According to reports, Chief Justice John Roberts is resting comfortably following yesterday's seizure. At this point, there is no additional information as to the cause of the "benign idiopathic seizure" which led to his hospitalization yesterday.

I did encounter some interesting information as I perused various articles.

Take this from the New York Times' excellent Supreme Court reporter, Linda Greenhouse.

In an interview on Monday evening, Dr. David J. Langer, the director of cerebrovascular neurosurgery at St. Luke’s-Roosevelt, Beth Israel and Long Island College Hospital, said that medical care after such a seizure should include “a good M.R.I., CAT scan and EEG.” All these tests are available at the Penobscot Bay Medical Center, according to the hospital’s Web site.

“But the chances they’ll find anything and be able to do anything about it are pretty low,” said Dr. Langer, who is also an assistant professor at the Albert Einstein College of Medicine at Yeshiva University.

“In the majority of seizures you see no anatomical cause,” he said. Such a cause could be a tumor, bleeding in the brain, a clogged blood vessel or an injury.

Dr. Langer said it could be difficult for doctors to decide whether the chief justice, who at 52 is the youngest member of the court, should start taking medications, which Dr. Langer said “have significant side effects.” Chief Justice Roberts appears otherwise healthy and is not known to have any chronic medical problems.

In other words, given that the Chief Justice has had only two seizures and they are nearly 15 years apart, there is some disagreement as to whether or not the medications are really necessary. The "significant side effects" comment strikes me as a bit of over-kill, though, as I have worked with a number of colleagues with epilepsy over the year and have known only one to have exhibited major side effects from the medication. After all, most long-term medications (such as my diabetes and blood pressure medications) do have significant side effects, but not for all (or even a majority of) patients.

Indeed, the disagreement over how to classify and treat Roberts' seizures (if ongoing treatment is necessary) is highlighted later in the article.

Dr. John W. Miller, a professor of neurology and director of the University of WashingtonÂ’s regional epilepsy center in Seattle, said that anyone who had more than one seizure, no matter how many years apart, should be classified as having epilepsy.

Based on news accounts, Dr. Miller said, Chief Justice Roberts’s epilepsy would be categorized as “cryptogenic,” meaning that there is presumably a cause but that doctors cannot identify it.

Statistically, he said, it is “extremely unlikely” that this seizure represents a brain tumor. Fewer than 5 percent of those with recurrent seizures have brain tumors as a cause, and a very slowly progressing brain tumor would be rare.

However, as pointed out in an email to me last night, even if one presumes (as Dr. Miller does) that the Chief Justice can legitimately be diagnosed as having epilepsy, that does not necessarily indicate mental illness or intellectual incapacity. After all, the following modern individuals are known to have suffered from epilepsy.

Despite the stigma, many famous people have suffered from the disorder and excelled in spite of it. They include:

* Bud Abbott, American comedian of Abbott and Costello fame
* Richard Burton, Welsh actor
* Truman Capote, American author
* Lewis Carroll, English author and mathematician
* Dante Alighieri, Italian author
* Charles Dickens, English author
* Fyodor Dostoyevsky, Russian author
* Danny Glover, American actor
* Vincent van Gogh, Dutch painter
* Margaux Hemingway, American actress, granddaughter of author Ernest Hemingway
* Elton John, English pop singer
* James Madison, fourth U.S. president
* Guy de Maupassant, French author
* Alfred Nobel, Swedish chemist, engineer and founder of the Nobel Prize awards
* Niccolo Paganini, Italian violinist
* Peter the Great, Russian czar
* Edgar Allen Poe, American author
* Neil Young, Canadian rock musician
* Jonathan Swift, English author
* Peter Ilich Tchaikovsky, Russian composer
* Alfred Lord Tennyson, English poet
* Lord Byron, English poet

There are some truly great and creative minds on that list -- including the man often described as the Father of the Constitution. Given Roberts' lifelong fidelity to that document, I think that he is in excellent company.

There are, of course, other figures who some historians speculate also had epilepsy, though time and the tenuousness of evidence makes classifying these individuals less certain.

Some historical researchers believe there is evidence to suggest that the following famous figures may have also suffered from seizure disorders:

* Alexander the Great, king of Macedonia
* Aristotle, Greek philosopher/scientist
* Napoleon Bonaparte, French general/emperor
* Buddha, founder of Buddhism
* Julius Caesar, Roman emperor
* Hannibal, Carthaginian general
* Michelangelo, Italian painter/sculptor
* Mohammed, prophet of Islam
* Sir Isaac Newton, British mathematician
* Pythagoras, Greek mathematician
* Saint Paul the Apostle, a father of the early Catholic Church
* Socrates, Greek philosopher
* Leonardo da Vinci, Italian painter, draftsman, sculptor, architect and engineer

All are known to have suffered from some sort of seizures at some time, as reported by historical documents. While I might not agree with every classification, it is again pretty clear that a history of seizures is not a bar to success in life. That should demonstrate that this incident is not necessarily a prelude to the Chief Justice's retirement from public life. As I said last night, there is nothing in this incident that should be seen as barring his remaining on the court for another three decades or so.

A second point that I feel needs to be brought up is the earlier seizure. Folks speculated that it was hidden from the administration and from senators at the time of his confirmation hearings. That issue can be definitively laid to rest.

Newsweek reported in November 2005 that Roberts suffered a seizure in January 1993 while golfing. "It was stunning and out of the blue and inexplicable," Larry Robbins, a Justice Department colleague, told the magazine. Robbins said Roberts was not allowed to drive for several months after the seizure and took the bus to work. The magazine quoted a senior White House aide as describing the episode as an "isolated, idiosyncratic seizure."

There is no record of any discussion of the 1993 seizure or of Roberts's health in general during his confirmation hearings. Sen. Arlen Specter (R-Pa.), who chaired the hearings, told CNN on Monday night that senators were told about the previous episode but did not find it serious enough to ask Roberts about. Roberts has no known history of major illness.

Senators knew about the 1993 seizure, but absent any other history of seizures found it to be unimportant. Those seeking to disqualify Roberts based upon the incident (or upon a presumptive diagnosis of epilepsy arising from this incident) find themselves in the position of arguing that the Senate should have considered (or should today consider) an issue that private employers are forbidden to consider -- a real or perceived disability on the part of a candidate for a job. And since there is nothing inherent in epilepsy that would preclude the Chief Justice fully and effectively doing his job, it strikes me that they are seeking to create an ideology exception to the Americans with Disabilities Act.

And again, as I noted yesterday, the level of hatred being spewed by liberal sites deemed "mainstream" among Democrats is pretty frightening. When Bill Clinton fell ill during the 2004 presidential election, we on the right offered prayers and best wishes, despite our previous opposition to the former President and our general dislike of his wife. Contrasted with the comments found on Democratic Underground, DailyKos, and other sites of that ilk. I won't drive them traffic, though, so no links from me.

UPDATE: Chief Justice Roberts has been released from the hospital and says he is doing well.

H/T Malkin, Ace, Bill's Bites, Volokh, Volunteer Opinion Journal, Texas Rainmaker

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Posted by: Greg at 01:58 AM | Comments (10) | Add Comment
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This report is disturbing, but not necessarily a sign that the Chief Justice will need to leave the bench any time in the next three decades.

Chief Justice John G. Roberts Jr., a seasonal resident of Hupper Island, located off Port Clyde, will be staying overnight at Penobscot Bay Medical Center in Rockport following a seizure.

St. George Ambulance responded to a call at about 2 p.m. Monday of a man who had fallen 5 to 10 feet and landed on a dock, hitting the back of his head. The patient was ashen and was foaming at the mouth. National news report quotes a Supreme Court spokeswoman as saying that Roberts was conscious the entire time of the incident. That spokeswoman has not returned a telephone call to the newspaper.

PBMC issued a statement at about 7 p.m., saying that Roberts was being kept overnight as a precaution and was recovered. He suffered some minor scrapes from the fall, the hospital stated. A comprehensive neurological examination was administered to the chief justice and the seizure was determined to be a benign one, the hospital stated. The chief justice suffered a similar seizure in 1993.

According to a Supreme Court spokesperson, Roberts is fine.

Arberg said Roberts suffered "a benign, idiopathic seizure," medical terminology for an attack whose origin is unknown. She said Roberts suffered a similar episode in 1993.

Seizures are any "sudden, abnormal electrical activity" in the brain, according to background information posted online by the National Institute of Neurological Disorders and Stroke, part of the National Institutes of Health.

While some seizures are focused in one part of the brain, government researchers note, others can be generalized. Not all seizures involve convulsions.

"Most seizures last from 30 seconds to two minutes and do not cause lasting harm," the Institute said. "However, it is a medical emergency if seizures last longer than 5 minutes or if a person has many seizures and does not wake up between them."

While seizures can be the result of a brain disorder such as epilepsy, the Institute notes they can also be a consequence of fevers, head injuries or even medication side effects.

Let's consider the term used -- benign idiopathic seizure. It indicates that it is an incident that caused no significant harm to the Chief Justice and does not seem to be related to any underlying medical condition. It may yet turn out to be caused by any number of relatively trivial circumstances, including low electrolytes or a reaction to a flashing light source. Based upon the initial diagnosis, there is no reason to believe that the Chief Justice should not be able to return to his duties at full strength by the end of the summer recess -- or that he won't be able to resume his normal schedule by the weekend, for that matter.

The Leftard-sphere has reacted with its usual level of (no) class and (no) decency, and I've already seen posts and comments hoping that he is incapacitated, dies, and "damned to Hell". I won't drive any traffic their way.

Decent Americans (or all political stripes) send their prayers and/or best wishes for the Chief Justice and his family.

H/T Malkin, Ace, Bill's Bites,

Posted by: Greg at 12:07 PM | Comments (9) | Add Comment
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Take this one, for example.

