The cover story of last week's Time magazine dealt with a topic near and dear to my heart: the Supreme Court. Chief Justice John Roberts' aristocratic visage graced the cover, alongside the words, "Does the Supreme Court Still Matter?"

Does the Pope like schnitzel?

Of course the Supreme Court matters. The author of the piece, David Von Drehle, says that "the Court's ideology is playing a dwindling role in the lives of Americans," insisting that the issues with which the Court deals every day -- abortion, segregation, prisoners' rights -- are being relegated to the realm of interesting philosophical discussions. "[T]he left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence," he writes.

Except that he's wrong. Now, more than ever, the Court's opinions strike at the heart of Americans' lives. Von Drehle confuses the Court's deference to the states -- a project undertaken by the late Chief Justice Rehnquist and now continued by his successor -- with a court that takes a pass on deciding important issues. In the Court's last term, we saw an abortion ban without an exception for the health of the mother upheld, something that Justice Ginsburg, writing for the minority, called "alarming." More alarming was the dubious reasoning and evidence that led to the opinion: government witnesses claimed that there was never a medical necessity to perform an intact dilation and extraction ("partial birth") abortion, even though the medical evidence was overwhelmingly to the contrary. The right of women to have abortions is not theoretical. As an issue of discrimination, it is important to women: men will never, ever have to be told that they cannot do something to their bodies. As an issue of privacy, it is important to all Americans: what else will the state be able to prevent us from doing to ourselves in the comfort of our own homes, in the name of morality? (The War on Drugs comes to mind, but thus far, how we choose to alter our minds has been the only place where the government has stepped in to declare that it knows better than we.)

When Roberts was before the Senate Judiciary Committee, he said that he wanted consensus as much as possible on cases, so as to increase the authority of the decisions. A 9-0 or 8-1 decision has, legally, the same standing as a 5-4 decision, but as a practical matter, the former decision holds up better to scrutiny. The future will regard as more "correct" an opinion reached by all nine justices than a fractured opinion. Several important decisions in the last term were decided by 5-4 majorities, with The Usual Suspects on each side and Justice Kennedy breaking the tie. The notion of consensus is no longer an option, and it appears that, for the foreseeable future, we will have 5-4 decisions and a fractured court.

Justices Roberts and Alito also voiced their support for stare decisis, the philosophy that, all things being equal, contemporary justices should defer to past opinions and doctrines rather than re-invent them. In this term, however, we have seen precedents overturned in Gonzales v. Carhart and Parents Involved in Community Schools v. Seattle School District No. 1. The former case overturned one of the requirements of Roe v. Wade; namely, that there must always, in any abortion-restriction law, be an explicit exception for preserving the health of the mother. In the latter case, the majority altered affirmation action jurisprudence to suggest that it is not the government's job to facilitate racial integration.

The justices' theoretical opinions will have far-reaching consequences. Take, for example, the decision in Morse v. Frederick, the "Bong Hits 4 Jesus" case. Chief Justice Roberts, in his theoretical analysis of the case, posits that one of the missions of a public school is "deterring drug use." This has very little support within the law, but now that it has been set in Supreme Court Stone, schools must necessarily make "deterring drug use" one of their goals. The justices attempt to create theories, which they apply to their opinions. I expect that this school of legal reasoning is supposed to make the process of adjudication more "scientific," but since each wing of the court (and, indeed, each justice) has its own theories about how the law works, this attempt to make the law more objective ends up creating 5-4 decisions.

It's alarming to suggest that, because the Supreme Court is out of touch with the people, it's irrelevant. The Supreme Court isn't elected by the people, and the justices will never be directly answerable to the people, so what's irrelevant is the notion that the Supreme Court's being out of touch makes it irrelevant. Regardless of what the American people feel about abortion, the Supreme Court will continue to interpret the law as it sees fit.

What is really important is for Congress to tidy up the law in such a way that the Court's opinion becomes irrelevant. The Court does not exist to provide relief in cases where Congress should act; the Court merely interprets the law in the absence of an explicit explanation in a law. Where the Supreme Court has decided "wrongly," it is up to Congress to step in and change the law. The Court's job is not to write legislation, merely to fill in the holes that Congress left in a law. If Congress fills in the holes, then the Court's opinion becomes moot. It is difficult to say that one branch of government is more important or unimportant than another; ideally, they would all work together.

Posted by Mark at 11:42 AM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, the U.S. Supreme Court granted certiorari to a Kentucky case challenging the legality of lethal injection. The suit was filed by two inmates in a Kentucky prison who are themselves on death row. The Supremes will have to decide whether or not lethal injection qualifies as "cruel and unusual punishment," which is prohibited by the Eighth Amendment.

The Supremes also granted certiorari to an Indiana voter ID case. An Indiana statute requires voters in that state to present a government-issued photo ID before voting. Critics of the measure say it amounts to de facto disenfranchisement, as the kinds of people who would be unable or unwilling to obtain a photo ID are the kinds of people who would vote Democratic. The Fourteenth Amendment requires both state and federal governments to extend "equal protection of the laws" to all people in the United States. To deny someone the right to vote based solely on that person's inability to pay for a photo ID is most certainly not "equal protection."

The Court's term begins Oct. 1 with oral arguments in two cases, neither of which is terribly interesting. In Washington State Grange v. Washington Republican Party, petitioner Washington State Grange Party believes that Washington's "top-two" primary system (in which voters in a primary choose from between the two most popular candidates, regardless of political affiliation) is unfair because it allows a candidate to list which party he or she personally prefers (and, through that, allow voters to identify which party they are from).

The second case, Board of Education of the City of New York v. Tom F, involves whether or not a disabled child is entitled to tuition reimbursement under the Individuals with Disabilities Education Act even if that child hasn't received special education from a public agency.

See? Boring. But better cases are coming this term! And, we'll get to see how far to the right the Roberts court will again swing.

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Departing from a precedent set forth in Stenberg v. Carhart, 99-830 (2000), the U.S. Supreme Court today upheld the legality of the Partial Birth Abortion Ban Act of 2003. The act prohibits what are called "intact dilation and extraction" abortions," in which a physician or abortion doctor moves the fetus past the cervix into the vagina before he aborts it. The challenge to the Act was upheld by every lower court, but in a 5-4 decision (Anthony Kennedy was the swing vote), the Supreme Court reversed the lower courts, saying the Act was, in fact, constitutional. (For more details, please read the Supreme Court's opinion in today's case, Gonzales v. Carhart, 05-380.)

Justice Kennedy, writing the majority opinion, addressed the following arguments against the Act:

1. The Act is unconstitutionally vague;
2. The Act acts as an illegal barrier to obtaining an abortion;
3. The Act does not contain an exception for performing an abortion to preserve the life of the mother, as required by Stenberg.

Objections (1) and (2) are rather procedural. I happen to agree with the majority on Objection (1) -- that the Act is not unconstitutionally vague. As a piece of legislation, it's quite clear what is being rendered illegal and what the punishment is. Objection (2) is not so clear. Kennedy writes that the Act, while a barrier to abortion, is not necessarily an illegal barrier:

"[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." (quoting Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992))

Furthermore, reasons Kennedy, "the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." This is sketchy reasoning at best because of Objection (3), which is at the crux of this decision.

In Stenberg, which actually dealt with a partial-birth abortion statute in Nebraska, the Supreme Court ruled that all legislation that regulated abortion must contain a provision for performing an abortion to save the life of the mother. No ifs, ands, or buts. The Republican-controlled Congress tried twice in the 1990s to enact a federal partial-birth abortion ban, but both times, the bill was vetoed by President Clinton, and neither house could muster up enough votes to override the veto. With President Bush in power in 2001, Republicans passed -- and Bush signed -- the Act now in question. In 2000, the Supreme Court felt that there was enough medical evidence to suggest that there are situations in which abortion may be medically necessary to save the mother's life (C. Everett Koop's opinions nonwithstanding).

Whenever Congress writes a law, it prefaces the actual legislation with its "findings," which are supposed to act as a guide to future interpretation of that law. In the findings for the Partial Birth Abortion Act, the Republican-controlled Congress called the Court's findings in Stenberg "very questionable." To that end, in their findings, they concluded that the partial-birth abortion method prohibited by the Act "is never medically necessary." These four words form the entirety of justification for the majority's opinion today. All abortion cases after Stenberg have relied on the Court's belief that abortion may be medically necessary. Congress sidestepped the Court in makes its own determination that an intact dilation and extraction abortion "is never medically necessary." Because it is necer medically necessary, Casey's requirement that an abortion restriction must protect the life of the mother has been blown away, since, in this instance, Casey would require something that is impossible! Because the mother's health is never in question now, the government defaults to protecting its "legitimate and substantial interest in preserving and promoting fetal life" only. Mommy doesn't matter, anymore! Her health will never be in danger!

But what of the issue of safety to the mother? Also at issue is whether intact dilation and extraction abortion is safer for the mother than a regular dilation and extraction abortion (the difference is that, in the former, the physician tries to remove the fetus as intact as possible, and in the latter, the physician removes the fetus in pieces). Kennedy notes the "documented medical disagreement" that exists as to whether or not "the Act's prohibition would ever impose significant health risks on women," but dismisses it, instead suggesting that "[a]lternatives are available to the prohibited procedure," or that the legislature should take on the issue. He will have none of it today!

Justice Ginsburg is pissed. In her dissent, in which she was joined by Stevens, Souter, and Breyer, she writes,

Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.

I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices.

Ginsburg's objections are four-fold. One, she disagrees with the science supporting the majority's opinion. "The term 'partial-birth abortion' is neither recognized in the medical literature nor used by physicians who perform second-trimester abortions," she writes in her very first footnote, saying that the the procedure had been dubbed so "in the political arena." Ginsburg disagrees with the very core of the majority's opinion, saying that the evidence supporting Congress' findings that intact D&E "is never medically necessary" "do not withstand inspection, as the lower courts have determined and this Court is obliged to concede." Take a look at these whoppers (with some citations removed to make reading less irritating):

Many of the Act's recitations are incorrect. For example, Congress determined that no medical schools provide instruction on intact D&E. But in fact, numerous leading medical schools teach the procedure. See also Brief for ACOG as Amicus Curiae 18 ("Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago.").

More important, Congress claimed there was a medical consensus that the banned procedure is never necessary. But the evidence "very clearly demonstrate[d] the opposite." Planned Parenthood, 320 F. Supp. 2d, at 1025. See also Carhart, 331 F. Supp. 2d, at 1008-1009 ("[T]here was no evident consensus in the record that Congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything ... the congressional record establishes that there was a 'consensus' in favor of the banned procedure."); National Abortion Federation, 330 F. Supp. 2d, at 488 ("The congressional record itself undermines [Congress'] finding" that there is a medical consensus that intact D&E "is never medically necessary and should be prohibited." (internal quotation marks omitted)).

Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods. See also Planned Parenthood, 320 F. Supp. 2d, at 1021 ("Congress in its findings . . . chose to disregard the statements by ACOG and other medical organizations."). No comparable medical groups supported the ban. In fact, "all of the government's own witnesses disagreed with many of the specific congressional findings."

Clearly, this evidence goes quite a long way from suggesting that intact D&E "is never medically necessary," and while all the lower courts disagreed with those four words, the majority in this case chose to disagree with evidence to the contrary.

Two, she also takes on Kennedy's dismissal of the relative safety of intact D&E versus regular D&E: "We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion." In her mind, the government's illegalization of intact D&E forces them to consider what some may construe as a more unsafe method; namely, the standard D&E. Ginsburg would rather that the state err on the side of protecting the already-living mother, and rightly so. In instances where the survival of the mother is directly at odds with the survival of the fetus (assuming there is no other medical technique that could save both the mother and the fetus, or that such options have been exhausted), the mother should always win.

Three, "the Act scarcely furthers ["the legitimate interest of the Government in protecting the life of the fetus that may become a child"]: The law saves not a single fetus from destruction, for it targets only a method of performing abortion." Good one, Ruth! If the government is so keen to protect the lives of innocent, unborn babies, then why outlaw only one procedure? Two answers. The first one, my answer, is that religious Republican groups are working to slowly erode away abortion rights, bit by bit. This is only the beginning. Two, Justice Ginsburg's answer, is that "[d]elivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant."

Fourth, Ginsburg is pissed that the government is acting so patronizingly and infantilizing women:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning."). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited.

As though it is the government's job to act as a man of the 19th century would in telling a woman what is good for her.

And yes, Kennedy actually did write in today's opinion, "Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well." So, it appears that contemporary court rulings from other countries are not permissible as support for a Supreme Court opinion, but "Western heritage," the Bible, and now "the bond of love the mother has for her child" are. I see that Anthony Kennedy got his legal justifications by reading the case Potter v. Voldemort, in which respondent Lord Voldemort was defeated by petitioner Harry Potter using a similar legal (or was it magical?) justification.

Well, what now? We have seen a small chip come off the large block of a woman's right to an abortion, which is a chunk of a woman's right to do what she pleases with her own body. For a variety of flimsy reasons, the Supreme Court has decided today that -- in some cases -- women should be prohibited from doing certain things to their bodies in the name of (1) morality and (2) what the government thinks is good for them. And what's nearly as bad, Anthony Kennedy has joined The Dark Side. This may not be the last of the 5-4 conservative majorities.

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The Recording Industry Association of America (RIAA), the cartel (not necessarily pejorative; the RIAA fits the definition of a cartel) of U.S. recording companies, is deeply concerned about artists. Many times, they have used, as an argument against file sharing, the moral argument: when you download music, you're stealing from the artists. And the artists deserve to be paid, too!

In an effort to keep their logic consistent, the RIAA petitioned the federal Copyright Royalty Judges to lower the royalty rates "in applications like cell phone ring tones and other digital recordings." A royalty is a fee paid to a content creator every time his work is publicly performed or copied. Recording companies license content -- in this case, a song -- from an artist and paid him for each copy of the song they sell. In the United States, this is called a "statutory fee" because the fee is set by statute.

How interesting that the RIAA, on the one hand, laments the plight of the poor artist who is losing money because Timmy is downloading illegal copies of his music, and on the other hand, wants to pay those same artists less money. Cell phone ringtones are a gold mine and the RIAA is furious that they have to actually compensate the people who wrote the song! That money should belong to EMI, or Atlantic, or Time Warner!

I haven't read the actual text of this request, so I don't know if the RIAA wants to lower royalty fees for all digital content. If that were the case, certainly any sane judge would realize that they're just trying to weasel their way out of paying for music in a burgeoning new market. That's been the RIAA's tactic all along: instead of adapting themselves to new markets, they've been trying to adapt the new markets to behave like the old ones, so that RIAA won't have to innovate or spend money changing anything. The Digital Millennium Copyright Act was a valiant attempt to make digital content behave like analog content, but there's no guarantee that consumers will tolerate it.

I wonder what Metallica thinks now?

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WASHINGTON -- This week, the U.S. Supreme Court will hear oral arguments in a case that shows exactly what the Bush administration agenda is, in black and white. (Please read the summary of questions presented in Massachusetts v. EPA, 05-1120.)

The Bush administration is actually going to argue that it should not be required to enforce certain provisions of the Clean Air Act; namely, the EPA does not believe that carbon dioxide emissions are a "pollutant" as defined by the Clean Air Act, and thus the administration should not have to regulate those emissions.

But why would the government argue that it shouldn't have to enforce its own laws? In the schizophrenic world of the Bush administration, the law is pitted against (1) the philosophies of Bush apointees, many of whom came from the very industries that they are now in charge of regulating; and (2) the interests of Bush personal friends and financial backers. It wouldn't be very good for business if the government suddenly required dramatic, nationwide reductions in carbon dioxide emissions. Domestic auto manufacturers and energy companies would be forced to -- gasp! -- spend money developing alternative energy sources that don't generate as much carbon dioxide.

With Bush in office, they've had some help in that regard. Bush's so-called Healthy Forests initiative increased the amount of logging that logging companies could engage in. The so-called Clear Skies Act actually weakened the Clean Air Act. All of this backscratching was done in the name of pleasing Bush's constituency.

Now, the administration is being taken to court to require it to set standards of carbon dioxide emissions through the Clean Air Act. The administration claims that carbon dioxide doesn't qualify as a "pollutant" under the Act; however, the Act itself is quite clear in its language. A "pollutant" is anything that is released into the air, regardless of whether or not it is dangerous or toxic. As carbon dioxide is released into the air, it stands to reason that it qualifies as a "pollutant" and thus must be regulated under the Clean Air Act.

Part of the Bush administration's failure to regulate carbon dioxide emissions may be political (obviously). In regulating carbon dioxide emissions, the administration may be admitting that carbon dioxide is a pollutant "associated with climate change," and in admitting that, the administration would also have to admit that there is such a thing as global warming, and that humans are causing it. The administration thus far refuses to believe such a thing, and it has gone to great lengths in the past to censure or silence government scientists who would make such a conclusion. Again, this is due to the relationship Bush has with auto and energy companies, who do not want to have to spend billions of dollars to change their business models.

More analysis on the D.C. Circuit Court's prior decision in this case, as well as citations from the Clean Air Act.

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A few years back, the U.S. Supreme Court issued a ruling in the case Boy Scouts of America v. Dale, 99-699. (FindLaw had better get up to speed with its citations.) You'll recall that, in that case, respondent Dale was fired as a boy scout troop leader when the Boy Scouts discovered that he was gay. The Boy Scouts are a Christian organization (and, indeed, one of their largest single supporters is -- ta da! -- the Mormons!) and, of course, homosexuality is inconsistent with Christianity.

Dale sued the Boy Scouts, alleging discrimination. The Boy Scouts' defense was that forcing them to admit homosexuals was a violation of their "freedom of expressive association," a First Amendment doctrine which holds that groups should be permitted to discriminate in their membership if admitting particular members would go against the mission of that group. Or, as Chief Justice Rehnquist wrote:

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs.

This is not a doctrine invented out of whole cloth by the justices; it's been around for a while, and it makes sense: if you're forced to accept members whose existence in your organization dilutes the organization's mission, then the government has placed an "undue burden" on your ability to express yourself through your choice of membership.

A lot of homosexual rights groups didn't like this decision. I disagreed with them, and I still do: the court's opinion in Dale was correct, given the implications for freedom of expressive association if they had decided the other way.

Well, now it's time for just desserts. The U.S. Supreme Court refused to grant a writ of certiorari -- which means they refused to hear the case -- to the Sea Scouts, an offshoot of the Boy Scouts. Eugene Evans v. City of Berkeley -- that's right, our very own Berkeley! -- pitted the Sea Scouts against the intractable neo-hippie liberalism of Berkeley, California. The city of Berkeley permits nonprofit organizations to moor boats at the Berkeley Marina for free -- as long as they do not discriminate against any race, religion, ethnicity, et cetera et cetera. The Sea Scouts, as an offshoot of the Boy Scouts, must necessarily discriminate in both religion and sexual orientation. As such, the city of Berkeley took away their free mooring status and started charging them $500.

This time, it was the Sea Scouts who alleged discrimination -- that the city of Berkeley was restricting their freedoms of speech and expressive association. The trial court and the state Court of Appeals both ruled in favor of the city. The California Supreme Court affirmed the decision.

In the Sea Scouts' defense, they have never discriminated against anyone based on religion or sexual orientation. However, when requested by the city attorney to provide a written statement that they wouldn't do so in the future, the group would only state that they considered sexual orientation to be "a private matter." The Sea Scouts later told the city attorney that they did not explicitly condemn such discrimination "due to fear of losing their charter from the Boy Scouts.” The court's ultimate decision:

We agree with Berkeley and the Court of Appeal that a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy. We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA’s discriminatory policies.

The California Supreme Court suggested that the state not funding a particular group is not equal to the state barring the speech of that group. "The [U.S. Supreme Court] has generally approved, against First Amendment challenges, programs of governmental financial assistance that limit the expressive activities for which the funds may be used," said the California Supreme Court.

Now it is the Boy Scouts' turn to be upset. Maybe if they didn't hate The Gays so much, the Sea Scouts -- which are guilty only of being affiliated with the Boy Scouts -- might have a free berth in the Berkeley Marina.

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Welcome to the Supreme Court's 2006 Term! While the term officially began last week, I wasn't talking about it. So let's get to business. This is the court's first full term with its new, reconstituted self: John Roberts replaced Chief Justice Rehnquist about a month before the beginning of the term last year, and Samuel Alito joined the court in December. Now we will see the power of the fully armed and operational judicial station!

Last Tuesday, the court heard oral arguments for its first cases of the term (while the term began on Monday, they heard no arguments that day). The cases of Lopez v. Gonzales and Toledo-Flores v. United States were consolidated into one argument. The question presented in each case is essentially the same: the petitioner was convicted of drug possession, a misdemeanor federal crime, but a felony in the petitioner's state. The Fifth Circuit Court of Appeals ruled that the fact that the crime was a felony in the petitioner's state changes the federal crime from "simple possession" (a misdemeanor) to "drug trafficking" (an "aggravated felony"). The Fifth Circuit stands in opposition to the Second, Third, Sixth, and Ninth Circuits, which held that a state felony conviction does not create a federal felony "drug trafficking" crime. Lopez v. Gonzales puts this in the context of immigration laws, but the answer to Toledo-Flores will give us the answer to Lopez.

Next, we had Ayers v. Belmontes, which asks the court to look into the legality of California's practice of considering a defendant's background and character as "mitigating factors" for sentencing purposes. (E.g., if Johnny committed a violent crime, but the court learned that he had been abused as a child, his sentence might be brought down from life to 30 years.)

These cases are boring. But hopefully we might see some warrantless wiretapping action going on later in the term.

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Last week, the U.S. House of Representatives passed H.R. 6166, the Military Commissions Act of 2006. A poster at Boing Boing earlier today linked to an article claiming that the bill does a number of things that it does not, in fact, do. While the legislation contains a number of questionable provisions, as one Boing Boing reader noted, "[I]f we start fighting it with false and misrepresented claims about its provisions, we'll look stupid from the start, and our arguments will just be dismissed an non-applicable."

What does this thing do?

By and large, it amends Chapter 47 of Title 10, U.S.C., known as the Uniform Code of Military Justice (UCMJ). These are the laws under which the military governs itself and tries its accused criminals. H.R. 6166 would create a subchapter, Chapter 47A, governing the military trials of suspected terrorists.

Immediately, the legislation defines an "unlawful enemy combatant" to potentially include even U.S. citizens. U.S. citizens accused of terrorist could be summarily stripped of their Constitutional rights and tried as though they did not have Constitutional guarantees (which they still would).

If H.R. 6166 defines "unlawful enemy combatant," then what is a "lawful enemy combatant"? It's any member of any state-organized armed force. Apparently, it's now illegal for civilians to engage in combat. By refusing to recognize terrorists as engaging in war per se, the Bush administration can avoid some of the nasty requirements of the Geneva Conventions of 1949.

What rights, then, does an "unlawful enemy combatant" have under the Geneva Conventions? Apparently, none. Under § 949b(2)(g), "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." Oops. Because the Geneva Conventions were for armies, not civilians, so it looks like you're out of luck.

H.R. 6166 also makes the president the authority on interpreting international treaties:

As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

Huh? He has Constitutional authority to "intrepret the meaning and application" of treaties now? Apparently, this is culled from the sentence in the Constitution in Art. II, § 2 that gives the president the authority "to make treaties." But, as with the line-item veto, this is a dicey area. The president's line-item veto authority is nill, since the Constitution specifies that he may either "sign it" into law or "return it" to the house it came from. So, too, does the president lack the authority to do anything but "make" treaties. Sure, he can enter into treaties -- with the advice and consent of the Senate, of course -- but after that, does he have the authority to interpret them? A treaty approved by the president and the Senate becomes the law of the land, on par with the Constitution in terms of weight. And only one group of people is qualified to interpret the Constitution.

But what about the allegations from prisonplanet.com's Alex Jones and Paul Joseph Watson (which is the Boing Boing link I spoke of)? The article mentions all of the criticisms I leveled above. Then it introduces new ones that aren't so true. "[T]he bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court," the authors say, referring specifically to § 950j.

H.R. 6166 does no such thing. While it does shut out future detainees from ever filing habeas suits again, it does not "criminalize" challenges to the legislation. To "criminalize" would mean "to render illegal" and thus permit the arrest of someone who might be trying to challenge the legislation in court. § 950j merely spells out that no court -- including the Supreme Court -- has jurisdiction to hear complaints about the legality of the legislation or the resulting findings of the military courts (except as provided later in the chapter; the legislation does permit suspects to appeal their cases to appellate tribunals, as well as the Supreme Court). If any court received a complaint about this legislation, men in black vans wouldn't arrest the petitioner; they would throw the case out due to a lack of jurisdiction.

"A change of the definition of 'pillaging' which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants"? Not so much. Read the beginning of § 950v(b)(5): the provisions of this legislation don't apply to any old person, only to "[a]ny person subject to this chapter." Regular Joe Squatter hanging out in the park or an abandoned building is not subject to a military tribunal; neither are "petty thieves." This law would have to go much further in order to create a military police state.

Questioning § 950v(26), Watson & Jones ask, "For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place?" The section -- which criminalizes "knowingly[ly] and intentionally aid[ing] an enemy of the United States," applies -- again -- only to "[a]ny person subject to this chapter." It is also clearly designed to allow prosecution of defecting military or federal government officials under this chapter. This means that if a Defense Department employee -- who did have to take an oath of allegiance upon getting the job -- gives al-Qaeda top-secret information, he may be prosecuted as an "unlawful enemy combatant" under this section.

This legislation is a bad idea, but it's not a bad idea for reasons that Watson & Jones claim it is, and it is alarmist and disingenuous to criticize particular parts of this bill that, in fact, have no problems. Thankfully, though, the authors do get to the worst parts of the bill. Imagine if Bill O'Reilly or Sean Hannity got hold of this article? This would it up as a model for all anti-war, anti-Unitary Executive arguments.

Posted by Mark at 10:39 PM | Permalink | Comments (0) | TrackBacks (0)

Whoa, it's been a long time since I posted last!

WASHINGTON -- Sen. Arlen Specter (R-PA) has authored a bill that he hopes will be a compromise between some semblance of Congressional oversight and the Cheney administration's hopes of unbridled executive power. Specter and Cheney brokered a deal in smoke-filled rooms in which they agreed to hold hearings about the administration's illegal, poorly-justified, warrantless wiretapping program in the Judiciary Committee instead of the Intelligence Commitee in exchange for Specter's guarantee that then-Supreme Court nominee Samuel Alito would make it through the Judiciary Committee to the Senate floor.

At first, I thought, "Well, I suppose we have the lesser of two evils, here." I thought Specter was concerned about transparency, as hearings of the Intelligence Committee are often closed to everyone without a security clearance. Turns out it's about power: Specter wanted some leverage in Congress' increasingly one-sided relationship with the administration, which, through a variety of techniques, refuses to allow Congress to question it on any matters, including legislation that Congress passes in order to exercise its constitutional checks on the executive.

Nope. Turns out that Specter just wants Congress' power back, even if he has to screw the American people to get it. S. 2453, an as-yet unnamed bill, would retroactively legalize the president's warrantless wiretapping program, allowing the president to sidestep the provisions of the Foreign Intelligence Surveillance Act of 1978, which requires the president to obtain a warrant from a Foreign Intelligence Surveillance Court before he engages in any wiretapping that involves a caller located in the United States.

But the administration's argument that it needs warrantless wiretaps is bogus.

The administration's major argument in favor of warrantless wiretaps is that the FISA court doesn't move quickly enough for us to keep up with the terrorists, and that the process of obtaining a warrant apparently takes so long that by the time the warrant is issued we may no longer be able to surveil the terrorists. "We use FISA still -- you're referring to the FISA court in your question -- of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect," said President Bush in a Dec. 19, 2005 press conference.

Unfortunately for the president, FISA does not require the president to obtain a warrant before initiating surveillance. 50 U.S.C. 1802 says that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" as long as the Attorney General follows several reporting requirements, one of which is that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." In other words, such spying must be between two people who are neither U.S. citizens nor U.S. nationals. This certification must be transmitted, under seal, to the Chief Justice of the U.S. Supreme Court and both the House and Senate Select Intelligence Committees. As far as we know, neither of these conditions has been met. President Bush claims that he's kept some members of Congress in the know about the wiretapping, but many members say that they never heard anything about it.

Also, FISA allows the president to begin to engage in warrantless wiretapping for a period of 72 hours before submitting a warrant application to the FISA court, whereupon the initial surveillance could be retroactively permitted.

Nevertheless, no application for a warrant has ever been submitted to the FISA court. President Bush has ignored the express intent of Congress -- as noted in FISA -- and in doing so has violated the law, which requires that he eventually obtain a warrant from the FISA court. Average citizens are not permitted to ignore the law whenever they feel it convenient; our president should be held to no less a standard. The president -- or his agents -- should be arrested for violating federal law and the justification that he has some sort of expanded powers in times of war should be evaluated by federal judges and put to sleep once and for all.

