Supreme Dicta Celebrates 100 Posts

I know that 100 posts on a blog (or blawg) is nothing compared to 100 episodes of a TV show or 100 years of age, but you have to start somewhere. I thought I might take a brief retrospective at some of our greatest hits.

You heard it here first: in a shocking revelation, Justice Scalia abandons originalism:

In the case Ayotte v. Planned Parenthood, the Court will decide whether a New Hampshire parental notification that lacks a health exception for pregnant minors presents an undue burden. A lawyer for the ACLU argued, "I think what is quite clear from all the briefs is that once a minor arrives in the emergency room, it is too late for her to go to court." Scalia responded, "Well, counsel, surely not the delay for a quick phone call...It takes 30 seconds to place a phone call."An awkward silence fell over the room until Chief Justice John Roberts said, "But Justice Scalia, you know full well that telephones did not exist in 1787!"

The impetus for our Retarded State Legislation feature was born in Ohio:

I intend to introduce legislation in the near future that would ban households with one or more Republican voters from adopting children or acting as foster parents. Policymakers in Columbus have ignored this growing threat to our communities for far too long. My legislation is modeled after a bill recently introduced in the Ohio House by Rep. Ron Hood (R-Ashville via Carrollton), which would prohibit homosexual, bisexual and transgender people from adopting children. It is unclear at this point whether Rep. Hood supports my legislation, though I remain hopeful.

The Dicta found several examples of out-of-the-box jurisprudence, including this example:

Faced with the inability of two bickering attorneys to resolve even the most innocuous scheduling questions without his intervention, a Florida federal judge yesterday ordered the two to meet on the steps of the federal courthouse and resolve their latest quarrel by playing "one (1) game of 'rock, paper, scissors.' "

We even discussed up the greatest counterfactual in the history of constitutional law:

When I debated in college, I heard about this fantastic constitutional law case that I never had the chance to argue. Now that I am too old (and feeble) to be on a debate team, I decided to throw this question out to the the land of dicta to let you settle it. If you had to live in a world where only half the amendments to the Constitution remained in effect, which would you keep: the odd-numbered amendments or the even-numbered amendments?

Here's hoping that the next 100 posts are even more informative and funny. If you haven't enjoyed reading Suprme Dicta thus far, please read the following disclaimer:

"If we shadows have offended, think but this, and all is mended. That you have but slumbered here, while these visions did appear, and this weak and idle theme, no more yielding but a dream. Gentles, do not reprehend. If you pardon, we will mend. Else the [Harlan] a liar call. And so good night unto you all. Give me your hands, if we be friends, and Robin shall restore amends."

Napster for Court Nerds

Thanks to the Bench Conference for bringing this NY Times piece to my attention:

The domination of two legal research services over the publication of federal and state court decisions is being challenged by an Internet gadfly who has embarked on an ambitious project to make more than 10 million pages of case law available free online.

The project is the latest effort of Carl Malamud, an activist who founded public.resource.org in March, with the broad intent of building “public works” accessible via the network, and with the specific plan to force the federal government to make information more publicly accessible.

Last week, Mr. Malamud began using advanced computer scanning technology to copy decisions, which have been available only in law libraries or via subscription from the Thomson West unit of the Canadian publishing conglomerate Thomson, and LexisNexis, a division of Reed Elsevier, based in London. The two companies control the bulk of the nearly $5 billion legal publishing market.

He has placed the first batch of 1,000 pages of court decisions from the 1880s online at the public.resource.org site. He obtained the documents from a used Thomson microfiche, he said. Mr. Malamud and a diverse group of backers argue that the control of publishing court rulings subverts the original intent of the framers of the Constitution by making the nation’s laws difficult to obtain by those outside the legal profession.

Ignorance of the law is never a defense that can be used in court (except if you are Linda Tripp). And the ignorance of the American people towards the most basic aspects of our governmental institutions is staggering. Libraries in rich counties or school systems can afford subscriptions to Lexis or Westlaw. Others cannot. Our government has asserted that openness is key to accountability and greater citizen involvement by passing the Freedom of Information Act. Financial resources should not be the reason that many Americans be excluded from the Public Square at such a fundamental level.

Two Civil Rights Anniversaries

Thanks to Today in Legal History, I wanted to share a couple of big anniversaries in the world of civil rights. Forty-four years ago yesterday, Martin Luther King delivered his "I Have a Dream" speech, and on Sunday the 19th Amendment turned 87 years old.

King's speech is probably the most renowned speech in the history of American rhetoric, and rightly so. Actually, I think King's "Letter from a Birmingham Jail" is even better piece of writing. We should all be thankful that King lived in the age of television, so that his words and his amazing presence will live on forever.