Fewer See Balance in Court's Decisions

Sounds bad, until you read the actual story.

About half of the public thinks the Supreme Court is generally balanced in its decisions, but a growing number of Americans say the court has become "too conservative" in the two years since President Bush began nominating justices, according to a new Washington Post-ABC News poll.

Nearly a third of the public -- 31 percent -- thinks the court is too far to the right, a noticeable jump since the question was last asked in July 2005. That's when Bush nominated John G. Roberts Jr. to the court and, in the six-month period that followed, the Senate approved Roberts as chief justice and confirmed Justice Samuel A. Alito Jr.

In other words, 7 in 10 Americans believe the Supreme Court is either in balance or too liberal -- but that isn't what the media wants to focus on. Instead, they focus on the Americans of a liberal bent -- and even then can find less than 1/3 of the public who find the High Court to be too conservative. Indeed, with roughly half the public finding the court to be just about right, it strikes me that we need to ensure that the Court does more of what it has done this term.

And while the story notes that the public disagrees with the school desegregation decision handed down at the end of the term, I'm not surprised. After all, the media generally presented the story as a setback for civil rights rather than the step forward towards non-discrimination that it really was. The majority explicitly upheld Brown v. Board of Education's central holding -- that assigning students to school based upon their race is a violation of the Constitution. Given teh misreporting of the story by the press, it is no wonder that the American public is misinformed about that decision -- and I firmly believe that the public would agree with the holding if they wee presented with the truth.

Posted by: Greg at 11:54 PM | No Comments | Add Comment
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Like this is going to help the guy's case when it is presented to a jury.

A satanist on trial for allegedly killing and dismembering another man, then eating portions of the body, may wear his full religious regalia when he defends himself in court, a Florida judge has ruled.

The prosecutor in the case, Assistant State Attorney Herbert E. Walker III, told WND the motion was brought by Lazaro Galindo, who is on trial for the 2000 death of Argelio Gonzalez.

It was approved by trial Judge Peter Adrien.

Walker said he did not object to the request, because Galindo cited recent decisions that have allowed Islam into U.S. courtrooms for Muslim faithful, and he didn't want to set up a circumstance that could result in grounds for an appeal if Galindo is convicted.

This strikes me as a particularly dumb move -- after all, it is likely to give teh jury a bad impression of a guy charged with murdering a man and then eating parts of his victim. But then again, maybe that is the idea -- seek to get off on the argument that he cannot get a fair trial because people are inherently biased against cannibalistic devil-worshipers.

Posted by: Greg at 02:00 AM | No Comments | Add Comment
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Shades of FDR!

Still, there is nothing sacrosanct about having nine justices on the Supreme Court. RooseveltÂ’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

So let's get something clear on this one -- if the Supreme Court continues to issue well-reasoned opinions backed with Constitutionally-sound principles, it should be overthrown in the interest of assuring politically popular decisions instead. Now tell me -- who then is adopting "a manifestly ideological agenda, [that] plunges the court into the vortex of American politics" -- the justices or those seeking to overturn justice via the political process.

Oh, and interestingly enough, at no point does the author cite a single decision this term that was manifestly incorrect -- or even one that he views as decided based upon political ideology rather than the law. But he still appears to want to make the Supreme Court a branch politically subservient to the whims of the Democrats by adding seats and packing the bench after a presumed victory by the Democrats in 2008.

Posted by: Greg at 01:34 AM | No Comments | Add Comment
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After all, the gun law struck down in the District basically made it a crime for a mere serf citizen to keep or bear arms in the District of Columbia. Now the mayor has announced plans to appeal that decision to the Supreme Court.

The District will ask the Supreme Court to uphold its strict 30-year handgun ban, setting up what legal experts said could be a test of the Second Amendment with broad ramifications.

The high court has not ruled on the Second Amendment protection of the right to keep and bear arms since 1939. But at a morning news conference yesterday, Mayor Adrian M. Fenty (D) and Attorney General Linda Singer said they expect the court to hear a case they called crucial to public safety.

In a 2 to 1 decision in March, a panel of judges for the U.S. Court of Appeals for the D.C. Circuit ruled that the city's prohibition against residents keeping handguns in their homes is unconstitutional. In May, the full appeals court declined a petition from the city to reconsider the panel's decision.

Some gun control advocates have cautioned that a defeat in the Supreme Court could lead to tough gun laws being overturned in major cities, including New York, Chicago and Detroit. Fenty said the District had no choice but to fight because more guns in homes could lead to increases in violent crime and deadly accidents.

"The handgun ban has saved many lives and will continue to do so if it remains in effect," Fenty said. "Wherever I go, the response from the residents is, 'Mayor Fenty, you've got to fight this all the way to the Supreme Court.' "

You know, the data shows Fenty's argument to be false. Crime drops where the law-abiding are free to exercise their rights under the Second Amendment -- and criminals, of course, are strangely disinclined to follow gun bans.

Interestingly enough, if one looks at the words of the Founders on the right to keep and bear arms, there should be no question as to the meaning of the Second Amendment -- or its purpose. And indeed, a hard-and-fast ruling that there is no right for the people to keep and bear arms in the amendment guaranteeing that "the right of the people to keep and bear arms shall not be abridged" might well be a good reason to implement that purpose.

Posted by: Greg at 12:57 AM | No Comments | Add Comment
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I understand that the accused has a right to a fair trial -- but for a court to order that the terms "rape" and 'sexual assault" not be used during the course of a trial on sexual assault charges is beyond absurd -- it makes it absolutely impossible to discuss the events that led to the charges. And since the victim wouldn't consent to this travesty of justice, the judge has declared a mistrial in the case.

A Lancaster County district judge has declared a mistrial in a sex-assault case in which he had barred the words "rape" and "victim" among others, and both the defense and alleged victim are asking for a shot at a fair trial.

Judge Jeffre Cheuvront said publicity surrounding the rape case against Pamir Safi, 33, would have made it too difficult for jurors to render an impartial verdict.

The mistrial came a day after Cheuvront deemed that the alleged victim in the case would not have to sign his order barring witnesses from certain words. The judge had warned Tory Bowen, 24, at a hearing on Wednesday that he would have little patience if she used the forbidden language when testifying against Safi.

Among the words and phrases Cheuvront barred were: rape, victim, assailant and sex-assault kit.

I'm sorry, but banning such words and phrases would have made it utterly impossible to actually discuss the events in question and the evidence int he case. As it was, the judge had indicated he might jail the victim if she did not abide by his order -- but instead he decided to rape her (and Lady Justice) again by declaring a mistrial due to what he described as too much publicity and attempts to intimidate the court brought about by those who objected to the order -- including the victim, who refused to stay silent.

Even more despicable is the response of the defendant and his shyster, who had previously attempted to ban the Tory Bowen from testifying about the events that led to the charges in the first place.

"The problem this creates, of course, is the taxpayers of Lancaster County are going to carry the burden for this misconduct," said Safi's attorney, Clarence Mock. "All Mr. Safi wanted was an opportunity to have was a fair trial in front of an impartial jury, and due to the misconduct -- reprehensible conduct -- of the complaining witness and her supporters, he was deprived of that opportunity."

The reprehensible conduct of the complaining witness? What reprehensible conduct? Demanding to be able to actually say what happened to her on the night in question? Demanding the opportunity to be heard by a jury without these absurd censorship rules put in place by a judge who clearly seems more sympathetic to rapists than their victims?

I don't know about you, but it appears that Judge Jeffre Cheuvont needs to be removed from the bench in the most expeditious manner possible -- or at least reassigned to hearing nothing more serious than parking tickets.

Posted by: Greg at 12:19 PM | No Comments | Add Comment
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Well, other than being the first woman on the Supreme Court.

As one begins to consider whether O'Connor might be left with no similarly enduring achievements, it's worth pointing out that some part of this may well be of her own doing: Even at the height of her influence at the high court, O'Connor's critics tended to deride her constitutional stylings as closer to Muzak than Mozart. Justice Antonin Scalia once famously wrote that her argument in an abortion case "cannot be taken seriously." And her many critics often pointed to the lack of real rigor in her "undue burden" test for abortion restrictions; her "reasonable observer" test for whether the government has "endorsed" religion; or her "someday my prince will come" test for when affirmative action programs might become unnecessary in the future.

That's why Charles Krauthammer once wrote of O'Connor that "she had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation." Buried in this criticism was the implication that her legal framework would go easily, once she was replaced by someone with a "serious" constitutional theory. Samuel Alito, her successor, is probably that someone, at least from Krauthammer's point of view. Certainly no one would suggest calling him a "moderate," a "pragmatist," or a "common-law judge." Alito has an agenda far broader than O'Connor's one-case-at-a-time approach. It's hardly surprising that he has not taken up where she left off.

It isn't just her replacement by a more conservative justice. it is that there was never any coherence in her jurisprudence. Constantly trying to split the difference, her positions were often ad hoc compromises that were difficult to apply in real world settings. Indeed, her opinions really offered no more Constitutional clarity than Potter Stewart's "I know it when I see it" standard on obscenity. As such, the latter years of her time as a justice will likely be remembered as an interregnum during which there was little, if any, certainty on Constitutional matters, and even fewer principled decisions enunciated.

Posted by: Greg at 04:43 AM | No Comments | Add Comment
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The decision against counter-terrorism surveillance of telephone calls from outside the US has been struck down.

It really isn't a surprise, both in terms of the standing issue and the precedents in the case.

After all, a Carter-era case supports warrantless searches and surveillance for national security purposes, and holds it to be an inherent presidential power. In 1980, the Fourth Circuit Court of Appeals ruled in United States v. Truong Dinh Hung (629 F.2d 90 , that the President did possess the authority to conduct such searches (and, by inference, wiretaps) without a warrant.

