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Archive for June, 2005

What Would SJB Do?

[ 0 ] June 27, 2005 |

Alas, nobody got the right answer to my question, although Terry and Roxanne made the best guess. And, in fairness, CNN identified O’Connor as the “swing vote.” But, in fact, she voted the same way in both cases, as did 8 other justices. For your actual swing voter, I bring you Mr. Stephen J. Breyer.

From a doctrinal perspective, like the other justices I don’t find Breyer’s opinion remotely convincing. The position of Scalia and Thomas in Van Orden is honest; they correctly see the 10 Commandments as state-funded endorsement of religion, and have no problem with it. The same is true, from the opposite perspective, for Stevens and Ginsburg. But Breyer’s Solomonic distinctions, which didn’t even convince O’Connor, aren’t very persuasive.

What I really don’t understand about Breyer is that I assume this split-the-difference concurrence was an attempt at consequentialist pragmatism. But what’s the logic here? Now, unlike abortion these church-and-state decisions are actually counter-majoritarian, and I have little doubt that these issues going to the Court is bad for Democrats (although there’s nothing they can do about it.) However, although this is contrarian, at this point I think the litigation itself is what matters; as with tort cases, the fact that people are litigating matters more than the outcome. But even if I’m wrong about that, it surely doesn’t make a difference whether the Court rules against the state in 1 or 2 cases. The headlines tomorrow, and the fulminations on talk radio, etc., will be “Court strikes down 10 Commandments.” You may be able to make a pragmatic case for ruling for the state in both cases, but what Breyer did doesn’t really make sense to me. Moreover, for progressives the best outcome would be a clear rule that makes it unlikely cases will get to the Supreme Court. When the constitutionality of state religious displays depends on Breyer’s (or O’Connor’s) random whim, this generates more litigation, which is bad for progressives not matter how it comes out.

On the merits, Stevens’ dissent in Van Orden gets it right:

The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance.

This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various ways in which religion has played a role in American life, and by the recitation of the many extant governmental “acknowledgments” of the role the Ten Commandments played in our Nation’s heritage. Surely, the mere compilation of religious symbols, none of which includes the full text of the Commandments and all of which are exhibited in different settings, has only marginal relevance to the question presented in this case.

The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State’s refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God. [my emphasis]

I can, however, respect Thomas and Scalia for recognizing that the display is an endorsement of religion, and arguing that this is consistent with the 1st Amendment. To claim that the display is consistent with a robust reading of the Establishment clause, as Rehnquist and Breyer do, is remarkably disingenuous.

…as always, good discussion at SCOTUSBlog.


From Ordinary Villainy to Cartoonish Super-Villainy

[ 0 ] June 27, 2005 |

You’ve got to be kidding me.

But to some Capitol Hill Republicans there is a dark cloud on the Nats’ horizon: the potential that their newly adopted home team could be purchased by billionaire financier George Soros.

Earlier this month, Soros joined an ownership bid being led by entrepreneur Jonathan Ledecky. Their group is one of more than a half-dozen angling to take over the Nats, who are currently owned by Major League Baseball.

In addition to being a well-known currency speculator and philanthropist, Soros is also known in political circles for having pumped more than $20 million in the last cycle into groups seeking to unseat President Bush and elect Democrats.

While the Soros-Ledecky group is not seen as the frontrunner to win the bidding for the Nationals, who should be awarded to their new owner at the end of the 2005 season, the very prospect that Soros could have a stake in the team is enough to irritate Congressional Republicans.

“I think Major League Baseball understands the stakes,” said Government Reform Chairman Tom Davis (R), the Northern Virginia lawmaker who recently convened high-profile steroid hearings. “I don’t think they want to get involved in a political fight.”

Davis, whose panel also oversees District of Columbia issues, said that if a Soros sale went through, “I don’t think it’s the Nats that get hurt. I think it’s Major League Baseball that gets hurt. They enjoy all sorts of exemptions” from anti-trust laws.

Indeed, Hill Republicans could potentially make life difficult for MLB in a variety of ways. In addition to being exempt from anti-trust rules, baseball is still under scrutiny over the steroid issue. The Nats, meanwhile, hope to have a publicly-funded stadium built soon, though money for that venture is expected to come through the sale of bonds rather than a federal outlay.

Still, Rep. John Sweeney (R-N.Y.), vice chairman of the Appropriations subcommittee that covers the District of Columbia budget, said if Soros buys the team and seeks public funding for the new stadium or anything else, the GOP attitude would be, “Let him pay for it.”

“We’re not going to interfere with [the sale], but from a fan’s perspective, who needs the politics?” Sweeney said.

Another senior Republican lawmaker who requested anonymity said that the league should be aware of the perception problem that might be associated with selling the Nats to Soros.

