Judicial Activism Lives

Of course, according to certain mindsets, it's not Judicial Activism if it's a decision that favors Christian Conservative mores, but I direct you to this post on Americans United and say that I share their disappointment. Perhaps I'll have more to add to this later, but for now I'll just say I think the Roberts Court just made a mockery of the 1st Amendment.

For more information on the background of this story, I direct you to a post I wrote some time ago on the subject, back in 2007.

It's the Law!

A few years ago, while I was still in law school, there was a case that went before the Supreme Court involving military recruiters. Various law schools, including my alma mater, did not want to allow recruiters on campus because of the schools' objections to "don't ask, don't tell." The Court determined, as my old friend Bookworm wrote at the time, "He who pays the Piper calls the tunes." Essentially, the schools didn't want to allow military recruiters, objecting on 1st Amendment grounds, yet still wanted to receive the federal funds that were tied to allowing the recruiters on campus. I disagreed with the decision at the time, however, I do believe that it is the correct decision.

Yesterday, the Supreme Court held oral arguments on a case involving the Christian Legal Society at the Hastings College of Law in San Francisco. The gist of the case is that the Christian Legal Society (CLS) wants to be recognized as an official student organization, which allows the group to receive "a small subsidy, preferred use of campus facilities, use of all campus bulletin boards and e-mails and use of the school logo." In order to be recognized as an official organization, the school requires that a student organization accept all comers. In other words, the organization cannot discriminate on any grounds. The CLS had been recognized as an official organization until 2004, when it changed its bylaws to bar admission to homosexuals or those who participate in pre-marital sex. The school stripped the CLS of its official recognition at the time, and cut off its stipend.

At this point in time, the CLS had a couple options. They could: a.) change their bylaws and allow all comers to have full benefits of the society, or b.) accept the decision of the school and continue to discriminate as they see fit understanding that they would not receive funding from the school. What the CLS did, of course, was option c.) file a lawsuit and claim injury.

The CLS argued that this requirement violated the organization's rights, and that it didn't make sense for the CLS to be required to allow an atheist to lead a CLS meeting. Justices Scalia, Alito, and Chief Justice Roberts seem to be wanting to participate in what would be called "Judicial Activism" if they were Liberal-appointed Justices with their questions during oral arguments, including Justice Alito opening asking if other organizations were allowed to discriminate on campus despite the CLS's stipulation that others did not, and Chief Justice Roberts trying to parse this case as different than Bob Jones University being denied federal funds for wanting to deny students who believed in interracial dating.

I fail to see a difference between the CLS case and the two Bob Jones University or the Military Recruiters case. I believe that as Bookworm would write, "who pays the piper, calls the tunes," but given the makeup of the Court and the fact that the complainant in this case is a Christian organization and not a Buddhist one, I would not be surprised to see the Court engage in some legal gymnastics to find the holding they want, namely to force the Hastings College of Law to fund an organization that openly wants to discriminate.

It's interesting to think that the organization's argument seems to stem around denying access to atheists as I believe Jesus taught that he wanted Christians to be Fishers of Men, and that would be a pool from which they sought to draw...

The Case Against Sotomayor?

So, Judge Sotomayor's confirmation hearings ended last week, and among the first things I heard from the Bush base was that she was unintelligent, an "activist," a "bigot," and unqualified for the job that was a foregone conclusion to be hers. What I didn't see in these posts, however, was an ounce of support for their conclusory statements.

As recently as yesterday on an open post on my good friend and fellow AF vet Gun Toting Liberal's site there were such conclusory statements:

As a person, Judge Sotomayor is a racist, a bigot and a liar, there is no way, besides blatant liberal hypocrisy, to excuse her statements of the last 20 years, let alone the way those statements exactly contradict the ones of the last twenty days. As a judge, she is mediocre at best and cowardly at worst, She has shown no exceptional abilities to explain why she should attain the highest level of her profession, besides a decidedly liberal bent.
If her personal opinions were voiced by anyone besides a “wise latino woman” that persons public service career would come to a very abrupt and publicly humiliating end. Schumer, Leahy et all would make sure of it.