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. . . .The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S. Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.

Similarly, so did the Foreign Intelligence Surveillance Court of Review noted in In re: Sealed Case No. 02-001 (310 F.3d 717).

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And, as noted by one former federal prosecutor, there are a couple of dozen of examples of situations in which warrantless searches of American citizens have been upheld by various courts, up to and including the US Supreme Court.

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

And those are cases of warrantless searches and detentions of Americans that are directed at Americans -- not cases in which the words of Americans are incidentally intercepted in the course of monitoring foreign communications not covered by the protections of the US Constitution at all!

Posted by: Greg at 08:21 AM | Comments (1) | Add Comment
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It looks like a lot of defendants, including this terrorist, are going to try to use the President's commutation of Scooter Libby's sentence as justification for lowering their own.

An alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush's commutation of the 2 1/2 year prison sentence imposed on a former White House aide, I. Lewis Libby Jr., for obstructing a CIA leak investigation. Mohammed Salah, 57, is scheduled to be sentenced by a federal judge in Chicago next week on one count of obstruction of justice. In February, a jury convicted Salah and a co-defendant, Abdelhaleem Ashqar, of obstruction, but acquitted the pair of a far more serious charge of racketeering conspiracy in support of Hamas's terrorist campaigns in Israel, Gaza, and the West Bank.

"What the president said about Mr. Libby applies in spades to the case of Mohammed Salah," Salah's defense attorney, Michael Deutsch, told The New York Sun yesterday. "We'll definitely be bringing it up to the judge. Â… It's going to be a real test, a first early test of whether we're a nation of laws or a nation of men."

Here's the problem with the argument advanced by the terrorist scumbag and his paid mouthpiece -- decisions in clemency cases are NOT a legal precedent, and DO NOT have the force of law. Indeed, a case of executive clemency is an action based upon the individual case and circumstance, not a general rule. It is an act of mercy in directed at correcting an individual injustice or recognizing individual merit.

However, there is one aspect of this case that troubles me -- and which troubles me every time it is used in justifying a sentence for someone convicted of a crime.

Despite Salah's acquittal on the racketeering charge, which could have carried a life sentence, prosecutors have asked Judge Amy St. Eve to find that the evidence presented at trial proved Salah was part of a terrorist conspiracy. "The jury did not find beyond a reasonable doubt that defendant Salah committed racketeering conspiracy. The standard at sentencing, however, is not proof beyond a reasonable doubt," the prosecution wrote in a recent court filing.

Prosecutors have also asked the judge to consider a series of alleged offenses from the 1990s that Salah was never charged with, including bank fraud and perjury on behalf of a Hamas leader then facing deportation, Mousa abu Marzook. "To sentence Mr. Salah on the basis of non-relevant, stale, and acquitted conduct would most assuredly result in an unreasonable sentence and promote disrespect for the law," Mr. Deutsch said in papers filed with the court.

It strikes me that if the prosecution wants to have someone sentenced based upon criminal conduct, they should have to prove that conduct in court and get a conviction, not come back after obtaining a conviction on some other offense, even a related one, and demand that the sentence be based upon a crime with which that individual was never accused, against which he was never permitted to defend himself, and of which he had never been convicted. That strikes me as loading the dice too much in favor of the prosecution when the Bill of Rights makes it clear that an individual should not be punished for a crime of which he was not convicted.

Posted by: Greg at 03:49 AM | Comments (6) | Add Comment
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When the white or the wealthy win, it is "Justice Denied" according to this editorial.

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

* * *

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

And when it comes right down to it, the decision cited -- some which I agree with, others which I do not -- don't really matter. What has the NY Times angry is that "corporations, the wealthy, [and] white people" won in them. Never mind that those decisions all had solid legal and/or Constituitonal reasoning to support them -- the NY Times does not like who won, so they cannot be legitimate. Indeed, it would appear that the editors believe that Lady Justice should rip off her blindfold and put her thumb on the scale to ensure that "corporations, the wealthy, [and] white people" even if the law and the Constitution are on their side.

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Posted by: Greg at 03:14 AM | Comments (2) | Add Comment
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It's enough to make you feel sorry for Ronnie Earle, the corrupt, partisan, rogue prostitute prosecutor in Travis County. The Texas courts have AGAIN ruled that you there has to be a law on the books before you can charge someone with violating it.

The Texas Court of Criminal Appeals today refused to reinstate criminal conspiracy charges against former U.S. House Majority Leader Tom DeLay and two co-defendants.

DeLay, R-Sugar Land, and political consultants Jim Ellis and John Colyandro were accused of conspiring to violate state election laws in the 2002 elections for the Texas House. But lower courts threw out the indictment on grounds that conspiracy to violate the election code was not a crime until 2003,

A majority of the Court of Criminal Appeals agreed.

DeLay, Ellis and Colyandro were charged with plotting to funnel illegal corporate campaign contributions to several Republican House candidates in 2002, when the GOP gained its first House majority of modern times.

According to his spokesman, Ronnie Earle and his staff are "reviewing" the decision. I don't know what there is to review -- the Court of Criminal Appeals is the highest court in the state when it comes to criminal law (Texas has, effectively, two supreme courts -- one for criminal cases and the other for civil cases). There is no federal issue at work here. The bogus charge is dead -- and with it, I suspect, any chance of getting a conviction on the other charges has disappeared, given that Earle's case against Delay depended first proving that he violated the conspiracy law.

It's no wonder, given his history of unsuccessful prosecutions of political opponents and prosecutorial overreaching, that Earle is regarded as the Texas equivalent of Mike Nifong.

Posted by: Greg at 04:57 AM | Comments (2) | Add Comment
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Dismiss the suit. Fine the plaintiff. Disbar the lawyer.

A Romeo woman is suing the manufacturer of Starburst Fruit Chews in Macomb County Circuit Court in Michigan for "severe and permanent personal injuries" she received while eating the candy.

The attorney for Victoria McArthur filed the lawsuit Monday against New Jersey-based Master Foods USA asking for more than $25,000. She alleges that when she bit into a yellow Starburst fruit chew in April 2005, she began to feel pain in her jaw, and then began having difficulty opening her mouth.

This should be dismissed on the legal theory of “Shit Happens!”

And if this case is not dismissed, my mom broke a tooth on a chocolate chip in an ice cream cone from Basking Robbins. Can she recover for the pain and suffering?

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And the plaintiff, seeking tens of millions for a pair of misplaced pants, gets not a penny.

The D.C. administrative law judge who sued his neighborhood dry cleaner for $54 million over a pair of lost pants found out this morning what he's going to get for all his troubles.
Nothing.

In a verdict that surprised no one, except perhaps the plaintiff himself, a D.C. Superior Court judge denied Roy Pearson the big payday he claimed was his due.
Delivering her decision in writing, Judge Judith Bartnoff wrote 23 pages dissecting and dismissing Pearson's claim that he was defrauded by the owners of Custom Cleaners and their "Satisfaction Guaranteed" sign.
"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands or to accede to demands that the merchant has reasonable grounds to dispute," the ruling said. " . . . The plaintiff is not entitled to any relief whatsoever."

Now it is possible that Pearson will not only lose his pants, but his shirt as well.

Financially, he could soon be on the hook for tens of thousands of dollars in legal fees incurred by the owners of Customer Cleaners. Attorneys for the Chungs have said they will seek such payments, as well as sanctions against Pearson for bringing the lawsuit. Bartnoff said in her ruling that she would decide those issues after both sides have filed their motions, counter-motions and legal briefs.
Professionally, Pearson could find himself out of his $96,000-a-year job as an administrative law judge for the District government.

This was clearly a case of abuse of the legal system, given the Chungs made repeated offers to go above and beyond the call of duty to make him whole, even offering early on in the case to give him more than enough money to replace the entire suit – after the judge insisted that the pants the owners produced for him (complete with the original tags that match his receipt) were not his despite matching the suit jacket.

PearsonÂ’s behavior will also likely cost him his appointed judgeship, because his term is up and his conduct has shredded any credibility he might have. After all, any man who can become so emotional over a pair of pants really doesn't have teh staility to be trusted to do justice, does he?

Posted by: Greg at 05:08 AM | Comments (1) | Add Comment
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That is the question that springs to mind in the aftermath of today’s decision in the “Bong Hits 4 Jesus” case. In allowing a public school to punish a student who unfurled a banner off school grounds based upon a perceived violation of the school’s policy against permitting advocacy of drug use, that is a reasonable question. Does Tinker v. DesMoines, the seminal case dealing with student First Amendment rights, survive this decision?

The U.S. Supreme Court ruled Monday that students can face limits on their rights to free speech.

Schools can rein in students' speech if it can be interpreted as promoting illegal drug use, Chief Justice John Roberts wrote in the court's opinion.

The case stemmed from an incident in January 2002 in which a crowd of students, townspeople and teachers gathered on a public street in Alaska across from a high school to watch the Olympic torch relay pass in front of them as part of a parade in support of the upcoming Winter Olympic Games.

Student Joseph Frederick wanted to make a statement about his First Amendment rights in front of the television crews covering the event. As the crowd thickened, he unfurled a banner with the message "Bong Hits 4 Jesus."

Frederick had been bothered in his senior year by the lack of attention to the issue of freedom of speech in the United States, and at his school in particular.

In briefs, Frederick argued that he was only trying to assert his rights and that the message was not an attempt to "spread any idea."

Now the opinion in the case is not yet up on the SCOTUS website, so I have not had a chance to read it yet. However, it might be that last little admission that made the difference. I wonder if a banner reading “Legalize Pot” and displaying the logo of NORML (National Organization for the Repeal of Marijuana Laws) might not have resulted in a different decision, given that it would have clearly been express advocacy on a public policy issue.

