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A collegial start to the Roberts CourtOver at SCOTUSblog, a commenter wonders (presumably in light of Ayotte and today's ruling in Scheidler) if "the Court [is] entering some sort of collegiality period where they are reaching a consensus on previously hotly contested issues"? While it isn't unusual for the Court to get the uncontroversial stuff out of the way first, I wondered if maybe there's something in this thought: the term certainly feels more collegial (that is, from reading the opinions), but in raw numbers, how the start of our Fearless Leader's first term compared with the last couple of years.
Now, this is hardly a representative sample, but if nothing else, I think it lends a certain amount of credibility to the idea that this term thusfar is perhaps a little more collegial than recent terms. It's also worth mentioning, of course, that this term has thusfar lacked a big, blockbuster nightmare of a plurality - no McConnell or Booker - despite ample opportunity to do so. Perhaps this simply means that the more controversial cases are still circulating; perhaps a deeper look will completely shatter this point, but it does seem perhaps a little too hasty to write off the idea of a more collegial first semester, if you will. Update: As a follow-up, it's worth breaking down the number of dissenting votes in each period covered, rather than just the number of cases with dissents (another commenter at SCOTUSblog notes that the latter treats an 8-1 as no different to a 5-4). Seen from that angle, it works out: OT'05: 18 OT'04: 24 (excludes Booker) OT'03: 24 (excludes McConnell) OT'02: 14 OT'01: 38 So in fact, seen this way, it could be argued at OT'02 was the most collegial in the last five years. I don't know which metric (if either) is a more appropriate measure, but I put it out there for information. New plaintext dissentIn theory, from today, anyone visiting I Respectfully Dissent using a BlackBerry is automatically going to be redirected to a more PDA-friendly text-only edition. Let me know if there are any problems. More about the FPBAACross-posted at Centerfield. In reaffirming the Circuit Court's verdict, the panel entirely fails to even consider the question on which any action against FPBAA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute's terms are "unconstitutionally vague," and it becomes irrelevant whether it includes a health exception.The Ninth Circuit was not alone in reaching these conclusions; on the same day that the Ninth Circuit handed down Planned Parenthood v. Gonzales, the Second Circuit weighed in (National Abortion Federation v. Gonzales), and shortly thereafter, the Eighth Circuit (Carhart v. Gonzales) got in on the game, too. On Tuesday, the Supreme Court granted cert in Carhart. Yet one reads searches these three Courts of Appeals opinions in vain for the "F" word: federalism. It wasn't brought before the Courts in the challenges, and it wasn't raised sua sponte, even by the Ninth Circuit (I have previously observed that it is sometimes hard to determine whether the Ninth Circuit is "an appellate court or a comedy routine, a histrionic reductio ad absurdum of liberal jurisprudence"). Something strikes me as being odd in all this; come on, liberals - kick us conservatives where it hurts! The FPBAA is a free shot! We evil FedSoc types keep going on about the limits of the commerce clause power, about states rights, about federalism; well, here's your chance to ask us to prove it! Why not litigate on the premise that this law is ultra vires (which, after all, it is)? Why give Mean 'ol Nino an easy getout, a way to uphold the law by merely ruling on the specific challenge before him? Surely, this isn't just because liberals are afraid of what it would mean to get on the federalism boat. As Jonah Goldberg pointed out yesterday, liberals have (arguably) suddenly become fairweather friends of originalism now that it suits their purpose (over the NSA program, and, of course, in general where the second amendment is concerned), and once this moment passes and it ceases to be in their interest to have a frozen Constitution, they will once again demand its defrosting. If liberals are willing to jump off the boat and swim for shore in other areas, why would federalism be any different? Or am I just missing the point - regular readers will know that I'm reluctant to discuss whether a law is a good idea on a normative level until we've established whether or not its Constitutional in the first place, but liberals are not exactly known for their respect of the structural (as opposed to rights-bearing) sections of the Constitution, so perhaps they simply regard it as normal to approach this (as it appears to me) backwards? So that's my first question for discussion today. The second question is related, but a little more esoteric, a little more theoretical. At SCOTUSblog, I