When Tennessee became the 36th state to ratify the 19th Amendment, it became the law of the land. However, there were many states that never attempted to ratify the amendment or rejected it. The last state to ratify it was (drum roll please)...Mississippi in 1984. Only 64 years late to the dance. Not bad (let the hate mail commence).

Actually, once the 19th Amendment was ratified, it was challenged in court in the case of Leser v. Garnett. How can a constitutional amendment be unconstitutional? (Wow you just blew my mind.) Well a unanimous Supreme Court rejected the claim that the power to amend the Constitution did not apply to women's suffrage, especially in light of the similar nature of the 15th Amendment.

On a slightly more snarky note, I have always been a fan of the first Man Show episode, in which Adam Carolla and Jimmy Kimmel circulating a petition to end the suffraging of women. Unfortunately, I can't find a clip of them, but this will more than suffice.

The Dumbing of Democracy

Americans love democracy more than we love apple pie and baseball. We love it so much that we try to impose it at gun point around the world. But as the 2008 election season demonstrates, our conception of democracy is far from perfect. In fact, political discourse in the country is in a whirlpool race to the bottom.

The race for the White House is expected to cost $1 billion, which makes political campaigning an economic force on par with the video game industry. Why does it cost that much? Television advertising. Why would campaigns dedicate so much money to TV ads? Because a significant portion of the American people are not dedicated enough to make up their minds in any other way. It's Lazy Boy politics, literally and metaphorically.

And it's not just TV ads that demonstrate the superficiality of the American political system. Check out Brides Decide, a website dedicated to educated married women voters. They are a large demographic, so this is like a noble public service, right? WRONG. The website gives information about the marriage history of each candidate: how they met their spouse, how many people attended their wedding, even posting wedding pictures of several happy political couples (see Mike Gravel).

Even more useless is the hottest political video on the Internet, where a beautiful young woman known as Obama Girl shakes her groove thing about how she has a crush on Sen. Obama. Among her astute political observations is: "You're into border security, let's break the border between you and me." The video has 3.6 million hits on YouTube, and Obama girl has been on cable news literally dozens of times. Let that sink in for just a minute...If you need to leave your computer to fetch some Advil, I understand.

Now I have no problem with gorgeous women dancing provocatively. I am no prude (though I am a sociological jurisprude, but that is another conversation entirely). But it is poisonous to our democracy to have something like this qualify as public discourse.

Political discourse has gone from the Federalist Papers to Obama Girl, from Common Sense to Swift Boat Veterans for (Mis)Truth. Our democracy is both numb and dumb.

What's the solution to this problem? Well, I am going to pretend to be a political theorist, which allows me to ignore the fact that nothing that I say will ever become reality. We should embrace the British electoral system. We need to give limited, equal time to all candidates on the airwaves so that ads actually spark policy debates. We need to limit the amout of political expenditures so that candidates have an equal playing field. We need a distinct, short campaign season. And we need to get the media to stop treating politics as a horse race/boxing match/football game etc.

When shows like Hardball feature Obama Girl instead of debating the issues, no wonder voters need a slick 30-second commercial to make up their minds.

Quote of the day

"If all else fails, immortality can always be assured by spectacular error."

- John Kenneth Galbraith

Very apropos for the resignation of Attorney General Alberto Going-going-Gon-zales. Hopefully this resignation will help him deal with his acute dikephobia.

Retarded city legislation: Atlanta edition

Droopy drawers are BACK!!!! For those of you who don't remember, the highlight of the 2005 session of the Virginia General Assembly was a bill, I kid you not, that would allow police to give fines to individuals whose underwear is visible. Virginia made the front page of newspapers in Australia and England, including this BBC story. The General Assembly eventually came to its senses and defeated the bill on the House floor.

Thongers, beware, John Q. Law is after you. Again. Thanks to the good folks over at Above the Law for this story. It appears that the Atlanta City Council wants to revive the droopy drawers legislation.

The ordinance claims saggy pants are an "epidemic" and have become a "major concern" in Atlanta and other cities around the country. [City Councilman C.T.] Martin says he wants children subjected to a higher standard of dress. "I don't want young people thinking that half-dressing is the way to go," said Martin. "I want them to think about their future."

Their future? Maybe if the Atlanta City Council did something to eliminate poverty, Atlanta citizens with baggy pants could look forward to a better future. Unfortunately, the Atlanta City Council also debated a bill in 2005 to ban panhandling. Also Atlanta police would round up homeless people and lock them up during the 1996 Olympics. So you can't panhandle, you can't hang out in the streets, and you can't wear baggy pants. Sounds like a great set of policy priorities.

Congratulations, Atlanta City Council, you are even dumber than the Virginia General Assembly. And that is no small feat, they did pass legislation establishing an official state bat (not Louisville Slugger, the creepy mammal).