On the other hand, we have repeatedly seen a trend in recent years towards allowing public schools to ban even serious speech of a political and religious nature on the grounds of “offensiveness”. In practice, this has meant that schools have repeatedly been permitted to censor speech opposing legal abortion and questioning the morality of homosexuality, not to mention objecting to affirmative action programs. The basis for such bans have been policies against racial, sexual, and sexual orientation harassment and the desire of the school to promote an unambiguous message of inclusion (of everybody except those who dissent from the officials position on these contentious public policy issues).

As a result, this case leaves me very worried. Tinker held that students do not surrender their civil liberties at the schoolhouse gate. Could it be that we are reaching the point that students do, in fact, require that students surrender those liberties? Rather than recognizing (as in West Virginia v. Barnette in 1943) that no public official, high or petty, shall define what the orthodox and acceptable opinions shall be held and expressed, we are going to permit school boards and their employees to determine what speech on matters of public importance shall be considered acceptable?

Perhaps most importantly, this decision leaves me a very basic question – how does one prepare students to exercise their full rights as citizens of a free society in an educational setting where their civil liberties are regularly suppressed and their exercise punished? Are we instead educating them to be serfs or subjects rather than free men and women?

UPDATE: No sooner do I post this than the slip opinion in Morse v. Frederick appears on the SCOTUS site.

UPDATE II: Having read the opinion, it is clear that the holding of the court is that the War on Drugs overrides the First Amendment -- at least if you are a student at school. -- because Congress has declared anti-drug education to be a compelling government interest. This is not good.

UPDATE III: Justice Thomas, in his concurring opinion, indicates that he would overturn Tinker completely because it is not grounded in the Constitution. I guess he doesn't believe in the word "no law" in the First Amendment. This is particularly troubling due to the requirement that students attend school -- therefore resulting in the government mandating that the spend a part of the day in a setting in which their constitutional rights would be suspended.

UPDATE IV: Alito and Kennedy concur together in order to specifically affirm the central holding in Tinker.

JUSTICE ALITO, with whom JUSTICE KENNEDY joins, concurring.

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (STEVENS, J., dissenting).

They support Tinker, but still support what Justice Thomas calls an "ad hoc exception" to that case's central holding.

UPDATE V: Justice Breyer would have avoided the First Amendment question entirely and instead held for "qualified immunity" imposing a prohibition on the suit.

UPDATE VI: Fantastic dissent by Justice Stevens (joined by Justices Ginsburg and Souter) defends Tinker and points out that this case establishes a First Amendment exception previously rejected in American jurisprudence -- namely that mere advocacy of illegal behavior, absent an actual threat of imminent lawlessness, can be suppressed and punished.

Having read the opinions, I expect that the holding in this case will be used to justify the continued suppression of speech by religious and conservative students on issues like abortion, gay rights, and affirmative action, with schools arguing that the student speech on those matters undermines the mission of the school by contradicting the school policy on the matter. This will effectively further the notion that schools are indoctrination centers, not educational institutions.

MORE AT A Blog For All, Phi Beta Cons, Betsy's Page, Hot Air, Volokh Conspiracy, Stop the ACLU (Twice), Reason's Hit & Run, ProfsBlawg, Althouse, SCOTUS Blog (Twice)

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Posted by: Greg at 03:41 AM | Comments (2) | Add Comment
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This is standard end-of-term fare -- but there doesn't seem to be any realistic possibility of a justice retiring as the current term ends. Still, some want to speculate about what would happen if a justice did step down.

Retirement speculation focuses on Justices John Paul Stevens and Ruth Bader Ginsburg, both liberals. Stevens is 87 years old; and although Ginsburg is 13 years younger, her frail appearance has often prompted conjecture of poor health.

These justices have also taken to reading their dissents from the bench in recent months, a practice that Curt Levey, general counsel for the Judicial Confirmation Network, believes may signify their displeasure with being in the minority on several important cases.

Justice David Souter, 67, who was appointed by President George H. W. Bush, also is rumored to be considering retirement.

Jan Crawford Greenburg, author of the recent book, "Supreme Conflict: The Inside Struggle for Control of the United States Supreme Court," has written that the Bush administration has prepared a "short list" of possible nominees should a justice step down.

According to Greenburg, possible nominees include Janice Rogers Brown of the D.C. Circuit Court of Appeals; Priscilla Owen and Edith Brown Clement, both of the Fifth Circuit; Diane Sykes of the Seventh Circuit; Loretta Preska, a New York Federal District judge; and Raoul Cantero of the Florida State Supreme Court.

While all six are considered conservatives who would fit the president's judicial restraint criterion, Preska and Cantero are more junior than nominees over the past 20 years. All justices since Scalia's nomination in 1986 have been elevated from the Federal Court of Appeals.

Quin Hillyer, senior editor for the American Spectator and a regular contributor for the conservative blog ConfirmThem, told Cybercast News Service that he knows of "nobody who really believes there will be a new Supreme Court vacancy" at this time.

Levey agreed with Hillyer to a point. Though there are no rumors of an imminent retirement floating around Washington, he told Cybercast News Service Friday: "I'm not sure you can take that as an indication one way or the other. These upcoming vacancies are such a closely held secret, so rumors often have no correlation to the truth. When [former Justice Sandra Day] O'Connor retired, the conventional wisdom was that [former Chief Justice William] Rehnquist was to retire, not O'Connor."

If any of the three justices mentioned were to retire, the replacement would certainly be more conservative. And each of the potential replacements mentioned is well-respected -- and it is interesting to note the presence of a Hispanic and a black woman on the list.

More likely, in my eyes, is a death between now and the 2008 election -- and every day closer to that election contributes to the difficulty of getting ANT nomination through the Senate. The precedent? Lyndon Johnson's unsuccessful attempt to elevate Justice Abe Fortas to the center chair in 1968 -- although I doubt that any potential nominee would be as scandal-ridden as that Johnson crony.

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Yes, this is a British story -- but one has to wonder how often something like this happens in the United States, with fathers presumed to be dangerous and unfit and mothers presumed to have the best interests of their children at heart.

Every day there is some reminder of what Mark Harris calls 'the lost years'.

It could be his daughter's reference to a particular birthday party or a family holiday. It could be talk of exams sat, dentists visited or pop stars worshipped.

Each time it happens, he feels a stab of regret. 'I missed so much,' he reveals, with understandable bitterness. 'They took my daughter's childhood, her formative years, from me. Lisa is 20 now. I didn't see her between the ages of ten and 16. An awful lot happens in a child's life in that time, and I missed it all.'

Lisa missed a lot, too. She sits by Mark's side as he talks, a beautiful and assured young woman, but one still coming to terms with the fact that her father simply wasn't there when she needed him - and for an entire decade she did not know why.

'There were times when I needed a father figure - for reassurance and advice,' she says, with quiet restraint. 'There just wasn't one there.'

But the story of what happened to the Harris family isn't just another tragic case of broken homes and estrangement. Mark, Lisa and her two younger sisters were wrenched apart by the state.

Mark was not a feckless, irresponsible father. He did not walk out of his children's lives. Rather, he was ordered out by the family courts, and when he objected - insisting it was his right to see them - he was dealt with in a scandalous way.

Mark Harris went to prison for his girls. He was jailed for waving to them after a court order demanded he sever all contact. It was the most shameful chapter in an extraordinary ten-year custody battle.

He has now 'won' - today, two of his daughters live with him - only because they shared their father's determination to re-establish their relationship.

Sadly, even today, all it takes is a single accusation by a mother to get a father thrown out of the lives of their children. Even though the laws that created it are gone, the presumption of maternal custody is still strong, even in states where the law allows for joint custody. Even a hint of "abuse" (defined at a low level -- and often without any evidence to back the accusation) will be sufficient to deny custody to a father and impose strict limits on his visitation rights. I've seen it in too many cases.

Posted by: Greg at 12:13 AM | Comments (273) | Add Comment
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Imagine you are the passenger in an automobile pulled over by the cops. You open the door to get out of the car. What do you think will happen? We all know the answer to that question -- either via the speaker in the squad car, or at the point of a gun, you will be ordered to remain in the vehicle. It is standard police procedure.

So why on earth did the state of California think that the Supreme Court would hold any differently than they did in this case?

A unanimous Supreme Court ruled yesterday that passengers in vehicles pulled over by the police have the same rights as drivers to challenge the legality of the traffic stop when it results in an arrest.

The court said that passengers, like the driver, are "seized" by police when the vehicle they are traveling in is stopped and are thus covered by the Fourth Amendment and allowed to challenge unreasonable searches and seizures.

In the specific case before the court, a California passenger named Bruce Brendlin was charged with drug possession because of drug paraphernalia found in the car in which he was traveling. He argued that the discovery of the evidence was the result of an unconstitutional seizure because police lacked probable cause to make the traffic stop.

But the California Supreme Court said Brendlin had no grounds to make such a challenge because he had not been seized by the police and had given tacit approval to the search by staying in the car rather than leaving the scene.

The Supreme Court said that made no sense.

"We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission," Justice David H. Souter wrote for the court. During the case's oral arguments, several justices expressed that opinion.

Now California was one of only three states to have a court precedent that held passengers were not seized in such a situation -- proving that most state and federal judges have, at one time or another, been involved in a traffic stop and are able to recognize from experience what the evidence presented to them shows. That the decision would be unanimous was hinted at back in oral arguments, as several justices hammered the lawyer for the state of California.

Not that Mr. Brendlin will walk away from this case a free man -- the Supreme Court remanded the case back to the lower court in California to determine if there might be some other basis for allowing the evidence to be used -- such as the fact that as a felon on parole he had a more limited right against warrantless searches.

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What next? Court-ordered divorces? Court-ordered abortions?

A judge has ruled that a 24-year-old man is not allowed to have a girlfriend for the next three years.

The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on an ex-girlfriend.

