Good Timing...

Last September, I posted Environmental law and timing..., in which I discussed a Supreme Court case involving the regulation of greenhouse gases by the Environmental Protection Agency (EPA).

The Plaintiffs - including a number of environmental groups, 18 states, and two of the biggest power generators in the United States (Entergy and Calpine) - argue that the EPA should be regulating greenhouse gases like carbon dioxide. (Entergy and Calpine are arguing FOR regulation for both environmental (secondary) and market certainty (primary) reasons. They're in the process of building the next generation of power plants, and are seeking to have certainty in the regulatory environment.) The Bush administration EPA disagrees, and argues that lawmakers did not intend the Clean Air Act to include regulation of greenhouse gasses.

The question of my original post was whether the merits of the case would be more impacted by timing, rather than the actual plain language of the Clean Air Act:

My question about this case is relatively simple - is the future of the EPA's regulation of greenhouse gases contingent upon the timing of this lawsuit? What I mean by that is it appears to me that the current configuration of the Supreme Court is not going to be very friendly to the Plaintiffs here. The Court (driven by Justice Scalia) has tended to limit the EPA's regulation of areas (specifically waterways) that the EPA WANTED to regulate - why would they be open to forcing to the EPA to regulate in an area it (at least this current political configuration of the EPA) doesn't want to?

As it turns out, as is all to common, I was wrong.

Warming ruling squeezes Bush from both sides

Justices Say E.P.A. Has Power to Act on Harmful Gases

The Supreme Court ordered the Environmental Protection Agency on Monday to explain why it has refused to regulate greenhouse gas pollution from cars, putting the Bush administration under pressure from an unusual coalition of environmental groups and leaders of the auto industry to move quickly on global warming.

In a 5-to-4 decision, the court rejected the administration’s argument that it had no legal authority to limit carbon dioxide released from new cars. In a ruling described as a landmark victory for environmental activists, it decided that the EPA does have such authority and that it must give better reasons for not using it than the “laundry list” of “impermissible considerations” it has offered until now.

The court ruled that the plain language of the Clean Air Act allows the EPA to regulate carbon dioxide as a pollutant greenhouse gas.

In essence, the court handed the administration power it insisted it did not have and did not want. And the administration came under immediate pressure to use that power from an unlikely source as the nation’s biggest automakers joined the chorus of environmental groups and climate scientists calling for the EPA to get moving on greenhouse gases.

For the automakers [represented by an industry trade group representing General Motors Corp., Ford Motor Co., DaimlerChrysler AG, Toyota Motor Corp. and five others], the ruling means a shift in tactics. With the Bush administration having lost the argument that it could not regulate carbon dioxide emissions, automakers now hope that the EPA will enact an industrywide standard before the states enact a patchwork of differing regulations or before the Democratic-controlled Congress can revise the Clean Air Act to include even stronger restrictions.
...
The Bush administration had argued all along that Congress never gave it the power to decide whether carbon dioxide was a pollutant as defined in the federal Clean Air Act, but in an opinion written by Justice John Paul Stevens, the court said it did have such authority.

More important, Stevens sided in unusually strong language with scientists who say that U.S. car emissions do contribute to greenhouse gases, leading to global warming. In doing so, he rebutted the contention of some energy industry officials and Republicans in the administration and Congress that there is no proof of global warming.

Interesting - the timing was much better than I thought...

Prior post: Environmental law and timing...

Environmental law and timing...

This MSNBC article profiles an environmental case that the Supreme Court has accepted for the October 2006 term.

The case involves regulation of greenhouse gases by the Environmental Protection Agency (EPA). The Plaintiffs - including a number of environmental groups, 18 states, and two of the biggest power generators in the United States (Entergy and Calpine) - argue that the EPA should be regulating greenhouse gases like carbon dioxide. (Entergy and Calpine are arguing FOR regulation for both environmental (secondary) and market certainty (primary) reasons. They're in the process of building the next generation of power plants, and are seeking to have certainty in the regulatory environment.) The Bush administration EPA disagrees, and argues that lawmakers did not intend the Clean Air Act to include regulation of greenhouse gasses.

The Plaintiffs claim that the case is simply about the plain language of the Clean Air Act, which according to this interview states that:

Congress said two things: "An air pollutant is anything. Quite literally any chemical, physical or biological substance that's emitted into the air is an air pollutant."

Congress said, "Thou shalt regulate any pollution if it is anticipated to endanger health or welfare—if it has an adverse effect, including adverse effects on climate and weather."

