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Supreme Court: Random Notes

  • iocaste highlights Scalia’s dissent in McCreary County, a remarkable performance–and I don’t mean that as a compliment. What’s most useful about it is that it highlights the death of “nonpreferentialism” as a viable doctrine on the current Supreme Court. Rehnquist has been articulating nonpreferentialism as an alternative reading of the Establishment Clause: roughly, the idea is that the state cannot discriminate among religions, but can prefer religion to irreligion. The idea here is that the core purpose of the Establishment Clause was to inhibit the conflicts that arise when religious groups fight each other for government funds. I don’t agree with it, but it’s plausible. The 10 Commandments, however, put the seriousness of the doctrine to the test; these cases dealt with clearly sectarian religious support. And, needless to say, none of the conservatives actually take the principle seriously. Scalia’s way around it is to claim to just lie and deny that the 10 Commandments represent “particular” religions (and, presumably, those religions that do not hold them to be a sacred text can be ignored); evidently, this silly tautology renders “nonpreferentialism” a meaningless restriction on government action. And, of course, he also demonstrates the problems with the doctrine even if it meant something. Particularly offensive is Scalia’s claim “Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’’s own say-so..” In other words, those who do not believe in the (Judeo-Christian) God are not really a part of American society. If this seems more Bill O’Reilly than James Madison, consistent with American constitutionalism only in the sense that (as Garry Wills puts it) that running people out of town on a rail is as American as declaring inalienable rights–well, that’s our Nino!

  • I think that Amanda is probably ultimately right about Castle Rock, the tragic case where police falied to enforce a restraining order, resulting in a father killing his three children. However, I think the dissenters’ case is considerably stronger than most commentary has suggested. Certainly, Scalia’s central point is a powerful one: discretionary enforcement of categorical laws by police departments with scarce resources is inevitable, and to hold them liable for such acts of discretion would creat all kinds of problems. Obviously, as everyone concedes, there is no substantive rights violation here. However, the discretion of government officials is bound by the procedural core of the equal protection clause: the police cannot systematically refuse to apply laws to the detriment of a certain group of people. In this particular case, the argument is plausible. As Stevens points out, the fact that the Colorado legislature passed a new law requiring mandatory enforcement of restraining orders in domestic violence cases tells us that the legislature believed that the existing laws were being systematically underenforced. Is this enough to create a procedural violation in this case? Probably not; at least based on the evidence Stevens presents, I’m not sure the underenforcement is so severe as to constitute a procedural equal protection violation. But I think this is a hard case, and with sufficient evidence I could be persuaded that Ginsburg and Stevens are right.
  • I’m very ambivalent about the Cooper/Miller cases the Court refused to hear, and I think it’s necessary to disentangle some separate issues. Should Congress provide at least a modest, rebuttable privilege for journalism? Probably. Does the First Amendment require it? I’m inclined to think not, but I may be able to be convinced otherwise. Do Cooper and Miller belong in jail? Based on my limited knowledge, I’m not sure it’s the wisest use of prosecutorial discretion. (This is, to state the obvious, not based on the fact that Cooper is a nice guy. For all I know, Miller is also a very nice person who takes good care of her cats Chalabi and Perle Necklace. It’s beside the point. Rather, it just seems to me that the punishment of the reporters is disproportionate based on where Fitzgerald seems to be going.) All this aside, based on existing law, do Miller and Cooper have a federal privelege? I think that’s an easy question: they don’t. Moreover, it seems to me that short of a nearly absolute privelege, they wouldn’t have a good claim. As far as I can tell, the public’s interest in protecting the source in this case is almost nil. We’re not talking about a whistleblower, but somebody who shopped around illegal information as part of a smear campaign. Because the source was breaking the law for private purposes, he or she is not entitled to any serious expectation of privacy. It’s nice that Miller feels she has a moral obligation to her source, but that’s not a legal argument. I’m also appalled by the Times‘ argument that this is a more serious violation that the Pentagon Papers case, which involved prior restraint of a publication. That’s a clear infringement of the 1st Amendment. In this case, however, while the paper’s interest is strong, I don’t think its legal position is very compelling.
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