To this, I posted a reply:

Links, and support please. Judge Sotomayor has a longer record than any nominee in the past generation, surely there are several cases that show her lack of exceptional abilities and decidedly liberal bent, and contradict the ABA’s rating of “Well qualified,” as well as her record of being rated (at a minimum) qualified over her tenure.

What I was looking for, and what I thought was fairly apparent from my comment, was some evidence supporting the claim that she was "mediocre at best and cowardly at worst," as those statements seem to need to stem from some empirical evidence. What I got in return was yet another conclusory statement:

If any conservative or moderate justice seated presently had ever once even mumbled anything remotely similar to what has basically been a mantra of Sotomayor, the liberals in congress and the media would have crucified them. The double standard that has been achieved here is stunning.

What's interesting about this comment is that it doesn't even come close to the subject on which I had asked for support - rather it reinforces (such as it is) the specious claim that Judge Sotomayor is a racist.

I attempted again to gather support for this position:

I never imagined GHWB would appoint anyone who was far left liberal to any judicial position. But again, I ask for the opinions that she wrote that establish her as a far left liberal as well as her reported lack of quality in her position, as well as explanations for those opinions demonstrating why they are liberal (or as others have suggested on other sites “activist”). Here, I’ll start the ball rolling by posting to another Obsidian Wings post on Sotomayor’s record, which in turn links to a Tom Goldstein SCOTUS Blog post on her record. His summary:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

This record stands in stark contrast to the position that she is a racist or a bigot, though it does demonstrate she is of a different caliber than Justice Alito, who announced at the opening of his confirmation that he does use his ethnicity to help him form his opinions, a statement borne out in his concurring opinion in Ricci, arguably an activist decision based on empathy.

Here, as you see, I have produced not only evidence of Judge Sotomayor's record and the dearth of cases supporting a claim of racism or that her race would somehow influence her ruling based on the best evidence available - namely her record, and then proceeded to produce some evidence in controversion to the claim that the "liberals in congress and the media would have crucified" a Conservative appointee who made similar statements with the recent appointee of Justice Alito, who, one would assume, would have ample evidence of Media and Liberals "crucifying (interesting choice of words)" his statements about ethnicity affecting his decisionmaking. I don't recall a media frenzy about this when he went through the confirmation process, nor do I remember a huge media crucifiction of Justice Alito with his concurrance in the case linked above.

The response to this, supporting the categorical statements made above?

[I]t is your choice to ignore what she has repeatedly stated is her belief, the comment concerning her gender and ethnicity allowing her to render better decisions than others who do not share those same traits is not a one time, off- handed comment. It has been an oft repeated, ingrained belief, which happens to be bigoted and racist. My point being ... is that their (sic) exists a huge double standard in the Lib/ Demo leadership that is repugnantly hypocritical.

Again - note the complete lack of documented support for the position, rather a third iteration of the same talking points. This, of course, is how the Conservative base works - issue a conclusory statement that seems supportable by one or two statements taken out of context and then run on those - repeating them ad infinitum and then citing those others who repeat the same talking point to garner the appearance of greater support, thus leading the talking point to fester into a "fact."

Now I don't know - perhaps there is ample evidence of Judge Sotomayor acting as a racist/bigot and using said racism/bigotry to form her positions, but without actually seeing any of it - I cannot subscribe to such a position. Unfortunately, there are many out there incurious and partisan enough to take such a position and then dig in so deep that nothing can shake their "opinion." That said, I'm still open to empirical evidence demonstrating that Judge Sotomayor is what the wingnuts on the Right claim her to be.

Individual Rights

Last week in the news, I saw stories related to no fewer than 3 separate incidents of multiple killings by use of handguns. Unsurprisingly, this has led to pieces discussing the Second Amendment and what it means. And it's only a matter of time (if it's not come already) before people start calling for stricter gun controls.

As this is the case, it becomes necessary to understand what was written in the recent case, Heller v. District of Columbia, 554 U.S. _____, 2008 (the link does not include a specific page reference. While I do not doubt that one has been attributed by this point, time constraints preclude my searching for it at this time), and understand the significance of this individual right.

