Bench Memos

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Clarification on Kennedy v. Louisiana


Some early commentators attributed to the Kennedy majority opinion the broader rule that the death penalty can be imposed only for crimes that take the victim’s life.  In fact, Justice Kennedy distinguishes between “crimes against individual persons” and “offenses against the State” (such as “treason, espionage, terrorism, and drug kingpin activity”), and applies his rule, for the time being at least, only to the former category.  (In dissent, Justice Alito, beyond finding curious Kennedy’s classification of “drug kingpin activity,” notes that Kennedy “makes no effort to explain why the harm caused by such crimes [against the State] is necessarily greater than the harm caused by the rape of young children.”)


On the crime of child rape itself, Kennedy’s opinion bars the death penalty “where the crime did not result, and was not intended to result, in death of the victim.”  (Emphasis added.)  So even if the rape of a child results in the child’s death, no rape of a child, no matter how sordid, can be punished by the death penalty unless the rapist “intended” the death.  [Update:  Thanks to comments from a couple readers, I now think that I misread Kennedy’s syntax.  I now think that Kennedy’s opinion does not address whether the death penalty could be imposed for the rape of a child that unintentionally results in the child’s death, so I withdraw this point.]

Tags: Whelan



“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” So reads (in part) the Sixth Amendment. In his prosecution for First Degree Murder Dwayne Giles did not “confront” one of the “witnesses against him,” because he had (as the jury subsequently found) killed her. The victim-witness whose out-of-court statement was received into evidence was Brenda Avie, Giles’ ex-girlfriend. Three weeks before she was murdered, a tearful Avie told a police officer who responded to her emergency call that Giles had assaulted and threatened to kill her. This hearsay was relevant at Giles’ murder trial because it tended to rebut Giles’ claim that he acted in self-defense.

The issue in the case of Giles v. California, decided this morning by the Supreme Court, was whether receipt of this hearsay violated the Confrontation Clause (above). The Court’s precedents, primarily the 2004 decision in Crawford v. Washington, basically established that the issue depended on whether there was an exception to the right of confrontation at the time of the founding which included a hearsay statement like Ms. Avie’s. The only exception in the vicinity was one for witnesses whose absence was procured or arranged by the defendant himself. A majority of the Court, in an opinion by Scalia, held that this exception pertained only to acts which were designed by the defendant to keep the witness away from trial. Because that was not the case here, the Court vacated Giles’ conviction, and remanded the case for a new trial.

The dissenting Justices — Breyer, Stevens, Kennedy — would have read the longstanding exception to include acts (such as Giles) which, in fact, caused the witness to be unavailable.

No “design” to obstruct trial testimony was needed.

The Giles case was presented to the Court (essentially) on the stipulation that Avie’s statement to the responding officer was “testimonial” and thus within the protections of the Confrontation Clause. Justices Thomas and Alito entered brief concurrences, each making clear that he doubted the correctness of the stipulation. As Alito said: “The Confrontation Clause does not apply to out-of-court statements unless it can be said that they are the equivalent of statements made at trial by witnesses”.

Justices Souter and Ginsburg joined all but a small portion of Scalia’s opinion. They sought to separate themselves from (what they considered to be) Scalia’s embrace of an over-determined historical record; the old materials were not quite “finely… calibrated” enough to answer the question with as much confidence as Scalia exhibited. These two Justices also showed some sympathy for the dissenters’ policy argument in favor of a broader and more flexible reading of the historical materials, an argument keyed to the problems of prosecuting domestic abuses cases today.

Even so, probably the most remarkable feature of Giles v. California is that all nine Justices behaved (more or less, but all to a great degree) as originalists.


Re: Kennedy v. Louisiana


Just a couple highlights from Justice Alito’s excellent dissent in Kennedy v. Louisiana:


1.  In response to Justice Kennedy’s claim that there is a “national consensus” that it is never acceptable to impose the death penalty for the rape of a child, Alito explains that dicta in the Court’s 1977 decision in Coker v. Georgia “stunted legislative consideration” of the matter by strongly suggesting that such legislation would be held unconstitutional.  Nonetheless, “six States have recently enacted new, targeted child-rape laws.”  Turning Kennedy’s evolutionary rhetoric against him, Alito nicely observes: 

In terms of the Court’s metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end.  But they might also have been the beginning of a strong new evolutionary line.  We will never know, because the Court today snuffs out the line in its incipient stage. 

2.  Alito makes mincemeat of Kennedy’s claim that rape of a child cannot be compared to murder in its moral depravity and in the severity of injury to the victim and the public.  Among his observations (see dissent at 20-23):  “I have very little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity.”

