Gingrich gives his opponents a quote to gasp about: "There is no Supreme Court in the American Constitution."

Just a few days ago, I was talking about a certain type of clever remark:

A witty, engaging speaker will say something surprising and counterintuitive, but then flesh it out or add one more point, and then it clicks. Of course, if you have opponents, you've got to anticipate what they'll do with the little slice of what you said that seems head-slappingly idiotic. So it may not be so smart to be smart like that. 

The context was David Plouffe saying "people won’t vote based on the unemployment rate." And now, here comes Newt Gingrich with an even juicier example of the seemingly stupid line that wakes up the audience and draws them in to hear the whole context but that also gives opponents an easy way to use the remark to make you look like an idiot.

Here's the quote, in it's full context (transcribed in a post by Ian Millhiser at Think Progress):

In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.

It's obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches. He's stressing the checks on the judicial branch, which include Congress's power to make "Exceptions and... Regulations" to the Supreme Court's jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It's what we conventionally talk about along with Marbury v. Madison. It's not the slightest bit edgy, believe me.

Watch the video at the Think Progress link. You can hear the stress on "Supreme" in "There is no Supreme Court in the American Constitution." He knows there's a Supreme Court. It's just not, in fact, supreme over everything. The Supreme Court can strike down statutes and order members of the Executive branch around to a certain extent, but it is also subject to jurisdiction cutbacks, new appointments, impeachment, and constitutional amendments. And the question of what the Constitution really means survives independently of the case law. We are free to argue that the Court got it wrong, to try to get cases overruled, and so forth. And there are many places where the Court hasn't spoken yet or may never speak, in which case there are important responsibilities elsewhere in government for other individuals to say what the Constitution means.

Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

Doesn't that just make you want to think of a rule that does not require an exception to avoid ridiculousness? Then aren't you intrigued by the paradox that you will have just come up with an exception to her rule (about the need for exceptions to avoid ridiculousness), and that will simultaneously support and undercut her rule?

Or you can just think about whether there should be a clear test for determining a corporation's "principal place of business" for the purposes of §1332 diversity jurisdiction or whether it would be better to use a multi-factor approach?

Danforth v. Minnesota — a correction.

I've made a correction to this old post about Danforth v. Minnesota, the case about the retroactivity of federal constitutional law doctrine in state courts. In the post, I quote a passage that is from the state's brief, and I misidentified it as coming from the state court. The court sided with the state, and, for reasons I explain in that post and this later one about the oral argument in the U.S. Supreme Court, I think the state court got it wrong. But the court did not write the passage I found so interesting (though "a jumble" and "poorly written").

When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:

Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.

(Laughter.)

JUSTICE SCALIA: My position is we have asserted all that power in the world.

(Laughter.)

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

UPDATE: Orin Kerr comments on this post:

In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.

I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.

That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.

I don't think he wants to sign on to the notion of a living constitution.

On the other hand, I agree with Ann about the federalism point.

Thanks!

Can state courts choose to apply new rules of federal constitutional law retroactively?

The Supreme Court hears oral argument today in Danforth v. Minnesota, which is a fascinating federalism case. Under Teague v. Lane, federal courts cannot grant state prisoners a writ of habeas corpus when the attack on the work of the state court is based on a rule of constitutional law that was announced after the conviction became final. (There are 2 exceptions to that doctrine that don't matter here.) The question in Danforth is whether state courts can grant prisoners relief based on the new rules that the federal court can't apply.

The Minnesota Supreme Court said no, in reasoning that I think is wrong. From the opinion (which I don't have a link for). [CORRECTION: This passage is not from the opinion but from the brief for the state of Minnesota (PDF). Here's the state court's opinion (PDF).]

If the Griffith-Teague retroactivity doctrine did not apply in state courts, supremacy and uniformity problems would be magnified because federal review of state post-conviction proceedings – in both habeas proceedings and direct review by this Court – would be unavailable for decisions that do not follow Teague. The lack of federal review deprives the state decision of constitutional legitimacy. Even if not Teague barred, this Court’s review would ratify state created federal constitutional disparity into its decisions by reviewing the claims of similarly situated collateral review defendants according to different constitutional standards.

