<body><script type="text/javascript"> function setAttributeOnload(object, attribute, val) { if(window.addEventListener) { window.addEventListener('load', function(){ object[attribute] = val; }, false); } else { window.attachEvent('onload', function(){ object[attribute] = val; }); } } </script> <div id="navbar-iframe-container"></div> <script type="text/javascript" src="https://apis.google.com/js/plusone.js"></script> <script type="text/javascript"> gapi.load("gapi.iframes:gapi.iframes.style.bubble", function() { if (gapi.iframes && gapi.iframes.getContext) { gapi.iframes.getContext().openChild({ url: 'https://www.blogger.com/navbar.g?targetBlogID\x3d8427150\x26blogName\x3dEx+Post\x26publishMode\x3dPUBLISH_MODE_BLOGSPOT\x26navbarType\x3dBLUE\x26layoutType\x3dCLASSIC\x26searchRoot\x3dhttp://expost.blogspot.com/search\x26blogLocale\x3den_US\x26v\x3d2\x26homepageUrl\x3dhttp://expost.blogspot.com/\x26vt\x3d1132334940054765571', where: document.getElementById("navbar-iframe-container"), id: "navbar-iframe" }); } }); </script>

Thursday, September 29, 2005


Wednesday, September 21, 2005

Merrill on Kelo

Tom Merrill testified before the Senate yesterday (HT SCOTUSblog) on "myths" about Kelo. I think his testimony is a fantastic read, and highlights the misconceptions about the case that I think are driving the outrage. I'll let the dissenters on the blog take pot shots at Merrill's points since I, as usual, agree with him.

Continue Reading "Merrill on Kelo" . . .

Tuesday, September 20, 2005

And There Will Come a Day

Not having written any sort of tribute (or anti-tribute, as the case may be) for Chief Justice Rehnquist nor Justice O'Connor, I content myself with posting the conclusions of their respective dissents in Garcia v. San Antonio Metropolitan Transit Authority:
But under any one of thse approaches the judgment in these cases should be affirmed, and I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.

It has been difficult for this Court to craft bright lines defining the scope of the state autonomy protected by National League of Cities. Such difficulty is to be expected whenever constitutional concerns as important as federalism and the effectiveness of the commerce power come into conflict. Regardless of the difficulty, it is and will remain the duty of this Court to reconcile these concerns in the final instance. That the Court suns the task today by appealing to the "essence of federalism" can provide scant comfort to those who believe our federal system requires something more than a unitary, centralized government. I would not shirk the duty acknowledged by National League of Cities and its progeny, and I share Justice Rehnquist's belief that this Court will in time again assume its constitutional responsibility.
Unlike Blackmun's trumpeting in Garcia that "National League of Cities v. Usery is overruled," O'Connor's opinion in New York v. United States dodges precedent by saying "This case presents no occasion to apply or revisit the holdings of any of these cases, as this is not a case in which Congress has subjected a State to the same legislation applicable to private parties."

Though Souter joined that majority opinion, in one of the last cases to mention Garcia, Seminole Tribe v. Florida, he dissents from Rehnquist's majority opinion, and quotes Garcia: "The plain statement rule [...] is particularly appropriate in light of our primary reliance on '[t]he effectiveness of the federal political process in preserving the States' interests.'" Inasmuch as the Rehnquist and O'Connor dissents in Garcia heap scorn on the continued validity of Weschler's theory that the states' participation in the federal electoral process protects them from abuse by the feds, Souter's exact conception of the mechanism to maintain any state sovereignty is difficult to discern.

Continue Reading "And There Will Come a Day" . . .

Monday, September 19, 2005

Roe, Rights, & Democracy: A Question

There was, predictably, much talk of Roe, or attempted talk of Roe, during John Roberts's confirmation hearings last week, highlighted (lowlighted?) by Sen. Specter's "Big Roe Chart" adduced to argue that Roe is a "super duper precedent."