Additionally, the FISA court isn't very strict at all. Since 1978, when the court was created, it has outright rejected only four foreign intelligence surveillance applications out of thousands submitted between 1978 and 2005. Many applications are not rejected, but are instead amended by the FISA court judges, asking the submitters to modify parts of the application before it will be approved.

The FISA court is pretty much a done deal. Why, then, would the Bush administration want to bypass even such a rubber-stamp authority? Possibly Cheney felt that the activities of the program were so illegal that even the FISA court wouldn't approve them, and he couldn't risk details of the program's illegality being leaked to the public.

Now, Arlen Specter seeks to submit to his handlers and legalize warrantless wiretapping. The preamble to the legislation makes a big talk that keeping our nation safe is the responsibility of all three branches of government -- and then proceeds to exempt the executive from checks upon him by the judicial branch. It's as though the legislature and the executive are in cahoots to shut the judiciary (which is, coincidentally, the most independent branch of government) out of any decision-making, as the judiciary might actually challenge the executive's authority. And, hey, it's an election year: we can't have it appear as though the legislators are siding with the judiciary!

Here are some changes made to FISA by Specter's bill:

• Targets no longer have to be named "where it is not technically feasible to name every person or address every location to be subjected to electronic tracking." This is called a dragnet, and it comes from the way that fisherman used to drag giant nets under their boats to catch any fish they could. In law enforcement, a dragnet is an open invitation to surveil anyone who might be involved without naming names. In this way, the president no longer has to say that "X" is the subject of surveillance; he can surveil everyone and claim that "it is not technically feasible" to surveil everyone, and thus he is not subject to a warrant requirement. All the president has to do is create the situation governed by this section, and he will not need a warrant.
• If anyone objects to foreign intelligence surveillance, and demands review, then the case can be sent to the FISA court -- which is top-secret -- if the information under review would "harm the national security of the United States." This means that if the EFF wanted judicial review, the review would be completely blocked from public view if the president wanted it to be (and of course he would want it to be).
• Whereas FISA required that a "United States person" (a U.S. citizen or national) not be involved in the wiretapping, under Specter's amendments, a "United States person" is now subject to wiretapping if the Attorney General believes him to be "a person reasonably believed to have communication or be associated with a foreign power that is engaged in international terrorism activities."
• Language that only allowed the president to engage in international surveillance only as set forth in FISA has now been modified to give him the ability to engage in such surveillance under the guise of any law or his "Constitutional authority," which, as we have seen, has been interpreted very liberally by Cheney.
• Releases from criminal prosecution anyone who furnishes foreign intelligence information to the U.S. government, like, oh ... AT&T. (This same provision, though, exists in FISA now, but I guess they felt the need to reiterate it.)

While this bill doesn't remove the warrant requirement, it significantly degrades the standard of evidence for obtaining a warrant, and, more importantly, allows U.S. citizens and nationals to be the subject of electronic surveillance, something that was previously forbidden by FISA.

Posted by Mark at 12:37 PM | Permalink | Comments (0) | TrackBacks (0)

DETROIT -- Yesterday, U.S. District Court Judge Anna Diggs Taylor layed the smackdown on the Bush administration's illegal, warrantless, poorly-justified wiretapping program. In her 44-page opinion in the case ACLU, et al. v. NSA, et al., Judge Taylor granted the government's request for dismissal of certain "state secrets" evidence, but nevertheless said that the program itself was unconstitutional.

Judge Taylor also laid to rest the bogus "unitary executive" theory, which holds that the president has the last word in federal government matters -- above and beyond the objections of the legislative branch (and while, theoretically, the "unitary executive" would also be superior to the judicial branch, we have yet to see that in action). The "unitary executive" is in direct conflict with the Constitution's separation of powers doctrine, established in the delegation of different powers to each branch of government in three different articles. The unitary executive theory holds that the president is at once enforcer, author, and interpreter of the law: he acts as all three branches -- in total disregard of the Constitution.

The government's primary case in arguing for the unitary executive -- as it has with ACLU v. NSA -- has been Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which President Truman attempted to nationalize a striking metal-working company on national security grounds. The Supreme Court had a good laugh at that and totally rebuked Truman for attempting to exercise a power that was not his to exercise. Out of this case comes Justice Jackson's concurring opinion, the one that the government has used to justify encroachments of presidential power into other branches of government. Jackson laid out a model for instances in which presidential power might conflict with Congressional power, and in each instance, he theorized who should win each fight, and why:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The government has repeatedly argued that the president's authority to engage in warrantless wiretapping comes directly from the post-September 11 "Authorization for the Use of Military Force" (AUMF). The AUMF, argues the government, through its "all necessary and appropriate force" clause, gives the president the authority to conduct warrantless wiretapping because he feels it to be "necessary and appropriate" for fighting terrorism. However, the government assumes that it is not in question that Congress authorized such a thing in its AUMF; indeed, the U.S. Supreme Court has taken steps to limit the scope of the president's power under the AUMF. In Hamdan v. Rumsfeld, 05-184, the Court ruled that ad hoc military tribunals were illegal because "[t]he military commission at issue is not expressly authorized by any congressional Act." In this sentence, the court dismissed a Bush argument that the AUMF implicitly granted him a power by requiring that the action in question by explicitly authorized. Judge Taylor agrees, observing that "this court must note that the AUMF says nothing whatsoever of intelligence or surveillance."

And, so, there is some issue as to where the president's powers currently lie within Justice Jackson's model. The government argues that the president has been acting pursuant to situation one, where the president has the authorization of Congress. The Supreme Court, and other federal courts, disagree. Judge Taylor believes that the president is currently living his life in situation three, as "[i]n this case, the President has acted, undisputedly, as FISA forbids [by failing to get a warrant or meet certain emergency surveillance requirements]. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained."

Also note that, to sustain its case that the president has supreme control of the world, the government is using a concurring opinion in a case in which the court decided that the president did not have the supreme authority to control the world. Yes, in Youngstown, the court ruled that President Truman lacked the authority to nationalize the Youngstown Sheet & Tube Co. They're really reaching, aren't they?

Judge Taylor is nobody's fool, and she gives the theory of the "unitary executive" the sound beating it deserves. This is as sexy as federal court opinions get:

Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. ...” Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP [the surveillance program]. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met. And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President’s power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.

The argument that inherent powers justify the program here in litigation must fail.

And, so, Judge Taylor issued an injunction enjoining the government from engaging in its surveillance program. She ended her opinion with a beautiful afterword by Justice Earl Warren:

Implicit in the term "national defense" is the notion of defending those values and ideas which set this Nation apart. ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile.

The government's reaction to the opinion was predictably bad. Attorney General Alberto Gonzales said that the opinion was a wrong one, and that the government would appeal the case to the Sixth Circuit Court of Appeals in Cincinnati (which has jurisidiction over federal court appeals in Ohio, Michigan, Kentucky, and Tennessee).

They should make bubble gum cards for federal court justices. "I'll trade you two James Whittemores for a Sandra Day O'Connor!"

Posted by Mark at 9:36 AM | Permalink | Comments (0) | TrackBacks (0)

From the very beginning of the illegal wiretapping case being brought by the Electronic Frontier Foundation (EFF) against the government and AT&T, both of the defendants have tried to get the case dismissed. The government wants the case dismissed because of state secrets and national security; AT&T wants the case dismissed because of trade secrets. Yesterday, in a 72-page decision, the U.S. District Court for the Northern District of California denied both the government's and AT&T's motions to dismiss.

What struck me as odd, though, is one of the justifications the government uses to bolster its claim that the wiretapping isn't illegal:

Additionally, the government contends that plaintiffs’ Fourth Amendment claim fails because no warrant is required for the alleged searches. In particular, the government contends that the executive has inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes and that the warrant requirement does not apply here because this case involves “special needs” that go beyond a routine interest in law enforcement. [Citations removed, emphasis added.]

This is the government's official stance? That the executive has the constitutional equivalent of magic powers thar allow him to conduct searches without a warrant, in flagrant violation of the Fourth Amendment?! Some DOJ lawyer wrote this down, and his boss approved that? I thought the whole "the president has inherent constitutional authority that isn't explicitly mentioned, or even implicitly mentioned, but is there nonetheless, just trust us" was a public relations creation. But now it's being used as a legal justification? These people must have gone to law school at Patriot University.

Posted by Mark at 2:31 PM | Permalink | Comments (0) | TrackBacks (0)

With the failure of the gay marriage amendment and the flag-burning amendment, Republicans in Congress are in a bind: how can they show their constituency in the Religious Right that they care deeply about institutionalizing Christianity and making patriotism mandatory? And during an election year, nonetheless! Not even the Severed Head of Mussolini could think of a way out of this -- and we know that he's been consulted, as he lives in a safe in Dick Cheney's office.

The answer has come in the form of H.R. 2389, a bill that would prohibit federal courts from ruling on the issue of whether or not "under God" belongs in the Pledge of Allegiance. Congress' authority to limit what cases federal courts can hear comes from its power to establish courts as provided in Art. III § 1 of the Constitution. Art. III § 2 allows Congress to specify the Supreme Court's appellate jurisdiction.

Ah, yes! That's the posturing I was looking for! With any luck, the bill will be passed and the Religious Right will finally be appeased! And there's no way the courts can do anything about it! Except the D.C. Circuit Court, which was specifically exempted from this prohibition.

Oh, and guess what? This isn't just a proposed bill. This bill passed the House yesterday, 260-167, along mostly party lines. Now it's on to the Senate!

Posted by Mark at 11:25 AM | Permalink | Comments (0) | TrackBacks (0)

Last week's Hamdan v. Rumsfeld decision signaled the end of the Court's 2005 term. Terms typically last from October to June. This term, the court saw two new justices -- Chief Justice John Roberts and Associate Justice Samuel Alito -- added to the court. Both justices are decidedly conservative, and with the absence of Sandra Day O'Connor, the court has shifted to the right.

But Justice Anthony Kennedy -- a conservative -- has become the new "swing" vote, writing concurring opinions in 5-4 decisions in which the "liberal" point of view prevailed.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, wrote an op-ed for USA Today in which he summarized the effects of Roberts and Alito on the last term and observed that they "proved every bit as ideological in major cases as predicted."

More importantly, Turley noted that this term's decisions marked a significant -- and frightening -- shift in the court's thinking:

These votes reveal a new vision of our society emerging from the new conservative base of the court with Roberts and Alito. It is a society with few checks on the government except when it comes to environmental protection, private property, affirmative action, or religious practices. It is the very transformation that many wanted to discuss in the confirmation hearings but were blocked by the refusal of the nominees to answer questions and the refusal of senators to insist on such answers.

If Turley is correct, then the court's right-hand side has become the evil conservative enemy we've always feared: a monster that wants to invade our privacy, allow the state unrestricted access to our homes, declare what our religion should be, and at the same time insist that it is for "smaller government" -- at least, as far as checking large corporations. Government should be free to pry into our bedrooms and our minds; government should be free to tell us what we can and cannot choose to do in our personal lives, even if those decisions affect no one but ourselves; government should be allowed to imprison us indefinitely without stating that we've done anything wrong, as long as it justifies that detention with the T-word. Government should execute evil-doers, even if there's a possibility that the evil-doers are actually innocent -- but only because it would be wasteful to spend more money trying to figure out if someone it was going to execute was actually guilty.

Thankfully, many cases were decided correctly. Hamdan, for example, successfully -- but narrowly -- put a stop on the Bush administration's assertions of total, unquestionable power. Georgia v. Randolph upheld the Fourth Amendment even as Hudson v. Michigan took it away. Gonzales v. Oregon finally put an end to John Ashcroft's ridiculous litigation against Oregon's assisted-suicide law, deciding after five years that the Oregon statute was constitutional.

Things are not as bad as Turley paints them: right now, it's Alito, Scalia, Thomas, and Roberts staunchly on the right, and that's a minority. But it's only a minority by one vote, and it's less of a minority than existed before, when Sandra Day O'Connor wasn't sure to vote with the conservatives. We should not be terrified immediately, but we should be worried.

Posted by Mark at 1:53 PM | Permalink | Comments (1) | TrackBacks (0)

This just in! The Supreme Court ruled today that the Bush administration overstepped its bounds in instituting military tribunals for Guantánamo terror suspects (who were rounded up by civil authorities, not the military, and detained under civil law). Going even further, the Court said that Congress could not strip detainees of their rights of habeas corpus.

You'll recall that, in April, there were calls for Justice Scalia to recuse himself from the case, as he had made comments in a speech at the University of Freiburg in which he suggested that the Guantánamo detainees had no rights under the U.S. Constitution or international law.

Please read the court's opinion in Hamdan v. Rumsfeld, 05-184. The Court was divided along predictable lines, with The Usual Suspects (Scalia, Thomas, and newcomer Alito) siding with the government and everyone else siding With the Terrorists. Chief Justice Roberts properly recused himself from the case, as he had previously ruled on it when it was on appeal to the D.C. Circuit Court.

The Court was quite divided, with the majority issuing three concurring opinions in addition to the opinion of the court. All three dissenters each wrote separate dissenting opinions. Here were the court's findings:

1. The Court rejected the government's argument that, pursuant to the ludicrous Detainee Treatment Act of 2005, "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay,” and therefore, the Supreme Court did not have jurisdiction to rule on the Hamdan case. The law was clearly passed to prevent the Supreme Court from making this very ruling and ensuring that Guantánamo detainees would never, ever see the light of day. The one loophole in this law is that the Detainee Treatment Act did not apply to detainees who currently had a case on appeal, as was Hamdan's case.
2. The Court rejected the government's argument that Hamdan should be dismissed based on a case in which the Court previously ruled that federal courts should normally not intervene in military court martials. Kennedy apparently noted something that the government hoped the Court would overlook: the analogy "is inapt because Hamdan is not a service member." Oops!
3. The Court said -- in these words -- that "[t]he military commission at issue is not expressly authorized by any congressional Act." Woot! Now we have a precedent from the Supreme Court calling into question the specificity of Congress' authorization in 2001. While the Congressional resolution authorized the president to use any means within his power to stop terrorism, omission is not endorsement. In order for Congress to authorize the president to do something, it had to mention what it was they authorized him to do. In order for Congress to give the president a power, they must specifically mention the power. Giving the president some sort of broad, general power to do anything and then saying that that in itself was a justification is stupid and what the Court might call "over-broad." Expect this philosophy to be used in future court cases against the government, and rightly so.


4. The Court noted that, even if the military tribunals were authorized by the Authorization for the Use of Military Force, the structure and procedures of those tribunals "violate both the UCMJ and the four Geneva Conventions signed in 1949."

Whew! That's a lot of reasons why the Bush tribunals are illegal, and why the government's attempt to stop the Courts from regulating those tribunals ultimately failed in this case. So, what are the other justices saying?

• Justice Stevens, concurring with the opinion and joined by Justices Souter, Ginsburg, and Breyer, observe that the military tribunals are illegal because "[t]he Government has not charged Hamdan with an 'offense . . . that by the law of war may be tried by military commission.'" The government charged Hamdan with "conspiracy," which "has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war." Thus it is not appropriate to try Hamdan in a military court for an offense that the military would not try in a military court.
• These three justices agree that the procedures of the military tribunal violate international treaties, noting, "[t]he procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees."

No doubt the Republican Spin Machine will label these five justices as traitors, terrorist-lovers, and "activist" judges for daring to suggest that President Bush doesn't have the broad power he asserted he did under the AUMF. Now, let's see the court take on some more Bush overreaches.

Posted by Mark at 9:14 AM | Permalink | Comments (1) | TrackBacks (0)

Ned alerted me to a particularly ridiculous U.S. Supreme Court decision from last week, Buckeye Check Cashing, Inc. v. Cardegna, 04-1264 (2006). The case deals with contract law and arbitration clauses, which you might not think are relevant to you. But ask yourself: "Do I rent?" If you do, you signed a lease. A lease is a contract. Did the lease agreement contain illegal terms? Did it contain an arbitration clause? Maybe you should find out.

Petitioner Buckeye Check Cashing, Inc. is a Florida company that cashes your paycheck in advance and charges you exorbitant interest rates for doing so. Respondent Cardegna sued the company in Florida court, "alleging that Buckeye charged usurious interest rates and that the Agreement violated various Florida laws, rendering it criminal on its face." Usury is the word for charging outrageously high interest rates. It was a crime in the early Christian church, and it's still a civil crime today. Banks are not allowed to charge excessive interest rates, but the problem is that these check-cashing places aren't considered banks, and as such, aren't subject to the same usury laws that banks are. But that's a discussion for another day.

In contract law, if any term of the contract is illegal (e.g., your rental agreement requires you to sacrifice five virgins every month or pay a $1000 penalty, or to use Ned's more down-to-earth example, "breach of a lease resulting in liquidated damages equaling 2x monthly rent for the remainder of the contract’s term; requiring a tenant to pay for management’s attorney fees, etc."), then the entire contract is unenforceable. So, if the other party to the contract tried to take you to court, you could use as your defense the fact that the contract contains one or more illegal terms and thus the contract is void, and you are no longer obliged to adhere to the terms of the contract.

But Buckeye's contract was different: it contained an "arbitration clause." An arbitration clause says that if there's any dispute arising from the contract, the matter doesn't go to a civil court. Instead, it goes to an arbitrator. As Ned points out, this is a problem: "The problem is arbitrators do not employ the tenets of contract law, but rather make decisions in equity." This means that arbitrators will not concern themselves with whether or not a contract is void, or whether one party is completely in the right and the other completely in the wrong. "Equity" means that the arbitrator will not do what is legally correct, but rather, what is fair.

Buckeye filed a motion to compel arbitration at the trial court level. The trial court denied the motion, reasoning that if the dispute is whether or not a contract is illegal, then the dispute must be resolved by a court, even if the contract contains an arbitration clause. A state appellate court reversed that decision, but the Florida Supreme Court reversed the reversal. ("I remixed the remix. It was back to normal!")

But the U.S. Supreme Court reversed the Florida Supreme's Court's reversal of the reversal. Its reasoning was that "a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court." Apparently, the Court believes, even if the contract may be illegal, and the contract contains a term requiring arbitration, then the contract must still go to an arbitrator, even if the clause that requires arbitration might turn out not to be valid.

Does this make sense?

Apparently so, if you're a contract junkie. The Court used as support for its opinion Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), in which the Court ruled that an arbitration clause was "severable" from the rest of a contract. This means that an arbitration clause can never be voided, even if the rest of the contract is unenforceable. This is federal law. Justice Scalia, writing for a near-unanimous Court (Thomas dissented, O'Connor's opinion no longer counts, and Alito never heard the case), recounts the three tenets of arbitration established in Prima Paint:

First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.

That's great, but Ned points out a problem: the person writing the contract can fill the contract with illegal terms, and as long as there's an arbitration clause, the contract will go to an arbitrator before it goes to a court. (Although, realistically, the arbitrator will probably judge the contract void, but there's always the possibility that he or she won't. This is unfair to the person signing the contract, who deserves to be treated according to the tenets of contract law, not hippie "equity.")

Thomas disagreed that the Federal Arbitration Act applies to state courts. This opinion (the Court's, that is) should be slightly alarming.

Posted by Mark at 10:31 AM | Permalink | Comments (0) | TrackBacks (0)

The Supreme Court ruled today that members of a Brazilian religion that involves drinking hallucinogenic tea are allowed to engage in their practice.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 04-1084 pitted the U.S. attorney general against a Brazilian church (abbreviated "UDV") that drinks hoasca, a hallucinogenic tea, as part of its religious rituals. A shipment of hoasca was seized by U.S. customs officials in 1999, as the active ingredient in hoasca, DMT, is classified as a Schedule I narcotic by the DEA. UDV filed suit against the government, alleging that confiscating the tea is a violation of the the Religious Freedom Restoration Act of 1993 (RFRA), which allowed members of the Native American Church to consume peyote as part of their religious rituals.

Lest you think the court is populated by crazy neo-cons who want to engage in a War on Drugs at all costs, prepare to be astounded: the Supreme Court ruled unanimously that the government was wrong to confiscate the hallucinogenic tea!

The opinion, written by Chief Justice Roberts, focuses mainly on the procedural issue of whether or not a lower court was right to issue an injunction against the federal government. An injunction is a court order that prevents someone from doing something while the legality of an action is being decided in court. In this case, a federal district court issued an injunction against the federal government, barring it from enforcing the Controlled Substances Act while the case was being decided, allowing members of UDV to use the DMT in their religious practices.

At issue was whether or not lower courts erred in issuing an injunction against the government. Roberts and the other members of the court agreed that the lower courts were correct, since UDV demonstrated a likelihood of success on the merits of the case.

Roberts and the court also dismissed the government's argument that "the Act's description of Schedule I substances as having 'a high potential for abuse,' 'no currently accepted medical use in treatment in the United States,' and 'a lack of accepted safety for use ... under medical supervision,' 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV," since exceptions have been made to the enforcement of the Controlled Substances Act regarding religious use of scheduled drugs.

So, maybe they're not that conservative, after all.

Posted by Mark at 12:25 PM | Permalink | Comments (0) | TrackBacks (0)

Judge Samuel A. Alito, Jr. will soon become Justice Alito at a swearing-in ceremony later today. Through a 58-42 vote, Alito became the next Supreme Court justice, replacing Sandra Day O'Connor. Democrats attempted a filibuster of Alito yesterday, but a bipartisan (!) vote ended it. Some Democrats voted to end the filibuster with the rationale that Alito was going to be confirmed, anyway, and the Senate has more pressing matters to attend to.

The Bush administration has fulfilled its promise to its Evangelical Protestant constitutents: it has moved the Supreme Court rightward. Additionally, any cases that Sandra Day O'Connor may have heard in oral arguments, but have not yet had opinions released, may need to be re-argued. O'Connor's vote no longer counts in cases where an opinion has not yet been issued.

Goodie.

Posted by Mark at 10:05 AM | Permalink | Comments (0) | TrackBacks (0)

Judge Samuel A. Alito, Jr. was approved by the Senate Judiciary Commitee and will now proceed to the full Senate for an up-or-down vote. The vote was along party lines, with the 10 Republicans on the committee voting for Alito and the 8 Democrats voting against.

But Alito presents many problems. One of them is his opinion of abortion, which has conveniently changed over the years. In 1985, he suggested that the Constitution doesn't protect a right to privacy. When asked the same question two weeks ago, he said that it definitely did. As a judge with the Third Circuit Court, Alito was the sole dissenter when the court struck down a Pennsylvania law requiring women to notify their husbands before having an abortion.

At Princeton University, Alito belonged to an organization that was opposed to letting more minorities and women into Princeton.

As a junior partner of the Reagan Justice Department, he helped craft the wrong-headed "unitary executive" interpretation of the Constitution, which says that the president is more powerful than the legislature or the judiciary.

When he first applied for the job on the Third Circuit Court, Alito was asked if he had any conflicts of interest in which he might have to recuse himself. He mentioned that some of his money was being managed by Vanguard, an investment/securities company, and that he would recuse himself if Vanguard were a party to any case heard by the Third Circuit. Vanguard was twice a party to cases heard by the Third Circuit and Alito didn't recuse himself in either case.

Bush is attempting to present Alito as "mainstream," though it is clear that his opinions are more radical than we are being led to believe. In a CNN/Gallup Poll conducted between Jan. 6 and Jan. 8, 53% of respondents identified themselves as "pro-choice." While not a huge majority, it's still a majority. (Although, if you're President Bush, it's a landslide!)

Posted by Mark at 10:35 AM | Permalink | Comments (2) | TrackBacks (0)

Yesterday, the Justice Department released its most detailed white paper yet [PDF] on the legal justification for warrantless electronic surveillance.

According to The New York Times, the document relies heavily on Congress' Sept. 14, 2001 resolution authorizing the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

The white paper also relies on the "unitary executive" interpretation of Article II of the Constitution. This interpretation is a relatively new school of thought that says that the executive is the most powerful branch of government, more so than the legislature or the judiciary, and if he needs to supercede those bodies -- especially in a time of war -- then he is justified in doing so. This interpretation is flawed, because the Constitution makes no distinction about presidential powers in times of war; such an interpretation is invented by those who wish to justify great presidential powers. Like the legislature's powers, the executive's powers are enumerated, and if a power isn't listed specifically, then the executive doesn't have it. The only thing Article II says about war is, "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." It mentions nothing about presidential power being greater during time of war, and I believe that the writers of the Constitution intended it that way.

The white paper suggests that the president, "as Commander in Chief and sole organ for the Nation in foreign affairs," is allowed to conduct warrantless electronic surveillance in the name of "disrupt[ing] armed attacks on the United States." The white paper also misconstrues FISA. The paper claims that FISA "also contemplates that Congress may authorize such surveillance by a statute other than FISA," and the Sept. 2001 Authorization for Use of Military Force (AUMF) is just such a statute, and thus, the surveillance is being conducted under the authority of AUMF by way of FISA. Except, that's not what FISA says. While FISA says it is a criminal act if a person "engages in electronic surveillance under color of law except as authorized by statute," FISA also says that the president can only engage in warrantless surveillance in three specific instances "notwithstanding any other law" (emphasis mine). "Notwithstanding" means "despite." In regular English, the sentences reads, "Despite what any other law might say, the president may only engage in warrantless electronic surveillance blah blah blah." 18 U.S.C. 2511(2)(f) also says that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." Note the words "exclusive means." Meaning that there is no lawful procedure for conducting domestic surveillance outside of the procedures set forth in chapter 119 or chapter 121 of Title 18 or FISA. Was that clear enough? FISA is in conflict with the AUMF, and as the older law, FISA wins, unless AUMF specifically amended FISA to include an exception, which it didn't.

The white paper also relies on a Supreme Court interpretation of the president as the "sole organ" of the nation's foreign affairs. But foreign affairs aren't the issue, here. No one is suggesting that the president doesn't have the authority to conduct wholly foreign surveillance. Even FISA says that wholly foreign surveillance is fine. What isn't fine and what the argument is really about is the president's authority to conduct domestic surveillance or surveillance that involves "United States persons." That's where FISA comes in. The president's foreign authority is not at issue; rather, his authority to spy on Americans or people residing in America is at issue.

And yet the Bush administration touts its ability to be above the law. In this week's Time, Andrew Sullivan discusses the implications of presidential "signing statements," which are little statements the president can add to legislation as he signs it. This president is using them to put in writing how he will choose to enforce a particular law, and how he might make exemptions for himself or others. For example, he signed into law a bill containing John McCain's anti-torture amendment. However, at the end, Bush added a stipulation: "The executive branch shall construe Title X in Division A of this Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent witrh the constitutional limitations on the judicial power." Sullivan replies:

Translation: if the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Philip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

Sullivan later reveals that Samuel Alito, as a member of Reagan's Justice Department, invented the "unitary executive" interpretation in 1986. He suggested in a memorandum that the president has just as much control over legislation as the legislature, "[s]ince the president's approval is just as important as that of the House or Senate."

If it ever gets to the Supreme Court, I'm relatively confident that the court would rule the same as it did for the line-item veto under Clinton: unconstitutional. The Constitution says the president can either sign a bill or veto it. He is not given the power to veto just the parts he dislikes, and he is not given the power to alter a bill in any way. The Constitution is quite clear on this issue -- so clear that it is the first sentence of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." Not given fifty-fifty to the president and Congress. All of the legislative power belongs to Congress. Altering a bill so as to change its scope and enforcement is altering the legislation, and the executive has no such authority. The "unitary executive" has no basis in the Constitution and was fabricated out of whole cloth in order to grant the president greater powers.

Legally, we are not at war. While we may be in "a state of armed conflict," Congress has never formally drafted articles of war. That keeps things nice and ambiguous. We're fighting enemies in foreign countries, but we're not at war. We may in a "state of war," but we're not "at war." The president gets all the authority given to a Commander in Chief in a time of war with the advantage being that we don't have to follow traditional rules of warfare since we're not technically or legally at war. The Bush administration has relied on an ambiguity -- either maliciously or through ignorance - of legal language in order to get its points across. We can be at war without being at war; the president can have authorities that he doesn't have; and we can be spying without spying -- at least, as long as no one knows about it.

Posted by Mark at 10:49 AM | Permalink | Comments (0) | TrackBacks (0)

If you're a member of the ACLU, this is old news to you, since you probably receive those periodic updates in your email.