First, a quick backgrounder on the case, as summarized in the opinion. Dick Heller was a special police officer who had desired to register his handgun in the District of Columbia. The District of Columbia, however, had rules so restrictive, it was virtually impossible to own one. You could not possess an unregistered handgun, and were not allowed to register handguns. You could apply for a 1 year license, approved by the chief of police, but Heller's application was denied, after which he filed suit. The suit was dismissed at circuit court, then reversed by the Court of Appeals on Second Amendment grounds, and the Supreme Court granted cert.

The Court held that the Second Amendment's right to Keep and Bear Arms clause protects an individual right, not connected with service to any militia.

In reaching the decision, Justice Scalia first reviewed the Second Amendment: "A well-regulated militia, being necessary to a free and secure State, the right of the people to keep and bear Arms, shall not be infringed." He noted that there are two clauses, a purpose clause and an operative clause, and that the operative clause did not rely on the purpose clause for its meaning. In other words, the purpose clause listed one reason for the RKBA, not the only reason.

Justice Scalia then parsed out the meaning somewhat more, delving into the operative clause. "The right of the people," according to the opinion, is a phrase that had been used 3 times in the unamended Constitution and the Bill of Rights, in the 1st, 2nd and 4th Amendments, and all of these times the rights mentioned referred to individual rights, not collective rights. This makes sense if you look at it from an historical standpoint. Remember, the Constitution was unpopular when ratified, and was only ratified contingent on a promise to enact a Bill of Rights. The federalist papers were Constitutional P.R. - trying to sell the document to a public who were leery of Governmental control. He then notes that in all iterations of "the people," both in these rights, but in exercising power (preamble, 10th amendment, and Sec. 2, Art. I), the phrase referred to all People, not a specific subset (though he neglects to mention that slaves were not considered "people" at the time), which if we were to interpret the operative clause of the 2nd Amendment to be contingent on the purpose clause, we would be forced to do.

He then discusses the meaning of the word "arms," and unsurprisingly finds it to mean weapons or armor. Moreover, the right to "keep" arms, he states, is the right to possess them, going back to Blackstone who remarked on "Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to 'keep arms in their houses.' 4 Commentaries on the Laws of England 55 (1769), as well as several other references to a right of all people to "keep arms." In a similar manner, he found that "bear arms" meant to carry or possess (not arms of bears).

He continues, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment." Remember, the Constitution and the Bill of Rights registered rights given to the government by the people. The rights discussed in the 1st, 2nd, and 4th Amendments refer to pre-existing rights, as Justice Scalia noted, in other words, the right to keep arms existed before the Bill of Rights was ratified, and the 2nd Amendment limited the ability of the Government to infringe upon that right.

Justice Scalia concluded his analysis of the operative clause of the Second Amendment:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course, the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U.S. ____ (2008). Thus we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

He then went to the purpose clause, which I will gloss over. In a nutshell, he shows that the purpose clause refers to protecting a polity, not an individual state. He then lists three separate reasons why a militia would be necessary to a "free state,"

First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary - an argument that Alexander Hamilston made in favor of federal control over the militia (author's note, this helps explain why the National Guard operates in the stead of a militia according to the Court in a prior decision).... Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

Justice Scalia finished by pointing out that at the time of the Bill of Rights, one way tyrants oppressed the People was not by outlawing militias, but rather, denying them the tools with which to defend themselves from internal threats (i.e. the tyrant). This is what we must beware of, to paraphrase Justice William O. Douglas, lest we become unwitting victims of the darkness.

While I find the two dissenting opinions unconvincing, I would recommend reading them. Due to length concerns, I will not include them in this post.

I may be somewhat naive, inasmuch as I believe that generally, people are good. But my naivete is not so great as to believe that there will never be people who take a right and use it for the wrong purposes. However, simply because there are those who abuse the rights we enjoy does not mean that we should enjoin all others from that right and the protections they provide, be it the Right to keep and bear arms, the right to peaceably assemble and petition the government for redress of grievances, the right to own land, the right to choose, the right to learn, etc.