Nobody Could have Foreseen Waste

Over at another blog where I write, John Leek raises an interesting question, or more accurately, he implies, and I explicate:

What can we do about fraud and waste by government contractors who receive Katrina appropriations? More importantly, what can we do about lack of government oversight to prevent such fraud and waste? Most importantly, can I do what I'm about to do and blatantly steal the majority of the rest of this post from my writing over at Cotton Mouth? Interestingly enough, the answer to that last one is "Yes!"

And unfortunately, the answer to the other questions is, "not much." The federal government can go after alleged fraudfeasors (that's people who commit fraud, for those who don't speak Lawyer), and the state can probably go after them as well. But you and me? Not so much. We don't have "standing."

"Standing," in the United States, means that we have to be able to stand up in court and explain how we've been hurt in order to start the gears of justice moving. And (sucks for us!), the Supreme Court has repeatedly held that taxpayers (that's you and me) have no standing to pursue claims against poor spending choices by the government.

There is one exception, and that is if the spending is claimed to violate the Establishment Clause. But in a recent case (whose name I can't remember, dammit), the Court held that Executive disposition of monies for which the Executive has Congressionally granted discretion cannot be challenged under Establishment Clause taxpayer standing. Thus, to make it perfectly clear, if Congress appropriates $1B for, say, a missile defense program, and the Pentagon awards the contract to a church that promises to pray missiles out of the sky, you and I? No standing.

So, for waste and fraud in Katrina, even if the government awarded the contract to people who literally promised to take the money and run - you and I have no standing to challenge as taxpayers.

But all is not lost! As Katrina survivors, we (or more accurately, me I) may have standing. In another case, the Court held that a hospital that was due to receive appropriated money had standing to sue when that money was taken out via the line-item veto. Incidentally, this is also the case where the line-item veto was held unconstitutional. So, as the beneficiaries of Katrina appropriations, we have at least a colorable claim to standing to sue the government for lack of oversight in permitting fraud and waste.

Coolest name of a Supreme Court case ever!

UNITED STATES v. $8,850**
461 U.S. 555 (1983)

**No the defendant is not a relative of the rapper 50 Cent. Close second in this contest goes to Loving v. Virginia, the 1967 case that struck down bans on interracial marriage. But how does $8,850 have standing to sue? How does a pile of money suffer injury? It doesn't care who possesses it. Maybe if the government was planning to destroy the money, then there would be adverseness between the two parties. Anyways, here's a summary of the case:

The Bank Secrecy Act of 1970 requires someone carrying $5,000 into the United States to file a report with the Customs Service declaring the amount transported. The Government is authorized to seize and forfeit any money that was not reported. On September 10, 1975, claimant Vasquez, upon arrival at Los Angeles International Airport from Canada, declared that she was not carrying more than $5,000 in currency, but a customs inspector discovered and seized from her $8,850 in United States currency. In March 1977, a complaint seeking forfeiture of the currency under 31 U.S.C. 1102(a) was filed in Federal District Court. Vasquez claimed that the 18-month delay between the seizure of the currency and the filing of the forfeiture action violated her right to due process, but the Supreme Court held by an 8-1 vote that the time that had elapsed was reasonable under the circumstances and declared the currency forfeited. Justice O'Connor authored the majority opinion with Justice Stevens dissenting.

Really the only exciting thing about this case is the name, but that's exciting enough to receive a post here at Supreme Dicta.

Worst voir dire ever!

** No animals were harmed in the writing of this post. I love you, Bailey.

Those two little words

Excellent story in the NYT at the end of the last term (not exactly breaking news, but we are not that kind of blog). Justice Ginsburg took the rare step of reading two dissenting opinions from the bench, on the partial-birth abortion case, Gonzales v. Cahart, and the gender discrimination case, Ledbetter v. Goodyear Tire. Unfortunately, it is a Times Select story so you freeloaders will not be able to read it. But here is a brief except:

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term.

In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

A few observations: This development should come as no surprise given the recent personnel changes in the Court. At the beginning of the year, Ginsburg told USA Today: "The word I would use to describe my position on the bench is lonely."

Second, I think it is interesting to observe that not only did Ginsburg read her dissent in Cahart, she also ended it with "I dissent," rather than the more traditional and courteous "I respectfully dissent." Her opinion in Ledbetter ended with neither (it called for a reversal of the 11th Circuit judgment). Ginsburg does not end cases with "I dissent" very often (actually none of the justices do). Perhaps the most famous example of this phrase came from her opinion in Bush v. Gore.

And I think this raises some interesting issues: many journalists have observed anecdotally that the rhetoric in many Court opinions is more tense in recent years, and the number of 5-4 decisions has increased since Roberts took over. Does that mean that there are more decisions read from the bench in recent years or more dissents that end with "I dissent" than in previous years?