For everyone else, here's the scoop: the ACLU is leading the charge in a lawsuit against the National Security Agency (NSA) over the NSA's warrantless wiretaps. Read more about the ACLU's lawsuit. Read the legal complaint, American Civil Liberties Union v. National Security Agency [PDF]. The case was filed in U.S. District Court for the Eastern District of Michigan, Southern Division. The ACLU is asking for relief in the form of (1) a statement that the NSA's spying program is unlawful, and (2) a permanent injunction enjoining the NSA from conducting its warrantless electronic surveillance activities.

FISA allows the president, through the Attorney General, to conduct electronic foreign intelligence surveillance without a court order in the following three instances:

1. to conduct surveillance in an "emergency situation" provided the FISA court is given a retroactive application to conduct such surveillance within 72 hours of the beginning of the surveillance;
2. to conduct surveillance for up to one year if the Attorney General certifies, in writing and under oath, that the surveillance is directly solely at foreign powers and that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"; and,
3. to conduct surveillance for fifteen days of a formal declaration of war by Congress

ACLU alleges that the NSA's surveillance activities are not covered by any of the above three situations. The FISA court received no applications, ever; the attorney general never certified anything; and there was never a formal declaration of war by Congress.

Also, an interesting point brought up today on The Ed Schultz Show: if the president is content to engage in surveillance without the appropriate court orders, then why is he pushing for renewal of the USA PATRIOT Act?

Posted by Mark at 4:52 PM | Permalink | Comments (0) | TrackBacks (0)

Back in 2001, the state of Oregon enacted, by voter referendum, a law permitting physician-assisted suicide. New Attorney General John Ashcroft, an Evangelical Protestant, didn't much like the idea of assisted suicide, so he tried to illegalize Oregon's referendum, but since he didn't have a legal leg to stand on, it didn't work.

Ashcroft's next trick was to sanction physicians who used federally controlled drugs to induce death in patients who wanted to die. This was the subject of Ashcroft v. Oregon, which later became Gonzales v. Oregon, 04-623.

The Supreme Court ruled 6-3 on Tuesday that the Controlled Substances Act of 1970 could not be used to punish doctors who prescribed federally controlled drugs in order to euthanize patients who wanted to die. Chief Justice Roberts and Justices Scalia and Thomas dissented. This is a victory for the "right to die" crowd, who gained steam after the Terri Schiavo fiasco of last March. The "any life is a good life" motto of the Religious Right doesn't seem to be the prevailing opinion anymore. And that's good, unless you're John Ashcroft.

Today, the court released its opinion in Ayotte v. Planned Parenthood of New England, 04-1144. You'll recall that I wrote about this case in May, when the court granted certiorari.

Ayotte is about the legality of parental consent laws. Under a New Hampshire statute enacted in 2003, any unemancipated minor wanting to have an abortion performed was required to notify her parents at least 48 hours in advance of having the procedure. One of the things that I said would irk the justices was that the New Hampshire statute made no provision for saving the life of the mother. The Supreme Court mandated in 2000 that any abortion regulations had to make an exception for saving the life of the mother. As it turns out, I was right.

The Supreme Court made three conclusions in its opinion today:

1. Parental notification laws are, generally speaking, constitutional. States have the right to require minors to notify their parents prior to a non-emergency abortion. Justice O'Connor, writing for the unanimous court, noted, "States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their 'strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.'"
2. States cannot restrict access to abortions in the event of an emergency where an abortion may be required to save the mother's life.
3. In this specific instance, New Hampshire's statute is unconstitutional in as far as it makes no explicit exception for allowing an abortion to save the mother's life.

The court's ultimate ruling was that it vacated the First Circuit Court's decision -- that the law was unconstitutional -- and remanded the case to the First Circuit with the stipulation that the whole law doesn't have to go, just the parts that leave out access to emergency abortions. Justice O'Connor wrote that, while the lower courts chose "the most blunt remedy" of invalidating the entire statute, the Supreme Court would rather have lower courts issue injunctive relief than "have invalidated the law wholesale."

This brings up a curious question, however. Why did New Hampshire leave out such an obvious part of its statute? New Hampshire maintained that a variety of state and local laws would protect physicians from prosecution if they performed emergency abortions without notification, but the justices were still concerned that the statute lacked an explicit exemption. Would it have been so hard for the New Hampshire legislature to insert an exemption into the statute?

The Supreme Court vacated the First Circuit decision and sent this back for more review. What was the "legislative intent" of the New Hampshire law? Why was there no exemption? Did the New Hampshire legislature intend for there to be an exemption? Did the statute even allow for injunctive relief? These are questions that will be answered ... well, eventually.

Posted by Mark at 7:45 PM | Permalink | Comments (1) | TrackBacks (0)

Yesterday was Judge Samuel A. Alito's first day in front of the Senate Judiciary Committee. Here are some of the things he believes:

• He now believes that the Constitution protects a right to privacy, even though he said the opposite in a 1985 memo he wrote while he worked for the Reagan Justice Department.
• He said he thought that Robert Bork was the best judicial nominee of this century, though he now maintains that he was just reciting the Reagan administration line. (Bork is one of the proponents of the philosophy of "originalism," which maintains that the Constitution does not change and that we can know the Founding Fathers' intentions in interpreting the Constitution.)
• He does not believe that the president is above the law.
• After being thoroughly pressed, Alito admitted that he could not think of a case in which an enemy combatant or prisoner of war had been allowed to sue the government holding him. This is relevant to the recent Padilla cases, in which Jose Padilla -- a U.S. citizen was arrested as an "enemy combatant," held in a military prison, and denied habeas corpus. Padilla demanded the right to habeas corpus (that is, the right to be charged with a crime rather than being held indefinitely without being charged) and demanded the right to challenge their status as "enemy combatants." The Justice Department has argued that Congress gave the president the power to detain U.S. citizens indefinitely as part of his need to fight the War on Terr'. The Fourth Circuit Court of Appeals ruled that the president did not have the authority to detain U.S. citizens indefinitely.

Alito has some tough questions to answer. While John Roberts could safely say that his anti-abortion statements were twenty years behind him, Alito has no such refuge, though he has tried to suggest that his anti-abortion statements were due to the fact that he was trying to get a job in the Reagan Justice Department. While a Third Circuit Court judge in 1992, Alito wrote a dissenting opinion in Planned Parenthood v. Casey that wives should be required to notify their husbands of their plans to have an abortion.

Much of Alito's grilling will continue to consist of asking him why his opinions have changed, and whether or not he changed his opinion out of convenience, or because he truly changed his mind.

Posted by Mark at 11:48 AM | Permalink | Comments (0) | TrackBacks (0)

As we enter the last week before Christmas (has it been that soon? It seems like I got to California just yesterday, though it was Nov. 28), it's time we thought about what Christmas really means. If you're Bill O'Reilly, it's about forwarding the old straw man that the ACLU hates Christmas and religion and would like to see both destroyed in a massive, sodomistic fireball.

Or something like that.

The first major Christmas case the Supreme Court heard was Lynch v. Donnelly, 465 U.S. 668 (1984). In that case, respondents Donnelly, et al. objected to a Christmas display put up by the city of Pawtucket, Rhode Island. The court ruled that a display that contained "a Santa Claus house, a Christmas tree, and a banner that reads 'SEASONS GREETINGS'" in addition to a Nativity scene was not in violation of the Establishment Clause of the First Amendment.

Chief Justice Burger, author of the majority opinion in this 5-4 case, wrote that while a "wall" is a helpful metaphor for the boundary between church and state, the metaphor is not so simple in practice. "The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any," he wrote. (Chief Justice Rehnquist would later write about the "play in the joints" between the Establishment Clause and the Free Exercise Clause in Locke v. Davey [02-1315]. In that case, he noted that "[t]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." But that's a different issue.)

The point of Lynch was that a Nativity scene (also called a creche), placed in the context of celebrating the Christmas season -- while at the same time acknowledging other religions and secular traditions, did not "impermissibly [advance] religion or [create] an excessive entanglement between religion and government." But a problem with Lynch was that Burger relied heavily on the old "our country was founded on Christian principles" and "it's a Western tradition" arguments favored by Justice Scalia. (Recall that a thousand-year-old "western tradition" is permissible as justification for a ruling, but contemporary rulings from other courts around the world about the same issue are not.)

For five years, the world was safe from the Ghost of ACLU Present. But then, in 1989, the Supreme Court heard a case called Allegheny County v. ACLU, 492 U.S. 573 (1989) in which the ACLU challenged the constitutionality of two holiday displays in downtown Pittsburgh. The Supreme Court again found that the creche, a menorah, and an angel bearing the banner "Gloria Excelsis Deo" (Glory to God in the highest) were not in violation of the Establishment Clause. The case was not a fun and easy one. It was affirmed in part and reversed in part, which means that the justices were horribly split.

In the 1980s, then, it seems that the Supreme Court entered the ring with the pre-conceived notion that Christmas had to be saved, and found ways in which they could save Christmas. But then again, Christmas is also pretty secular. You can see how the justices might be split on this issue.

There are other cases dealing with Christmas, but I don't want to spend seventy hours researching them today, so I'll make this a multi-volume entry.

In Mark News, I took the CBEST (California Basic Educational Skills Test), the test that all people who want to be teachers in California or Oregon must take. It was incredibly easy, and yet there are some people who fret about it a lot. The point of taking the CBEST was to get an emergency teaching (substitute-teaching) credential and be a sub for a while in either Oakland or Berkeley. I recently received my "un-official" score results in the email, indicating that I had passed. Unfortunately, I can't apply for any sub jobs yet because, while I may have unofficially passed the CBEST, I haven't "officially" passed it yet, and I don't have the emergency teaching credential yet.

Posted by Mark at 9:33 AM | Permalink | Comments (0) | TrackBacks (0)

CNN reports that a liberal, activist, baby-killing, greenhouse gas-hating, America-hating, terrorist-loving, Happy Holidays-saying, Christmas-hating judge has ruled "intelligent design" unconstitutional.

Oh, and he's probably a pedophile.

The case, Kitzmiller v. Dover, which the ACLU has been vehemently fighting all year, ended yesterday when Judge John E. Jones, III, of the U.S. District Court for the Middle District of Pennsylvania, ruled that the Dover Area School Board was in violation of the First Amendment in its use of "intelligent design" in biology classrooms. Jones also said that several school board members lied in an attempt to cover their religious motivations.

In the 139-page opinion (!), Jones said, "We find that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom." Jones is unimpressed by claims from ID advocates who say that ID is a scientific theory. In going through the history of creationism in schools, Jones notes, "[R]eligious opponents of evolution began cloaking religious beliefs in scientific sounding language and then mandating that schools teach the resulting 'creation science' or 'scientific creationism' as an alternative to evolution." Intelligent design, he says, is just another one of those attempts to circumvent the First Amendment by cloaking a religioius philosophy in the language of science.

The opinion, of course, will be appealed to the U.S. Circuit Court for the Third Circuit, which has jurisdiction over Pennsylvania, New Jersey, and Delaware.

Posted by Mark at 10:51 PM | Permalink | Comments (1) | TrackBacks (0)

Last Tuesday, the Supreme Court heard oral arguments in the case Rumsfeld v. Fair. I have written about this before, but here is a brief synopsis. The Solomon Amendment requires any school receiving federal funding to allow military recruiting on campus. A conglomeration of law schools, FAIR, has objected to this policy on the grounds that it disagrees with the military's anti-gay policy, and forcing the schools to allow military recruiting would be "compelled speech."

SCOTUSblog analyzed the oral arguments and concluded that the Solomon Amendment was probably here to stay. Even the court's more liberal justices joined conservative justices John Roberts and Antonin Scalia in raising an eyebrow at FAIR's opposition to the Solomon Amendment. The other justices "seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws -- including federal anti-discrimination laws -- by claiming their refusal to obey was a matter of their beliefs or conscience." Remember: Supreme Court justices must not only consider the impact of a decision on the parties at hand, but also the impact of those decisions on anyone in a similar situation in the future.

We have a situation in which a public organization -- a state-funded university -- is being compelled to do something with which it does not agree. "Compelled speech" is just as heinous a violation of the First Amendment as censorship or anything else the government could do with its power. If the Supreme Court were to rule in favor of the Department of Defense, then it would be saying that compelled speech is okay in the case of state institutions. Or, the court would be saying that it is okay to deny funding to organizations that disagree with a particular government policy or refuse to implement that policy.

Also, the Supreme Court has always viewed money as synonymous with power (cf. McCullouch v. Maryland, in which Chief Justice John Marshall observed that "the power to tax involves the power to destroy," and concluded that since no state body could destroy a federal body, the state of Maryland could not, therefore, levy a tax upon a branch of the Bank of the United States within Maryland), and the withholding of money is synonymous with the withholding of power.

Then again, laws that require states to have a drinking age of 21 are also constitutional. (The federal government withholds highway funds from states with a drinking age of less than 21, thereby creating a de facto national drinking age of 21. A state may disagree with the law, but if it wants its federal highway money, it had better have a drinking age of 21.)

Posted by Mark at 12:04 AM | Permalink | Comments (1) | TrackBacks (0)

Now that I can easily travel to San Francisco, you might think that I'm there all the time. Not so much. Only recently have I been going to the city, for my job(?). I think I've found the Ninth Circuit Court of Appeals building. Which brings me to my story.

John Gilmore, you'll recall, is a dot-com millionaire and a co-founder of the Electronic Frontier Foundation. He's currently involved in a legal tiff with the government over his right to travel anonymously. The government says that there is a law on the books that requires passengers to produce identification to travel on airplanes, but the law is so top secret that Gilmore, a U.S. citizen who would like to obey the law, isn't allowed to see it.

Last week, the Ninth Circuit Court of Appeals held an open hearing regarding Gilmore's case -- and I missed it! Scott chided me for not going to the hearing, and I responded, "But I don't have Internet access!" I just got Internet access on Tuesday.

Fortunately, Boing Boing has a link to an audio file of the hearing. Also, for your perusing, papersplease.org has a list of legal documents pertaining to the case, which is now called Gilmore v. Gonzales.

Posted by Mark at 10:38 AM | Permalink | Comments (0) | TrackBacks (0)

Slate has an amusing review of the oral arguments from a case heard yesterday, Georgia v. Randolph. After being called about a domestic disturbance at the Randolph home, police were led by Mrs. Randolph to a sock drawer upstairs where her husband kept some cocaine. Mr. Randolph returned home in the middle of this and demanded that the search stop. The police didn't stop. They found some more cocaine and arrested Mr. Randolph on drug charges.

The question facing the Supremes: what if one inhabitant of a house objects to a search, while the other inhabitant allows it? Should the law err on the side of protecting privacy -- and thus require a warrant in this case -- or should it err on the side of allowing the search? The court seemed divided, with Chief Justice Roberts on the side of "when you live with someone, you compromise your expectation of privacy" and Justice O'Connor leading the side of "just because one inhabitant says it's okay to let the police in, doesn't make it okay."

Read these briefs from the petitioner and respondent in the case and then go read the Georgia Supreme Court's opinion, which held that "the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search."

Posted by Mark at 4:40 PM | Permalink | Comments (1) | TrackBacks (0)

The Supreme Court today released its first slip opinion of the 2005 Term. The case, IBP, Inc. v. Alvarez, 03-1238 (2005) [PDF], was the first case John Roberts heard as Chief Justice. At issue was whether or not employers had to compensate employees for the time they spent putting on protective clothing. The Fair Labor Standards Act of 1938 requires that employees be compensated for walking to and from the location of "principal activity." This also included activities that were "preliminary" or "postliminary" to the "principal activity." In this particular case, employees of IBP, Inc. (a meat-packing company) sought compensation for the time they spent putting on protecting clothing and walking to the production floor.

Now, if you were some anti-labor robber baron, you'd have voted against this. Curiously, however, this was a unanimous decision of the court. All nine justices agreed that the FLSA requires employers to compensate employees for the time employees spend putting on protective clothing.

The second case the court released today, United States v. Olson, 04-759 (2005) [PDF], is a tort case. "Tort," in addition to being a delicious dessert, is an Old French legal term meaning "wrong." (I imagine that Sam Waterston enjoys a tort that is filled with raspberry-flavored justice!) Two questions need to be asked in tort cases: (1) was someone wronged? and (2) who's responsible? These two questions are tricky. In the first case, there may be a question as to whether or not there was a wrong at all. In the second case, even if it has been determined that someone has been wronged, it's hard to tell who's responsible. If Little Timmy from next door toddles into your swimming pool and drowns, is there damage? And who's responsible? Clearly, there's damage: Little Timmy is dead. Who's responsible? That's why Little Timmy's mother took you to court. (Turns out that the court would probably say that it's your fault; a swimming pool is an "attractive nuisance," which means that you should take all the measures you can to ensure that no one drowns.)

In U.S. v. Olson, the court pondered whether or not the U.S. government could be liable in a case where workers in an Arizona mine were killed. The plaintiffs in the case asserted that federal mine regulators' negligence caused the mine accident, and such, they sued the United States. So, we have (1) a wrong -- two miners were killed -- but do we have (2) responsibility? The United States, of course, claimed that it was not responsible. The Federal Tort Claims Act allows tort suits against the government are permissible "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." A U.S. district court in Arizona dismissed the case, reasoning that Arizona law would not impose liability on a private person in similar circumstances. The Ninth Circuit Court of Appeals reversed the district court's decision, holding that Arizona law would make a state or municipality liable for such actions, and therefore, the United States could also be held liable. The Supreme Court didn't much care for this opinion at all, and in another unanimous opinion, reversed the Ninth Circuit Court. Justice Breyer, taking time off from his duties as an ice cream magnate, wrote that the Ninth Circuit misinterpreted the Federal Tort Claims Act, as the act does not allow the U.S. to be liable in instances where a "state or municipality" would be liable -- only in cases where a "private person" would be liable. (The Ninth Circuit reasoned that, since there is no private job analagous to that of mine inspectors, the "private person" standard had to be altered. What a bunch of hippies.) The Supreme Court vacated the Ninth Circuit's decision and sent it back to the lower courts for further consideration.

Well, I guess torts went as boring as I thought they were! That case was awesome! And what's more, we had two unanimous opinions in the same day. I think the Court is turning over a new leaf.

Posted by Mark at 1:19 PM | Permalink | Comments (1) | TrackBacks (0)

Okay, so making fun of Italian accents is probably inappropriate when discussing President Bush's new Supreme Court nominee, Samuel A. Alito, Jr. But you know what? I like hurtful stereotypes. And you know what else? As an Italian Catholic, Alito will no doubt let the Pope control the court, just like John F. Kennedy let the Pope control the nation while Kennedy was president.

Unlike his predecessor, Harriet Miers, Judge Alito passes the "minimum requirements" test required for a Supreme Court. If the Supreme Court were Windows XP, then Harriet Miers would have been a Pentium III, 500 MHz machine with 128 MB of RAM and a 5 GB hard drive. Clearly, she would have had problems running Windows XP. Now, Alito is more like a Pentium 4, 1 GHz machine with 256 MB of RAM and a 40 GB hard drive. Okay, he can run Windows XP. We don't have to worry about meeting the minimum requirements. Alito's record is, thankfully, long and boring:

• 1972: Earned B.A. from Princeton University
• 1975: Earned J.D. from Yale Law School
• 1976-1977: Law Clerk for Third Circuit Court Judge Leonard Garth
• 1977-1981: Assistant U.S. Attorney for the District of New Jersey
• 1981-1985: Assistant to Solicitor General Rex E. Lee
• 1985-1987: Deputy Assistant to Attorney General Edwin Meese
• 1987-1990: U.S. Attorney for the District of New Jersey
• 1990-2005: Judge, U.S. Court of Appeals for the Third Circuit
• 2002-2005: Adjunct Professor, Seton Hall University School of Law

Even though he meets the minimum requirements, in our little analogy, Alito would be an HP computer.

Yes, like all computers manufactured by HP or Compaq, Alito has a fatal flaw. In the case of HP's computers, they were assembled by blind monkeys. In the case of Alito, he doesn't like abortion so much, which is just what the evangelical Protestants that make up Bush's religious base wanted. (The monkeys, on the other hand, were hoping for a justice who would uphold monkey labor rights and give them some medical marijuana for their glaucoma.)

The big stink being made about Alito revolves around an opinion he wrote in 1991 as a judge with the U.S. Third Circuit Court of Appeals, which serves Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands. The case in question is called Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682. In that case, the Third Circuit Court was asked to decide whether amendments to Pennsylvania's Abortion Control Act of 1982 were unconstitutional. A U.S. District Court found sections requiring informed consent, parental consent, spousal notice, reporting requirements, and public disclosure of abortion clinics' reports to be unconstitutional. The Third Circuit Court reversed all of these decisions, except one, holding that only the spousal notice section -- section 3209 -- was unconstitutional. When the case came before the U.S. Supreme Court (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 [1992]), it affirmed the Third Circuit Court's decision that "husband notification provision constitutes an undue burden, and is therefore invalid."

Judge Alito concurred in part and dissented in part. He did not agree with the court's conclusion that husband notification was unconstitutional because it imposed an "undue burden" upon the woman, that burden not serving a "compelling state interest." Did he go the extra step of suggesting that a woman should not only notify her husband about an abortion, but get approval from her husband before obtaining an abortion? I can't find that anywhere in the text of the decision. All that Alito has to say about husband notification is that he can't see any reason why it's a bad idea:

The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial.

Again, I stress that nowhere in the text of Alito's dissenting opinion could I find anything that might construe that he believes husbands should have the authority to veto a woman's choice to have an abortion. Of course, I've been wrong in the past.

Alito does not believe that suggestions that women would not tell their husbands about an abortion for fear of abuse are compelling, since the plaintiffs in the case did not provide statistics detailing how many women might be abused:

Second, the plaintiffs offered testimony that the exceptions in Section 3209 would not cover a case in which a woman did not want to notify her husband for fear that he would retaliate in some way other than the infliction of bodily injury upon her, such as by subjecting her to psychological abuse or abusing their children (see 744 F. Supp. at 1360-62). The plaintiffs, however, do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute.

Third, the plaintiffs introduced general evidence about the problem of spouse abuse (see 744 F. Supp. at 1361). They offered widely varying statistics concerning the dimensions of the problem, as well as evidence that battering occurs in all socioeconomic groups and is sometimes fatal. This proof, while documenting the existence of a broad national problem, provides no basis for any estimate of what is relevant here -- the impact of Section 3209.

Fourth, the plaintiffs offered evidence that "mere notification of pregnancy is frequently a flashpoint for battering" (see 744 F. Supp. at 1361). This proof indicates when violence is likely to occur in an abusive marriage but provides no basis for determining how many women would be adversely affected by Section 3209. Finally, the plaintiffs offered the opinion of one of their witnesses that most battered women would be psychologically incapable of taking advantage of Section 3209's fourth exception, i.e., the exception for cases in which the woman has reason to fear that notification will lead to the infliction of bodily harm upon her (see 744 F. Supp. at 1363). However, the plaintiffs failed to show how many of the women potentially affected by Section 3209 (married women seeking abortions without notifying their husbands) are victims of battering. Thus, the opinion offered by their expert, even if taken at face value, merely describes the likely behavior of most of the women in a group of unknown size. Clearly, then, this evidence does not show how many women would be inhibited or otherwise harmed by Section 3209. I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women.

Since the plaintiffs provided no hard facts that a woman might be battered, Alito concludes that the testimony of one witness is not good enough to invalidate section 3209.

He believes that a husband has a "fundamental" and "legitimate" interest in the fetus and that the husband should be involved in the decision-making process, but he stops short of saying that husbands should have veto power over a woman's abortion; indeed, he acknowledges prior case law that held "that a potential father may not be given the legal authority to veto an abortion" (cf. Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 [1976]).

Alito's opinions in other areas aren't so radical: he held that a school that failed to prevent a student from being bullied because of his "lack of athleticism and perceived sexual orientation" was liable for that bullying. He struck down a school district anti-harrassment policy that regulated vulgar speech or school-sponsored speech that was not threatening or disruptive. But I believe that abortion is the reason that Bush nominated him. John Roberts was a failure for the Christian conservatives, since he wasn't as conservative as they thought. After Roberts, the religious base wanted 100% certainty that the next nominee would re-illegalize abortion. Harriet Miers was a failure because she had no judicial track record to go on. The assertions of advisors behind closed doors that she would overturn Roe v. Wade were not assuring enough to the religious right. Alito is their man: he has a definitive track record of ruling against abortion. He's a one-trick pony. He's quite conservative, in the mold of Scalia, and he will definitely push the court to the right, something that's not desirable at all.

For more on Alito's history, read SCOTUSblog's biography of him and his cases.

Posted by Mark at 11:02 AM | Permalink | Comments (0) | TrackBacks (0)

Set your VCR to start taping C-SPAN starting Nov. 7. That's when Harriet Miers' confirmation hearings start. The Republicans want a vote in the full Senate before Thanksgiving.

Posted by Mark at 12:10 PM | Permalink | Comments (0) | TrackBacks (0)

With Alberto Gonzales channeling the spirit of John Ashcroft in order to engage in a War on Pornography, there's some question as to what "pornography" is. Justice Potter Stewart, in the 1964 case Jacobellis v. Ohio (378 U.S. 184), famously opined, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Stewart said the comment followed him for the rest of his days on the court.

But there is no legal standard for "pornography." The million-dollar word is obscenity. Current case law regarding obscenity was defined in Miller v. California, 413 U.S. 15 (1973). Appellant Miller conducted a mass-mailing campaign to advertise "adult" material and was convicted by a jury for "knowingly distributing obscene matter." The U.S. Supreme Court upheld his conviction and, after twenty years of obscenity cases, created a standard for determining what is "obscene."

Like most Supreme Court tests, the Miller test has three prongs. To be deemed "obscene," a work must meet all of the following criteria:

1. The average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest (i.e., having to do with sex).
2. The work must describe, in a patently offensive way, sexual conduct specifically defined by applicable law. ("Patently offensive" means that it must be overt; it's not enough that sexual conduct is suggested or described in a roundabout way.)
3. The work must lack "serious literary, artistic, political, or scientific value." This prong is often called the SLAPS test.

Thus, most of the stuff that we would today call "pornography" is classified as "obscene" and is not protected by the First Amendment. Of course, if "applicable law" doesn't prohibit particular sexual conduct, then there's no legal issue. Also, the Miller test takes into account "contemporary community standards" instead of creating a blanket standard for the entire nation, since community standards of obscenity may vary from city to city or state to state.

So, Gonazles' War on Porn is legally permissible. Does that mean the Justice Department should spend its time worrying whether or not consenting adults watch other consenting adults do obscene things? I think there was another war going on, a war on ... ah yes, terrorism! And yet, our neo-con friends in the Bush administration have decided that it's just as important to prevent consenting adults from becoming morally corrupted (as defined by the Bush administration, which is populated by evangelical Protestants) as it is to prevent terrorists from killing us! But "adult pornography is a threat to families and children," possibly a bigger threat than terrorism.

"I guess this means we've won the war on terror," said one exasperated FBI agent, speaking on the condition of anonymity because poking fun at headquarters is not regarded as career-enhancing. "We must not need any more resources for espionage." [Source.]

The world is a safer place. Mission accomplished.

Posted by Mark at 2:10 AM | Permalink | Comments (0) | TrackBacks (0)

A lot of people, all of them named President George W. Bush, are comparing Supreme Court nominee Harriet "The Curse of Michael" Miers to Justice Byron White, who served on the court from 1962 until his retirement in 1993. He died in 2002.

The comparison is largely due to the fact that White, like Miers, had never been a federal judge prior to his appointment. But the comparison ends there. White received a Rhodes scholarship and attended Hertford College at Oxford University. He graduated first in his class from Yale Law School. He clerked for Chief Justice Frederick M. Vinson. He went into private practice. He served as Deputy Attorney General. Byron White's record is closer to William Rehnquist's than to Harriet Miers'.

Posted by Mark at 5:30 PM | Permalink | Comments (1) | TrackBacks (0)

Charles Krauthammer, one of The Washington Post's token conservative columnists, made a good point about Harriet Miers. Conservatives who want to increase the power of the president claim that Harriet Miers, having been part of the White House for four years, has first-hand knowledge of the necessity to increase the president's power. But this, says Krauthammer, is also her flaw:

Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years -- crucial years in the war on terrorism -- she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.

That's right: she's useless to us in matters of expansion of executive authority because she was one of the people who crafted the expansion of executive authority. She'll have to recuse herself in all of these cases regarding presidential authority, and thus the only apparent reason for her nomination is moot, anyway. In other news, Charles Krauthammer has a face like a turtle's.

[Via The Randi Rhodes Show.]

Posted by Mark at 7:24 PM | Permalink | Comments (0) | TrackBacks (0)

I wrote a pretty long article the other day after listening to a University of Chicago law professor on The Al Franken Show talk about Justice Stephen Breyer's new book, Active Liberty. It's six pages, so I figured I'd distribute it in Adobe PDF rather than make it a gigantic blog entry.