His lawyer says the no-girlfriend order is the first of its kind that he has encountered.

Cranley is probably a scumbag, based upon the charges he pled guilty to – and no woman with a lick of sense should go near him. But at what point do we say “WHOA!” to a judge’s power to impose unusual conditions in a sentence – especially when they impact intimate personal relationships?

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Non-union members may be protected from compelled political speech at the hands of the organization of which they do not wish to be a member. Unfortunately, Washington state has already stripped these workers of their protection by changing the law in question.

States may force public sector labor unions to get consent from workers before using their fees for political activities, the Supreme Court said Thursday.

The court unanimously upheld a Washington state law that applied to public employees who choose not to join the union that represents them in contract talks with state and local governments. The workers are compelled to pay the equivalent of union dues, a portion of which the union uses for political activities.

ustice Antonin Scalia, writing for the court, said the law does not violate the union's First Amendment rights.

But the state's Democratic governor and Democratic-controlled legislature recently changed the law to eliminate the provision that was upheld Thursday, blunting the impact of the court ruling.

The narrow issue before the justices was whether, as the law formerly prescribed, employees must opt in, or affirmatively consent, to having some of their money used in election campaigns.

The justices said that a state could indeed require such consent. But there also is nothing to bar the state from putting the onus on nonmember workers to opt out, or seek a refund of a portion of their fees.

That, in effect, is what Washington law now requires after the recent change.

Shame on the Washington politicians who stripped workers of the right not to be forced to give money for political causes they reject. For that matter, shame on any politician who does not support giving workers freedom from compulsory unionism.

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If this speech is any indicator, it is likely that the Supreme Court's newest justice will be a great advocate for freedom of speech -- especially on the internet.

"I'm a very strong believer in the First Amendment and the right of people to speak and to write," Alito said in response to a question of "where's the line" on what can be posted on the Internet. "I would be reluctant to support restrictions on what people could say."

The newest justice, who was protective of speech rights as an appellate judge, added that "some restrictions have been held to be consistent with the First Amendment, but it's very dangerous for the government to restrict speech."

If his statement here is any indication, then expect him to support those seeking protection for their speech in the Court's two remaining First Amendment cases -- and for him to look askance at any government attempt to regulate internet political speech.

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I hate the outcome, but the majority made the right call on this one.

The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority.

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

And you know what -- the dissenters were correct -- the ruling ignores workplace realities. however, so does the statute in question, and judges are supposed to be bound by the statutes they examine. They are not a super-legislature which corrects the bad judgement and faulty craftsmanship of the lawmakers.

Captain Ed puts it very well -- and I wish i had written these words.

And the response to that for the Court should be: Write better laws. It is not the job of the Supreme Court to rewrite poorly-constructed legislation. Congress obviously intended for a short window of opportunity for these complaints, for whatever reason they had. The Supreme Court follows the law, unless the law is expressly unconstitutional. Fine-tuning dumb laws and badly-written legislation isn't the purview of the Court, but rather the responsibility of Congress.

Obviously, Congress needs to revisit this piece of legislation. Thankfully, we now have a Court which forces America's elected representatives to do their job, primarily by refusing to legislate from the bench. This gives hope that the last fifty years of judicial legislation have come to an end.

I hope Congress revisits this statute quickly and corrects the flaw in it. That will allow justice in the future, though it cannot undo the injustice caused by their previous sloppy work.

UPDATE: Why am I not surprised that the New York Times wants the court to serve as a super-legislature?

Posted by: Greg at 02:39 PM | Comments (1) | Add Comment
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Louisiana Supreme Court upheld a death sentence for the rape of an eight-year-old girl yesterday, setting up a real interesting constitutional challenge.

Louisiana's Supreme Court ruled Tuesday that a man may be executed for raping an 8-year-old girl, and lawyers say his case may become the test for whether the nation's highest court upholds the death penalty for someone who rapes a child.
Both sides say the sentence for Patrick Kennedy, 42, could expand a 1977 U.S. Supreme Court ruling that held the death penalty for rape violated the Eighth Amendment protection against cruel and unusual punishment. The high court said then that its ruling applied only to adult victims.
Attorney Jelpi Picou, director of the New Orleans-based Capital Appeals Project, said he will ask the Louisiana Supreme Court for a rehearing and, if rejected, will go to the U.S. Supreme Court.
"As horrid as (rape) is and as harshly as we believe it should be condemned, death is inappropriate in this case," Picou said.
Louisiana law allows the death penalty for the aggravated rape of someone less than 12 years old.
"He's the only person in the United States on death row for non-homicide rape," Picou said.

Now here’s where it gets interesting. Given the 1977 ruling, which effectively held that the Eighth Amendment to the Constitution had evolved to prohibit capital punishment for rape, the Louisiana statute and this decision would appear to be in direct contradiction of the controlling legal authority on the matter. However, as we all know, there exists the notion that the Constitution evolves and grows and changes over time, making it a rather fluid standard by which to determine the constitutionality of any state action. Indeed, that 1977 decision itself was a part of a series of “evolving standard” decisions related to the death penalty – for certainly the Framers of the Bill of Rights and those who ratified it did not view capital punishment as something to be reserved for homicide cases alone.

And therein lies the crux of the matter. If one concedes the legitimacy of the 1977 decision, then one must admit that the Constitution grows and changes over time. But if that is the case, then there is no legitimate basis for striking down the Louisiana statute and overruling the Louisiana high court. After all, one can legitimately argue that the Eighth Amendment has evolved again, and now allows capital punishment for some, if not all, sex crimes. After all, society’s attitudes towards and experiences with sex criminals over the last three decades have resulted in an entirely new way of viewing predatory perverts who sexually victimize children. A new consensus has emerged in our society about the need to harshly punish such individuals, and the Louisiana law is one example of that trend (at least six state have similar laws on the books or will shortly). If the standard can evolve and change in a liberal direction to protect violent child abusers from a just punishment, why can it not transform back to the original intent of those who wrote and adopted it? To argue that it cannot is to expose the illegitimacy of the “living Constitution” theory of “evolving standards” – and expose it as nothing more than legislating from the bench to impose liberal dogma that would never be accepted by We the People.

On the other hand, an originalist understanding of the Constitution and Bill of Rights would surely allow the state of Louisiana to impose death as a just punishment for violent pedophiles like Patrick Kennedy – and any other sex criminal as well.

In other words, there is no legitimate reason for the Supreme Court not to overturn the 1977 decision – other than a raw judicial arrogance that places the rights of rapists above justice for their victims.

Interestingly enough, Jonah Goldberg takes on the same philosophical issue in a pair of posts (related to a different context) at NRO’s The Corner.

Posted by: Greg at 08:42 AM | No Comments | Add Comment
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Louisiana Supreme Court upheld a death sentence for the rape of an eight-year-old girl yesterday, setting up a real interesting constitutional challenge.

Louisiana's Supreme Court ruled Tuesday that a man may be executed for raping an 8-year-old girl, and lawyers say his case may become the test for whether the nation's highest court upholds the death penalty for someone who rapes a child.
Both sides say the sentence for Patrick Kennedy, 42, could expand a 1977 U.S. Supreme Court ruling that held the death penalty for rape violated the Eighth Amendment protection against cruel and unusual punishment. The high court said then that its ruling applied only to adult victims.
Attorney Jelpi Picou, director of the New Orleans-based Capital Appeals Project, said he will ask the Louisiana Supreme Court for a rehearing and, if rejected, will go to the U.S. Supreme Court.
"As horrid as (rape) is and as harshly as we believe it should be condemned, death is inappropriate in this case," Picou said.
Louisiana law allows the death penalty for the aggravated rape of someone less than 12 years old.
"He's the only person in the United States on death row for non-homicide rape," Picou said.

Now here’s where it gets interesting. Given the 1977 ruling, which effectively held that the Eighth Amendment to the Constitution had evolved to prohibit capital punishment for rape, the Louisiana statute and this decision would appear to be in direct contradiction of the controlling legal authority on the matter. However, as we all know, there exists the notion that the Constitution evolves and grows and changes over time, making it a rather fluid standard by which to determine the constitutionality of any state action. Indeed, that 1977 decision itself was a part of a series of “evolving standard” decisions related to the death penalty – for certainly the Framers of the Bill of Rights and those who ratified it did not view capital punishment as something to be reserved for homicide cases alone.

And therein lies the crux of the matter. If one concedes the legitimacy of the 1977 decision, then one must admit that the Constitution grows and changes over time. But if that is the case, then there is no legitimate basis for striking down the Louisiana statute and overruling the Louisiana high court. After all, one can legitimately argue that the Eighth Amendment has evolved again, and now allows capital punishment for some, if not all, sex crimes. After all, society’s attitudes towards and experiences with sex criminals over the last three decades have resulted in an entirely new way of viewing predatory perverts who sexually victimize children. A new consensus has emerged in our society about the need to harshly punish such individuals, and the Louisiana law is one example of that trend (at least six state have similar laws on the books or will shortly). If the standard can evolve and change in a liberal direction to protect violent child abusers from a just punishment, why can it not transform back to the original intent of those who wrote and adopted it? To argue that it cannot is to expose the illegitimacy of the “living Constitution” theory of “evolving standards” – and expose it as nothing more than legislating from the bench to impose liberal dogma that would never be accepted by We the People.

On the other hand, an originalist understanding of the Constitution and Bill of Rights would surely allow the state of Louisiana to impose death as a just punishment for violent pedophiles like Patrick Kennedy – and any other sex criminal as well.

In other words, there is no legitimate reason for the Supreme Court not to overturn the 1977 decision – other than a raw judicial arrogance that places the rights of rapists above justice for their victims.

Interestingly enough, Jonah Goldberg takes on the same philosophical issue in a pair of posts (related to a different context) at NROÂ’s The Corner.