The answer is I don't know and I don't think anyone has gathered good data on this topic. John Barrett, the very able-bodied researcher of Justice Jackson, wrote about this briefly when he read the same NY Times story, but I think more inquiry is warranted. **

**© 2007. Seriously, don't steal this paper topic. I really want to write it myself. By reading this message you have forfeited your rights to even think about this topic in the future by virtue of a digital pinky swear.

Happy Birthday, Hawaii

King Kamehameha I

You might notice a new feature on Supreme Dicta on the left column is Today in Legal History, which links to a very cool blog at FindLaw.com. And today, we at the Dicta offer our best wishes for Hawaii's 48th birthday. On August 21, 1959, President Eisenhower signed an executive order proclaiming Hawaii to be the 50th state of the Union.

Last week, I toured the Capitol with Foxhole and we were very surprised to learn that despite America's historical opposition to monarchies, there is a statue of a king on the grounds of the Capitol. I pity the poor soul of John Hancock, the man who (allegedly) said about his HUGE signature on the Declaration of Independence: "There! John Bull can read my name without spectacles and may now double his reward of £500 for my head. That is my defiance."

Well, at least it isn't a British monarch who is honored in the Capitol, although this king did rule during the Revolutionary War. It is Kamehameha I, a legendary king of Hawaii. His statue is relegated to a corner of Statuary Hall, where it is partially hidden from view. The Architect of the Capitol claims that it is because this statue is the heaviest in the collection and thus it needs to be in a part of the room with the most structural support. B.S. I think it is partially hidden because it's the only statue that is gold plated, and it is, shall we say, subtly suggestive.

Also noteworthy from my Capitol tour was my visit to the Old Supreme Court Chamber. This chamber, which actually housed the Senate until 1810, was the home of the Court until 1859. Many of the legendary Marshall Court decisions were decided there, as was Dredd Scott.

Although the room is quite small, many Washingtonians would cram into the gallery to watch Supreme Court arguments as a form of daytime entertainment (ahh, the good old days). After her husband passed away Dolly Madison moved back to Washington and loved to watch oral arugments, which in those days would last several hours. She was such a fixture of the Court that one day she walked into an arugment ten minutes late. The first litigant speaking was Daniel Webster. Upon her arrival, he turned to Madison, bowed, and started the argument over from the beginning. No one in the courtroom objected. What else would you expect for the woman who saved the Declaration of Independence from the White House fire in the War of 1812?

Retarded state legislation: Washington double edition

"It is one of the happy incidents of the federal system," Justice Louis D. Brandeis wrote in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Well occasionally, these laboratories produce a Frankenstein monster, and today you get two for the price of one from the great state of Washington.

As some of you may know, I love big government. I think government solves problems, not causes problems. I think our welfare state is puny in proportion to the GDP. I favor publicly financed health care and think that public higher education is way too expensive.

Registered lobbyist in Olympia

BUT, every once in a while I find a public expenditure that we, as a society could do without, such as: Washington Senate Bill 5015, which designates an official state ornithologist. For those of you who, like me, forgot that particular SAT word, it is a scientist who studies birds.

Look at the legislative findings:

Birds are both a fundamental part of Washington's biota and a source of daily viewing pleasure for all Washingtonians. The occurrence of rare wild birds, such as transient species from other continents, generates enormous interest from bird watchers and the public generally, and provides economic benefits to the community hosting the rare bird or birds. There is great public interest in promoting backyard bird habitat and feeding, and gaining greater understanding of bird types, behavior, and conservation needs. The designation of a state ornithologist will serve the public's interest.

I am beginning to be seriously worried about the interest group culture that has a stranglehold over legislative politics in this country. We have big oil, big tobacco, big pharma, and now BIG BIRDS.

Moving from the absurd to the ridiculous, consider Washington SB 5063, which eliminates all gender references in state law. Now firemen are referred to as firefighters, the state will not discriminate "in any manner against any such person because of his or her religion...," etc (the bill is 92 pages long).

I am not arguing that this bill is retarded because it is political correctness run amok (although you could make a compelling case for that point). My point is that bills like this demean the women's rights movement. It demonstrates (falsely) that there is nothing left for women to fight for except legislative hermeneutics. There are very real issues confronting women today, from access to child care to equal pay for equal work. By focusing time and effort on this bill (which eventually became law), it distracts the legislature from the bigger issues and gives fodder to those on the right who believe the movement for civil rights has already gone too far.

N.B. Supreme Dicta is an equal opportunity satire blog. No person shall be exempt from ridicule regardless of his or her race, religion, gender, political ideology, favorite flavor of ice cream, or astrological sign.

