but, now that we've read a few of her opinions and participations in oral arguments, even we think "not nearly as smart as she thinks she is" is going it a bit rough, don't you? And "bully"? Meh, Court security is very tight, and as for oral argument, as long as both Scalia and Ginsburg are there, So-So will remain lucky to get a word in, much less dominate.

As for Lady Kaga, the "she'll wrap Kennedy around her little finger" meme has been out and about since the day Stevens resigned (maybe the Tribe letter was fueling it behind the scenes), and I can't help but think that with someone like Justice Kennedy, who does read his press clips, it will be counter-productive. How many "Kagan Smile Draws Kennedy Vote" 2nd-day folo stories can there be before Tony the K starts crossing to the other side of the corridor, literally and figuratively, to avoid her?

I'm also having difficulty with Prof. Tribe's planet on which popular attitudes on judicial issues are influenced by touring Justices. It's true that Justices Scalia and Breyer have something of a dog-and-pony show in which they go around debating things like the Court's use of international law, visibly enjoying each other's wit and wisdom. It's the best in con-law-nerd entertainment, but I doubt whether it drives either popular opinion or actual cases.

And Prof. Tribe thinks Justice Kagan will clean up in this arena -- how? With her intellect? This is indubitable, but it also led her, in arguing U.S. v. Stevens as Solicitor General, to make the argument that, under the First Amendment, the value of any and all speech can and should be subjected to a judicially-administered balancing test -- an argument that Chief Justice Roberts, writing for the Court and ruling for the defendant, called "startling and dangerous." (slip. op. at 7) I.o.w., her radicalism is not necessarily as "constrained" as Prof. Tribe's letter assumes.

With what, then? Her smile? Prof. Tribe needs to update his crushes.

:: David M. Wagner 2:07 PM [+] ::
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:: Wednesday, October 06, 2010 ::

Spent some time today reading briefs and the oral argument transcript in Snyder v. Phelps.

Phelps and his "Westboro Baptist Church": that's the group -- believed by some Christians to be a cult, in the no-kidding sense -- that, when not carrying "God Hates Fags" signs, likes to hold protests within sight and hearing of military funerals proclaiming to the bereaved parents how glad they are that the servicemember son or daughter is dead, and how their whole family is going to Hell b/c they support the war.

From their signs, one might learn that when God isn't busy "hating fags," he "loves dead soldiers." Because of their deadness, of course. The Snyders, the funeral of whose 20-year-old Marine son was accosted in this manner, sued the Phelpses and their "church" in tort, alleging "intentional infliction of emotional distress," a tort well-recognized in many states, though not at Common Law. Does such tort liability conflict with the Phelps's First Amendment rights?

Parameters:

1. Without advocating imminent lawless action, or expressing an opinion on the underlying morality, and out of the hearing of Four or any other number of Knights, I would speculate that American society would be the gainer if Phelps and his followers were taken out by Marine snipers. "You can run, but then you die tired." (Marines who read this are duly reminded that such orders can come only through the chain of command.) (Should such commands be forthcoming, please bring a videocam.)

2. Any rule allowing the tort of intentional infliction of emotional distress to trench on expressive activity has be formulated carefully. Otherwise, a lot of groups, especially but not exclusively on college campuses, will be shutting down the speech of others, flashing their "emotionally distressed" card. Eugene Volokh's amicus brief in support of Phelps, filed on behalf of that estimable organization FIRE, is right about this -- up to a point.

3. Otoh, Hustler v. Falwell already goes far enough -- arguably too far -- in raising a high bar against First-Amendment-adverse deployment of the i.i.e.d. tort. If Phelps's position -- or Volokh's, in support -- means that we have to protect Hustler's Falwell cartoon and Phelps's funeral "protests" as the price of actual debate, then we have lost sight of the boundary between debate and sub-articulate braying, and need to rethink it.

More as it occurs to me.

:: David M. Wagner 11:07 PM [+] ::
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:: Wednesday, September 15, 2010 ::

Employment Division v. Smith:

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

:: David M. Wagner 8:03 AM [+] ::
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:: Monday, September 13, 2010 ::

Just refreshed blogroll.

:: David M. Wagner 10:19 PM [+] ::
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Reynolds v. U.S.:

[A]ccording as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.

:: David M. Wagner 7:55 AM [+] ::
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Reynolds v. U.S.:

[O]n the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691.

:: David M. Wagner 7:50 AM [+] ::
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:: Sunday, September 12, 2010 ::

Rosenberger v. Rector: It's all about the NEUTS!

:: David M. Wagner 9:37 PM [+] ::
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:: Thursday, August 26, 2010 ::

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women — not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons . Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American."

-- Justice Scalia, concurring in Citizens United v. FEC

:: David M. Wagner 11:52 PM [+] ::
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:: Tuesday, August 24, 2010 ::

The school year has started at Regent!

:: David M. Wagner 4:37 PM [+] ::
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:: Saturday, August 21, 2010 ::

Debating the value-of-law-school debate

There's been a lot of journalism lately about -- oh btw, journalism, you know? the profession I left in favor of law b/c I wanted more honesty and integrity in my work? Nothing has occurred in those 22 years to make me think I chose wrong -- about how law school supposedly "ain't worth it."

Seeing attacks like this on my profession, and having always found cheerfulness and optimism to be the Christian virtues that cause me the greatest ascetical struggle, my inclination would have been merely to put up one of my favorite Demotivator posters: the one that says "Customer Disservice: Because We're Not Satisfied Until You're Not Satisfied."

Providentially, though, I have a colleague who's a much better Christian -- well, a lot of those, but I'm thinking today of Prof. Michael Schutt, who blogs at Redeeming Law. He has a post responding in detail to the above-cited attacks (with links to them, which is more than you'll get from me), and I commend it to all, especially in-coming students (an expression too laden with irony, in this context, to need further comment).

:: David M. Wagner 10:59 PM [+] ::
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:: Monday, August 09, 2010 ::

I've received a question from a distinguished reader about my post on Judge Walker's Perry decision. I received similar questions when I posted a link on fb, so evidently it's a question of a real ambiguity in my post, which I'm glad to have the chance to clarify. Also we can explore further the question: what kind of human relationships does the state have any interest in regulating, and why?

Here's the letter:

In your "Ninomania" post from yesterday on the topic of the fate of Prop 8, you commented that: "Marriage is the way society takes the fact that people are going to have love affairs, with or without the state, and, out of that fact, creates a system for seeing as well as possible to the well-being of the children that are going to result from those love affairs." Perhaps I am misreading this statement, but you seem to be saying that providing a stable context for procreation is the only interest significant enough to justify the state's sanction of the institution of marriage. Is that accurate? If so, I disagree.

I think we probably have similar views on the subject of marriage, but I do not believe that procreation is the only interest the state has in protecting marriage. The state has an interest in the stability of love affairs regardless of whether or not children result, because when a love affair occurs, people make living arrangements, plans, and promises that make breakups of any type (either a divorce of married people without children or a "divorce without the benefit of marriage" between people who have been living together) very messy. People engaged in love affairs begin to intermingle finances and make other choices with long-term consequences that are not so easy to unwind, even when there are no children. The state has an interest in the stability of these arrangements because there are a whole host of legal problems that arise when these affairs are unstable. Children make such instability even more problematic, but children are not a prerequisite to the messiness resulting from treating love affairs as temporary. Moreover, if procreation is the only justification for marriage, then why should the state allow infertile heterosexual couples to marry? What about a heterosexual marriage in which a woman has had a hysterectomy and has zero potential for natural procreation? Procreation is certainly a rational interest for distinguishing heterosexual marriage from homosexual marriage, but it is not the only justification for the state's protection of marriage.

Thanks for your time and anticipated response.

