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A provocative questionJust to make trouble, I have a post at SF asking if perhaps there is a case to be made that the VRA should be allowed to expire. Nino isn’t writing because he can’t talk about this stuff without his head exploding.And I thought Rapanos was a trainwreck. Randall v. Sorrell? Holy hell! Just so we're all on the same page, it's 2-1-1-2-1-2 (arguably, at best, it's 3-1-2-3): BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined as to all but Parts II–B–1 and II–B–2. ALITO, J., filed an opinion con-curring in part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment. THOMAS, J., filed an opinion con-curring in the judgment, in which SCALIA, J., joined. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined, and in which STEVENS, J., joined as to Parts II and III.Even by the trainwreck standards of the Supreme Court's first amendment jurisprudence, this is pretty seriously fucked up. I'm trying to think of another case that was so badly fractured - the only one that jumps to mind is Furman. In any event, Skeptic's Eye has read and summarized all six opinions and seventy pages. I love this quote, summarizing Brother Clarence's concurrence: Justices Thomas and Scalia: Hi, this is Clarence. Nino isn’t writing because he can’t talk about this stuff without his head exploding. We hate Buckley because it doesn’t protect contributions adequately. This decision adds to the unacceptable muddle that is campaign finance constitutional jurisprudence. So we concur with the judgment, but Breyer is making a mess of stuff again.To be fair, the Scalia chambers have been busy (lots of great, great Scalia opinions this term, and there's another one today in United States v. Gonzalez-Lopez, which I have thusfar only had time to skim), but the image gives me a chuckle. Update: broken link fixed; thanks for the heads-up Nathan! New group blog: www.StubbornFacts.usAs of sometime last week, there is a new group blog called Stubborn Facts which I will be (and have been) contributing to. That doesn't mean that I RESPECTFULLY DISSENT is coming to an end (this will continue to be my main home), but anyone who enjoys this blog will likely enjoy Stubborn Facts a great deal more; the other three contributors are three of the best writers from Centerfield (Pat, Tully and Bobby), and I'm lucky enough that they've let me tag along. The intention is to lean maybe a bit to the right of Centerfield, and to really make an effort to focus on being quite factually-grounded (and, from my perspective, to reject the recent third-party leanings of the Centrist Coalition). Justice Alito's first solo concurrenceGuitar players of a certain age will remember the feeling they got when Van Halen I came out, and thus, the first time they heard Eruption - a jaw-dropping minute and forty-two seconds of incendiary playing that entirley re-wrote the rule book of rock guitar on the spot. It opened everyone's eyes to a completely new world of possibilities. Check the temperature in hellGood grief: Biden said something intelligent: "There are certain Democrats who think that this [Iraq] is over, that we've lost or that there's nothing constructive the president is going to do," said Senator Joseph R. Biden Jr. of Delaware, who, like Mr. Kerry, is considering running for president and who sat in on the meetings where Democrats searched for consensus. "What it really is, in fairness to them, is a frustration that they see no learning curve on the part of this administration. I can understand that frustration. But setting a date is not a plan."(He's criticizing John Kerry, in case it isn't sufficiently clear). Couldn't have said it better myself. Still - I wonder if we should be checking Neil Kinnock's speeches from around the time of the Falklands War, just in case. The first train wreck of the termOthers have dissected Rapanos at great length, but I was intrigued by our Fearless Leader's concurrence: It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.(Emphasis added). I tend to think this supports my previously-explained view that some commentators - particularly, but not exclusively, those who strongly support judicial minimalism, such as Cass Sunstein - have misunderstood Roberts' remarks about desiring stability and clarity in the law as a mindless commitment to minimalism. Moon exploration, take 2"The deputy head of China's space programme says the country will put a man on the moon by 2024:" The possibility of mining the moon for its Helium-3 is thought to be a major motivator behind the Chinese space programme. Helium-3 has great potential as a non-polluting fuel source, but there is virtually none on Earth. The moon, meanwhile is relatively rich in the isotope. Although technology to exploit helium-3 is not yet in place, its value as a replacement for oil and gas could be enormous.Just think: we could have been working on this for thirty years! (This is now a two-way race, incidentally: the Russians have the same idea; ironically enough, the Russians have the experience and no money, while the Chinese have the money and no experience. I've mentioned before that we have a natural strategic interest in cultivating our friendship with Russia, right?) There are really only two entities with the financial heft to go to the moon: government and big business. And the biggest business of all of them is big oil - which, for obvious reasons, should be interested to get in on an alternative fuel source - so doesn't it make sense that if there is obvious inducement for someone to mine the moon - i.e. an extractable commodity - we should make fairly sure that we're in on it? Let's either work with the Russians, or if the US government lacks the financial resources to get into this race, let's make use instead of what we've got and they haven't: a dynamic private sector that just might have the financial clout - and the interest - to get involved. Electing JudgesLegal Miscellania links to a story about the ouster of Judge Janavs in California. The essense of the story is that in California, "[m]ost of the state's 1,500 Superior Court judges are appointed by the governor [but] face retention battles [] if someone runs against them"; much shock and horror has attended the defeat in one such retention election of a popular and well-qualified state judge by a bagel shop owner characterized as having "barely practiced law in the last decade." But on the other hand, one cannot but observe that, if you are going to give the people the direct power to elect - and thus, the concomitant power to decline to elect - judges, it seems slightly churlish to complain when the people go and exercise that power. (n1). Something just doesn't sit well with me about the statement that Judge Janavs' defeat "sent a jolt through Los Angeles County legal circles, leading some to question whether the system to select judges needs overhauling." Something about that phrasing seems to imply that those Los Angeles County legal circles are perfectly happy with making judges elected officials selected by the people unless and until the people make a choice they don't actually like: the people made a choice in an election, and that is indicative that the system needs reform? (n2). In England, judges are appointed by the much-learned legal elite (see Judicial Appointments in England and Wales: Policies and Procedures). To be sure, there is much merit in such a system, but if that (n3) is what "Los Angeles County legal circles" really want, which is certainly the picture that the L.A. Times paints, then they should be honest about it, instead of claiming devotion to the rough-and-tumble of elective politics for as long as (but only for as long as) it legitimzes their own preferences. To conclude on an unusually self-righteous note, I feel that I've rather earned the right to criticize this result - and I do criticize it - by virtue of having consistently said that electing judges is a mug's game. But anyone who has previously defended the proposition of electing judges must either renounce their previous views, or else forfeit the right to criticize this outcome. If you give the people the choice of their Judges, it seems ludicrous to complain when they make a choice you disapprove of. .................. Footnotes n1. Many years ago, when I was involved in student politics, I used to get very frustrated that students would routinely elect people to the Union Executive who I felt simply weren't the best candidates available (indeed, at the time, I felt that it was not unusual for the least qualified candidate to win). To be fair, only a very, very few of those who did get the nod actually went on to do a bad job; most were, at the very least, capable - and some, in fact, excelled (one in particular did such an outstanding job, I felt it necessary to apologize to her at the end of her term for my uncharitable reaction to her election) - but none-the-less, I don't accept that treading water, or simply not fumbling the ball, gets you a merit badge. For many years, I felt very angry looking back on these events, not least because I always felt that there was so much more that the union could have done for the students, in the right hands. Latterly, though, I have become more sanguine about it, concluding that, in essence, democracy doesn't mean the best person wins, it means the electorate gets the person they deserve. Or as H.L. Mencken more acerbically put it, "democracy is the theory that holds that the common man knows what he needs - and that he deserves to get it, good and hard." n2. The comparison seems to suggest itself that this is all reminiscent of the recent events on the Hill: after six years of essentially being a lap dog to the White House, suddenly the House leadership becomes the dogs that barked only when their own power and prestige are placed under threat. (And, for better or worse, picking a fight that, in my view, they cannot win). n3. "That" being a judicial selection scheme wherein the objectively "best" candidate, as determined by their peers in the legal elite, gets their gavel. A suggestion on how to deal with companies who employ illegal aliens.As I suggested here, in my view, "[i]f you vigorously enforce the laws against employers, you cut off the source of income for illegals. They therefore have little motivation to stay. Now suppose that, in addition, you fix the problems with the immigration process, and make it possible for them to come back, as legal immigrants, permanent or otherwise: now they not only have little motivation to stay, they have active motivation to go home." (a) Cause of Action.