Clarence Thomas as Chief Justice
Jude Wanniski had a memo Saturday arguing that the best response to Thursday’s eminent domain decision is to elevate Clarence Thomas to Chief Justice.
The Nominee Game
If there is a vacancy announcement this week (and it is about even money on no vacancies versus one vacancy, and even then it’s hard to guess whether Rehnquist or O’Connor step down), be ready for the flood of handicapping on the nominees. Liberal activist groups, like NARAL, People for the American Way (or if John Edwards were involved, People for the Two American Ways) are going to be ready whoever the nominee is with “Judge X is anti-environment or Judge Y is against women’s rights or Judge Z is a wife beating dog hater). This is precisely how they hope to deceive the public, by characterizing a nominee’s judicial (or lawyering) record as a political matter. But keep in mind that, more often than not, the decisions that are being characterized have little, if anything, to do with politics, and are a matter of construction of an act of Congress or a constitutional provision. So when NARAL attacks Judge Mike Luttig as anti-women’s rights as a result of his opinion in Brzonkala, which struck down the violence against women act (and was eventually upheld by the Supreme Court), the truth of the matter is that Judge Luttig said little to nothing in his opinion about the problem of violence against women in our society, but instead ruled that Congress lacks the authority to legislate in what is essentially a purely local, non-commmercial matter. Judge Bill Pryor was attacked for filing a Supreme Court brief in the same case; interest groups called him hostile to women’s rights. But then Alabama AG Bill Pryor made very clear in filing his brief that the issue was one for his state to address and that Congress really had no business legislating under the Commerce Clause. More often than not, the real explanation of a decision lies in the details. But the liberal interest groups hell bent on destroying whatever nominee comes down the pike will seek to distort the opinion by playing on the politics of the decision. And that’s just the point–they want judges who will play to their politics interests, rather than interpret the law. So politicizing individual decisions is one part of that arsenal.
Breyer’s “Exercise of Legal Judgment”
So what explains the different results in the Kentucky and Texas cases involving the Ten Commandments? Justice Breyer provided the decisive 5th vote in each case, so we must consult his opinion concurring in the judgment in the Texas case (beginning at page 23) for the answer.
For “difficult borderline cases” that are “fact-intensive,” there is Breyer tells us, “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.”
The particular factor that Breyer finds “determinative” in this case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”
In short, it would seem, under Breyer’s view, American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.
Another Classic Scalia Dissent
In the Kentucky 10 Commandments case, Justice Scalia wrote a dissent joined in whole by Rehnquist and Thomas and in part by Kennedy. Scalia read from the bench a summary of Part I of his dissent (the part that Kennedy did not join). Be sure to read it. Here are the key points:
1. The history of this country demonstrates that the majority’s proposition that the government cannot favor religion over irreligion is plainly false.
2. “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” The majority flunks that test.
3. “If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.” “Historical practices . . . demonstrate that there is a distance between the acknkowledgment of a single Creator and the establishment of a religion.”
Life Is Too Long
Stuart Taylor wants shorter tenures for judges.
Texas 10 Commandments Case
The Chief issued a plurality opinion. Breyer concurred in the judgment. Four dissenters included O’Connor.
(I haven’t seen opinion yet. All of this is based on conversation with someone who was in courtroom.)
“I Thought He Sounded Awful”
Jeffrey Toobin on Rehnquist on CNN a few ago.
I give you what we’ve got.
Explaining the Split
For those that are curious about the doctrinal reason for the split over the Ten Commandments cases, it appears that it’s okay to have a Ten Commandments display on government land, just not in a government courthouse.
Cops Can’t Be Sued for Restraining Orders
The Supreme Court ruled Monday that police cannot be sued for how they enforce restraining orders, ending a lawsuit by a Colorado woman who claimed police did not do enough to prevent her estranged husband from killing her three young daughters.
Lyle Denniston rounds up the decisions, including the split over the 10 Commandments, here.
The split decisions ensure that this will remain a live, contentious issue for years to come, and that constitutional law scholars have plenty to write about, as they try to figure out what sorts of displays satisfy Justice O’Connor’s . . . oops, I mean the Constitution’s requirements.
No resignation (yet). No jokey announcement (we’ve been played with before).
Texas, where the 10 C are outside the courthouse, are ok.
Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.
The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn’t be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.