Zachary C. Larsen, Esq.

As I said, more than one person wondered whether I meant that procreation is the sole source of the state's interest in marriage. The question of the nature, extent, and limits of the state's interest in procreation is a worthwhile topic, but a different one. The state interest I'm referring to here is the state's interest in providing unique protections to the sole form of human coupling that will, if nature takes its course, produce children, and in arranging those protections such that the well-being of those children is maximized, within the boundaries of the state's capability of doing so.

I'm very aware, and concerned, that this argument could be seen as taking the form of one of those "won't someone please think about the children!!!" whines that too often substitute for argument when someone is urging the state to take on some function beyond its capability or proper scope. But -- surprise -- it turns out some social institutions (generally old ones, not the modern therapeutic state so beloved of progressives) really are designed to protect children; marriage first and foremost. Innovations that reorient it toward adult interests are bad -- unprogressive, in a non-ideological sense of that word -- to that extent.

Obviously liberalized divorce law accomplishes this adults-first/children-are-resilient reorientation of marriage even more directly that same-sex marriage. Not only do I admit this when I speak on marriage law -- I stress it. I don't think it adds to the friends I make, except perhaps among those who value consistency. But I really think it would be a hollow victory to stop same-sex marriage while preserving or extending the catch-and-release culture that modern divorce law has become.

Pro-ssm activists think, lazily, that tradition is a huge part of my side's argument. On this point, I think Ross Douthat nails an important point in his NYT column today (though I think he too overestimates the role that tradition, w/o more, plays in the anti-ssm argument). When it comes to protecting children, tradition can provide some guidelines for evaluating proposals for state action. Headstart, mandatory pre-school, child protective services with ever-more sensitive trip-wires and ever-more draconian powers -- things like these are proposed and enacted. though none of them pre-date the 20th century. Marriage as a gender-crossing, gender-bridging institution, with an intergenerational focus, is as old as civilization as far as we know (even accounting for varieties in its forms). There are cases in which it's hard for to distinguish the traditional from the non-traditional, but this is not one of them.

If the future of marriage is what Judge Walker thinks its present is and its past always should have been, and yet Great Society programs of the "won't someone please think of the children!!!" variety continue to grow, we will be moving in exactly the two wrong directions: buidling up government solutions of debatable utility and undoubted ill side-effects, while removing state support for a pre-state institution that aimed at many of the same goods.

Well then perhaps the really consistent people are the long-time libertarians, who see the same flaws I do in modern state-interventionist policies to "help children," but who hail ssm as an increase in freedom. This is paradoxical. Let's not forget that marriage is a form of regulation. Yes, there are all those goodgy "benefits," but, like most government benefits, they are attached to a form (however traditional) of government regulation. The specific complaint of Perry and fellow plaintiffs in California is that they were denied a marriage license. Don't libertarians (such as the IJ) usually litigate against licensing requirements? Isn't there "something wrong with this picture" when libertarians complain about not being subject to a licensing scheme?

(I am aware that this only scratches the surface of "why libertarianism does not lead to supporting ssm." For more, go here.)

This brings me to the second part of Mr. Larsen's question. More relationships that just marriage cause ruckus and tsuris when they disintegrate. (True.) So, isn't there a state interest in hedging about those relationships, too, with state protections? Here again, I would appeal to the general libertarian impulse against regulating things, an impulse that one does not have to be a full-time libertarian to share -- a mere libertarian streak, which I have, will do the job. It seems to me that Mr. Larsen's arguments prove too much, in terms of furnishing a basis for regulating a wide variety of (appropriately) unregulated human interactions. And then there's the forthcoming Leib book that I referenced in my original post, which seems to propose and defend just such a regime.

Marriage law is an exception to the wise and salutary general rule that human interactions ought generally not be regulated. We make that exception b/c of the unique gender-crossing, child-rearing, and generation-uniting functions of marriage.

Mr.Larsen also raises the by-now-classic (and I don't mean that snarkily) hypo of the infertile couple. Most of us agree (even if reluctantly) that the state can test for diseases before issuing marriage licenses but infertility is not a disease. It can't be transmitted from one partner to another (if I'm wrong on that, the analysis may change, but I'm pretty sure of it -- the exception would be a disease that has infertility as a symptom, but then we'd be talking in the first place about that disease, not about infertility); and by definition it can't be transmitted to offspring.

I'm willing to posit irreversible infertility if it's part of the hypo, but in the real world, they have it very oft that have it not -- functional infertility, that is. That's another reason why denying marriage licenses on this basis is much harder to defend that denying them on the basis of a disease in the proper sense.

So what about real, no-kidding, irreversible infertility? Equal Protection buffs know that the law is never required to legislate with absolute precision. If we're in the legislature and someone proposes a law to place proposed marriages between irreversibly infertile couples in the same category as proposed marriages between persons of the same sex -- i.e., they will not be recognized by the state -- I'll think about it, but I'll probably vote against it. In radical contrast to ssm, marriages between infertile opposite-sex couples would not be the start of a radical new social experiment. That would probably determine my vote.

:: David M. Wagner 3:24 PM [+] ::
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:: Wednesday, August 04, 2010 ::

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

To paraphrase a famous rebuke by Orwell to a great but formerly reckless gay poet, this could have been written only by a judge to whom marriage is, at most, a word. The judge can be only partly excused by the fact that he is the product of a society for which marriage has been at most a word for some four decades, give or take, and that the same society is full of go-along time-servers who seem to attain federal district judgeships.

It is too obvious to point out -- and was therefore of no interest to Judge Walker -- that marriage licenses are denied all the time to persons with certain diseases and to persons within certain degrees of consanguinity, all without "singling out people carrying disease x" or "persons with y familial relationship" for constitutionally invidious treatment. (Unless either or both is the next decade's constitutional cause celebre.)

Marriage is the way society takes the fact that people are going to have love affairs, with or without the state, and, out of that fact, creates a system for seeing as well as possible to the well-being of the children that are going to result from those love affairs. Love affairs that by nature are not going to produce children are not within the state's ken. We don't have big poofy celebrations, and a big bureaucratic state licensing system, when two people become friends, nor when two people (one may disregard gender for purposes of this statement) start dating. And really, that's good, b/c friends and daters have not yet publicly taken on obligations with which the state should concern itself. (But see Prof. Ethan Leib, who thinks friendships should receive, and could benefit from, "more legal attention.")

I approve today's comments by blogger Ace on this point:

The state does not have an interest in propagating love. It has an interest only in fostering stable families (meaning: with children). Straight marriage is directly implicated by this interest, since most married couples have children. Gay marriage is irrelevant to this interest, since few gay couples have children (and none, of course, naturally by the couple itself).

This is a Theoden-at-Orthanc moment. Saruman can still sound plausible, even rational, even while he calls "serpent" those who don't buy his lies. And that includes us. We do not believe that Judge Walker listened to the case put by Charles Cooper, or that he did and found it irrational.

But he matters little now anyway; even the Ninth Circuit is only a sideshow. The Supreme Court (meaning perhaps Anthony Kennedy personally) will have to decide whether it did such a good job in Roe and Casey "calling the contending sides" to consensus on an uncompromisable issue that it should try to do it again, or whether a Glucksbergian patience with the political process -- in the obvious absence of constitutional text or history supporting Judge Walker's decision, or the likely 9th Circuit decision celebrating it -- will best do what the Casey plurality claimed (however improbably) to be most interested in: preserving the nation's belief in the Supreme Court as a venue in which law and not politics prevails.

:: David M. Wagner 8:25 PM [+] ::
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:: Saturday, July 24, 2010 ::

Josh Blackman blogs up and comments on Prof. Randy Barnett's interview in the WSJ, on Raich, and the health-care individual mandate.