My dog ate my law license

This post may also be referred to as "Retarded state legislation prosecutor: North Carolina edition"

A fitting coda to the story of disgraced Durham prosecutor Mike Nifong, who brought the bogus rape charges against the three Duke University lacrosse players. Nifong’s prosecutorial misconduct in the case was so bad that he lost his law license. But as it turns out, he kind of lost his license several years ago:

[Nifong] never framed or displayed the document because it had been damaged “by a puppy in her chewing stage.”

Additionally, in an August 7 letter to the North Carolina State Bar, Nifong noted that the law license also contained a misspelling of his middle name (which is Byron).

As the Bible according to Lewis tells us: “Don’t think about that sentence for more than about three minutes, or blood will start shooting out your nose.”

Sorry, I couldn't let this go by without a brief editorial (it is the Supreme Dicta after all). I am very angry at Mike Nifong for creating a public misperception that women "invent" rape charges all the time. Statistics show that when women come forward to the police alleging rape, their charges are valid over 90% of the time. Unfortunately, the media only covered this one false allegation. I pity the next rape victim that falls into the media circus.

Gideon's Flugelhorn

There is nothing more cathartic than when a pro se litigant successfully brings a case before an appellate court and wins. The halls of justice are open to all, even the least among us.

The flip side is that there is nothing more amusing than reading the petition of a nutjob pro se litigant. And that is what we have today. Thanks to the good folks over at Above the Law for bringing this petition to light.

First of all, if you ask for "$63,000,000,000.00 Billion dollars," is that the equivalent of $63,000,000,000,000,000,000.00? If so, there enough money in the world GDP to satisfy this claim?

Second, I always suspected Michael Vick was a terrorist. But if he is able to buy missiles from Iran from the sale of two pit bulls, those must be some very special dogs. Maybe they are mutant dogs from the X-men world...

Of course no wacky law suit would be complete without a reference to microwave testing.

I could go on and on but as I write this I feel a little guilty for picking on someone with an obvious mental illness. But on a certain level, we at the Dicta agree with Jonathan Lee Riches, Vick's actions hurt America's feelings and dashed our hopes. So in that sense, Gideon's Flugelhorn is playing a mournful ditty that we all should hear.

Stephen Breyer on Wait, Wait, Don't Tell Me

In case you missed it, Justice Stephen Breyer made an appearance on the NPR game show, Wait, Wait, Don't Tell Me earlier this year. This is only the second time in American history that a Supreme Court justice went on a game show (who could forget Justice Thomas' cameo on Name that Thing on My Coke Can). Justice Breyer plays the Not My Job game, in which Breyer needs to correctly answer two of three questions correctly about oddball news stories in order to win a prize (Carl Kasell's voice on your answering machine) for a lucky contestant.

Justice Breyer does not do particularly well in the game, but that's OK because it is the converstaion he has with the host and other panelists that makes this clip hilarious. Finally, the American public gets answers to the pressing questions about the inner workings of the Supreme Court. Amongst the topics of conversation: how does Justice Breyer get lunch?, does Justice Breyer hold the record for longest-serving junior justice?, how did Justice Breyer acquire his robe?, does that robe need to be cleaned with a lint brush?, and who is the funniest justice?

Happy listening!

The Dark Side of the Force May Shield Rove, But Executive Privilege Does Not

NB - This post may also be referred to as "Come on out, munchkins. The Wicked Witch of the West is dead!" (Thanks, Foxhole)

The Sith Lord known as Karl Rove has announced he is resigning his post as Deputy Chief of Staff for Black Magic. Karl, who goes by the alias MC Rove, says he wants to spend more time with his family (I can't even write that with a straight face).

I am not concerned with the political, theological or astrological implications of Rove's departure. I'm interested in how this move affects the separation of powers. The Bush Administration had refused to allow Rove to testify to congressional panels investigating the improper dismissals of 13 U.S. Attorneys, citing executive privilege. Constitutional expert (and personal acquaintance) Lou Fisher says that the claim of executive privilege remains viable after Rove leaves his post because it applies to his official duties serving the president.

The Bush Administration's position on executive privilege is so absolutist that it makes even Louis XIV cringe. Essentially they believe that advisers to the president must be able to give frank advice to the president without the fear of being called in front of Congress for questioning.

This justification seems incredibly weak on a number of fronts. First, the president is responsible to the American people; thus secrecy is antithetical to democratic government. See e.g. the Freedom of Information Act. Secrecy may be used as a means to serve a compelling end such as national security. In this controversy, the White House is asserting secrecy for its own sake, or something even more sinister than that.

Congress has a compelling interest in this investigation because there is a real possibility that administration officials violated civil service laws, not to mention the fact that the Attorney General probably perjured himself in congressional testimony. A cursory examination of U.S. v. Nixon is enough to conclude that executive privilege does not shield potentially criminal conduct.

The public's right to understand what their leaders are doing and Congress' right to executive branch oversight versus the Administration's right to cover up shady behavior. This is a tough call...