Suspending the Writ

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Constitution, Art. I, Sec. 9, Cl. 2).

Some people don't seem to understand what this means. I have read and heard more than one person suggest that because Al Qaeda attacked the World Trade Center in 2001, we are under invasion. This is not true. But even if it were true, it would be a moot point, because the public Safety would not require suspension of the Writ (to this point, the Government didn't even offer the invasion theory as an argument in favor of denying the writ to the detainees, rather they merely said the Constitution doesn't apply to those detained by our Government).

Let's see if we can break this down a bit, so you can follow along at home. First, we need to consider the argument - that we have been invaded. While one can easily point to the words of the President and those who support him on this war on "terror" and show that we are fighting them abroad so that we don't have to fight them here, let's delve a little deeper. Black's law dictionary (seventh edition, which is the most recent edition I have) defines invasion as: 1. A hostil or forcible encroachment on the rights of another (not applicable to our discussion), 2. The incursion of an army for conquest of plunder (definitely applicable to our discussion), 3. Trusts. A withdrawal from principal (metaphorically speaking, and also not pertinent to the discussion). It should be clear from the plain language of the definitions provided that the second definition is the one with which we should concern ourselves.

There are two prongs to this definition - the first includes the incursion of an army. 19 individuals hardly qualifies as an army, though they are tied to a network with a common goal, so perhaps, in the light most favorable to the apologists' position, one could construe Al Qaeda as an "army," though this is a stretch, because traditionally, armies have been tied to a country. The second prong, "for conquest or plunder" is the key to the definition. It is quite clear by the nature of the attacks (suicide missions) that the attackers did not intend conquest (Conquest, according to Black's Law Dictionary, is "An act of force by which, during a war, a belligerent occupies territory within an enemy country with the intention of extending its sovereignty over that territory. [emphasis mine]), and, just as clearly did not plunder (see "Pillage - the forcible seizure of another's property"), as they did not seize the property (Seize: "To forcibly take possession"). Looking at the legal definitions of the terms involved in an invasion, it should be glaringly apparent to everyone involved that the attacks on 9-11 did not serve as an "Invasion" of the United States.

Not that it would matter, even if it did. The Suspension Clause notes that the Privilege shall not be suspended "unless in times of rebellion or public invasion the public Safety may require it. (emphasis mine). Who determines what qualifies as a situation where the suspension is "required?" Well, anyone who has taken Constitutional Law should be able to tell you who the interpreters of the Constitution are, as denoted in Marbury v. Madison. The Court, of course, gets to decide what the Constitution means. And the Court has decided when the public safety may require the suspension of the Writ. In Ex parte Milligan, 71 U.S. 2 (1866), the Court addressed the concept of when the public safety may require suspension. In a nutshell, suspension is justified when there is such a breakdown in the region that the legal system can no longer function, thereby requiring martial law. The purpose of this is to limit the arbitrary use of executive power. It does not take a genius to see that there has been no breakdown of the legal system in Guantanamo Bay, short of the denial of basic legal protections for the detainees by the Government holding them, therefore, there is not backing for the premise that the Writ should be suspended.

This, of course, was known to the Government during oral arguments, which is why it was not brought up before the Court to decide, and the argument presented was merely that the Writ didn't apply. The majority of the Court disagreed, and (as I've said previously) rightly so.

Highlights from Boumediene v. Bush

The PDF of the decision is available here.

It's too simple to say why the Court ruled the way it did in one or two sentences. You need a little more. I'm going to go through some of what I consider the highlights from the majority opinion here.

The issue of the case is whether the petitioners (individuals classified as enemy combatants by our Government who are being held at Guantanamo Bay, Cuba indefinitely) have the Constitutional privilege of Habeas Corpus. The holding is that the petitioners do have this privilege, and that the Military Commissions Act, Sec. 7, is an insufficient substitute for this privilege.