Posted by: Greg at 08:42 AM | No Comments | Add Comment
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I'm sure they will just love this guy in prison.

A man who was convicted last year of bringing two teenage runaways to Houston to work as prostitutes was sentenced Wednesday to nearly 22 years in federal prison.

Beaumont native George ``Unique'' Anderson III, 29, received a punishment more severe than the 15-year sentence prescribed under federal guidelines. U.S. District Judge David Hittner added seven years, bringing the sentence to 262 months.

Hittner considered that Anderson's recruitment of the girls exposed them to sexually transmitted diseases and that he was not prosecuted on allegations that he involved three other minors. After his release, he faces a lifetime of supervision and registration as a sex offender.

Anderson spent six years in federal prison for armed robbery before turning to the sex business.

He was accused of selling the sexual favors of a Florida girl and a Beaumont girl, ages 14 and 15, respectively. The girls were arrested on prostitution charges in 2005.

In the first federal conviction for child prostitution in the Southern District of Texas, a jury in September 2006 found Anderson guilty of two counts of sex trafficking of children.

The case was investigated by Project Innocence Lost, a special FBI unit in Houston that aims to rescue children working in the sex industry.

Those who victimize children sexually are scum -- and my great regret is that we have to pay for the care and feeding of this mutt for the next 22 years. A single shot to the back of the head on the courthouse steps immediately following conviction would have been a more appropriate punishment for this guy.

Posted by: Greg at 10:08 PM | No Comments | Add Comment
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This guy needs to be sanctioned, disbarred, and removed from the bench over this frivolous, vindictive lawsuit – asking for $67,000,000 over a misplaced pair of pants at the dry cleaners.

A Washington, D.C., dry cleaners says it's their business a longtime customer is taking to the cleaners.

A $10 dry cleaning bill for a pair of trousers has ballooned into a $67 million civil lawsuit.

Plaintiff Roy Pearson, a judge in Washington, D.C., says in court papers that he's been through the ringer over a lost pair of prized pants he wanted to wear on his first day on the bench.

He says in court papers that he has endured "mental suffering, inconvenience and discomfort."

He says he was unable to wear that favorite suit on his first day of work.
He's suing for 10 years of weekend car rentals so he can transport his dry cleaning to another store.

Oh, and by the way – the pants were found three days later, but Pearson has continued his persecution of the owners of the dry cleaning business, Jin and Soo Chung and their son. Oh, and by the way, the pants were found a week after they were dropped off – but Pearson refuses to accept them back, despite their having matching receipt tags and being the right size, color, and brand. Yet the suit continues.

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Do you, as a passenger in a stopped vehicle, have a right to get out and walk away? Or have you been "seized" by police -- therefore bringing into play a number of rights under the Bill of Rights?

Most people sitting in the passenger seat of a car that has been stopped by a police officer do not feel free to open the door and leave. Neither do most members of the Supreme Court, or so the justicesÂ’ comments indicated during an argument Monday on the constitutional rights of passengers in that familiar but uncomfortable situation.

The question of whether a “reasonable” passenger would feel free to leave was significant because that perception is a principal part of the court’s test for whether a “seizure” has taken place within the meaning of the Fourth Amendment, which prohibits unreasonable searches and seizures.

If a reasonable person would not feel constrained, then he or she has not been “seized” and has no basis for complaining that the police have violated the Fourth Amendment. The converse is also true: a person who reasonably feels detained by the police is entitled to challenge the validity of the police action and perhaps to keep illegally seized evidence out of court.

The surprisingly vexing question of the rights of passengers was brought to the Supreme Court by a California man who was a passenger in a car that a police officer stopped, ostensibly to investigate a possibly expired registration. The stop was later found to be improper because, earlier in the day, when the car was parked, the same officer had checked and learned that it was properly registered.

Given that the first thing police officers do when you try to open that door is order you to close it and remain in the vehicle -- at times with weapons drawn -- I don't think that there can be any other conclusion than to decide in favor of the fellow who was arrested and charged in this case -- though there might well be other bbases for upholding his conviction.

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Hillary Clinton had this reaction to yesterdayÂ’s partial birth abortion infanticide decision.

"TodayÂ’s decision blatantly defies the CourtÂ’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother."

Excuse me, Senator, but it is the proper place of the Supreme Court to determine that a precedent is wrong, and to overrule it.

Unless, of course, you have a problem with the Supreme Court’s 1954 decision in Brown v. Board of Education to “defy” the venerable precedent set in 1896 in Plessy v. Ferguson, which held that “separate but equal” segregation was not a violation the 14th Amendment.

So, Senator, do you believe that the Supreme Court has the right and obligation to overturn wrongly decided precedents – or do you believe that our public schools should still be segregated?

Or is it possible that your ignorance of the US Constituiton renders you unfit to be President -- or Senator, for that matter?

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Contrary to the wailings of the supporters of legalized abortion infanticide, this decision does not overturn the ill-considered and flawed precedent established by Roe v. Wade. Rather, it reinforces that precedent by recognizing that the government does have a compelling interest in limiting late-term abortions, which Roe itself indicates can be banned. And this decision does not even go that far, merely allowing the restriction of a single method of abortion infanticide that kills a child that has effectively been delivered.

he Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," Justice Anthony Kennedy wrote in the majority opinion.

The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.

Roe v. Wade allowed for regulation of second and third trimester abortions -- and a ban on the latter. How can the supporters of Roe complain?

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Sadly, though, this position was taken by only two of the three judges in the case.

A federal appeals court overturned the District of Columbia's long-standing handgun ban Friday, rejecting the city's argument that the Second Amendment right to bear arms applied only to militias.

In a 2-1 decision, the judges held that the activities protected by the Second Amendment are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.

The court also ruled the D.C. requirement that registered firearms be kept unloaded, disassembled and under trigger lock was unconstitutional.

Frighteningly enough, one judge did not simply want to allow wholesale violations of the Second Amendment – she effectively sought to strip the residents of the protections of the Bill of Rights!

Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the district because it is not a state.

Given that the Bill of Rights was initially designed as a check upon CONGRESSIONAL power, and that the DC city government is a creation of Congress and all its actions are subject to review/veto by Congress, the provisions of the Second Amendment actually are MORE applicable to the District than to the states (where it must be bootstrapped through the Fourteenth Amendment). For her to make such an argument is clear evidence of her fundamental incompetence for the bench.

Additional news coverage here.

OPEN TRACKBACKING AT Stop the ACLU, Outside the Beltway, Perri Nelson's Website, The Virtuous Republic, Shadowscope, Stuck On Stupid, The Amboy Times, Leaning Straight Up, Pursuing Holiness, Rightlinx, third world county, Woman Honor Thyself, stikNstein... has no mercy, , Pirate's Cove, Overtaken by Events, The Right Nation, The Pink Flamingo, Dumb Ox Daily News, Right Voices, Right Pundits, Blog @ MoreWhat.com, The Random Yak, A Blog For All, 123beta, Adam's Blog, basil's blog, Cao's Blog, Phastidio.net, The Bullwinkle Blog, The Florida Masochist, Jo's Cafe, Conservative Cat, Conservative Thoughts, Faultline USA, The Crazy Rants of Samantha Burns, The World According to Carl, and Blue Star Chronicles, thanks to Linkfest Haven Deluxe.

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Sadly, though, this position was taken by only two of the three judges in the case.

A federal appeals court overturned the District of Columbia's long-standing handgun ban Friday, rejecting the city's argument that the Second Amendment right to bear arms applied only to militias.

In a 2-1 decision, the judges held that the activities protected by the Second Amendment are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.

The court also ruled the D.C. requirement that registered firearms be kept unloaded, disassembled and under trigger lock was unconstitutional.

Frighteningly enough, one judge did not simply want to allow wholesale violations of the Second Amendment – she effectively sought to strip the residents of the protections of the Bill of Rights!

Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the district because it is not a state.

Given that the Bill of Rights was initially designed as a check upon CONGRESSIONAL power, and that the DC city government is a creation of Congress and all its actions are subject to review/veto by Congress, the provisions of the Second Amendment actually are MORE applicable to the District than to the states (where it must be bootstrapped through the Fourteenth Amendment). For her to make such an argument is clear evidence of her fundamental incompetence for the bench.

Additional news coverage here.

OPEN TRACKBACKING AT Stop the ACLU, Outside the Beltway, Perri Nelson's Website, The Virtuous Republic, Shadowscope, Stuck On Stupid, The Amboy Times, Leaning Straight Up, Pursuing Holiness, Rightlinx, third world county, Woman Honor Thyself, stikNstein... has no mercy, , Pirate's Cove, Overtaken by Events, The Right Nation, The Pink Flamingo, Dumb Ox Daily News, Right Voices, Right Pundits, Blog @ MoreWhat.com, The Random Yak, A Blog For All, 123beta, Adam's Blog, basil's blog, Cao's Blog, Phastidio.net, The Bullwinkle Blog, The Florida Masochist, Jo's Cafe, Conservative Cat, Conservative Thoughts, Faultline USA, The Crazy Rants of Samantha Burns, The World According to Carl, and Blue Star Chronicles, thanks to Linkfest Haven Deluxe.

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I'm a bit of a Supreme Court junkie -- and have been ever since I read Woodward and Armstrong's The Brethren as a teenager. And one of the realities that I have long struggled with is that the dry focus on precedents and case law obscures the individual appellants and respondents in the cases -- the folks whose lives are the fodder for the decisions rendered by the justices.

The Washington Post does a nice article on one of the individuals at the heart of one of this year's cases, Ledbetter v. Goodyear Tire and Rubber Company.

Lilly M. Ledbetter says she almost stopped breathing when she heard her name called that day, her eight-year battle over alleged pay discrimination finally reaching the ultimate legal forum, the U.S. Supreme Court.