A question occurs to me about how to think about Roe as a precedent, arising from the attempts of Sen. Schumer and others to get Roberts to endorse a "general" right of privacy in the Constitution (by which, they mean, specifically, a right to abort). The question is this: does anyone believe that at any point in our nation's history it would have been possible to amend the Constitution so as to explicitly (or, if you prefer, actually) include a right to abortion. I'm no historian, but it seems to me clear that one could not pass such an amendment now, and that no point in our past history was better disposed toward abortion than the present. Indeed, I suspect that for most of our history we might have been able to pass an amendment to protect the unborn, if it had ever seemed to folks that such a thing would be necessary.

Now, I freely concede that a "human life" amendment protecting all genetically independent human life could not be passed today or in the foreseeable future. Nor would I want any justice to read such a thing into the Constitution.

But if my historical presupposition about the impossibility, historically, of ever having got Roe into the Constitution by legislative means is correct, then ought we not be skeptical about using that precedent as a "super duper" litmus test for what makes a good judge, a good respecter of precedent? Should a fundamental right be in the Constitution that not only couldn't muster sufficient support today (after all, we want the Constitution to protect the polity from its worst moments) but would never have garnered such widespread support as to be in the Constitution in the first place occupy such an important part of our jurisprudence that its maintenance is a sine qua non for good judging?

It seems to me that the answer here is obvious, and that the fact that Roe has emerged as a core decision for picking judges reflects the extent to which we have come to see the Court as a prize for the party best able to pick judges and knock judges down. So that the argument for such people about whether a judge should abolish Roe or create an anti-Roe (a right to life for the unborn) is not an argument about judging at all, but just an argument about abortion itself. Why would we leave such arguments to people with JDs and (taking the current court) expertise in Administrative Law?


Continue Reading "Roe, Rights, & Democracy: A Question" . . .

Saturday, September 17, 2005

Nominate Estrada

During the Roberts hearings, the dems have gone out of their way to tout Roberts' qualifications, many democratic senators noting it time and time again. As this NYT article notes (HT: Howard), they've set themselves up to oppose the O'Connor replacement, not on ideological grounds, but based on qualifications. They can be more insistent that the nominee be forthcoming with answers to questions since he or she would not be as "qualified" as Roberts.

So Bush is caught between his base requiring a strong conservative, maybe significantly more conservative than Roberts, and the political pressure to hire a woman or minority. And this new issue of qualifications could complicate some of his options to get both a conservative and a minority, since many of them could be considered less qualified than Roberts.

The answer? Miguel Estrada. His bio:

From 1992 until 1997, Mr. Estrada served as Assistant to the Solicitor General of the United States. He previously served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, U.S. Attorney's Office, Southern District of New York. In those capacities, Mr. Estrada represented the government in numerous jury trials and in many appeals before the U.S. Court of Appeals for the Second Circuit. Before joining the U.S. Attorney's Office, Mr. Estrada practiced corporate law in New York with Wachtell, Lipton, Rosen & Katz. . . .

In December 2004, Washingtonian Magazine named him one of the top constitutional law lawyers "who could become one of the legends of the Supreme Court bar." In 2004, Chambers & Partners described Mr. Estrada as a "distinguished lawyer of great poise and standing," and named him as one of a handful of attorneys that it ranked in the top tier among this country's leading appellate lawyers.

Mr. Estrada served as a law clerk to the Honorable Anthony M. Kennedy in the U.S. Supreme Court from 1988-1989 and to the Honorable Amalya L. Kearse in the U.S. Court of Appeals for the Second Circuit from 1986-1987. He received a J.D. degree magna cum laude in 1986 from Harvard Law School, where he was editor of the Harvard Law Review. Mr. Estrada graduated with an A.B. degree magna cum laude and Phi Beta Kappa in 1983 from Columbia College, New York. . . .
Sound familiar? He is a little younger than Roberts, probably not quite as highly regarded, but he's definitely qualified. He hasn't been a judge, but Roberts was only on the bench for a couple years. He's conservative, he's a hispanic, I like it.

Continue Reading "Nominate Estrada" . . .

Tuesday, September 06, 2005

At Long Last, Have They No Shame?

