law
purepedantry | November 30, 2006Yesterday the Supreme Court heard oral arguments in Massachusetts et al. v. EPA. In the case, several state governments are suing the EPA for failing to regulate CO2 as a greenhouse gas.
There are many levels of legal conflict on which the justices could rule, summarized in the NYTimes coverage:
On one level, the argument was about the meaning of the Clean Air Act, which the Environmental Protection Agency maintains does not treat carbon dioxide and other heat-trapping gases as air pollutants and thus does not give the agency the authority to regulate them.
On another level, the argument was…
stcynic | November 14, 2006I love getting these "action alerts" from religious right legal groups. At least once a week I get a breathless, hyperbolic email designed to push the emotional buttons of their followers and get them worked up into an unsightly froth. The Thomas More Law Center's latest news alert takes aim at an obscure California college's student government, which decided recently to stop opening their meetings with the pledge of allegiance. The news alert is titled Thomas More Law Center Condemns California College's Ban on Pledge; Calls for Action By the Supreme Court, and it is practically bursting at…
purepedantry | November 9, 2006Here is an audio recording of the oral arguments in the case of Gonzales vs. Carhart (as an mp3).
Gonzales vs. Carhart is a case about the federal partial birth abortion ban:
The Supreme Court on Wednesday heard oral arguments on the federal late-term abortion ban, the first major abortion issue before a more conservative court now that Samuel Alito has replaced retired justice Sandra Day O'Connor.
The procedure in question in the current cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, is called by critics "partial birth" abortion and is medically known as "intact dilation…
stcynic | November 6, 2006Human Events is reporting from a supposedly credible source that Justice Stevens is in grave health and is expected to retire from the Supreme Court before the end of the year. Naturally, they are using this as a warning to conservatives about the importance of voting for Republicans this year:
Normally, this news might be too ghoulish to repeat publicly. Nevertheless, with the election just days away, it is news that should be considered. It points out what could be a once-in-a-lifetime chance for the 20-year movement to recast the court with a constitutionalist majority. It would be a cruel…
stcynic | October 27, 2006One of the law professors on the ReligionLaw listserv posted a link to a journal article on SSRN by George Dent of Case Western Reserve University. The article, entitled Civil Rights for Whom? Gay Rights Versus Religious Freedom, reminded me of Dorothy Parker's famous one line book review - "This is not a novel to be tossed aside lightly; it should be thrown with great force." It is, quite simply, one of the worst attempts at legal scholarship I have ever come across, beginning with the very first paragraph:
Disapproval of homosexuality is widespread, deep-rooted and of long standing.…
stcynic | October 26, 2006I know I've spent a fair amount of time lately criticizing Justice Scalia about things he has said in his recent appearances, but there's one thing he said that is being attacked on this blog that I think he should be defended about. Will Bunch, owner of the Attytood blog, says that Scalia holds the media in contempt because of this comment:
Scalia expressed disdain for the news media and the general reading public and suggested that together they condone inaccurate portrayals of federal judges and courts. "The press is never going to report judicial opinions accurately," he said.
And Bunch,…
stcynic | October 25, 2006I decided to take a look and see if Justice Scalia had ever addressed the ruling of Loving v Virginia. It turns out, apparently, that he thinks the case was decided correctly, even while embracing the exact same argument made in that case by the state of Virginia. In his dissent in Lawrence, he accepted the defense's argument that the Texas anti-sodomy law was "facially neutral" because it applied to both men and women equally - that is, men and women were equally forbidden from marrying someone of the same sex.
This is precisely the argument that was made by the state of Virginia with…
stcynic | October 24, 2006Justice Scalia has been very active lately on the public speaking circuit. In addition to his debate with Nadine Strossen, he also made an appearance, along with Justice Alito, at a conference sponsored by the National Italian American Foundation. The AP reported on that talk and something jumped out at me, because he made a very similar statement in his debate with Strossen and I find it odd. In talking about judicial independence, he said that the court puts its own independence at risk when it wades into controversial issues:
"The court could have said, 'No, thank you.' The court have said…
stcynic | October 18, 2006Yet another post at the ADF blog about judicial activism, no better than the last few. This one is written by Matt Bowman, who seems to miss the point of the ambiguity of the phrase almost completely. He writes:
One can understand why Leftists don't want to debate the merits of court decisions that constitute judicial activism under any definition, because, for example, pro-abortion law professors have already conceded that whatever Roe is, it is not constitutional interpretation, but is what amounts to judicial social imperialism.
But this obscures an important point: it's not a question of…
stcynic | October 16, 2006Justice Scalia participated in a televised debate with Nadine Strossen, President of the ACLU's board of directors, last night. The AP has a report about it, and there's one statement in it that caught my eye, and the eye of STACLU as well.
Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach."