Download "Originality and Active Liberty" [48 KB, PDF]

Here's an excerpt:

I wholeheartedly agree with Breyer’s assessment of originalism. In the world of literary theory, which is arguably much more subjective and less precise than the law, it’s a cardinal sin to try and divine the author’s intent. This is called the “intentional fallacy”: you can never know why the author did something in a novel. You can never know the author’s intentions. And if the literary world thinks it’s wrong, then certainly the legal world – a world based in precision of language and thought – would think it’s wrong, too. But, no. Originalists believe that they can divine the intention of the framers of the Constitution, and to some degree, as the University of Chicago professor said, this is true. You can know that the Founding Fathers wanted the federal government to have very specific powers and the state governments to have very broad powers. You can know that the Founding Fathers didn’t intend for states to be able to usurp the authority of the federal government. You can know that the Founding Fathers valued individual liberty above all else.

But gay marriage? In the world of the 18th century, there were people that we would today call homosexuals, but even these proto-homosexuals themselves would never dream of marrying another homosexual. It just wasn’t done. It wasn’t even thought of. Sure, you could be a man and have a sexual relationship with another man, but you wouldn’t marry the guy. Why would you? It was the same as a married man having an affair with another woman, which was also done plenty in the 18th century, sometimes by the Founding Fathers themselves. And so they didn’t insert provisions about gay marriage into the Constitution – not because they were against it, but because the idea didn’t cross their minds and thus they didn’t think they would need to create a contingency for it.

The article is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike license.

And even if you don't read it, that's okay. Because I'll just slash your tires.

Posted by Mark at 12:57 AM | Permalink | Comments (0) | TrackBacks (0)

"Critics of Harriet Miers suggest that, since she didn't go to an Ivy-league law school, she's not qualified for the Supreme Court." Is this true? Well, Daily Kos says that Ann Coulter says this, and indeed, she does:

Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.

I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court.

Nonwithstanding her stupid point that "conservatives have been trained to hate people who went to elite universities" (George H.W. Bush: Yale; George W. Bush: Yale; George Will: Princeton; William F. Buckley: Yale; Alan Greenspan: NYU; even Coulter herself received a B.A. from Cornell University and her J.D. from University of Michigan Law School, which is ranked #8 in the country by U.S. News and World Report), she does say that SMU doesn't qualify her for the Supreme Court.

On that Brit Hume show on FOX News last night, a bunch of commentators talked about the issue of going to an elite university or not. But is that really the point?

Not at all. The point is that Harriet Miers, while perhaps an able corporate lawyer, has not shown that she can think like a Supreme Court justice. They cannot think of the law in merely pragmatic terms; they must look at the law almost like philosophers. They must be legal scholars who think about the theory of the law as well as lawyers who understand the practice of law. They must think about how the application of the law applies to the entire nation and the nation's future, not just how the law applies to a particular client in a particular instance. Nothing in Miers' resume suggests that she is capable of doing this; every other justice on the court right now has dealt with legal issues on a national, theoretical scale, whether as a circuit court judge or as a member of the attorney general's office.

I believe it may have been George Will who said that if you made a list of the 10,000 most qualified lawyers in the country to be a Supreme Court justice, Harriet Miers' name wouldn't appear on that list. So why did Bush pick her? Oh, yes: the cronyism!

Posted by Mark at 4:13 PM | Permalink | Comments (0) | TrackBacks (0)

Wonkette held a poll yesterday asking readers which celebrity or character Harriet Miers most resembled. Today, it looks like the leader is Emperor Palpatine.

Posted by Mark at 4:31 PM | Permalink | Comments (1) | TrackBacks (0)

Ned pointed out that Pat Buchanan has visited the issue of Harriet Miers' qualifications. I hate to say it, but Pat Buchanan is right:

This is not to disparage Harriet Miers. From all accounts, she is a gracious lady who has spent decades in the law and served ably as Bush’s lawyer in Texas and, for a year, as White House counsel.

But her qualifications for the Supreme Court are non-existent. She is not a brilliant jurist, indeed, has never been a judge. She is not a scholar of the law. Researchers are hard-pressed to dig up an opinion. She has not had a brilliant career in politics, the academy, the corporate world or public forum. Were she not a friend of Bush, and female, she would never have even been considered.

What commended her to the White House, in the phrase of the hour, is that she “has no paper trail.” So far as one can see, this is Harriet Miers’ principal qualification for the U.S. Supreme Court.

Even George Will is upset about the nomination of Harriet Miers:

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

Many other Republican commentators are using the word "competent" to describe someone other than Harriet Miers.

The last paragraph of Buchanan's excerpt is important, though. Whereas there was some question as to whether or not the Reagan Library had to give up documents that John Roberts wrote back when he was in the Solicitor General's office, there is no question about Harriet Miers' documents. Since she spent the last four years working directly for the White House, every single document she wrote in the last four years can legally be withheld by citing "executive privilege." In selecting Miers, Bush has selected a Supreme Court nominee who is bulletproof in the sense that no one knows what she thinks because no one is allowed to know what she thinks from her writings.

This tactic, while demonstrating the kind of shrewdness only Karl Rove is capable of, could backfire. Democrats won't want to vote for her because they don't know what she believes. Hardcore neo-cons won't want to vote for her because they don't know her position on several key neocon wedge issues, Roe v. Wade not being the least of them. They wanted to be sure that Bush would appoint a hard-right Republican in the mold of Antonin Scalia or Clarence Thomas in order to move the court right and secure their control over the three branches of the federal government. Since John Roberts turned out to be not-so-hard-right as everyone thought, the solid, inner neo-con core of Bush's world will demand a candidate who is definitely, no-foolin' hard right. The fact that we don't know much about Harriet Miers puts that in jeopardy. And not even celebrity jeopardy.

Interestingly enough, Daily Kos has found some documents on Harriet Miers ("Sure, if you want to spray your shirt with documents!"). Apparently -- and this should be disconcerting to neo-cons -- Miers loves the gays. In 1989, when she was running for Dallas City Council, Miers filled out a gay rights questionnaire from the Lesbian/Gay Political Coalition of Dallas. According to the questionnaire, she supports increased AIDS research funding and believes that gays should have the same rights as straight people. Remember, now: this was 1989. In Texas. That's a big deal. Back in 1989, even Rosie O'Donnell wanted to stone the gays.

John Roberts is a hard act to follow; one Senate judiciary member said that he could very well be the most brilliant legal mind of our time. While we don't know very much about Harriet Miers (and that's the way Bush & Co. want it), we do know this: she ain't no John Roberts. And John Roberts' keen legal mind was able to get him through the nomination process: after all, who in his right mind could argue that Roberts wasn't qualified? Any arguments about his partisanship would have to take a back seat to the fact that he was really, really smart. In the case of Harriet Miers, she's not nearly as qualified, and thus questions about her partisanship could get through her shields, even if she re-routed emergency power to the shields and randomized the shield frequencies.

But my dad came up with the best explanation as to why Bush nominated her:

She's got pictures. And they're of her. And every day she shows them to George Bush, and she says, "Nominate me to the Supreme Court and I'll stop showing you these pictures." And she was president of the Texas Bar Association, right? So maybe Bush never got over his alcoholism and thought, "Bar? She's president of the Bar Association? That's my kind of woman!"

Posted by Mark at 2:59 PM | Permalink | Comments (0) | TrackBacks (0)

Here are some numbers regarding current members of the U.S. Supreme Court, including John Roberts and William Rehnquist:

• 2 justices received their law degrees from Stanford University
• 5 justices received their law degrees from Harvard University
• 4 justices worked for the U.S. Department of Justice before becoming federal judges
• 6 justices worked in private practices
• 8 justices worked for a federal circuit court of appeals before becoming a Supreme Court justice
• 1 justice held elected office
• 1 justice worked for the ACLU
• 4 justices were law professors
• 0 justices had personally worked for the president who nominated them
• 10 justices worked for a federal or state legal body (a court or an attorney general's office)

These last two items are the problems I have with Harriet Miers, President Bush's pick to replace Sandra Day O'Connor (in the above list, O'Connor is one of the two with a law degree from Stanford and the only one to hold elected office). What's troubling about Harriet Miers is the degree to which she has been involved with George W. Bush. In 1994, she was his General Counsel while he was trying to get elected governor of Texas. She's worked for the White House since 2001 and has known George W. Bush since 1994. Note that working for the White House is not the same thing as working for the Attorney General's office, which several justices did in the past: her boss is the president. No other Supreme Court justice currently on the bench ever answered directly to the president who appointed him or her. Is she perhaps too close to the president? How much of a loyalist is she? Would she rule against executive power if she had to? These are questions that must be asked during her confirmation hearings.

The other issue is her qualifications. The highest office she has ever held was as chairwoman of the Texas Lottery Commission. This is an administrative, not a legal position. Contrast this with the other justices, who either worked for state or federal courts or for the U.S. attorney general. What experience does she have in dealing with complex legal issues, the scope of which are beyond a municipality or a state? She spent most of her professional life (24 years) as a member and then a partner at the Texas law firm Locke, Purnell, Boren, Laney, & Neely (the firm changed names twice over the years, to give you an idea how long she was there). We don't know anything about any judicial rulings she might make, and indeed, there is some question as to how qualified she is to make judicial rulings on the U.S. Supreme Court level. Sandra Day O'Connor, whom she would replace, was a state court judge for four years and a U.S. circuit court judge for two years. That's six years of experience as a judge. Why is Harriet Miers' first big legal job that of Supreme Court justice? Every other justice has done something significant on the national level before becoming a Supreme Court justice, and yet Harriet Miers would walk into the job with no experience as a judge. Only Rehnquist and O'Connor never worked for a federal court before becoming justices, but as I just mentioned, O'Connor spent six years as a judge and Rehnquist spent three years as an assistant attorney general. Also, they both attended Stanford University. Southern Methodist University, while I'm sure is nice, is no Stanford.

If I were the Senate Judiciary Committee, I would vote against her because she lacks the qualifications necessary to do the job. The other justices have set the bar of qualifications very high, and she fails to meet that bar.

Posted by Mark at 1:22 PM | Permalink | Comments (2) | TrackBacks (0)

At roughly sometime in the morning EDT, the U.S. Supreme Court will begin its 2005 term. What exciting things -- besides the Anna Nicole Smith case -- are on the docket? Oh, man: there's a lot.

Today, Monday, Oct. 3, is the court's -- and John Roberts' -- new term. Roberts takes his seat on the court less than a week after being confirmed by the Senate. Today, the court will hear two oral arguments in two cases. The first is so boring that I want to punch myself. In BP, Inc. v. Alvarez et al., the Court will answer the burning question of

Whether walking that occurs between compensable pre- and post-shift clothes-changing and the time employees arrive at or depart from their actual work stations constitutes non-compensable “walking . . . to and from the actual place of performance of the principal activity or activities which such employee[s] [are] employed to perform”

Turns out that a 1947 law says that an employer is not obligated to pay an employee for the time that employee spends walking to work. But does time spent changing into a work uniform count? For thousands of years, man has been concerned with this question.

The other case that Roberts will hear on his first day on the job is Wagnon v. Prairie Band Potawatomi Nation, the Court will decide some stupid thing about taxing fuel receipts off of an Indian reservation, and whether or not this tax applies to the Prairie Band Potawtomi Nation because it sells fuel to consumers.

But the biggie comes on Wednesday: Gonzalez, et al. v. Oregon, et al.. This case has been going on since John Ashcroft first became Attorney General. Remember when he invalidated Oregon's assisted suicide law? Remember when the Supreme Court said he didn't have the power to do that? Well, now they're hearing the case. This case will decide the constitutionality of assisted suicide laws, all within Roberts' first three days in office (well, two -- Tuesday is a non-argument day). At issue is whether or not the federal Controlled Substances Act (21 U.S.C. 801 et seq.) "prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of any state law purporting to authorize such distribution." So, does Oregon's voter-approved law allowing assisted suicide invalidate the Controlled Substances Act, since these substances are being used for something that is legal under state law? Since this is a conservative court, don't bet on it: federal laws always trump state laws, regardless of intent. In this way, Ashcroft tried to use the Controlled Substances Act to foist his personal religious beliefs about assisted suicide on the voters of Oregon. Now Ashcroft has to take up the reigns of the case since he is the current Attorney General.

I'm excited about the Oregon case; I was turned off to Ashcroft ever since I read about what he did. Oh, it was long ago: the year was 2001. I was a freshman at Miami, eating breakfast at Ovations, a subsidiary of Scott Dining Hall. And it burned me up that Ashcroft would try crap like that because he's a crazy Christian. But I hold out hope that the Supreme Court will rule his actions illegal.

Posted by Mark at 12:49 AM | Permalink | Comments (0) | TrackBacks (0)

Earlier today, in a 78-22 vote, the Senate confirmed John Roberts as the new chief justice of the United States. After being confirmed, Roberts was sworn in by acting Chief Justice John Paul Stevens.

But what of Sandra Day O'Connor's replacement? The court's term starts Oct. 3, and there's still a vacant seat -- but not really. O'Connor made her retirement in June contingent upon the fact that her replacement be confirmed before the beginning of the court's 2005 term. Since that's four days from now, it looks like O'Connor will resume her duties when the court convenes on Monday. Bush spokespeople have said that he will announce his O'Connor replacement sometime next week.

Bush announced Roberts as his O'Connor replacement July 19, and his confirmation hearings were scheduled for approximately six weeks later, on Sept. 6, but William Rehnquist's Sept. 3 death stalled the process for about a week as Bush shifted Roberts to the chief justice track. It will probably be December before O'Connor is replaced, as Senate Democrats will want to look extra-carefully at Bush's O'Connor replacement to ensure that the candidate is just as moderate as O'Connor. For Bush to replace her with a person as conservative as Roberts would tilt the court to the right, something the Democrats really don't want.

Let me tell you something: Roberts isn't as bad as everyone's making him out to be. For one, he's more than qualified (something we can't say about all Bush appointees), and for another, he's not the hard-right ideologue that NARAL would have you believe he is. During his confirmation hearings, he acknowledged that he is not the same lawyer that he was in the 1980s when he worked for the Justice Department. His opinions as a federal court judge show that, while he interprets the law conservatively, he takes cases as they come and doesn't try to make his court opinions match some sort of grand, overarching judicial philosophy. Of course Bush was going to appoint a conservative; there's no way around that. The only question was: will this conservative consider his opinion of a case in light of the law itself, or in light of his theoretical model of how the law should work? At the very least, we have a justice who subscribes to the former, not the latter, attitude toward interpreting the law.

Posted by Mark at 3:54 PM | Permalink | Comments (3) | TrackBacks (0)

In what will prove to be the most important case the U.S. Supreme Court has dealt with in the last twenty years, the Court has granted certiorari to Vickie Lynn Marshall v. E. Pierce Marshall, 04-1544 (2004) [link goes to Ninth Circuit Court's opinion]. But you might know Vickie Lynn Marshall better by her stage name, "Anna Nicole Smith." So, I guess this case won't be that important at all. Never mind.

And, as you probably guessed, E. Pierce Marshall is the son of J. Howard Marshall, II, the man she married a year before he died in 1995 at age 89. For ten years, Anna Nicole Smith has fought with Marshall's son over whether or not she is entitled to over $400 million of her late husband's fortune. Marshall fils contends that she is not in the will and therefore doesn't get any money.

The Supreme Court, though, will not be deciding who gets the money. In fact, nothing about this case is interesting. There's no money, no glamour, no fame or fortune. At issue is whether or not a federal court has jurisdiction to hear claims from state probate courts. The case began in a Texas bankruptcy court, then to the U.S. bankruptcy court, then to a U.S. District Court in California before ending up at the Ninth Circuit Court of Appeals, headquartered in San Francisco. (Shouldn't the case have gone to the Fifth Circuit Court, which has jurisdiction over Texas?)

So why did this case start in bankruptcy court? Turns out that Anna Nicole Smith was going bankrupt in California at the same time that probate proceedings were going on in Texas. The bankruptcy court in Texas awarded her $474 million, but the U.S. District Court brought that down to $89 million. In 2004, the Ninth Circuit Court ruled that federal courts in California had no jurisdiction over the case and declared that Smith should receive no money, which brings us to the question at issue for the U.S. Supreme Court: did the U.S. District Court in California have the jurisdiction to consider a claim from the Texas probate court?

Now, I love the Supreme Court. But seriously. Bankruptcy and probate are boring unless there are vampires involved. And not even Anna Nicole Smith can spice up a probate case. Now, if she were a vampire, then I'd have a fighting chance of staying awake. Come on, take some First Amendment cases! The Court's 2004 term was super-awesome and was probably one of their most exciting ever. I don't expect the 2005 term to be as nail-biting, but it better not be a snoozer. Oh, and if you're shopping for my birthday, sentencing guidelines cases put me to sleep, too.

[Fox News story about the case.]

Posted by Mark at 11:11 PM | Permalink | Comments (0) | TrackBacks (0)

Remember last year, when the U.S. Supreme Court totally wussed out in Elk Grove School District v. Newdow? No? Well, here's a refresher: petitioner Newdow was the father of a girl in the Elk Grove School District and objected to the Pledge of Allegiance being said in her classroom. Newdow is an atheist. So he sued the school district, alleging that the Pledge of Allegiance -- with its sentence "under God" -- was unconstitutional. The Ninth Circuit Court ignited a firestorm in 2002 when it agreed with Newdow. The case went to the Supreme Court, where 5 of the 9 justices threw the case out on a technicality: Newdow was divorced and his wife had legal custody of their daughter. Thus, the Court said, Newdow didn't have standing to bring the case, since he wasn't the girl's legal guardian. The Court thought that they had averted the Pledge of Allegiance issue.

Until now! Deep within the murky depths of the Pacific Ocean, where the Japanese had been testing nuclear bombs, a monster emerges from the water: the Pledge of Allegiance! Watch as it destroys Moth-ra, Megalon, and Mecha-Pledge of Allegiance! Nothing can stop it this time!

That's because Newdow, a lawyer, found himself some people who did have custody of their kids and agreed to be petitioners in a new lawsuit. Yesterday, the U.S. District Court for the Nothern District of California ruled the Pledge of Allegiance unconstitutional. This launched a new firestorm: what would the Ninth Circuit do? Would it rule the same way three years later? What if this case got to the Supreme Court? John Roberts, as chief justice, might have to make a ruling about it!

The only issue with the Pledge of Allegiance is the issue that there are some people -- I call them demagogues, and I call Sean Hannity World's Most Pus-Filled Douchebag -- who don't understand what the Constitution means. It's very clear: "Congress shall respect no establishment of religion." That's called the establishment clause, kids. It means Congress cannot give an endorsement to any religion, and placing "under God" in the Pledge of Allegiance constitutes such an endorsement. Whose God? The Christian God? What about everyone else's gods? What about atheists? Some people -- again, demagogues -- accuse the judiciary of trying to remove God from people's lives. They're mistaken. The judiciary is trying to remove God from the government's life, a place where it definitely doesn't belong.

Posted by Mark at 2:16 PM | Permalink | Comments (3) | TrackBacks (0)

Sam Brownback (R-KS) asked some questions of chief justice candidate John Roberts today. And they were incredibly dumb questions. I'd make him a SEDHE Villain of the Forever, but he hasn't done anything wrong. He was just dumb.

First, he went into a tirade about the First Amendment and, as a part of that, virtual child pornography. I won't even go into how wrong his interpretation of that is. That's a whole other blog entry. (For the record, I'm against real child pornography because it is wrong to depict real children in pornographic situations, but not virtual child pornography because, in the latter instance, they're not children!)

Then, he went into a tirade about gay marriage, all without asking Roberts a question about gay marriage. He talked for about five minutes about the definition of marriage and didn't even ask Roberts a question about it! It was mostly for the cameras, I think. Just to let everyone know what Sam Brownback thinks about the "traditional" definition of marriage, as if they cared. Then again, a lot of senators "asked questions" that consisted of posturing for the cameras and telling everyone what they thought about particular cases, often coming to ridiculously simplified conclusions that were, again, simplified for the public at home and so that they could create easily defeated straw men. There's a reason why some of these senators aren't Supreme Court justices.

After that, he asked an incredibly stupid question: whether or not Congress has the authority, under Article I, § 8 of the Constitution, to "constitute tribunals inferior to the Supreme Court." Huh? This is a question on the final exam at Obvious University. Then he asks if Congress has the power to split a circuit court into two -- specifically, the Ninth Circuit, which is geographically huge and has a large caseload. Why even ask this question? Of course Congress can split a circuit! It can do whatever it wants to circuit courts! The Constitution gives it the authority to establish them in the first place -- in fact, you just quoted the freaking text where it says it can -- so Congress could abolish them all if it wanted to! There is no great judicial question in this matter. It's plain as day and Sam Brownback wasted everyone's time.

Finally, he talked about the degree to which the judiciary can influence appropriations. The power of appropriating money is given exclusively to Congress by the Constitution, but Brownback was referring specifically (or obliquely) to Forum for Academic and Institutional Rights, Inc. v. Rumsfeld, a 2003 case in which a federal district court in New Jersey ruled that it was unconstitutional for the federal government to deny federal funding to state institutions of higher educated that prohibited military recruiting on campus. In this case, it was possibly unconstitutional for the federal government to impose a requirement upon colleges that those colleges may not have agreed with, a violation of their First Amendment rights, specifically that of freedom of expressive association (cf. Boy Scouts of America v. Dale, 99-699 (2000)). While the federal court sided with the government, it's clear that if Congress is were attaching an unconstitutional requirement along with appropriations, then those appropriations would fall under the court's jurisdiction, since judicial review gives it the power to review Acts of Congress that might be unconstitutional, including appropriations. In this instance, the judiciary was not ruling on the money itself -- it's not "getting into the business of appropriating funds," to use Brownback's words -- but rather the conditions under which the money was given to universities. Certainly any law student could see the difference, but apparently Sam Brownback went to the same law school as former FEMA director Michael Brown. (Michael Brown's law school wasn't accredited by the American Bar Association, by the way.) The judiciary can always review an Act of Congress, no matter what that act is, as long as it is the constitutionality of the act that is in question.

And now let me try to put Roberts' judicial philosophy in perspective, because it sometimes rubs people the wrong way. I was thinking about this while I was watching his hearings today. When he votes against the Endangered Species Act or says that the Endangered Species Act is bad law, he is not saying that the government should not protect endangered species. When he agrees with a Supreme Court decision that struck down federal laws banning guns within so many yards of schools, he is not saying that prohibiting guns within so many yards of schools is a bad idea. The law is composed of two elements: the ends and the means. In the case of the Endangered Species Act, the end is to ensure that species on the verge of extinction are protected. I think Roberts would agree that this is a laudable goal and every effort should be made to preserve endangered species. What he takes issue with is the means; that is, the specific way in which the Endangered Species Act has been put into law. The Endangered Species Act gives Congress very broad power in telling private individuals how they can and cannot use their private land, and this has been the primary cause for concern regarding the Act. Roberts -- and other conservatives on the current Supreme Court -- believe that Congress has been given too much authority via the "commerce clause," which appears in Article I, § 8 of the U.S. Constitution and gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The argument that it is Congress' authority to regulate interstate commerce that gives it the ability to protect endangered species is, in the opinion of Roberts, an abuse of the commerce clause. And he's right. But this is not to suggest that Congress or the states shouldn't protected endangered species; they should just go about it in a different way, for legislation like the ESA creates a precedent for expansive congressional power. In a country built on common law -- such as ours -- precedent has the same weight as law, which is why bad legislation creates a "slippery slope" that can lead to worse legislation in the future.

To suggest, then, that because Roberts opposes the Endangered Species Act means that he opposes saving endangered species is to misunderstand the law. It's not that he hates endangered species or loves guns; he merely wants to see the government regulate each in a way that doesn't broadly expand the federal government's powers, allowing for future legislation that has the expansiveness of the ESA without the positive outcome.

Posted by Mark at 11:51 PM | Permalink | Comments (0) | TrackBacks (0)

Since when does Roe v. Wade "invent" a right to privacy? I had a thought the other day. What about the Tenth Amendment? What about the Ninth Amendment?

Strict constructionists -- like Antonin Scalia, Clarence Thomas, and the late William Rehnquist -- insist that, if the Constitution doesn't explicitly allow it, then it's prohibited. They further deny that the Constitution is a "living document" the meaning of which can change as the nations change. Amendments, they maintain, are the only way to change the Constitution.

But let us not pretend that language hasn't changed since 1787. Law is based on language and the specificity of language, and when that language changes, it can be a problem. Concepts change, also. The world changes. Inflation happens, the Internet happens, and a whole host of situations arise that the Founding Fathers, living in 1787, could never have imagined. I mean, seriously -- they literally could never have imagined that those things would happen. Space travel or human flight were not practical in their minds; if anything, such ideas were science-fiction. The radio? The television? The Internet? These are all inventions that our Founding Fathers could not have predicted would exist in reality and thus are not things that have been taken into consideration in the writing of the Constitution.

Perhaps the most famous example of a power not explicitly granted to Congress is the power to create an air force. Article I, Section 8 of the Constitution gives Congress the express power "[t]o raise and support Armies" and "[t]o provide and maintain a Navy," but the Constitution does not explicitly grant Congress the ability to create a military force composed of flying vehicles. What about the "necessary and proper" clause, which has been the justification for a whole host of crazy legislation? If you'll look further at the famous "necessary and proper" clause, it says that one power of Congress is

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

But providing an air force is not one of "the foregoing Powers." Nevertheless, Congress has blatantly ignored the Constitution, which does not give it the power to create an air force. And so we have an air force. Because if we stuck to the absolute letter of the Constitution -- which will turn 218 years old this Saturday -- we are stuck in the legal language of 218 years ago.

Not to worry, though, because the Constitution itself tells us the breadth with which it should be interpreted. The Ninth Amendment, ratified in 1791 along with the rest of the Bill of Rights, tells us, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This amendment is conveniently forgotten by strict constructionists because it provides textual support for the Constitution as a document intended to be interpreted broadly. "Just because a right isn't mentioned specifically in the Constitution doesn't mean that a person doesn't have that right," says the Constitution. In other words, the Constitution itself is saying, "If it isn't expressly prohibited, then it's allowed" -- the mantra of broad constructionism. Therefore, insisting that a right to privacy is a stupid interpretation of the Constitution is to misunderstand the Constitution. In fact, to have a strict constructionist approach the Constitution is to misunderstand the Constitution. A right to privacy is a right that is not enumerated in the Constitution; however, the Tenth Amendment explicitly tells us that just because that right isn't mentioned, that doesn't mean that the people don't have it.

The history of the Ninth Amendment reveals this fact. James Madison, principal author of the Bill of Rights, talked of the necessity of such an amendment when he presented his twelve amendments to the House of Representatives:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

In other words, the Ninth Amendment was inserted into the Constitution so prevent strict constructionists from pointing to the Constitution and saying, "You don't have right [X] because the Constitution doesn't say you have right [X]."

The Tenth Amendment also provides textual support for a broad constructionist interpretation of the Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This amendment, more so than the Ninth, confirms that the Constitution itself allows anything it does not prohibit; thus, the document itself tells us how it should be interpreted. In case law, this has meant that states have the power to do things that are not expressly given to the federal government to do. Thus the Constitution calls for a limited federal role, that role being circumscribed by the Constitution itself. This prevents the federal government from regulating liquor sales, for example, because the Constitution does not give Congress the authority to regulate liquor sales. But it does not forbid regulation of liquor sales, either, and the Tenth Amendment says that the states can regulate liquor sales, since Congress isn't given the authority to do so.

The argument that a right to privacy is not in the Constitution, and is thus a fallaciously derived right, is itself fallacious because it ignores the fact that the Constitution does not enumerate all of the rights that Americans have. Indeed, it says exactly the opposite, acknowledging that there are some rights that it does not explicitly spell out. The Founding Fathers -- of which Madison was one -- recognized the fact that government is not in the business of giving rights to people. People have rights -- some of which are listed in the Constitution, while others are not -- but these rights are held by people naturally, by virtue of their being human beings. The government does not give rights to people; rather, the Constitution tells the government what the scope of its powers is. To use a parallel analogy, the Constitution doesn't grant liberty to people; rather, it takes liberty from the government. Or, in the words of Chief Justice John Marshall in the case McCullough v. Maryland, 17 U.S. 316 (1819):

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.

Posted by Mark at 10:01 PM | Permalink | Comments (2) | TrackBacks (0)

President Bush announced today that he would withdraw Roberts' name for nomination as a regular justice and instead nominate him as chief justice! (Reuters story via Yahoo! News.)

While the chief justice doesn't have any more power than any of the other justices, he certainly sets the tone of the court. It's going to be thirty more years of conservative court, it seems. Whereas initially he seemed to be more moderate, documents show Roberts is in the same mold as Rehnquist: he's all about conservatism.