Habeas Corpus, for those who are unaware, is the right to challenge the validity of one's detention before the court (Black's Law Dictionary, 7th edition). This right is guaranteed under the Constitution in Art. I, Section 9, Cl. 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Taken in strict constructionist terms, this may seem to be all the reasoning one might need. However, there is more to what constitutes what is Constitutional than simply reading the plain language of the Constitution. One must also consider stare decisis - previous rulings by the Court interpreting the Constitution, and consider how the law in question compares to the laws previously ruled upon.

After conceding that the State was authorized to detain those captured and classified as Enemy Combatants for the duration of the conflict (Hamdi v. Rumsfeld 542 U.S. 507 [2004]), the Court set out to determine how and whether the law applied. First, the Court noted that these individuals were all captured, some on the battlefield, others in such locations as Bosnia and Gambia, and noted that none of the individuals petitioning the Court were citizens of a nation with whom the United States was now at war. The CSRT (the "alternative" to habeas review authorized under the MCA) had reviewed these individuals' petitions (the petitioners were not authorized legal counsel in these - it's not a trial - and they were not able to view much of the evidence presented against them - Democracy in action).

Now to get into the decision - The Court had to first determine whether the MCA served to deny federal court jurisdiction for habeas proceedings - which it did - and then the Court had to determine if this law was valid, thereby requiring the petitioners' cases be dismissed. In otder to determine the validity of the claim, the Court had to consider which of two possible reasons the Petitioners were barred from seeking Habeas relief: their status as "enemy combatants" as they were designated by the U.S., or because they were housed in Guantanamo Bay.

The Government's position was that these were non-citizens who were designated enemy combatants, and they were housed outside the United States, therefore they have no Constitutional Rights. Another way of putting this is "We get to designate what these people are, and we designated them enemy combatants. We did this because we think that Eisentrager [339 U. S. 763 (1950)] will allow us to deny them Constitutional rights." This justification should give Americans pause, because it basically says that the Executive Branch can designate whomever they want "enemy combatants" and deny them right to challenge their classification, to view the evidence that led to that determination, which goes against one of the fundamental tenets of our nation - that we were distrustful of the Government's power of the People.

The Court referred to the Magna Carta in its support for the importance of the Suspension Clause - that No man would be imprisoned contrary to the law of the land (Art. 39). It also cited Blackstone, who stated that the Habeas Corpus Act of 1679 (which established the procedures for issuing the writ and served as the model for the Colonies' habeas statutes) was the "stable bulwark of our liberties." The Court tied these, and other concepts together -

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.

Justice Kennedy's opinion also points out that the Suspension Clause existed in the original draft of the Constitution - predating the Bill of Rights - providing even more evidence of the importance of the Writ to the Framers.

So the Writ is important to America. How does this apply to foreigners? Well, the Government said that the Writ has no application to individuals classified as enemy combatants and held outside the United States (see Eisentrager). The difference, the Court notes, is that Eisentrager deals with individuals held in German prisons, whereas the detainees at Guantanamo Bay are held on a U.S. government facility in a U.S. territory under complete U.S. control. Generally speaking, citizenship of the individual seeking relief is viewed as more of a non-factor based on American and British precedent, see e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) and generally Khera v. Secretary of State for the Home Dept., A.C. 74, 111 (1984).

The Government argued that the Writ does not apply because, like Scotland and Hanover with respect to England (where the writ did not apply), Cuba has its own court system. This is a false analogy, though, as the detainees, while technically on Cuba, are held in a U.S. Territory and are not authorized access to Cuban courts, whereas prisoners in Scotland and Hanover were. In terms of sovereignty, the Court notes that there are two types - De Jure sovereignty (which is what Cuba holds over Guantanamo Bay), and De Facto sovereignty, such as that held by the United States over the same. The Court held that De Facto sovereignty controls questions regarding habeas standing, which makes sense.

This is one of the reasons supporting a rejection of Eisentrager. Another is that relying solely on Eisentrager would mean that the Court reversed its position from the Insular Cases, where it said that questions regarding extraterritoriality needed to be viewed individually based on the circumstances. Further, the prisoners in Eisentrager had already been tried and convicted (this is important to the Court in distinguishing the cases) and they did not challenge their status, as the detainees are.