“Why would Major League Baseball want to get involved with George Soros?” said the lawmaker. “It’s about more than just the sale price.”

I’m all in favor of baseball owners being barred from political advocacy, politics, and running for political office. As long, of course, as we make that ban retroactive.

Look for the talking heads to nod and agree that baseball should remain apolitical, and that advocates like George Soros shouldn’t become involved, all the while failing to notice that virtually all of the owners of baseball teams are committed Republicans who donate tremendous sums of money to the Republican Party. That they do so while whining incessantly about the lack of public funding for their businesses only drags us farther into the realm of the absurd.

Trivia Time!

[ 0 ] June 27, 2005 |

So, if you were told that one justice switched positions on 2 different 10 Commandments cases, changing his or her vote for essentially random reasons, who would you guess it was? The answer may surprise you!

The Redefinition of Restraint

[ 0 ] June 27, 2005 |

This Slate piece about potential Rehnquist replacements–which may be extremely relevant by the time you read this–is generally useful; I also agree that Luttig is the most likely candidate. But boy this drives me up the wall:

Luttig is often cast as a mini-Scalia. The characterization fits him well. In his judicial opinions, he sometimes rejects the statesman model in favor of cutting sarcasm and has shown a tendency to adhere to his own restrained method of judging even on the rare occasions when it leads him to unpopular or anti-conservative positions.

No, no, no, a thousand times no. First of all, Scalia simply does not practice anything that can be called “judicial restraint” in a non-tautological sense; he is not at all deferential to legislatures. Secondly, his recent opinion in Raich is only the most recent example of the way he is willing to ignore his own past writing in order to go along with a policy result he likes (and is also further evidence that his much-maligned colleague Thomas is more principled and consistent.) It’s really remarkable how, four decades after the retirement of Earl Warren, the media still conflates “judicial restraint” with “conservative jurisprudence,” despite the fact that this conflation is neither logical nor empirically justified…

Not Small Potatoes

[ 0 ] June 26, 2005 |

DeLong is, of course, correct. Putting together a 70s list would involve more work sorting out viable candidates than subsequent decades, but at least I would know my #1 choice. Has anybody here seen the new DVD release? My understanding is that the transfer is somewhat better than the botched one in the DVD collection, but I haven’t seen it yet…

Why Roe Matters, Part XLI

[ 0 ] June 26, 2005 |

Sarah Wildman notes that New York state Senate passed a bill that would allow the sale of Plan B over-the-counter; given that the Senate is the GOP-controlled house, this is indeed good news. Wildman makes another important point:

This is fantastic news for New York. But like many reproductive personal-health issues, this is one in which the country will once again be divided between (largely coastal) states that allow women progressive options, and states dominated by retrogressive lawmakers. It creates an essentially two-tiered system where (mostly) blue-state women will be allowed to control their health and reproduction but women in the so-called flyover states will be constrained by their income levels and the capricious conservatism of their legislature.

Yes. I am always annoyed by progressives–particularly affluent people in blue states–who blow off the importance of Roe. It’s certainly true that for them (or their wives/partners/daughters/friends) overturning Roe wouldn’t make any difference, but many women are not so advantageously situated. Yes, access to abortion still varies greatly by geography–but it would be significantly worse without Roe. The difference between having two abortion clinics in a state and none makes a large difference for a lot of women, even if this is far from an optimal number. If you still want to argue that Roe is wrong as a matter of law, fine, but let’s not kid ourselves that overturning it would be positive for reproductive rights–even if the affected women mostly live at a significant geographic remove.

Kitten Porn

[ 0 ] June 25, 2005 |

This is the kind of brawl o’ blog that I like:

It has come to our editorial attention that certain parties want to make a name for themselves in the kitten game by stepping to us with some pictures of tattered, worn-out, raggedy-ass pussy cats. When you’ve been pimping kittens for as long as we have, you get a rep, and there’s always someone who wants to jump up to the big time by taking you out. It’s an old story, and we’ve heard it too many times already. If we wanted to be cruel, we’d say something about how when people say “look what the cat dragged in”, those cats probably dragged it in. But we don’t want to be cruel; we just want to be real. And we want to send a message, so everybody knows exactly how we play the kitten game.

Kitten Porn


Damn Freaky Cats

Helter Skelter

Earned Humiliation

[ 0 ] June 25, 2005 |

It’s hard to decide what my favorite moment in Conason and Franken’s uniformly glorious demolition of Ed Klein is. The fact that his “New York Times” source turned out to be William Safire is a contender. Still, I think I have to go with this sequence:

FRANKEN: Okay. How about the, ah, LAX thing? The haircut that supposedly held up traffic at LAX.