I do not have the expertise to know if the plain language of the Clean Air Act is this clear, or this broad. My question about this case is relatively simple - is the future of the EPA's regulation of greenhouse gases contingent upon the timing of this lawsuit? What I mean by that is it appears to me that the current configuration of the Supreme Court is not going to be very friendly to the Plaintiffs here. The Court (driven by Justice Scalia) has tended to limit the EPA's regulation of areas (specifically waterways) that the EPA WANTED to regulate - why would they be open to forcing to the EPA to regulate in an area it (at least this current political configuration of the EPA) doesn't want to? I can't see this claim being successful with this Supreme Court, no matter how plain the language may appear.

But, this interview addresses that possibility at the end:

What if you lose?
Then it just increases pressure on Congress, I think. Then we've done our job and we've tried to do whatever we can through the courts. Presumably we pay our representatives and senators to address the tough questions. They don't get any tougher than this.

The lessons of our own experience...

The post 'An Originalist Argument Against Rigid Originalism' over at Balkinization is a really interesting perspective that begins with the following quote from James Madison who wrote in Federalist 14:

Is it not the glory of the people of America, that whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

It's worth a read.

Hearings, V.2...

One more quick hit thought on the confirmation hearings of Judge Samuel Alito:

I get the distinct impression from J. Alito's answers to these questions, that he has no deep rooted respect for - or belief in - stare decises, the theory that the Supreme Court will follow it's earlier decisions as settled law. He is only willing to say that something is precedent - no matter how uncontroversial or settled for decades - he is unwilling to say any issue is settled law, or no longer at issue due to stare decises.

That is good news for some, and bad news for others...but it is odd. And this is what makes me compare him with J. Thomas on this court - because J. Thomas gives stare decises no weight.

We shall see.

Confirmation Report...

Good piece from Dahlia Lithwick on the confirmation hearings from yesterday. Here's the link, and a few excerpts:

Sam Alito has chosen to simply bore his way through, and as a consequence, two days into the hearings, the Democrats on the judiciary committee have hardly laid a glove on him. I count only three occasions today on which he refuses to answer a question; that's not going to be his way. His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced. He never tells you the answer to the question, but he's always expansive on how he might get there.

Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.

Anyone can manage to be boring on boring subjects; Alito has seemingly perfected the art of being boring on controversial ones. Executive power in wartime? Boring. His deeply felt passion for Robert Bork? Boring. His incendiary job application from 1985? So boring that he's actually forgotten it. His resistance to the constitutional principle of one man, one vote? It was based on some stuff his dad told him. He doesn't fight to defend these ideas, he just slumps even lower in his chair and looks more earnest.

The almost laughable Republican position throughout the hearings is that Alito can't possibly be anti-women/minority/criminal defendant/little guy because here are 3/4/7/whatever single-digit-number-of cases among almost 5,000 in which he sided with them. It's a twist on the "Some of my best friends are ... " line. And here I thought that line stopped working in the '60s. Right about the time when colleges let in women and started going downhill.

Lindsay Graham, R-S.C., an alleged ally, has begun to offer rambling speeches peppered with unanswerable queries on the issue of enemy combatants and executive authority in wartime. I would love to ask the nominee if eight consecutive hours of threats, coercion, good-cop/bad-cop, bad cafeteria food, and more threats constitutes torture under domestic or international law. But I suspect he could make even that answer boring.

Good stuff.

Alito Hearings

I have been able to listen to/watch a good portion of the Senate Judiciary committee hearings on the nomination of Judge Sam Alito to the Supreme Court. Here are a few of my quick hit thoughts/impressions:

1. These two days are pretty much a feast of law and politics for those of us interested in those things. One thing that strikes me is how much some of the questions/answers tracks a really basic Con Law class. I think that I was able to see in Alito occassionaly the fleeting thought - I'm so much smarter than you that this is a joke - while listening to a particular question of a Senator trying to sound smart. But being able to listen to a distinguished appeallate judge answer some of these questions is really exciting. In addition, I was able to see the Charlie Rose show last night where he had Charles Fried - solicitor general under Reagan and current Harvard professor, John Yoo - former executive branch attorney and now professor of law at Berkely, and Noah Feldman - professor of law at NYU discussing the hearings. For someone like me, it was an absolute field day. Boatloads of fun. Yes, I'm a geek. I'm fine with that. I love this stuff.