:: David M. Wagner 8:01 PM [+] ::
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:: Tuesday, July 20, 2010 ::

By way of a break from McDonald v. Chicago...

Jaffa, Bradford, Codevilla, and R. Stacy "The Other" McCain

My old Washington Times friend Robert Stacy McCain, now a major blogger, has a post at the The American Spectator's blog crediting me (accurately, I guess!) as instigator of a comment-fueled reminiscence about:

* Prof. Angelo Codevilla
* Prof. Harry Jaffa
* Prof. Leo Strauss, and "Straussianism"
* Jaffa's quarrel with Mel Bradford (which, let us remember, did not prevent Jaffa from strongly supporting Bradford in his bitterly contested and ultimately unsuccessful bid for the chairmanship of the NEH under Pres. Reagan. This was the only case I can think of where neocons clashed with paleocons and did not, i.m.o., have the better of the argument.)
* Jaffa's strong opposition to homosexual conduct (on which Bradford would presumably have agreed), and
* how certain other conservatives today (is one allowed to say "soi-disant" here?), playing off of Jaffa's philosophical commitment to "equality" (with which Bradford did not agree), argue that support for same-sex marriage is required by the Kirk-Kendall school of conservatism.

What kicked all this off was a widely acclaimed, emailed, and reTweeted article by Prof. Codevilla in the July-August American Spectator called "America's Ruling Class -- and the Perils of Revolution." When Angelo writes about classes and revolution, you may be sure he has books 7 through 9 of The Republic in mind.

Let me just add that it's great to be back in touch with Stacy, and that Angelo Codevilla (who probably doesn't remember me, but whom I've met at a few conferences), is a finalist for "smartest person I've ever met," up there with William Marshner, Richard Vigilante, Robert George and Russell Hittinger. (I've left law profs and legal colleagues off this list, to avoid invidious comparisons.)

:: David M. Wagner 3:22 PM [+] ::
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:: Tuesday, July 13, 2010 ::

"Unable to identify the Clause's full scope"

In describing the Court's 14th Am Due Process jurisprudence -- and here it's the Court speaking, not just the plurality -- the Court notes:

The Court used different formulations in describing the boundaries of due process. For example, in Twining, the Court referred to “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” 211 U. S., at 102 (internal quotation marks omitted). In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325. [Slip op. at 12]

O-o-o-o-kay, and those formulations (which those of us who have to traffic in substantive due process have in "macros" on our keypads) are more precise than what Petitioners and commentators offered in regard to the Privileges or Immunities Clause -- how?

Yes, we get it -- Petitioners and pro-P/I scholars have not identified the P/I Clause's "full scope." And so I have to spend another year telling students that in identifying the parameters of 14th Am Due Process, they have to work with crystal-clear, line-drawing formulations like "immutable principles of justice," "the very idea of free government," "so rooted...as to be ranked as fundamental," "very essence of a scheme of ordered liberty," and "fair and enlightened." Guys, I'm dyin' out here!

The only eye-of-newt in this cauldron that has any links to anything tangible is the portion of the Snyder formulation that alludes to "the traditions and conscience of our people." And -- of course, and not that I'm bitter or anything -- this is the only one of the above-mentioned formulations that the Court has specifically rejected as a tool of 14th Am Due Process analysis. Justice Scalia offered it, along with a methodology for deploying it, in his plurality opinion in Michael H. v. Gerald D., esp. footnote 6. Most of the Court declined to accept it, and majorities -- while reformulating it with no sign of understanding it* -- rejected it in Planned Parenthood v. Casey and in Lawrence v. Texas.

(*"The Court destroys the proposition, evidently meant to represent my position, that 'liberty' includes 'only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified,' ante, at 5 (citing Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989) (opinion of Scalia, J.). That is not, however, what Michael H. says; it merely observes that, in defining 'liberty,' we may not disregard a specific, 'relevant tradition protecting, or denying protection to, the asserted right,' 491 U. S., at 127, n. 6. But the Court does not wish to be fettered by any such limitations on its preferences....." Planned Parenthood v. Casey, Scalia, J., dissenting)

So the one formulation that isn't a sky-hook isn't realistically on the table; only the sky-hooks are, and we are asked to accept them, in place of P/I, because P/I would be vague, and we'd be "unable to identify it's full scope." (And this time even Justice Scalia prefers the guarenteed vagueness of Due Process to the presumed vagueness of P/I -- though one assumes he, at least, would not exclude the hard-edged, Michael H. version of tradition-based reasoning from the Due Process repertory).

I'll. Retire. To. Bedlam.

:: David M. Wagner 10:33 PM [+] ::
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Back to McDonald v. Chicago

The crucial passage in the plurality section of the opinion (the critical holding -- that the 2nd Amendment applies to the states through the 14th and disallows a ban on personal possession of handguns -- is of course a holding of the Court) dealing with the Privileges or Immunities Clause is, I think, this:

[P]etitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Now, as an explanation for those who belong to the admittedly-existing consensus that Slaughterhouse is a pile of [RRRRRRING! Hello? Yes, Dean! Yes, sir? Oh yes, I got your memo about language on the blog. Yes, I'll be more careful. Yessir. Thank you. Yes. You too, sir. Bye.] a pile of nonsense, this clearly will not do. [Paraphrasing:] "Petitioners and commentators can't specify the P/I clause's full scope, so we can't -- on the precise facts of this case that don't require us to determine its full scope -- correct what we ourselves virtually acknowledge to be grave error on our part." Fail.

But at the same time, I stand by my earlier view that this is not a slamming of the door on the 14th Am P/I Clause. Let's say Slaughterhouse is a dude, OK, and the Court's a chick, and Slaughterhouse is "in a relationship" with the Court, which it kind of is, in the sense that it's "good law" in the technical sense. Well, wouldn't you advise it to start hedging its bets? It may that only Justice Thomas wants to throw it over, but I'm not sensing any passion from the plurality -- just a disinclination to go through a messy breakup right now.

The option to go through Due Process rather than P/I renders the post-Slaughterhouse 2nd Am cases that were argued and decided under P/I, against applying the 2nd Am to the states, are not technically overruled but are rendered perfectly irrelevant, and are thus virtually overruled.

Funny thing about overruling. Sometimes the Court declines to overrule a precedent explicitly, yet adopts a holding that puts the precedent(s) onto the museum-shelf. Think Brown => Plessy. And McDonald => Cruikshank, Presser, and Miller. And sometimes the Court trumpets to the heavens that it's overruling a precedent, yet fails to adopt a holding that is plainly irreconcilable with anything that was plainly held in the precedent. As examples of this, I'm thinking about (though the matter is of course debatable) Barnette => Gobitis, and Lawrence => Bowers.

Long story short, I'd say Cruikshank, Presser, and Miller are now at least as overruled as Plessy.

:: David M. Wagner 8:17 PM [+] ::
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:: Sunday, July 11, 2010 ::

Souter's après-Court

A colleague sent me this link about the retired Justice's new half-mill spread in New Hampshire. Guess you can really sock away the doubloons as an Associate Justice when you don't have nine kids to put through college.

Anyway, this got me thinking about what else he might do. I could have stopped, but I didn't, and soon the idea emerged of a blue-collar restaurant chain -- SOOters!