-- any person aggrieved by the employment by a company of an alien, in violation of this section, may, in a civil action, recover from the person or entity which engaged in that violation, including the United States, such relief as may be appropriate. If the threat of being sued by thousands of aggreived persons doesn't scare companies out of employing illegals, I don't know what the heck would. "Rehnquistian pragmatic formalism": is our Fearless Leader really a minimalist?Ever since his speech at Georgetown, the blawgosphere has been abuzz with discussion about Chief Justice John Roberts' apprently-espoused minimalism and its consequences. I have to confess to some doubt about both. It's interesting that most of those who have commented on Roberts' address - so far as I have seen, at any rate - have quoted very narrowly from the speech, so it seems to me that it's worth recounting fully what he actually said. Let's go to the tape. When he turned to the portion of his commencement address that has become known as the significant part - the section about consensus on the court, running 51:55-53:55 - what our Fearless Leader actually said was this: [T]here are clear benefits to a greater degree of consensus on the court. Unaminity - or near unaminity - promote clarity and guidance to the lawyers and to the lower courts trying to figure out what the Supreme Court meant. Perhaps most importantly, there are jurisprudential benefits; the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds. It's when the decision moves beyond what is necessary to decide the case, the justices tend to bail out. If it's not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more. In Felix Frankfurter's words, a narrow decision helps ensure that we "not embarras the future too much." The rule of law is strengthened when there's greater coherence and agreement about what the law is. After making clear that "the key to achieving this broader consensus" is collective responsibility of the entire point to work together harmoniously, Roberts significantly adds, "there will, of course, be divisions on the court, and those cannot and should not be artificially suppressed . . . but the rule of law and the Court as an institution both benefit from broader agreement." Most commentators have essentially concluded that the speach was a pćan to judicial minimalism and judicial modesty (assuming of course, contra Scalia - see The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 - those two terms are considered to be close relations). Edward Lazarus, for example, claimed that Roberts "extolled the virtues of unanimous Supreme Court opinions", while Cass Sunstein, called it "an aphoristic summary of the minimalist position in constitutional law": Chief Justice Roberts made a plea for more consensus within the Court -- for unanimous or near-unanimous decisions, on the ground that they promote the rule of law. But that wasn't the most interesting part. He also argued that unanimous or near-unanimous decisions lead to narrow, minimalist opinions. A Sunstein companion piece in the LA Times similarly averred that: What makes Roberts' argument noteworthy is that it takes a side in one of the deepest and most long-standing divisions in American jurisprudence — a division that cuts across the standard ideological lines.(Well, Sunstein would say that, wouldn't he? He has just written a book - of which I have an extremely low opinion - making the argument that Judges, or at least, conservative judges, should be minimalists). The assumption that Roberts was declaring himself a minimalist at Georgetown pricks the curiosity of Prawfsblawg guest Jason Solomon, who wrote two posts essentially making the argument that our Fearless Leader is, in fact, only a minimalist when it suits him: "it appears that Roberts' conservative ideology may have trumped his stated preference for narrow, unanimous rulings." For evidence, Solomon points to Justice Kennedy's quite broad 5-4 opinion in Garcetti v. Cellabos last week, and asks, "What gives? I thought 5-4 broad decisions were out under Roberts," before offering up four hypotheses. I disagree with all of Solomon's hypotheses, because in all cases, he's starting from a premise that I'm unsure of: that the prevailing wisdom about