June 28, 2005
Go Ahead, Take the Day Off, Court Watchers
[Kathryn Jean Lopez 06/28 06:45 AM]
Rehnquist isn't going anywhere. Subtle signals: He wore a Nike hat to court yesterday. Message? He's in good shape and will keep running.
Just reading what we have...
Anyone see what Sandra D was wearing?
Novak on Gonzales
[Jonathan Adler 06/28 05:41 AM]
Bob Novak reports on speculation about a possible Gonzales appointment, especially if Justice O'Connor retires. If O'Connor goes, Novak suggests, it's either Gonzales or some other non-white-male nominee. Perhaps Judge Emilio Garza or Edith Brown Clement.
TV
[Edward Whelan 06/28 05:41 AM]
Tuesday morning at 8:15 ET, I am scheduled to debate the Ten Commandments cases on Fox TV.
June 27, 2005
Ten Commandments plus Fifth Amendment
[Edward Whelan 06/27 03:35 PM]
Scrappleface succeeds in putting today’s cases together with last week’s Takings case:
Court Allows 10 Commandments on Seized Land
by Scott Ott
(2005-06-27) -- In a pair of rulings on the constitutionality of the 10 Commandments on government property, the Supreme Court today said the commandments may be displayed on public land if that property has been seized from private owners for 'public purposes' under eminent domain.
The 5-4 decision comes on the heels of this week's court declaration that so-called "private" property is actually government land temporarily under private management until its eventual seizure.
In a second ruling handed down today, the Supreme Court banned the 10 commandments from appearing in courtrooms unless the following disclaimer is included: "Display of this historically-significant collection of laws shall not be construed as an endorsement of the God who may, or may not, have spoken them, nor of the existence of such a God, nor of the legality of the laws. Citizens may observe and obey these commandments at their own risk. Please consult your family attorney before embarking on any law-abiding regimen."
We can at least take small comfort in the fact that the Court is not entirely beyond parody.
Preventing Theocracy?
[Edward Whelan 06/27 01:16 PM]
Justice Souter and his four colleagues who joined his majority opinion in the Kentucky Ten Commandments case evidently get their understanding of this country from the New York Times op-ed page. Consider this bizarre closing to an argument section that aims to refute Justice Scalia’s dissent:
“[P]ublic discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief . . . .”
If the Court is going to rest its ruling in part on prudential (i.e., policy) reasons like this, it would be helpful if it would tell us what the dickens its references to “public discourse” and “the divisiveness of religion in current public life” are supposed to mean. Is the Court giving anti-religious forces the equivalent of a heckler’s veto? Or does it seriously believe that we are in even the remotest danger of a modern-day St. Bartholomew’s Day massacre?
Clarence Thomas as Chief Justice
[Sean Rushton 06/27 01:14 PM]
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
[Shannen Coffin 06/27 12:21 PM]
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"
[Edward Whelan 06/27 12:15 PM]
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.
"The Dictatorship of a Shifting Supreme Court Majority"
[KJL 06/27 11:42 AM]
Here's a quick cut and paste job from that dissent, for a taste.
Another Classic Scalia Dissent
[Edward Whelan 06/27 11:39 AM]
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.”
Opinions In
[KJL 06/27 11:31 AM]
Some accessible here.
Life Is Too Long
[KJL 06/27 11:18 AM]
Stuart Taylor wants shorter tenures for judges.
Texas 10 Commandments Case
[Edward Whelan 06/27 11:14 AM]
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"
[KJL 06/27 11:13 AM]
Jeffrey Toobin on Rehnquist on CNN a few ago.
I give you what we've got.
Explaining the Split
[Jonathan Adler 06/27 11:04 AM]
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
[KJL 06/27 11:02 AM]
AP:
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
[Jonathan Adler 06/27 10:58 AM]
Lyle Denniston rounds up the decisions, including the split over the 10 Commandments, here.
RE: Split
[Jonathan Adler 06/27 10:56 AM]
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!
[KJL 06/27 10:55 AM]
No resignation (yet). No jokey announcement (we've been played with before).
Split
[KJL 06/27 10:52 AM]
Texas, where the 10 C are outside the courthouse, are ok.
Filesharing
[KJL 06/27 10:47 AM]
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.
RE: Miller & Cooper
[Kathryn Jean Lopez 06/27 10:20 AM]
Andy McCarthy's doing a happy dance on that one.
Judith Miller & Matt Cooper
[KJL 06/27 10:18 AM]
lose--Court news # 2 of the morning (denial of cert)
10 Commandments
[KJL 06/27 10:09 AM]
Cannot display....court rules...
Update: 5-4
UPDATE: This is the Kentucky case.
Kelo, Kinsley, and the Left
[Edward Whelan 06/27 10:08 AM]
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"
[Kathryn Jean Lopez 06/27 09:57 AM]
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).
"Extremists"
[Kathryn Jean Lopez 06/27 09:55 AM]
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
[Kathryn Jean Lopez 06/27 08:51 AM]
He'd be a half justice, Ramesh writes.
What to Expect Today
[Jonathan Adler 06/27 07:15 AM]
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.
June 26, 2005
Another Nominations Blog
[Jonathan Adler 06/26 11:52 AM]
Another blog devoted to judicial nominations is "Students for the Judiciary." According to the site description, the blog is part of "a non-partisan student-led campaign to provide objective information on judges under consideration for lifetime appointments to the federal judiciary. We are committed to the ideal of an independent judiciary and believe that judicial nominees should be able to divorce their personal political opinions from their ability to interpret the Constitution. As such, qualified nominees should be able to secure a broad base of political support."
There's reason to be skeptical about this group's neutrality, however, as it grew out of the "Filibuster for Democracy" campaign that sponsored FilibusterFrist.com.