Posted by Mark at 2:10 PM | Permalink | Comments (1) | TrackBacks (0)

Let's pretend.

John Roberts' confirmation hearings were scheduled to begin on Tuesday, but with the death of Chief Justice William Rehnquist, it looks like those hearings might not happen. The Supreme Court is scheduled to reconvene Oct. 3, and Bush tried to nominate Roberts early enough in the summer that he might be seated in time for the new court term, but that looks unlikely. The court will probably convene in October with seven members. I don't know if John Paul Stevens would function as an acting chief justice since he now has seniority. I do know that his bow tie would be awesome.

Scenario #1: "A Whole Lotta Hearings Goin' On"

Roberts' confirmation hearings are rescheduled. Bush decides to appoint another new justice, and at the same time, nominate a current associate justice to be the chief justice. In this scenario, there will be two court vacancies and an unprecedented three hearings going on simultaneously. In this scenario, Bush will probably nominate Antonin Scalia to be chief justice. In reality, the position of chief isn't terribly important. More important is the president that appoints the justices. The chief has no more power than any associate justice. In the event of a tie, he has no tie-breaking powers; a tie means that the lower court ruling stands, just as though the Supreme Court had never heard the case.

Bush would probably nominate one of his new federal court judges to be the next associate justice, or possibly Alberto Gonzales, the Attorney General who's too conservative for the liberals and too moderate for the president's core neo-con base. As a justice on the Texas Supreme Court, he voted to allow minors to get abortions without the need for parental consent.

Scenario #2: "The Chief Justice with the Dopey Haircut"

President Bush may choose to rescind his nomination of Roberts as an associate justice and instead decide to nominate him as chief justice immediately. This means there would be only two hearings -- one for Roberts and one for another associate justice. I used to think that this was the exception rather than the rule, but it turns out I was wrong. Of the sixteen chief justices this country has had, only four -- Rehnquist, Charles Evans Hughes, Edward Douglass White, and John Rutledge -- were elevated from associates to chiefs. The other 12 entered the court as chiefs. So it's definitely not without precedent that Bush could nominate Roberts immediately to the chief justice position. (Rutledge's appointment was a recess appointment; nevertheless, he is still counted as a Chief Justice.)

Scenario #3: "Mystery Chief Justice"

Or, Bush could continue to nominate Roberts as an associate justice and nominate somebody else to the chief position. Again, it could be one of his federal judges or it could be Alberto Gonzales.

Scenario #4: "Eight is Enough"

Could Bush just leave the court with eight members? When it convened for the first time in 1789, the Supreme Court had six members. When FDR tried to add more in 1937, critics said that he was trying to "pack" the court with judges who were sympathetic to his New Deal reforms. In 1935, the Court unanimously declared some of his reforms unconstitutional. Did I mention that it was unanimous? And that there were three rulings? All unanimous? Yeah, that's a lot of unanimous rulings. But Roosevelt's attempt to add up to six more justices -- for a total of 15 -- met with negative reactions from Congress and the public.

Congress is the only body with the ability to control the numbers of the Supreme Court. The Constitution specifies only that a Supreme Court exists; it was up to Congress to create the federal court system's structure, which it did in the Judiciary Act of 1789. Back then, there were six justices. The nine-justice composition of the Court comes from an 1869 Act of Congress.

So, could Congress vote to amend the Judiciary Act to decrease the number to eight? Technically, yes. But practically, they wouldn't. It would take too much haggling, and besides, having an odd number of justices is good because it decreases the number of ties that would occur. Remember: in the event of a tie, the lower court's ruling stands, and for a bad decision to stand because of a technicality is really stupid. Socrates was tried by a jury of 501 Athenian citizens; the Supreme Court should do no less. Except that it should do less in terms of numbers, because that's a lot of justices. Let's just stick to odd numbers. This is by far the most unlikely of all possible actions.

(Here's an intersting article from the Supreme Court Historical Society about changes in the court's numbers.)

So, what's going to happen to the Supreme Court? Historically, it's more probable that Bush will nominate a new chief justice than it is probable that he'll elevate an existing justice. That scenario also means that there will be only two hearings, rather than three. What we do know is that the court will probably meet Oct. 3 with seven members, since Roberts' and the Mystery Justice's hearings won't be finished by then.

And who will the Mystery Justice be? Gonzales appeared to be Bush's man after Sandra Day O'Connor retired, but neo-cons balked at his moderate stance on some of their favorite issues. Other names floated were Janice Rogers Brown, recently appointed to the D.C. Circuit Court, and Emilio Garza of the newly-waterlogged Fifth Circuit Court.

Posted by Mark at 3:00 PM | Permalink | Comments (0) | TrackBacks (0)

U.S. Supreme Court Chief Justice William Rehnquist died this evening at his home. The question now becomes: who will become the next chief justice? Aside from the John Roberts confirmation hearing, we're looking at two more confirmation hearings: one for the new chief justice (who will probably be an existing justice) and one for the new associate justice. Bush will probably nominate someone who is more conservative than John Roberts, to maintain some sort of balance.

This is entry number 300! Woo!

In other news, this blog may look funny for a little while. My upgrade of Movable Type to version 3.2 was a colossal failure, forcing me to do a clean install of MT 3.1.

Posted by Mark at 11:26 PM | Permalink | Comments (0) | TrackBacks (0)

Well, George W. Bush selected his Supreme Court nominee: D.C. Circuit Court Judge John Roberts. Thus far, he doesn't sound like a winner.

Roberts spent most of his career as a private-practice lawyer, working for the firm Hogan & Hartson from 1986 to 1989 and again from 1993 to 2003, when he was appointed to the U.S. Court of Appeals for the District of Columbia Circuit. Prior to working for Hogan & Hartson, he clerked for Second Circuit Court Judge Henry Friendly and then-Supreme Court (Associate) Justice William Rehnquist. In 1981, he joined the Justice Department, but left in 1986 to work for Hogan & Hartson. He returned to the Justice Department in 1987, then left again in 1993. His only experience as a judge has been the two years he has served on the D.C. Circuit Court. And he's only 50!

50?! Is that young for a Supreme Court Justice? They're all old fogies now! Here's how old the current Justices (plus O'Connor) were when they were appointed:

• Rehnquist: 48 (appt. 1972)
• Stevens: 55 (appt. 1975)
• O'Connor: 51 (appt. 1981)
• Scalia: 50 (appt. 1986)
• Kennedy: 52 (appt. 1988)
• Souter: 51 (appt. 1990)
• Thomas: 43 (appt. 1991)
• Ginsburg: 60 (appt. 1993)
• Breyer: 56 (appt. 1994)

The mean (average) age for the current justices is 51.8 years, and the median age is 51. This means that, statistically, the mean for their ages is skewed to being a year older than they should be (in a perfect world, the mean and the median would match, and when they don't -- as in the case of income in the United States -- it tells us interesting things), but 51-52 is the average age, so 50 is nothing special. He wouldn't come close to Clarence Thomas' 43 or Ginsburg's 60. He's nicely in between. The reason we think of Supreme Court justices as old fogeys is because now, twenty and thirty years after most of them were appointed, they are. But back when they were appointed, they were spry, middle-aged men and women.

So how about this Roberts guy? Well, he doesn't like Roe v. Wade, for one thing. This is what he said in a government brief in the case Rust v. Sullivan, 500 U.S. 173 (1991), which dealt with prohibiting federally-funded family planning clinics from discussing abortion as an option:

We continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court’s conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure, or history of the Constitution.

He also has no problem with a little bit of prayer in schools. In Lee v. Weisman, 505 U.S. 577 (1992), Roberts co-authored an amicus brief saying that a prayer at a public school graduation was constitutionally permissible. The Court disagreed. Interestingly, the government wasn't even involved in the case, but decided to file an amicus brief, anyway.

In 1990, he co-authored the government's brief in United States v. Eichman, 496 U.S. 310 (1990), in which the constitutionality of the Flag Protection Act of 1989 -- which prohibited flag burning -- was challenged. The Court struck down the law. Even Justice Scalia wrote, "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

You can read more in People for the American Way's report on Roberts. His sketchy record on First Amendment issues, as well as his inexperience as a judge, all conspire to make him a not-so-good choice to be a Supreme Court justice. Gonzales would probably have been better.

Posted by Mark at 11:58 PM | Permalink | Comments (4) | TrackBacks (0)

Earlier this evening, ailing Chief Justice William Rehnquist issued a statement saying he was staying on the court:

"I'm not about to announce my retirement," he said.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist, 80, said in a statement first disclosed by The Associated Press and later confirmed by the court. "I will continue to perform my duties as chief justice as long as my health permits."

Rehnquist issued the statement hours after being released from an Arlington, Va., hospital after being treated for two days with a fever.

Ever since his announcement last year that he had thyroid cancer, we've been waiting for Rehnquist to retire. Last Friday, Supreme Court insiders claimed that Rehnquist would retire by the end of the day, but no dice. I guess he's tired of people asking him when he's going to announce his retirement.

Posted by Mark at 1:17 AM | Permalink | Comments (2) | TrackBacks (0)

In his 1945 essay "Politics and the English Language," George Orwell talks about how words can be used and misused to the point where they no longer have any meaning:

The word Fascism has now no meaning except in so far as it signifies “something not desirable.” The words democracy, socialism, freedom, patriotic, realistic, justice have each of them several different meanings which cannot be reconciled with one another. In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides. It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning. Words of this kind are often used in a consciously dishonest way.

Republicans have attempted to used the word "activist" to describe federal judges who do not rule in the ways they would like them to rule. Of course, Democrats have thrown the word right back, taking it and making it their own in describing some of Bush's controversial federal court nominees. Like "fascist" before it, the word "activist" has grown to have no meaning beyond "doesn't rule they way I want him to." One of the surest ways to discredit a political opponent is to call him or her an "activist," suggesting that perhaps he or she has an ideological agenda beyond merely enforcing, interpreting, or writing the law which is not in the best interests of the nation as a whole, but rather in the interests of a minority faction.

But is it really that subjective?

An op-ed in The New York Times suggests that "activism" is quantifiable. Operating under the assumption that "striking down Congressional legislation as an act 'of great delicacy, and only to be performed where the repugnancy is clear,'" the authors Paul Gerwitz and Chad Golder set about examining how many times the nine current Supreme Court justices engaged in that most activist of tasks, striking down Congressional legislation as unconstitutional.

The results are quite surprising. Based on their data, Clarence Thomas -- one of the court's most conservative justices -- was the most "activist," as he voted to overturn federal legislation in 65.63% of the cases where the constitutionality of federal legislation was in question. Breyer, one of the most liberal justices, was the least "activist," voting to overturn federal legislation in only 28.13% of cases where he could have done so.

The word "activist" has many definitions, and if used quantitatively, it has more meaning than if used qualitatively, where it can be slung pejoratively at any justice that a critic doesn't like.

Posted by Mark at 11:06 PM | Permalink | Comments (1) | TrackBacks (0)

The Court finished up its 2004 term on Monday with a motherload of important cases. But the real drama was yet to come! Just now -- as in, hours earlier -- Justice Sandra Day O'Connor, appointed by Ronald Reagan, and the first lady Supreme Court justice -- announced her retirement:

O'Connor, 75, said she will leave before the start of the court's next term in October, or when the Senate confirms her successor. There was no immediate word from the White House on who might be nominated to replace O'Connor.

Yes, who will be the next Supreme Court justice? Will it be current Attorney General Alberto Gonzales? Will it be one of the crazies that got confirmed to the various Circuit Court appointments? The next Supreme Court justice will indeed be a crazy conservative, ensuring that the Bush legacy lives on for at least thirty years after he's out of office.

Posted by Mark at 1:21 PM | Permalink | Comments (0) | TrackBacks (0)

Justice David Souter was one of the folks who voted in favor of allowing the seizure of private property for nebulous reasons in last Thursday's Kelo v. New London decision.

Now, a satirical group called Freestar Media is seriously contacting a New Hampshire land developer and suggesting that a hotel be built on Souter's property there. They have contacted the city of Weare, New Hampshire in an attempt to get them to seize the property by virtue of their newly-granted eminent domain rights so that the property can be turned over to a private developer.

I understand these people are satirists, but this appears to be genuine. Of course, one of the problems with satire is that it can be mistaken for the truth (cf. "A Modest Proposal"). Nevertheless, I suspect that Freestar Media is just crazy enough to actually suggest building a hotel on Souter's property.

Posted by Mark at 6:53 PM | Permalink | Comments (2) | TrackBacks (0)

It's been quite a week for the Supreme Court. Last week, they released a ruling that everyone hated. Today, they're still releasing rulings that people hate. Let's have a look at the recent Supreme Court rulings!

MGM v. Grokster, 04-480

This is the big one that all the intellectual property people were waiting for. We had hoped that the Supreme Court would rule that Grokster, a file-sharing network, is not liable for the infringement committed by its users. Sadly, the Supreme Court (in a unanimous opinion!) ruled in favor of content providers. In its opinion (did I mention it was 9-0?!), the Court created a new standard of contributory infringement, holding that

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.

This new standard replaces the one set by Sony v. Universal, 464 U.S. 417 (1984), in which devices that can break the law are legal so long as they have "substantial non-infringing uses." Now, a distinction has been made between devices which have non-infringing uses and devices which were designed specifically to break the law.

File-sharing networks, while they engage in breaking the law by providing access to copyrighted materials, do engage in "substantial non-infringing uses." Many Linux distributions are distributed over file-sharing networks, as well as the work of independent musicians. The justices didn't seem to care for these uses, however, and chose to mandate that "evidence of intent to promote infringement" be a factor in determining contributory infringement.

Does this mean that every inventor must go out of his way to make sure that his invention can't break the law? Not really. Note the words "clear expression" and "affirmative steps" in the block citation above. Negligence is not an "affirmative" step toward copyright violation. Thus, if a use for an invention is discovered that breaks the law, and that use was not part of the original intent for the invention, then the inventor is not liable, since there is no "evidence of intent" to break the law. Nevertheless, this is a blow to file-sharing networks and any device which can easily move information around. While it's not as bad as it sounds, it gives added moral support to content providers' quest to destroy file sharing.

McCreary County v. ACLU of Kentucky, 03-1693

McCreary County, Kentucky decided to display the Ten Commandments in its courthouses. The county's argument was that the display was totally secular -- honest! -- and that the Ten Commandments are part of the history of the law. The Court didn't buy this argument, citing the case Lemon v. Kurtzman, 403 U.S. 602 (1971), which establishes a test to determine whether or not the government breaks the Establishment Clause with its actions. The Lemon test evaluates the "secular legislative purpose" of a religious action. McCreary County argued that the Lemon test should be thrown to the wayside in this case, since "true 'purpose' is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent." The majority didn't buy this for a second, calling McCreary County's arguments "as seismic as they are unconvincing." The Court found that McCreary County acted without a "secular legislative purpose."

The decision was 6-3, with Rehnquist, Scalia, and Thomas dissenting. Of course, Scalia brought in his usual garbage about cultural heritage and Western tradition, which are perfectly permissible as law, even though contemporary international cultural norms and court opinions are not. These three are the most conservative justices, so their being on the opposing side makes sense. What's important is that the swing people -- O'Connor and Kennedy -- were on the majority side. That means that this was a good ruling.

Van Orden v. Perry, 03-1500

The Court actually dealt with two Ten Commandments cases. The second, Van Orden v. Perry, was similar. The Texas State Capitol contained 21 historical markers and 17 monuments, among them "a 6-foot high monolith inscribed with the Ten Commandments." A District Court and the Fifth Circuit Court held that the display did not violate the Establishment Clause. The Supreme Court agreed in a very divisive 5-4 ruling. Rehnquist delivered the opinion of the court, but Thomas and Scalia filed concurring opinions, meaning they agreed with the outcome but had different methods of getting to that outcome. Breyer also filed a concurring opinion. Stevens filed a dissenting opinion, meaning he disagreed with the judgment, and O'Connor filed a separate dissenting opinion which Stevens and Ginsburg signed on to. Holy cow! Ultimately, the Court concluded that this display was permissible because the Ten Commandments were included in the context of "a broader moral and historical message reflective of cultural heritage." Another good, if schizophrenic, ruling.

Kelo v. New London, 04-108

This opinion makes me cry. Petitioner Kelo is a woman who owns a house in New London, Conn. New London wanted to use its right of eminent domain to take Kelo's house and hand it over to a private developer. The city justified this by saying that the increased tax revenue and new jobs generated by the private developer's improvement of the land is a "public use" as specified in the Fifth Amendment, which forbids the seizure of private land by the government unless the land is set aside for "public use." Until now, such a use has been pretty overt: a park, a highway, something everyone can use. But now, the Supreme Court has endorsed the time-honored practice of municipalities taking public land and handing it over to private developers. Municipalities -- cities and towns -- are some of the most corrupt governmental institutions. There are hundreds of examples all over the country of towns and cities taking private land with the promise of "public use" and handing the land over to a private developer so that developer can build a store or a parking lot. This practice has been questioned, but now it has been rendered valid by the Supreme Court, which was clearly high at the time they wrote the majority opinion.

John Paul Stevens, who is about a thousand years old and is out of touch with reality as we know it, wrote the majority opinion, which displeased conservatives and liberals alike. Seriously: no one likes this opinion!

Sandra Day O'Connor, writing the dissenting opinion, was extremely eloquent. She and the others who dissented -- Scalia, Rehnquist, and Thomas -- were very concerned that the majority had redefined "public use" to mean practically anything:

In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

The nebulous promise of increased tax revenue or more jobs, says O'Connor, is not specific enough to be defined as "public use." Clarence Thomas wrote his own dissenting opinion which, considering that it's Clarence Thomas, was very cogent and well-written. Thomas gives us a lesson in the etymology of the word "use," concluding that "use" requires that something be done with the land by the people. They have to be able to use it. People cannot use tax revenue or jobs. But the best part of Thomas's opinion is that he discusses how the writers of the Constitution used another phrase -- "general Welfare" -- to describe things which intangibly benefit the people:

Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. (“Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope.

Good job, Clarence Thomas! He ends his dissent by calling the majority opinion what it is: "far-reaching and dangerous." For, as O'Connor says, if "public use" can mean any tiny, tiny benefit that may, someday, somewhere, in the nebulous future, be a benefit, then municipalities can turn land over to private corporations and pocket the profits, and municipalities are always concerned with increasing tax revenue.

Posted by Mark at 7:11 PM | Permalink | Comments (0) | TrackBacks (0)

If only I had my Supreme Court fetish back when the CBS show First Monday was on. That was about four years ago, and it was a West Wing-style series about the Supreme Court (with fictional justices who were somewhat based on the real justices).

Anyway, today is a day of sadness for hippies. The Court ruled 6-3 today that federal law prohibits growth of marijuana by private citizens, even in the case of medical marijuana. In Gonzales v. Raich, 03-1454 (formerly Ashcroft v. Raich, the Court held that "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." The infamous Commerce Clause, found in Article I, section 8 of the U.S. Constitution gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Even though California state law, called the Compassionate Use Act, permitted "limited marijuana use for medicinal purposes," the DEA seized and destroyed all of respondent Monson's marijuana plants under the authority of the Commerce Clause. The Ninth Circuit Court of Appeals ruled that a preliminary injunction against the government would be allowed, since there was a strong likelihood of proving that the federal Controlled Substances Act "is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law."

Somehow, the U.S. Supreme Court has reasoned that Congress' power to regulate interstate commerce does apply to "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes."

Whaa?

The Court's reasoning had to do with the compelling government interest in regulating "legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking." The Court also maintained that "Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly stablished":

If Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in rejecting the appellee farmer’s contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

So, if I'm producing killer robots for my own use, Congress may regulate my personal, non-commercial production of killer robots if "failure to regulate [the production of killer robots] would undercut the regulation of the interstate market in [killer robots]." I actually like this argument, since it isn't a "drugs are bad" argument, but rather a positive argument based on non-moral reasoning about Congress' ability to regulate interstate activities.

Justice Scalia concurred in the outcome of the judgment, but filed an opinion in which he says that he came to the same conclusion not because of Congress' Commerce Clause authority, but its "Necessary and Proper" clause authority, which is also to be found in Article I, section 8 of the U.S. Constitution, where Congress is given the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Scalia gives us a little lesson about the history of the Commerce Clause, and how the third element of Congress' commercial regulation authority comes not from the Commerce Clause, but its need to enact laws that are "necessary and proper" for allowing it to regulate interstate commerce, including "activities that substantially affect interstate commerce," like the local production of wheat, marijuana, or killer robots. If my private activities can be shown to substantially affect commerce elsewhere in the country, then my activities can be regulated.

Even if marijuana were legal to grow, buy, and smoke, it would still be controllable, and the argument would be the same. Good job, Supreme Court, for not being self-righteous in attempting to keep our kids safe from drugs! (And I'm serious about that.)

This opinion changes very little in the way of federal drug controls. Those have always taken precedence over state drug laws, and if a state permits marijuana use and a federal law prohibits it, the federal law wins. The jury is still out on federal killer robots legislation.

Posted by Mark at 7:26 PM | Permalink | Comments (2) | TrackBacks (0)

Success! Apparently, the case Ayotte v. Planned Parenthood was not a New Hampshire Supreme Court decision, but a First Circuit Court decision. The case from the circuit court is called Planned Parenthood, et al. v. Heed (04-1161) and was decided by the First Circuit Court Nov. 24, 2004. When the case started, Peter Heed was the Attorney General of New Hampshire, but since then, Ayotte has become the new Attorney General, and thus, the new respondent (remember that when a case is appealed, the terms flip; the respondent becomes the petitioner, and vice versa).

Some background of the case, in terms of New Hampshire law:

In June 2003, the New Hampshire legislature passed "AN ACT requiring parental notification before abortions may be performed on unemancipated minors," which states that:

No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

RSA 132:25, I. (2) Paragraph II specifies that "written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent." RSA 132:25, II. Paragraph III allows for notification by certified mail with return receipt requested and with restricted delivery to the addressee. RSA 132:25, III.

The notice requirement is waived if

(a) The attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide required notice; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

RSA 132:26, I.

If a minor does not want her parent or guardian notified, she may request a state judge, after a hearing, to "authorize an abortion provider to perform the abortion if said judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion," or if the judge determines that "the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests." RSA 132:26, II. In these proceedings, the pregnant minor may act on her own behalf or be appointed a guardian ad litem, and she must also be advised that she has a right to request court-appointed counsel. RSA 132:26, II (a). The court proceedings "shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interest of the pregnant minor." RSA 132:26, II (b). Specifically, "[i]n no case shall the court fail to rule within 7 calendar days from the time the petition is filed." RSA 132:26, II (b). The judge must also "make in writing specific factual findings and legal conclusions," and order a record of the evidence to be maintained. RSA 132:26, II (b).

If the minor's petition is denied, an "expedited confidential appeal shall be available," and the appellate court must rule within seven calendar days of the docketing of the appeal. Access to the trial and appellate courts for the purposes of these petitions "shall be afforded such a pregnant minor 24 hours a day, 7 days a week." RSA 132:26, II (c).

Violation of the Act can result in criminal penalties and civil liability:

Performance of an abortion in violation of this subdivision shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification. A person shall not be held liable under this section if the person establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are bona fide and true, or if the person has attempted by reasonable diligence to deliver notice, but has been unable to do so.

The U.S. District Court for the District of New Hampshire found the statute to be unconstitutional and issued an order (an injunction) enjoining (preventing the enforcement of) the statute.

At issue is whether or not the New Hampshire law is "facially invalid," meaning that the law is patently invalid as written. The New Hampshire Attorney General argued that the standard of facial invalidity, as set forth in United States v. Salerno, 481 U.S. 739 (1987), should be used. Such a standard requires that the plaintiffs prove that "no set of circumstances exists under which the Act would be valid." That's a pretty tough order for Planned Parenthood to fill, and the Circuit Court wasn't going to buy it.

Instead, the Circuit Court suggested that the standard in the case should be Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), in which the U.S. Supreme Court concluded "that a law which 'has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus' places an unconstitutional 'undue burden' on the exercise of her right to choose abortion." In much the same way that a "chilling effect" of the possibility of censorship places an undue burden on the exercise of First Amendment rights, laws which try to prevent abortion by making the process difficult also place a "chilling effect" on abortion (this is only an analogy, kids; they're not one and the same issue). If the process of getting an abortion is difficult an time-consuming, fewer people who would have wanted abortions will not get them because of administrative obstacles put in place specifically to discourage people from having abortions, not for a "compelling government interest" (for more analogy regarding laws put in place to discourage particular activity, not to further a compelling government interest, see Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), where the city of Hialeah, Florida tried to enact laws specifically to discourage the practice of the Santeria religion). But where were we? Oh, yes: the Circuit Court suggested that facial invalidity should be determined by Casey because, in that case, the court determined that "an abortion regulation is facially invalid if 'in a large fraction of cases in which [the regulation] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion,' thus imposing an 'undue burden.'"

Additionally, the New Hampshire law makes no exception for abortion in order to save the mother's life, something that the Supreme Court mandated for all abortion laws in Stenberg v. Carhart, 530 U.S. 914 (2000). In this case, the Court objects to a parental consent requirement which makes no provision for the health of the mother, since "[a] health exception is as requisite in statutory or regulatory provisions affecting only minors' access to abortion as it is in regulations concerning adult women." The Attorney General argued that there is an implied provision for the health of the mother, but the Circuit Court observed, "Even if these statutes could be cobbled together to preclude all civil and criminal liability for medical personnel who violate the Act's notice requirements in order to preserve a minor's health, we would not view them as equivalent to the constitutionally required health exception." The Court later echoed the words of Dr. Wayne Golder (who testified that "physicians cannot predict with adequate precision what course medical complications will take, and thus cannot always determine whether death will occur within [the 48-hour window]"), observing that "the Act forces doctors to think about criminal prosecution at a time when we need to be concentrating on doing what is best for our patients, thus creating unnecessary risk to patients' health and lives." Thus the Circuit Court declared the statute facially unconstitutional, per the requirement in Stenberg.

The Supreme Court has had a nasty and devisive history on abortion. In almost every instance that this court has dealt with abortion, it's been a plurality decision. It is unknown whether Rehnquist will be around to hear this case, and if the Court ends with a tie, then the lower court ruling stands. No doubt Scalia and Thomas will want to frame this as an issue of "no one has a right to abortion," as Scalia and Rehnquist have in the past.

Posted by Mark at 3:50 PM | Permalink | Comments (2) | TrackBacks (0)

Yesterday, the Supreme Court agreed to hear a case from New Hampshire regarding a state law about parental consent for abortion. This is sure to be a devisive issue for the pro-choice and pro-life camps, who have been at odds since Roe v. Wade, 410 U.S. 113 (1973).

The case

The case is called Ayotte v. Planned Parenthood (04-1144). Ayotte is the Attorney General of the state of New Hampshire and Planned Parenthood in this case is the northern New England branch of the national reproductive rights organization Planned Parenthood. New Hampshire law requires parents of minors (those under the age of 18) to be notified in person or by mail at least 48 hours before an abortion can be performed. Lower courts declared the law unconstitutional because it did not make an exception for medical emergencies.

Some problems

The Christian Post reports that it is interesting for the Supreme Court to take on this case, given its recent history of abortion cases:

In 2000, the Supreme Court ruled against Nebraska's ban on partial-birth abortions, saying that the ban hindered women's abortion rights. The court also ruled that abortion laws must include an exception for instances when a mother’s health is at risk.

Since 2000, the Supreme Court has declined to review several cases regarding abortion, including an appeal to re-establish a parental notification law in Idaho and a challenge to the ruling of Roe v. Wade by the woman who was "Jane Roe."

Perhaps the uniqueness of this case stems from its singular attribute of having to do not with the legality of abortions themselves, but the necessity for exceptions in the event an abortion must be performed to save the life of the mother (even though former U.S. Surgeon General C. Everett Koop has said before that he can't think of an instance when it would be necessary to perform an abortion to save the mother's life. "In my thirty-six years of pediatric surgery, I have never known of one instance where the child had to be aborted to save the mother's life," he has said).

At the time I wrote this article, it was difficult to find any primary sources for this case online. Therefore, here's a list of things I did find (analyses of the briefs coming later):

Amicus brief from the ACLU

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Senate Majority Leader Bill Frist is attempting to frame the debate about President Bush's ten judicial nominees in religious terms: "The filibuster was once abused to protect racial bias, and it is now being used against people of faith," he said of Democratic threats to use a filibuster to block Bush judicial nominees.

Are Democrats really attempting to block religious nominees in order to keep godless communists in charge of the judiciary, or are there real problems with the ten nominees that Senate Democrats are blocking? Keep in mind that U.S. federal court postings are for life.