Top ten marketing concepts for SOOters Restaurants:


10. Specializing in that old Yankee-WASP flavor -- it's left-hand-fork-lickin' good!

9. Nude dancing protected but not practiced due to secondary effects

8. Available: list of substance used in due process

7. Menu changes to reflect changing society

6. At Harvard Law School store: "Thanks, I'm here all week...."

5. All Mass. & Conn. stores have wedding facilities

4. Don't worry, we'll get the rust off the sullivan

3. Specialty drink: Hello Vodka It's Me Dave

2. Insist on state sovereign immunity? Then Hans must wash employees

And the #1 SOOters marketing concept:

1. Mock-Texas menu: "Eat THIS, Edith Jones!"

:: David M. Wagner 5:29 PM [+] ::
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:: Sunday, July 04, 2010 ::

A declaration on the Declaration

The United States is -- is, is, is: yes I know "states" is plural, but what part of "united" don't you understand? -- the only country I know of that dates its independence from the day it announced it, rather than from the day it won it on the battlefield (for us that would be October 19, 1781), or the day its independence was definitively agreed upon with the mother country (May 12, 1784 -- day of the exchange of the ratification instruments of Treaty of Paris; btw I'm supposed to know something about international law, but I confess I've never seen a "ratification instrument": is it like a vuvuzela?), or the day its constitution went into effect (sometime in mid-1788, since Virginia and New York put us over the 9 threshold at nearly the same time -- Prof. Gary Lawson has written on "when the Constititution was ratified -- and why it matters").

This focus on sheer declaration, as opposed to other perfectly reasonable yardsticks for independence, is really kind of kick-tush, if you think about it. Very American.

It's all the more remarkable because the Declaration didn't (don't look now, but it didn't) create the national entity called the United States of America that I insisted on at the beginning of this post. That came later, as the fruit of bitter experience in the War of Independence and under the Articles of Confederation. What the Declaration brought into existence -- and it could not possibly have been clearer about this -- was thirteen "free and independent states." They might just as well have been designated "sovereign nations in alliance," to quote Margaret Thatcher's formula for what the nations of the European Union ought to be, rather than the federal blob they are.

This fact has consequences for another bit of misguided piety that I hear quite often from constitutionalists and philosophers who are otherwise, i.m.o., among the wisest: viz., that the Declaration is our "charter" and the Constitution is our set of "by-laws."

How one can profess to admire the U.S. Constitution and at the same time relegate it to the piddling status of "by-laws" is quite beyond me. But even passing over that difficulty, the "charter"/"by-laws" theory cannot possibly have merit. A polity that sets up one document as its charter and another as its by-laws has to show some intention of doing so, or at least awareness that it is doing so. As we have seen, the Declaration did not even set up "the United States of America" as a single entity; from its point of view, no "by-laws" were needed, beyond what each state would legislate in its complete sovereignty.

That objection could be overcome if the record of the debates on the drafting and ratification of the Constitution were replete with evidence that the Framers unfurled their copies of the Declaration and said "OK now, what by-laws do we need to make this work, better than the ones we have?" Afaik, the record is devoid of the least intimation of any such conception by the Framers that this is what they were doing.

And who can blame them? The Declaration is not a charter for government, even at the most general level. Its famous second sentence states ideals whose depth can never be plumbed (and whose meaning can never be agreed on -- another ground for caution). But -- well, maybe Justice Kennedy is right and not all of us can read the Constitution at one sitting like he can. but all of us should be able to read the Declaration, and if you thought the specifications that follow the "candid world" clause give substance to the theory of rights that you find or think you find in Sentence Two, I hope you will soon learn better.

My point is not that the numerous "He has" clauses are without meaning -- only that their meaning is about Who Decides, not about Individual Rights.

Go on -- read them. You will find very few that specify individual rights that are beyond the reach of democratic government (which is what the Supreme Court, on and off since the 1880s, along with most of its academic courtiers, thinks rights have to be). Instead, you will find affirmations that democratic government, located among the American people and not the British, and using familiar Common Law principles rather than new-fangled gobbledigook "unacknowledged by our laws," is the only legitimate mechanism of decision.

This opens up one avenue for holding that the Constitution does "implement" the Declaration, in a sense. It answers "Who Decides" questions: it allocates jurisdiction. But it does so within a newly-created quasi-federal system ("neither wholly national nor wholly federal," as Madison would later explain) that was not at all what the signers of the Declaration were trying to accomplish.

The Constititution was a great idea anyway, but it's not what we celebrate on the Fourth of July, and we don't have to build artificial links between the Declaration and the Constitution to make the Declaration worth celebrating. It announced, unprecedentedly, a severance between a mother country and colony; it announced (with inevitable sacrifice in terms of precision) a political philosophy broad enough to include the wide range of beliefs (from Puritan to Enlightenment, with a few Catholics too) within the American leadership class; and it made some stern Who Decides pronouncements.

Not a bad day's work, even if the great achievement of the Constitution came -- entirely -- later.

:: David M. Wagner 5:33 PM [+] ::
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:: Wednesday, June 30, 2010 ::

Welcome to the reader from Vilnius! When I saw that datapoint on the map, I thought, ah, maybe St. Petersburg, but... ah well, as Varlaam says:

Литва ли, Русь ли,
что гудок, что гусли,
всё нам равно: было б вино...

:: David M. Wagner 9:48 PM [+] ::
...

Just tuned in to the hearings on Lady Kaga (blogger David Lat's term) on CSPAN -- and have been reminded why it's such a better use of my time to blog up Supreme Court opinions than Supreme Court hearings.

What kind of opposition party do the Republicans think they're being, when all they do is orate? The most radical nominee any Democratic president ever dreamed of sending up would have nothing to worry about as long as all he/she has to do is to sit there and look grave while drawling Claghorns make speeches and let the viewing audience know that they have cute staffers.

Coburn -- who at least doesn't have a southern accent, thanks be to almighty God -- had a great point when he asked Kagan whether the Commerce Clause gives Congress the power to dictate people's dietary habits. She parried it artfully by saying that would be a dumb law, and -- good pretense of judicial restraint here -- a Justice shouldn't strike down a dumb but constitutional law just because it's dumb. Yes, that's what Justice Thomas said in Lawrence v. Texas -- in dissent.

Needless to say, Coburn didn't pick up on that. Neither did he pick up on what he could have been expected to pick up on, namely, his own question. Rather than come back with "Yes, but would it be constitutional?" he picked up a copy of something venerable-looking (could have been a very fat Constitution or a very thin Federalist Papers, he didn't say) and started in on a 4th of July speech. Did he ever force an answer to his question? If so, the YouTube clip I saw ran out before he did.

I've already specified why I'm not going to oppose Kagan actively (see post of June 19). But even if I wanted to, what would be the point, with an opposition party as dim and listless as this? When the Democrats opposed Bork (admittedly, with a majority in the Senate, but also with a lot more brains and determination) they asked him brief questions -- and let him give long, scholarly answers from which soundbites could be chopped and clipped for the next day's outraged headlines and anguished commercials. That's the way it's frickin' done, people, when you're both capable and serious, which you're obviously not.

Then --- Leahy talking about "neither right nor left" and how he's glad he voted for Stevens and O'Connor even though "they were appointed by Republican Presidents" -- would have made me visit the salon of Monsieur Ralph by now, if I'd had eaten any thing since 7 am. Adjournment is your friend.

:: David M. Wagner 5:30 PM [+] ::
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Here is a better link for Prof. Randy Barnett's WSJ op-ed on McDonald. H/t: Randy! And leave it to CATO to make sure its scholars' op-eds are available to the public! ;)

The reason you should read this is that it details why the Thomas concurrence not only provides a scholarly analysis of the 14th Am. Privileges or Immunities Clause issue, but also why it makes that clause no longer ignorable.

:: David M. Wagner 4:29 PM [+] ::
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:: Tuesday, June 29, 2010 ::

Tomorrow, more about McDonald, the gun case. In the meantime, Prof. Randy Barnett had an excellent op-ed on it in today's WSJ. Unfortunately Rupert Murdoch wants you to pay to read it online, so instead, I'm linking to a shorter version that Randy posted on SCOTUSBlog.

