Constitutional Law
stcynic | July 5, 2005I am back after a few days away, and while I was gone there has been some discussion in the comments about judicial activism. I don't wanna go back and answer all of those comments individually at this point, having written a great deal on the subject in the past. Let me give a brief overview of my perspective on it instead. I don't think the phrase "judicial activism" is inherently meaningless, but I do think the manner in which it is typically used is incoherent and inconsistent. As a general rule, I think its usage in political debates about the courts is practically meaningless because it…
stcynic | June 27, 2005After reading the majority opinion in the McCreary case, involving the posting of the Ten Commandments in a county courthouse, I am convinced that the ruling is extremely good news for those of us who are active in fighting the attempts of creationists (in whatever form) to weaken science education in public schools. But in order to understand why, some background is required. We've been waiting with great anticipation for this decision because it would involve the Lemon test, the set of criteria that the court has used (sometimes) for the last 35 years or so to determine whether a policy…
stcynic | June 27, 2005Slate has published a fairly thorough analysis of all of the potential people said to be on Bush's short list for a Supreme Court nomination. Well worth reading, but bear in mind my usual disclaimer that it is always best to look up the actual rulings for yourself rather than accepting the way others portray the issues in them.
stcynic | June 27, 2005The inevitable result of the Kelo decision:With Thursday's Supreme Court decision, Freeport officials instructed attorneys to begin preparing legal documents to seize three pieces of waterfront property along the Old Brazos River from two seafood companies for construction of an $8 million private boat marina.
The court, in a 5-4 decision, ruled that cities may bulldoze people's homes or businesses to make way for shopping malls or other private development. The decision gives local governments broad power to seize private property to generate tax revenue."This is the last little piece of the…
stcynic | June 24, 2005Bill Kristol is making the case that Justice O'Connor will step down in the next week, not Chief Justice Rehnquist, and that Bush will nominate Gonzales to replace her. That would certainly be an interesting development.
stcynic | June 23, 2005The notion of limited government took another enormous body blow today with the Supreme Court's astonishingly wrongheaded decision in the Kelo case (see the text of the decision here). It was 5-4, with the 4 most conservative justices - Rehnquist, Scalia, O'Connor and Thomas - dissenting. There is grand irony here. Despite the common perception that liberals are for the "little guy" and conservatives are for "big business", the liberal judges on the court just upheld the government's power to take away someone's property and give it to private development companies solely because the private…
stcynic | June 23, 2005In their annual drive to pander to the hyper-emotional right, the House has yet again passed an amendment to ban flag burning. The award for the most shameless demagoguery so far:
"Ask the men and women who stood on top of the (World) Trade Center," said Rep. Randy (Duke) Cunningham, R-Calif. "Ask them and they will tell you: pass this amendment."
Come on Duke, you could have done better than that. You didn't mention godless commies, mom or apple pie. You're losing your touch. The award for the most sensible statement so far:
But Rep. Jerrold Nadler, D-N.Y., said, "If the flag needs…
stcynic | June 23, 2005Numerous websites are reporting that Chief Justice Rehnquist has informed the White House of his intent to retire at the end of this term. The Chicago Tribune is reporting that the White House has been busy interviewing potential nominees and quotes anonymous White House sources on the short list: The White House has focused on several nominees with established conservative records: Judges J. Michael Luttig and J. Harvie Wilkinson of the Richmond, Va.-based 4th U.S. Court of Appeals, and Judge Samuel Alito of the Philadelphia-based 3rd U.S. Court of Appeals.