Tags: Whelan

And Historically Dishonest to Boot


Reading on in Justice Kennedy’s excursion in moral self-indulgence in the Louisiana child-rape case, we encounter this bit:

Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime.

The italics are mine.  The dishonest historical conceit here is that Kennedy writes as though Louisiana were now, after centuries of common, statutory, and constitutional law governing the death penalty, going to impose the penalty for the rape of a child for the first time–and the Court must decide whether the Constitution “allow[s] the extension”!

In truth, of course, what the Court has been doing for several decades now is arrogating to itself the right, under some alleged authorization flowing from the Eighth and Fourteenth Amendments, to progressively restrict the imposition of the death penalty, from its historic application in many kinds of cases at the time of the founding, to just one class of cases today, the narrowest category of aggravated murders.

But it takes a special kind of gall–or judicial obliviousness, more likely in Justice Kennedy’s case–to write as though the death penalty’s imposition, in a class of cases in which that was historically normal, is some kind of “extension” we must decide whether the Constitution “allows.”

UPDATE: I see that Justice Alito, in his dissent, also notices this “extension” language, though he makes a different observation about it.  Alito rightly notes that such phrasing runs against the grain of the Court’s traditional (and correct) view that “[l]aws enacted by the state legislatures are presumptively constitutional.”  In other words, for the Court to uphold the imposition of the death penalty for child rape would not be an “extension” of the penalty on the Court’s part but only a decision not to use its power to gainsay a valid exercise of legislative authority.  After all, “until today, this Court has not held that capital child rape laws are unconstitutional.”  Right you are, Justice Alito.

The Kennedy Rule Holds


Recently I remarked here on the “Kennedy Rule”: that when the Court decides 5-4 that any government has done anything contrary to the Constitution, and Justice Kennedy was one of the five, the case was wrongly decided.  And its corollary: if Justice Kennedy writes the opinion of the Court in such a case, it will be incoherently reasoned.

So it is in today’s Kennedy v. Louisiana ruling invalidating the imposition of the death penalty for the rape of a child.  Ed Whelan has already quoted some of Justice Kennedy’s “insufferable blather,” including his statement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”–the rapist, that is.  That paragraph ends with this:

[R]etribution [as a rationale for punishment] . . . most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

These are the accents of the moralist and the legislator.  They are not those of a judge adjudicating a case under the law of the Constitution.  But Anthony Kennedy has never known the difference.


Kennedy v. Louisiana


Given previous rulings like Roper v. Simmons (see This Week for March 1, 2005), Justice Kennedy’s opinion in Kennedy v. Louisiana was entirely predictable, but that doesn’t make it any less appalling as a matter of supposed constitutional law.


Kennedy’s 36 pages of insufferable blather amount to little more than a declaration that the majority doesn’t think that capital punishment is ever a fair penalty for the rape of a child—“no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”  And, Alito might have added, no matter even whether the rape victim died, so long as the rapist did not intend the death.  [Update:  On this last sentence, thanks to comments from a couple readers, I now think that I misread Kennedy’s syntax.  I now think that Kennedy’s opinion does not address whether the death penalty could be imposed for the rape of a child that unintentionally results in the child’s death, so I withdraw this point.]


If I find time, I may focus more attention on Kennedy’s string of assertions.  For now, I’ll just call attention to the facts that occasioned Kennedy’s pronouncement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”—the person whose dignity is the object of his concern being the rapist, not the victim and not other future victims.


Warning:  The facts are graphic and awful.  Kennedy (not the justice) was charged with the aggravated rape of L.H., his then-8-year-old stepdaughter.  When police found L.H. some two hours after the attack, she was bleeding profusely from the vaginal area.  She was transported to the hospital, where she was discovered to have a laceration to the left wall of the vagina that “separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure.  Her entire perineum was torn from the posterior fourchette to the anus.  The injuries required emergency surgery.”  Shortly after he committed the rape, Kennedy called a colleague to ask “how to get blood out of a white carpet because his daughter had ‘just become a lady.’”

Tags: Whelan

Today’s Rulings


Borrowing from SCOTUSblog’s live blogging of the Court’s announcement session, I’m going to update this post over the next half hour or so to give a quick bottom line on today’s rulings, along with links to the opinions.


Here is a list of the rulings announced today:


1.  Exxon Shipping Co. v. Baker (availability of punitive damages under maritime law):  Souter opinion vacating award.  Partial dissents by Stevens, Ginsburg, and Breyer.


(Because the justices announce opinions in reverse order of seniority, any remaining opinions will be announced by the Chief, Stevens, Scalia, Kennedy, or Souter.)


