NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: 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 [+] ::
...
:: 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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