That Senator Kennedy was utterly predictable in using the Hurricane for partisan political advantage when it came to the nomination of John Roberts makes it no less disgusting. But that E.J. Dionne chose to commend and to join him is utterly beyond belief, since one had hopes that not every liberal Democrat had lost all scruples in the effort to keep Roe v. Wade as the law of the land. Sadly, such hopes were misplaced:
There is no telling whether Bush's diminished standing from the disastrous failure of hurricane relief efforts may embolden Democrats to challenge the White House across a much broader front, including the future of the court. But in the statement he issued within hours of Roberts's new nomination, Kennedy wanted no one to miss that possibility. He pointedly referred to Hurricane Katrina as "a defining moment in our nation's history" and urged the president "to take this time to unite and heal the country."

Bush no doubt turned to Roberts as a safe harbor in the midst of the greatest political storm of his presidency, and Roberts may yet triumph. But the fierce winds that have buffeted Bush could imperil what once might have been an easy passage for a calm and collected nominee who, in his warm and witty way, would move the court and the country rightward.
Are we seriously asked by Kennedy and Dionne to imagine that for one blessed second they would have urged a President Kerry in such circumstances to nominate somebody to the right of Justice Breyer in the interests of national unity? Or perhaps, as Dionne suggests, it is only because Bush is perceived to have performed poorly in response to the Hurricane that he lost the right to put his own nominee up--the argument being that a strong disaster president gets what he wants. But, again, it beggars belief to imagine that Dionne would be supporting Roberts if Bush had done better last week.

The victims are not yet counted, let alone buried with dignity, and Sen. Kennedy and Mr. Dionne are not at all afraid, not at all ashamed, to put their gruesome deaths to the service of what--maintaining the ongoing myth that Jefferson and Co. both wanted and codified--in those "broad and majestic phrases" of the Bill of Rights--unfettered access to abortion?

I am appalled.

Continue Reading "At Long Last, Have They No Shame?" . . .

Monday, September 05, 2005

Roberts Nominated as Chief

Which leaves O'Connor still an Associate Justice since her resignation letter was contingent upon "nomination and confirmation of [her] successor." Assuming Roberts is confirmed before October, we'll have a full Court, and see a replacement for O'Connor at some point.

Continue Reading "Roberts Nominated as Chief" . . .

Saturday, September 03, 2005

Change of an era

I'm sure all of you have heard by now that Chief Justice Rehnquist has died.

Continue Reading "Change of an era" . . .

Friday, September 02, 2005

More on Stare Decisis

T. More,

Would you distinguish constitutional stare decisis in other fundamental rights contexts, i.e. the incorporation cases or the equal protection clause as it pertains to women, even Brown?

Roe is obviously shaky and I wholeheartedly agree that it "refuses to settle a particular question of individual right persuasively." But there are many other such decisions in gender discrimination, and particularly in criminal procedure that establish rights just as unpersuasively as a matter of original meaning. But no one seems to think we should overrule these.

So do we distinguish Roe because the nature of the right is so terribly immoral that we cannot overlook its unsound reasoning as we can in gender discrimination and rights for the accused? No sensible person thinks that Brown is immoral, and few think cases like Craig v. Boren and Gideon are immoral. But that, to me, is not using stare decisis neutrally. In the words of our beloved HPM (88 Colum. L. Rev. 723, 743):
Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates with the randomness of a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that.
So I don't think this answers the question. I don't think your structural/rights dichotomy completely works. Even if one takes the position that the rights precedent can be overruled, even for cases like Brown, Craig, and Gideon, because the rights are so ingrained that they would immediately be reinstated legislatively, that doesn't account for the effect of the precedent on shaping those values so that such would take place.

That many consider the right to have an abortion on par with their right to counsel or right to equal protection because of their gender leads me to believe we need a better theory of stare decisis. You say "
if the reason we are asked to stick to [Roe and Casey] is policy and not law, I say no way." But policy here, I think, should mean what role stare decisis plays in our jurisprudence. We need to place precedent within originalism and develop neutral principles for its invocation. Otherwise it's Monaghan's lightning bolt.

Continue Reading "More on Stare Decisis" . . .