2. Even saying that, the hearings themselves could be much more interesting. First off, the "questions" coming from the Republican memebers of the panel are nothing more than a well organized defense of Judge Alito. Other than potentially Sen. Spector - and even then totally in defense - there is no probing of the judicial philosophy from the Republicans, it is simply tactical defenses to some of the more flashpoint issues facing Alito...which is essentially igorning vast areas of law which I think it would be interesting to go into. In addition, on both sides of the aisle, the "questions" sound much more like campaign speeches with an almost afterthought - "would you agree?" - stuck on the end. In particular, I was terribly frustrated by Sen. Lindsay Graham who simply would not let Judge Alito speak to answer his questions before jumping back in and answering his own question for himself, and diving into his next talking point. It was ridiculous. In addition, the long winding, politically slanted quesions allow Alito time to structure in his mind, carefully crafted answers which completely step away from the heart of the question being asked. Instead of direct questions calling for direct answers, they are winding questions so it becomes very easy to take one of the off-shoot bends off and spin it into an answer.

3. This "ethical issue" surrounding the Vanguard case is indeed a joke. The fact that the Democrats continue to press the issue demonstrates that for some of these senators, this is more about politics than the Supreme Court - and that makes me sad. The Dems have attempted to say its serious, and not a joke, and an issue that must be clarified...but in all reality it's a smoke screen - in many ways it really reminds me of President George Bush - there is no there, there.

4. And my final initial impression - movement conservatives have hit a home run. This guy is going to be an uber-activist-conservative Justice much more in the mold of Clarence Thomas than the Roberts/Rehnquist/O'Connor mold. ---Understand, a lot of legal scholars are saying the exact oppposite of what I'm saying, so take it with a grain of salt--- But what I'm hearing from this guy indicates that he will uphold essentially any executive action, will be oftentimes hostile to actions taken by the elected legislatures (what he's saying about the commerce clause this morning is highly worrisome to me), and will have ZERO qualms overturning precedent - along the lines of Thomas. He's much more (or less - depending on perspective) willing to resist making the basic vanilla, blanket statements, that Roberts was willing to make - to me this is his way of keeping the door open...not cracked but wide open.

My original impression was that Alito would be a very conservative justice, but more of a mainstream...what I'll refer to as a Roberts conservative (although I admit I don't know what that means just yet...it's more of an impression right now). After a day plus of hearings, I don't think so now. I think this guy will push Thomas for the right of the Court, and one day Scalia will shake his head at Alito's reasonings the way he does now with Thomas. This drags a very conservative court considerably further to the Radical Right.

It should come as no surprise that I would deeply disagree with that shifting of the Court. Having said that - Alito seems supremely qualified and seems to possess the requisite intellect and measure required of a Justice. By electing George Bush, the electorate should have known that this type of justice was a possibily - was what Bush promised.

Read also:
What the Alito Nomination Means for Constitutional Law...
Judicial restraint this nomination is not...
And Alito it is...
Rumors of the next nomination...

What remains of federalism?

This post by Professor Randy Barnett over at Volokh Conspiracy led me to his interesting (and short) paper entitled Limiting Raich a foreword to the coming Lewis and Clark Law Review symposium issue on Federalism After Gonzales v. Raich.

Prof. Barnett, of course, has an interesting perspective on Raich, since he is the lead attorney and argued the case before the Supreme Court last term. In the paper, he argues for a way that a future - more pro-federalism - Court could limit the holding. Here is the abstract to the paper:

In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.

It is a relatively interesting and quick read.

I rather disagree with Prof. Barnett's contentions - both in Raich, and in his support of Lopez and Morrison. In fact, I am in the midst of writing a paper to submit to Legal Affairs writing competitions which is based on some of my commerce clause ramblings on this blog. I think that Lopez and Morrision were abberations in the Court's history of Commerce Clause jurisprudence, and a form of strict federalism has no place in this day and time. Having said that, it is ALWAYS illuminating to be able to get nuggets liket this straight from the horse's mouth - in this case the attorney arguing the case before the Supreme Court.

You can read more of my posts related to Raich here:
Medical Marijuana or State's Rights?
Raich handed down...
More on Raich...

And more general comments on the Commerce Clause and federalism here:
What is commerce?

What the Alito Nomination Means for Constitutional Law...

Tremendous post by Prof. Jack Balkin at his blog Balkinization. This is his (preliminary) analysis of how Con Law is impacted by the Alito nomination. I'm going to throw it up here:

What effects will an Alito appointment have on Supreme Court doctrine? Fairly significant changes, particularly in the areas that social conservatives most care about.

Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.

What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.

Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor ... are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.