what our Fearless Leader said at Georgetown - that he is a minimalist - is what Roberts actually said. If the prevailing wisdom is right, and Roberts really was saying at Georgetown that he was a Sunsteinian minimalist, then sure, it's hard to explain a result like Garcetti. But is it really clear that Roberts was touting minimalism as a virtue in and of itself? It seems to me that there is an equally-plausible alternative interpretation of Roberts' speech, one that is suggested by - as I did above - quoting the entire segment. The major theme seems to be that what Roberts is really interested in is the integrity of the Court and of the rule of law. It isn't that he is looking for minimalism or unaminity for its own sake, it's more that those things lead to "greater coherence and agreement about what the law is"; they "promote clarity and guidance to the lawyers and to the lower courts." Saying that "the rule of law and the Court as an institution both benefit from broader agreement" implies that it is the beneficiaries - not the benefactor - that are the focus. I offer the suggestion that Roberts may be advancing something altogether more pragmatic - more Rehnquistian - which is that minimalism is a tool which he regards as having the virtue of keeping as many justices on board as possible, which leads to stronger majorities, and stronger majorities garner greater confidence in what the law is, which is precisely what Roberts seemed to say. The reason that formalists - and I place myself on the Scalia/Black side of Sunstein's division, quoted above - prize bright-line rules is for precisely the reason that Roberts spelled out: "greater coherence and agreement about what the law is"; they "promote clarity and guidance to the lawyers and to the lower courts." Hence, in the normal course of business, formalists want broad, bright-line rulings. But one of the hallmarks of the Rehnquist court was 5-4 decisions, and worse yet, complete jurisprudential train wrecks like McConnell. In several areas -- look at sovereign immunity and federalism jurisprudence, look at Booker et al -- we spent the 1990s with a majority of justices saying that the law was one thing, and the dissenters saying something completely different and then sticking to their views in subsequent cases (n1). This has not served the clarity of the rule of law, and has generated opinions that are very difficult for lower courts - on which both Roberts and Alito sat until recently - to undertake to apply. It doesn't serve, in other words, the very goal that formalists are seeking. The simple fact is that the more Justices sign on to an opinion, the more likely that opinion is to inspire confidence that it accurately reflects what the law is, and that it isn't simply going to be overturned should a key member of the majority retire and be replaced with someone who will vote with the minority. Therefore, I think that Roberts is not, in fact, saying that opinions should always be as narrow as possible, I think he's saying he would prefer a narrow ruling with a clear majority over a clear ruling with a narrow majority. Presuming I'm right, then suddenly a case like Garcetti may make a lot more sense, without the need for Solomon's hypotheses. Once we liberate ourselves from the idea that Roberts is looking for majorities for their own sake, it becomes apparent that he is actually looking to have an opinion which commands the strongest majority possible. And when that becomes apparent, you have to ask: what does Roberts do if that isn't possible? Garcetti was a broad holding, but was it really the breadth of the result - rather than the result - that drove Stevens, Souter, Ginsburg and Breyer into dissent? Perhaps it is simply the case that in Garcetti (as it will presumably be in other cases) there was simply no way to reconcile the competing views of the case. If there was simply no way that the four would join a majority opinion that actually decided the case (or, worse yet, if narrowing the ruling would risk splintering the majority), it makes some degree of sense for the ruling to find its natural level of generality. Now, if it was possible that a narrower opinion might have attracted Breyer, for example, that is one thing; but if, on the other hand, it was the situation that the four dissenters just flat-out wouldn't go along with the result, and if (as I think I've shown) Roberts goal is not narrow rulings per se, but rather, rulings that are as clear as possible while still commanding the greatest majority possible, then it becomes largely irrelevant (at least from the standpoint of tactics) whether the opinion is narrow or broad, because in either event, the case would still have come out 5-4. In that case - the inescapability of a 5-4 ruling - when Roberts' preferred means (and it's means not goal, as I've discussed above) has disappeared over the horizon, presumably Roberts' secondary goal comes into play. Having established - as would presumably