The meat of the decision, indeed the lines that I've heard the most over the past couple of days, come from this next section. The Government claimed that it has no jurisdiction over Guantanamo Bay because of the lease treaty of 1903, and thus the Constitution has no effect there. Because of the importance of the Court's answer to this, I will include the complete text from the opinion here:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited," but are subject "to such restrictions as are expressed in the Constitution." Murph v. Ramsey, 114 U.S. 14, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Courts recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (emphasis mine)

Basically, Eisentrager does not apply, and the detainees are entitled to habeas relief in U.S. Courts because there are no other courts in which they could challenge the validity of their detention.

The Court did touch on the question regarding suspension of the Writ, and noted that there is no invasion or rebellion, the requisites for which the Writ may be suspended under the Constitution. The case law the Court cited shows incidents where habeas was intended to be streamlined and strengthened, not diluted as the Government sought to do in Boumediene.

Given the length of the majority opinion, I will look at the dissent in a future post. Again - I agree with this decision and find it good for our Nation.

A Victory for Liberty

The Supreme Court ruled today that Guantanamo Bay detainees may challenge the validity of their detention in U.S. Courts. This is a good thing for those who love liberty.

Basing most of what I am about to write on my memory from National Security Law and ConLaw, I will try to explain what I understand as President Bush's (and Congress) intent was in the law that was overruled. In essence, the law that was challenged denied habeas corpus to the detainees at Guantanamo Bay.

The President was probably relying (as he had in Hamdan v. Rumsfeld) on the premise that because the detainees were being held outside the United States - that is, they were in Cuba - that they would not be subject to habeas corpus - that the Constitution and the laws of the United States would not protect them. Since this failed in Hamdan (executive order), he created tribunals that would review the detention process. This review does not meet muster for what is required in a Habeas petition. Justice Kennedy commented on this in the Opinion (quoted from - Lyle Denniston at SCOTUS Blog): "[The Suspension Clause] protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periouds of formal suspension, the Judiciary will have a time-tested devise, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. [Those who wrote the Constitution] deemed the writ to be an essential mechanism in the separation-of-powers scheme." Justice Kennedy also noted that the political branches of government do not have "the power to switch the Constitution on or off at will."

President Bush stated that he "strongly agree[s] with those who dissented. And their dissent was based upon their serious concerns about US national security."

There are a couple things wrong with this. First off - it betrays the argument that we hear most often in favor of conservative-appointed justices - that they follow the Rule of Law. President Bush seems to argue that the justices he appointed, as well as Thomas and Scalia rule according to how they feel. This is exactly what Conservative refer to as Judicial Activism, and it strikes me as odd that the President would argue in favor of supporting the decision of Justices who let their opinions determine how they rule as opposed to the law and, particularly, the Constitution. Second, this decision should be one that President Bush applauds, because it holds one of his basic tenets on the war on terror undisturbed - that "we will not allow this enemy to win the war by changing our way of life or restricting our freedoms (emphasis mine).

Preserving habeas corpus review for those detained by our Government can be viewed as nothing less than ensuring that our freedoms are not restricted. This is a good ruling.

Nelson at the Liberal Journal has also posted on this topic.
Thanks to Just Wondering at Vim and Vinegar for linking to this post.

For more information on this matter, look at Melissa's post at WriteChic.

Scalia the Hypocrite?

I have suspected, and said, and perhaps even posted, this idea before - that Justice Scalia is no less a judicial activist than those "liberal" judges who maneuver through legalese to reach the conclusion they want, regardless of the plain language of the law, except that Justice Scalia does so for the Right.

One example of this is Justice Scalia's take on the First Amendment. Justice Scalia wrote in dissent on two First Amendment cases - the first, Lee v. Weisman, centered around a prayer before graduation. The majority saw the association with, or the appearance of endorsement of that religion, or at least the coercive nature of forcing a student to participate in a prayer at a public school for a religion to which he or she does not subscribe. Justice Scalia saw differently.