The Griffith-Teague doctrine also vindicates federal constitutional values of finality and federalism. Finality interests identified in Teague are not unique to federal habeas review. They are present and protected by Teague in the context of federal collateral review of federal convictions as well as in review by this Court of federal issues arising in state collateral proceedings. Teague also serves the comity interest of validating the reasonable interpretation of existing federal constitutional rules made by state courts – an interest not limited to the federal habeas context. Whether a federal or state judge asserts a new federal constitutional rule to invalidate a reasonable state court interpretation of a federal constitutional rule the state finality interest is subverted.

Against strong supremacy, judicial integrity, finality, and federalism values, Petitioner asserts a state interest in selectively creating enhanced or preferred federal constitutional rights that apply only to citizens of that state. This is not a legitimate state interest. If a state wishes to create preferred rights for its citizens, respect for the political rights of the citizens of the state require a state do so under its own state law subject to the state legal and political constraints attendant to state law decisions. Anything less simply cloaks state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens.

These may be reasons why a state court might want to adopt nonretroactivity as a matter of state law, but that doesn't explain why federal law requires state courts to avoid applying the current rules of federal constitutional law.

What the federal courts can do is governed by the federal habeas statutes, which the U.S. Supreme Court interpreted in Teague. Everything the Court said about comity and finality in Teague related to the way federal court should treat state courts (which conducted the original trial before the new rule was announced). Why should this limit on federal habeas jurisdiction carry over to the state courts if the state, under its own law, chooses to revisit cases that have become final but were decided under the old rule of constitutional law?

Danforth was tried for sexual abuse of a child whose testimony was presented on videotape, something the Supreme Court, in Crawford v. Washington, said violates the Sixth Amendment right to confront the witnesses against you. But since Crawford was decided after Danforth's conviction became final, he can't ask a federal court, on habeas, to give him a new trial in which he has the opportunity to confront the witness. Should the state therefore be prevented from offering him that relief? I think not.

The Minnesota Supreme Court's opinion The brief for the state is a bit of a jumble of ideas, and it is poorly written. (How do you ratify disparity into something?) But there is some sense to the concern that a state court will "cloak[] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

The idea is that state judges who have a broader conception of rights than the citizens of the state will decide cases the way they like and make it seem that federal law requires it. But federal law does require live testimony in the situation that Danforth encountered. It is simply the case that under federal jurisdiction law, the federal courts won't force the state courts to redo the trial. If the state courts were to apply the federal right anyway, they would be applying a real federal right and following state law jurisdiction rules. If the citizens of the state don't like that, they can change that jurisdiction law.

There are some more complicated angles to this, and I will write more after the oral argument becomes available.

ADDED: Scotusblog reports on the oral argument:

The Court... debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.

I'll have more when I've read the transcript of the argument. This case concerns something I've been writing about since the mid-80s, and, though the Minnesota Supreme Court says things very similar to what I've been teaching in my Federal Courts class for more than 20 years, I disagree adamantly with its conclusion. I realize many of my readers may think this is obscure and overcomplicated, but to me, it is perhaps the most interesting case I've seen in 20 years.

"Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons."

Beldar reads the Washington Post and paraphrases.

Elsewhere on BeldarBlog -- where baiting Senators is a way of life -- Beldar is begging Senator Kerry to sue him:

I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

I love the part about diversity jurisdiction. We need more blogging about jurisdiction....

Yale law students sue over "the scummiest kind of sexually offensive tripe" at AutoAdmit.

WSJ Law Blog has the story:

In the latest chapter of the AutoAdmit.com scandal, two female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum....

The law students aren’t named in the suit — filed yesterday in U.S. District Court in Connecticut — which claims the defendants violated copyright infringement by posting photos of one of the women without her permission, falsely posing as the women in posts on the site, and engaging in “unreasonable publicity given to another’s life; publicity that places another in a false light before the public; intentional infliction of emotional distress; negligent infliction of emotional distress; and defamation.”