Terrence Boyle, nominated to U.S. Court of Appeals for the Fourth Circuit [MD, SC, NC, VA, WV]

Currently a U.S. District Court judge and a former aide to Senator Jesse Helms, Boyle has a history of judicial opinions that are damaging to individual liberty, says People for the American Way. An unusually high percentage of decisions (over 150) have been reversed by higher courts for violating procedural rules and ignoring precedent and clear statutory guidelines. He has repeatedly shown disdain for discrimination laws, suggesting that state and federal governments should not be bound by anti-discrimination laws, including the Americans with Disabilities Act (ADA).

Janice Rogers Brown, nominated to U.S. Court of Appeals for the District of Columbia Circuit

A black woman currently a California State Supreme Court justice, was "found unqualified by the state bar evaluation committee, based not only on her relative inexperience but also because she was 'prone to inserting conservative political views into her appellate opinions'" when she was nominated to the California State Supreme Court in 1996. She has sarcastically called the New Deal "the triumph of our socialist revolution." She is frequently the lone dissenter in California State Supreme Court opinions.

Richard Griffin, nominated to U.S. Court of Appeals for the Sixth Circuit [KY, MI, OH, TN]

As a judge in the Michigan Court of Appeals for the Fourth Circuit, Griffin ruled against striking workers who were being replaced by permanent workers, saying that they were ineligible for employment benefits under state law (Wohlert Special Products, Inc. v. Michigan Employment Security Commission, 527 N.W.2d 514 [Mich. 1994]). In another opinion (Doe and Roe v. Michigan Dept. of Corrections, 601 N.W.2d 696 [Mich. App. 1999]), Griffin suggested that Congress should pass a law invalidating a U.S. Supreme Court decision which held that the ADA applies to state and federal prisons and prisoners.

David McKeague, nominated to U.S. Court of Appeals for the Sixth Circuit

Currently a U.S. District Court judge, McKeague has been reversed several times in environmental matters, including a 2003 case (Northwood Wilderness Recovery, Inc., v. U.S. Forest Service, 323 F.3d 405 [6th Cir. 2003]) where he was unanimously overruled by the Sixth Circuit Court for approving a logging project with the environmental analysis required by law.

Thomas Griffith, nominated to U.S. Court of Appeals for the District of Columbia

Formerly a legal counsel to the U.S. Senate, Griffith is currently the general counsel for Brigham Young University. He has no experience as a judge at any level and practices law in Utah without a license (his license, from the District of Columbia, is currently suspended for not paying dues). He has a hostility for portions of Title IX, the legislation which mandates equal treatment of men and women in college athletics.

William Haynes, nominated to U.S. Court of Appeals for the Fourth Circuit

Haynes also has no experience as a judge at any level, as well as little to no experience in the courtroom. He is currently General Counsel to the Department of Defense. As counsel for the DOD, he "signed a memo that appeared to justify torture of POWs and suggest that the president could override federal law" and was responsible for drafting rules for military tribunals. He suggested the Hamdi and Padilla -- both U.S. citizens -- could be held indefinitely as enemy combatants.

William Myers, III, nominated to U.S. Court of Appeals for the Ninth Circuit [AK, CA, HI, ID, MT, NV, OR, WA]

Myers is a former lobbyist and lawyer for grazing and mining interests and was later Solicitor General for the Department of the Interior and Executive Director of the Public Lands Council. Like Haynes and Griffith, he has no experience as a judge at any level and has never participated in a jury trial. The American Bar Association (ABA) gave Myers its lowest passing rating of qualification for a federal court posting. He has "advocated extreme-right positions on Native American and environmental issues, often in contravention of accepted law."

Priscilla Owen, nominated to U.S. Court of Appeals for the Fifth Circuit [LA, MS, TX]

Currently a justice on the Texas Supreme Court, Owen is notorious for arguing for an interpretation of a Texas law in 2000 that would make it nearly impossble for a girl to obtain a court order allowing her to get an abortion without parental permission. Current U.S. Attorney General Alberto Gonzales, then her colleague on the Texas Supreme Court, said her interpretation was "an unconscionable act of judicial activism."

William Pryor, nominated to U.S. Court of Appeals for the Eleventh Circuit [AL, FL, GA]

Very hostile to abortion rights. Quotes from him: "I will never forget January 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children"; "The Constitution says nothing about a right to abortion"; and, regarding Roe v. Wade, "the worst abomination of constitutional law in our history." While the Attorney General of Alabama, Pryor supported an amicus brief supporting a Colorado voter initiative that would have prohibited local governments from enacting laws protecting gays and lesbians from discrimination. Also filed an amicus brief supporting the state of Texas in Lawrence v. Texas.

Henry Saad, nominated to U.S. Court of Appeals for the Sixth Circuit

Currently a judge with the Michigan Court of Appeals, he has a trend of writing opinions against workers in harassment, wrongful termination, injury, or whistleblowing suits. In other suits where corporations are the defendants, he usually finds in favor of the corporation.

Of the ten nominees, then, five have demonstrated very conservative voting records, one has demonstrated pretty conservative voting records (Saad), three (Griffith, Haynes, and Myers) are outright unqualified to be federal court judges, and one (Boyle) has questionable qualifictions. Perhaps the Democrats aren't as crazy as we've been led to believe. Also remember that U.S. Circuit Court postings are a stepping-stone to the Supreme Court.

Republicans criticize the Democrats for holding up Senate approval of these ten judges, who have gone through the committee approval process and await approval by the full Senate, but they disregard their own history. The Senate has approved 205 Bush judicial nominees, more than the Republicans let through by the same time during Clinton's administration. But the Republicans have been so used to getting their own way for the last four years, they would rather have a televised temper-tantrum this Sunday than compromise on the ten most conservative (and unqualified) federal court nominees.

Sources

http://www.chron.com/cs/CDA/ssistory.mpl/editorial/outlook/3145351
http://www.independentjudiciary.com/news/clip.cfm?NewsClipID=147
http://www.independentjudiciary.com/nominees/nominee.cfm?NomineeID=46
http://www.independentjudiciary.com/nominees/nominee.cfm?NomineeID=73
http://www.independentjudiciary.org/nominees/nominee.cfm?NomineeID=76
http://www.independentjudiciary.com/nominees/nominee.cfm?NomineeID=83
http://www.independentjudiciary.com/resources/docs/haynes_final%20report.pdf
http://www.independentjudiciary.com/resources/docs/saad_report.pdf
http://www.pfaw.org/pfaw/general/default.aspx?oid=16407
http://www.pfaw.org/pfaw/general/default.aspx?oid=17979
http://www.pfaw.org/pfaw/general/default.aspx?oid=18100
http://saveourcourts.civilrights.org/nominees/details.cfm?id=28490
http://www.usdoj.gov/olp/griffith.htm

Posted by Mark at 8:51 PM | Permalink | Comments (1) | TrackBacks (0)

MSNBC reports that a federal judge "ordered a suburban Atlanta school system to remove stickers from its high school biology textbooks that call evolution 'a theory, not a fact,' saying the disclaimers are an unconstitutional endorsement of religion."

Is that really the case? Is this the right decision? If I were the U.S. Supreme Court and this case appeared on my desk with an application for a writ of certiorari attached to it, I might consider granting that writ. Does criticism of evolution necessarily entail support for creationism? I'm certainly no fan of creationism, but when it comes to the law, I am a fan of correct, well-thought-out, objective rulings based in the law and not ideology. A formalist critic might ask of a judge writing an opinion, "Where's your textual support?" In that case, the "text" would be the law, and in order to make a ruling in a particular case, the law must support that ruling. So let's take a closer look at the Atlanta case.

The case is called Selman et. al v. Cobb County. (Link goes to a PDF of the opinion courtesy of the ACLU.) "Selman et. al" refers to a group of parents who were upset about the placement of warning stickers on biology textbooks in Cobb County, Atlanta. The case was argued and decided in the U.S. District Court for the Northern District of Georgia. (As an aside, why can't AP get this information in their articles? I have to beg, borrow, and steal to find out what "a federal judge" means. Also, AP doesn't even report the name of the case! Back to you, Chet.)

Back in 1995, Cobb County Schools tried to avoid the issue of evolution altogether by eliminating it from the curriculum. The regulation mandated the following:

1. The curriculum of the Cobb County School District shall be organized so as to avoid the compelling of any student to study the subject of the origin of human species.
2. The origin of human species shall be excluded as a topic of curriculum for the elementary and middle schools of the Cobb County School District.
3. No course of study dealing with theories of the origin of human species shall be required of students for high school graduation.
4. Elective opportunities for students to investigate theories of the origin of human species shall be available both through classroom studies and library collections which shall include, but not be limited to, the creation theory.
5. All high school courses offered on an elective basis which include studies of the origin of human species theories shall be noted in curriculum catalogs and listings which are provided for students and parents for the purpose of course selection.

So as you can see, Cobb County is hardcore about keeping evolution out, even if it has to graduate students who are completely ignorant of biological evolution. Looks like it's Bob Jones University for them! And, just to make things more interesting, "[I]t was common practice in some science classes for textbook pages containing material on evolution to be removed from the students' textbooks."

In 2001, Cobb County decided to purchase new science textbooks, some of which may have included material on biological evolution. Some parents objected to the treatment of evolution as a fact, rather than a theory. This makes things murky, especially when we don't use our terms consistently or correctly. That organisms evolve over time is indisputable. It has been observed in our lifetime of simple organisms like bacteria and virii. It has been observed through fossils, which show us that organisms have not remained static. Fossils (and geology) have also shown us, by the way, that the Earth is much more than six thousand years old. Most creationists believe that the Earth is only around six thousand years old, since that date is consistent with the Biblical account of creation.

What is in dispute in the biological community is the mechanism of evolution. Darwin suggested natural selection, whereby organisms with mutations favorable to their environment survive to pass on those mutations to their offspring and organisms with unfavorable mutations die, leaving a population that is well-suited to exist in a particular environment. "Intelligent design" (ID) is another theory used to explain the mechanism of evolution. Intelligent design does not dispute the existence of evolution, but it does call into question what (or who) is responsible for evolution. ID proponents suggest that biological life is so complex that only a "higher power" (which usually goes unnamed) could possibly have created it. While this is not a scientific theory, but a rhetorical argument, it is still a proposition that runs counter to evolution.

But placing a sticker on a book saying that evolution (read: natural selection) is a theory does not, in itself, constitute an endorsement of non-empirical, unscientific theories of evolution like intelligent design. "After the School Board adopted the Sticker, numerous citizens, organizations, churches, and academics from around the country contacted the School Board and individual School Board members to praise them for then decision to open the classroom to the teaching and discussion of creationism and intelligent design," reads the opinion of the court. This is the full text of the sticker:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.

The people who asserted that criticism of natural selection necessarily entails acceptance of creationism are just plain silly. Not p does not imply q. It implies only not p.

Okay, okay, so creationism isn't a scientific theory. We already knew that. What about the law?

The opinion in this case asserts that courts have struck down numerous "balanced treatment" laws because those laws, far from attempting to be objective, were attempting to endorse a religious viewpoint:

Freiler v. Tangipahoa Parish Bd of Educ., 185 F.3d 337 (5th Cir 1999) (invalidating disclaimer required to be read to students prior to teaching of evolution because the disclaimer had the primary effect of endorsing a particular religious viewpoint). Daniel v. Waters, 515 F.2d 485 (6th Cir 1975) (declaring unconstitutional a statute that required a disclaimer to accompany all theories of origin except the Biblical theory of creation and that precluded the teaching of occult or satanical beliefs of human origin), McLean v. Arkansas Bd of Educ. 529 F.Supp 1255 (E.D. Ark 1982) (striking down statute that required balanced treatment of creation science and evolution in public schools).

The test of whether or not a government message violates the Establishment Clause of the Federal Constitution ("Congress shall make no law respecting an establishment of religion") is articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971):

[A] government-sponsored message violates the Establishment Clause of the First Amendment if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates an excessive entanglement of the government with religion.

If a government-sponsored message does not meet one of these prongs, then it is unconstitutional under the Establishment Clause.

The U.S. District Court in this case affirmed that the textbook sticker does have a secular purpose. In analyzing the second prong of the Lemon test, the Court believes that the Sticker fails the "effect" test:

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders.

In coming to this conclusion, the Court said that the "problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause." How has the school board "appear[ed]" to have sided with proponents of religious theories? Again, I must emphasize that critically considering a theory is not tantamount to the negation of that theory. Unless, of course, Cobb County is denying the existence of the fact of evolution (that is, biological change over time), which is not religious entanglement, but just stupidity.

Or is it? "This Court's review of anti-evolution cases indicates that whether evolution is referenced as a theory or a fact is certainly a loaded issue with religious undertones," says the opinion. Remember: the existence of biological change over time is a fact supported by evidence. The existence of natural selection, however, is a theory. In this case, the sticker suggests that evolution is not a fact, and to say this is, as the court notes, a loaded statement. It is akin to suggesting that the heliocentric model of the universe is only a theory, when it is really a fact supported by evidence. The court also observed that "encouraging the teaching of evolution as a theory rather khan as a fact is one of the latest strategies to dilute evolution instruction employed by antievolutionists with religious motivations." To put an asterisk next to everything a student learns about evolution, with the footnote "There's a good chance that this information isn't true" is plainly not a true statement. The court's basis for invalidating the Sticker based on the effect prong is that "the School Board should have called evolution a fact."

My original intent when writing this entry was to demonstrate that the court's decision was wrong, that asking students to critically consider evolution did not constitute an endorsement of religion. Reading the case, further, however, it became clear to me that calling evolution a "theory" rather than a "fact" was disingenuous and false on its face. Perhaps a sticker saying that "natural selection is a theory" would have been more true.

Ultimately, I agree with the District Court on both prongs of the Lemon test. While the school board's purpose may not have been to advance or inhibit religion (and the Court agreed that this was not the purpose), its effect has been to advance religion through the denigration of evolution. More seriously, the Sticker makes a patently false statement -- that evolution itself is a theory -- and has the effect of advancing the conservative Christian opposition to evolution. In retrospect, if I were a judge and this case came across my desk for an appeal, I would probably deny the appeal and let the District Court ruling stand.

Posted by Mark at 11:55 AM | Permalink | Comments (4) | TrackBacks (0)

I was reading the Denver Post the other day and was alerted to an interesting Supreme Court case. It deals with eminent domain, something that has come under increasing controversy in the last thirty years.

"Eminent domain" is the right of a state or local government (or any government, really) to take private land for public use. The right of eminent domain in the United States comes from the Fifth Amendment, which states (among other things), "nor shall private property be taken for public use, without just compensation."

The Supreme Court case that will be argued on Feb. 22 is called Kelo v. City of New London (04-108). (Link goes to Connecticut Supreme Court opinion.) New London is a city in Connecticut which seized private land with the purpose of redeveloping it into commercial and residential space which would, ostensibly, create higher tax revenues over the years. These increased tax revenues are the "public use" to which the land is being put.

Property owners whose property was to be seized sued the state on the grounds that the "furtherance of a significant economic development plan" does not constitute a "public use" of the land. The petitioners, Kelo et al., objected to the New London Development Corporation's argument that "economic development constitutes a valid public use under the takings clauses of the state and federal constitutions, and that these takings will sufficiently benefit the public and bear reasonable assurances of future public use." The key issue here is whether or not it can be assured that destroying existing property and giving it to someone else will assure increased tax revenues. Here in Mentor, the city agreed to destroy several historic buildings to make way for a Walgreen's drug store. The Walgreen's closed a year later, leaving an empty building and a bunch of historic buildings that were ultimately destroyed without purpose.

In the last thirty years, it's been a pastime for local governments to exercise their power of eminent domain, taking private land, and then turning it over to private developers who would otherwise be unable to get their hands on it. These local governments should stop beating around the bush and admit that they're selling out to private developers, misusing a special power that no other entity in a city has -- the power of eminent domain.

As Al Knight points out in his Denver Post editorial, "the court has taken the New London case and, more often than not, it reverses state courts that get too aggressive in their reading of prior U.S. Supreme Court decisions." Hopefully the Supreme Court will put an end to this shady and illegal misuse of eminent domain once and for all. Watch here for more details.

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Scott has provided me with another hilarious link. And this time, it's pertinent to my personal life.

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Last night's episode of Law & Order was, to some degree, about gay marriage. You see, the Governor of Connecticut was a homosexual having an extra-marital affair with one of his subordinates. The subordinate, in turn, was in a relationship with a Mr. Kaplan, who received lots of cherry construction contracts from the state. Somehow, the governor's wife found out about the affair, and Kaplan worried that she would go public with it, which would force the Governor to resign, which would mean a loss of those cherry construction deals for him. So Kaplan killed the Governor's wife to keep her quiet. The subordinate confessed to the police that it was his partner, Kaplan, who killed the Governor's wife.

Open and shut, right? Not when the defense tries to pull the old "spousal privilege" trick. How can they do this? Kaplan and the subordinate claim that they had been married! Assistant DA Jack McCoy (Sam Waterston) was faced with a tough decision: get their marriage annulled somehow so as to make the confession admissible, or try to preserve the marriage that had already been sanctioned by the state. Of course he chose the former -- not because he doesn't like gays, but because he's trying to convict a murderer.

In the end, the New York State Supreme Court annulled the marriage, thus allowing the confession. The subordinate, though, refused to cooperate, insisting that McCoy had destroyed his life and the lives of other homosexual couples by annulling the marriage.

Is there a legal response to gay marriage beyond the Antonin Scalia "tradition" point of view? Just to get a taste of what this strict constructionist thinks about gay marriage, here's a snippet of Scalia's dissent from Lawrence v. Texas (with citations removed to protect the innocent, or even the people that don't want to read the citations, because they're really distracting):

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality." State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Sure, that's great. But the law is very clear about where it come from. It comes from the legislature, which in turn comes from us. By proxy, We the People are in charge of making the law. All of us, living in the United States, having voted for representatives, can agree that the power to create a law that is used to govern all people in this country comes from those same people. With morals, not so much. While there are morals that many -- if not all -- people have in common, this does not mean that morals are universal (I cite as an example the "right turn on red" rule; all states have this rule, but it is not a federal law, it is a bunch of state laws, and every state has the ability to repeal it). Most morals are personal; that is, what is virtuous for me may not be virtuous for you, or vice versa. "Morals" misused have been used to justify many terrible things throughout human history.

Last year, Michelle and my friend Mike had a little tiff on this blog over the relationship between Brown v. Board of Education and the current gay marriage debate. Mike claimed that giving homosexuals the right to marry was the creation of a new law, since it was commonly understood that marriage was between a man and a woman; no one could have fathomed that marriage would ever be between two men or two women, so why the need to be so explicit? It would be like saying that the act of using a telephone required a telephone. Implicit in the word "marriage" was the qualification that it was between a man and a woman. To a resident of Virginia prior to the 1960s, the idea of "marriage" was not only rooted in heterosexuality, but also race. Virginia used to have a statute prohibiting interracial marriage, and for a good, moral reason: the maintenance of the purity of the white race!

Michelle was correct in saying that southerners of the 1950s cried "judicial activism!" when the Brown decision came down. They thought then -- as much as many conservatives do today regarding homosexual marriage -- that it was wrong and unnatural for the two races to intermix. The fact was that there was nothing "natural" about it: human beings had created the distinction between the races, and now human beings were ending it.

What about the "sanctity" of marriage? Some conservatives claim that this 5,000-year-old institution is the foundation of our society. I suppose that all depends on what kind of marriage we're talking about. If we're Ancient Greeks, then we can only marry citizens, who are defined as people that were born within the city-state of Athens. At the same time, though, we can carry on love affairs with boys between the ages of 10 and 13 (many Athenians suggested that, when a boy began to grow facial hair, he was too old for such an affair). If we're Muslim, then we are technically allowed up to three wives; if we're Mormon, we can have as many as we want. What about concubines? If we're the Sultan of Brunei that changes things, doesn't it?

My point is this: marriage as a spiritual or religious institution is a far newer advance than marriage as a political or legal institution. This so-called 5,000-year history of marriage is true, but marriage hasn't been sacred for that long. Even love is a relatively recent invention, coming out of the 16th and 17th centuries, when a middle class was forming that could afford to marry for love and not for economic benefit. How long has marriage been a sacrament in the Catholic Church? Probably not as long as you think: marriage became a sacrament in only the tenth century! Noted heretic Martin Luther wrote of marriage:

Not only is the sacramental character of matrimony without foundation in Scripture; but the very traditions, which claim such sacredness for it, are a mere jest. [...] Marriage may therefore be a figure of Christ and the Church; it is, however, no Divinely instituted sacrament, but the invention of men in the Church, arising from ignorance of the subject.

The argument about marriage being a long-standing historical and moral institution should be tempered with history. History is always more cynical than people make it out to be.

Okay, then, should gay marriage be legal? Yes. Who should make it legal? The answer, unfortunately, is "not the courts." As my friend Mike noted, statutes written regarding marriage were written with a particular definition of marriage in mind. To suddenly change that meaning is what the Supreme Court would call "arbitrary and capricious," for legal definitions of seemingly common-sense words are very important. If a body can change the definition of a word on a whim, then that body can change the law completely. What I'm talking about here is larger than the issue of gay marriage: it's the issue of the integrity of the law. As a society founded on rule of law, a law made yesterday must hold the same meaning as a law made today, or else the law cannot stand the test of time. As beings who live in time, this is important for us. A law whose meaning changes daily is like the rampant inflation in Hungary prior to World War II, where prices actually increased by the hour. There's no security in that.

Like the judges on Law & Order, I call upon the legislature to definitively say what marriage is, and I would prefer that they say that marriage is the union of any two people, regardless of color or sexual orientation. I disagree with the amendments passed by eleven states prohibiting gay marriage, but it seems that the country is not yet ready for homosexual marriage. This does not mean we should not stop lobbying to have these constitutions re-amended to remove those amendments, or attempting to change the law to include homosexuals, but these activities must be done by the legislature to ensure the integrity of the law and to ensure the legitimacy of the laws made, since the legislature ultimately derives its power from the people.

Posted by Mark at 9:32 AM | Permalink | Comments (2) | TrackBacks (0)

The Supreme court will rule on the constitutionality of Ten Commandments displays on public property (story from FOXNews). While this is not terribly unprecedented in and of itself (the Court has certainly agreed to hear arguments on divisive issues before), what is somewhat unprecedented is the fact that the Court already ruled on this issue in 1980.

The Supreme Court will hear two cases as one: Van Orden v. Perry and ACLU v. McCreary County [Kentucky]. Read the decision of the Fifth Circuit Court of Appeals in the case Van Orden v. Perry and the decision of the Sixth Circuit Court of Appeals in ACLU v. McCreary County.

The 1980 case is Stone v. Graham, 449 U.S. 39 (1980). In that case, the Court determined that "[a] Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the State has no secular legislative purpose, and therefore is unconstitutional as violating the Establishment Clause of the First Amendment."

The 1980 case was a 5-4 decision, with Chief Justice Burger and Justices Stewart, Blackmun, and Scalia dissenting. The majority emphasized that the Court had a three-part test for determining whether or not a state statute is permissible under the Establishment Clause: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally the statute must not foster 'an excessive government entanglement with religion'" [ellipses in original]. The Court found that Kentucky's statute did not have a secular legislative purpose; that it did advance religion ("The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths"); and it did foster an excessive government entanglement with religion.

Justice Rehnquist -- now the Chief Justice -- presented a convincing argument in his dissent:

The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U.S. 420, 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals."

We close down stores on Sunday because the Bible says we must rest on the Sabbath, and yet that is allowed to be legal. Why not Saturday or Friday? Because this country was not founded by Jews or Muslims. Christians are in charge; therefore, their laws take precedence and, over time, become part of the secular law of the United States.

Then again, the conservative justices are the ones who shot down Newdow v. Elk Grove Unified School District on the prosaic grounds of standing. If "liberal" justices can be branded as "activist" for inventing new interpretations of the Constitution, then conservative justices can be branded as "inactivist" for not applying the Constitution in cases where it might undermine their own personal values. Our money stills proclaims that the official stance of the United States is to put its trust in God; our Pledge of Allegiance still subordinates the nation to God; even the state motto of Ohio suggests that, without God, nothing is possible. If these conservative justices are so gung ho about interpreting the Constitution to the letter, then why haven't they done what the Constitution says and removed God from the official, government sphere? The answer is that, like "activist" judges, they bring in a variety of extra-Constitutional texts to explain why it's okay to have the Pledge of Allegiance include God or why it's okay to have the Ten Commandments on display. Ususally the text is "culture," "history," "Western civilization," or something like that. In offering these excuses, the conservative justices are no better than "activist" judges at strict interpretation of the Constitution. They also have an agenda, one that is not supported by the Constitution, and as a result, they must resort to extra-Constitutional sources to back them up. "Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, said the city sought to reflect the cultural, historical and legal significance of the commandments. Rehnquist noted that justices' own chambers includes a carving of Moses holding the Ten Commandments," says the FOXNews article. Certainly Scalia -- who is a stickler for the letter of the law -- would be opposed to bringing in "history" and "culture" as support for the Ten Commandments. After all, he was opposed to bringing in contemporary extra-Constitutional support for Lawrence v. Texas in the form of current world trends and recent European law. What's the difference? In this case, the agenda. No justice can be entirely objective. Each side has a particular way of thinking that is inherently flawed: each side makes the facts conform to a theory (deductive reasoning) instead of making a theory that conforms to observed facts (inductive reasoning).

Will these statues remain intact? Hopefully not, as Scalia, Rehnquist, and Thomas are only three members of the nine-member Court. Hopefully the other six can see the error of their (Scalia, Rehnquist, and Thomas's) ways.

Posted by Mark at 11:15 AM | Permalink | Comments (1) | TrackBacks (0)

Several news outlets (The Washington Post, for example) reported yesterday on a bill that "would prevent the Supreme Court from ruling on whether the words 'under God' should be stricken from the Pledge of Allegiance." Thankfully, the folks at the Associated Press don't feel it important enough to mention the bill number, so this information required some searching.

The bill in question is not H.R. 3893, the We the People Act, which I wrote about back in June. The bill is H.R. 2028, the Pledge Protection Act of 2003. It specifically refers to the Pledge of Allegiance and is about one sentence long:

No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States.

And the worst part is that Congress does have the power to tell the courts what they can and cannot rule on. Article III, Section 2 of the U.S. Constitution says that the Supreme Court has appellate jurisdiction (the ability to hear appeals on cases from lower courts) "with such exceptions, and under such regulations as the Congress shall make." Also note that the federal court system is not established in the Constitution, even though the power to establish such a system is granted to Congress in Article I, Section 8. The federal court system was established by Congress back in 1789, and since it was established by Congress, it can be regulated by Congress.

This isn't the end for this bill. It goes now to the Senate, where it will hopefully be struck down. While Congress has the power to limit the ability of the courts to rule on particular matters, it is a power that should not be used lightly, as it is being used here. The House is attempting to advocate a particular agenda whose constitutionality is still in question. When the Supreme Court ruled on Newdow v. Elk Grove Unified School District, it by no means answered the questions presented. It wussed out and bought itself time before it would have to hear the issue again. Where is the democratic tradition of debate? The House would like to see it gone; it would rather stifle the debate altogether.

Posted by Mark at 9:32 AM | Permalink | Comments (1) | TrackBacks (0)

As if being the author of the Inducement Act wasn't enough, Senator Orrin Hatch (R-UT) has endorsed a federal judicial nominee who, according to the Salt Lake Tribune, "wrote that wives should have a subordinate role in marriage." J. Leon Holmes was confirmed by the Senate on Tuesday to the U.S. District Court for the Eastern District of Arkansas.

Here are some tidbits that makes Holmes a real winner when it comes to being an objective federal judge:

• Holmes and his wife wrote an article in 1997 for Arkansas Catholic magazine entitled "Gender Neutral Language, Destroying an Essential Element of Our Faith" in which they suggested that "'the woman is to place herself under the authority of the man'" in marriage and "'is to subordinate herself to the husband.'"
• In 1980, Holmes wrote a letter to a newspaper in which he argued that "rape victims should not be allowed to have abortions because 'conceptions from rape occur with approximately the same frequency as snowfall in Miami.' Holmes has since apologized for the comment."

If I'm a battered wife or a rape victim, I'll make it a point not to go in front of Judge Holmes.

Posted by Mark at 4:54 AM | Permalink | Comments (0) | TrackBacks (0)

Well, I guess so. Again, the Supreme Court chose to double-team us, releasing opinions on two different days. Ashcroft v. ACLU, et al. deals with the Child Online Protection Act, which provides that

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

By a 5-4 majority, the Court ruled that such a ban was unconstitutional. COPA is a response to an earlier case, Reno v. ACLU, 521 U.S. 844 (1997), which ruled that a previous law designed to prevent children from accessing seedy web content was also unconstitutional.