"We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company," Chief Justice John G. Roberts Jr. announced.

The odds are akin to being struck by lightning, having your case plucked from the thousands of others who have vowed, like you, to take the fight all the way to the Supreme Court. And then you find it's not so much about you anymore.

It was the only time that November morning that any of the nine justices spoke Lilly Ledbetter's name.

When she thought back last week on the arguments before the court, she remembered them as not being much about her complaints about Goodyear, or Goodyear's complaints about her. "Except when my lawyer got up, it [seemed to be] based on changing the law somewhere down the line," she said. "That's what it boils down to, I guess. It tends to leave the person out."

And Ledbetter has it exactly right, as a couple of the justices have publicly acknowledged.

At a forum late last year, Justices Antonin Scalia and Stephen G. Breyer, usually the court's yin and yang on matters of constitutional interpretation, agreed that that is how it should be. They were asked whether their duty was to provide justice for those who came before the court or simply to interpret the law.

"The point of the law is to satisfy a human desire for justice," Breyer explained, but he added: "You don't necessarily get to that end by simply trying to look for what is the intuitively nicer result in each case."

Scalia was blunter. "By the time you get up to an appellate court -- and lawyers ought to learn this -- I don't much care about your particular case," he said. "I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases."

And that is as it should be, as cold and hard-hearted as it might sound. Court decisions at this level are about the law, since the facts have long since been vetted at the trial court level. These cases are about the broad principles and not the individual circumstances that are impacted by them. Indeed, the justices at this level serve as legal technicians.

But it is still important to remember that there are faces that go with these cases -- and I thank the Washington Post for reminding us of that.

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We live in an age in which we can turn on the television and see presidential speeches and White House press briefings. We can turn on the television and watch the floor debates of both the House and the Senate, as well as committe hearings from both bodies. Yet we cannot watch some of the most important events in government -- oral arguments before the Supreme Court -- because the justices steadfastly refuse to agree to let cameras into the courtroom. Frankly, this needs to change.

With Supreme Court justices becoming increasingly comfortable in the spotlight, Sen. Arlen Specter says it might finally be time for their close-ups.

Spector (Pa.), joined by two other Republican and three Democratic senators, has refiled his legislation to require the court to televise its proceedings. Although getting the rest of Congress to agree still seems very much a long shot, Specter said there is a big difference between now and last year, when the bill did not reach the Senate floor.

"I think the frequency with which the justices are appearing on television can be a very significant factor" in changing minds in Congress, Specter said in an interview.

There is no doubt that the once-cloistered justices are making themselves more available to the media, giving on-the-record interviews with newspapers and magazines and popping up on television. Chief Justice John G. Roberts Jr. starred in PBS's recent look at the history of the court.

Specter, former chairman of the Judiciary Committee and sometimes a sharp critic of the court, said the individual justices have been "extensively televised."

Now honestly, I think Specter's argument here is hogwash -- the fact that justices appear on television outside of the courtroom does not argue for cameras in the courtroom. However there is a better reason -- increasing the familiarity of the American public with the activities of the most secretive of our three branches of government.

Supreme Court proceedings generally consist of oral arguments by attorneys and announcements of decisions by the justices. There are no witnesses to be intimidated. Lawyers would play to the camera at their peril, as their audience would be the nine individuals seated before them.

On the other hand, this development would provide us with a historical record of the great cases of American history, as well as a deeper understanding of the court. And the confidentiality of the deliberative aspects of the high court's activities -- the conferences in which cases are discussed and the circulation of draft opinions - would be maintained under Specter's proposal.

Frankly, I see nothing to lose and everything to gain if cameras are installed in at the Supreme Court.

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Congress, not cities, regulates interstate commerce. This law, while intended for a noble purpose, must therefore be struck down.

The fate of a District law banning rail shipments of hazardous materials was back before a federal judge yesterday, nearly two years after the prohibition was enacted by the D.C. Council.

The law, which was prompted by fears that the Capitol and other landmarks are vulnerable to a terrorist attack on rail lines that skirt downtown, was quickly challenged in 2005 by CSX Transportation Inc., which controls the key freight routes through the District. The law has never taken effect. Yesterday, a judge heard arguments to determine whether it ever will.

If this law is permitted to stand, it would be the first of many such regulations that would have the effect of rendering entire segments of track unusable by railroads, or forcing the massive rerouting of shipments to meet with each little town’s ordinances. Sorry – that goes against the fundamental constitutional order of things, assuming the courts properly construe the Constitution.

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On one level, I have to agree with Justice Scalia on this point – but on another level, I think he is dead wrong.

During an appearance at Iona College, Scalia said Florida's handling of the recount, which was the key to determining whether Republican George W. Bush or Democrat Al Gore became president, was a clear violation of the Constitution's guarantee of equal protection under the law.

"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia told an audience of 700 who attended his speech at the Mulcahy Gymnasium.

Scalia, who was appointed to the court in 1986, noted that seven members of the court agreed that Florida's handling of the recount represented a violation of the equal protection clause. The controversial part of the ruling - which caused a 5-4 split on the court - was the decision that there was not enough time for Florida to develop proper standards to count the ballots.

"The whole world was laughing at the world's greatest democracy," Scalia said "They could not complete an election."

Scalia's comments about perhaps the most controversial decision of his tenure came during a brief question-and-answer period that followed his half-hour speech. He let it be known that it's time for people to stop rehashing the decision.

"It's water over the deck - get over it," Scalia said, eliciting a loud burst of laughter from the audience.

Now as a practical matter, I think that Antonin Scalia is correct – over six years after the fact, the time is long-since past for folks to let their hate and vitriol fall by the wayside. On the other hand, I think there is precedent value in this case that is important, and it therefore needs some rehashing. After all, the equal protection analysis of the case does have serious ramifications for future election cases.

There is also a comment quoted at the end of the article that I think needs to be dealt with – a comment from a young man in the audience, not Justice Scalia.

Scalia also savaged the notion of the Constitution as a living document, noting the problem with that view.

"The Constitution is not a living organism, for Pete's sake," Scalia said. "It's a legal document."

Accepting a living Constitution, Scalia said, means, in reality, giving the governing majority the ability to constantly rewrite the document to meet society's views of the day and add new rights and new governmental powers that were never intended by the authors. He warned that such a practice is not healthy for a democracy.

"Freedoms will be eliminated just as freedoms will be added," Scalia said.
The best example of the living-Constitution argument, Scalia said, is the evolving view of the 8th Amendment, which forbids cruel and unusual punishment.

At the time the Constitution was adopted, he explained, the death penalty was a commonly accepted punishment but now it is argued as unconstitutional.
Abortion, Scalia noted, is another issue that is being framed in constitutional terms when it is better handled by legislatures.

On this point, Scalia is 100% correct. Legal documents are supposed to be static, and interpreted according to the original language and intent of those who entered into the contact. After all, would you sign a mortgage or a contract that was a “living document” that evolved and changed over time in ways that you could not foresee? Of course not.

There is a process for making changes to the terms of legal documents – but it isn’t “make it up as you go along”, which often appears to be how certain justices approach some elements of the US Constitution. That is the amendment process, one which is little used and often neglected as activist judges simply recast and reconstrue the language that is already there in ways antithetical to the historical understanding and common-sense reading of the document.

And then there is this comment, made by one of the students in attendance, that I think needs to be dealt with.

"I think he was a little biased," said Josh O'Brien, a junior at Iona who is majoring in political science. "He showed a conservative bias. ... I think that as the times change, the laws also have to change."

O’Brien simply misunderstands the view that Scalia and the originalists have of the law and the Constitution. I know of no one who holds to a strict constructionist view of the Constitution who disagrees with the idea that the law must change as the times change. Where we part company with the “living document” proponents is HOW the law and the Constitution must be changed. Simply put, we believe that the process laid out in Article V should be followed. The alternative makes constitutional law the equivalent of quicksand, with no certain meaning to any provision.

UPDATE: Looks like Kennedy and O'Connor have also spoken on the case.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

* * * O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I do have one problem with this new article, though -- while it repeatedly argues that the case was decided 5-4, that was not the case. The decision was 7-2 that the recount as conducted under the supervision of SCOFLA (Supreme Court of Florida) was unconstitutional. The 5-4 portion regarded the remedy -- whether there should be another recount or not. Unfortunately, the appropriately named SCOFLA had run the clock out in such a way as to make a recount impossible under the constitutional and statutory deadlines that existed under Florida and federal law.

Posted by: Greg at 12:03 PM | No Comments | Add Comment
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On one level, I have to agree with Justice Scalia on this point – but on another level, I think he is dead wrong.

During an appearance at Iona College, Scalia said Florida's handling of the recount, which was the key to determining whether Republican George W. Bush or Democrat Al Gore became president, was a clear violation of the Constitution's guarantee of equal protection under the law.

"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia told an audience of 700 who attended his speech at the Mulcahy Gymnasium.

Scalia, who was appointed to the court in 1986, noted that seven members of the court agreed that Florida's handling of the recount represented a violation of the equal protection clause. The controversial part of the ruling - which caused a 5-4 split on the court - was the decision that there was not enough time for Florida to develop proper standards to count the ballots.

"The whole world was laughing at the world's greatest democracy," Scalia said "They could not complete an election."

Scalia's comments about perhaps the most controversial decision of his tenure came during a brief question-and-answer period that followed his half-hour speech. He let it be known that it's time for people to stop rehashing the decision.

"It's water over the deck - get over it," Scalia said, eliciting a loud burst of laughter from the audience.

Now as a practical matter, I think that Antonin Scalia is correct – over six years after the fact, the time is long-since past for folks to let their hate and vitriol fall by the wayside. On the other hand, I think there is precedent value in this case that is important, and it therefore needs some rehashing. After all, the equal protection analysis of the case does have serious ramifications for future election cases.