averred that the Fourteenth Amendment doesn't give Congress a free pass to regulate abortion: On another blog a couple of days ago, someone (obviously pro-life) pointed out that the Constitution doesn't mention abortion or unborn children, but on the other hand, nor does it mention African Americans, Gypsies, Jews or Hispanics, and no-one would argue that they aren't protected. I sympathize, but the argument is just flat-out dumb. The Constitution may not mention any of those groups, but nor does it mention caucasians. The term used is "persons," and that term is expansive enough to cover anyone considered a person at the time of ratification, so In order to say that the unborn are protected by the Fourteenth Amendment, you must either a) demonstrate that the unborn were considered persons in 1868, or b) abandon originalism in favor of something else.In rebuttal, another commenter, Ben Kennedy, wrote: I believe that it is not difficult to contruct the case that the term "person" used around 1868 could include the unborn. Blackstone writes,Wow! How convenient would that be! I'm not sure how to feel about that. Aren't I in favor of a static constitution? Isn't this an evolutionary content argument? And don't I think all that "evolving standards of decency" mush is pretty risible stuff? Aren't I stuck with reject this?"The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb ... An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours."What Blackstone didn't know was that a fetus "stirs" 22 days after conception when the heart starts beating. But hang on a moment - is this an evolving content argument? Is this really the "evolving standards of decency"? If I might rephrase Ben's point: if fœtal personhood was understood to occur at the time of quickening in 1868, and since that time, science has demonstrated that quickening in fact takes place earlier during pregnancy, does that change the balance of probabilities that the original meaning of persons extended to the unborn? I don't know the answer to that, but it's certainly an interesting point. I have to say that I remain sceptical, though, since this theory of quickening as the start of personhood goes back at least as far as Blackstone, yet laws criminalizing abortion in England and the United States did not begin to appear until decades after Blackstone, in the early 19th Century. But in any instance, and this is my second question for discussion in this post: It's an intriguing point, though. Arguendo, if the original understanding of the Fourteenth Amendment could clearly be shown to be accepting of fœtal personhood at, say, six months, on the premise that this is when "quickening" takes place, and that this confers Congress power to regulate abortion after this time, but in the years since 1868, we have determined that quickening actually takes place earlier (this is totally wrong, but let's say it takes place at one month), does that mean that the original understanding permits Congress to regulate abortion after six months (the original understanding of the timeframe), or after one month (the original understanding of the event)? That isn't, after all, an evolving concept of decency, but the expansion of scientific knowledge; it is a factual, not subjective, inquiry. I've argued before that, even absent evolving content, the Eighth Amendment does prohibit certain punishments, even if they did not exist at the time of ratification (that is, even if it is not a "living constitution" in the sense that it grows and morphs, it is alive in the sense that it continues to apply to new and unforeseen circumstances; Roe may be invalid, but Kyllo is not, and don't even get me started on Trop); hence, I don't know what to think about this point. So has Ben proved me wrong? Has he made a successful (albeit rather novel) originalist case for Congressional regulation of abortion? Or is this just a little too much like that marvellously seductive "evolving content" stuff that I disparage at every opportunity. Mr. FBPAA goes to WashingtonLast month, I averred that the Ninth Circuit got it right - albeit for the wrong reasons - in striking down the Federal Partial-Birth Abortion Act (FPBAA), 117 Stat. 1201. [I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.I agree - and now we will find out if Justice Scalia has changed his mind. The situation is more complicated, of course, by the fact that these cases do not discuss the flaws of Constitutional authority - which may yet provide Our Men on Mount Olympus with an easy get out clause: "we don't have to consider the Constitutionality of the statute in terms of positive grant of enacting authority, because that issue hasn't been briefed or argued, and we shouldn't invalidate an act of Congress - a serious undertaking - on a matter raised sua sponte." To be sure, there is some merit to that proposition -- indeed, just this term, arguably Ayotte v. Planned Parenthood