The complaint asks for judgment against the defendants for unspecified damages as well as punitive damages in the amount of $245,400. Besides Ciolli, named defendants include individuals with pseudonyms such as “Pauliewalnuts” and “The Ayatollah of Rock-n-Rollah.”

“It’s bringing the right to protect yourself against offensive words and images into the 21st century,” said David N. Rosen, a New Haven, Conn.-based attorney for the students and a senior research scholar in law at Yale Law to the Law Blog in an interview. “This is the scummiest kind of sexually offensive tripe,” he said of the postings about the women on AutoAdmit.

So this is the 21st century? Where courts award punitive damages for offensive words and pictures? Isn't "the scummiest kind of sexually offensive tripe" exactly what we always used to say people had to put up with in a free country? Man, that was so 20th century!

ADDED: Over at AutoAdmit, they're trashing the complaint.

MORE: Glenn Reynolds: "Stuff that offends dumb hicks in the heartland is constitutionally protected. Stuff that offends Yale Law Students must be stamped out!" Yeah, really.

And in the comments Bruce Hayden raises a damned good question about the copyright claim (which is the whole basis for federal subject matter jurisdiction in the complaint (PDF)): "Copyright protects original expression. Thus, the photographer would be the copyright owner, not the subject of the photographs." I'm not a copyright expert, and I'm not writing this as anyone's lawyer -- I'm retired from the practice of law -- but it looks to me as though the copyright claim is completely frivolous, and all the other claims are state law claims. Subject matter jurisdiction is based only on federal question jurisdiction, not diversity of citizenship, so all those state law claims are in federal court because they are supplemental to the federal claim. Under § 1367(c), then, when the copyright claim is tossed out, the whole case should be dismissed. Unless our fearless lawyer refiles in state court, we'll never get to hash out all the interesting free speech issues. But then, this case should never have been filed. So, much as I'd like to see a strong precedent protecting offensive speech, it will be good to see this nipped in the bud.

AND: The complaint does assert that one of the plaintiffs owns the copyright in the photographs that are the basis of the copyright claims. It appears that the plaintiff acquired the copyrights in preparation for the lawsuit, and I'll leave it to copyright experts to say more about that, but the question I want to raise is: If the plaintiff(s) did not own the copyrights at the same time as the other incidents alleged in the complaint, how can the copyright infringement be part of the same constitutional case as all the state law tort claims under §1367(a)? That is, how can the federal court have jurisdiction over anything but the copyright claims?

ONE MORE THING: This post originated as a response to the lawyer's phrase "the scummiest kind of sexually offensive tripe." I want to see "the scummiest kind of sexually offensive tripe" protected. That doesn't mean I support defamation or the revelation of private facts or impersonating someone by name on a website. Those are different matters, and I don't mean to express an opinion as to whether any torts like that are alleged in the complaint. I just want to remind people to keep our free speech bearings. We have lost our way if we've forgotten the importance of protecting speech that is "scummy" and "offensive" and "tripe."

ADDED: Eugene Volokh has a detailed post on many of the fine points of liability.

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

... and finding that nothing interesting was said? It's so predictable. Sometimes I wonder why I have the Google Alerts I have. Actually, I have one for "Rehnquist" that has malfunctioned and become undeletable -- kind of like life tenure, but for an undying reputation.

My Google Alerts are meant to feed me bloggable nuggets. I have some that reliably turn up good material. But the ones for Supreme Court justices regularly turn up stories like this. I'm not picking on Ruth Bader Ginsburg here. But when justices go out and give speeches at law schools they say anodyne things like: "The benefits of a diverse student population are not theoretical but real."

Oh, yes, maybe Justice Scalia will say something cutting, but it will be the same cut we've heard before.

All the same, I'm not asking them to be more interesting. It's not their job to amuse me. In fact, I think they are required to be that special, judicial kind of boring.