My own views will be with Randy, insofar as the P/I clause is a better vehicle for incorporating the 2nd Am -- and indeed the rest of the B of R -- than the Due Process clause. I also tip my hat to him for noticing that, since Justice Thomas's vote was necessary to make five votes for the outcome, his position on the P/I clause is no longer ignorable.

I will, however, defend Justice Scalia from charges of being unprincipled on Substantive Due Process. Precedent may be overrated, but it's not unprincipled. There is also a principles distinction (recognized even in "Footnote Four") between "fundamental rights" s.d.p. based on mere subjective ideas on liberty, and "fundamental rights" s.d.p. based on constitutional text.

EDITED TO ADD: Didn't really mean to hate on Murdoch up there. As long as his mission in New York is to screw over the New York Times, we're on the same side.

:: David M. Wagner 11:42 PM [+] ::
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"As an historian, McConnell's a good lawyer." So once said Prof. Mark Tushnet about Prof. and former Judge Michael McConnell, in regard to his scholarship on the Free Exercise Clause. And as a spin-doctor on the morning after an asteroid-hit, killed-the-dinosaurs Supreme Court loss, McConnell is still a good lawyer.

As a further comment on that case, Christian Legal Society v. Martinez, I've posted the following on another forum, and feel it is appropriate for reposting here:

I've got some more dark for you, if you want to keep on whistling in it.

The Court didn't merely decline to review the Nondiscrimination Policy in favor of reviewing the All-Comers Policy instead: it declined to believe that Hastings had ever *had* the Nondiscrimination Policy. On remand, CLS has a chance to show that the All-Comers Policy was not applied neutrally, but no chance to argue that any other policy was applied, even though that was clearly the case.

As Alito points out -- not only was the All-Comers Policy made up for purposes of this litigation -- it's not even Hastings's current policy. The new policy supposedly allows reasonable discrimination based on the purposes of the group. Yet if that were being applied even-handedly to CLS, the case would have been mooted out. On remand CLS may argue that the policy of reasonable membership criteria must allow it to exclude fornicators and active gays. Hastings will say that accommodating such preferences is contrary to public policy. We know how *that* one comes out.

Btw, this year, at its annual Supreme Court Round-Up, the Federalist Society is evidently embarrassed to present Ted Olson as explicator-in-chief, as it usually does. So who is it presenting instead? Gregory Garre, the W-era SG who argued for Hastings College in the CLS case. Rhymes with "How screwed we arre...."

:: David M. Wagner 11:14 PM [+] ::
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:: Monday, June 28, 2010 ::

More on CLS v. Martinez

Remember Tom Lehrer's "The Folk Song Army"?

We are the Folk Song Army.
Everyone of us cares.
We all hate poverty, war, and injustice,
Unlike the rest of you squares.

Thought I caught a little tribute, if not to that song, then at least to its "protest" against the notion that indignant liberals have a natural monopoly on moral outrage and the social stature that goes with it, in a passage in Justice Alito's dissent.

It's when he's demolishing, one by one, the Court's recitation of Hastings College of Law's possible reasons for imposing an "all-comers policy" on its registered student organizations, notwithstanding any 1st Amendment featherruffles this may cause. One of those proffered reasons is that the school, "by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the development of conflict-resolution skills." Dissent, slip op. at 29, citing Court slip op. at 23.

With Hastings playing the role of the Folk Song Army, thinking it hates poverty war and injustice and values diversity tolerance cooperation learning and development of conflict-resolution skills unlike the rest of you squares, Alito goes on:

Our country as a whole, no less than the Hastings College of Law, values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through “[a] confident pluralism that conduces to civil peace and advances democratic consensus building,” not by abridging First Amendment rights. Brief for Gays and Lesbians for Individual Liberty as Amicus Curiae 35.

Alitomania: catch it.

And a shout-out to Gays and Lesbians for Individual Liberty. (Curia diversos amicos facet.)

:: David M. Wagner 9:18 PM [+] ::
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OK, let's turn to Christian Legal Society v. Martinez now. I'll start with the Alito dissent, cos it's my blog & I can do whatever I want (cos I'm not on the Hastings College of Law campus). "SAA" is loaded for bear:

The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions “do not wish to . . . lend their name[s].” Brief for Respondent Hastings College of Law 11; see also id., at 35. [Ellipsis in original]

So what about those stipulations, the one the Court's opinion by Justice Ginsburg said it was "unseemly" for Judge McConnell, representing CLS, to try to "escape"? (Slip op. at 11) Alito and the other dissenters (Chief, Scalia, Thomas) reply:

I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given by Hasting at that time was that the CLS bylaws did not comply with the Nondiscrimination Policy. See App. 228–229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004 [when Hastings denied Registered Student Organization, and its important attendant privileges, status to CLS].

The difference between the "all-comers policy" and the written "Non-Dicrimination Policy" is that the latter is (1) what CLS was originally denied recognition under, and (2) a written policy under which sharp-elbowed viewpoint-based and ethnic-based organizations were allowed to exclude members who didn't advance their organization's goals, but (3) under which religious organizations received no protection (despite a string of SCOTUS decisions affirming that discrimination based on religious viewpoint = viewpoint discrimination) and (4) under which no organization until CLS had ever been denied -- an enforcement pattern that strongly suggests something other than neutrality.

The "all-comers policy," on the contrary, was a hastily jerry-rigged affair, invented during the present litigation, first appearing in the record in a depo by the Hastings Dean, and hastily (so to speak) applied by the College to all the other RSOs while this litigation was on-going. According to the majority, it is by the litigation-driven "all-comers policy," not the Nondiscrimination Policy that was actually applied to CLS, that Hastings's policy must be judged.

The dissent (in what the majority labels "a one-sided summary of the record evidence," fn. 29) does not buy it:

This [the "all-comers policy"] is not the policy that Hastings invoked when CLS was denied registration. Nor is it the policy that Hastings now proclaims—and presumably implements. It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010. Why we should train our attention on this particular policy and not the other two is a puzzle. But in any event, it is clear that the accept-all-comers policy is not reasonable in light of the purpose of the RSO forum, and it is impossible to say on the present record that it is viewpoint neutral.
...
The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason that a state-imposed accept-all-comers policy would violate the First Amendment rights of private groups if applied off campus. As explained above, a group’s First Amendment right of expressive association is burdened by the “forced inclusion” of members whose presence would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Dale, 530 U. S., at 648.
...
There can be no dispute that this standard would not permit a generally applicable law mandating that private religious groups admit members who do not share the groups’ beliefs. Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.

Nonetheless. The majority concludes with:

Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.

Let us pray. Erm, is that cool with the Nondiscrimination Policy? The "all-comers policy"? Whatever policy Hastings has this week?

:: David M. Wagner 7:50 PM [+] ::
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Free Enterprise Fund gets even better, this time in a part where petitioners do not prevail. On the issue of appointment power, as distinct from the removal power, the Court adopts a position taken by Scalia and three others in his "scathing concurrence" (my term) in Freytag v. Commissioner:

But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” (e.g., State, Treasury, Defense) listed in 5 U. S. C. §101. In Freytag, 501 U. S., at 887, n. 4, we specifically reserved the question whether a “principal agenc[y], such as . . . the Securities and Exchange Commission,” is a “Departmen[t]”under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a “Departmen[t],” see id., at 918 (SCALIA, J., concurring in part and concurring in judgment), because it is a “freestanding, self-contained entity in the Executive Branch,” id., at 915.

Respondents urge us to adopt this reasoning as to thoseentities not addressed by our opinion in Freytag, see Brief for United States 37–39; PCAOB Brief 30–33, and we do.

Now, for the next step: to adopt the rest of the Freytag concurrence's position, namely, that no entity that is not an Article III court can exercise "the judicial power of the United States."