Which prompted this response from Jay at STACLU:
Bingo! Scalia slams them here. To put things in context, he said this after speaking about what he…
stcynic | October 13, 2006The admin of the ADF's blog has a post responding to this column by Edward Lazarus about judicial independence and judicial activism. Amusingly, he titles the post Why Won't the Left Engage in Honest Debate? You'll see why this is amusing in a moment. He claims that Lazarus "fails to acknowledge that the real issue in the debate is in fact the definition of 'judicial activism.'" And he then refers to an earlier post by Jordan Lorence, where Lorence was replying to a post I had written accusing him of double talk on the subject of judicial activism. He cites the following from Lorence:
Jordan…
stcynic | October 10, 2006Charles Swift, the JAG lawyer who bravely defended Hamdan and won his case before the Supreme Court, was denied a promotion and now must leave the Navy:
Lt. Cmdr. Charles Swift, 44, will retire in March or April under the military's"up or out"promotion system. Swift said last week he was notified he would not be promoted to commander.
He said the notification came about two weeks after the Supreme Court sided with him and against the White House in the case involving Salim Ahmed Hamdan, a Yemeni who was Osama bin Laden's driver.
"It was a pleasure to serve," Swift told the newspaper. He added…
stcynic | October 5, 2006Good ol' Judge Roy Moore, the Christian supremacist former Alabama supreme court justice, thinks HR 2679 (which I refer to as the Tonya Harding bill - if you can't beat the ACLU in court, hobble them on the way up the steps) is a dandy idea. And you're gonna love the hypocritical rhetoric he uses to defend that position. He begins with an inaccurate statement of history:
The American Rule in lawsuits, which the United States Supreme Court stated in 1967, is that unless otherwise stated in the law or by contract, each party is responsible for paying its own attorneys' fees regardless of who…
stcynic | September 29, 2006Jack Balkin says no:
First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is…
stcynic | September 27, 2006Which is hardly a surprise. The House will pass virtually anything, as history attests. But this bill is going nowhere fast in the Senate, just like Rep. Hostetler's other court-stripping legislation that passed the house and then died. Congress is about to go on break until November 7th. When they come back they've got about a dozen major appropriations bills to pass before they adjourn until January. This won't even come up for a vote in the Senate. Joan Bokaer has a post at Talk to Action about the bill that shows just how crazed Hostetler is about this: he thinks the executive branch…
stcynic | September 22, 2006Few people are as reliably ridiculous as Worldnutdaily publisher Joseph Farah. If there is a hall of fame for asinine writing, Farah is a first ballot inductee. In his latest column he revisits an old issue that his little webrag flogged to death last year, the shocking (to him, that is) possibility that the plaintiffs in Lawrence v Texas might have arranged to get arrested so that they could challenge the validity of the law. Lawrence is the Supreme Court ruling that overturned state laws against sodomy, something the religious right has been complaining about mightily ever since. And a year…
stcynic | September 21, 2006Last week, I left a comment at the ADF's blog in response to a post by Jordan Lorence about judicial activism that was apparently written in response to me (go here, scroll down to my first comment). My comment said:
Simple yes or no question: was Loving v Virginia correctly decided or was it "judicial activism"? It certainly fits your criteria. There was a long tradition of miscegenation laws going not only back through American history but even back to the English common law. No court had ever struck them down before; indeed, innumerable courts throughout the country had upheld them. The…
stcynic | September 18, 2006John Yoo had an op-ed in the Times yesterday about what he terms Bush's goal of "reinvigorating the presidency" by asserting the authority to do whatever he thinks should be done regardless of what Congress and the Courts say. In that op-ed he writes:
The founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
Orin Kerr at Volokh asks readers the obvious question: "Any ideas as to what historical evidence supports this claim?" The answer, of course, is…
stcynic | September 17, 2006As a follow up on the posts over the last few days about the emptiness of the phrase "judicial activism", I would urge those who are interested to read Keenan Kmiec's article on the subject from 2004. It's a thorough analysis of all the ways the term is used, and a history of its usage. At the end, he offers a list of all the various meanings assigned to it, a list that I think demonstrates that it has no coherent, agreed upon meaning and that, more importantly, it depends entirely on a whole host of other ideas upon which reasonable people differ. I'm going to list those meanings here and…
stcynic | September 16, 2006Jordan Lorence, the ADF attorney who wrote the post on judicial activism that I replied to the other day has responded. He doesn't link to the response or mention me at all, but I assume it's my post he's responding to because my post was titled "ADF's Double Talk on Judicial Activism" and his reply is titled "No Double Talk on Judicial Activism Here". Assuming he sees this post as well, I hope from now on he'll follow the general rules of blog etiquette and post a link to the criticism he's responding to so that readers can actually see both sides rather than having to rely on their…