Oh, let me be that special, blogger kind of predictable and reprint this anecdote I tell at the beginning of an article called "Late Night Confessions in the Hart and Wechsler Hotel" (47 Vand. L. Rev. 993 (1994)):

Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled "The Future of Federal Courts." The University Theater filled: overdressed alumni in the front rows, respectful students in the balcony, camouflaged professors here and there. I sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and hoped for some insight into the tangled mass of problems I had made my life's work. Would the Chief Justice perhaps explain the Court's new habeas corpus jurisprudence? I wanted a little accounting for Butler v. McKellar, in which he had denied federal court relief to a man who faced the death penalty after a conviction based on a confession that the Court's own case law would, without question, exclude.

The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at length about the workload of the courts. The issues were neutral, administrative, managerial, structural.

"Did he say anything provocative?" asked a colleague who had missed the speech.

"He never got any more provocative than to say he's against diversity."

My friend was shocked. "He's against diversity!?"

"Diversity jurisdiction," I said, realizing she was not a proceduralist.

Maybe in the style of an evolving Constitution, the judicial norms change -- even though they retain that sober feeling. It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

First day.

After a seemingly endless winter break, it is finally the first day of what we call the Spring Semester. I'm here before sunrise, so the thick snow out there is looking very blue. But I'm happy -- as symbolized by my taxi-yellow walls -- and eager to get started. The courses are Constitutional Law I and Federal Jurisdiction, and both start -- propitiously -- with Marbury v. Madison.



The poster shows part of a painting by Pierre Bonnard. Would Pierre like the blue and yellow in the photograph combined with his pinkish purple? Consider this:

About those pop culture law school exam fact patterns.

I'm always basing my Civil Procedure II exam on some pop culture thing. CivPro2 here at UW covers jurisdiction and related topics, and I always need a fact pattern -- it doesn't matter what the substantive law is -- that involves a lot of people and places so I can generate some questions about who can join together in a lawsuit and where they can bring the suit and so forth.

In any given year, students could take bets on what pop culture phenomenon will turn up on the exam. If they'd done it this year, it would have been terribly easy to guess. It's "Borat." I changed the name, but basically it's a comedian traveling across the country provoking encounters... and sowing the seeds of lawsuits. It never matters whether the claims are sound or not. (I hope they're not!) I've simply got to create a controversy that has a somewhat complicated mix of people and places.

Does it add some fun to exam-taking, or is it annoying? I hope that, afterwards, it doesn't spoil the fun of the movie for the students. Ack! That was my Civil Procedure exam! I don't mean to do that.

Here's a list of a few things I've used for CivPro2 exams in the past: "The Apprentice," "The Blair Witch Project," "America's Funniest Home Videos," the Beach Boys' legal problems with Eugene Landy, "Supersize Me," "The Real World," the Cat in the Hat balloon at the Macy's Thanksgiving Parade, paparazzi and the deaths of Princess Diana and Sonny Bono, stage diving at the Rave, the U.S. News law school rankings.

"Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque..."

Enough about "Bong Hits 4 Jesus," let's pay attention to another of the cases the Court decided to hear -- same link as the previous post -- Hein v. Freedom From Religion Foundation. This case raises the question of who may sue to enforce the Establishment Clause. The plaintiff (which filed the case in Madison, Wisconsin) relied on the status of its members as taxpayers to challenge the practice of holding conferences the White House to assist religious groups in applying for federal grants -- part of President Bush's Faith-Based and Community Initiative. Judge Shabaz dismissed the case on the ground that Congress hadn't earmarked the money to go to religion and therefore that the plaintiffs could not use the special doctrine -- articulated in Flast v. Cohen, 392 U.S. 83, (1968) -- that allows taxpayers to enforce the Establishment Clause. The Seventh Circuit reversed, with Judge Posner writing the opinion.

Here's Posner's opinion. (I'm linking to the opinion at "Project Posner," a website devoted to Posner's judicial opinions.)

The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....

At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.

The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.

Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.

Since the constitutionalized standing doctrine of the Burger and Rehnquist Courts presents a problem for those who want to argue that Flast was correctly decided, I should think it would be quite hard to argue nowadays that Flast ought to be broadened. Yet Flast is stare decisis, and Posner's practical reasoning is impressive. What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?

"It is not the presidency that 'won.' Instead, it is the judiciary that lost."