:: David M. Wagner 5:01 PM [+] ::
...

Free Enterprise Fund, slip op. at 25:

The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23–31.

By "such positions," the Court is referring to "other" independent agencies whose members are removable only by the (tenure-protected) heads of still-other independent agencies.

I quote this sentence to ask whether the Court is aware that the phrase "resolve their status," at least according to Tim Powers's great genre-bending Cold War/"fantastorical" novel Declare, is spy-talk for "kill them"! E.g., spies who have completed their jobs sometimes vanish, for fear that, given how much they know, their superiors will decide to "resolve their status." If there are any agencies directly comparable to the PCOAB, I agree it would be better to "resolve their status." Come to that, I think the "status" of Humphrey's Executor should be "resolved."

(Hat-tip here to Eve Tushnet for making sure that, reading-wise, I always eat my dessert, and not just my peas!)

:: David M. Wagner 4:11 PM [+] ::
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Remarkable that Free Enterprise Fund is a unified opinion from start to finish! I was sure that if any opinion today would be fractured, it would be this one (along with McDonald, which partly was).

The Chief, writing for the Court, even prevented Scalia from writing a jeremiad-concurrence about Humphrey's Executor and its woeful progeny. I would guess he achieved this by merely noting Humphrey's, Morrison, et al, not endorsing them. In fact the opening of the opinion might be paraphrased: We stated the basic rule of the president's removal power in Myers. We announced limits to that power in Humphrey's et al, but today, faced with a new situation, we announce a counter-limit, effectively limiting Humphrey's while declining to revisit it:

The parties do not ask us to reexamine any of these precedents, and we do not do so.

We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States.

We hold that such multilevel protection from removal iscontrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more thanone level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is insteadcommitted to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagreeswith him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.”

:: David M. Wagner 11:39 AM [+] ::
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WHOA!! Separation-of-powers geeks -- and that should be all Americans, especially those who like to call themselves constitutionalists and go to rallies where there are George Washington impersonators -- rejoice!

In Free Enterprise Fund v. PCOAB, the Court has actually found that a set of federal bureaucrats are "inferior officers" within the meaning of the Appointments Clause, and that the Constitution prohibits giving them protected tenure in office! Only getting the first reports now, but this sounds like the first setback for the Humphrey's Executor outrage since it was handed down in 1935! And all the right people -- that is, the left people -- are dissenting!

Regent 1Ls: this will totally be in my Con Law I course next spring!

:: David M. Wagner 10:52 AM [+] ::
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Bilski, the patent case, is a wishy-wash. This particular business process can't be patented, but there's no categorical prohibition on patenting business process. Only clear result: further gajillions in billable hours for patent lawyers.

:: David M. Wagner 10:50 AM [+] ::
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CLS is a loss. Ginsburg writes, as SCOTUSBlog predicted. Narrow, however: remand to 9th Circuit; CLS still has a case if Hastings applies its policy "selectively."

Remember that the oral argument in this case began with the Justices expressing confusion about the most basic facts in it, and proceeded with McConnell, arguing for CLS, fending off accusations of trying to back-peddle from some awfully lethal-sounding stipulations.

Alito writes the dissent, joined by Roberts, Scalia, and Thomas. Oi vey. Object lesson in picking cases with good facts, comma, importance of?

:: David M. Wagner 10:44 AM [+] ::
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More about McDonald: The majority leaves the issue of the Privileges or Immunities Clause substantially untouched. In a section that is plurality only, the Alito opinion (with Scalia on board) says there is no need here to revisit the P/I Clause and the Slaughterhouse Cases, since the Due Process Clause is the established way in which the Court has long applied the Bill of Rights to the States.

Precedent to one side (and yes, I enjoy saying that!), this makes no sense, for reasons Justice Scalia has eloquently explained on other occasions, but it faithfully reflects his line of questioning at oral argument in this case.

Justice Thomas concurs separately, making the Scalian argument -- what part of "process" don't you understand? (I paraphrase) -- and going on to argue that the P/I Clause is the proper 14th Am. vehicle for incorporating the 2nd Am.

There will be debate on whether or not this decision slams the door shut on reviving the P/I Clause, with the affirmative using a sort of J.R. Ewing argument: "Barnes, if you didn't get me this time, you never will." I stand by my statement: substantially untouched. The majority basically left the P/I Clause alone; the plurality portion of the Alito opinion used a the low-octane "no need to revisit" grade, rather than "plus" or "super."

:: David M. Wagner 10:27 AM [+] ::
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Justice Alito has written McDonald, holding that the 14th Am. makes the 2nd Am applicable to the States!

The first part of the opinion is a scholarly overview of the Court's past practices in applying the B of R to the states (or not) under the P/I Clause and/or the Due Process Clause.

The Court distinguishes an "individual rights" strand and a "deeply rooted in history and tradition" strand in Due Process, and locates the gun right in the former. This is truly defiant toward to Euro-progressive 'tude on guns, b/c it swats away the claim that American jurisprudence on guns is an American local peculiarity, merely part of our "culture." The Court is staking out a claim that insofar as some sector of international jurisprudence denies that the human person has an individual right to self-defense, that sector is wrong.

:: David M. Wagner 10:12 AM [+] ::
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:: Sunday, June 27, 2010 ::

Before Monday's onslaught of end-of-year SCOTUS bombshells, this blog would like to extend deepest condolences to Justice Ginsburg and her family on the passing of her husband, eminent tax attoreny Martin Ginsburg. RIP.

:: David M. Wagner 11:27 PM [+] ::
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:: Friday, June 25, 2010 ::

I haven't posted until now on Doe v. Reed -- the referendum-signature public-disclosure 1st Am case, decided yesterday -- because I've been contemplating the radical divergence between the extreme of the Scalia position (concurring separately) and the Thomas position (a lone dissent).

First of all, we all know why we're here. Fifteen years ago the Court decided a case, McIntyre v. Ohio Election Commission, that is distinguishable yet sufficiently similar to Doe so that the issue of associational privacy in political debate would not have needed to be revisited had not one political interest, amid all the others in our society who also feel passionately about their causes, felt entitled to use bully tactics to punish those who agitated in the opposite interest.

Yet only Scalia alluded to this -- and he is the only Justice who would have given that political interest what it wanted in this case, arguing that participation in a ballot initiative is not speech at all but legislation, and thus inherently suited to be done in public. One wonders if there is much carrying of him on shoulders, or at least some courteous tips of the hat, in the gay blogosphere today. I've done a quick search and haven't found any.

McIntyre decided, over a Scalia dissent (joined by Rehnquist), that there is a 1st Am right to engage in anonymous leafletting. Thomas concurred, arguing from a different set of time-consecrated practices, namely, the lively anonmyous pamphlet wars that sustained the American Revolution and constutitional debates. In McIntyre, and again in Doe, Scalia's argument against 1st Am protection for the activity in question was based substantially on "longstanding practice" -- in these cases, bans on the activity in question (anonymous leafletting, anonymous voting) that were in place on and off since the late 19th century and were never 'til now thought to violate the 1st Am. In the absence of clear constitutional text to the contrary, such practices are constitutionally probative to Scalia (and were so to Rehnquist, and usually are to Thomas: see the Scalia dissent in Lee v. Weisman).

Doe v. Reed reached the opposite result from McIntyre in regard to mandatory disclosure of names and addresses of referendum petition signers -- sort of. That is, the Court held that legislative petition-signing is speech, agreeing pro tanto with Thomas, but that no general rule against forced public disclosure of signers' names and addresses should be announced; rather, referendum advocates should petition courts for such protection on a case by case basis.