Fortunately, there is precedent of former presidential aides giving testimony to Congress that they had previously refused to give while serving in the White House. Oliver North and Henry Kissinger spring to mind; they both chose to testify even though they could not be compelled to do so. And if a scum bag like Ollie North would waive privilege, maybe the Dark Lord would do it too. (Once again, difficult to write with a straight face. Sigh.)

Administration Backs International Law, Kennedy Cries Foul

Sure, this is a little old. I say, write your own damn piece.

Anyway, in 2006 the Court heard Gonzales v. O Centro Espirita Beneficente Uniado Vegetal ("UDV"), a case that explored the potential conflict between the Religious Freedom Restoration Act (RFRA) and the Controlled Subtances Act.

Basically, it's a lot like the case that triggered the RFRA - Smith v. Department of Human Resources of Oregon. In that case, in case you read this blog despite knowing nothing of constitutional law (N.B.: you really shouldn't do that), two men claimed that their use of peyote and subsequent firing for said use was an unconstitutional infringement on their right of free exercise. Justice Scalia shot it down, making a distinction between "laws of general applicability" and laws that target religious belief. Because the Controlled Substances Act and the statutes referring to it didn't care that you used peyote for religious purposes (peyote was just banned flat out), your religious use wasn't being targetted. Thus, the Government did not have to meet the same level of scrutiny.

In one of the few redeeming moments of the Gingrich-Livingston-HastertDelay-led Congresses, the RFRA was passed reinstating strict scrutiny as the level of scrutiny required to permit Government interference in the free exercise of religion. Hooray for social conservatives making common cause with potheads!

Anyway, the Court was faced with an essentially identical case here - only the substance was different. After the widespread condemnation of Justice Kennedy's use of international law to explain why he condemned the use of the death penalty against minors, it was particularly poignant to watch the Administration, invoke the 1971 United Nations Convention on Psychotropic Substances. Particularly fascinating was the Chief's insistence that the Government's reliance on international law was, essentially, crap-on-a-stick.

"[I]t suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs." UDV, 126 S. Ct. 1211, 1225 (2006).

After the opinion was issued, Justice Kennedy was heard to mutter, "I wonder if those Republican bastards in Congress will impeach Gonzales for using international law, like they wanted to do to me...."*

* - This is totally made up. I, of course, didn't hear Justice Kennedy mutter anything, seeing as how I'm 1000 miles away. But it's not like there aren't enough reasons to nail Fredo.

To: Justice Scalia, From: Thomas Jefferson

I had the pleasure of strolling the Jefferson Memorial Saturday night with the lovely Foxhole. I hadn't been to visit Jeffy in quite some time, so I had forgotten some of the quotations that adorn the interior of the memorial. There was one quote that caught me dead in my tracks. It is probably something that half of the current Supreme Court has not read or just pretends does not exist.

I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. Do you hear me Scalia? Yeah I'm talkin' to you.
- Letter to Samuel Kercheval, July 12, 1816.

Ok, so a couple of sentences may have been added for dramatic effect. Even without embellishment, could there be a more clear and direct endorsement of viewing the Constitution as a living document? The Founders were great men, but they were just that - men. Only God could forsee what American democracy would be like 230 years later. It seems axiomatic that the Founders wrote the Bill of Rights in vague terms in order to give the Constitution a small amount of flexibility to adapt to changing times and social circumstances.

When originalism tells us to consult the Founders, and the Founders tell us not to consult them, originalism eats itself (with fava beans and a nice chianti).

Food for thought.

6th Circuit reluctant to let anyone ride Sally Hemings

And Censorship leads Hate Speech by a nose!

**Disclaimer: I borrowed the title from the good folks over at Above the Law. As they said: "We can understand the Sixth Circuit's reluctance to allow anyone to 'ride Sally Hemings.' Thomas Jefferson already tried that, and his historical reputation will never be the same."

The 6th Circuit Court of Appeals handed down a landmark (insert sarcasm here) free speech ruling in Redmond v. Jockey Club. The issue before the court was whether a horse breeder (Redmond) had the 1st Amendment right to name his horse Sally Hemings, a name which the Jockey Club finds offensive.

The Jockey Club is a private organization designated by Kentucky to track and approve names of race horses. Without an approved name, a horse cannot race at a Kentucky track. The Jockey Club's rules prohibit horse owners from using names of famous or notorious people without permission. The club also forbids "names considered in poor taste; or names that may be offensive to religious, political or ethnic groups."

Judge Batchelder wrote, "To be sure, the First Amendment protects horse owners' rights to free speech, and we do not foreclose Mr. Redmond indiscriminately from asserting that right, but the right to free speech is not absolute in all contexts." Judge Batchelder reasoned that because the Jockey Club is a private organization with power delegated by the state, it may restrict free speech so long as it doesn't discriminate against a specific viewpoint.