The second case, the just-released Washington Grange v. Republican Party, has the majority failing to see the association with, or appearance of endorsement of the platform of a candidate who chooses to associate himself with a political party when that party is unable to disassociate themselves from that individual (in essence, voters vote for the "R" before the candidate's name, thinking they're getting a Republican when they could be getting a [for example] Communist who chose to run as a Republican because the party cannot keep him from running under their name). Justice Scalia saw differently.

My own take on this matter and the parsing out of these two cases would pale in comparison with what Professor Kathleen Bergin wrote at the First Amendment Law Professors Blog. I would point my readers here for a very good read.

"The Vast Majority Already Comply"

That was part of the argument in favor of Indiana's Voter ID law, oral arguments on which were heard by the Court today.

I presume the argument is that it's ok to let the minority not be heard, because the vast majority can be. I understood America to be a land where citizens got a vote, not those citizens with the means to get a picture ID, or those citizens without an ID who can afford to take a day off within 10 days of the election to affirm their vote.

I understand the fear of voter fraud. But I find it wrong to deny American People a vote in a Free Country because of restrictions placed upon them by the Government. When the Government can determine who may or may not vote by passing legislation, then we cease to become a democracy or a democratic republic. I fear the Court will find differently than I, but I have difficulty swallowing the argument that it's OK to deny a right reserved for all based on their inability to obey a legislative act.

Cruel and Unusual

One of the reasons there is a need for lawyers is that laws are often vague, despite attempts to not do otherwise. Take the 8th Amendment - it puts a ban on cruel and unusual punishments. But, there is nothing that explains what Cruel and Unusual means. Hence the need to parse it out.

Some people will argue that we should retain the standards that were in place in 1791 (strict constructionists). The theory is that if the American People want something to change, then they will band together and petition the Government to make such a change. Of course, with Bureaucracy, this is fallacy, but many people believe that until we tell the officials to change the rules, then we should keep things the same. One very real problem with strict constructionists is that they are only strict constructionists with regard to the laws and rules they think should remain the same (Note the Activist decision on minimum pricing a few months ago).

There are people who argue the "living constitution," that the Constitution should be interpreted to meet the mores of America today. These people note the inefficiency of Government, and how times change much more quickly than laws. They think that one of the roles of The Court is to act as a gap filler, and that decisions that reflect today's world are the best solution. The problem here is that a living Constitution can ultimately be little different than rule by public opinion, which is difficult to follow for any sense in the world.

There are other approaches, but I'll leave it at these two for now.

The Supreme Court recently granted cert on a case in Kentucky challenging Lethal Injection, claiming that the chemical cocktail used causes undue pain in the person being killed. This has had the result of Texas planning to stay executions here until such time as the Court renders its opinion (because Texas uses the same cocktail).

There are a couple arguments at stake here, but all of them revolve around the concept of "what is cruel and unusual?" First, there's the concept of the chemical cocktail. Is it cruel and unusual to cause undue pain to a person who we are killing? People have spent centuries trying to come up with a humane way of killing people (Guillotine), despite the obvious oxymoronic nature of said attempts. This is up to 8th amendment debate because lethal injection was not a method of capital punishment at the time the Bill of Rights was created. Second, and probably not the question that will be answered, but undoubtedly at the crux of the issue, is whether or not Capital Punishment qualifies as cruel and unusual. Here's where the debate between Originalism/Strict Constructionism and other theories comes in. According to one strict constructionist argument, since we had capital punishment at the time of the 8th amendment, then it cannot be considered cruel and unusual, until Congress passes a law or amendment defining capital punishment as cruel and unusual. And those who embrace a living Constitution and oppose capital punishment would argue something similar to the concept that in America today, it is unnecessarily cruel to put someone to death, or that capital punishment is only a deterrent to the person being killed, and we can keep that person from killing again by putting him in prison for life, making capital punishment unnecessary altogether.

While we wait for the Court to reach its decision, let's see what you think...

Price Wars and Judicial Activism, Conservative Style

I've been reluctant to really jump on the Court-bashing bandwagon, because I think a lot of the time, people are more prone to calling a decision bad based on what they want the law to be, not because they disagree with the rationale behind the law.