Justice Kennedy, writing the majority opinion, begins by explaining the three-pronged definition of "harmful to minors," which is, coincidentally, the same definition the of "obscenity" as established by the Court in Miller v. California, 413 U.S. 15 (1973).

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that--

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient
interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Well, sort of. Minus the clauses "for minors" and "with respect to minors," and the definitions of "sexual acts," this is almost exactly the language that legally establishes what is "obscene." Such speech is not protected by the First Amendment.

The Court's standard for whether or not a law is too restrictive is to see if the next-best alternative is more or less restrictive to liberty. If the next-best alternative is less restrictive, then the law is too restrictive and thus unconstitutional. In this case, the next-best alternative is filtering software that blocks certain web sites on a particular computer. Stevens wrote, "Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them." In issuing a blanket decree that stifles all potentially "harmful" speech, the law may accidentally catch legal speech in its net.

Or, the law may have a "chilling effect" on such legal-but-defined-as-harmful speech. The prospect of a fine for such speech and lengthy and expensive litigation could cause people not to produce such speech at all, de facto censoring the speech. Stevens concluded that, "[a]bove all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."

Justices Breyer, Rehnquist, Scalia, and O'Connor filed dissenting opinions. Breyer insists that the law imposes no undue restrictions beyond the legal definition of "obscenity," which isn't protected by the First Amendment, anyway:

These materials are not both (1) "designed to appeal to, or ... pander to, the prurient interest" of significant groups of minors and (2) lacking in "serious literary, artistic, political, or scientific value" for significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall outside the statute's definition of the material that it restricts, a fact the Government acknowledged at oral argument. Tr. of Oral Arg. 50-51.

Oh, but they are! The law's wording is not the same as Miller, for COPA includes the clause "harmful to minors," the meaning of which could be interpreted in any number of ways to squelch a kind of speech that is seen as harmful by one group and not harmful by another. Indeed, Breyer contends that "a serious discussion about birth control practices, homosexuality, ... or the consequences of prison rape," would not be illegal under COPA, since they do have SLAP (scientific, literary, artistic, or political) value. Yet, who is to decide whether or not such speech is "harmful"? One can imagine using such a definition to censor such speech, using "harmful" as a proxy for "morally repugnant" or something less objective or based in statute.

The Supreme Court reached the right decision today, ruling overbroad a statute that could have squelched speech on a very subjective basis.

Posted by Mark at 11:42 AM | Permalink | Comments (0) | TrackBacks (0)

No fewer than three important opinions were handed down today, with the Supreme Court siding on the side of Truth, Justice, and the American Way in two of them and wussing out in a third.

Hamdi, et al. v. Rumsfeld, et al. dealt with a U.S. citizen, Yaser Esam Hamdi, who was captured in with the Taliban in Afghanistan in 2001, and labeled an "enemy combatant." Hamdi had languished in a navy brig since then and was suing to contest his "enemy combatant" status, alleging that, as a U.S. citizen, he has the right to a trial to contest the charges against him. The Fourth Circuit Court of Appeals reversed a district court decision, holding that

express congressional authorization of the detention was required by 18 U. S. C. §4001(a) -- which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" -- the [Authorization for Use of Military Force]'s "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

The Authorization for Use of Military Force was passed by Congress in 2001, authorizing the President to "'use all necessary and appropriate force'" against "'against "nations, organizations, or persons'" that he determines "'planned, authorized, committed, or aided'" in the September 11 attacks. The government had insisted that its right to deny Hamdi the right to contest his charges was consistent with "necessary and appropriate force."

Well, the Supreme Court didn't think so. In a very split decision, it concluded that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The decision was 6-3, with only Scalia, Thomas, and Stevens dissenting, although Souter filed an opinion concurring in part and dissenting in part, and concurring with the judgment, which Justice Ginsburg also signed.

One of the issues that perplexed the justices in the oral arguments was the meaning of "enemy combatant." At the time, one of the justices quipped, "Well, it's an English word. It means somebody who is combatting." Funny stuff, for sure (maybe they should take that act on the road), but hardly funny enough for the law. Writing the majority opinion, Justice O'Connor notes that "[t]here is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such."

More importantly, the Court considered the implication of Hamdi's possible perpetual imprisonment:

As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

The majority opinion also delved into the realm of absolute government power, as exemplified by the government's summary denial that facts of the case are undisputed, when in fact, they are: "Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

O'Connor finally concludes, "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. [. . .] In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government."

Score one for the Constitution: the executive cannot hold U.S. citizens and deny them habeus corpus.

The next opinion released was for Rasul, et al. v. Bush, et al.. This is the case of Guantanamo Bay detainees who want to contest their status as enemy combatants. Unlike Hamdi v. Rumsfeld, these people are acknowledged as not U.S. citizens; nonetheless, they are seeking relief under U.S. habeus law, which authorizes district courts "to entertain habeas applications by persons claiming to be held "in custody in violation of the ... laws ... of the United States," §§2241(a), (c)(3)" (ellipses in original).

One of the government's primary arguments in the case was that no U.S. court had jurisdiction over Guantanamo Bay, since it was on sovereign Cuban soil. John Gibbons, arguing for Rasul, insisted that "Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base." The justices also agreed that when the lease says that "the United States shall exercise complete jurisdiction and control over and within said areas" (the "said areas" being Guantanamo Bay), it means that U.S. law applies within those areas.

The government's second argument is that, pursuant to the decision in Johnson v. Eisentrager, 339 U.S. 763, a case involving German prisoners taken by U.S. authorities on foreign soil during WWII, the petitioners have no standing to bring a case questioning their status as "enemy combatants." The justices didn't believe this, either. Justice Stevens, writing the opinion of the court, noted these differences:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

The nationalities of the people in question are Australian and Israeli. Unless the "War on Terror" is encompassing bomb-laden wallabies.

That's two for the Constitution. The third important opinion released today deals with Rumsfeld v. Padilla, et al. Padilla, you'll recall, was a U.S. citizen captured on U.S. soil and thought to be involved in the production of a "dirty bomb." He was held in a navy brig as an "enemy combatant" without the ability to contest that status.

The 5-4 majority concluded that the District Court for the Southern District of New York (Southern District),where the case was filed, did not have jurisdiction over the Secretary of Defense, who was named respondent in the case. Nor did it have jurisdiction over Padilla's habeas petition. The "proper respondent," wrote Chief Justice Rehnquist, was Padilla's "custodian," the person who exercised control over him. This person would have been Melanie A. Marr, Commander of the Consolidated Naval Brig, where Padilla was held. Though the habeas statute plainly requires that the respondent be the "immediate custodian" of the person involved, the Second Circuit Court of Appeals ruled that Rumsfeld, as Secretary of Defense, had the "legal reality of control" over Padilla. Not so, says Rehnquist: the clause of "legal control" only comes into play when there is no immediate, identifiable custodian. In this case, there is, and it is Commander Marr, not Rumsfeld. Rehnquist also denied that the Southern District was the correct place to bring his habeas petition; rather, it should have been the District of South Carolina.

Rehnquist's opinion in this case is consistent with his ruling in Rasul v. Bush, where he concurred with Scalia in that no one had jurisdiction to hear the Guantanamo detainees' request for habeas corpus, since the law requires a habeas request to be filed in the court of the jurisdiction of the place where the prisoner is being held.

That's two for the Constitution and one for President Bush. At least the Constitution is still on top.

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Media reaction to the Hiibel case makes it sound like the Supreme Court just legalized the telescreen. In reality, the Hiibel decision is not a big deal. Why? Laws have been on the books in almost every state requiring a person to identify himself to the police if asked. The Supreme Court has merely upheld the legality of these laws through Terry v. Ohio. The Terry case ruled that police could detain people under "reasonable suspicion" and ask them what they were doing in such a suspicious place at a suspicious time. The Supreme Court has said that state laws requiring people to identify themselves to the police are constitutional -- no more, no less. The story from Wired News makes no mention that the arresting officer in Hiibel's case did have "reasonable suspicion" and that he was not standing around, minding his own business. CNN's story is pretty much the same.

This is not a case of "in these trying times in which we live . . ." No! It has nothing to do with terrorism. This case would have been decided this way whether or not we were in the middle of a War on Terrorism. Remember: the Hiibel scenario was law for thirty years before anyone complained about it. It's a relatively small case whose ramifications will no doubt continue to be unimportant.

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Yes, Monday is Supreme Court Day. The Supreme Court releases its lastest opinions every Monday and I'm there, ready and waiting.

The most notable case this week is good old Hiibel v. Sixth Judicial Court of Nevada. You'll recall from past entries that Hiibel was arrested and refused to identify himself, claiming that he was exercising his Fifth Amendment right against self-incrimination. Hiibel challenged the constitutionality of the Nevada Revised Code § 171.123(3):

The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

In a 5-4 decision, the Supreme Court affirmed Hiibel's conviction, noting that the Nevada statute is not "unconstitutionally vague." They also referenced a case that was referred to during the oral arguments, Terry v. Ohio, 392 U.S. 1 (1968). The Terry case established that "an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further." The officer's questioning of Hiibel -- who was suspecting of being involved with criminal activity -- was thus constitutional as a "Terry stop."

Justices Breyer, Stevens, Souter, and Ginsburg dissented. Stevens objected to the constitutionality of a law which requires a person to identify himself:

In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment's guarantee that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself," U. S. Const., Amdt. 5,4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.

But the Fifth Amendment only applies to cases in which answering an officer's questions would incriminate the person of a crime. I cannot fathom a situation in which merely stating a name -- an objective fact readily available to the public -- automatically implicates a person of a crime. We are not talking about a police-state situation in which Hiibel, minding his own business, was asked to identify himself. The situation is Hiibel being implicated in "suspicious" activity (a bystander notified police that he was arguing with his daughter) and apparently drunk. His car is slightly off of the road. A police officer immediately sees this as suspicious. Is the daughter in danger? Is it even his daughter? Could it be a woman that he's beating? In order to begin an investigation at all and effectively do his duty in protecting the woman and the rest of us, the police officer needs to know who they guy is, and what he's doing here. Note that the language of the Nevada statute emphasizes that an officer can detain a person "only to ascertain his identity and the suspicious circumstances surrounding his presence abroad" (emphasis mine). The suspect may refuse to answer any other question, but he must identify himself.

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The so-called Pledge of Allegiance case is over, and the Supreme Court managed to scrape by without having to do anything. The high court today published its decision in the case Elk Grove Unified School District v. Newdow (02-1624). Newdow was suing on behalf of his daughter, arguing that the phrase "under God" in the Pledge of Allegiance was unconstitutional. In an 8-0 decision (well, sort of -- 5 members agreed with both the outcome of the case and the rationale, while 3 agreed with the outcome but disagreed with the rationale), every member of the Court chickened out and agreed that, since Newdow did not have legal custody of his daughter, then under California state law, he had no standing to bring the suit. The suit was dismissed altogether. Justice Scalia recused himself from the case, since he publicly declared his opposition to the Ninth Circuit's decision a few weeks after it was announced, in 2002.

Bah! Rather than upset a good portion of the nation, the Supreme Court found a way to weasel its way out of making any kind of decision. It didn't say Newdow was correct; nor did it say he was incorrect, instead ruling on a procedural technicality. While Newdow would be able to bring a suit as his daughter's "next friend," the next friend must be someone who shares the petitioner's interest in the case. In this instance, "the interests of this parent and this child are not parallel and, indeed, are potentially in conflict," wrote Justice Stevens, delivering the majority opinion. Though Newdow may want to have an interest in his child's upbringing, the question of the mother's decisions are also at issue. The girl's mother, Sandra Banning, disagreed with the suit, and "a state-court order granted her 'exclusive legal custody' of the child, 'including the sole right to represent [the daughter's] legal interests and make all decision[s] about her education' and welfare." As interested as Newdow may be, he has no legal standing to bring the case in the first place. The majority opinion didn't say a word about the constitutionality of the Pledge of Allegiance.

In various concurring opinions, the justices weigh in on the constitutionality issue. Chief Justice Rehnquist introduces his opinion by observing, "The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim"; that is, the court skirted the issue by simply ruling that Newdow had no standing to bring the suit in the first place. Rehnquist decided that the issue -- which, by the way, is whether or not teachers must lead willing students in the Pledge -- is constitutional. Rehnquist writes that he does "not believe that the phrase 'under God' in the Pledge converts its recital into a 'religious exercise.'" His reasoning, though, is a bit dubious:

The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they chose to do so. To give the parent of such a child a sort of "heckler's veto" over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase "under God," is an unwarranted extension of the Establishment Clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.

This reasoning only works if you believe that the phrase "under God" doesn't turn the Pledge into a coercive religious exercise. Justice O'Connor and Justice Thomas joined Chief Justice Rehnquist, but filed separate concurring opinions. Rehnquist gives examples of half a dozen government officials, from George Washington to Abraham Lincoln to Woodrow Wilson, who all mentioned "God" while making official speeches. Having "Under God" in the Pledge of Allegiance is merely an acknowledgment "that our national culture allows public recognition of our Nation's religious history and character. In the words of the House Report that accompanied the insertion of the phrase 'under God' in the Pledge: 'From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'" While this may be tradition, it is not law. The Constitution says that the law comes from it, and not from God. In fact, it expressly forbids the state from taking any side in the issue of whether or not there is a higher being ("Congress shall make no law respecting an establishment of religion").

Rehnquist calls for an interesting test to determine whether or not "under God" is constitutional:

There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase "under God" somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to "with liberty and justice for all" fails.

The only problem with this test is that a person who wants to object to "liberty and justice for all" has no objection in the courts. Where is the law which prevents the state from promoting patriotism? There is no such law; however, there is a law under which someone who objects to "under God" could make a case. This is, of course, the First Amendment.

Justice O'Connor, concurring, opted for the "ceremonial" approach -- namely, that the use of "God" in public ceremony is an acknowledgment of history. No one can argue (without benefit of strong drugs) that the founders of this country didn't believe in God, and references to God like those found in the Pledge merely refer to this past:

Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of "ceremonial deism" most clearly encompasses such things as the national motto ("In God We Trust"), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ("God save the United States and this honorable Court"). See Allegheny, 492 U. S., at 630 (opinion of O'Connor, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

O'Connor differentiates ceremonial deism from actual prayer, and says that only a prayer can be "an establishment of religion." Her argument amounts to, "Well, we're all Christians, anyway, so what does it matter?" It's difficult to imagine a locality where such a benediction would be inappropriate, since Jews, Christians, and Muslims would be the ones in power anywhere in this country -- and they all share the same belief in a single god; in fact, He is the same god in each instance!

None of the justices deals with the fact that the original Pledge of Allegiance had no reference to God in it. Francis Bellamy, cited as the author of the Pledge of Allegiance (although it may have been authored by a committee), did not mention God in the original version. The original version read thus: "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all." It wasn't just a simple mistake that the "ceremonial" deity was left out. The Pledge was presented for the first time at the World's Fair in Chicago in 1892. It was made the national Pledge in 1945, but "under God" didn't become a part of it until 1954! Historians agree that "under God" was added during the Red Scare of the 1950s as something else which we could unite under against the Godless Communists. "Under God" was not ceremonial; rather, it was intended to be divisive, to separate the God-inspired "us" from the hateful "them."

But there will be other cases, brought by people with better standing. No harm, no foul for the country. This time.

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While the rest of the world greeted Tuesday as just another day, the Supreme Court handed down a decision in the case of Yarborough v. Alvarado. Alvarado, a 17-year-old just shy of his 18th birthday (though this is not an issue), participated in auto theft and murder with his friend Paul Soto. The police, who suspected Alvarado, contacted his parents and asked them to bring him to the station house. His parents informed him that the police wanted to see him, and the parents drove him to the station house. The parents asked to be present for the questioning, but were told they couldn't. Besides, said the police, it wouldn't be very long, anyway -- though it ended up being a two-hour questioning. At no point did the police ever tell Alvarado he was under arrest. Alvarado, of course, admitted guilt, and the police arrested him. At trial, Alvarado tried to have his confession dismissed on the grounds that he had never been given a Miranda warning (cf. Miranda v. Arizona, 384 U.S. 436 [1966]). The trial court denied his request, since his interrogation was "non-custodial," meaning he was not in police custody and was free to leave at any time. A U.S. District Court affirmed the trial court's decision, but the Ninth Circuit Court of Appeals reversed the decision, insisting that "the state court erred in failing to account for Alvarado's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave." The U.S. Supreme Court, in a 5-4 decision, reversed the Ninth Circuit's ruling, holding that Alvarado's confession was permissible and that a Miranda warning was unncessary, since he wasn't in custody. Justice Breyer, however, writing the dissenting opinion, asks:

What reasonable person in the circumstances -- brought to a police station by his parents at police request, put in a small interrogation room, questioned for a solid two hours, and confronted with claims that there is strong evidence that he participated in a serious crime, could have thought to himself, "Well, anytime I want to leave I can just get up and walk out"? If the person harbored any doubts, would he still think he might be free to leave once he recalls that the police officer has just refused to let his parents remain with him during questioning? Would he still think that he, rather than the officer, controls the situation?

This decision is nothing new. The Court is merely reaffirming the Miranda rights with which we are all familiar. Under so-called Miranda rights, police are required to inform a suspect of his constitutional rights prior to interrogating him: that he has the right to remain silent (Fifth Amendment guarantee against self-incrimination), but that anything he says can be used against him; that he has the right to an attorney (Sixth Amendment); and if he cannot afford one, an attorney will be provided for him (Fourteenth Amendment by way of Gideon v. Wainwright, 372 U.S. 335 [1963]). The point of reading Miranda rights to a suspect in custody is to make him aware that he has the right to not respond to police questioning. The police are authority figures, and the average person's instinct would be to comply with what the police say. Miranda is thus necessary to inform the suspect, "You have the right to remain silent when the police ask you to confess." Also important to Miranda is the idea of custody: the police, by placing you under arrest, have restricted your freedom of movement. You can't just leave when they ask you questions; you can, however, not answer those questions.

While this is a case of the police being rather tricky constitutionally, it is also a case of applying the law equally. Miranda makes no distinction among the old or the young, the "experienced" or the inexperienced when it comes to police. To make an exception for Alvarado simply because he is young and inexperienced would invite a whole host of people to insist that they were too "inexperienced" to understand that they were being non-custodially interrogated. It's a case of Alvarado -- and more importantly, Alvarado's parents -- not knowing his (or their) rights. It's a scenario seen on Cops enough times to make a "Best of" tape: you don't have to talk to the police unless you're under arrest. When the police officer asks to search your car, you can say, "no" (but say it politely, because the officer has a gun and the power to haul your carcass into jail, probable cause or no). I've seen this same situation played out on a million episodes of Law & Order and NYPD Blue: someone comes in for "questioning" and ends up confessing, even though he's not under arrest.

At the same time, though, please do consider Justice Breyer's rhetorical question: if you were in that situation and the police were asking you pointed questions for two hours, would you feel free to get up and leave? Then again, if the police said, "No, you can't leave," that might be grounds for invalidating the confession: the police detained him without charging him, interrogating him and invalidating his freedom of movement, effectively rendering him "in custody" in everything but name. But the police didn't do that; if they had, I have no doubt that this would have been a 9-0 decision instead of a 5-4 one. This case only reinforces the fact that you must know your rights. If we gave exceptions to everyone who said, "I didn't know," then every criminal would be off the hook. Maybe if he were twelve, it would be different; the kid is almost eighteen, though. He was responsible for knowing his rights.

The outcome of this case, though, keys us in that the opinion-pending Hiibel case will probably be decided in favor of the state of Nevada (and if there's still doubt, read the oral arguments: the justices don't seem to find much credence in Hiibel's argument. Neither do I, but I'm not on the bench, now, am I?).

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Oral argument transcripts are now available for the following important Supreme Court cases:

• Rasul v. Bush: This case deals with the constitutionality of denying a writ of habeas corpus to detainees in Guantanamo Bay.
  
• Cheney v. U.S. District Court for the District of Columbia: This case deals with executive privilege. Cheney refused to release the names of the people he consulted to create 2001's energy report. Environmentalists said that the report was biased in favor of a continued reliance on petroleum, and believed that Cheney consulted with a lot of people from the petroleum industry.
  
• Hamdi v. Rumsfeld, Rumsfeld v. Padilla: Both cases deal with U.S. citizens who have been held for two years as "enemy combatants" without being charged and without the ability to challenge the validity of their detention. Lower courts told the government to either charge these two (Hamdi and Padilla) with something or release them. The government appealed to the Supreme Court.
  

All of these cases deal with the powers of the executive branch and will be crucial as the Bush Administration assumes more powers in the continued "War on Terror." The Cheney decision is not as terribly important as the other two, but if any of the habeas corpus cases is found in favor of the government, it could be a dark day for the country, as the executive would be able to hold any American citizen without habeas corpus as long as that citizen is labeled an "enemy combatant." The person would be unable to challenge his detention and could be held indefinitely in the name of national security. The Supreme Court will release its opinions later this summer, probably in late May or early June.

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There are some important Supreme Court cases coming up this week. Audio of the oral arguments for the case should be available a few days after the arguments at Oyez, and written transcripts should be available 10-15 days after the arguments at the Supreme Court's Argument Transcripts page.

On Tuesday, April 27, the Court will hear Cheney v. U.S. D.C. District of Columbia (03-475). This is the case that was brought against Dick Cheney after his refusal to turn over the names of the people involved in the creation of the president's 2001 energy plan, which some people felt was heavily slanted in favor of continued reliance on petroleum. This led these people to believe that the vice-president loaded the committee with people from the oil industry, and these people wanted to know who was on the committee. Cheney refused to give the names out, citing executive privilege. The Supreme Court will decide "whether the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 1, et seq., can be construed, consistent with the Constitution, principles of separation of powers, and this Court�s decisions governing judicial review of Executive Branch actions, to authorize broad discovery of the process by which the Vice President and other senior advisors gathered information to advise the President on important national policy matters, based solely on an unsupported allegation in a complaint that the advisory group was not constituted as the President expressly directed and the advisory group itself reported." Bush says that it impedes the executive's ability to privately consult with people if he has to divulge the names of those people and what they said to him.

Links: Cheney's brief; Judicial Watch Inc.'s (respondent's) brief; Sierra Club's (respondent's) brief

The second case is more topical and probably more important. It's Rumsfeld v. Padilla (03-1027) and, like Rasul v. Bush, it deals with habeas corpus rights. Padilla, a U.S. citizen, was implicated in a plot to construct a "dirty bomb" (a regular bomb filled with radioactive waste). The administration used some questionable intelligence to tie Padilla to al-Qaeda and has held him incommunicado for two years in a Navy brig, where he is not allowed to see anyone, including his lawyer. At issue is "whether the President has authority as Commander in Chief and in light of Congress�s Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, to seize and detain a United States citizen in the United States based on a determination by the President that he is an enemy combatant who is closely associated with al Qaeda and has engaged in hostile and war-like acts, or whether 18 U.S.C. 4001(a) precludes that exercise of Presidential authority." Padilla's lawyer claims that, since he can't even see Padilla, there's no way to get a writ of habeas corpus for Padilla to question the legitimacy of his incarceration. A District Court ruled that the president had the authority to detain Padilla, but also said that Padilla could contest his status as an "enemy combatant" and that he was entitled to meet with his lawyer to do this. A Court of Appeals ruled that the president had no authority to authorize domestic detentions, and since Congress did not authorize the detention, "Padilla either must be charged with a crime, held as a material witness, or released."

Links: The government's brief; Padilla's brief

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At long last, the Supreme Court will decide the fate of the six hundred not-so-POWs in Guantanamo Bay. On Tuesday, the Court heard oral arguments in Rasul v. Bush (03-334). Oyez presents the facts of the case:

Four British and Australian citizens were captured by the American military in Pakistan or Afghanistan during the United States' War on Terror. The four men were transported to the American military base in Guantanamo Bay, Cuba. When their families learned of the arrests, they filed suit in federal district court seeking a writ of habeas corpus that would declare the detention unconstitutional. They claimed that the government's decision to deny the men access to attorneys and to hold them indefinitely without access to a court violated the Fifth Amendment's Due Process clause. The government countered that the federal courts had no jurisdiction to hear the case because the prisoners were not American citizens and were being held in territory over which the United States did not have sovereignty (the Guantanamo Bay base was leased from Cuba indefinitely in 1903, and Cuba retains "ultimate sovereignty").

The district court agreed with the government, dismissing the case because it found that it did not have jurisdiction. The U.S. Court of Appeals for the District of Columbia affirmed the district court's decision.

Few people agree with the assertion that the Guantanamo Bay facility is not under ultimate U.S. control. "Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base," said John Gibbons, the attorney for the detainees.

At issue is not only the jurisdiction of U.S. courts, but also the powers of the executive. President Bush has issued dozens of executive orders -- which have the same effect as law passed by Congress and signed by the president -- that would not have been issued in peacetime. He and the rest of his administration maintain that, during wartime, the executive is granted some kind of special powers to protect the country. One of these is the denial of the writ of habeas corpus to the Guantanamo detainees. Habeas corpus is granted to determine whether or not a person has been lawfully jailed. Its purpose is to prevent people from being jailed indefinitely without ever being charged, which is theoretically what could happen to prisoners at Camp X-Ray. Since they are not U.S. citizens, the administration maintains that they have no right to a writ of habeas corpus.

President Bush has pressed for a lot of powers that are not constitutionally mandated. Talk about activism? The doctrine that the executive somehow has more powers during war than during peace appears nowhere in the Constitution: it was created by the Bush Administration to justify its gross abuse of its powers. Justice Steven Breyer reminded us that if there were no way to check the administration's actions, "the executive would be free to do whatever they [sic] want."

Crucial to the outcome of this case is the federal habeas corpus law. The wording of the law does not make a distinction between citizens or non-citizens; it only mentions any person under U.S. authority. "If this had been a [U.S.] citizen held in Guantanamo, that habeas would be available. But the statute doesn't talk about citizens. It says prisoners held under the authority of the United States. Now, if the citizen can say that he is a prisoner held under the authority of the U.S. in Guantanamo, why couldn't a non-citizen under the statute say the same thing?" said Justice Anthony Kennedy.

U.S. Solicitor General Theodore Olson attempted to cite the 1950 case Johnson v. Eisentrager as precedent. The case involved captured German spies who requested habeas corpus but were denied it. Justice Sandra Day O'Connor was unreceptive to this argument, noting that the men in the Eisentrager case had already been tried and convicted by military tribunals. The prisoners at Guantanamo Bay haven't even been charged, let alone tried.

If the executive is given special powers during war, then what is the source of these laws? And can the executive make up laws out of thin air in the name of "national security"? We have already seen him take rights away from two actual American citizens -- most notably, Juan Padilla -- and the Supreme Court has already ruled that he cannot do that. Hopefully they will realize that the reasons for the six hundred detainees' detention is something that should be reviewed, not in the name of national security, but in the name of preventing any more tyranny from coming from the White House.

Fore more information, see Joan Biskupic, "Justices Question Wartime Powers," USA Today 21 Apr. 2004: 1A; Joan Biskupic and Toni Locy, "Screening of Detainees a Key Issue," USA Today 21 Apr. 2004: 3A; Linda Greenhouse, "Supreme Court Hears the Case of Guantanamo," The New York Times 21 Apr. 2004: 1A. (No links are provided because NYT requires a free sign-up and links would be useless to those without an account; also, if you want articles older than a week, you typically have to pay a small fee.)

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Anyone dealing with Elk Grove Unified School District v. Newdow would do well to take a look at a few things.

First, Kenneth C. Davis wrote a wonderful op-ed in Friday's USA Today talking about the case and its merits. He takes John Ashcroft to task for stating that God is mentioned in the Declaration of Independence, the Constitution, the Gettysburg Address, the national anthem, and our coins: "Well, he was 80 percent right -- but he was wrong on the most important item. The Constitution is the creation of 'we, the people' and never mentions a deity aside from the pro forma phrase 'in the year of our Lord.' The men who wrote the Constitution labored for months. There's little chance that they simply forgot to mention a higher power. So what were they thinking?"

Despite Bush and Ashcroft's insistence that the law comes from God, the Constitution disagrees. Though the Declaration of Independence may mention God, it is not a legal document and was written thirteen years before the Constitution was ratified. It is not a body of law but a persuasive essay indicating why the Second Continental Congress went to war against the British. The Constitution is a legal document, one that sets the most basic parameters for our country -- and a compelled belief in God or a god is not one of them. Nor is the belief that God is the source of the liberties found in the Constitution. As far as it is concerned, all people are born with inherent natural liberties, as any document that comes out of the Enlightenment would believe.