Such was the opinion of the Court, by Chief Justice Roberts -- and it is plainly wrong. It occupies an untenable middle between two convincing (though irreconcilable) opposites. I shall now explain.

Justice Thomas's lone dissent argued that, given that 1st Amendment interests in freedom of political association that the Court has long protected, and that the majority acknowledges are at stake in this case, the 1st Amendment must be construed as implying a blanket ban on forced disclosure to the public of the names and addresses of those who sign petitions for initiatives and referenda. Otherwise, this form of political participation and expression -- it is both, Thomas believes (and so does the rest of the Court, but not Scalia) -- will be chilled.

Justice Scalia argues that the Court has sadly saddled lower courts with yet another balancing test (he and Thomas agree in deploring this), and that the bright-line, no-balancing-needed rule should be one that sees citizen participation in referenda as legislation rather than expression. E.g., at the federal level, votes in Congress must be on the record, and no one has ever imagined that this violates congressmens' 1st Am rights. So when citizens take legislative power back into their own hands, states are free (though they don't have to, of course) to treat them as the full equivalent of legislators.

And what about the dangers of intimidation and reprisals by angry activists on the other side? Scalia says, basically, suck it up:

[I]t may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Both the Scalia view and the Thomas view are cogent and summoning. One or the other of them must be right: the 1st Am either protects ballot initiative participation or it doesn't.

But the opinion of the Court is plainly and disastrously wrong -- and no one makes clearer why this is so than Justice Alito in his concurrence (though he nonetheless joins the Roberts opinion, perhaps realizing that leaving it as a plurality opinion would only make a bad situation worse).

The Court, notes Alito, has announced a 1st Amendment right for citizen participation in ballot initiatives, but has failed to announce a judicial scheme for protecting that right. It accords such respect to the state's asserted interests (more on these in a later post, I hope) that district and circuit judges now have no guidance, and potential petition signers have no assurance that their names and addresses will be kept private. Alito's solution would be to give lower courts a test to use that puts the thumb squarely on the scale for the citizen's 1st Am interest.

In other words, Alito's position differs only minutely from Thomas's. Thomas would announce a strict 1st Am rule up front; Alito would announce a balancing test up front but than adjust the balance so that it favors the 1st Am interest. Thomas's approach is both more coherent and more protective of 1st Am interests, but perhaps Alito thought that, by writing from "within" the majority opinion, he could influence how it is applied.

Note too that while the majority says it is applying "exacting scrutiny" to the state's asserted interests, Alito offers such a long list of less-restrictive means that one is forced to conclude that he is applying good old strict scrutiny.

Now, Scalia and Thomas, in this case -- they offer us bright-line rules. Just -- opposite ones!

EDITED TO ADD: In an earlier draft of the above, I mistakenly had Alito providing the "fifth vote" the make the Chief's opinion the opinion of the Court. That was because I mistakenly thought Justice Sotomayor's concurrence (one of several "Yeah, me too" concurrences in this case, possibly intended to reinforce the standardless balancing test that the majority supplies, rather than the 1st-Am-interest-tilted one that Alito favors) was separate. In fact she also joins the Roberts opinion, giving that one six votes in all -- and making it harder still to understand why Alito's reasoning does not propel him to join the Thomas dissent.

:: David M. Wagner 9:37 PM [+] ::
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:: Thursday, June 24, 2010 ::

More preparations for CLS armageddon

I wrote a rather confused blogpost here (scroll down, after enjoying the Douglas/IOLANTHE business if you like) about the rather confused oral argument in CLS v. Martinez (decision expected next Monday; see post immediately infra).

It will be interesting -- if, as predicted, the Court's opinion is written by either Justice Stevens or Justice Ginsburg -- to see whether, in upholding Hastings College's policy of withholding "registered student organization" status from organizations whose membership criteria are "discriminatory," the Court either explains why Hastings would have to allow anti-Muslim students to take over a Muslim student group (a hypo advanced at oral argument by Justice Alito), or else, explains why its holding does not compel such a result, since a "believing Muslims only" policy would surely be "discriminatory" under any imaginable rationale that would have Hastings College winning this case.

It will also be interesting to see whether the Court shows any sign of agreeing with Justice Breyer (to cite one of his hypos from the oral argument) that Hastings's policy would force it (if applied consistently; i.e., non-discriminatorily) to bung Orthodox Jewish services off its campus, though Reform and Conservative Jewish services would remain welcome: Orthodox Jewish worship separates men and women, and that's discriminatory, don't you know, so -- can't let it happen on the College's dime, am I right? Am I right?

:: David M. Wagner 11:37 AM [+] ::
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To those waiting to find out whether the Court will hold that business process can be patented: you'll have to wait until Monday. Fwiw, SCOTUSBlog is sure (based on who has and has not written opinions from the Court's last round oral arguments this year) that Justice Stevens will write the opinion in the business-processes case (Bilski v. Kappos).

OMINOUS FOR RELIGIOUS LIBERTY: SCOTUSBlog also predicts that either Justice Ginsburg or Justice Stevens will deliver the opinion in CLS v. Martinez next Monday.

BUT MAYBE YOU CAN SHOOT BACK: They're also predicting that Justice Alito "has" McDonald v. Chicago, the 2nd-Am-apply-to-states case.

(Btw, I read these predictions in SCOTUSBlog's live-blogging feed from the Court this morning, and not all of them are still up. Their privilege. I'm just saying what I saw. They're the ones who go Annales over who's written how many opinions from which sitting, and that sort of thing. And we love them for it.)

One more note on the CLS case before the darkness descends: a shout-out to the CATO Institute for filing an amicus brief (by Richard Epstein) on behalf of CLS, along with the numerous but more predictable organizations that also did so. If you think I always agree with CATO's Supreme Court amicus positions, you'd have to think again, but I always admire the rigor and energy of this organization's defense of freedom.

:: David M. Wagner 10:55 AM [+] ::
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:: Monday, June 21, 2010 ::

So, what have we got in Holder v. Humanitarian Law Project? (See earlier posts: this is a summary.)

We've got: foreign organizations that might be called "dual-use": some of their activities are terrorist, others are not; and American citizens who sympathize with them and want to help their non-terrorist goals, in ways that are speech-like, though also susceptible to more concrete and specific definitions.

Congress might have banned such activity in a scattershot way that would indeed have violated the First Amendment. But instead, it restricted the ban to:

* a subset of defined (though admittedly speech-like) activities, and then banned them --

* when, but only when, they are carried out in conjunction with foreign terrorist organizations, not when they are done independently; and even this --

* only when said organizations have been labeled terrorist through adjudication, not through some bureaucrat's pen-tick.

Still a 1st Am violation? Get a life.

If it is, then -- see the tail end of Part V of the majority opinion -- the 1st Am would have protected U.S. citizens who might have gone to Germany or Japan during World War II to counsel Axis policy-makers (who, after all, have civilian as well as military goals) on ways to use international law to promote peace (precisely one of the activities in which HLP wanted to engage with their friends). Congress might indeed have allowed this, but the 1st Am would certainly not have compelled it to.

HLP's desired conduct, unlike the conduct in the above hypo, cannot be called treason, since we are not at war with the PKK or the Tamil Tigers. But the point where the law of treason leaves off is not the point where the 1st Am kicks in, with Congress powerless to protect national security in between.

:: David M. Wagner 5:36 PM [+] ::
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The Court also sees this case, not only as Cohen/Johnson rather than O'Brien (which would favor the plaintiffs as far as that goes), but also as an international security analogue of Brandenburg, with the standard appropriately adjusted in favor of law enforcement due to the judiciary's institutional lack of competence in this area:

The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link

ACCKKK! Well, moving right along....

all the pieces in the puzzle before we grant weight to its empirical conclusions.