Thus, Alito (together with Chief Justice Roberts) will cause some pretty significant shifts in Supreme Court doctrine, most notably in areas of religion, abortion, affirmative action, and campaign finance, but not yet in the area of gay rights. Changes in doctrines of federalism and presidential power are a bit less clear. These shifts will come in most of the places that movement conservatives are looking for changes in constitutional doctrine, which is why they will be delighted by an Alito appointment. The greatest irony, perhaps, is that although many movement conservatives now loathe Anthony Kennedy, all the changes in doctrine I've outlined will occur because Kennedy now holds the swing vote.

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

Great analysis...

Judicial restraint this nomination is not...

It has always seemed strange to me that although it is usually conservatives and the Republican party that use trite phrases like "legislate from the bench" and "judicial restraint" and "judicial activism" - yet if you do an analysis of what Justices strike down congressional laws the most, it is as follows:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

Amazing - it is the very conservatives who are so loved for their judicial restraint that are the first to invalidate congressional law. Shocking, huh?

Actually, no - it's just like any other political manipulation, the Right-wing likes to use these buzz-words such as "legislate from the bench," to scare their base...when in all reality (when you examine the facts - I know, I know what an annoyance) they are the very side that wants to see judges "legislating" from said bench.

Judge Sam Alito seems like he will fit right in at the top of that list. Dahlia Lithwick has a great column up at Slate.

Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him. Bush noted this morning: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."
Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He's managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.

See, the Right doesn't seem to cry so much about judicial activism when they agree with it. Essentially that vacuous phrase - "judicial activism" - seems to mean simply that you disagree...rigorous legal analysis need not appear.

Another interesting piece from Slate is entitled: Why President Bush stopped pretending to be against judicial activism. Oh so true.

Today, in nominating Alito, the President offered a much more limited view of the limits of judicial activism: "He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." No mention of the Constitution or strict constructionism. No false judicial modesty that the new guy will sit quietly and behave himself on that bench.
What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.
The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing—and the left—to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Clearly, Judge Alito is not a proponent of judicial restraint. Clearly, Bush and the Right do not want a judge on the Court who models judicial restraint.

I tend to be a little old fashioned, but I believe in true judicial restraint, true judicial modesty. I believe that for the most part, Judges should get out of the way of the people. I make no secret of the fact that my "favorite" current Supreme Court Justice is Stephen Breyer - whom I also consider the true intellect of the current Court. Breyer is the epitome of the modest or restrained jurist. Justice Breyer seems to sit with the understanding that as long as (a) the congressional body has the authority to act as they are acting; and (b) that action is not violating a fundamentally protected right, that congressional action - the action of those directly accountable to the people - should be respected by those whom are not directly accountable to the people (federal judges).

Justice Breyer is the model of the non-activist, restrained, modest, non-legislating jurist...

but something tells me he's not what the Right is looking for. No, they want an activist, they want a legislator - just one who legislates what they want.

Looks like they got their wish.

And Alito it is...

This morning, President Bush nominated Samuel A. Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court.

Below I discussed a bit about Judge Alito. My initial reaction this morning was that I think that Alito is a vey good pick for Bush. He is a fiercely conservative judge (along with Roberts, Thomas, and Scalia they will make up a fiercely conservative wing of the court...maybe the most conservative ever??!??!??!?? The Four Horsemen ride again...), yet very qualified, and quite respected. I don't think this is a selection that can (or should) be filibustered. (The puzzeling thing is simply why this wasn't Bush's initial pick, instead of his Best Buddy Ever!!!)

I will be interested to read more about Judge Alito over the coming weeks, and listen intently to his confirmation hearings.

My initial reaction is similar to my reaction to the nomination of Chief Justice Roberts - that he was a good pick, will be confirmed, but if I were a Senator I would vote know. As you may recall, reading about C.J. Roberts, and then listening to a large amount of the confirmation hearings changed my mind, and had I been a Senator I would have voted for Roberts...not because I think that he will decide cases the same as I would, but because of his clear qualification, clear intelligence and understanding of Constitutional law, and because he appeared clearly to be in the mainstream of legal thought - even if on the right side of that mainstream.

Although today, I doubt I would vote for Judge Alito - I'm interested in how that will/might change as I learn more about him.

Congratulations to Judge Alito on this nomination.
Bush nominates Alito to high court
Bush nominates conservative for Supreme Court
Samuel Alito's conservative viewsearned him nickname 'Scalito'
Alito would be fifth Catholic justice on Supreme Court
President names Alito
Profile of Potential Supreme Court Nominee - Judge Samuel Alito
Justice Alito? Some Say He's a New High Court Favorite

Rumors of the next nomination...