2.  Kennedy v. Louisiana (death penalty for crime of child rape):  5-4 Kennedy opinion holding that death penalty for crime of child rape violates Eighth Amendment.  Alito dissent, joined by Chief, Scalia, and Thomas.  Kennedy opinion, which I have not yet read, reportedly limits death penalty to crimes involving acts that intend to cause death and in fact do so.


3.  Giles v. California (Confrontation Clause):  6-3 Scalia opinion in favor of criminal defendant.  Breyer dissent, joined by Stevens and Kennedy.


4.  Plains Commerce Bank v. Long Family Land & Cattle (authority of tribal courts):  5-4 opinion by Chief against tribal members.  Ginsburg dissent, joined by Stevens, Souter, Breyer.


That’s it for today.  Rulings in these three cases will be issued tomorrow at 10 a.m.:


District of Columbia v. Heller (Second Amendment challenge to D.C. handgun ban)


Davis v. FEC (constitutionality of millionaire’s amendment to campaign-finance law)


Morgan Stanley Capital Group v. Public Utility District (aka American Electric Power) (FERC review of contracts) 

Tags: Whelan

More Rulings


Today at 10:00, the Supreme Court will issue more rulings.  (It has seven cases remaining; it’s unclear whether rulings in all seven will be issued today or whether another announcement session will be scheduled.)  Drawing on the live blogging at SCOTUSblog, I’ll provide the quick bottom line and links.  Later today, I may offer more extended commentary.

Tags: Whelan

This Day in Liberal Judicial Activism—June 25


June 251990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes: 

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”  


For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

The Age of Strict Construction


The meaning of the Constitution and its proper mode of interpretation when it comes to Executive power are white hot topics these days.  These matters have been simmering since the theory of the “unitary executive” emerged in the thinking and practice of the Reagan Administration.  Before that, however, not so much; other than occasional crises and Big Questions — such as Truman’s seizure of the steel mills — Article II seems to have led an uneventful life as the quiet part of the Constitution.

Not quite.  It is one of the many virtues of Peter Zavodnyik’s excellent new book to take a fresh, and insightful, look at what we tend to regard as the Executive’s quietest years, those from the Founding until the Civil War.  Zavodnyik shows in The Age of Strict Construction that federal power grew steadily and greatly throughout the antebellum era.  He shows, too, that this accretion did not go unchallenged; in fact, Zavodnyik shows convincingly that the argument was carried on largely in constitutional terms and that the classic contending positions track closely what we would recognize to be “textualism” and “originalism”.  He also argues provocatively how this dispute fed into the secession crisis, and thus the War itself.  

Here is one more very interesting thing about the book: its author.  Peter Zavodnyik is a lawyer who holds down a busy practice in Chicago.  Strict Construction proves that you don’t have to be a law professor to write a fine academic book.  Practicing attorneys may rejoice in the news.  Members of the law professors guild (such as myself) should too.  I think.

Doing Justice to Thomas


Wendy Long has the cover essay in the Summer issue of the Claremont Review of Books–a tour of several books on Clarence Thomas’s life and jurisprudence, including his autobiography.  It’s just out, and Wendy’s piece is one of the first freebies for nonsubscribers here.

Missing the Big Picture


The essays by Dahlia Lithwick and Jeffrey Rosen that I’ve critiqued today present radically divergent views of the threats supposedly posed by the Supreme Court. To Lithwick, the threat is that conservative justices will “sideline themselves” and “refrain from second-guessing the other branches of government” on a broad range of matters. To Rosen, the threat is that conservative justices won’t let Congress and the president “pass the laws that the American people expect” — that the justices, in other words, will second-guess the other branches of government on a broad range of matters — and will “roll back progressive reforms.”


What Lithwick and Rosen have in common is that, purposefully or otherwise, they divert attention from what is really at stake for American citizens in which president selects the next Supreme Court justices. As Stuart Taylor has put it (in an essay now available, I believe, only to National Journal subscribers), Supreme Court picks by a President Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:

Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

In other words, a meaningful “user’s guide” (to borrow Lithwick’s overly consumerist term) for voters this fall would be:


If you want justices who will invent a constitutional right to same-sex marriage, vote for Barack Obama.


If you want justices who favor partial-birth abortion and taxpayer funding of abortion, vote for Barack Obama.


If you want justices who will give foreign terrorists constitutional rights, vote for Barack Obama.


If you want justices who will strip God out of the Pledge of Allegiance and religion out of the public square, vote for Barack Obama.


If you want justices who will protect child pornographers and child rapists, vote for Barack Obama.