There is also a comment quoted at the end of the article that I think needs to be dealt with – a comment from a young man in the audience, not Justice Scalia.

Scalia also savaged the notion of the Constitution as a living document, noting the problem with that view.

"The Constitution is not a living organism, for Pete's sake," Scalia said. "It's a legal document."

Accepting a living Constitution, Scalia said, means, in reality, giving the governing majority the ability to constantly rewrite the document to meet society's views of the day and add new rights and new governmental powers that were never intended by the authors. He warned that such a practice is not healthy for a democracy.

"Freedoms will be eliminated just as freedoms will be added," Scalia said.
The best example of the living-Constitution argument, Scalia said, is the evolving view of the 8th Amendment, which forbids cruel and unusual punishment.

At the time the Constitution was adopted, he explained, the death penalty was a commonly accepted punishment but now it is argued as unconstitutional.
Abortion, Scalia noted, is another issue that is being framed in constitutional terms when it is better handled by legislatures.

On this point, Scalia is 100% correct. Legal documents are supposed to be static, and interpreted according to the original language and intent of those who entered into the contact. After all, would you sign a mortgage or a contract that was a “living document” that evolved and changed over time in ways that you could not foresee? Of course not.

There is a process for making changes to the terms of legal documents – but it isn’t “make it up as you go along”, which often appears to be how certain justices approach some elements of the US Constitution. That is the amendment process, one which is little used and often neglected as activist judges simply recast and reconstrue the language that is already there in ways antithetical to the historical understanding and common-sense reading of the document.

And then there is this comment, made by one of the students in attendance, that I think needs to be dealt with.

"I think he was a little biased," said Josh O'Brien, a junior at Iona who is majoring in political science. "He showed a conservative bias. ... I think that as the times change, the laws also have to change."

O’Brien simply misunderstands the view that Scalia and the originalists have of the law and the Constitution. I know of no one who holds to a strict constructionist view of the Constitution who disagrees with the idea that the law must change as the times change. Where we part company with the “living document” proponents is HOW the law and the Constitution must be changed. Simply put, we believe that the process laid out in Article V should be followed. The alternative makes constitutional law the equivalent of quicksand, with no certain meaning to any provision.

UPDATE: Looks like Kennedy and O'Connor have also spoken on the case.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

* * * O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I do have one problem with this new article, though -- while it repeatedly argues that the case was decided 5-4, that was not the case. The decision was 7-2 that the recount as conducted under the supervision of SCOFLA (Supreme Court of Florida) was unconstitutional. The 5-4 portion regarded the remedy -- whether there should be another recount or not. Unfortunately, the appropriately named SCOFLA had run the clock out in such a way as to make a recount impossible under the constitutional and statutory deadlines that existed under Florida and federal law.

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Here is a historical tidbit on the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist. It seems that the pair wanted to avoid the possibility of a double vacancy – and that Rehnquist’s decision to stay forced O’Connor out. But then again, she wanted to go, given her husband’s slow descent into the twilight world of Alzheimer’s disease.

By June, with only weeks left in the term, O'Connor went to visit her old friend again. Even though he had been coming to the court every day, she, like the other justices, still believed he would be retiring soon. She'd begun to think she would spend one more year on the court before retiring herself.

She knew that Rehnquist believed emphatically that the court shouldn't have two retirements at the same time. She guessed that he would imminently announce his retirement, allowing her to stay one more year.

She guessed wrong.

He stunned her by telling her: "I want to stay another year."

O'Connor was caught off guard. Rehnquist's implication was clear: She must retire now or be prepared to serve two more years. Rehnquist was unilaterally deciding both of their fates.

Now these two had known each other for over half a century, dating back to Stanford Law School. I believe IÂ’ve even read, though I do not remember where, that at some point the two future justices may have dated once or twice. They were certainly more than colleagues, they were friends.

And that leads me to wonder. Was Rehnquist’s decision one predicated upon personal stubbornness and a refusal to face his on mortality? Or was it a personal sacrifice by one friend on behalf of another – trying to stick it out so that O’Connor could have that last bit of quality time with the man she loves, despite Rehnquist’s own infirmity? I don’t know, but I’d like to believe it was the latter. And while his decision resulted in that very double vacancy that the Chief Justice wished to avoid, I believe the result is a stronger Supreme Court.

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It is official – not only can the government take your property and give it to a private developer, private developers with political clout can now legally engage in extortion against land and business owners using the threat of eminent domain action.

The Supreme Court on Tuesday bypassed an opportunity to revisit or limit its much-disputed 2005 ruling that upheld governmental power to use eminent domain to foster economic development.

Without comment, the justices declined to hear a case from Port Chester in Westchester County, N.Y., that challenged the villageÂ’s use of eminent domain in a dispute between a property owner and a private company designated as the developer of a run-down 27-acre urban renewal area.

The redevelopment plan, adopted by Port Chester in 1999, envisioned a retail area that would include a drugstore. In 2002, the developer, G & S Port Chester LLC, announced that a Walgreens store would be part of the project. But Bart Didden, the owner of the parcel where the store was to sit, had by that time separately entered into a lease with a competing drugstore chain, CVS.

After negotiations between Mr. Didden and G & S Port Chester failed, the village sided with its developer and notified the property owner that his half-acre parcel would be taken by eminent domain and made available for the developer’s use. Mr. Didden and his business partner, Domenick Bologna, brought a lawsuit in 2004 arguing that Port Chester’s condemnation of the property was not for a true “public use,” the phrase that identifies the constitutionally permissible use of the eminent domain power, but rather for the private financial benefit of the developer.

In other words, the government can now pick and choose who is the economic winner when there is a set redevelopment plan. There was already a drugstore slated to go on that parcel – the government simply decided that it would take the land and give it to G & S Port Chester to build a drugstore unless G & S Port Chester got a financial stake in already existing drugstore project. Where is the public use or benefit of this decision?

The failure to take and decide this case merely reinforces the question I asked after Kelo – does private property still exist in the United States, despite the guarantees of the United States Constitution?

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Signaling that the university recognizes the dubious nature of the charges against them, two of the students charged in the Duke Rape Frame-Up Case have received letters from a senior administrator at Duke University welcoming them back to campus as students in good standing for the spring semester.

Duke University will allow two former lacrosse players accused of sexual assault to return to campus as students in good standing.

The university informed Reade Seligmann and Collin Finnerty in letters dated Jan. 2 that they were welcome to come back to Duke for the coming semester. They they had been placed on interim suspension and then administrative leave of absence. The third accused player, David Evans, graduated from Duke last year.

It's unclear whether Seligmann and Finnerty will accept Duke's offer to return this semester. The next court hearing in the case is scheduled for Feb. 5.

The gesture reflects the university's new stance toward the three former players. After rape charges were dropped in December, Duke President Richard Brodhead issued a statement calling into question Durham District Attorney Mike Nifong's handling of the case and the fact that kidnapping and sexual assault charges remain against the three men.

In a letter to Seligmann, Larry Moneta, vice president for student affairs, wrote: "As circumstances have evolved in this extraordinary case, we have attempted to balance recognition of the gravity of legal charges with the presumption of your innocence. Now with the approach of a new term, we believe that circumstances warrant that we strike this balance differently."

The return of these young men to school is a complicated question. Both are still facing serious charges, and could stand trial during the coming semester. Would their return to school be an additional complication as they prepare to defend themselves against the increasingly flimsy charges brought by DA Mike Nifong? Will they really be welcome on a campus where a large group of professors have publicly issued a statement declaring them guilty – a statement that has never been retracted? Given the race-baiting engaged in by Nifong and others, will these young men be physically safe in Durham? Frankly, I’d be surprised to see either of them return prior to their full acquittal or the dropping of all charges – and even then I wonder if it would be more appropriate for them to make a clean start somewhere else.

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The Duke Lacrosse Rape Frame-Up Case continues to go very badly for hack prosecutor Mike Nifong. Now even his peers are urging him to step aside so that justice can be done in this case.

In yet another moral blow to Durham County District Attorney Mike Nifong, the North Carolina Conference of District Attorneys called for the prosecutor to step down from the Duke lacrosse case.

The group, which represents district attorneys from across North Carolina, said in a statement that "it is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution."

"It's extraordinarily unusual and it means a great deal," said Joshua Marquis, a district attorney in Clatsop County, Ore.

The district attorney group also called for the case to be reassigned and handed over to "another prosecutorial authority."

The statement was prompted by charges of ethics violations against Nifong filed Thursday by the North Carolina bar. Those allegations accuse Nifong of making inappropriate comments about the case in a series of press interviews early in the proceedings.

The recently filed ethics charge have created a true conflict of interest for Nifong. Dropping all charges and conceding the obvious innocence of the accused would be an implicit concession that he had engaged in the sort of wrong-doing of which he is accused, and so it is virtually impossible for any prosecutorial decision he makes from this point forward to not be seen as tinged with self-interest.

And speaking of those ethics charges brought by the NC Bar against Nifong, there could yet be even more, according to Time magazine.

The Dec. 28 ethics charges are expected to be expanded when the state bar's grievance committee meets again Jan. 18. Like a grand jury, the committee meets periodically; the current ethics charges stem from its most recent meeting in October and cover public statements Nifong made about the case last March and April. At its next meeting, the committee will deal with revelations from a Dec. 15 court hearing in which the state's DNA expert admitted he and Nifong agreed to keep secret from the defense early DNA results showing no Duke lacrosse player could be implicated in an attack upon one of two exotic dancers hired for the March 14 house party.

In other words, some of Nifong's most egregious misconduct in this case had not even been exposed when these charges were drawn up, and so there is a whole lot more to delve into.

And that doesn't even get into the question of possible criminal charges against this hack DA.

Posted by: Greg at 02:18 AM | No Comments | Add Comment
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