The guess I made yesterday as to who would be the next Supreme Court Justice nominee was 10th Circuit Court of Appeals Judge, and highly respected law professor, Michael McConnell. My guess of McConnell was based on three factors:

-1- McConnell is unquestionably qualified, and unquestionably conservative...but he is so well-respected (and so well qualified) that when he was nominated for the 10th Circuit, a large number of liberal law professors signed a letter urging Democrats in the Senate to approve of his nomination. That was simply do to their respect for him;
-2- McConnell is on the record (in various law review artilcles, interviews, and other public statements) as absolutely anti-Roe. There is no question about his (very public) stance on Roe, which will mollify enough of the right-wing to have him pass their gauntlet;
-3- McConnell is (at least somewhat) on the record for stare decises - and therefore it is not 100% certain that he would vote to directly overturn Casey/Roe. When you combine this uncertainty with the respect he commands from academia, and his clear (on their face - no "trust me" needed) qualifications, this will appease Senate Democrats and moderate Republicans to support him.

He would be the perfect candidate to follow Miers, because he is essentially opposite everything she was (where she was unqualified, had no overt stance on Roe, but was expected to vote the way the President told her to; he is imminently qualified, has a clear and public stance on Roe, but there is some uncertainty to how he would vote on the matter).


This morning, however, the rumors seem to be going in a different direction...it seems that much word of mouth is focusing upon 3d Circuit Court of Appeals Judge Samuel Alito. Judge Alito is called in some circles "ScAlito" due to his fierce brand of conservatism which is very similar to Justice Antonin Scalia. He is well qualified, well respected, and has clear conservative bona fides - which would appeal to the radical right-wing base.


Here is a Supreme Court shortlist that Slate published last summer, which includes both McConnell and Alito. Following is each judge's Slate profile:

Michael McConnell
Age: 50
Graduated from: University of Chicago Law School.
He clerked for: Judge Skelly Wright, Justice William Brennan.
He used to be: a law professor at the University of Chicago and the University of Utah, an appellate attorney for Mayer Brown.
He's now: a judge on the U.S. Court of Appeals for the 10th Circuit (appointed 2002).
His confirmation battle: When McConnell was nominated to the 10th Circuit three years ago, he had the support of liberal law professors who called him Bush's "most distinguished" nominee and signed a letter of support for him. Other liberal groups, on the other hand, fought hard against his confirmation, highlighting his support for expanding the role of religion in the public sphere. How to account for the split? As a respected and well-liked law professor, McConnell was well-placed to win support in the academy, and one of the arguments made on his behalf was that, as an advocate of judicial restraint, he'd be sure to follow the Supreme Court's directives. McConnell wouldn't be similarly bound by precedent, however, if he joined the high court himself. Instead, the combination of his hard-line conservative views and his sunny disposition could make him extremely effective at bringing about change.

Civil Rights and Liberties
In a law review article, argued that the support for school desegregation in Brown v. Board of Education is consistent with the intentions of the framers of the 14th Amendment to guarantee equal protection under the law. McConnell's remains the minority view.
In a Slate dialogue, opposed a constitutional right to assisted suicide.
Before the Supreme Court, represented the Boy Scouts in their successful suit to keep out gay scoutmasters. (Boys Scouts of America v. Dale, 2000)
On the bench, dissented from a ruling in favor of Jessica Gonzales, who sued the city of Castle Rock, Colo., when her three children were killed by her ex-husband after the police failed to enforce a restraining order against him, despite her repeated calls. McConnell said that the majority's ruling would "expand greatly the liability of state and local governments." A Supreme Court ruling is pending in this case. (Gonzales v. City of Castle Rock, 2004) [Blake's Update: the Supreme Court reversed the 10 Circuit, siding with McConnell.]

Separation of Church and State
In a law review article, argued that the framers intended to provide for broader protections for religiously motivated conduct than modern jurisprudence allows for.
In a law review article, questioned the outcome of Bob Jones University v. United States, the 1983 Supreme Court decision that revoked the school's tax-exempt status because it forbade interracial dating. McConnell argued that even if Bob Jones' policy is "morally repugnant to most of us" the rule affected "only those who choose to become part of the religious community defined by Bob Jones" and so should come under the constitution's protections of freedom of speech and freedom of religion.
In a Slate dialogue, backed government-funded school vouchers that can be used at parochial schools. Argued that religious activity in a public setting or paid for by public funds is OK, as long as the government remains neutral rather than supporting a particular faith.
Agreed to grant a preliminary injunction to a New Mexico sect to stop the government from prosecuting its members for using a hallucinogenic tea during worship. In a concurrence, McConnell argued that the sect's interest in religious observance trumped the health risk to the sect's members and the interests of the federal government in enforcing its drug laws. (O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 2003)