So, while this is Cohen rather than O'Brien in that the statute is content-based rather than content-neutral, this is also unlike Cohen in that it doesn't turn at all on taste, good or bad:

In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.

:: David M. Wagner 5:12 PM [+] ::
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Free speech aspects of the case:

1. Contrary to gov't's contention, this is not O'Brien; the restrictions are content-based, therefore it's Cohen/Texas v. Johnson.

2. However: "It is not difficult to conclude as Congress did that the 'tain[t]' of such violent activities [as PPK and LTTE have engaged in] is so great that working in coordination with or at the command of the PKK and LTTE serves to legitimize and further their terrorist means."

(Cite: “[I]nvestigators have revealed how terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” M. Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad 2–3 [2006].)

It might seem that 2 cancels out 1, and that Congress's ability to restrict speech is limited only by its own imagination as to how speech might aid terrorists, perhaps supported (or even extended) by academic eggheads' or Beltway bandits' research. But the Court makes it clear that such is not the standard; the standard, rather, is coordination with terrorist organizations duly labelled as such by fair procedures:

The dissent argues that there is “no natural stopping place” for the proposition that aiding a foreign terrorist organization’s lawful activity promotes the terrorist organization as a whole. Post , at 10. But Congress has settled on just such a natural stopping place: The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.

...

[W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.

:: David M. Wagner 4:53 PM [+] ::
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In part IV, the Court seems to be saying: the test for vagueness is more sensitive when speech and expressive association are concerned; but it does not follow that speech and expressive association are a "third rail" such that any otherwise-valid law that touches them become per-se void for vagueness. That would collapse a great deal of otherwise-valid democratic lawmaking into bans on speech; this has never been the law.

“But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’ ” Williams , supra , at 304 (quoting Ward v. Rock Against Racism , 491 U. S. 781, 794 (1989) ).

Vagueness and overbreadth are not the same thing. Vagueness, a 5th Am Due Process doctrine, looks at whether a person of ordinary intelligence could tell what the statute prohibits. ("Training," "expert advice and assistance," and "material support" are not in this category.) Overbreadth, a 1st Am doctrine, looks at whether the statute could ban some constitutionally protected conduct, regardless of what the parties before the Court have done or want to do.

[T]he Court of Appeals contravened the rule that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates , supra , at 495. That rule makes no exception for conduct in the form of speech. See Parker v. Levy , 417 U. S. 733, 755–757 (1974) . Thus, even to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice. And he certainly cannot do so based on the speech of others. Such a plaintiff may have a valid overbreadth claim under the First Amendment , but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression. See Williams , supra , at 304; Hoffman Estates , supra , at 494–495, 497. Otherwise the doctrines would be substantially redundant.

:: David M. Wagner 3:23 PM [+] ::
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Part III of the Humanitarian Law Project opinion points to a way the Obama DOJ has of defending statutes that tread close to free-speech interests. If the Bush boys did the same thing, please point that out to me.

When SG Kagan was defending McCain-Feingold in Citizens United, and had to admit that the law would authorize the banning of books within 60 days of an election, she fell back on the argument that federal prosecutors would never enforce the law in that manner. I.e. -- trust us.

Here, according to the Court, DOJ argued "that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities." But "[w]e reject plaintiffs’ [i.e. Holder's, DOJ's] interpretation of §2339B because it is inconsistent with the text of the statute. Section 2339B(a)(1) prohibits 'knowingly' providing material support."

Notice the pattern. The statute may have a mens rea of "knowingly" but we ask you to blue-pencil into it a mens rea of "intent to further illegal activities." That's the way we mean to enforce it. Trust us!

The two cases aren't identical, of course. If, here, the Court had held that the statute contained an implied mens rea of intent, DOJ would theoretically have been bound by that in future prosecutions under it. But the statute itself would still have contained only the lesser mens rea of "knowingly." Eventually a prosecution brought under that theory would have come before the Supreme Court, which would then have said "Gosh darn you're right, it does say 'knowingly,' we were wrong to raise the bar on that...." Much better to interpret the statute in terms of its words now, and draw the necessary constitutional conclusions. (On which, more in a while.)

:: David M. Wagner 3:06 PM [+] ::
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Plaintiffs do not challenge the above statutory terms in all their applications. Rather, plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities....

such as splitting infinitives:

With respect to the HLP and Judge Fertig, those activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”;....

:: David M. Wagner 2:52 PM [+] ::
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Of obvious interest to those following the Flotilla Megilla, even though the IHH is not a party the case we are considering:

The District Court in this action found that the PKK [Kurd dudes] and the LTTE [linked to "Tamil Tigers"] engage in political and humanitarian activities. See 9 F. Supp. 2d, at 1180–1182. The Government has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens. See App. 128–133.

:: David M. Wagner 12:56 PM [+] ::
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We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.

Unspaz, everybody: limited holding here.

This litigation concerns 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” ¹ Congress has amended the definition of “material support or resources” periodically.... [Emphasis added]

Maybe some day Congress will amend the definition to include the knowing splitting of infinitives. Since the Court a moment earlier referred to the Anti-Terrorism and Effective Death Penalty Act, we might call such an amendment the "Anti-Terror Against the English Language and Effective Death Penalty for Sloppy Writers Act."

Justice Scalia never splits infinitives. Surprised he didn't shove off from this part of the opinion; you know, like a grammatical form of legislative history!

:: David M. Wagner 12:32 PM [+] ::
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"Chief Justice Roberts delivered the opinion of the Court." And if you're not in, he leaves it with the doorman. -- Sorry; being from New York, I've loved that really stupid line for ages.

:: David M. Wagner 12:22 PM [+] ::
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Holder v. Humanitarian Law Project is out, with a 6-3 victory for the guvmint. This was the one where even warriors-on-terror like me wondered whether the government may have gone too far toward construing speech as aid to terror. Reading now; we'll see.

:: David M. Wagner 12:13 PM [+] ::
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:: Sunday, June 20, 2010 ::

Filibuster -- NO

No, Senate Minority Leader Mitch McConnell is not hinting at a filibuster of Elana Kaga. He is merely not closing the door on it. But he should close that door.

It's all very well -- in fact, it's brilliant -- to point out, as he does, that currently active Democrats, including Obama, have voted to require a 60-vote threshold for Supreme Court nominations. But if Republicans support one now, it will become a hard and fast rule. And once that happens, you can write off forever any future Scalias and Thomases, or even Robertses and Alitos.

In this Senate, Kagan could clear even a 60-vote hurdle. (C'mon, do you think Scott Brown, who voted for the financial reg bill, would vote against her? And what about the Maine contingent?) But when a Republican is in the White House -- unless he was swept in by a GOP tsunami that produces a more Republican Senate than either 1980 or 1994 -- another Souter will be the best he can do. And if he/she does have such a highly Republican Senate, liberal Justices will just wait out the congressional term before resigning. Constitutional conservatives would be forced to rely on coronary events or tragically-timed falling pianos to bring about change.

No Supreme Court filibusters. They're stupid. Republicans should renounce them, forever, now.

:: David M. Wagner 6:16 PM [+] ::
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:: Saturday, June 19, 2010 ::

Elena Kagan supported Peter Keisler

Well, here's why I don't feel I can oppose the Kagan nomination actively. (H/t: SCOTUSBlog)

I have no illusions about how she'll vote on the Court, tho' I think her likely influence within the Court has been overstated. (How is Justice Kennedy -- who allegedly reads his press clippings like a star soprano -- supposed to react when the media openly predict that Kagan, with her nice smile and her history of impressing grown-ups, will twist him around her little finger? Sheesh.)

Anyway, she supported Peter, so I can't oppose her. Debt of honor. Sorry.

:: David M. Wagner 2:19 PM [+] ::
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