and Gonzales v. Oregon represent Scalia essentially adopting the framework of the question presented instead of reaching what I would think to be the main concerns -- but personally, I think it would be a cop-out. This case begs for actual resolution. Comments at Volokh, and a general updateThere is some discussion going on in the comments section at Volokh that's pretty interesting, talking about abortion, due process, the ninth amendment...The usual sort of thing. I really, really need to get back to doing that Ninth Amendment essay sometime soon... ;) A neat Sykes dissent in U.S. v. O'NeillI've previously mentioned my growing fondness for the idea of appointing Judge Sykes of the Seventh Circuit to SCOTUS, and filling her Seventh Circuit seat with Prof. Calabresi (see dissents passim), and yesterday, an interesting case fell came forth from the seventh circuit with that rare and exciting beast, a Sykes dissent (over a Posner concurrence, no less). The case is United States v. O'Neill. We think what the judge did here comes close to crossing the line in a Rule 11(c) case. The rule, and the better practice, is simply to reject (without a lot of editorial comment) the plea, give the defendant an opportunity to withdraw it, and advise the defendant that if the plea continues, the judge is not bound by the party’s plea agreement.(Slip op. at 7). All agree that the case must go back to the lower court, but the division is whether it should go back on limited remand for resentencing, per United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), or on full remand with the plea set aside. Judge Posner sums up the disagreement in a concurrence: Judge Evans wants to hold O’Neill to his guilty plea, but remand for resentencing before a different judge. Judge Sykes wants to grant O’Neill just the limited Paladino remand. My view is that the plea should be set aside . . . Either O’Neill was tricked into pleading guilty or he was not. If he was, the logical remedy is to set aside the plea; if he was not, then as Judge Sykes believes he is entitled to nothing more than a Paladino remand.(Slip op. at 9) (n2). So anyway, what does Judge Sykes have to say about all this? She says that the answer to the question presented (viz., did "the judge impermissibly inject[] himself into the plea process" in violation of the Federal Rules of Criminal Procedure?) is no. The district court judge: did not impermissibly participate in plea negotiations in violation of Rule 11(c)(1). Rather, he explained his reasons for rejecting the parties’ initial plea agreement . . . Rule 11(c)(1) prohibits judicial participation in plea negotiations, but when a plea agreement is presented to the court for approval, “it is not only permitted but expected that the court will take an active role in evaluating the agreement.”(Slip op. at 18) (n3). Sykes notes that while it is a truism that the court's reasoning with regard to a plea bargain will affect future negotiations, this is not the same thing as participating in the plea negotiation, something that sounds emminenly reasonable to me: if two of my co-workers are discussing whether the African or European Swallow has a higher unladen air-speed velocity, and I walk past them and offer in passing that the European variety is now extinct, that will certainly affect their discussion, but I don't think that amounts to participating in their discussion; the common meaning of "participation" implies more intimate involvement than the conduct at issue here, I think. In Sykes' view, the case is governed by United States v. Kraus, 137 F.3d 447 (7th Cir. 1998): When a district court rejects a plea agreement, “it must be able to articulate a sound reason for doing so” . . . [and] it will not be construed as impermissible participation in plea negotiations in violation of Rule 11(c)(1) “[s]o long as the court speaks in the context of ‘actively evaluating a plea agreement' . . . and its remarks are confined to the agreement before it.”(slip op. at 19, quoting Kraus, 137 F.3d at 453). As Sykes sees it, in this case, the circuit judge "was required under Kraus to explain why he was rejecting the agreement, and he did so. He confined himself to the terms of the agreement before him and spoke in the context of evaluating that agreement [and therefore] O’Neill’s guilty plea was not tainted by impermissible judicial participation in plea negotiations." In essence, Sykes adds: What O’Neill is really complaining about is not the integrity of his plea but the length of his sentence . . . did not seek to withdraw his plea or otherwise object to Judge Kennelly’s comments in the district court, so he is here on plain error review. Although he is claiming a Rule 11(c)(1) violation, he has not asked us to vacate his plea and conviction. He just wants to be resentenced. But there must be an error for us to grant relief, and there is no sentencing error here . . . [the] sentence is within the range stipulated by the plea agreement and the district court did not impermissibly participate in plea negotiations, [therefore] neither resentencing nor plea withdrawal is warranted. This dissent is well-argued and cogent, in my view, and I continue to think Sykes is doing a great job on the Seventh Circuit, even when - as in this case - she doesn't prevail. .................. Footnotes: n1. Specifically, Fed. R. Crim. P. 11(c)(1) ("[a]n attorney for the government and the defendant's attorney . . . may discuss and reach a plea agreement [but] [t]he court must not participate in these discussions") (but see Fed. R. Crim. P. 11(c)(3) ("the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report"). n2. Posner also advances a very nice separation of powers argument, which I'm not going to discuss here, but that's well worth a read. n3. Perhaps in rejoinder to Posner's sparation of powers argument, Sykes adds "Prosecuting criminal offenders is an executive function but sentencing is a shared power" (slip op. at 18) (emphasis added). Electoral tectonics for statisticians: a reply to Todd EstesI was intrigued to read a new paper in Berkeley Elctronic Press' journal The Forum called Where the Votes are: The Electoral Geography of the Coming Democratic Majority by Todd Estes, which posits where the votes are going to be found for the Democratic Party's emerging electoral majority (I know what you're thinking: did the emerging democratic majority see its shadow in 2000, giving us six more elections of Republican Presidents?). Todd's paper immediatley made me think of a paper from last year by William Frey, The Electoral College Moves to the Sun Belt, because it undercuts its own premise: even if it applied to 2008, it doesn't take account of the reapportionment that will follow the 2010 census, with small - but potentially important - consequences for his model. I discuss precisely that in: (Technically it's less of a reply to Todd and more of a comment on his paper, but what's the functional difference really).Design vs. artOne of the many things on which I'm excessively opinionated is web design, and one of my pet peeves is the gradual subordination of functional design to the artistic whims of the people who think web design is their personal artistic outlet. Joel Spolsky has a great article out in draft today, which includes this line: If you have been thinking that there is anything whatsoever in design that requires artistic skill, well, banish the thought . . . Art can enhance design but the design itself is strictly an engineering problem.I think that sums up the acse perfectly. Web design is, first and foremost, industrial design, not graphic art. Sites which are efficiently and cleanly designed (see, e.g., HP; IBM; CNN; the House Appropriations Committee; the newly-refreshed U.S. Senate site) are sites that get you to where you're going in the shortest time and by the shortest route. This is not to say that they can't be pretty, but it is to say that if you start with the premise that it should look "artistic," it's probably going to suck. If it's graphics-heavy, if it's hard to navigate, if it relies on flash, if it assumes that the visitor has certain plugins or fonts or screen resolution, it may very well suck. I'm not big on naming and shaming, but Toto99 exemplifies what's wrong with modern web design: it looks great, but it sucks to navigate. The web is a tool to communicate information - it's nice for a site to be artistic and atractive; it's even permissable to be avant-garde. But what the design can't do is to detract from the basic purpose of a website, which is to communicate information, and in my view, there are too many sites which basically seem to be an indulgence of a graphic artist. Speaking of design, I'm going to add four books to my wishlist. Two volumes of photos by Fred Maroon, one about the Supreme Court building, and one of the Capitol. Two more books about the capitol round out the list; one by the former architect of the capitol, the other by Henry Hope Reed. The latter includes a wonderful review on Amazon: [The book is an] unabashed defense of classical architecture and passionate call for a return to the style in our great buildings. One has merely to open this book to thank his lucky stars that most of monumental Washington, DC was built before the Marxist-inspired so-called "International Style" and its degenerate stylistic descendants inexplicably washed away centuries (nay, millenia) of Western art tradition. It's appalling to read the sort of vindictives that were hurled against the last exponents of the classical style, men like Bacon, Reed, and Gilbert by so-called "modernists" when they designed stunning masterpieces like the Lincoln and Jefferson Memorials, and the Supreme Court Building. And it's galling to see what "modernists" offered the nation as an alternative to classical