Environmental Protection and Property Rights
For a unanimous panel, upheld a law that Congress passed specifically to permit logging in the Black Hills National Forest in South Dakota. The law upended a court settlement designed to prevent the logging from going forward. (Biodiversity Associates v. Cables, 2004)

Criminal Law
For a unanimous panel, held that the federal prosecution of a child pornographer—who paid a boy to photograph him and transported him across states lines—was consistent with Congress' power to regulate interstate commerce. (U.S. v. Riccardi, 2005)

Abortion
In 1996, signed a statement supporting a constitutional amendment to ban abortion. "We believe that the abortion license is a critical factor in America's virtue-deficit," the statement reads.
Before Congress, testified in opposition to a bill designed to limit the access of protesters to abortion clinics.

Judicial Philosophy
Supports the originalist approach to constitutional analysis, which urges judges to interpret the Constitution in accordance with the understandings of its framers.


Samuel Alito
Age: 55
Graduated from: Yale Law School.
He clerked for: Judge Leonard Garth.
He used to be: deputy assistant attorney general under Reagan, U.S. Attorney for the District of New Jersey.
He's now: a judge on the U.S. Court of Appeals for the 3rd Circuit (appointed 1990).
His confirmation battle: Alito has the Scalia-esque nickname "Little Nino" and the Italian background to match it. As the author of a widely noted dissent urging his court to uphold restrictions on abortion that the Supreme Court then struck down, in a decision that reaffirmed Roe v. Wade, Alito could be especially filibuster-prone. Like Scalia, he frequently makes his mark in dissent.

Separation of Church and State
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)
For a unanimous panel, denied standing to a group seeking to take down a municipal holiday display that included a menorah and a crèche. Alito said that the group couldn't challenge the display as taxpayers because the items were donated rather than bought by the town. (ACLU-NJ v. Township of Wall, 2001)
Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he'd made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child's claim should go forward. (C.H. v. Oliva, 2000)

Criminal Law
Allowed a federal probation office in Delaware to condition the release of a man who had pleaded guilty to receiving child pornography on his willingness to submit to random polygraph tests about whether he'd had impermissible contact with children. (United States v. Warren, 2003)
Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who'd each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)

Habeas Corpus
Granted the habeas claim of an African-American defendant who sought to introduce evidence that a juror made a racist remark after the jury reached its verdict. (Williams v. Price, 2003)

Abortion
Dissented from a decision holding that Pennsylvania could not require women to inform their husbands before getting abortions. Alito argued that because the law only required the husbands to have notice and did not give them a veto over their wives' decisions, it did not pose an "undue burden" for women. This approach was rejected by the Supreme Court. (Planned Parenthood v. Casey, 1991)
Agreed that an immigration judge was within his discretion to find not credible an application for asylum based on China's forced-abortion policy. (Xue-Jie Chen v. Ashcroft, 2004)

Our long national nightmare is over...

Okay. It's been painfully clear that I have ignored the entire Harriet Miers ordeal/nomination for the past month. Although I was posting on rumors leading up to the Roberts nomination, the nomination itself, and then profiles of Roberts afterward, I could not bring myself to post on the Miers nomination.

It appears to me that Ms. Miers is a fine person, and a terrific attorney. Those things are not questioned.

Having said that, I could not post on the subject because she was such a wholly, uncomprehendingly, and embarrassingly unfit and unqualified nominee. The President looks ridiculous, and frankly, he should - because this was a historically bad nomination.

In my opinion there are only two legitimate explanations for such an absolute disaster of a nomination:
-1- This was a grand scheme; appoint an unfit candidate, so that you could follow up with an extemely right-wing ideolouge with a reasonable resume and get her/him passed with little effort. This is intriguing, but such a scheme would carry EXTREME risk if the original nomination was actually confirmed.

-2- The grand jury investigation, and potential indictments, of White House and VP officials seriously had this Admin. distracted - and those people with the power in the Admin, the decision makers (Rove, Cheney, Libby) were unable to focus on the Supreme Court nomination - leaving Bush to decide on his own, and he bungled that choice. I think that is the more reasonable assumption.