John Yoo has a new piece about the new military commission law, which Bush signed on Tuesday:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."

Tired of email lists.

Here's a message I just sent out to the CivPro and FedCourts email lists:

Well, the time has come for me to shut down the old CivPro and FedCourts email lists. It's been grand. These were among the first -- maybe even the first -- lawprof email lists. But for me -- and maybe for you -- blogging has overtaken writing email. I think blogging is a much better medium of expression. Though email lists retain utility for passing around announcements and getting answers to research questions, I think they are obsolescent as a mode of conversation, which is what interested me in them over a decade ago. After years of dealing with an overflowing mailbox full of bounced messages and address changes, I'm going to go out of the business of list administration.

I'll keep the lists going until fall semester begins. I encourage you to use the lists to make announcements about email lists you have started. Give information about how to subscribe, and the CivPro and FedCourts members can migrate to you. Feel free to talk here about what new lists should exist and who most wants to run them. For example, it might be nice to have a jurisdiction list and a complex litigation list, or some other such division of topics. For me, as soon as I start talking about it in those terms, I think, no, there should be a jurisdiction blog and a complex litigation blog, and these can be group blogs written by the people who have written great messages to these lists over the years. So, please, use the last few weeks of these lists to propose new group blogs and find people who want to work together on them. And promote blogs you already have, as I'm doing here.

Ann Althouse
University of Wisconsin Law School
althouse.blogspot.com

Aren't you tired of email lists?

Supreme Court invalidates Guantanamo military commissions.

SCOTUSblog reports:

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

I don't have the text of the opinions yet. I'll have more soon.

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.

And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:

In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.

But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.

In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

And he'd better get crashingly clear statutory language.

IN THE COMMENTS: Simon says Thomas had read dissents from the bench before. He cites Stenberg v. Carhart, the "partial birth" abortion case. I looked up news reports of the time and found this in the Washington Post, June 29, 2000, Pg. 9A ("Abortion debate will continue to rage," by Joan Biskupic):

The sensitivity of the abortion issue was evident in the court's outpouring of opinions in the Nebraska case, Stenberg vs. Carhart. Of the nine justices, only David Souter did not write an opinion. Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench.

It's strange for the WaPo to have made that mistake today. You'd think you'd definitely check before saying something happened "[f]or the first time."

AFTERTHOUGHT: It will be interesting to see how Hamdan plays out in the political arena. The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months.

"Remember Ruth Buzzi on Saturday Night Live? Ginsburg was the spitting image of Ruth Buzzi.”

Oscar reports that's what Orrin Hatch said at the ABA Tort, Trial and Insurance Practice section meeting this past weekend:

In boasting about his bipartisanship, he tells a story about his willingness to confirm Ruth Bader Ginsburg to her first judicial appointment as appeals court judge on the D.C. Circuit. Ginsburg’s advance person, when scheduling the nominee’s sit-down with Hatch, said that Ginsburg (an extremely well-credentialed feminist lawyer and law professor) “is really scared of you.” Hatch says, “I didn’t understand why anyone would be scared of me” – aw, shucks! – “but Ginsburg did come across as really timid. Remember Ruth Buzzi on Saturday Night Live? Ginsburg was the spitting image of Ruth Buzzi.”

Ruth Buzzi was on "Laugh In," of course, not SNL, but nice try at a fresh pop culture reference! More Supreme Court stuff from Hatch:

Clinton called me and ran down his list of about ten names for Supreme Court justice. His first choice was Bruce Babbitt. I said, “he’ll probably get confirmed, but there will be blood everywhere.” I suggested, “how about Steve Breyer.” Well, he picked Ginsburg for that slot, but he picked Breyer next.

AND

I attended a meeting at the U.S. Supreme Court at which some of the justices said to me, “you have to get rid of diversity jurisdiction.” I stared the Chief Justice down, and said, “we’re not going to do that.”

Nice to see he's having fun wielding power.

More about Hatch at the link, including his use of the term "shit list."

Bork on Miers.

Robert Bork has a high-profile op-ed against Harriet Miers in the Wall Street Journal today (which a lot of people have already written about, but I should say that I went to it from this excellent post by Stephen Bainbridge).