It gets better: the judge also quoted Shakespeare's "What's in a name?" speech and cited the band America (who composed the song "The Horse with No Name") in rejecting Redmond's appeal.

In short, because he has spent three years insisting he has a constitutional right to name his horse 'Sally Hemings' and that no other name will do, Mr. Redmond now finds himself, like the songster of the 70s, having 'been through the desert on a horse with no name.'

P.S. In light of the court's decision, the horse has been given a new name: Awaiting Justice.

Word of the day: dikephobia

No, this word has nothing to do with an irrational fear of Melissa Etheridge -- stay away from my window, please! It actually means an irrational fear of justice. Look it up if you don’t believe me. I came across this word while playing the greatest board game known to man, Balderdash (thanks, Foxhole), and I have been giddy ever since.

First of all, what the hell kind of etymology is behind this word? The best explanation I can find is that it comes from the word dicastry, which refers to the departments of the Roman Curia.

Second, although you may not be familiar with this mental illness, I bet you have seen its symptoms in the news recently. Lying to Congress…throwing away the Geneva Conventions…purging U.S. attorneys for not being "loyal Bushies"...ruling that judicial review and privacy rights are too inconvenient to be trifled with. Now, I am not a psychologist, but I am a legal realist and a sociological jurisprude, which is pretty much the same thing (bring on the hate mail, Holmes). And I would conclude that the Attorney General is suffering from an acute case of dikephobia.

In the wake of Gonzales’ last disastrous performance in front of the Senate Judiciary Committee, Rep. Jay Inslee (D-WA) said in support of his impeachment bill: "Never in the history of Congress have so many deceits and half-truths been purveyed on so many occasion by so few people." I don't think Rep. Inslee appreciates the degree to which the Attorney General suffers from this debilitating condition. Impeaching Gonzales raises difficult questions under the Americans with Disabilities Act (but I still think it is worth doing).

Good news, bad news: the good news is that dikephobia is curable. The most effective treatment is "spending more time with your family" and taking a golden parachute by working for a D.C. law firm. I hope the Attorney does resign soon because dikephobia is incredibly contagious. People with weak spines are at severe risk of catching dikephobia, i.e. Democrats in Congress who passed the warrantless wiretapping program that the Bush Administration wanted.

Please join Supreme Dicta in eradicating dikephobia, it is a real problem that affects real people. Let's turn Washington D.C. into a city filled with dikemaniacs.

We will miss you, Oliver Hill

From left to right: Louis L. Redding, Robert L. Carter, Oliver W. Hill, Thurgood Marshall and Spottswood W. Robinson III.

The civil rights world lost one of its greatest heroes yesterday when Oliver Hill passed away at the age of 100. Though he did not achieve the same notoriety as his colleague, Thurgood Marshall, Brown v. Board of Education, would not have happened without Oliver Hill. He was the lead litigator in Davis v. County School Board of Prince Edward County, which was one of the five cases rolled together in Brown.

After Brown, Hill continued the fight for civil rights in Virginia during massive resistance, at a considerable personal cost. He received so many death threats that he installed floodlights on his yard. Hill litigated hundreds of successful civil rights cases, earning damages to black defendants in excess of $50 million. And to boot, Hill was the first African American elected to the Richmond City Council since Reconstruction.

I had the honor of meeting Oliver Hill a few years ago when I was working in Richmond. Governor Warner invited Hill to be honored during the State of the Commonwealth Address. Warner also named a building in Capitol Square in Hill's honor. "While we lost a great Virginian today, Oliver Hill leaves behind a legacy that will never be forgotten," said Warner in a statement. "With an unwavering sense of personal responsibility, a commitment to the idea that all men and women are created equal, and a sense of humor that kept us all laughing at his 100th birthday celebration this past May, Oliver Hill helped pave the way for equal opportunity in the Commonwealth and the country."

In 2004, I read Hill's last law journal article, published in the University of Richmond Law Review celebrating the 50th anniversary of Brown. I was very struck by a passage in the beginning and I wanted to share it with you:

Inspirational law teachers/activists and many visiting lawyers helped stimulate me as I entered the first full daytime law school at Howard University in 1930, along with Thurgood Marshall and about thirty other students. From the beginning, several of us had a common purpose - the eradication of segregation in American society. Charlie Houston impressed upon us from the first day that a lawyer who is not a social engineer is a parasite upon society. We worked extremely hard, attending law school six days a week. We were told that we would have to appear in the courts not just before some hostile white judges, but that we would also have to litigate cases against some very good white lawyers. Charlie and the faculty required that we give nothing less than our best.

The Constitution of the United States is stronger and more just because of Oliver Hill. I can think of no higher compliment to pay a civil rights litigator.