By contrast, Supreme Court picks by a President McCain hold out what great threats in the eyes of the Left? The prospect that abortion policy will finally be restored to the democratic processes, where the Constitution leaves it. The prospect that national security will be the province of the president and Congress. And, more generally, the prospect that the Court won’t, without a legitimate basis in the Constitution, be striking down legislative enactments by Congress and the states.

Tags: Whelan

Mismeasuring Roberts


I don’t mean to talk Jeffrey Rosen out of the admiration that he properly has for Chief Justice Roberts, but one other passage in his New Republic essay (which I critiqued here) deserves comment.  Rosen writes:

In cases where the justices do have strong constitutional views, such as the decision last week involving habeas corpus at Guantanamo, the familiar 5-4 ideological divisions persist. But, even in the Guantanamo case, Roberts dissented from the majority opinion in far more measured terms than he had used to criticize Breyer’s dissent in the affirmative action case last year. Avoiding Scalia’s hysterical claim that this decision “will almost certainly cause more Americans to be killed”–an assertion unsupported by anything in the government’s brief–Roberts respectfully argued that the liberal justices themselves had previously suggested that Congress, rather than the courts, should decide detention policy.

Let’s set aside the fact that Scalia’s claim, far from being “hysterical”, was carefully reasoned and supported by evidence (as I summarize in my third paragraph here).  Far from “avoiding” that claim, Roberts embraced it, as he fully joined Scalia’s dissent.  (It would have been an easy matter to join all but Part I of Scalia’s dissent.)  Moreover, Roberts’s own dissent (which Scalia also joined) includes plenty of language that, if uttered by Scalia, would have been described by Scalia critics as harsh and that is certainly not as mild or respectful as Rosen suggests.  For example (emphasis added):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. 

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? … Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. 

Tags: Whelan

Phantom Threat


For some years now, The New Republic’s Jeffrey Rosen has been warning about the threat of conservative judicial activism from adherents to the supposed “Constitution in Exile” movement.  As Orin Kerr and others have argued, this movement is largely a phantom of Rosen’s (and Cass Sunstein’s and Jeffrey Toobin’s) imagination.  In Kerr’s words, if it exists at all, it “consists of three dudes meeting for dinner once in a while.”   

In this New Republic essay, Rosen argues that “even if Barack Obama gets to appoint the next justice or two,” Chief Justice Roberts’s preference for narrow opinions is “the only thing standing between [liberals] and a Court eager to roll back progressive reforms.”  According to Rosen, Roberts’s approach is holding back “conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power wherever possible.”  Rosen imagines that if Roberts’s approach fails, “sweeping conservative opinions by polarized 5-4 majorities” would strike down “many of the health care and environmental reforms that progressives hope for from a Democratic president and Congress.”  Anticipating the revival of Lochnerism, Rosen credits warnings that legislation requiring employer-provided health insurance might be deemed to violate “an unwritten guarantee of freedom of contract” and that tax policies and environmental regulations might be ruled unconstitutional takings.  “[O]nly if Roberts continues to promote narrow opinions that appeal to the center” can these results be avoided. 

There would appear to be some glaring defects in Rosen’s thesis: If there is any evidence that any justice is “eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power wherever possible,” Rosen doesn’t provide it.  One justice, Justice Thomas, has set forth a limited view of Congress’s Commerce Clause power, but I’m not aware (please correct me if you think I’m wrong) that he has written anything supportive of a revival of Lochnerism or of aggressive use of the Takings Clause against the regulatory state.  Much to the dismay of Kerr’s “three dudes meeting for dinner once in a while,” Justice Scalia (in his concurring opinion in Gonzales v. Raich) has adopted a far more expansive reading of the Commerce Clause power.  In addition, Scalia has been an ardent critic of the “substantive due process” theory underlying Lochnerism, and I don’t believe he’s ever applied the Takings Clause beyond real property.  Nor is there anything in Roberts’s or Alito’s record, much less Kennedy’s, that suggests an inclination towards undoing the New Deal. 

How would this sudden 5-member anti-New Deal majority develop?  How is it that Roberts, Scalia, Kennedy, and Alito would adopt Thomas’s Commerce Clause view, not to mention embrace positions that Thomas has never adopted?  Rosen doesn’t explain. 

Rosen somehow sees this dire threat even if Obama is elected.  But I’m willing to bet that if John McCain is elected president and replaces all five of the “mystery” justices—Stevens, Kennedy, Souter, Ginsburg, and Breyer—the number of justices who embrace the phantom Constitution in Exile movement will be zero.

Tags: Whelan

Supremely Inferior?