Bork writes:

There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."

Let me add this very precise observation I received in an email from an able judicial law clerk:

Can you read a two-page letter she wrote in 1995? It's on pages 13 and 14 of a collection of documents the New York Times released a while ago. You can easily access it by clicking [here] , scrolling down just a little bit, and clicking on pages 13 and 14. It should take no more than a few minutes.

I find the letter truly unbelievable. Not in substance; just in terms of grammar and general writing ability. I know that some bloggers and folks in the media have profiled Miers' writing (like the Brooks piece you blogged about), but I don't think anyone has said much about this letter. I mention it to you in particular because you have commented on the value of good prose in a Supreme Court Justice, and you appeared to have been pretty underwhelmed by the snippets of Miers' writing in the Brooks piece. Of course, you may not find it particularly noteworthy, but I suspect that you probably will.

[Althouse response: "Is that letter really written much worse than a typical federal judge's opinion? It's belabored and repetitious, but it's not embarrassingly bad, is it?"]

Hmmm... I admit that the average federal judge produces mostly unremarkable prose, but it's usually not in this league:

"For example, charging unconscionably high fees are prohibited..."

"Comparisons with other jurisdictions and the effect of any proposed rule has been historically painstakingly performed to ensure that our disciplinary rules adequately protected the public."

"The State Bar Act similarly recognizes that attorneys in this State are 'subject to the disciplinary and disability jurisdiction of the Supreme Court' and in its opening provisions emphasize 'the judicial department's powers under the constitution to regulate the practice of law'."

I could probably nit-pick at least six comma problems, the missing apostrophe ("in harms way"), and some other small stuff. Those would be forgivable if the letter were otherwise clear and well-written (wasn't Justice Jackson terrible at grammar?). But it isn't. Miers' writing, here and elsewhere, is characterized by run-on sentences ( e.g., the seven-line sentence in the final paragraph and the six-line sentence in the second paragraph) and clunky sentence structure. Sure, many other lawyers write like her, but they haven't been nominated to the Supreme Court.

Couldn't almost any Wisconsin 1L, presented with the bill in question, write a clearer two-page letter opposing it?

A harsh judgment, but I can't say it's wrong. Can you?

More Bork:

The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies)...

That jibes with this post of mine from yesterday.

Bork again:

...she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief.

What??? It takes some nerve to say that. [ADDED: I misread that comment. In fact, I agree with the observation, as what I say next shows.] Jesus said: "So those who have the last place now will have the first place in the future, and those who have the first place now will have the last place in the future." (Read the whole parable.) I wouldn't presume to say that approves of affirmative action, but I'm truly mistrustful of anyone who would say it can't possibly support it.

More Bork:

Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.

The point should be that a judge who would rule from religious belief is not a proper judge. It's not a matter of whether we would like the outcomes or not. It's a matter of the illegitimacy of accepting the role of judge and then operating from religious tenets rather than the law. In fact, I would think a genuinely religious person would perceive it as a sin to assume power in such a fraudulent way.

Bork goes on to demand that Bush's judicial nominees embrace originalism, which good conservatives have been cultivating ever since his own nomination went down in flames (for embracing originalism): "Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges." This is a huge overstatement, which John Roberts himself refuted at his hearings.

My take on Bork is that he does a good job of pointing out Miers's shortcomings, but his view of what makes a proper judge is too narrow. That said, I can see why hardcore conservatives like him feel betrayed by Bush's failure to nominate an originalist. I've said I think Bush made a campaign promise to do so, but maybe Bork doesn't agree. He thinks Bush's judicial philosophy amounts to nothing more than "bromides about 'strict construction' and the like." Maybe Bush didn't promise much of anything. Even so, he owes us excellence. He met the standard with Roberts, and then he stumbled miserably.

In the mailbox today.

After today's Religion and the Constitution class, I checked my mailbox and found two unusual items:



The first is a bar of chocolate, from Vienna, a gift "from a secret admirer." The second is a CD. Ah, yes, I've been expecting this for a long time. It comes with a note:

Prof. Althouse:

Here is the finished Cougar record...