have been clear at Conference - that this case was going to be 5-4, what are Roberts' secondary means? Well, his goal is to serve stability, confidence and clarity in the law. So in the first instance, it is obvious that writing a narrow ruling anyway not only doesn't serve that goal, but in fact, hinders it, since it may splinter the majority by provoking a concurrence from Scalia and/or Thomas (that role - the spoiling concurrence - used to be the O'Connor/Kennedy speciality). I would suggest that someone who is as pragmatic enough to think that a narrower ruling supported by more justices is better than a broad ruling supported by a bare majority would also be pragmatic enough to say "well, if we can't have a stronger majority, we might as well go to the second-tier virtue of writing a clear and unambiguous opinion." In short, I think that Roberts' speech has been misunderstood. It's not that he's averse to a clear ruling, it's that he's lived and worked as a lawyer and a judge on the recieving end of the messier aspect of the Rehnquist Court; he's had to work out what a 4-1-4 ruling means and apply it, and so I would suggest that he IS, in fact, on the Scalia/Black/Dodd team - it's just that he has added a new and pragmatically Rehnquistian analysis to formalist thinking. Which seems aptly appropriate for a former Rehnquist clerk: Rehnquistian pragmatic formalism. _________ Footnote n1. This is (one reason) why it's so hard to suppress the guffaws when liberals tout stare decisis as an inexorable commend. cf. Justice Stewart, who eloquently dissented from Griswold v. Connecticut, but reluctantly joined Roe v. Wade eight years later, saying in concurrence that "it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment"; Stewart hadn't changed his mind, he simply assumed the virtue of stare decisis: "I didn't agree with that result then, I don't agree with it now, but that's what we decided." Update: Support for the idea ab lingua equus? MSMTPOnce again, we're back to talking about the next generation of SMTP. SMTP does have problems, sure, but here's my point: to create a new version of SMTP (SMTP-NG, perhaps), you need to have a new generation of mail clients that speak SMTP-NG, and a whole new generation of mail servers to process it. The two most widely-deployed mail clients are Outlook and Outlook Express, so you need Microsoft on board. But wouldn't it stand to reason that if Microsoft are smart, they could use this position to say "sorry, chaps, but we don't like SMTP-NG. Instead, we're going to deploy our own standard, Miscrosoft SMTP, and y'all can conform your efforts to us." It's not a pretty scenario, so let's all be pretty glad that while most clients are MS, most servers aren't. Two new features and a fix coming soonOne of my projects next week is going to make another couple of updates to Noise2Signal, the blog platform that I RESPECTFULLY DISSENT runs on. I'm finally going to surrender and add category support to the platform (no word,as yet, on whether this particular category will be added), and I'll write an RSS feed for the blog, which means that those interested in my witterings won't need to actually visit the site to know when something new is posted (which is probably a good thing, since my postings have become a little hit-and-miss lately). New (ish) blog, updates, and a couple of posts from meI've been kind of pressed for time in the last few days, and thus, no updates or replies to comments - Rock, Marghlar, I'll try to get back to y'all today. Iowa Governor Tom Vilsack vetoed a bill which would have limited local governments' ability to take private property for economic development. Vilsack said the bill did not contain the proper balance of protecting private property rights while allowing economic development.Here's the bill - you decide. RussiaBlog, of course, isn't new, but I've been meaning to link to this superb post for about a week and haven't gotten around to it. I visited Russia in 1996, and in my view, although there are undeniably some problems there (the top-heavy constitution, for a start), Russia and America today have many strategic interests in common, and I believe it is in our best interests to cultivate our relationship with that country. Speaking of Russia, Gary Becker has an excellent post here, talking about that country's demographic problems. At Centerfield, I've put up a couple of posts in the last couple of days exploring the problems with Senator Wyden's bill to fix network neutrality and some historical perspective on how (and why) the House of Representatives decides elections when the Electoral College fails. And lastly, because sometimes it's nice to get props, at Concurring Opinions, Jason Mazzone gives me an 'A' for my 28th Amendment (which, I admit, I've had lying around for some time, it wasn't written specifically for his ConLaw exam question, which may or may not have been cheating). |
    
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