design: can anyone look at the Museum of American History on the National Mall and not shake his head in sadness? The place looks like an annex to a New Jersey shopping mall.I remain unabashedly in the camp that says modern architecture is in a pretty horrendous state, and you can't help but grin at the line about a shopping mall; MIT student Mihai Pătraşcu has a collection of photos of D.C., including one of the duly-maligned Museum of American History (lo and behold, it does bear a passing resemblance to every European government building, and likely several dozen shopping malls, constructed in the latter half of the 20th Century). It's striking to look at the collection, because you can so clearly look at the contrasting styles of, say, the treasury building (built between 1836 and 1869) and the FBI headquarters (constructed from 1967 through 1972), the former being a beautiful piece of architecture, the latter bearing a passing resemblance to the Kremlin Palace of Congresses, except much, much uglier). Or, compare the beautiful Longworth Building to the frankly embarassing Hart Bulding. Marxist-inspired or not, the insipid stylings of more recent architecture - still less the more avant-garde nonsense - contrast poorly to what has gone before. Finding compromise on abortion"Drafting hell" (cf. development hell) is my term for that place where too many posts seem to end up: a post goes there when I've written too much to just delete it, and I still want to say something on the topic, but the post simply isn't coming together (for example: it doesn't flow; it isn't coherent; it's too diffuse, or indeed, excessively narrow; it doesn't look right, or it just flat-out isn't up to snuff. That often happens at that point is that the post gets transferred out of this editing environment and becomes a PDF, as discussed the last time I posted one (see The supremacy clause, nullification and bad precedent, 1/10/2006); sometimes it makes it back, sometimes not. Does it make any interesting points? Could it be improved, or does it just need taking out back and putting down? Personally, I think it's virtually a regression back to where I was writing a year ago. Thoughts welcomed. The sheer nerve of itThis blog doesn't use categories, but if it did, the story of how the peer-to-peer software "Bit Torrent" is suing for trademark infringement would be filed under "are you f*****g kidding me?" Some great Scalia quotes and a new Randy Barnett essayThese soundbites from a speech last August are courtesy of Law & Ordnance (2). There's lots more at the link, but here's the ones I like and/or plan to appropriate: [E]ven among law school graduates, only 5% have read the Federalist Papers. That is amazing.Amazing isn't the word; it seems to me that you shouldn't be allowed into a law school if you haven't read the Federalist Papers, let alone out of one. On the meaning of the Ninth Amendment: Back when I was in law school, for the life of me, I couldn't tell you what it meant. It says that we shouldn't deny or disparage unenumerated rights on account of those that are enumerated. So, what does it mean? It is obviously an affirmation in the Framer's belief in Natural Law. It means that the Constitution wasn't created to replace it altogether. It isn't a catch all provision for everything else that isn't in there. Using it to say you have a right to obtain an abortion... well, maybe you do. I won't deny or disparage it. I just won't enforce it.This seems particularly apt, as Randy Barnett has just put out a paper called Who's afraid of unenumerated rights? - an excellent title, but although I haven't yet had a chance to read it yet, it doesn't seem likly that I'll like it much. As I mentioned earlier this week (see Hiatus interuptus, 2/4/2006), I pretty strongly disagree with Randy's premise that the Ninth Amendment creates a resevoir of unenumerated rights. Sooner or later, I'm going to have to bite the bullet, give up on the version of the essay I have in drafting hell, and just write my "this is what I think the Ninth and Tenth Amendments mean" essay from scratch. One last quote from Nino: If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong.That says it all, I think. A new look for the blogWhen I started writing Noise2signal, the physical appearence wasn't really that high on my list of priorities, and let's face it, that showed. More importantly, the CSS was getting horrific, so during my brief hiatus (I'm probably going to extend it to the end of this week), I've had some time to fiddle with the code and rebuilt the front end from the ground up. Nous présentons: Noise2signal 2.0 (beta 1). Hiatus interuptusMy previously announced hiatus has only been a partial success thusfar, because interesting things just won't go away when you're hoping for a beif spell of dullness. Hence, a couple of things worth noting: |
    
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