Slate carries a version of a Newsweek essay by Dahlia Lithwick that provides a “user’s guide to the Supreme Court for you to print out and take to the voting booth.”  This guide will be of particular value to anyone who wants to read that the Court is “made up of nine justices” who “have a total of about three dozen wee, elfin creatures called clerks to assist them.”   


Among other things, Lithwick tells her readers that “some of [the] more conservative jurists” on the Court don’t “believe[] in deploying [the] constitutional superpower” of judicial review.  I suppose that it ought to be refreshing that Lithwick has abandoned the Left’s claim that the judicial conservatives are conservative judicial activists striking down legislation they don’t like.  But must she really retreat to the polar-opposite error of alleging that some of the justices don’t believe in judicial review?  Surely Newsweek readers can be clued in to the jurisprudential debate between liberal judicial activists, on the one hand, and practitioners of judicial restraint, on the other, over when it is proper for the Court to strike down democratic enactments. 


Lithwick builds up to this concluding crescendo:  “If we really want to restore the rule of law in America, and the reputation of the United States as a land in which laws matter, we need to vote for a president who believes that we still call it a Supreme Court for a reason.”  (Italics in original.)  Lithwick evidently believes that we face a choice between judges who “sideline themselves” and judges who reign supreme over the other branches.  (On the modern myth of judicial supremacy, see This Week for Sept. 29, 1958.)  But there’s a vast middle ground in which judges play their proper role. 


More particularly, Lithwick misunderstands why the Supreme Court bears the name it does.  Article III of the Constitution confirms what elementary grammar would indicate:  “the supreme Court” is distinguished from “such inferior Courts as the Congress may from time to time ordain and establish.”  In other words, the Supreme Court is supreme over other federal courts (and, under Article VI, over state courts on questions of federal law), not over the executive and legislative branches.

Tags: Whelan

This Day in Liberal Judicial Activism—June 24


June 241992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer.  Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”  Scalia states:  “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.”  Further:  “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 


For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

Epstein on Boumediene


In last Saturday’s New York Times, University of Chicago law professor Richard A. Epstein—a brilliant, provocative, and idiosyncratic libertarian scholar—has an op-ed on Boumediene that might charitably be described as puzzling.  In his first two paragraphs, Epstein assures the reader that the Boumediene majority reached the right result in holding that aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court.  Only several paragraphs later do we learn the frivolous basis for Epstein’s judgment:  “Nothing in the suspension clause distinguishes citizens from aliens.” 


The so-called Suspension Clause provides:  “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  The Suspension Clause doesn’t purport to define the scope of the privilege of habeas corpus; it merely governs suspension of the privilege.  So it’s trivial and meaningless that the clause doesn’t distinguish citizens from aliens.  (What would Epstein imagine the Framers would have said to distinguish citizens from aliens—or at least aliens on foreign soil?  They would have had to define its scope, rather than simply referring to the historic privilege.)


The non-originalist Epstein claims that his misreading of the Suspension Clause rests “on originalist grounds”.  Yet he nowhere confronts (or even acknowledges) the extended originalist argument that Justice Scalia makes in his dissent.  Epstein apparently even imagines that the constitutional guarantees of “persons” flow equally to aliens, as he breezily observes that “the due process clause extends its protection to all ‘persons,’ citizens and aliens alike”, and that “If citizens overseas are entitled to habeas corpus, so are aliens.”  There is, so far as I’m aware, no precedent for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad have, and the very idea is inimical to a sound understanding of what “We the People” established through the Constitution—a framework for “secur[ing] the Blessings of Liberty to ourselves and our Posterity.”  (I am of course not arguing that the U.S. government shouldn’t treat aliens abroad justly; the contours of just treatment are a matter of policy, not constitutional mandate.)


Meanwhile, in Saturday’s Wall Street Journal, Andrew McBride got Boumediene right.

Tags: Whelan

Today’s Rulings


The Court will issue more rulings at 10:00.  I’m going to be tied up in meetings most of today, so if you want a prompt summary of, and access to, the rulings, go directly to SCOTUSblog (which offers live blogging of the Court’s announcement session) or How Appealing.

Tags: Whelan

This Day in Liberal Judicial Activism—June 23


June 232005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan.  The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.  It’s hardly a surprise that justices who will willy-nilly invent rights that aren’t in the Constitution will ignore rights that are. 

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

Playing Politics With the Study of Politics


It may be a little tangential to Bench Memos concerns (though not much), but I’ll make free here to point readers to my main-page NRO piece on the gay-marriage debate going on in the American Political Science Association.  Charlotte Allen writes about the same subject–making many of the same points–in today’s Wall Street Journal.


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