Regardless, it's good to know that as nice a person, and as good a lawyer as Ms. Miers may be, that she will not be sitting on the Supreme Court bench. Now, we must hope that a qualified, good nominee (such as C.J. Roberts) will be brought forth.

More info here:
Miers withdraws Supreme Court nomination
Miers Nomination Withdrawn
Miers withdraws nomination
Nominee Failed to Win Support of Key Senators and Conservatives
Miers Withdraws
Absolutely pathetic drivel
Miers withdrawal coverage
Interesting reports starting to emerge…

The Commerce Clause is dead. Long live the Commerce Clause...

I realize that it's only geeks like me who get fired up about these little things, but I just caught the following tonight and was so excited about it.

The following was posted on SCOTUSblog by Tom Goldstein (one of America's leading Supreme Court advocates) today regarding yesterday's oral arguments in the interesting and tightly contested Oregon assisted suicide case (Gonzales v. Oregon (04-623)). This was just a throwaway in his lengthy discussion here.

JGR [John G. Roberts] pointed out to the State that Congress had heavily regulated drugs and that things "have changed" a great deal since Gibbons v. Ogden. (Note to Rick Garnett and other states-rights conservatives: told you so; the federalism "revolution" was actually more of a "petty insurrection" and George Bush has now officially put it down with the change from WHR [William H. Rehnquist] to JGR. Sorry.)

I've said it before, but Commerce Clause jurisprudence was one of the most important issues during the 18+ years of the Rehnquist Court, and the former Chief, along with Justices Scalia and Thomas (I believe) truly did want to turn back the clock on federalism. But it does appear that the New Federalism is a thing of the past, and traditional, Marshall-style federalism will re-emerge under the Roberts Court.

Roberts' answers on Commerce Clause questioning during his confirmation hearings was one of the instrumental things that led me to decide he should be confirmed, and that he would have had my vote if I were a Senator.

New Chief confirmed...

78-22

About right. If anything, it probably should have been a little bigger, but in these partisan times, that's a pretty resounding number.



Roberts sworn in as chief justice

It looks as if President Bush is close to his next selection as well...could come tomorrow. We'll await that anxiously.

The wise words of Harry Blackmun...

Callins v. Collins, 510 U.S. 1141 (1994) (J. Blackmun dissenting).

On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel--someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants' rights--even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness--individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978).

It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be imposed "fairly, and with reasonable consistency, or notat all." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S., at 605 (plurality opinion). That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, ___ U. S. ___ (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, ___ U. S. ___ (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. ___ (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails todeliver the fair, consistent, and reliable sentences of death required by the Constitution. [n.2]

In 1971, in an opinion which has proved partly prophetic, the second Justice Harlan, writing for the Court, observed:

"Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability . . . . For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete." McGautha v. California, 402 U.S. 183, 204, 208 (1971).
...
[In Furman] Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313. If any discernible basis could be identified for the selection of those few who were chosen to die, it was "the constitutionally impermissible basis of race." Id., at 310 (Stewart, J., concurring).
...
The Court's refusal last term to afford [a petitioner] an evidentiary hearing, despite his colorable showing of actual innocence, demonstrates just how far afield the Court has strayed from its statutorily and constitutionally imposed obligations. See Herrera v. Collins, supra. In Herrera, only a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant's ability to get a hearing on a claim of actual innocence. Ibid. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera without the benefit of an evidentiary hearing. [n.8] The Court is unmoved by this dilemma, however; it prefers "finality" in death sentences to reliable determinations of a capital defendant's guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment's competing constitutional commands, or that the federal judiciary will provide meaningful oversight to the state courts as theyexercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness "in the infliction of [death] is so plainly doomed to failure that it--and the death penalty--must be abandoned altogether." Godfrey v. Georgia, 446 U.S. 420, 442 (1980)(Marshall, J., concurring in the judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Roberts Confirmation Hearings...

Although I do not agree with his general philosophy, I am more supportive of John Roberts as the next Chief Justice at this moment.

I am listening to the confirmation hearings on the radio and he just stated - unasked, just as a part of a separate answer - that Lochner is bad law, and the judges used incorrect reasoning. That was great to hear.

Hail to the Chief...

I was away from much of the world over the holiday weekend, but I just want to briefly pay my respects to Chief Justice William Rehnquist in his passing, and send my condolences and best wishes to the family and friends he left behind.



Chief Justice Rehnquist devoted so much of his life to the Court, and to American Law. Rest in peace.

Scalia plays Lochner for giggles...

This was an interesting article: Scalia blasts 'judge moralists'

Yes, Scalia took his usually big swings against the "living constitutition" and "judge moralists" - YAWN.