Thank you for letting us include your lecture samples. The cadence of your speech perfectly complemented the music....

Unbeknowst to me, a Federal Jurisdiction lecture of mine was recorded by my student Trent Johnson a few years back and samples of it used in his musical work. I was actually a little afraid to listen to it. But it turns out it's really just a tiny bit of my speech on one track -- called "Your Excellency." And, no, I don't think that's what my students usually call me when I'm not around.

Anna Nicole Smith takes her case to the Supreme Court.

And they grant cert! I wonder if she will benefit -- as she tries to get to the fortune her very elderly husband left -- from the having her case heard by our rather elderly Justices.

At issue for the court is a relatively mundane technical issue: when federal courts may hear claims that are also involved state probate proceedings....

The appellate ruling that federal courts in California never had jurisdiction, erased a lower court finding that Smith was entitled to compensatory and punitive damages because Marshall's son tried to keep her from receiving money from his father's estate.

The Supreme Court filings included only a hint of the nastiness and sleaze from the family fight. The dispute has involved a "a bizarre set of events," justices were told in a filing by G. Eric Brunstad Jr., a Yale Law School professor who represents Marshall's son.

Smith, whose real name is Vickie Lynn Marshall, had received more than $6 million in gifts from her late husband, but was not included in his will, justices were told.

Brunstad said that Smith began her legal fight for her husband's money even before his death.

Smith's attorney, Kent Richland, told justices that Marshall's son "devotes nearly half his brief to manipulating the record to cast (Vickie) in a bad light." Richland said that J. Howard Marshall intended to provide for his wife throughout her life.

"His efforts failed, however, because -- as both lower courts found -- Pierce suppressed or destroyed the trust instrument and stripped Howard of all his assets before his death," Richland wrote.

Two jurisidiction posts in a row for me. Did you know the topic could be so entrancing?! Or is it just me, doing my usual thing of getting excited about jurisdiction when everyone around me thinks it's mind-numbingly dull?

UPDATE: I gave "The Daily Show" another chance last night and was quite amused to see Jon Stewart run with the idea that the old Justices took the case because ,like the ancient guy Vickie married, they really liked her.

Jurisdictional metaphors.

I don't know if you follow the jurisdiction cases, but I sure do. It is an area of judicial opinion-writing where metaphors abound. The favorite metaphor is the "courthouse door." It's very hard, apparently, to discuss a court's power to hear a particular case without talking about the door. In a recent case (about the scope of federal question jurisdiction), Justice Souter ran with the metaphor:

The Court [in Merrell Dow] saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues....

Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] ... under state law." 478 U. S., at 811-812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out.

I don't know if I like the whole welcome mat/door key addition to the usual door metaphor in jurisdiction, since courthouse doors never have welcome mats and litigants don't need keys to get in the courthouse door.

Maybe try something with a metal detector next time.

"It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776."

That's the first line of one of John Roberts' Court of Appeals opinions. (I'm trying to read/skim them all.) I love the line. I especially love the use of the word "thing." That shows a depth of understanding about writing style. Less able writers would fuss about the word "thing" -- not formal enough? not specific enough? Law review editor types would probably agonize over the antecedentless "it" and the passive voice "was" and get a prudish editor's nausea before they even hit "thing." But Roberts has a surer hand. So, I have great hope that he will bring a fine writing style to the Supreme Court.

Of course, after the nice opening sentence we have to read this:

As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities -- utilities not subject to FERC jurisdiction -- may sell power at market-based rates in the United States.

Jeez, D.C. Circuit Court cases are dull -- all that federal regulatory dreariness. Everyone keeps jabbering It's the second highest court in the land after the U.S. Supreme Court. What they fail to say is that it's the first most boring court in the land. What good fortune to be nominated to the Supreme Court, but what double good fortune to escape from the D.C. Circuit. All you Fifth Circuit judges who didn't get picked: at least you have an interesting case load where you are.

(The quoted case is boringly called Consumers Energy Company v. Federal Energy Commission, 367 F.3d 915 (2004).)