Bench Memos

NRO’s home for judicial news and analysis.

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.

SCOTUSBlog Roundup


Lyle Denniston rounds up the decisions, including the split over the 10 Commandments, here.


RE: Split


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.

Court Adjourned!


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.

A Cable


RE: Miller & Cooper


Andy McCarthy’s doing a happy dance on that one.

Judith Miller & Matt Cooper


lose–Court news # 2 of the morning (denial of cert)

10 Commandments


Cannot display….court rules…

Update: 5-4

UPDATE: This is the Kentucky case.

Kelo, Kinsley, and the Left


Last week’s Supreme Court decision in Kelo v. City of New London, which effectively eviscerated the “public use” requirement of the Takings Clause, illustrates a broader tendency among the six overtly non-originalist Justices who dominate the Court: Consistent with their own policy preferences, these Justices will ignore or dilute express rights (e.g., right to keep and bear arms) that the Constitution actually confers and will invent rights (e.g., abortion) that it does not confer.

Michael Kinsley’s column on Kelo provides an amusing illustration how the Left would literally rewrite the Constitution. In asserting that Kelo “was about the requirement that any government taking must have a ‘public purpose,’” Kinsley evidently thinks (or wants his readers to think) that the text of the Takings Clause has a “public purpose” requirement, rather than a “public use” requirement.

Other examples of language that the Left pretends that the Constitution itself embodies include, of course, the “separation of church and state” and a generalized “right of privacy,” the contours of which judges must divine. Ruth Bader Ginsburg even pretends that the Constitution’s preamble contemplates that it is judges, rather than “We the People of the United States, whose task it is to “form a more perfect Union.”

“Genial Apostle of Tolerance”


That’s how the NYTimes piece on Kennedy describes the justice (in case you haven’t had the time to read the 400 pieces on the Court today).



I just got a galley copy of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America by Cass Sunstein. The press release is all over Bill Pryor (you’ve heard it before: he wages war on VAWA, Voting Rights Act, etc.).

Let me daydream a moment. Yes, yes. That’s President Bush. He’s…what’s that?…ah yes. He’s nominating Bill Pryor to SCOTUS in a picture-perfect Rose Garden ceremony. And, what’s that? Barbara Boxer imploding.

Gonzales’s Big Problem


He’d be a half justice, Ramesh writes.

What to Expect Today


Lyle Denniston has an informative post. He notes that retirements are rarely announced from the bench, so if there is a retirement today, it will most likely be announced later in the day. Of course, no one tells the Supreme Court, especially this Supreme Court, how to do anything.

And the Lobbying


Let There Not Be Another Kennedy



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