Second, the Virginia Act for Establishing Religious Freedom offers a plethora of compelling reasons why, even if I believe that God is the person from whom all law comes, the state is not obliged to believe the same thing. Railing perhaps against a monarchy that believed it was divine and infallaible, the Act comes out against

the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time[. . . .] to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own[. . . .]

Thus, even though the Bush Administration may claim that the ultimate authority of law is God, that can only be the opinions of the people who compose the Bush Administration. Officially, the Administration can only believe that law comes from the Constitution; for it to think otherwise would render it guilty of basing its opinion on a particular set of priniciples in which not all of the people believe.

In an attempt to lambast the authors of the First Amendment, it has been said that they themselves were not atheists. Of course they weren't! But that doesn't mean that they didn't understand that religion has a divisive power as well as a unifying one. Like any other system of personal identity and classification, it separates everyone into two groups: "us" and "them." It draws the "us" together while pushing the "them" away (and remember that this is not true of all religion, but Western Judeo-Christian-Islamic religions tend to be more exclusive than they are inclusive. The Church of England in 1786 was certainly an exclusionary body, not welcoming even into government service those who professed a different religion).

If the founders of our country had intended for the ultimate source of law to be God, they would have said as much in the Constitution. But they didn't, so He isn't. The fact that the words "under God" were added to the Pledge years after its original writing confirms that there was an ulterior motive behind it -- to separate the Christian "us" from the Godless Soviets. The original Pledge omitted a god because we were not pledging our allegiance to a God or acknowledging that he had anything to do with our country; we were pledging our allegiance to the United States, not a nation "under God," which implies that He is somehow leading the way in this grand experiment in democracy. He is not; the people of the United States are.

In a parable in Matthew 22, Jesus talks about a king who gave a wedding feast for his son. After the parable, the Pharisees ask him whether or not, given his position that he "[cares] for no man; for [he does] not regard the position of men," it is right to pay taxes to Caesar. Jesus replies, "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's." Even Jesus knew that church and state should be separated.

Posted by Mark at 7:01 AM | Permalink | Comments (1) | TrackBacks (0)

In October, the U.S. Supreme Court granted a Writ of Certiorari to the case Elk Grove Unified School Dist. v. Newdow, the famous case from two summers ago in which the Ninth Circuit Court of Appeals ruled the Pledge of Allegiance unconstitutional. The argument will take place on March 24. Upon granting the Writ of Certiorari (which means that the Court agrees to hear the case), the Supreme Court outlines key issues with which the case deals. These are called "Questions Presented," and Newdow presents two of them:

1. Whether respondent Newdow has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance.
2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment.

The following are links to the Reply Brief for the United States, the Respondent's [Newdow's] Brief, the Reply Brief for Elk Grove Unified School District, and the original opinion from 2002 (also called Newdow v. U.S. Congress, et al., 00-16423). Note that the Justice Department filed an amici curiae ("friend of the court") brief on behalf of the school district.

Posted by Mark at 12:09 PM | Permalink | Comments (0) | TrackBacks (0)

My local newspaper, which has a penchant for publishing the stupidest letters to the editor imaginable, actually wasted ink this morning on a missive called "Same-sex unions are not a ballot issue."

In case you have been living under a rock for the last three months, or in case you routinely attempt to ignore all non-Super Bowl news coming out of Massachusetts, the question being asked here is whether the state should even vote on amending its constitution to define marriage as a man and a woman only (i.e. no gay marriages, or at least none actually called "marriage").

No matter what your beliefs on this issue, you must agree that this is one of the most poorly reasoned arguments in favor of gay marriage:

This idea of letting the voters decide whether or not to allow gays to marry is ridiculous. Imagine if we had decided to have the issue of whether women should be allowed to vote decided by a ballot referendum. All the men are voting. Why should they want women to vote? Democracy is not just hte rule of the majority, but the protection of the minority.

That's just the first paragraph. We'll stop it there and I'll take these statements in turn.

1. We (I am a Massachusetts voter) are not being asked to decide if gays can marry. We are being asked to decide if men can marry men and women can marry women. Gays have always been free to marry any member of the opposite sex, subject to the same terms as straights.

2. Women were granted the right to vote by a series of legislative (not judicial) actions. First, at the state level, women were granted this right by their state constitutions and/or Legislatures (Wyoming's being the first; hence its nickname, "the equality state"). Then, at the Federal level, in the 19th Amendment. These were actions of legislatures, ballots and constitutional conventions; no judges were involved.

2a. And for the record, the only voters involved in the decision to grant the franchise to women were men. By the same token, rights for blacks were secured by the votes of whites. That doesn't make it right, but it is history.

3. Actually, "democracy" is "the rule of the majority." That's why the ancient Greeks described it as a flawed system. And that's why we have a constitutional republic, to protect us from the excesses of democracy. While the protection of minorities from the "tyranny of the majority" may be fundamentally American, it is not perfectly democratic.

The people suggesting voters be allowed to decide on this issue know that a vote will work in their favor, that is, that gay marriage will be illegal. The only people who care enough about this issue to go vote are gays and the people who want to oppress them, and there are more of the latter.

That's the second paragraph. I take exception to the notion that the only voters in a statewide referendum will be "gays and the people who want to oppress them." I do not consider myself to fit into either of that category, although I presume that in this writer's crazy world I count as an oppressor because I believe "gay marriage" should be called "civil union."

Still, it's sad that this person thinks that in Massachusetts, there are no straight people who will vote for "gay rights." Has the writer ever been to Provincetown? Northampton? Boston? Any college campus? Many of my (straight) friends here are taken aback by my stance on this issue because we know so many good, upstanding gay people whom we would never dream of "oppressing."

There may be more votes opposed to gay marriage than for it, but I wouldn't take a bet on that. Especially because even I am wary of "writing discrimination into the constitution," as the lobbyists continually remind us this is.

I personally don't see anything wrong with gay marriage, and I don't think it's any of my business, but I don't feel so passionately about the issue that I would go out to vote on it or campaign for the issue.

Contradiction: you won't campaign for the issue, yet here you are writing a letter to a large-circulation newspaper about it.

What we see here, really, is that this writer (whom I will not name) is willing to condemn the state Legislature while at the same time saying it's not worth voting on this issue.

In fact, I don't understand why straight people are so upset about gays getting married, it has nothing to do with them. The place for government is not to limit or dictate personal rights, and neither is this the place for ballot measures.

This is the closest to a decent argument that we get. I can only say that it is the business of every voter when judiciaries are changing the meanings of words around.

The obvious response is, of course, that in Brown v. BOE the judiciary said "separate is not equal," and such. That, in fact, would not have been a bad argument for this writer to make.

A distinction that should be made: in Brown v. BOE, the court had behind it three constitutional amendments (13, 14, 15) that were passed for the explicit purpose of ensuring that racial minorities are afforded the same rights as whites.

The Mass. SJC (Supreme Judicial Court), on the other hand, ventured into new territory without any such sanction by any Legislative or popularly elected body in the state. That is "activism." --MB

Posted by MB at 6:18 AM | Permalink | Comments (0) | TrackBacks (0)

Holy crap! Congress is once again attempting to take control of the government in what I would consider an unprecedented attempt to remove the ability for the judicial branch to do anything that Congress disagrees with. I first reported to you the bill that would allow Congress to override court decisions which affected acts of Congress. That was bad enough. But out of the House (and Senate!) comes H.R. 3799, "The Constitution Restoration Act of 2004." Don't be fooled; the title means "take powers away from the so-called activist judges and allow partisan politics to delve into the judiciary so that whatever party runs Congress will run the judiciary and then destroy the country" Act of 2004.

The bill prohibits the Supreme Court from reviewing any matter where relief is sought "against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government." Okay, that effectively takes care of the Ninth Circuit Court's case from two years ago when they ruled the Pledge of Allegiance unconstitutional.

Next: "In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law." Okay, so past Supreme Court decisions are out (this is the doctrine of "precedent," which is, ironically, the foundation of English common law). All Supreme Court case law is out the door, which means that the doctrine of judicial review (established by the case Marbury v. Madison) is out the door, too: the courts are powerless to stop Congress.

What about the "activist judges"? They're gone; if they attempt to circumvent Congress by citing prior case law, that constitutes "an offense for which the judge may be removed upon impeachment and conviction; and a breach of the standard of good behavior required by article III, section 1 of the Constitution." This bill effectively neuters the courts and gives Congress full reign to do whatever it pleases.

But this isn't the first time that Congress has tried to reign in the judiciary:

Marshall's decision regarding Marbury spurred the Jeffersonians to seek revenge. Jefferson urged the impeachment of an arrogant and tart-tongued Supreme Court justice, Samuel Chase, who was so unpopular that Republicans named vicious dogs after him. Early in 1804 impeachment charges against Chase were voted by the House of Representatives, which then passed the question of guilt or innocence on to the Senate. The indictment by the House was based on "high crimes and misdemeanors," as specified in the Constitution. Yet the evidence was plain that the intemperate judge had not been guilty of "high crimes" but only of unrestrained partisanship and a big mouth. The Senate failed to muster enough votes to convict and remove Chase. The precedent thus established was fortunate. From that day to this, no really serious attempt has been made to reshape the Supreme Court by the impeachment weapon. Jefferson's ill-advised attempt at "judge-breaking" was a reassuring victory for the independence of the judiciary and for the separation of powers among the three branches of the federal government. (Thomas A. Bailey, et al., The American Pageant, 11th ed. [Boston, Houghton Mifflin, 1998], p. 217.)

Until now. Brown v. Board of Education was called "activist" in its day. Imagine if this particular law had been passed in 1955. Where would the civil rights movement be? And what's all this talk about Republicans caring about individual liberties and states' rights? It's been washed down the sink by the most vile partisan politics I've ever seen in an attept to completely circumvent the Constitution and do exactly what the Constitution was designed to forbid: unpopular ideas being squelched by a majority. Fortunately, the names attached to this bill aren't big ones, so this bill will probably die a quiet death once the judiciary committees stop laughing themselves silly about it. But still -- these people write this stuff in the name of democracy. Imagine what they would do in the name of tyranny!

(I first saw information about this bill on the website ConservativePetitions.com, which looks like it's run by a bunch of extremist loonies, anyway. Take a look at some of their petitions. Go on! I dare you!)

Posted by Mark at 2:38 AM | Permalink | Comments (1) | TrackBacks (0)

There's good news for all you conservative folks who feel that the Supreme Court has consistently ruled on the side of tree-hugging, liberal, activist, baby-killing, pot-smoking hippie freaks (and that's just the Kennedys). Rep. Ron Lewis of Kentucky introduced H.R. 3920 on March 9 "to allow Congress to reverse the judgments of the United States Supreme Court." The bill would allow Congress to overrule a Supreme Court decision made on an Act of Congress. The procedure would be the same as the procedure for overriding a presidential veto (2/3 of each house of Congress would have to pass the measure).

Wow. Well, maybe not "wow." As William F. Buckley would say, the Supreme Court's ability to override Acts of Congress is "evidentiary, not substantive." This means that the doctrine of judicial review, first articulated by Chief Justice Marshall in Marbury v. Madison, was interpreted to exist; it is not explicitly mentioned in the Consitution that the Supreme Court has such a power. Marshall reasoned that if an Act of Congress violated the Constitution, then it was the Constitution that should come out on top. Otherwise, he said, the Consitution is not a supreme, transcendent set of laws; it's just a regular, ordinary, everyday set of laws. Who, then, would uphold the supremacy of the Constitution? The Supreme Court, apparently, since its job is to arbitrate the dispute between a federal law and the Constitution.

Let me take that back. Definitely "wow." Judicial review is the only check that the Supreme Court has on Congress, and so it should be. Perhaps lower courts frustrate Congress by declaring certain things unconstitutional, but the Supreme Court needs that power. More often than not, the Supreme Court is correct in its decision-making. Its Justices are probably the most objective people in the country. They are not elected, so they have no constituency to pander to. They are not elected, so they have no need to play to a particular group or a party. They are the only people in the federal government whose sole job is to uphold the principles of the Constitution; they spend no time on trying to get re-elected, because they don't have to (by contrast, as much as 75% of a Congressman's time can be spent on ensuring that he'll be reelected). I would hate to see the judicial branch of government drawn into the mire of ugly, ad hominem partisan politics in which Congress exists now.

Posted by Mark at 4:15 AM | Permalink | Comments (1) | TrackBacks (0)

This time out of California. In Catholic Charities of Sacramento v. Superior Court of Sacramento County, the California Supreme Court has ruled that Catholic Charities, Inc. must include birth control in its health care plan. Before all y'all start railing about California liberalism, consider the following:

California enacted the Women's Contraception Equality Act (WCEA), which indicates when employers must cover prescription contraceptives. It was enacted "to eliminate gender discrimination in health care benefits and to improve access to prescription contraceptives," since women spend much more (68% more) in health care costs, due in large part to the cost of prescription contraceptives and other womanly stuff.

Catholic Charities, Inc. is a private institution that is affiliated with the Catholic Church. It is not compelled by anyone to provide prescription drug coverage; however, part of its employee health plan includes prescription drug coverage -- but not for oral contraceptives. The Catholic Church vehemently opposes contraception of any kind. Its official stance on the issue is that sex is for procreation only and that any use of contraception is a sin since it prevents the possibility of a human life being created. Okey-dokey.

So the Catholic Church doesn't have to provide contraception to its employees. What about Catholic Charities, Inc.? WCEA permits a "religious employer" to request exemption from providing contraceptives if such a thing runs contrary to that religious employer's religous beliefs. The California State Supreme Court ruled that Catholic Charities, Inc., though affiliated with the Catholic Church, is not itself a "religious employer." Why? WCEA lists the four criteria for being a religious employer:

(A) The inculcation of religious values is the purpose of the entity.
(B) The entity primarily employs persons who share the religious values of the entity.
(C) The entity serves primarily persons who share the religious tenets of the entity.
(D) The entity is a non-profit organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.

Next question: does it meet these criteria? It is a non-profit corporation. It readily admits, though, that (1) it is not devoted to the inculcation of religious values, (2) it does not primarily employ Roman-Catholics, and (3) a "significant majority" of the people it serves are not Catholic. Thus, it is not a "religious employer."

Yet, Catholic Charities would like to remain true to its Catholicism and not endorse contraception. The question here is who benefits, and why. A church is a group of people with similiar beliefs. The members of the Catholic church all hold the belief that contraception is a sin. Is Catholic Charities a church? No. It is a private organization affiliated with the Catholic church. The people who work for it may not necessarily be Catholic (which CCI admits); they do not hold common beliefs. A health care plan is in the interests of the employees. The case notes, "This case does not implicate internal church governance; it implicates the relationship between a nonprofit public benefit corporation and its employees, most of whom do not belong to the Catholic Church. Only those who join a church impliedly consent to its religious governance on matters of faith and discipline." This case quotes United States v. Lee (455 U.S. 252), which held that an Amish man who operated a business could not not pay into the Social Security system, even though "he believed that payment of the taxes and receipt of benefits would violate the Amish faith." Though he himself was Amish, his business was not an Amish "religious employer."

If this is appealed, I predict that the US Supreme Court will not grant a writ of certiorari, thus upholding the California decision.

Posted by Mark at 11:49 AM | Permalink | Comments (0) | TrackBacks (0)

Last Thursday, the Supreme Court proved wrong people who alleged that it was a bastion of conservatism and Reagan appointees, reminding everyone that Supreme Court justices a lot less partisan than people think (and others hope) they are. The case in question is Locke v. Davey (02-1315) and involves the use of public scholarship money for a religious degree program. Plaintiff Locke, governor of Washington (representing the state, of course), sued Davey on the grounds that Davey's pursuit of a devotional theology degree violates the state constitution. From the syllabus:

Respondent Davey was awarded a Promise Scholarship and chose to attend Northwest College, a private, church-affiliated institution that is eligible under the program. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration. It is undisputed that the pastoral ministries degree is devotional. After learning that he could not use his scholarship to pursue that degree, Davey brought this action under 42 USC �1983 for an injunction and damages, arguing that the denial of his scholarship violated, inter alia, the First Amendment's Free Exercise and Establishment Clauses.

I assumed the Supreme Court would uphold the decision of the Ninth Circuit Court, citing that it was the student's interest at stake, not the church to which he belonged. Reading further, though, I realized that the Court, once again, made sense. The state of Washington is not compelled to fund any religion with government money. In this case, it has not discriminated against any particular religion; rather, "The State has merely chosen not to fund a distinct category of instruction." The Constitution does not forbid the government from not funding religious institutions, and the Court recognizes "devotional theology" as a degree on the track for becoming a minister. Moreover, the scholarship (called the Promise Scholarship Program) can be used by students to attend religious universities and take devotional theology classes. What the scholarship does not do is fund a student whose ultimate goal is entering the ministry, based upon the unique constitution of the state of Washington, "which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry." The relevant part of the Washington state constitution clearly spells this out: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." Pretty cut and dry, don't you think?

But does this violate the federal constitution? Chief Justice Rehnquist, writing the majority opinion, talks about the "play in the joints" between the Establishment Clause ("Congress shall make no law respecting an establishment of religion") and the Free Exercise Clause (". . . or prohibiting the free exercise thereof") of the First Amendment. As Rehnquist puts it, "There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." The state's scholarship not funding a devotional theology degree does not prohibit the "free exercise" of religion (by the people themselves), but the state could just as easily choose to fund devotional theology degrees for all religions. Therefore, the state of Washington, in choosing not to fund religious programs at all, is not in violation of the federal constitution. A lack of funding for religious programs in Washington does not prohibit the people from freely exercising their religion. The state is not compelled by the federal constitution to respect religion in the sense that, if it must choose between respecting all religions and respecting no religions, it must choose the former. Not respecting any religions is not the same as respecting a particular religion; the point is moot since there is no respecting at all.

Posted by Mark at 10:31 AM | Permalink | Comments (1) | TrackBacks (0)

Remembering my interest in the Supreme Court, Scott told me about an upcoming Supreme Court hearing (March 22) that will prove to be very interesting, especially in light of "the trying times we live in." Hiibel has a website, but it's very slow and awfully one-sided, but the police cruiser's camera caught the whole thing on tape. The following information comes from www.epic.org.

A Humboldt Country sheriff's deputy responded to a concerned bystander's phone call reporting that a man had struck a female passenger inside a truck. The officer arrived on the scene and was directed by the citizen to Hiibel standing next to a parked truck with his daughter inside. The officer observed skid marks which led him to believe that the truck had been pulled over "in a sudden and aggressive manner." After speaking to Hiibel and observing his behavior, the officer became suspicious that Hiibel might have been driving while intoxicated. Hiibel refused eleven times to provide identification and was subsequently arrested under Nevada Revised Statute � 171.123(3), which allows an officer to detain a person to ascertain his identity when there are circumstances reasonably indicating that person has committed a crime.

Hiibel was charged with and convicted of resisting a public officer in violation of state law, and he appealed the conviction. The Nevada District Court determined it was reasonable and necessary for the officer to ask for Hiibel's identification, and asserted that the public interest in requiring Hiibel to identify himself outweighed his right to remain silent. Hiibel filed a petition asking the Supreme Court of Nevada review the case, challenging the constitutionality of Nev. Rev. Stat. � 171.123(3).

The Nevada Supreme Court denied the petition, determining that the statute is consistent with the rights against unreasonable search and seizure protected by the Fourth Amendment because it "strikes a balance between constitutional protections of privacy and the need to protect police officers and the public." The court first pointed out that federal appeals courts disagree on the question of whether an individual may refuse to identify himself to an officer before an arrest. Noting that a government invasion of privacy does not violate the Fourth Amendment as long as it is reasonable, the court found that any intrusion of privacy under Nev. Rev. Stat. � 171.123(3) is reasonable when weighed against the benefits to law enforcement and public safety. "Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop," the court explained. With regard to the privacy implications of case, the court claimed "[t]o hold that a name, which is neutral and non-incriminating information, is somehow an invasion of privacy is untenable. . . . Requiring identification is far less intrusive than conducting a pat down search of one's physical person," which is permitted by law. The court also found that Nev. Rev. Stat. � 171.123(3) is narrowly written and applies only in situations where an officer has an articulable suspicion that a person is performing criminal behavior, and thus is constitutional.

In a strongly worded dissenting opinion, three Nevada Supreme Court Justices disagreed that the government seizure in this case was reasonable. The dissent first noted that anonymity is included in the right to privacy, which in turn is protected during pre-arrest frisks performed by officers. In such situations, the dissent argued, "[i]t is well known that . . . an officer's authority to search is limited to a pat-down to detect weapons. The officer may investigate a hard object because it might be a gun. An officer may not investigate a soft object he detects, even though it might be drugs. Similarly, an officer may not detect a wallet and remove it for search. With today's majority decision, the officer can now, figuratively, reach in, grab the wallet and pull out the detainee's identification." The dissent then pointed out that the Ninth Circuit federal appeals court not only upholds the right to refuse to provide identification to an officer before arrest, but has specifically found Nev. Rev. Stat. � 171.123(3) unconstitutional under the Fourth Amendment. The dissent opinion criticized the majority for "reflexively reasoning that the public interest in police safety outweighs Hiibel's interest in refusing to identify himself," noting that no evidence exists that an officer is safer for knowing a person's identity. "What the majority fails to recognize," the dissenting opinion continued, "is that it is the observable conduct, not the identity, of a person, upon which an officer must legally rely when investigating crimes and enforcing the law."

This article, though, also misses a fascinating part of the case. The woman with whom Hiibel was arguing (his 17-year-old daughter) tried to stop the officer from arresting her father, but another officer who had arrived on the scene held the door of the truck shut so she couldn't get out. She managed to get out of the truck but was thrown to the ground and handcuffed by the other officer. She was charged her with resisting arrest. At the arraignment, the court threw out her charge, noting that she could not be charged with resisting arrest since she wasn't being arrested!

At the core of this case is the issue of whether or not citizens must be required to identify themselves to law enforcement upon request. In this case, the officer noted that he thought Hiibel had been drinking, and he had a possible battery charge to look into; however, the officer should have investigated the battery charge before quibbling over the production of identification. But then again, there's the issue of his intoxication and the appearance that the truck had been pulled over suddenly. This one will be a doozy for the Supreme Court; I'm not even sure what to think about it. While I am on the side of civil liberties, it seems reasonable (given these specific circumstances) for the officer to have asked for his identification. The Nevada statute in question, "which allows an officer to detain a person to ascertain his identity when there are circumstances reasonably indicating that person has committed a crime," seems fair enough. It would not permit an officer to pull someone over merely to see his identification; there must be some probable cause involved first.

Posted by Mark at 12:02 PM | Permalink | Comments (0) | TrackBacks (0)

Nevada Revised Code 171.123(3), the statute in question, reads thus: "The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer." Section 123 of Chapter 171 of the NRC is titled "Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations." This means that a peace officer may detain a person suspected of of criminal behavior only to ascertain his identity and also to find out what he's doing there. Mr. Hiibel was suspected of criminal behavior and refused to identify himself. Case closed. And this statute certainly doesn't violate the Fourth Amendment. The police in this case have the probable cause necessary to begin an investigation (someone called the police, the position of the truck, possible alchohol), the first step of which is to find out who this guy is.

The main page of Hiibel's website claims, "One balmy May evening back in 2000, Dudley was standing around minding his own business when all of a sudden, a policeman pulled-up and demanded that Dudley produce his ID. Dudley, having done nothing wrong, declined. He was arrested and charged with 'failure to cooperate' for refusing to show ID on demand." This is most definitely not the case and makes it sounds like we are living in a police state where people are required to produce their "papers" on demand for no reason at all. In fact, there was a reason, and a very good reason, at that. I recently watched the video, and Hiibel definitely seemed intoxicated; moreover, the officer was very polite and Hiibel was very resistant. Watch the video and judge for yourself.

Posted by Mark at 4:07 AM | Permalink | Comments (1) | TrackBacks (0)

My old friend MB (who goes to college in Massachusetts; I think he's in graduate school now), responding to my entry about gay marriage, wrote:

If this whole thing were about "rights" it would be one thing, but upon review of the Mass. Supreme Judicial Court ruling, and conversation with the lawyer who represented the plaintiffs, I find that hard to believe. The extent to which the campaign for gay marriage is taken, at least by some here in Bay State, amounts to a "we're here, we're queer, get used to it" attitude. [. . .] While it's true that at one point in U.S. history, too few years ago, interracial marriage was prohibited, it was never true that Webster's defined marriage as "a union between whites and whites, or blacks and blacks" -- although it DOES define marriage as a union between man and woman. The SJC ruling flies in the face of the English language. [. . .] The lawyer in this case told me that civil unions would create "second-class citizens" because they NEED the word marriage. I don't buy it. Separate but equal was unequal because different facilities clearly meant degraded facilities for blacks and turned them into social pariahs (or, rather, reinforced their positions as social pariahs). Separate terms for different sorts of unions does nothing of the sort, any less than separate terms for 'father' and 'mother' makes either one less of a parent."

I decided to go and read the SJC ruling, titled Goodridge v. Department of Public Health. (Supreme Judicial Court is Massachusetts' particular name for its state Supreme Court. They also like to call themselves a "commonwealth." They're strange there.) The opinion talks about how civil marriage -- state recognition of marriage through licensing -- is one of the "police powers" of the state, but the issue of the Fourteenth Amendment exists because "The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The [state health] department states that 'hundreds of statutes' are related to marriage and to marital benefits." Okay, so why not let them get married?

It's just not quite the same. "Marriage" in the traditional sense involves the possibility of procreation; such a thing is impossible between homosexual couples. And yet, the ruling notes:

The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce.

Is there, then, a definition of marriage that includes all heterosexual couples (including infertile ones) but excludes homosexual couples? The Oxford English Dictionary, the last word on the English language, defines marriage as "the condition of being a husband or wife; the relation between persons married to each other; matrimony." It also notes that "the term is now sometimes used with reference to long-term relationships between partners of the same sex."

Yet, I'm still loathe to put homosexual marriage on par with heterosexual marriage. It's just not the same. The institution of marriage, as it has existed for practically forever, has always involved men and women. Only in the last forty years have we been asked to change our idea of what marriage is. This is by no means a convincing argument; "because that's how we've always done it" is never valid. MB says, though, "I have no problem with a civil union setup that confers *every single benefit* of marriage -- without calling it that."

Does "separate but equal" apply in this case? Legally, yes. Homosexuality, like heterosexuality, is not a choice (apparently). Thus, couples should not be legally denied certain rights based upon decisions in which they had no part. On the other hand, in terms of terminology, are we obliged to call the union of homosexuals "marriage"? No; in this matter "separate but equal" does not have to call them the same thing, because they are inherently not the same thing. Giving gay couples the same legal rights as everyone else is as far as we need to go; altering our concepts of marriage, and giving homosexual couples vindication by making their marriage as "normal" as heterosexual marriage, is not the state's job. Homosexual marriage is not as normal as heterosexual marriage, and that is the key to attempts to use the word "marriage" to describe gay unions: homosexuals want a moral acknowledgment -- imposed upon us by the state -- that their union is the same as heterosexuals' unions. But it is not.

Posted by Mark at 11:29 AM | Permalink | Comments (3)

The Supreme Court's most recent decision, McConnell v. FEC (02-1674) was a blow for freedom of speech. The subject of the case was the McCain-Feingold campaign finance reform law, which prevents so-called soft money contributions from PACs, special interest groups, labor unions, and other political organizations.

The Supreme Court, in another 5-4 decision, ruled in favor of the FEC and campaign finance reform, noting, "The governmental interest underlying �323 (a) [of The Bipartisan Campaign Reform Act of 2002] -- preventing the actual or apparent corruption of federal candidates and officeholders -- constitutes a sufficiently important interest to justify contribution limits."

The Supreme Court, however, has recognized time and time again that money talks: money is part of freedom of expressive association; that is, how I spend my money indicates what my opinions are. The fact that I donate money to a extremely left-wing communist organization is me voicing my opinion in favor of communism. And yet the majority of the nine justices felt that the government's interest in preventing federal candidates from being "bought" by high-paying contributors outweighs the government's need to protect speech. John McCain has been at the forefront of attempts to cut down on corporate involvement in elections and the general impression that politicians are no-good liars. Whilst campaigning for president three years ago, he toured the country on the "Straight Talk Express," a gimmick that he devised to create the impression that other candidates don't talk straight.

Like anything that curtails freedom of speech, there are legitimate elements of speech that get hurt in this decision, too. The Supreme Court has always erred on the side of hate groups when it comes to squelching so-called hate speech or letting freedom of speech be open for everyone; in this case, however, it has erred on the side of squelching free speech, and no doubt this will have a significant impact on state and local elections in the future.

Posted by Mark at 1:42 AM | Permalink