The official said the…
stcynic | June 19, 2005This morning's Washington Post reports that advisers close to the White House think that the short list to replace Rehnquist on the court does not include Michael McConnell:
White House officials have prepared for the prospect by culling long lists of possible candidates, poring through old cases and weighing a variety of factors from judicial philosophy to age. Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G.…
stcynic | June 17, 2005John Dean (yes, that John Dean) has an interesting column at Findlaw about judicial activism. He argues what I have long argued, that the phrase has become virtually meaningless because it is thrown around so casually and without definition. He notes recent examples of liberal writers accusing conservative courts of judicial activism and conservative writers accusing liberal courts of judicial activism, with neither of them bothering to define the term at all. He also references a California Law Review article by Keenan Kmiec, a recent graduate of Boalt School of Law at Berkeley. Kmiec goes…
stcynic | June 17, 2005Speaking of Ben Shapiro, who just published a book on the evils of pornography, Radley Balko says:
While on the telly-vision, Ben apparently asked where in the Constitution it says you have the right to look at porn.
Well, Ben, how about the First Amendment? If not there, then certainly in the Ninth.
You remember the Ninth, don't you? It's the one conservatives once decried the liberals for forgetting about. It was put in the Constitution for the sole purpose of preventing people like you from saying things like, "where in the Constitution does it say you have the right to look at porn?"…
stcynic | June 12, 2005The SCOTUSblog's Supreme Court Nomination Blog has a profile of Judge Michael McConnell that sheds some light on some of his more prominent rulings. Included is a link to this letter by liberal constitutional scholar Cass Sunstein endorsing McConnell for the 10th circuit. Also this letter from 300 constitutional scholars, including dozens of liberal scholars, endorsing him for that seat.
stcynic | June 10, 2005Radley Balko absolutely shreds a DePaul law prof's support of the decision in Raich.
stcynic | June 10, 2005Andy Schlafly (any relation, I wonder?) has a column in the WorldNutDaily which claims that Michael McConnell is "hostile to conservative legal principles" and would be another David Souter, nominated as a conservative but moderate-liberal on the court. Seems like one more reason to support him in my book. If People for the American Way thinks you're too conservative and the wingnuts at WND think you're too liberal, you can't be too far off.
stcynic | June 10, 2005Charles Krauthammer has a column in the Post about the differences between Justice Scalia and Justice Thomas. In the process, he points out how easy it is for politicians and advocacy groups to distort judicial rulings and why you should never accept at face value that an opinion is wrong just because you or someone else doesn't like the result:
Justice Thomas: "Dope is cool."
Justice Scalia: "Let the cancer patients suffer."If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized…
stcynic | June 7, 2005Patterico left a comment below that harkens back to a prior exchange we had on the subject of the legitimate exercise of authority by the government. I thought I'd move it up here in the hope that we could continue that discussion and others could jump in as well. Patterico writes:Where liberals have gone wrong is in relying upon an expanding and mysterious group of "rights" the existence of which is subject to the whims of unelected judges. Conservatives would rather stake their claim to liberty on the premise that the authority granted to a centralized government is limited in scope. If…
stcynic | June 7, 2005Patterico has responded to the medical marijuana ruling and come to similar conclusions to mine:
I have read Gonzales v. Raich. And I'm not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I'm more and more impressed with Clarence Thomas.
I think he also nails the truth about the Wickard decision upon which the majority relied in making this ruling:
Almost no case disturbed me in law school as much as Wickard v. Filburn. To me, this decision held more potential for totalitarianism than any other.
Wickard ruled that the…
stcynic | June 6, 2005This is pretty cool. SCOTUSblog has asked some of the more prominent legal bloggers to post there on the outcome of the medical marijuana case. They include Ann Althouse, Larry Solum, Orin Kerr and others. So it's all Raich, all the time for a while.
stcynic | June 6, 2005Over at the VC, David Bernstein has a quick analysis of the Raich decision that includes this statement:
Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or…
stcynic | June 6, 2005As I'm sure everyone knows by now, the Supreme Court has ruled in Gonzales v. Raich, the medical marijuana case in which the real question was one of federalism and the reach of the interstate commerce clause. California passed a law allowing patients with certain illnesses who would benefit from the use of marijuana to do so with the advice of their doctor. John Ashcroft, as attorney general, asserted the primacy of the federal Controlled Substances Act, arguing that it in essence trumped the state law. Further, he ordered DEA agents to arrest those in California who followed that law. Two…