Retarded state legislation: Minnesota edition

Fans of the Dicta (all three of you) might remember that the poetry in state legislatures is a topic that I have explored mocked in the past. But the Minnesota Legislature has taken this concept to a whole new level:

H.F. 224

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1. [138.99] POET LAUREATE.

Subdivision 1. Appointment.
The Gov' shall appoint a state poet laureate,
Who shall serve for a four-year term.
Because this appointment will always be great,
There's no need for the Senate to confirm.
In appointing a poet for the public good,
And to ensure there's no unjust omission,
The governor shall consider, if he would
Thoughts of the Humanities Commission.

Subd. 2. Removal.
The poet will be free to write rhyming lines,
With removal only for cause,
But we trust that the bard will promptly resign,
If the verse reads as badly as laws.

Subd. 3. Compensation.
'Twould be fair to provide some just recompense
As reward for the poet's tribulations,
But because at this time we haven't the cents
We're afraid there is no compensation.
But we ask as the poet travels the state,
And the people their ears they lend,
That our learned Commission take the position
To provide the poor poet a stipend.

Subd. 4. Gifts and grants.
To provide the support that needs to come
To support our new laureate,
Gifts and grants received of a generous sum,
We hereby appropriate.

It is kind of refreshing to see that a legislature doesn't take itself so seriously, given the pomp and circumstance that usually surrounds the legislative process. And the text of the resolution itself is downright hillarious.

But I'm not sure this kind of silliness is helpful to democracy. The bill has one author and 5 co-sponsors. What are their constituents supposed to feel about how these elected officials spend their time? (Granted, this bill went nowhere beyond introduction in the House.)

This bill looks particularly foolish after the bridge collapse tragedy, which highlights in stark terms that Minnesota, like all states, has really serious issues to address. Ironically, last year I made fun of one state legislature that passed two official state poems. What state was that? Louisiana.

People who hate, and who hate the Hate Crimes Prevention Act

With the Democrats back in power, for the first time in many years there is a good chance that Congress will pass a new federal hate crimes law. The bill passed the House in May with 25 Republicans voting for it. It has been reported from committee in the Senate and will likely be attached to a must-pass bill, such as the Defense Department budget.

This bill does a number of good things. It adds violence motivated by the victim's sexual orientation, gender, and disability to the definition of a hate crime. It provides resources to local law enforcement to investigate and prosecute hate crimes (because these crimes often require more money and personnel than small police forces can dedicate). Finally, it removes an important barrier for federal government assistance. Under current law, a hate crime must be connected to a federally-protected activity, such as voting, for the federal government to get involved.

This bill does not enhance federal criminal penalties to hate crimes, though the Supreme Court has ruled (unanimously) that penalty-enhancement hate crimes laws are constitutional. And because the federal government's role only includes monetary and personnel assistance, the Court will likely not find a 10th Amendment violation with this bill (thanks, Rust v. Sullivan).

Unfortunately, the Religious Right believes that passing this bill starts America down a slippery slope that leads to a federal mandate for same-sex orgies. Cue the dramatic music - it's the HOMO-SEX-UAL AGENDA! (By the way, have you ever noticed how conservatives pronounce homosexual as if it were three separate words?)

This argument seems like a stretch, you might say. Just because you might oppose gay marriage doesn't mean you can't support protecting all people from hateful violence. Well, take a look at a recent press conference sponsored by Repent America:

Wow. These people are freackin' nuts. Like someone needs to notify Homeland Security kind of nuts. Just to let you know, this debate is not just the liberal secularists versus the Religious Right. Almost 1,400 clergy have signed a letter urging the Senate to pass this bill.

I can't wait for this bill to pass, not only because it is the right thing to do, but just ONCE, I would like to see the Religious Right defeated. When that day comes, I will be overcome with emotion. So much so that I just might make out with the first dude who walks down the street.

A revealing conversation with Justice Stevens

FreeVideoCoding.com

Want to watch a conversation with an 87 year-old man who just got leid? Wait, that came out wrong. Justice Stevens was part of a round table at the annual conference of the 9th Circuit Court of Appeals, which was held in Honolulu (yet another reason why the 9th Circuit is superior to other circuit courts). It is an hour long, but you should watch all of it, if for no other reason than Stevens' incredible sense of humor.

Amongst the topics of discussion:

• Stevens expresses concern for the lack of adherence to stare decisis during this term.


• Who would Justice Stevens like to preside over a trial if he were a defendant? Justice Souter (frankly I am shocked that he gave an answer to this question).


• Stevens smacked Justice Scalia by saying he doesn't have a "canned speech" that he uses at every public speaking engagement he goes to.


• Who was Justice Stevens most influential colleague? Justice Stewart (again, pretty surprising).


• Stevens described the Clean Water Act case from last term as an example of the a-word (judicial activism).