What I found intersting is what he was there for:

Earlier in the day, Scalia was much less serious while re-enacting the landmark 1905 Supreme Court case Lochner v. New York with five recent law school graduates, three undergraduates, California Attorney General Bill Lockyer and a Chapman professor.

The original court ruled that a state law limiting bakers' hours violated a bakery owner's liberty and right to due process. On Monday, however, the mock justices overturned that decision in less than 30 minutes of debate.

"There will be no majority opinion. This will be one of those unpublished opinions that will not be citable before the Supreme Court," Scalia, who played the role of Chief Justice Melville Weston Fuller, joked after announcing the students' decision.

The debate was lighthearted, as participants made jests on topics ranging from Scalia's Italian heritage to his reputation as a die-hard constitutionalist.

Professor John Eastman, who played the role of Lochner's counsel, argued that the state law had been sponsored by German union members who wanted to prevent competition from harder working Italian immigrant bakers.

To that, Scalia replied "Mama mia!"

That must have been a great event for law students to have experienced.

Following up on the living constitution...

Following up on an item I wrote about yesterday, Dahlia Lithwick provides reader feedback to her suggestion that supporters of the Living Constitution are a dying breed. It's a-Living. The responses were broken down in to a host of somewhat interesting categories, a few exerpts:

Many, many of you observed that the Constitution is alive simply because our laws have changed: "To believe otherwise, is to believe that African-Americans still count as only 3/5ths of a person," says David Berestka.

A thought about the need for sometimes extreme meddling by the court by Ted Niblock: "I don't know how many times I have had to remind people that we didn't make this stuff up to annoy Justice Scalia, people were getting lynched for trying to vote! Minorities and women (who were discriminated against even while hovering at around half the population) were being systematically kept from the key freedoms and liberties that the Constitution was designed to protect, and no other part of the system was going to change that."

Not too many of you had suggestions for how to respond to the assault from the right. Jonathan Stein, citing Larry Kramer, suggests that "The Left should respond by insisting that the court is not creating rights, but simply protecting rights that society as a whole has created."

Some interesting thoughts...

Where did the 'Living Constitution' go...

I'm coming to believe that anything Dahlia Lithwick writes is a must read...she's got another good one over at Slate this week. This is a short column wondering about the demise of the living Constitution...where did all the Brennan's go? That's a question I ask myself all the time.

Reasons to Go On Living

As the most recent "Justice Saunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.
To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.

As I have argued often recently, the phenomenon of originalism is like a crashing wave, or rising tide of the legal world. It is growing and pervasive. It's gotten to the point that to 'not' be an adherent of the originalist philosophy is seen as . . . quaint. And those of us who actually have the temerity to advocate a living constitution anymore, well . . . we're just out of the mainstream:

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

:Sigh:

Well, I for one stand with Brennan. "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on . . . contemporary questions." My opinion has always been that to force our Democracy into the "originalist" box means either (a) to wrench our society back centuries, or (b) scrapping our Constitution and starting over every few years as many countries in Europe and elsewhere tend to do. Neither is acceptable. The beauty . . . one of the many beauties of our Constitution is that it was written broadly - to encompass the passing of time and maturing of society.

I am quite excited about a new book coming out by Justice Stephen Breyer. Entitled "Active Liberty: Interpreting Our Democratic Constitution," it is the rare glimpse of a Supreme Court Justice's judicial philosophy - from the Justice himself - while he is still sitting. Justice Breyer is arguably the Court's most prominent mind - the "thinker" of the Court . . . and his thinking provides a wonderful counter-point to Justice Antonin Scalia's intelligence and intellectualism on the other side. Personally, I think it entirely possible that years from now legal historians may look back on this time on the Court as a "struggle" between the Breyer-philosophy and Scalia-philosophy.

The Wall St. Journal has a preview of the book in this article, "Justice Breyer Takes'Originalists' to TaskIn a New Book."

Justice Breyer . . . gives a detailed insight into his hilosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society.

And one of the keys - which Lithwick hints at above, and Breyer notes in his book - is that a Living Constitution is not synonymous with judicial activism:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.
. . .
Justice Breyer argues for "judicial modesty" when reviewing acts of Congress, and has been among the least likely of the court's members to vote to strike down federal laws.

Democracy, due process, and equal protection may be increasingly dismissed in contemporary legal thought, but the Constitution, a living, vibrant Constitution, will win out over time - as it always has.

Read more about Breyer's book (and a comparison to John Hart Ely) here.