KLEIN: Mm-hmmm [affirmative].

FRANKEN: Now you know that that’s not true, right?

KLEIN: No, I don’t know that’s not true.

CONASON: Again because you didn’t do any reporting. That was, that story was debunked at the time that it came out 12 years ago. You, you, I mean it’s just astonishing to me —

KLEIN: What?

CONASON: — how little work was put into this book —

KLEIN: Well, you know —

CONASON: — in terms of trying to establish whether any of this stuff that you’ve written here is true!

KLEIN: So, you’re saying, Joe, that the president did not hold up traffic —


KLEIN: — at LAX?

CONASON: I’m saying that not only would I say that, but that’s the established fact that’s been reported after that story came out in the St. Louis Post-Dispatch, the FAA made it very clear that not one flight was held up as a result of that.

KLEIN: Well, Joe —

CONASON: And that was established a long time ago.

KLEIN: You and I are reading different, ah, newspapers, I think.

CONASON: No It’s, it’s not a matter of reading different newspapers; it’s a matter of what the Federal Aviation Administration said about this incident. It was debunked at the time.

FRANKEN: Do you want to read — do you want to hear what the, ah, St. Louis Post-Dispatch said?

KLEIN: Well, if you’d like to read it, that’s — it’s your show.

FRANKEN: Well, okay. The story that — was the planes were kept circling as President Bill Clinton had his hair clipped on Air Force One at Los Angeles Airport. This was 1993, not last month. The haircut by Beverly Hills stylist Christophe became such a metaphor for perceived White House arrogance that the president himself felt compelled to apol…ah, apologize for reported flight delays. But the reports were wrong. According to the FAA (Federal Aviation Administration), records obtained through the Freedom of Information Act, the haircut May 18th caused no significant delays of regular scheduled passenger flights, no circling planes, no traffic jams on runways. Commuter airlines that fly routes routinely affected by the President’s haircut confirmed that they had no record of delays, etc. etc. etc.

CONASON: What’s peculiar to me is, you don’t seem to care whether you get these things right or not.

KLEIN: What’s peculiar to me, Mr. Conason, is that you’re still stuck back in 1993 instead 2005. This book is —

CONASON: No, you were, you were writing about something that happened in 1993.

Now, the “we’re not talking about the past, we’re talking about the future” misdirection is a lame but effetive enough tactic of political rhetoric. But when you’re, you know, writing a biography, I don’t think it really works. But, really, “read (or listen) to the whole thing” is an imperative in this case. And why doesn’t Conason have his own show somewhere?

Speaking of richly deserved humilation, kudos to Pedro

Judicial Power, Yet Again

[ 0 ] June 24, 2005 |

A new post–even more exciting than the last!–about judicial power and democracy is up here.

Land of the Dead

[ 0 ] June 24, 2005 |





I think we can all agree that George W. Bush is not the President to lead us against the zombie menace. Moreover, I concede that I would consider rampant zombie attacks more than enough cause to enlist in the US Army. Call me a hypocrite.

For those skeptical, shut up. Night of the Living Dead and Dawn of the Dead are immortal classics, and not just of the genre. Day of the Dead. . . eh, I could take it or leave it. If Land of the Dead is just somewhere in between the previous films, I will be pleased.

[ 0 ] June 24, 2005 |

Friday Cat Blogging. . . Stromboli Posted by Hello

The Stevens Manifesto

[ 0 ] June 24, 2005 |

What Matt correctly describes as an overheated response to a Supreme Court decision that upheld hundreds of years of precedents has certainly reached its apogee with Kieran Healy‘s post. To be honest, even accounting for the rhetorical hyperbole I find this entire line of reasoning bizarre. If the existence of meaningful private property depends on giving a new substantive meaning to the phrase “public purpose” in the Fifth Amendment, then the United States has never had significant property rights. Perhaps the most salient fact about Kelo is that there’s nothing new here. The takings clause has always been interpreted to require that states compensate property owners, not to determine what a valid “public purpose” is. Perhaps this interpretation is wrong, but if it made the effective continuance of private property impossible I think we would have noticed by now. (I think it’s worth reiterating, as well, that even if Kelo had come out the other way, it would have stopped a small percentage of eminent domain takings.)

But there’s an additional problem with the claim that property rights will be seriously threatened if the courts aren’t charged with determining which development plans constitute a legitimate “public purpose” and which do not. The Canadian Charter of Rights and Freedoms doesn’t have a takings clause at all. Great Britain doesn’t have judicial review at all. Are these countries, then, closer to communist societies than liberal democracies? Of course not. This decision may be right or it may be wrong, but the existence of property rights was hardly at stake. I’m puzzled by the rampant conflation of “rights” and “particular exercises of judicial review” by people who should know better.

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