However, I think that when you have two recently appointed members to the Supreme Court who, during confirmation hearings insisted they respected stare decisis (precedent), and they make up 40% of the majority decision in a case that overturns a 96 year old precedent, then there is evidence of a problem.

The case decided was Leegin Creative Leather Products v. PSKS Inc. In the decision, the Court overruled the "Dr. Miles Rule," which held that minimum price standards established by manufacturers were per se violations of the Sherman Antitrust Act. The decision was written by Justice Kennedy, who determined that the per se rule was of "slight relevance," and that "Vertical price restraints are to be judged according to a rule of reason."

What this decision essentially does is place the burden on the consumer (i.e. you) to show collusion on the part of the manufacturers (i.e. business). It allows the manufacturers to set the minimum price for a product, and to sell the product at that price, until that price is proven in a court of law to be unreasonable. The burden of proving that it's unreasonable is on the person buying the product, who, probably doesn't have the means to try a case on the price of a shirt, or vase. This thought process is voiced by the lead dissenter, Justice Breyer, who said "The only safe predictions to make about today's decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence." Who's going to pay for that legal turbulence? Not the manufacturers, who will pass the price on to you.

Of course, there are those who say that this decision is all well and good. For example, Quentin Riegel, the National Association of Manufacturers vice president for litigation said "[T]his ruling does not legalize resale price maintenance. ... Resale price maintenance will be illegal, and subject to triple damages and attorneys' fees, if the manufacturer can provide no reasonable, pro-competitive justification for it." (emphsasis mine) That is not a tough standard to meet, and it's shameful that the Court would make such an activist decision in the absence of Congressional action on the matter. This is exactly what Justice Scalia complains about time and again, that if the people are unhappy with a decision, they need to seek remedy through the legislature, yet, when the people clearly are not unhappy with a decision, and legislature has had ample time to reverse through legislation what the Court did in interpreting prior legislation, what does he do? He throws the decision out the door, whimsically, hypocritically. It weakens his arguments in past Court decisions, where he's dissented on the point that the People have a legislative remedy, and it hurts his credibility in my eyes, just a little bit. (I single Scalia out because he's opined on this precise issue time and again over the past 20 years, yet apparently determined that he needn't practice what he preaches when he has the majority vote.)

I will still look at each decision independently, and won't skewer the Court as a whole, but this one was bad, in my opinion.

I don't like it, but I don't disagree with it

The Supreme Court upheld the ban on what is known as partial-birth abortions today in a 5-4 decision. While I agree that the government has the right to restrict in this manner, I would hope that the people use the power of their vote to change this law (i.e. petition your congresspeople).

The law seems to be pretty narrow in scope (the violation comes after the following steps: 1. person performing must vaginally deliver a living fetus, 2. must deliver it so the full head is delivered of, if breach, then up to the navel, 3. perform an overt act that kills the living fetus, which must be done separate from delivery, and 4. it must be done "deliberately and intentionally."

Justice Kennedy wrote the opinion, and he appears to have interpreted the Act very narrowly, especially with regard to the scienter ("deliberately and intentionally") requirement. The State would have to prove the intentional delivery to the requisite point AND the overt act were both done intentionally, a heavy burden.

Finally, Justice Kennedy cites Casey, in that the Act, in order to be unconstitutional, would have to place a substantial obstacle in the path of a person trying to get an abortion. Substantial is a key word here, one of those magic words that has an imprecise meaning. Justice Kennedy and the majority, however, held that there was not proof by Planned Parenthood to show that there was a substantial obstacle. I dislike Justice Kennedy's choice of words in Casey, but I understand what he was trying to say, "respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Applied broadly, this goes to ALL abortions, not the limited scope of people trying to secure a D&E (this type) abortion.

I may or may not like the law, but I have a hard time disagreeing with the majority opinion that the law is Constitutional. The right to have an abortion does not imply the right to have the abortion method of your choice. I think the best recourse for those who oppose this law is to appeal to your congressperson.